published in http://judis.nic.in/judis_chennai/qrydispfree.aspx?filename=62192
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 9/1/2013
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Crl.R.C (MD) No.287 of 2012
and
M.P.(MD) No.1 of 2012
Arivazhagan ... Petitioner
Vs
1. M. Uma
2. Minor Deepthika
3. Minor Arivananthi ... Respondents
Petition filed under Sections 397 and 401 of the Code of Criminal
Procedure to call for the records and set aside the impugned order of distress
warrant dated 23/4/2012 made in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 on the
file of the Judicial Magistrate, Aranthangi.
!For Petitioner ... Mr.B.Jameel Arasu
^For respondents ... Mr.K.Baalasundaram
- - - - - - -
:ORDER
The Petitioner/Respondent (Husband) has focused the instant Criminal
Revision petition as against the impugned order of Distress Warrant dated
23/4/2012 in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 passed by the Learned
Judicial Magistrate, Aranthangi.
2. The Learned Judicial Magistrate, Aranthangi, while passing the
impugned order in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 dated 23/4/2012 has
observed that "Petitioner is present. Respondent absent. Filed petition and
allowed. Earlier order of substantial payment not complied by Respondent. Both
side heard. Revision hearing. But no stay on perusal of records the Court
takes that respondent. Purposely avoided for substantial payment. Hence issue
Distress Warrant against the respondent" and directed the matter to be called on
16/6/2012.
3. Assailing the correctness of the order so passed in C.M.P.No.9459 of
2010 in M.C.No.5 of 2009 by the Learned Judicial Magistrate, Aranthangi, the
Revision Petitioner/Husband as an aggrieved person has preferred the instant
Criminal Revision Petition before this Court.
4. According to the Learned Counsel for the Revision Petitioner/Husband,
the Learned Judicial Magistrate, Aranthangi should have seen that C.M.P.No.9459 of 2010 (filed by the First Respondent/Wife under Section 128 of the Criminal Procedure Code) is not maintainable to execute the order of maintenance passed
under Section 12 of the Protection of Women from Domestic Violence Act, 2005, as if the said order and claim in M.C.No.5 of 2009 has been passed under Section 125 of the Criminal Procedure Code.
5. The Learned Counsel for the Petitioner/Husband urges before this Court
that to execute the order of maintenance passed under Section 12 of the
Protection of Women from Domestic Violence Act, 2005, there is an enabling
provision under Section 20 (6) of the said Act and further, no relief can be
granted in the said petition which has not been filed under Section 20 (6) of
the Act. As such the order of the Learned Judicial Magistrate, Aranthangi in
C.M.P.No.9459 of 2012 dated 11/6/2012 directing the issuance of Distress
Warrant against the Revision Petitioner/Husband is irregular, illegal, abuse of
power and exercised contrary to Law.
6. Advancing his arguments, the Learned Counsel for the
Petitioner/Husband submits that in the appeal filed by the Revision
Petitioner/Husband against the order of maintenance awarded by the trial Court,
no stay has been granted and when the appeal is pending before the Appellate
Court/District Court, then issuance of Distress Warrant by the Learned Judicial
Magistrate, Aranthangi in C.M.P.No.9459 of 2010 is illegal and clearly
unsustainable in the eye of law.
7. Per contra, it is the submission of the Learned Counsel for the
Respondents/Petitioners (Wife and Children) that the Learned Judicial
Magistrate, Aranthangi in Cr.M.P.No.4065 of 2009 on 29/7/2009 has passed
interim orders to the effect that the Revision Petitioner/Husband should not
cause any hindrance to the Respondents/Petitioners (Wife and Children) to reside
in the Revision Petitioner's house and granted the protection of residence
orders.
8. Further, the Learned Judicial Magistrate, Aranthangi has directed the
Revision Petitioner to pay an interim relief of maintenance of Rs.1,500/- to the
Respondents/Petitioners Food, Clothing, Medical and Children expenses and the
same has to be paid by the Revision Petitioner on or before 5th of every month
(directly to be paid in the house). Also, the Learned Judicial Magistrate,
Aranthangi, directed the Office to take Cr.M.P.No.4065 of 2009 as M.C.No.5 of 2009 on file and posted the matter to 20/8/2009.
