Published in http://judis.nic.in/judis_chennai/qrydispfree.aspx?filename=41484
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/03/2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
Crl.R.C.No.906 of 2012
M.P.Nos.1 and 2 of 2012
1.Dr.K.J.Mathiyalagan
2.M.Girija Devi ... Petitioners
Vs.
Miss.Dhivya ... Respondent
PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to set-aside the order passed in C.A.No.144 of 2011, dated 23.02.2012 on the file of the I Additional Sessions Judge (i/e) II Additional Court, Chennai partly allowed by modifying the order dated 23.06.2011 passed by the XVII Metropolitan Magistrate, Saidapet, Chennai-15 in Crl.M.P.No.1945 of 2010.
For Petitioners : Mr.G.Krishnamoorthy
For Mr.T.S.Selvarani
For Respondent : Mr.R.Sankarasubbu
For Mr.T.K.S.Gandhi
*******
O R D E R
The short facts of the case are as follows:-
The respondent herein / petitioner, viz., Miss.M.Dhivya had filed a complaint, in Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, against the revision petitioners herein and two others, viz., M.Prem Anand and M.Deepak Anand, stating that she is studying in the second year of the Five year law course at Dr.Ambedkar Law College, Chennai and living under the care and custody of her mother, Mrs.Usha Rani, in a rented house. She further stated that her father, Dr.K.J.Mathiazhagan married her mother Usha Rani, as per Hindu Customs and Rites on 21.11.1991 at Tirupathi, in the presence of relatives and friends, and the marriage reception was held at Hotel Palmgrove, Nungambakkam, Chennai. At the time of marriage, her father was a serving doctor as Ortho Surgeon in K.M.C.Hospital, Chennai. Out of wedlock, she was born on 15.08.1992. In the month of June 1993, her mother came to know that her husband had already married another woman, i.e., the second respondent / second revision petitioner herein viz., Mrs. Girija Devi. The same had been suppressed by her father. Her mother had raised the objections regarding suppression of first marriage with the second respondent/second revision petitioner. Then, the father of the respondent herein had convinced her mother and all the family members stating that the past could not be reset and everything would turn out to be alright. The respondent herein further stated that her father had requested her mother not to initiate any legal action, since he is a Government doctor and that his profession would be affected. The respondent / Divya further stated that the revision petitioners herein are her father and her aunt / (periamma in tamil), and that the third and fourth respondents are her blood brothers in the eyes of law and society.
2. The respondent herein / petitioner further stated that her mother, viz., Usha Rani has filed H.M.O.P.No.1314 of 1995 against the first revision petitioner herein for restitution of conjugal rights. At the time of hearing before the Family Court, her father was prepared to settle the issue out of Court and her father agreed to pay a sum of Rs.1,50,000/- to her mother Usha Rani and he promised to extend his co-operation for providing her education and other amenities. Subsequently, her mother filed maintenance case in M.C.No.114 of 2007, on behalf of her minor daughter and suit for declaration in O.S.No.168 of 2007, against the first revision petitioner herein / Dr.Mathiyalagan. At the time of hearing, her father agreed to pay a sum of Rs.4,72,000/- for full and final settlement. This did not materialise due to the unwillingness of the second and fourth respondents to effect such a compromise. The respondent herein / petitioner further stated that her father has a own house bearing door No.15, New No.6, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92, consisting of ground floor and first floor. The house property spreads over an extent of 1 ground 300 Sqft. All the respondents have prevented the respondent from entering into her father's property.
3. The respondent herein / petitioner further stated that her living status is in a pathetic state and that she is unable to continue her studies since she is living as a tenant. Her father also has lot of immovable properties. Therefore, she has sought accommodation for herself in the said house. She further stated that her father also had accepted her as his daughter. She has further stated that her mother Usha Rani was aged 49 years old and that she is unemployed and has no source of income to maintain her. Therefore, she has stated that she is willing to living with her father in her father's place, but her father's first wife and her children had not allowed her to live with her father. Therefore, the petitioner has prayed for a direction to the respondents to provide her accommodation in her father's house under Section 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act.
4. The respondent herein / petitioner further stated that her father is the owner of one big house consisting of two floors, in which, only two persons are residing. Hence, it was submitted that the respondent herein being the daughter of the first revision petitioner is entitled to live with her father in the said house situated at Old No.15, New No.6, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92. The respondent further stated that the learned I Additional Family Court had granted maintenance to her in M.C.No.114 of 2007. Under the circumstances, the revision petitioner herein had created a so-called settlement deed in favour of his son with an intention to deny the respondent of her rights over the property. Her father had also made a complaint against her. The police had also conducted enquiry on the said complaint and advised her father not to take part in any illegal activities against the respondent herein. The other children, being the married sons are living separately and away from their father. Therefore, the respondent has real fear of violence from the revision petitioners herein, if she entered into the shared house property as she fears that she would be threatened. The first petitioner is a serving leading doctor and getting pension. Besides, he is a Consultant doctor at M.R.Hospital, Arumbakkam, S.K.Nursing Home, Vadaplani besides other hospitals in Chennai.
