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2022 DIGILAW 3374 (MAD)

M. Karthik Kumar v. Leela Sathya

2022-09-16

D.BHARATHA CHAKRAVARTHY

body2022
JUDGMENT (Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to set aside judgment dated 21.02.2019 passed in Criminal Appeal No.155 of 2018 on the file of III Additional Sessions Judge at Salem, thereby reversing the judgment dated 18.05.2018 passed in D.V.O.P.No.71 of 2015 on the file of the learned Judicial Magistrate cum Additional Mahila Court at Salem.) 1.The petitioner husband has filed this writ petition aggrieved by the order of the learned Magistrate passed in the domestic violence petition filed by the respondent wife in and by which, the Trial Court ordered a compensation of Rs.3,00,000/- for the domestic violence and also a monthly maintenance of Rs.5,000/- per month, the same have been confirmed by the learned III Additional Sessions Judge, Salem in Crl.A.No.155 of 2018. 2. Heard the learned counsel M/s.S. Nandhini for the petitioner and Mr.R.Nalliappan, learned counsel on behalf of the respondent. 3. The learned counsel for the petitioner taking this Court through the petition and counter filed and the orders passed by the Courts below, would submit that this is the case in which complaint of not having physical relationship, the respondent wife had already filed a divorce and on the ground of cruelty, the divorce has been granted. She had not claimed any maintenance/alimony in the divorce proceeding. 4. As a matter of fact, the petitioner husband has filed C.M.A. before this Court but however on the arrangement that the respondent wife will not press this domestic violence, he even withdrew the appeal filed by him. Thereafter the petitioner husband also got re-married and he is presently living with his current family. Under these circumstances, the learned counsel would submit that there is absolutely not any domestic violence on the respondent wife and therefore, the Trial Court as well as Appellate Court erred in awarding compensation as well as monthly maintenance. 5. The learned counsel for the petitioner further submits that within the monthly income of the petitioner, he is now maintaining his family and the petitioner cannot pay a sum of Rs.5,000/- to the respondent wife by way of monthly maintenance. Without any basis whatsoever, approximately and presumptively basis a compensation was awarded by the Trial Court. Therefore, he would pray that this Court should interfere in the award of compensation as well as maintenance. Without any basis whatsoever, approximately and presumptively basis a compensation was awarded by the Trial Court. Therefore, he would pray that this Court should interfere in the award of compensation as well as maintenance. He further submit that the parties are also related to each other and they were cousins. 6. Per contra, the learned counsel for the respondent would submit that this Court in Crl.R.C.No.31 of 2019 has already decided that the domestic violence petition is maintainable even by the divorced wife. She would submit that the divorce itself is granted on the ground of cruelty. The term domestic violence is defined under Section 3 of the Act and therefore, the cruelty committed by the petitioner would automatically fall within the meaning of domestic violence. Therefore, for the cruelty suffered by her and also taking into account that no maintenance or alimony granted for the said proceedings of divorce, the Trial Court has rightly awarded a sum of Rs.3,00,000/- as compensation and sum of Rs.5,000/- for monthly maintenance. Therefore, she would prayed that there is nothing for this Court to interfere in this revision. 7. I have considered the rival submission made on either side and perused the materials available on record in this case. 8. Firstly, question to be determined is that whether the petitioner is entitled to maintain a claim as rightly relied upon by the learned counsel for the respondent, a learned Judge this Court in Varalakshmi -Vs- Selvam Crl.R.C. No.31 of 2019 has categorically held that the domestic violence proceedings are maintainable even by the divorced wife. For that matter, the definition of aggrieved person in Section 2(a) of the Act specifically includes a persons “who is , or has been” in a domestic relationship. The Hon'ble Supreme Court of India also in the judgment of Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736 : (2015) 1 SCC (Cri) 241 : (2015) 1 SCC (Civ) 110 : 2014 SCC OnLine SC 796 at page 750, had held that the monetary reliefs which can be granted under Section 20 are in the nature of compensation for suffering of domestic violence, it is useful to extract paragraph 23, which is reads as follows: “23.In the instant case, the appellant sought relief under Sections 18 to 23 of the Domestic Violence Act, 2005. It includes protection order under Section 18, monetary relief under Section 20, custody orders under Section 21, compensation under Section 22 and interim relief under Section 23. The relevant provisions read as follows: “20.Monetary reliefs.—(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to— (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides. (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1). (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1). (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.” The monetary relief as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under Section 125 CrPC or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application under Section 12 is in a domestic relationship with the respondent. 24.“22.Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. 23.Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. 23.Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.” Therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief as he deems just and proper, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence. 9. Once a perusal of the judgment in F.C.O.P.No.454 of 2015, it is clear that the divorce is granted on the ground of cruelty. Petitioner even though had filed C.M.A.No.1084 of 2017 had withdrawn the same unconditionally. The said withdrawal does not in any manner state as if there is any understanding between the petitioner and the respondent or that she will not press the domestic violence petition. In that view of the matter, once it is already held by the Trial Court that the petitioner has committed cruelty that it would amount to domestic violence. Therefore, the respondent is an aggrieved person. However as held by this Court in Jayanthi Vs Jayabal,(CDJ 2016 MHC 603) this Court has to take into consideration the totality and the circumstances and the allegation of the parties for the purposes of granting the reliefs under Section 20 of the Act. 10. On perusal of the petition filed for divorce it is also seen that apart from the other allegations of ill treatment, the primary allegation in the divorce petition is that inspite of repeated attempts and overtures by the wife, the petitioner was not interested in physical relationship. It is also to be seen that the wife has not prayed or received any other alimony or compensation. It is also to be seen that the wife has not prayed or received any other alimony or compensation. It also to be considered that the petitioner husband has thereafter moved on and has got remarried. It is stated that parties belong to poor and lower middle class and it is said that the petition husband is working as an unskilled staff in a private concern. I am of the view that ordering of monthly maintenance would not be the interest of both the parties. At the same time, the lump sum compensation awarded for the alleged domestic violence especially after the grant of divorce is also on the higher side. Therefore, so as to balance the interest of both the sides, instead of ordering Rs.3,00,000/- as compensation and a monthly maintenance of Rs.5,000/-, the lump sum amount of Rs.3,00,000/- is ordered to be paid by the petitioner husband to the respondent wife both towards compensation, domestic violence suffered and also the needs of the maintenance of the respondent wife. In view from all, this revision is partly allowed on the following terms: (i) the relief granted to the respondent wife in D.V.O.P.No.71 of 2015 by the Judicial Magistrate cum Additional Mahila Court, Salem and confirmed in Crl.A.No.155 of 2018 by order dated 18.01.2018 and in Crl.A.No.155 of 2018 on the file of the III Additional Sessions Judge, Salem by judgment dated 21.02.2019 are modified setting aside the order of payment of monthly maintenance of Rs. 5,000/- and the petitioner shall pay one lump sum payment of Rs.3,00,000/- to the respondent wife towards both claims of maintenance as well as compensation for the domestic violence suffered. (ii) the petitioner shall pay the amount within a period of three months from the date of receipt of the copy of the order.