9. The Learned Judicial Magistrate, Aranthangi on 18/6/2010 in M.C.No.5
of 2009 has passed orders in favour of the Respondents (Wife and Children) by
directing the Revision Petitioner/Husband not to cause any threatening act or
harass them and further granted Residence Protection Orders in favour of the
Respondents and also granted Rs.10,000/- p.m., to the Respondents/Wife and
Children towards their Family Expenses, Children Expenses and Medical Expenses
and directed the said amount to be paid by the Revision Petitioner/Husband on or
before 5th of English Calendar month and also directed the interim maintenance
amount granted earlier by this Court to be deducted from the amount ordered to
be paid by this Court and from the date of filing of the Petition, the Revision
Petitioner/Husband has been directed to pay the amount so ordered.
10. Based on the order dated 18/6/2010 passed by the Learned Judicial
Magistrate, Aranthangi in M.C.No.5 of 2009 (Respondents/Wife and Children of the
Revision Petitioner/Husband) has filed Cr.M.P.No.9459 of 2010 under Section 128
of the Criminal Procedure Code praying for an issuance of a direction from the
trial Court in directing the Revision Petitioner/Husband to pay a sum of
Rs.80,000/- towards maintenance to the Respondents/Wife and Children for the
period from 1/12/2010 till 31/7/2011 (for eight months period).
11. On 1/12/2010 in Cr.M.P.No.9459 of 2010 in M.C.No.5 of 2009, the
Learned Judicial Magistrate, Aranthangi has passed an order directing the
Revision Petitioner/Husband to pay a sum of Rs.1,70,000/- (Rs.10,000/- per
month) for seventeen months for the period from 29/7/2009 till 29/11/2010.
12. Thereafter, on 23/4/2012, the Learned Judicial Magistrate, Aranthangi
in C.M.P.No.9459 of 2012 in M.C.No.5 of 2009 has inter alia passed an order
stating that purposely, the Revision Petitioner/Husband has avoided the
substantial payment and directed issuance of Distress Warrant against him
because of the reason that earlier order of substantial payment has not been
complied with by the Revision Petitioner/Husband etc. It is significant to
point out that on 29/4/2012, when the Learned Judicial Magistrate, Aranthangi
has passed an order in C.M.P.No.9459 of 2010 (M.C.No.5 of 2009), the Revision
Petitioner/Husband as Respondent has remained absent and only the First
Respondent/Wife has been present and on behalf of the Revision
Petitioner/Husband, a Petition has been filed and allowed.
13. Admittedly, the Revision Petitioner/Husband as an aggrieved person has
filed C.A.No.100 of 2010 as against the order dated 18/6/2010 in M.C.No.5 of
2009 passed by the Learned Judicial Magistrate, Aranthangi. The said C.A.100 of
2010 is pending on the file of the Learned Principal District and Sessions
Judge, Pudukottai. It comes to be known that Stay Petition C.M.P.No.153 of 2010
is also pending. As on date, there is no stay in respect of the order dated
18/6/2010 in M.C.No.5 of 2009 passed by the Learned Judicial Magistrate,
Aranthangi. However, it is represented before this Court that the
Respondents/Wife and Children have not filed any counter to C.M.P.No.153 of 2010
and the matter is pending. Therefore, the Respondents have preferred
C.M.P.No.9459 of 2010 before the Learned Judicial Magistrate, Aranthangi under
Section 128 of the Criminal Procedure Code for enforcement of order of
maintenance awarded by the Court.
14. At this stage, this Court aptly points out that Section 12 of the
Protection of Women from Domestic Violence Act, 2005 speaks of an application to
be filed before a Magistrate by an aggrieved person or a Protection Officer or
any other person on behalf of the aggrieved person seeking one or more reliefs
under the Act.
15. Section 18 of the Act refers to the protection orders being passed by
the Magistrate concerned.
16. Section 19 refers to the 'Residence Orders' being passed by the
Learned Judicial Magistrate.
17. Section 20 of the Act speaks of monetary relief being granted to the
aggrieved person by the Magistrate in directing the Respondent to pay monthly
relief to meet the expenses occurred and losses suffered by the aggrieved person
and any child of the aggrieved person as a result of 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."
18. As per Section 20 (3) of the above said Act, the Magistrate shall
have the power to order an appropriate lumpsum payment or monthly payments of
maintenance, as the nature and circumstances of the case may require.
19. Section 20 (5) of the Act speaks of the Respondent to pay the
monetary relief granted to the aggrieved person within a period specified in the
order under Sub-Section 1 of Section 20 of the Act.
20. Furthermore, Section 20 (6) of the Act upon failure on the part of
the Respondent to make payment in terms of order under Sub-Section 1 of Section
20, 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 Department due to or accrued to the credit of the
Respondent which amount may be adjusted towards the monetary relief payable by
the Respondent.