5. The respondent further stated that on many occasions, she made attempts to see her father, but the second revision petitioner herein had obstructed her and prevented her from entering the house. Hence, the respondent herein has prayed for a direction to the first revision petitioner to permit her to live along with him. The revision petitioners had physically and verbally degraded her and insulted her and had also prevented her from entering into the shared house.
6. Before the trial Court, the first revision petitioner herein, Dr.Mathiazagan had entered appearance, but no counter was filed even after giving sufficient opportunities. Finally, the petitioner was examined as P.W.1 and eight documents were marked. Thereafter, the learned Magistrate passed an order granting the relief under Section 17 of the Protection of Women from Domestic Violence Act, 2005 for shared household.
7. Aggrieved by the said order, passed in Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, dated 23.06.2011, the appellants / revision petitioners have filed a Criminal Appeal in C.A.No.144 of 2011, on the file of I Additional Sessions Judge, (i/e. II Additional Court) Chennai.
The learned Judge, after hearing the arguments of the appellants / revision petitioners and the respondent herein, partly allowed the appeal, by modifying the order dated 23.06.2011 passed by the XVII Metropolitan Magistrate, Saidapet, in Crl.M.P.No.1945 of 2010, for alternate accommodation under Section 19 of the Protection of Women from Domestic Violence Act, 2005 instead of the relief of shared household granted under Section 17 of the said Act and directed the appellants / revision petitioners to pay a sum of Rs.15,000/- towards rent to the respondent herein with effect from 23.06.2011.
8. The learned appellate judge observing that when there is serious objection on the side of the revision petitioners for sharing the house, though the respondent herein has the right to share the household, modified the trial Court order, in order to avoid further complications and directed the revision petitioners herein to pay a sum of Rs.15,000/- per month towards rent, in order to facilitate alternate accommodation to the respondent herein.
9. Aggrieved by the said modified order passed in C.A.No.144 of 2011, on the file of I Additional Sessions Judge, Chennai, dated 23.02.2012, the above revision has been filed.
10. The learned counsel for the revision petitioners argued that the respondent cannot claim any relief for sharing the house along with the revision petitioners under the Protection of Women from Domestic Violence Act, 2005, and Rules made thereunder. There is no provision of law to enable the respondent to take shelter with the revision petitioners. The learned appellate judge had granted relief to the respondent against the revision petitioners, which is contravention of Section 17 of Hindu Marriage Act, 1955. The learned counsel has further submitted that the learned appellate judge failed to understand the legal propositions laid down in Section 6(b) of the Hindu Minority and Guardianship Act, 1956. The learned appellate judge ordered accommodation as per Section 19 of Protection of Women from Domestic Violence Act, 2005, which is not relevant in the instant case as even as per the contentions of the respondent, she is an illegitimate child of the first revision petitioner. The learned counsel has further submitted that as per Section 6(b) of the Hindu Minority and Guardianship Act, 1956, the mother is the natural guardian of an illegitimate and unmarried child till her life time and then only can the father be taken as natural guardian. As such, the respondent cannot claim any right to live with the first revision petitioner. The respondent and her mother have no legal right under any provision of the Protection of Women from Domestic Violence Act, 2005, to live with the first revision petitioner. The respondent herself had stated that her mother came to know about the first marriage of the first revision petitioner in the month of June 1993.
11. The learned counsel vehemently argued that the respondent's mother had married one Madhusudhanan, who was employed in Tamil Nadu Water and Drainage Board at the time of birth of the respondent. The respondent never lived with the first revision petitioner at any point of time, but she had lived only with her mother at Door No.154, Gangai Amman Koil Street, Vadapalani, Chennai-96. As per the learned Magistrate's order, the respondent had obtained fruitful order in O.A.No.764 of 2007 in C.S.No.548 of 2007, dated 03.07.2007, passed by this Court to grant shared household to the petitioner / respondent herein. Subsequently, the learned Magistrate had allowed the Crl.M.P.No.1945 of 2010. The learned counsel has further submitted that once this Court granted the said relief to the respondent, the same relief cannot be granted by the learned Magistrate. As such, the prayer in Crl.M.P.No.1945 of 2010 is one and the same. Therefore, res-judicata arises in this case since the same relief had been granted by the learned Magistrate.
