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2024 DIGILAW 736 (KER)

Binumon v. Nisha

2024-06-25

P.G.AJITHKUMAR

body2024
ORDER : This is a revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). The order of the Judicial Magistrate of the First Class-I, Kottarakkara allowing the 1st respondent to realise an amount of Rs.2 lakhs from the 1st petitioner in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act), which stands confirmed by the appellate court, is under challenge. 2. Heard the learned counsel for the petitioners, the learned counsel for the 1st respondent and the learned Public Prosecutor. 3. C.M.P.No.4213 of 2009 was filed by the 1st respondent claiming return of movables, realisation of money and maintenance. After inquiry, the learned Magistrate allowed the petition as follows: “a) Claim of petitioner for the value of gold ornaments is disallowed. b) Claim of petitioner for possession of fridge, mixi and the key of the house is disallowed. c) The claim of the petitioner for Rs.50,000/- as damages by way of physical and mental injury is disallowed. d) Respondent No.1 is directed to pay Rs.2 lakhs to petitioner within 2 months from today. The respondent No.1 is directed to pay Rs.2 lakhs by way of maintenance per month to petitioner from the date of order. The respondent No.1 is restrained from threatening and harassing the petitioner.” 4. The appellate court, after considering the matter in detail, has chosen to dismiss the appeal. The effect of the order of the learned Magistrate as confirmed by the appellate court is that the 1st petitioner is liable to pay Rs.2 lakhs to the 1st respondent and also to pay monthly maintenance at the rate of Rs.2,000/- to the 1st respondent. There is also a protection order. 5. The petitioners challenge essentially is to the order to pay Rs.2 lakhs to the 1st respondent. As regards the protection order or direction to pay maintenance, no serious contention has been raised by the petitioners. Therefore, the dispute confines only regarding the order to pay Rs.2 lakhs to the 1st respondent. 6. There is also a protection order. 5. The petitioners challenge essentially is to the order to pay Rs.2 lakhs to the 1st respondent. As regards the protection order or direction to pay maintenance, no serious contention has been raised by the petitioners. Therefore, the dispute confines only regarding the order to pay Rs.2 lakhs to the 1st respondent. 6. The petitioners filed Crl.M.P.No.2 of 2020 producing therewith a copy of the order in O.P.No.988 of 2009 of the Family Court, Kottarakkara as Annexure C. The contention of the learned counsel for the petitioners is that the Family Court, after having a full-fledged trial, held that 1st respondent was not entitled to get an order for recovery of Rs.2 lakhs, which was claimed to have been paid at the time of marriage. Accordingly, the Family Court declined to grant a decree in respect of the said amount of Rs.2 lakhs. Pointing out that, the learned counsel would submit that the said order, which became final, estopped the 1st respondent from claiming the said amount. Hence, the said order, which is impugned in this revision, is liable to be set aside. 7. The learned counsel for the 1st respondent, on the other hand, would submit that the order in C.M.P.No.4213 of 2009 was rendered as early as on 29.05.2010 and it being the first order, the petitioners cannot fall upon a subsequent order of the Family Court in order to challenge that order. It is contended that the remedy provided under the PWDV Act is totally independent and therefore the order of the Family Court cannot interdict the order in C.M.P.No.4213 of 2009. Further, it is contended that the orders impugned herein were not produced before the Family Court and when the order was rendered by the Family Court without considering the effect of the impugned orders, the petitioners cannot be heard to contend that the order of the Family Courts creates any kind of bar. 8. Further, it is contended that the orders impugned herein were not produced before the Family Court and when the order was rendered by the Family Court without considering the effect of the impugned orders, the petitioners cannot be heard to contend that the order of the Family Courts creates any kind of bar. 8. The learned counsel for the 1st respondent placed reliance on Mahinkutty and others v. Anshida ( 2021 (3) KLT 230 = 2021 (3) KHC 97 ) and Satish Chander Ahuja v. Sneha Ahuja ( 2020 (6) KLT 208 (SC) = (2021) 1 SCC 414 ) in order to fortify his contention that the remedy available under the PWDV Act is independent of the provisions in the other statutes and therefore the order of the Family Court is irrelevant insofar as the present proceedings is concerned. In Mahinkutty (supra) this Court considered the effect of an order of a Magistrate in a proceedings under the PWDV Act allowing monetary reliefs in the proceedings before the Family Court. It was held that the outcome in such proceedings may be relevant while deciding the dispute in subsequent proceedings before the competent court under Section 42 or 43 of the Evidence Act, 1872. The said view was taken by this Court relying on the law laid down by the Apex Court in Satish Chander Ahuja (supra). Thus, the law laid down is that an order passed under the provisions of the PWDV Act is a relevant evidence by operation of Sections 42 and 43 of the Evidence Act in a proceedings before the Family Court. Implication of Section 26 of the PWDV Act also was considered for arriving at such a conclusion. Sub-section (3) of Section 26 says that if the aggrieved person has obtained any relief in a proceedings other than the proceedings under the PWDV Act, she is bound to inform the Magistrate of obtaining such a relief. That provision implies that a relief obtained by an aggrieved person under the PWDV Act is informed to the Family Court when she pursues a proceedings for the same relief in that court. The converse is that if a claim of the aggrieved person is refused by the Family Court, she is obliged to inform that fact also to the Magistrate who considers an application under the PWDV Act for the same relief. The converse is that if a claim of the aggrieved person is refused by the Family Court, she is obliged to inform that fact also to the Magistrate who considers an application under the PWDV Act for the same relief. It is also to be noted that a judgment of court in exercise of matrimonial jurisdiction confers or takes away from a person the title to any thing is relevant under Section 41 of the Indian Evidence Act. 9. One of the specific claims in O.P.No.988 of 2009 was that Rs.2 lakhs was paid to the 1st petitioner herein at the time of marriage. The same was the claim in C.M.P.No.4213 of 2009 also. Since both claims are concerning the same right, Annexure C judgment is relevant under Section 41 of the Indian Evidence Act and in view of the laid down by the Apex Court in Satish Chander Ahuja (supra) and this Court in Mahinkutty (supra). Therefore, Crl.M.A.No.2 of 2020 is liable to be allowed and Annexure C judgment is received as additional evidence. I do so. 10. In paragraph No.17 of Annexure C judgment, the Family Court considered the claim for return of Rs.2 lakhs, which she claimed to have paid at the time of marriage. The Family Court held that there was absolutely no reliable evidence in the case to show that the 1st respondent herein paid Rs.2 lakhs to the 1st petitioner herein as pocket money in connection with the marriage. Accordingly, the Family Court declined the relief for return of the said Rs.2 lakhs. When the Family Court held so and the said decree, indisputably, has become final, the same debars the 1st respondent from claiming the same amount. So, the 1st respondent is disentitled to get an order for return of the said amount of Rs.2 lakhs. 11. Accordingly, this revision petition is allowed and the order of the learned Magistrate in C.M.P.No.4213 of 2009 directing the 1st petitioner to return Rs.2 lakhs to the 1st respondent, which stands confirmed by the appellate court, is set aside.