Shyni v. State Of Kerala, Represented By Public Prosecutor
2024-11-27
P.G.AJITHKUMAR
body2024
DigiLaw.ai
ORDER : P.G. AJITHKUMAR, J. The 1st petitioner is the wife of the 2nd respondent. Their children are petitioners No.2 and 3. The petitioners filed M.C.No.53 of 2008 before the Judicial Magistrate of the First Class-II, Nedumangad claiming reliefs under the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). As per the order dated 29.12.2015, the learned Magistrate allowed the petition only in part. The 2nd respondent was ordered to pay maintenance to petitioners No.2 and 3 and to return the car and almirah retained by him. Challenging the said order insofar as it declined the other reliefs, the petitioners filed Crl.Appeal No.33 of 2016 before the Sessions Court, Thiruvananthapuram. The Additional Sessions Judge-II, Thiruvananthapuram as per the judgment dated 21.01.2017 dismissed the appeal. Aggrieved thereby, the petitioners have filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the petitioners, the learned Public Prosecutor and the learned counsel for respondents No.2 and 3. 3. The petitioners now pursue the relief of return of gold ornaments said to have been misappropriated by the 2nd respondent alone. Relief No.(m) in the petition relates to the said claim, which reads:- “(m) Direct the first respondent to return her 1,00,000/-rupees given as pocket money at the time of marriage, 1,40,000/- which is the amount spend for starting B schedule shop room, Rs.75,000/- the amount spend for starting C schedule shop room, 5,00,000/- rupees the total amount of the 1st respondent procured from her parents from January 2003 to January 2008, 1,50,000/- rupees, which is the loan amount availed from Canara Bank and District Co-operative Bank and Rs.17,000/- which is the 14 months rent of B schedule shop room which the first respondent misappropriated. Thus in total she claims an amount of Rs.9,82,000/-. Further she claims 75 sovereigns of gold ornaments, given at the time of marriage, 6½ sovereigns of gold ornaments given to the parents of the 1st respondent at the time of marriage, 18 sovereigns of gold ornaments grabbed by him from her mother, 12 sovereigns of gold ornaments belonging to her children, the Maruti Zen car, household articles and utensils like fridge, TV, Almirah, coat, etc. given at the time of marriage.” 4.
given at the time of marriage.” 4. The claim was for return of 75 sovereigns of gold ornaments given at the time of marriage and other items of gold ornaments the 2nd respondent is said to have grabbed from her parents and children. During the course of arguments, the learned counsel for the petitioners pointed out that the Family Court, Nedumangad decided in O.P.No.1110 of 2014 the claim of the 1st petitioner for return of gold ornaments and money said to have been misappropriated by the 2nd respondent. Along with Crl.M.A.No.1 of 2024 a copy of the judgment dated 11.10.2019 in O.P.No.1110 of 2014 has been produced as Annexure-I. The question arises immediately for consideration is whether, in the light of Annexure I judgment, the 1st petitioner has the entitlement to pursue her claim for return of gold ornaments in this revision petition. 5. As stated, 75 sovereigns of gold ornaments said to have been given to the 1st petitioner at the time of her marriage and also gold ornaments of her parents and children, which were misappropriated by the 2nd respondent were sought to be recovered from him in M.C.No.53 of 2008. In O.P.No.1110 of 2014 also the claim was recovery of the same gold ornaments and money. 6. As per Annexure-I judgment, the Family Court granted a decree in favour of the petitioners as follows: (1) The Petitioner is allowed to realise value of 18 sovereigns of gold ornaments which is assessed at Rs.4,50,000/- (Rupees Four Lakh and Fifty Thousand only) (sic. which is assessed from the 1st Respondent. (2) The Petitioner is allowed to realise Rs.1,00,000/-(Rupees One Lakh only) from the 1st Respondent. (3) The award amount shall be paid within three months and failing which the Petitioner is entitled to get interest at the rate of 6% per annum from the date of this decree. (4) Attachment over 'H' schedule as per order in I.A.No. 1192/2014 is lifted. 7. The Family Court, after having a full-fledged trial, took a decision on the claim of the 1st petitioner for return of the gold ornaments. Of course, as per the decree, the 1st petitioner is entitled to get back only 18 sovereigns of gold ornaments and allowed to recover its cost of Rs.4,50,000/-. The claim concerning remaining ornaments has been declined.
The Family Court, after having a full-fledged trial, took a decision on the claim of the 1st petitioner for return of the gold ornaments. Of course, as per the decree, the 1st petitioner is entitled to get back only 18 sovereigns of gold ornaments and allowed to recover its cost of Rs.4,50,000/-. The claim concerning remaining ornaments has been declined. But when the Family Court delivered a judgment on the claim for return of gold ornaments, can there be a claim under Section 12 of the PWDV Act for return of the very same gold ornaments? 8. The scheme of the PWDV Act, particularly Section 12 makes it very clear that an application for the reliefs provided under Sections 18 to 22 can be made only by an aggrieved person or on her behalf. An “aggrieved person” is defined in Section 2(a) of the PWDV Act. A woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent is an aggrieved person. The Statement of Objects and Reasons of the PWDV Act envisages that the remedies under the Act are to ensure that rights of persons subjected to domestic violence are protected through a mechanism provided under the Act. It is in the said context, the reliefs provided under the PWDV Act, including the monetary claims as provided under Section 20, has to be understood. 9. Be noticed, a proceedings under the PWDV Act is required to be concluded within a period of 60 days from the date of its first hearing, in view of the provisions of sub-section (5) of Section 12 of the PWDV Act. A reading of the proviso to sub-section (2) of Section 12 imperates that the decisions of the civil court concerning reliefs provided under the PWDV Act, which are grantable by a civil court, have predominance. The said proviso says that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person under the PWDV Act, the same shall be set off against the amount payable under a decree of a civil court. The proviso does not provide for a set off vice-versa.
The said proviso says that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person under the PWDV Act, the same shall be set off against the amount payable under a decree of a civil court. The proviso does not provide for a set off vice-versa. Pertinently, sub-section (3) of Section 12 of the PWDV Act obligates the aggrieved person to inform the Magistrate if she obtained any relief in any other proceedings. Those provisions sufficiently illustrate that the ultimate decision shall be that of the civil court and not of the Magistrate acting under the PWDV Act. 10. Viewed in the aforementioned perspective, a decision of the civil court here, the Family Court, with regard to a claim that could also be raised under the PWDV Act shall be final and binding on the Magistrate dealing with a petition under the PWDV Act. The Apex Court in Karam Chand Ganga Prasad v. Union of India [ (1970) 3 SCC 694 ] held, it is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. That fortifies the view which I have taken. It is only ancillary that a party in favour or against whom a decision is rendered by a civil court in respect of a monetary claim is debarred from prosecuting a petition for the same claim before the Magistrate under the PWDV Act. Hence, the claim by the petitioners for return of gold ornaments in this revision petition, which arose on the order in M.C.No.53 of 2008 cannot be entertained in the light of Annexure-I judgment in O.P.No.1110 of 2014. This revision petition is accordingly dismissed.