21. In reality, Section 25 of the Act refers to the duration and
alteration of the orders passed by the Magistrate concerned. As per Section 25
(2) of the Act, if there is any change in the circumstances and if the Learned
Magistrate is satisfied on receipt of application from the aggrieved person or
the Respondent, requiring alteration, modification or revocation of any order
made under this Act, he may for the reasons to be recorded in writing pass
appropriate orders as he deems fit.
22. However, this Court pertinently points out that the Learned
Magistrate must be circumspect and careful while granting ex parte order either
under Section 23 of the Act or under any other Section of the Act. Only after
subjectively satisfying himself as to the nature of claim/relief made by the
aggrieved person, the Learned Magistrate is to pass an ex parte interim orders
with great care and circumspection only to the extent necessary.
23. Section 31 of the Act speaks of Penalty for breach of protection
order by Respondent. Only if the order passed by the Learned Judicial
Magistrate is a protection order, the Magistrate can direct registration of the
case and investigate the case under Section 31 of the Act, as per decision
KANAKA RAJ Vs. STATE OF KERALA 2010 (1) Crimes - 655 at page 656 (Ker.).
24. Section 29 of the Act speaks of filing of appeal to the Court of
Session within 30 days from the date on which the order made by the Magistrate
is served on the aggrieved person or the respondent, as the case may be,
whichever is later. Under the Protection of Women from Domestic Violence Act,
2005, it is open to an aggrieved person/party to challenge certain impugned
order when it affects his rights. He can either challenge the ex parte order
otherwise of the orders passed on merits. In the alternative, the aggrieved
party can make a prayer to the concerned Court to set aside the ex parte order
or orders so passed in the manner known to law and in accordance with law. In
the instant case on hand, as against the order dated 18/6/2010 made in M.C.No.5
of 2009 passed by the Learned Judicial Magistrate, Aranthangi, the Revision
Petitioner/Husband has filed C.A.No.100 of 2010 on the file of the Principal
District and Sessions Judge, Pudukottai and the same is pending as on date. As
stated already, no stay has been granted in C.M.P.No.153 of 2010 in C.A.No.100
of 2010. Therefore, the Respondents/Wife and Children have filed C.M.P.No.9459
of 2010 under Section 128 of Cr.P.C., in regard to the enforcement of order of
maintenance and obtained orders on 23/4/2010 from the Learned Judicial
Magistrate, Aranthangi, wherein the Revision Petitioner/Husband since he has
avoided the substantial payment has been directed to be issued with the Distress
Warrant and the matter has been directed to be called before the trial Court on
16/6/2012.
25. More importantly, the main argument advanced on behalf of the
Petitioner/Husband is that the Respondents/Wife and Children had filed
Cr.M.P.No.9459 of 2010 under Section 128 of the Criminal Procedure Code, which
is not correct in the eye of Law.
In this connection, this Court pertinently
points out Section 28 of the Protection of Women from Domestic Violence Act,
2005 which enjoins hereunder:-
"28. Procedure - (1) Save as otherwise provided in this Act, all
proceedings under Secs.12, 18, 19, 20, 21, 22 and 23 and offences under Sec.31
shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2
of 1974).
(2). Nothing in Sub-section (1) shall prevent the Court from laying down
its own procedure for disposal of an application under Sec.12 or under Sub-
Section (2) of Sec.23.
26. It is significant for this Court to make a pertinent reference to the
decision M.PALANI Vs. MEENAKSHI {2008 (3) MLJ - 855},
wherein it is observed and held that
"Any woman being in domestic relationship with opposite party can file a
complaint under the Protection of Women from Domestic Violence Act, 2005 (Act 43
of 2005)."
27. This Court worth recalls the decision KARTHIKEYAN Vs. SHEEJA 2008
(1) KCT - 750, 751, 752, wherein it is inter alia held that the writ petition
cannot, hence be entertained as the Petitioner has an efficacious alternative
remedy under Section 28 of the Protection of Women from Domestic Violence Act,
2005 to challenge the said order.
28. Also, this Court pertinently points out the decision RAMESH CHAND
Vs. STATE N.C.T OF DELHI {2009 (1) J.C.C - 520}, wherein at page 521 (Delhi) it
is observed and held as follows:-
"In view of the fact that remedy by way of an appeal is provided under the
Protection of Women from Domestic Violence Act, 2005, he wishes to withdraw the
petition with liberty to file an appeal in the Court of the learned Additional
Sessions Judge (ASJ).
The Petitioner is permitted to withdraw the petition with liberty to file
an appeal before the learned ASJ within one week i.e., on or before 16th
January, 2009. The interim protection will be extended for a period of one week
i.e., 9th January, 2009 to 16th January, 2009.