12. The learned counsel for the revision petitioners has further submitted that the mother of the respondent, viz., Mrs.Usha Rani has filed H.M.O.P.No.1314 of 1995, against the first revision petitioner herein stating that she had married the respondent's father on 21.11.1991 at Tirumalai Tirupathi Devasthanam as per Hindu Customs and Rites. From the date of marriage, both had lived at the parental home of Mrs.Usha Rani., i.e, mother of the respondent herein. Following the said marriage, a reception was conducted on 02.03.1992 at hotel Palmgrove. Subsequently, the first revision petitioner deserted the mother of the first respondent. Hence, she had filed the H.M.O.P.No.1314 of 1995, for restitution of conjugal rites. Subsequently, she had given an affidavit in her name stating that she is the legally wedded wife of Mr.Madhusudhanan and a female child was born on 15.08.1992 at Saroja Nursing Home, Nungambakkam, Chennai-34, from and out of the wedlock and in continuance of my co-habitation with my late husband. It was submitted that due to some unforeseen circumstances with a view to wreck vengeance against a stranger, by name Dr.K.J.Mathiazhagan, she chose to file a case for restitution of conjugal rites in H.M.O.P.No.1314 of 1995 before the Principal Family Court at Chennai, since she miserably failed in accomplishing her mission to live with him suo-motu for the rest of her entire life since she had developed a deep sense of infatuation and as it was rebuked by the said Dr.K.J.Mathiazhagan, she had went to the extent of alleging him as a father of her child baby Divya in order to evoke the passions thereby to exploit the sentiments of learned judge of the Principal Family Court, with a view to secure some order to reap unlawful and illegal pecuniary benefits for herself and her child, Divya. She further declared that to substantiate her claim relating to the paternity of her child baby, Divya, she had stealthily influenced certain photographs taken out during a family function on 02.03.1992. She had further stated that on the advice of her well wishers, wisdom, had prevailed on her and she had agreed to withdraw the said case , i.e., H.M.O.P.No.1314 of 1995, unconditionally, pending before the Principal Family Court, in order to lead a peaceful life with her child. She had further stated that she would never be instrumental to cause any prejudice to the interests of Dr.K.J.Mathiazhagan or any members of his family and that she would neither claim any relief before the Family Court at Chennai or at any other place in Tamil Nadu or any other state in Union of India and also would not claim any relief for the benefit of her child baby, Divya in future.
13. The learned counsel has further submitted that on 22.06.1984, the mother of the respondent had issued legal notice to her husband, viz., Mr.P.N.Madhusudhanan through her counsel Mr.R.Dhandapani and informed her husband that she is prepared to give her consent for divorce, if her husband so desires. Therefore, the learned counsel would submit that the father of the first respondent was the said Madhusudanan and not the first revision petitioner herein. Therefore, the maintenance case in M.C.No.114 of 2007, on the file of I Additional Family Court, chennai and Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, Chennai are not sustainable under law. Hence, the learned counsel entreats the Court to set-aside the order passed in C.A.No.144 of 2011, modifying the order passed in Crl.M.P.No.1945 of 2010, dated 23.06.2011.
14. The learned counsel for the respondent / Ms.M.Divya has submitted that a maintenance case was filed by the mother of the respondent on behalf of her minor daughter, in M.C.No.114 of 2007, against her father, i.e., first revision petitioner herein on the file of I Additional Family Court and it was proved that she is the daughter of the first revision petitioner herein. As such, the learned judge of Family Court, had granted maintenance in favour of the respondent. The learned counsel has further submitted that the so-called affidavit had been prepared in the name of the mother of the respondent on 20.10.1999 and same was attested by the Notary Public. The contents of the affidavit is only a concocted story and does not reflect the true facts of the case. The mother of the first respondent had clearly stated in her petition in H.M.O.P.No.1314 of 1995, filed before the Family Court, Chennai that she had married the first revision petitioner on 21.11.1991 at Tirumalai Tirupathi Devasthanam as per Hindu Customs and Rites. Subsequently, the marriage reception was conducted on 02.03.1992 at Hotel Palmgrove. Out of wedlock, between the spouses, the respondent was born on 15.08.1992, at 06.54 p.m., at Saroja Nursing Home, Kodambakkam High Road, Chennai. Thereafter, the revision petitioner herein deserted the respondent and her mother in the month of July 1993. Hence, the mother of the respondent had initiated petition for restitution of conjugal rights.
15. The learned counsel has further submitted that the mother of the respondent on behalf of her minor daughter had initiated a maintenance case against the first revision petitioner in M.C.No.114 of 2007, on the file of I Additional Family Court, Chennai. The learned judge, after considering the factual position of the case had granted maintenance, of a sum of Rs.3,000/- to the respondent, payable by the first revision petitioner herein. This order is still in force and has become final. But, the first revision petitioner had a portion of arrears of maintenance amount and as on date a sum of Rs.1,15,000/- is in arrears.
