Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 992 (MAD)

K. Arul Prabhakar v. Kamsala @ Banumathi

2023-03-10

R.N.MANJULA

body2023
JUDGMENT (Prayer: Criminal Revision Petition filed under Section 397 r/w 401 of Criminal Procedure Code, praying to set aside the judgment dated 14.03.2014 made in C.A.No.80 of 2013 on the file of the VI Additional Sessions Court, Chennai and remanding the matter in Crl.M.P.No.125 of 2008 to the file of the X Metropolitan Magistrate Court, Chennai.) 1. This Criminal Revision Petition has been preferred challenging the judgment of the learned VI Additional Sessions Judge, Chennai, dated 14.03.2014 made in C.A.No.80 of 2013. 2. Heard the learned counsel for the petitioners; learned counsel for the respondent and perused the materials available on record. 3. The petitioners are the respondents in the Miscellaneous Petition filed by the respondent in M.P.No.125 of 2008 on the file of the learned X Metropolitan Magistrate, Chennai, seeking for protection order and residential order; the petitioners are the son and daughter-in-law of the respondent; the respondent has filed the said Miscellaneous Petition under Section 12(1) of Domestic Violence Act against the petitioners and one Kannaiya Naidu, who has been arrayed as second respondent. 3.1. The respondent married Kannaiya Naidu on 05.09.1965; out of their wedlock, three children were born; the first petitioner is one of the sons of the respondent and the second petitioner is his wife; at the time of marriage of the petitioner, the husband of the respondent namely Kannaiya Naidu was working in N.L.C. and was earning Rs.400/- per month; since the income earned by Kannaiya Naidu was not sufficient enough to meet out the family expenses, the respondent sold some of her lands and sent Kannaiya Naidu to Saudi Arabia for getting an employment there; the husband of the respondent returned to India in the year 1994; the respondent purchased some of the properties in his name; she also constructed two storied building at No.16A, Viswanathan Street, Chidambaram, in the name of Kannaiya Naidu; after marriage of the first petitioner, they quarrelled with the respondent to transfer all the properties in his name; the petitioners got the signatures of the respondent in the blank non-judicial stamp papers and threw her out of the house; civil litigations are also pending in this regard in Fast Track Court, Chidambaram. 3.2. 3.2. The respondent was the District Secretary in Congress Party and was popular at that point of time, this was disliked by her husband Kannaiya Naidu, so he foisted a false criminal case against her and later withdrew the same; the respondent filed H.M.O.P.No.77 of 2001 and got an order of divorce from Kannaiya Naidu on 21.01.2004; she also filed a maintenance petition but later it was not pressed by her; once again the respondent filed H.M.O.P.No.144 of 2007 for restitution of conjugal rights and that was decreed ex parte; in the meanwhile, the respondent joined Law College, Salem and completed her law degree and enrolled herself as an Advocate in the year 2004; the first petitioner is enjoying all the properties of the second respondent and she has no money to maintain herself and hence the respondent filed the petition seeking for protection order and residential order to live at the ground floor of the house situated at No.16A/7, Viswanathan Street, Chidambaram and also the monthly maintenance of Rs.10,000/- per month and compensation of Rs.10,00,000/- and the said petition was allowed on 15.02.2013, by ordering protection and residential orders to reside in the ground floor of 16A/7, Viswanathan Street, Chidambaram, till her life time and monthly maintenance @ Rs.8,000/- per month along with compensation of Rs.3,00,000/-. 3.3. Aggrieved over the same, the petitioners have preferred an appeal in C.A.No.80 of 2018 and the same was partly allowed by the learned VI Additional Sessions Judge, Chennai, by reducing the compensation from Rs.3,00,000/- to Rs.1,00,000/- and confirming the protection order and the maintenance case is directed to be disposed within three months. Now this Criminal Revision Petition has been preferred by the petitioners challenging the order of the learned VI Additional Sessions Judge, Chennai, in C.A.No.80 of 2018. 4. No Cross Appeal has been preferred by the respondent despite the learned VI Additional Sessions Judge, Chennai, did not confirm the residential order and the maintenance order and reduced the compensation. However, it is stated in the impugned order that the order has been passed without going into the merits of the case but as an interim measure. In fact, the order passed by the learned X Metropolitan Magistrate, Chennai, on 15.02.2013 in M.P.No.125 of 2008 is also an ex parte order. However, it is stated in the impugned order that the order has been passed without going into the merits of the case but as an interim measure. In fact, the order passed by the learned X Metropolitan Magistrate, Chennai, on 15.02.2013 in M.P.No.125 of 2008 is also an ex parte order. The petitioners, who have got an order in M.P.No.125 of 2008 have filed Criminal Original Petition in Crl.O.P.No.16898 of 2009 and subsequently it was dismissed by this Court for default. 5. Kannaiya Naidu, who was the husband of the respondent died during the pendency of the proceedings. Under such circumstances, the learned VI Additional Sessions Judge, Chennai, without going into the merits of the case passed an order to deposit a sum of Rs.1,00,000/- before the trial Court. When the learned VI Additional Sessions Judge, Chennai, has observed that the petitioners got aggrieved due to the ex parte order passed by the learned X Metropolitan Magistrate, Chennai, ought to have given an opportunity to the petitioners to participate in the trial and contest the case on merits or atleast the learned VI Additional Sessions Judge, Chennai, ought to have gone into the merits of the case before passing any order. 6. Since the learned VI Additional Sessions Judge, Chennai, has passed the order without any basis and without going into the merits, I feel it is appropriate to set aside the order of the learned VI Additional Sessions Judge, Chennai and remand the matter to the file of the learned X Metropolitan Magistrate, Chennai, to dispose M.P.No.125 of 2008 afresh simultaneously along with the main Domestic Violence Petition by giving opportunity to both sides. Because the respondent herself has stated in her petition that she had filed H.M.O.P.No.77 of 2001 and got divorce from her husband by virtue of the order of the Court dated 21.01.2004. 7. Having got an order of divorce, once again she filed another H.M.O.P.No.144 of 2007 for restitution of conjugal rights and obtained an ex parte order. It is strange to see that the respondent has filed another H.M.O.P and got an ex parte order for restitution of conjugal rights, after getting an order of divorce and by which the marriage between herself and Kannaiya Naidu got dissolved already. 8. Unless a detailed enquiry is done, the very entitlement of the respondent claiming residential right in the properties of Kannaiya Naidu cannot be decided. 8. Unless a detailed enquiry is done, the very entitlement of the respondent claiming residential right in the properties of Kannaiya Naidu cannot be decided. The Courts below without adverting into the merits of the case has disposed the petition. Hence, I feel it is appropriate to set aside the order of the learned VI Additional Sessions Judge, Chennai and remand it back to the learned X Metropolitan Magistrate, Chennai, for enquiring the matter afresh and to pass orders on merits, after considering the marital status of the respondent with the deceased Kannaiya Naidu and her entitlement etc. 9. In view of the above said reasons, this Criminal Revision Petition is allowed and the order passed by the learned VI Additional Sessions Judge, Chennai in C.A.No.80 of 2013 dated 14.03.2014 is set aside and the matter in Crl.M.P.No.125 of 2008 is remanded to the file of the learned X Metropolitan Magistrate, Chennai for a fresh enquiry and to pass orders on merits. Consequently, connected Miscellaneous Petitions are closed.