29. It cannot be gain said that the term 'aggrieved person' in Section 29
of the Act is wide enough not only to take any parties to the
Petition/Application but also a Protection Officer or a person who has moved the
Magistrate on behalf of the aggrieved person as per decision CHITRANGATHAN Vs.
SEEMA.C {2007 (3) KHC at page 757 at page 762 (Ker.)}.
30. That apart, this Court points out that in the decision DILIP
BHATTACHARJEE @ RAGHU Vs. STATE OF BIHAR {2010 (1) B.L.J - 3}, wherein at page 4
(Pat.), it is held that
"Power to grant interim relief as envisaged under Sec.23 of the Act does
not contemplate of a maintenance order."
31. Further, in the decision ANILKUMAR Vs. SINDHU {2010 (1) Crimes - 606
(Ker.)}, it is inter alia held that
"The Magistrate must exercise the power with great care and caution,
especially in granting ex parte orders under Section 23 (2) of the Act."
32. Added further, in CHANDRASEKHARA PILLAI Vs. VALSALA CHANDRAN {2007
(2) K.L.T. 36} wherein at page 38 (Ker.), it is held that
"The appeal is maintainable against an interim or ex parte order, as per
Section 29 of the Act."
33. This Court makes an useful reference to Rule 6 (5) of the Protection
of Women from Domestic Violence, Rules 2006 which envisages that the
Applications under Section 12 of the Act, shall be dealt with and the order
enforced in the same manner laid down under Section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) and Rule 7 speaks of affidavit for obtaining Ex
parte Orders of Magistrate which shall be filed as per sub-Section (2) of
Section 23 in form III.
34. It is also to be remembered that Section 125 and Section 126 of the
Criminal Procedure Code deal with the order for maintenance of Wife, Children
and Parents and taking of all evidence in such proceedings under Section 125 of
the Criminal Procedure Code in the present of person against whom the order of
payment of maintenance is proposed to be made etc.
Further, the reliefs in
respect of orders to be passed under the Act are only civil liability and not
criminal liability, in the considered opinion of this Court.
35. Be that as it may, in view of the fact that as per Section 29 of the
Protection of Women from Domestic Violence Act, 2005, there is an effective and
alternative remedy of filing of an appeal by the Revision Petitioner/Husband as
against the order dated 23/4/2012 in C.M.P.No.9459 of 2010 (M.C.No.5 of 2009)
passed by the Learned Judicial Magistrate, Aranthangi, this Court is of the
considered view that the present Revision Petition filed by the Revision
Petitioner/Husband is not per se maintainable in the eye of Law. Furthermore,
this Court is of the opinion that ordinarily, the Learned Judicial Magistrate
exercising his functions under the Protection of Women from Domestic Violence
Act, 2005 as a Criminal Court inferior to the Court of Sessions and the High
Court. No wonder, a Court of Session is a Criminal Court inferior to High Court
for the purpose of exercise of Revisional Power under Section 397 (1) and
Section 401 of the Criminal Procedure Code. Also, it cannot be lost sight of
that revisional power of a High Court is a supervisor jurisdiction to correct
miscarriage of Justice arisen out of irregularity of procedure being
adopted or misconception of Law etc. To put it succinctly, the power of
revision is parental supervisory in character.
However, the Protection of
Women from Domestic Violence Act, 2005 is a special Act and even though the
Learned Judicial Magistrate is empowered to adopt his own procedure for disposal
of an application under Section 12 or under Sub-Section 12 or Section 23 of the
Act. Section 28 of the Act speaks of save as otherwise provided unless Act of
proceeding under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under
Section 23 91) shall be governed by the provisions of the Criminal Procedure
Code, 1973 (2) of 1974, yet the proceedings of the Magistrate are civil in
nature.
Looking at from any angle, the present Criminal Revision Petition
filed by the Revision Petitioner/Husband is not maintainable in limini, when he has an alternative viable and efficacious remedy of filing of an Appeal as per Section 29 of the Act.
Viewed in that
perspective, this Criminal Revision Petition fails.
36. In the result, this Criminal Revision Petition is dismissed as not
maintainable. It is open to the Revision Petitioner/Husband to prefer an appeal
as per the Protection of Women from Domestic Violence Act, 2005 as against the
impugned order dated 23/4/2012 in C.M.P.No.9429 of 2010 passed by the Learned
Judicial Magistrate, Aranthangi in the manner known to Law and in accordance
with law before the 'Court of Session' and to seek appropriate remedy thereto,
if he is so desires/advised. Consequently, the connected Miscellaneous Petition
is also dismissed.
mvs
To
The Judicial Magistrate, Aranthangi.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 9/1/2013
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Crl.R.C (MD) No.287 of 2012
and
M.P.(MD) No.1 of 2012
Arivazhagan ... Petitioner
Vs
1. M. Uma
2. Minor Deepthika
3. Minor Arivananthi ... Respondents
Petition filed under Sections 397 and 401 of the Code of Criminal
Procedure to call for the records and set aside the impugned order of distress
warrant dated 23/4/2012 made in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 on the
file of the Judicial Magistrate, Aranthangi.