The maintenance order is a judicial order and is operating against the first revision petitioner, who is the father of the respondent.
The learned counsel has further submitted that as per Hindu Succession Act, as per Hindu Partition Act, as per Guardians and Wards Act, and as per Hindu Marriage Act, the illegitimate child is empowered to receive all rights as a legitimate child would receive.
In this case, it is an admitted fact that the first revision petitioner had married the mother of the respondent at Tirumalai Tirupathi Devastanam on 21.11.1991 and the marriage reception was conducted on 02.03.1992.
As such, out of wedlock, the respondent was born on 15.08.1992. Therefore, the question of illegitimate child or legitimate child does not arise in the said case.
The option to live either with the first revision petitioner, i.e., the father of the respondent or with Usharani, the mother of the respondent or to live separately as she is a major, vests entirely with the respondent herein. Therefore, the first revision petitioner's suggestion that the respondent should lead her life with her mother, Usha Rani until her lifetime is not acceptable and not maintainable under any law.
The learned counsel has further submitted that the respondent is a budding lawyer studying at Law College and she has to maintain her status as a budding lawyer and also maintain her social status considering that her father is a leading Ortho Specialist. Now, her natural father is residing at Door No.15, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92. This property spreads over an extent of one ground 300 sq.ft. Over the said property, a pucca building has been constructed by the first revision petitioner herein and the building consists of ground floor and first floor. Therefore, sufficient vacant portions are available at the said house. In the said house, both the revision petitioners herein are living. Both of them are aged persons, and if the respondent is accommodated in the shared house, it would provide extra safety to the revision petitioners herein.
16. The learned counsel has further submitted that due to difference of opinion between the first revision petitioner and the mother of the respondent, she has been put into hardship and unable to continue her studies. The respondent is entitled to occupy the shared house as per order passed by this Court in O.A.No.764 of 2007 in C.S.No.548 of 2007, dated 03.07.2007. The same was affirmed by the learned XVII Metropolitan Magistrate, Saidapet in Crl.M.P.No.1945 of 2010, in his order dated 23.06.2011. Subsequently, the same has been modified by the learned I Additional Sessions Judge, in her order passed in C.A.No.144 of 2011, dated 23.02.2012, modifying the trial Court order, by directing the revision petitioners to pay a sum of Rs.15,000/- per month towards rent to the respondent with effect from 23.06.2011. The learned judge had assigned the reason that alternate accommodation should be given as per Section 19 of Protection of Women from Domestic Violence Act, 2005, instead of the relief of the shared house hold granted under Section 17 of the said Act, and as such, the above order has been passed, which is sustainable under law.
17. The learned counsel has further submitted that as per the order of the first appellate Court, the revision petitioner is liable to pay a sum of Rs.3,25,000/- being arrears of rent upto July 2012. The respondent, being a student, and a non-earning member is struggling to make both ends meet in leading her life, since the first revision petitioner had failed to provide adequate monthly payment as ordered by this Court. The learned counsel for the respondent, supporting her case had filed the counter statement which reveals that the first revision petitioner is an Ortho doctor who comes to Court daily on his professional works and adduces evidence in almost all the Courts as a routine and that he would be in Court from 10.30 a.m., to 2 p.m., everyday. Hence, he has all possible ways to meet his counsel even during the statutory appeal period and also during additional delay period and therefore, the reasons for delay stated in filing the present petition against the order dated 23.02.2012, with a delay of 16 days is not sustainable under law. It was submitted that in order to get himself relieved from the cases against him, the first revision petitioner had acted to have love towards her and had got her a Scooty for her to go to college, everyday. It was submitted that during settlement talks, she had met with a road accident and sustained a foot injury and that the first revision petitioner took her to Aysha Hospital for first aid and thereafter, visited her home and spent much time with her and had also given treatment for the injury for 15 days, since he was an ortho doctor. It was submitted that she had requested him to continue his payment of maintenance as per oder passed in M.C.No.114 of 2007, irrespective of settlement. Since the settlement decided to be arrived at between her and the first revision petitioner, did not reach an amicable level, and as he found that she will not be coming to his terms, he filed Crl.M.P.No.3277 of 2012 before the learned V Metropolitan Magistrate, seeking permission to go abroad even during pendency of the case. She further stated that she filed an intervenor petition and objected for the same on the ground that the first revision petitioner did not pay the maintenance as well as the monthly amount in lieu of shared house as per orders of the Court and she demanded the same. Agreeing to her reasonable objection, the said Court had passed an order directing the first revision petitioner to deposit Rs.1,50,000/- in her favour, but instead of complying with the said condition, the petitioners have come up with the above revision case.
18. Per contra, the learned counsel for the revision petitioners has submitted that the Protection of Women from Domestic Violence Act will not be applicable in the instant case, since the respondent herein or her mother never lived along with the first revision petitioner at Door No.15, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92. Further, there is no quarrel among them or any violence among them. Therefore, the present case will not be covered under the Domestic Violence Act. On the same cause of action, the respondent had initiated a maintenance case, on behalf of her minor daughter in M.C.No.114 of 2007 against the first revision petitioner. The mother of the respondent had also filed H.M.O.P.No.1314 of 1995 for restitution of conjugal rights. Therefore, the Crl.M.P.No.1945 of 2010 filed before the XVII Metropolitan Magistrate is not sustainable under law since there is no cause of action.
19. On the above discussions, this Court considers that in the language of Section 17, and 19 (F) of the Protection of Women from Domestic Violence Act, 2005, it is seen that
"17. Right to reside in a shared house hold-
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
19. Residence Orders.-
(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances require."
20. On considering the factual matrix of the case, this Court is of the view that:-
(i) The mother of the respondent herein has filed the maintenance case on behalf of her minor daughter in M.C.No.114 of 2007, on the file of Additional Family Court, Chennai and claimed maintenance against the first revision petitioner herein / father of the respondent. The learned family Court judge, directed the first revision petitioner to pay the monthly maintenance of a sum of Rs.3,000/- to the respondent with effect from February 2007 and this order was passed on 22.12.2008. Against this order, no appeal or revision has been preferred by the first revision petitioner herein and as such, this order has become final, thereby confirming the relationship between the first revision petitioner and the respondent as the biological father and daughter.
(ii) The mother of the respondent had filed H.M.O.P.No.1314 of 1995, against the first revision petitioner for restitution of conjugal rights and she had narrated that her marriage with the first revision petitioner was solemnized at Tirumalai Tirupathi Devasthanam, between the spouses and that following the marriage celebrations, reception was conducted on 02.03.1992 at Hotel Palmgrove. She had further stated that out of wedlock, the first respondent was born on 15.08.1992, at 06.54 p.m., at Saroja Nursing Home, Kodambakkam High Road, Chennai-34. It is seen that all the three places mentioned for showing the nexus of the relationship of the first revision petitioner and the respondent, as mentioned by the mother of the respondent, are public places. This was not denied by the first revision petitioner before the trial Court as well as the first appellate Court and this Court too.
(iii) The revision petitioner has filed a copy of affidavit which had been signed by the mother of the respondent stating that she has filed a false case in H.M.O.P.No.1314 of 1995. This affidavit has been shown in front of Notary Public and had not been marked a document before any Court. Therefore, these contentions made by the mother of the respondent cannot be taken as a true factor to decide the case as against the respondent.
(iv) This Court granted interim relief in original application filed by the respondent in O.A.No.764 of 2007 in C.S.No.548 of 2007, dated 03.07.2007, on the file of High Court, permitting her to share the house of the first revision petitioner. This judicial order has not been challenged by the first revision petitioner herein. Therefore, the relationship between the father and his biological daughter has not been contradicted. This aspect has been considered by the learned XVII Metropolitan Magistrate, Chennai, who had followed Section 19 of Protection of Women from Domestic Violence Act and granted relief to the first respondent herein.
(v) Against the said order, the first revision petitioner had filed the appeal in C.A.No.144 of 2011, and challenged the trial Court's order. The learned appellate judge, on considering that the first revision petitioner is already living in the said house, along with his first wife and children, directed the first revision petitioner to pay monthly rent of a sum of Rs.15,000/- in lieu of shared household to the respondent. This Court is of the view that the quantum of monthly rent awarded by the first appellate Court is reasonable since the respondent is a budding lawyer and the first revision petitioner is also a leading serving ortho specialist doctor and considering social status of both of them and further observing that the respondent is living in the Metro City of Chennai.
(vi) As per law, the illegitimate child is empowered all the rights to enjoy equal status in life as a legitimate child enjoys and as such, this Court views that the term 'illegitimate' child should not be raised to address the innocent respondent, who through no fault of hers had been brought into this world. This Court strongly feels that the term 'illegitimate' child should not be used as it would deeply impact on the mind of the respondent and cast a stigma on her status in society, thereby, impeding her future prospects in life.