!For Petitioner ... Mr.B.Jameel Arasu
^For respondents ... Mr.K.Baalasundaram
- - - - - - -
:ORDER
The Petitioner/Respondent (Husband) has focused the instant Criminal
Revision petition as against the impugned order of Distress Warrant dated
23/4/2012 in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 passed by the Learned
Judicial Magistrate, Aranthangi.
2. The Learned Judicial Magistrate, Aranthangi, while passing the
impugned order in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 dated 23/4/2012 has
observed that "Petitioner is present. Respondent absent. Filed petition and
allowed. Earlier order of substantial payment not complied by Respondent. Both
side heard. Revision hearing. But no stay on perusal of records the Court
takes that respondent. Purposely avoided for substantial payment. Hence issue
Distress Warrant against the respondent" and directed the matter to be called on
16/6/2012.
3. Assailing the correctness of the order so passed in C.M.P.No.9459 of
2010 in M.C.No.5 of 2009 by the Learned Judicial Magistrate, Aranthangi, the
Revision Petitioner/Husband as an aggrieved person has preferred the instant
Criminal Revision Petition before this Court.
4. According to the Learned Counsel for the Revision Petitioner/Husband,
the Learned Judicial Magistrate, Aranthangi should have seen that C.M.P.No.9459 of 2010 (filed by the First Respondent/Wife under Section 128 of the Criminal Procedure Code) is not maintainable to execute the order of maintenance passed
under Section 12 of the Protection of Women from Domestic Violence Act, 2005, as if the said order and claim in M.C.No.5 of 2009 has been passed under Section 125 of the Criminal Procedure Code.
5. The Learned Counsel for the Petitioner/Husband urges before this Court
that to execute the order of maintenance passed under Section 12 of the
Protection of Women from Domestic Violence Act, 2005, there is an enabling
provision under Section 20 (6) of the said Act and further, no relief can be
granted in the said petition which has not been filed under Section 20 (6) of
the Act. As such the order of the Learned Judicial Magistrate, Aranthangi in
C.M.P.No.9459 of 2012 dated 11/6/2012 directing the issuance of Distress
Warrant against the Revision Petitioner/Husband is irregular, illegal, abuse of
power and exercised contrary to Law.
6. Advancing his arguments, the Learned Counsel for the
Petitioner/Husband submits that in the appeal filed by the Revision
Petitioner/Husband against the order of maintenance awarded by the trial Court,
no stay has been granted and when the appeal is pending before the Appellate
Court/District Court, then issuance of Distress Warrant by the Learned Judicial
Magistrate, Aranthangi in C.M.P.No.9459 of 2010 is illegal and clearly
unsustainable in the eye of law.
7. Per contra, it is the submission of the Learned Counsel for the
Respondents/Petitioners (Wife and Children) that the Learned Judicial
Magistrate, Aranthangi in Cr.M.P.No.4065 of 2009 on 29/7/2009 has passed
interim orders to the effect that the Revision Petitioner/Husband should not
cause any hindrance to the Respondents/Petitioners (Wife and Children) to reside
in the Revision Petitioner's house and granted the protection of residence
orders.
8. Further, the Learned Judicial Magistrate, Aranthangi has directed the
Revision Petitioner to pay an interim relief of maintenance of Rs.1,500/- to the
Respondents/Petitioners Food, Clothing, Medical and Children expenses and the
same has to be paid by the Revision Petitioner on or before 5th of every month
(directly to be paid in the house). Also, the Learned Judicial Magistrate,
Aranthangi, directed the Office to take Cr.M.P.No.4065 of 2009 as M.C.No.5 of 2009 on file and posted the matter to 20/8/2009.
9. The Learned Judicial Magistrate, Aranthangi on 18/6/2010 in M.C.No.5
of 2009 has passed orders in favour of the Respondents (Wife and Children) by
directing the Revision Petitioner/Husband not to cause any threatening act or
harass them and further granted Residence Protection Orders in favour of the
Respondents and also granted Rs.10,000/- p.m., to the Respondents/Wife and
Children towards their Family Expenses, Children Expenses and Medical Expenses
and directed the said amount to be paid by the Revision Petitioner/Husband on or
before 5th of English Calendar month and also directed the interim maintenance
amount granted earlier by this Court to be deducted from the amount ordered to
be paid by this Court and from the date of filing of the Petition, the Revision
Petitioner/Husband has been directed to pay the amount so ordered.
10. Based on the order dated 18/6/2010 passed by the Learned Judicial
Magistrate, Aranthangi in M.C.No.5 of 2009 (Respondents/Wife and Children of the
Revision Petitioner/Husband) has filed Cr.M.P.No.9459 of 2010 under Section 128
of the Criminal Procedure Code praying for an issuance of a direction from the
trial Court in directing the Revision Petitioner/Husband to pay a sum of
Rs.80,000/- towards maintenance to the Respondents/Wife and Children for the
period from 1/12/2010 till 31/7/2011 (for eight months period).
11. On 1/12/2010 in Cr.M.P.No.9459 of 2010 in M.C.No.5 of 2009, the
Learned Judicial Magistrate, Aranthangi has passed an order directing the
Revision Petitioner/Husband to pay a sum of Rs.1,70,000/- (Rs.10,000/- per
month) for seventeen months for the period from 29/7/2009 till 29/11/2010.
12. Thereafter, on 23/4/2012, the Learned Judicial Magistrate, Aranthangi
in C.M.P.No.9459 of 2012 in M.C.No.5 of 2009 has inter alia passed an order
stating that purposely, the Revision Petitioner/Husband has avoided the
substantial payment and directed issuance of Distress Warrant against him
because of the reason that earlier order of substantial payment has not been
complied with by the Revision Petitioner/Husband etc. It is significant to
point out that on 29/4/2012, when the Learned Judicial Magistrate, Aranthangi
has passed an order in C.M.P.No.9459 of 2010 (M.C.No.5 of 2009), the Revision
Petitioner/Husband as Respondent has remained absent and only the First
Respondent/Wife has been present and on behalf of the Revision
Petitioner/Husband, a Petition has been filed and allowed.
13. Admittedly, the Revision Petitioner/Husband as an aggrieved person has
filed C.A.No.100 of 2010 as against the order dated 18/6/2010 in M.C.No.5 of
2009 passed by the Learned Judicial Magistrate, Aranthangi. The said C.A.100 of
2010 is pending on the file of the Learned Principal District and Sessions
Judge, Pudukottai. It comes to be known that Stay Petition C.M.P.No.153 of 2010
is also pending. As on date, there is no stay in respect of the order dated
18/6/2010 in M.C.No.5 of 2009 passed by the Learned Judicial Magistrate,
Aranthangi. However, it is represented before this Court that the
Respondents/Wife and Children have not filed any counter to C.M.P.No.153 of 2010
and the matter is pending. Therefore, the Respondents have preferred
C.M.P.No.9459 of 2010 before the Learned Judicial Magistrate, Aranthangi under
Section 128 of the Criminal Procedure Code for enforcement of order of
maintenance awarded by the Court.
14. At this stage, this Court aptly points out that Section 12 of the
Protection of Women from Domestic Violence Act, 2005 speaks of an application to
be filed before a Magistrate by an aggrieved person or a Protection Officer or
any other person on behalf of the aggrieved person seeking one or more reliefs
under the Act.
15. Section 18 of the Act refers to the protection orders being passed by
the Magistrate concerned.
16. Section 19 refers to the 'Residence Orders' being passed by the
Learned Judicial Magistrate.
17. Section 20 of the Act speaks of monetary relief being granted to the
aggrieved person by the Magistrate in directing the Respondent to pay monthly
relief to meet the expenses occurred and losses suffered by the aggrieved person
and any child of the aggrieved person as a result of 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."
18. As per Section 20 (3) of the above said Act, the Magistrate shall
have the power to order an appropriate lumpsum payment or monthly payments of
maintenance, as the nature and circumstances of the case may require.
19. Section 20 (5) of the Act speaks of the Respondent to pay the
monetary relief granted to the aggrieved person within a period specified in the
order under Sub-Section 1 of Section 20 of the Act.
20. Furthermore, Section 20 (6) of the Act upon failure on the part of
the Respondent to make payment in terms of order under Sub-Section 1 of Section
20, 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 Department due to or accrued to the credit of the
Respondent which amount may be adjusted towards the monetary relief payable by
the Respondent.