(vii) The result of the birth of a new-born child should not be distinguished as legitimate or illegitimate since the innocent baby was indeed born to two adult consenting partners. If the male of the species denies the knowledge of being involved in the parenting of such a child then he should be firmly warned that he will be subjected to DNA testing, the most reliable scientific testing to determine parenthood and if proven beyond doubt, then he would receive the maximum penalty. We should all understand that in the eyes of God, human life is most valuable, hence, nothing should be done to distort the image and the future of a new born innocent child brought into this world through a lewd and demeaning pair of consenting human beings. Could a brief moment of such sexual pleasure by two consenting partners besmirch and destroy the birth right of an innocent child?.
(viii) This Court is of the further view that the respondent is now a major. Therefore, as per her desire she can opt to live either with the first revision petitioner or with her mother or she can live separately and hence, the revision petitioners contention that the respondent should live only with her mother till her lifetime is unacceptable.
21. On considering the arguments advanced by the learned counsels on either side and on perusing the impugned judgment passed in C.A.No.144 of 2011, on the file of I Additional Sessions Court, dated 23.02.2012, and this Court's view listed above as (i) to (viii), this Court does not find any discrepancy in the said order. Hence, this court directs the first revision petitioner to comply with the order passed in C.A.No.144 of 2011, by way of depositing the entire arrears of monthly rent, upto the month of February 2013, on or before, 30th April 2013 into the credit of Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, failing which, the respondent herein, viz., Divya is at liberty to enter, into the house property situated at Door No.15, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92, and occupy an extent of space measuring 200 Sq. feet either at the first floor or ground floor. Further, if the respondent requires police assistance, she may make representations to nearest police station and avail police assistance for entering into the house. If the respondent herein makes any representations before the concerned police station, the Inspector of Police, law and order, should provide police assistance to ensure her safety. This order has been passed by this Court after invoking its discretionary power, considering the nature of case.
22. If the revision petitioner deposits the said amount before the trial Court, it is open to the respondent to withdraw the same, after filing a Memo, along with a copy of this order. This Court further directs the first revision petitioner herein to pay monthly maintenance as per the first appellate Court's order regularly to the respondent on or before the 5th of every succeeding English calender month, by way of demand draft or deposit of the said amount in the account of respondent or deposit it before the trial Court.
23. In the result, the above appeal is dismissed with the above modified order. Consequently, the judgment passed in C.A.No.144 of 2011, on the file of the I Additional Sessions Judge (i/e) II Additional Court, Chennai, dated 23.02.2012, modifying the order passed in Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, Chennai-15, dated 23.06.2011 is confirmed. Connected miscellaneous petitions are closed. Accordingly ordered.
11 / 03 / 2013
Index : Yes.
Internet : Yes.
r n s
C.S.KARNAN, J.
r n s
To
1. I Additional Sessions Judge,
Chennai.
2. The XVII Metropolitan Magistrate,
Saidapet.
Pre Delivery order made in
Crl.R.C.No.906 of 2012 &
M.P.Nos.1 and 2 of 2012
11 / 03/2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/03/2013
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
Crl.R.C.No.906 of 2012
M.P.Nos.1 and 2 of 2012
1.Dr.K.J.Mathiyalagan
2.M.Girija Devi ... Petitioners
Vs.
Miss.Dhivya ... Respondent
PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to set-aside the order passed in C.A.No.144 of 2011, dated 23.02.2012 on the file of the I Additional Sessions Judge (i/e) II Additional Court, Chennai partly allowed by modifying the order dated 23.06.2011 passed by the XVII Metropolitan Magistrate, Saidapet, Chennai-15 in Crl.M.P.No.1945 of 2010.
For Petitioners : Mr.G.Krishnamoorthy
For Mr.T.S.Selvarani
For Respondent : Mr.R.Sankarasubbu
For Mr.T.K.S.Gandhi
*******
O R D E R
The short facts of the case are as follows:-
The respondent herein / petitioner, viz., Miss.M.Dhivya had filed a complaint, in Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, against the revision petitioners herein and two others, viz., M.Prem Anand and M.Deepak Anand, stating that she is studying in the second year of the Five year law course at Dr.Ambedkar Law College, Chennai and living under the care and custody of her mother, Mrs.Usha Rani, in a rented house. She further stated that her father, Dr.K.J.Mathiazhagan married her mother Usha Rani, as per Hindu Customs and Rites on 21.11.1991 at Tirupathi, in the presence of relatives and friends, and the marriage reception was held at Hotel Palmgrove, Nungambakkam, Chennai. At the time of marriage, her father was a serving doctor as Ortho Surgeon in K.M.C.Hospital, Chennai. Out of wedlock, she was born on 15.08.1992. In the month of June 1993, her mother came to know that her husband had already married another woman, i.e., the second respondent / second revision petitioner herein viz., Mrs. Girija Devi. The same had been suppressed by her father. Her mother had raised the objections regarding suppression of first marriage with the second respondent/second revision petitioner. Then, the father of the respondent herein had convinced her mother and all the family members stating that the past could not be reset and everything would turn out to be alright. The respondent herein further stated that her father had requested her mother not to initiate any legal action, since he is a Government doctor and that his profession would be affected. The respondent / Divya further stated that the revision petitioners herein are her father and her aunt / (periamma in tamil), and that the third and fourth respondents are her blood brothers in the eyes of law and society.