21. In reality, Section 25 of the Act refers to the duration and
alteration of the orders passed by the Magistrate concerned. As per Section 25
(2) of the Act, if there is any change in the circumstances and if the Learned
Magistrate is satisfied on receipt of application from the aggrieved person or
the Respondent, requiring alteration, modification or revocation of any order
made under this Act, he may for the reasons to be recorded in writing pass
appropriate orders as he deems fit.
22. However, this Court pertinently points out that the Learned
Magistrate must be circumspect and careful while granting ex parte order either
under Section 23 of the Act or under any other Section of the Act. Only after
subjectively satisfying himself as to the nature of claim/relief made by the
aggrieved person, the Learned Magistrate is to pass an ex parte interim orders
with great care and circumspection only to the extent necessary.
23. Section 31 of the Act speaks of Penalty for breach of protection
order by Respondent. Only if the order passed by the Learned Judicial
Magistrate is a protection order, the Magistrate can direct registration of the
case and investigate the case under Section 31 of the Act, as per decision
KANAKA RAJ Vs. STATE OF KERALA 2010 (1) Crimes - 655 at page 656 (Ker.).
24. Section 29 of the Act speaks of filing of appeal to the Court of
Session within 30 days from the date on which the order made by the Magistrate
is served on the aggrieved person or the respondent, as the case may be,
whichever is later. Under the Protection of Women from Domestic Violence Act,
2005, it is open to an aggrieved person/party to challenge certain impugned
order when it affects his rights. He can either challenge the ex parte order
otherwise of the orders passed on merits. In the alternative, the aggrieved
party can make a prayer to the concerned Court to set aside the ex parte order
or orders so passed in the manner known to law and in accordance with law. In
the instant case on hand, as against the order dated 18/6/2010 made in M.C.No.5
of 2009 passed by the Learned Judicial Magistrate, Aranthangi, the Revision
Petitioner/Husband has filed C.A.No.100 of 2010 on the file of the Principal
District and Sessions Judge, Pudukottai and the same is pending as on date. As
stated already, no stay has been granted in C.M.P.No.153 of 2010 in C.A.No.100
of 2010. Therefore, the Respondents/Wife and Children have filed C.M.P.No.9459
of 2010 under Section 128 of Cr.P.C., in regard to the enforcement of order of
maintenance and obtained orders on 23/4/2010 from the Learned Judicial
Magistrate, Aranthangi, wherein the Revision Petitioner/Husband since he has
avoided the substantial payment has been directed to be issued with the Distress
Warrant and the matter has been directed to be called before the trial Court on
16/6/2012.
25. More importantly, the main argument advanced on behalf of the
Petitioner/Husband is that the Respondents/Wife and Children had filed
Cr.M.P.No.9459 of 2010 under Section 128 of the Criminal Procedure Code, which
is not correct in the eye of Law.
In this connection, this Court pertinently
points out Section 28 of the Protection of Women from Domestic Violence Act,
2005 which enjoins hereunder:-
"28. Procedure - (1) Save as otherwise provided in this Act, all
proceedings under Secs.12, 18, 19, 20, 21, 22 and 23 and offences under Sec.31
shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2
of 1974).
(2). Nothing in Sub-section (1) shall prevent the Court from laying down
its own procedure for disposal of an application under Sec.12 or under Sub-
Section (2) of Sec.23.
26. It is significant for this Court to make a pertinent reference to the
decision M.PALANI Vs. MEENAKSHI {2008 (3) MLJ - 855},
wherein it is observed and held that
"Any woman being in domestic relationship with opposite party can file a
complaint under the Protection of Women from Domestic Violence Act, 2005 (Act 43
of 2005)."
27. This Court worth recalls the decision KARTHIKEYAN Vs. SHEEJA 2008
(1) KCT - 750, 751, 752, wherein it is inter alia held that the writ petition
cannot, hence be entertained as the Petitioner has an efficacious alternative
remedy under Section 28 of the Protection of Women from Domestic Violence Act,
2005 to challenge the said order.
28. Also, this Court pertinently points out the decision RAMESH CHAND
Vs. STATE N.C.T OF DELHI {2009 (1) J.C.C - 520}, wherein at page 521 (Delhi) it
is observed and held as follows:-
"In view of the fact that remedy by way of an appeal is provided under the
Protection of Women from Domestic Violence Act, 2005, he wishes to withdraw the
petition with liberty to file an appeal in the Court of the learned Additional
Sessions Judge (ASJ).
The Petitioner is permitted to withdraw the petition with liberty to file
an appeal before the learned ASJ within one week i.e., on or before 16th
January, 2009. The interim protection will be extended for a period of one week
i.e., 9th January, 2009 to 16th January, 2009.
29. It cannot be gain said that the term 'aggrieved person' in Section 29
of the Act is wide enough not only to take any parties to the
Petition/Application but also a Protection Officer or a person who has moved the
Magistrate on behalf of the aggrieved person as per decision CHITRANGATHAN Vs.
SEEMA.C {2007 (3) KHC at page 757 at page 762 (Ker.)}.
30. That apart, this Court points out that in the decision DILIP
BHATTACHARJEE @ RAGHU Vs. STATE OF BIHAR {2010 (1) B.L.J - 3}, wherein at page 4
(Pat.), it is held that
"Power to grant interim relief as envisaged under Sec.23 of the Act does
not contemplate of a maintenance order."
31. Further, in the decision ANILKUMAR Vs. SINDHU {2010 (1) Crimes - 606
(Ker.)}, it is inter alia held that
"The Magistrate must exercise the power with great care and caution,
especially in granting ex parte orders under Section 23 (2) of the Act."
32. Added further, in CHANDRASEKHARA PILLAI Vs. VALSALA CHANDRAN {2007
(2) K.L.T. 36} wherein at page 38 (Ker.), it is held that
"The appeal is maintainable against an interim or ex parte order, as per
Section 29 of the Act."
33. This Court makes an useful reference to Rule 6 (5) of the Protection
of Women from Domestic Violence, Rules 2006 which envisages that the
Applications under Section 12 of the Act, shall be dealt with and the order
enforced in the same manner laid down under Section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) and Rule 7 speaks of affidavit for obtaining Ex
parte Orders of Magistrate which shall be filed as per sub-Section (2) of
Section 23 in form III.
34. It is also to be remembered that Section 125 and Section 126 of the
Criminal Procedure Code deal with the order for maintenance of Wife, Children
and Parents and taking of all evidence in such proceedings under Section 125 of
the Criminal Procedure Code in the present of person against whom the order of
payment of maintenance is proposed to be made etc.
Further, the reliefs in
respect of orders to be passed under the Act are only civil liability and not
criminal liability, in the considered opinion of this Court.
35. Be that as it may, in view of the fact that as per Section 29 of the
Protection of Women from Domestic Violence Act, 2005, there is an effective and
alternative remedy of filing of an appeal by the Revision Petitioner/Husband as
against the order dated 23/4/2012 in C.M.P.No.9459 of 2010 (M.C.No.5 of 2009)
passed by the Learned Judicial Magistrate, Aranthangi, this Court is of the
considered view that the present Revision Petition filed by the Revision
Petitioner/Husband is not per se maintainable in the eye of Law. Furthermore,
this Court is of the opinion that ordinarily, the Learned Judicial Magistrate
exercising his functions under the Protection of Women from Domestic Violence
Act, 2005 as a Criminal Court inferior to the Court of Sessions and the High
Court. No wonder, a Court of Session is a Criminal Court inferior to High Court
for the purpose of exercise of Revisional Power under Section 397 (1) and
Section 401 of the Criminal Procedure Code. Also, it cannot be lost sight of
that revisional power of a High Court is a supervisor jurisdiction to correct
miscarriage of Justice arisen out of irregularity of procedure being
adopted or misconception of Law etc. To put it succinctly, the power of
revision is parental supervisory in character.
However, the Protection of
Women from Domestic Violence Act, 2005 is a special Act and even though the
Learned Judicial Magistrate is empowered to adopt his own procedure for disposal
of an application under Section 12 or under Sub-Section 12 or Section 23 of the
Act. Section 28 of the Act speaks of save as otherwise provided unless Act of
proceeding under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under
Section 23 91) shall be governed by the provisions of the Criminal Procedure
Code, 1973 (2) of 1974, yet the proceedings of the Magistrate are civil in
nature.
Looking at from any angle, the present Criminal Revision Petition
filed by the Revision Petitioner/Husband is not maintainable in limini, when he has an alternative viable and efficacious remedy of filing of an Appeal as per Section 29 of the Act.
Viewed in that
perspective, this Criminal Revision Petition fails.
36. In the result, this Criminal Revision Petition is dismissed as not
maintainable. It is open to the Revision Petitioner/Husband to prefer an appeal
as per the Protection of Women from Domestic Violence Act, 2005 as against the
impugned order dated 23/4/2012 in C.M.P.No.9429 of 2010 passed by the Learned
Judicial Magistrate, Aranthangi in the manner known to Law and in accordance
with law before the 'Court of Session' and to seek appropriate remedy thereto,
if he is so desires/advised. Consequently, the connected Miscellaneous Petition
is also dismissed.
mvs
To
The Judicial Magistrate, Aranthangi.
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