2. The respondent herein / petitioner further stated that her mother, viz., Usha Rani has filed H.M.O.P.No.1314 of 1995 against the first revision petitioner herein for restitution of conjugal rights. At the time of hearing before the Family Court, her father was prepared to settle the issue out of Court and her father agreed to pay a sum of Rs.1,50,000/- to her mother Usha Rani and he promised to extend his co-operation for providing her education and other amenities. Subsequently, her mother filed maintenance case in M.C.No.114 of 2007, on behalf of her minor daughter and suit for declaration in O.S.No.168 of 2007, against the first revision petitioner herein / Dr.Mathiyalagan. At the time of hearing, her father agreed to pay a sum of Rs.4,72,000/- for full and final settlement. This did not materialise due to the unwillingness of the second and fourth respondents to effect such a compromise. The respondent herein / petitioner further stated that her father has a own house bearing door No.15, New No.6, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92, consisting of ground floor and first floor. The house property spreads over an extent of 1 ground 300 Sqft. All the respondents have prevented the respondent from entering into her father's property.
3. The respondent herein / petitioner further stated that her living status is in a pathetic state and that she is unable to continue her studies since she is living as a tenant. Her father also has lot of immovable properties. Therefore, she has sought accommodation for herself in the said house. She further stated that her father also had accepted her as his daughter. She has further stated that her mother Usha Rani was aged 49 years old and that she is unemployed and has no source of income to maintain her. Therefore, she has stated that she is willing to living with her father in her father's place, but her father's first wife and her children had not allowed her to live with her father. Therefore, the petitioner has prayed for a direction to the respondents to provide her accommodation in her father's house under Section 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act.
4. The respondent herein / petitioner further stated that her father is the owner of one big house consisting of two floors, in which, only two persons are residing. Hence, it was submitted that the respondent herein being the daughter of the first revision petitioner is entitled to live with her father in the said house situated at Old No.15, New No.6, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92. The respondent further stated that the learned I Additional Family Court had granted maintenance to her in M.C.No.114 of 2007. Under the circumstances, the revision petitioner herein had created a so-called settlement deed in favour of his son with an intention to deny the respondent of her rights over the property. Her father had also made a complaint against her. The police had also conducted enquiry on the said complaint and advised her father not to take part in any illegal activities against the respondent herein. The other children, being the married sons are living separately and away from their father. Therefore, the respondent has real fear of violence from the revision petitioners herein, if she entered into the shared house property as she fears that she would be threatened. The first petitioner is a serving leading doctor and getting pension. Besides, he is a Consultant doctor at M.R.Hospital, Arumbakkam, S.K.Nursing Home, Vadaplani besides other hospitals in Chennai.
5. The respondent further stated that on many occasions, she made attempts to see her father, but the second revision petitioner herein had obstructed her and prevented her from entering the house. Hence, the respondent herein has prayed for a direction to the first revision petitioner to permit her to live along with him. The revision petitioners had physically and verbally degraded her and insulted her and had also prevented her from entering into the shared house.
6. Before the trial Court, the first revision petitioner herein, Dr.Mathiazagan had entered appearance, but no counter was filed even after giving sufficient opportunities. Finally, the petitioner was examined as P.W.1 and eight documents were marked. Thereafter, the learned Magistrate passed an order granting the relief under Section 17 of the Protection of Women from Domestic Violence Act, 2005 for shared household.
7. Aggrieved by the said order, passed in Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, dated 23.06.2011, the appellants / revision petitioners have filed a Criminal Appeal in C.A.No.144 of 2011, on the file of I Additional Sessions Judge, (i/e. II Additional Court) Chennai.
The learned Judge, after hearing the arguments of the appellants / revision petitioners and the respondent herein, partly allowed the appeal, by modifying the order dated 23.06.2011 passed by the XVII Metropolitan Magistrate, Saidapet, in Crl.M.P.No.1945 of 2010, for alternate accommodation under Section 19 of the Protection of Women from Domestic Violence Act, 2005 instead of the relief of shared household granted under Section 17 of the said Act and directed the appellants / revision petitioners to pay a sum of Rs.15,000/- towards rent to the respondent herein with effect from 23.06.2011.
8. The learned appellate judge observing that when there is serious objection on the side of the revision petitioners for sharing the house, though the respondent herein has the right to share the household, modified the trial Court order, in order to avoid further complications and directed the revision petitioners herein to pay a sum of Rs.15,000/- per month towards rent, in order to facilitate alternate accommodation to the respondent herein.
9. Aggrieved by the said modified order passed in C.A.No.144 of 2011, on the file of I Additional Sessions Judge, Chennai, dated 23.02.2012, the above revision has been filed.
10. The learned counsel for the revision petitioners argued that the respondent cannot claim any relief for sharing the house along with the revision petitioners under the Protection of Women from Domestic Violence Act, 2005, and Rules made thereunder. There is no provision of law to enable the respondent to take shelter with the revision petitioners. The learned appellate judge had granted relief to the respondent against the revision petitioners, which is contravention of Section 17 of Hindu Marriage Act, 1955. The learned counsel has further submitted that the learned appellate judge failed to understand the legal propositions laid down in Section 6(b) of the Hindu Minority and Guardianship Act, 1956. The learned appellate judge ordered accommodation as per Section 19 of Protection of Women from Domestic Violence Act, 2005, which is not relevant in the instant case as even as per the contentions of the respondent, she is an illegitimate child of the first revision petitioner. The learned counsel has further submitted that as per Section 6(b) of the Hindu Minority and Guardianship Act, 1956, the mother is the natural guardian of an illegitimate and unmarried child till her life time and then only can the father be taken as natural guardian. As such, the respondent cannot claim any right to live with the first revision petitioner. The respondent and her mother have no legal right under any provision of the Protection of Women from Domestic Violence Act, 2005, to live with the first revision petitioner. The respondent herself had stated that her mother came to know about the first marriage of the first revision petitioner in the month of June 1993.
11. The learned counsel vehemently argued that the respondent's mother had married one Madhusudhanan, who was employed in Tamil Nadu Water and Drainage Board at the time of birth of the respondent. The respondent never lived with the first revision petitioner at any point of time, but she had lived only with her mother at Door No.154, Gangai Amman Koil Street, Vadapalani, Chennai-96. As per the learned Magistrate's order, the respondent had obtained fruitful order in O.A.No.764 of 2007 in C.S.No.548 of 2007, dated 03.07.2007, passed by this Court to grant shared household to the petitioner / respondent herein. Subsequently, the learned Magistrate had allowed the Crl.M.P.No.1945 of 2010. The learned counsel has further submitted that once this Court granted the said relief to the respondent, the same relief cannot be granted by the learned Magistrate. As such, the prayer in Crl.M.P.No.1945 of 2010 is one and the same. Therefore, res-judicata arises in this case since the same relief had been granted by the learned Magistrate.
12. The learned counsel for the revision petitioners has further submitted that the mother of the respondent, viz., Mrs.Usha Rani has filed H.M.O.P.No.1314 of 1995, against the first revision petitioner herein stating that she had married the respondent's father on 21.11.1991 at Tirumalai Tirupathi Devasthanam as per Hindu Customs and Rites. From the date of marriage, both had lived at the parental home of Mrs.Usha Rani., i.e, mother of the respondent herein. Following the said marriage, a reception was conducted on 02.03.1992 at hotel Palmgrove. Subsequently, the first revision petitioner deserted the mother of the first respondent. Hence, she had filed the H.M.O.P.No.1314 of 1995, for restitution of conjugal rites. Subsequently, she had given an affidavit in her name stating that she is the legally wedded wife of Mr.Madhusudhanan and a female child was born on 15.08.1992 at Saroja Nursing Home, Nungambakkam, Chennai-34, from and out of the wedlock and in continuance of my co-habitation with my late husband. It was submitted that due to some unforeseen circumstances with a view to wreck vengeance against a stranger, by name Dr.K.J.Mathiazhagan, she chose to file a case for restitution of conjugal rites in H.M.O.P.No.1314 of 1995 before the Principal Family Court at Chennai, since she miserably failed in accomplishing her mission to live with him suo-motu for the rest of her entire life since she had developed a deep sense of infatuation and as it was rebuked by the said Dr.K.J.Mathiazhagan, she had went to the extent of alleging him as a father of her child baby Divya in order to evoke the passions thereby to exploit the sentiments of learned judge of the Principal Family Court, with a view to secure some order to reap unlawful and illegal pecuniary benefits for herself and her child, Divya. She further declared that to substantiate her claim relating to the paternity of her child baby, Divya, she had stealthily influenced certain photographs taken out during a family function on 02.03.1992. She had further stated that on the advice of her well wishers, wisdom, had prevailed on her and she had agreed to withdraw the said case , i.e., H.M.O.P.No.1314 of 1995, unconditionally, pending before the Principal Family Court, in order to lead a peaceful life with her child. She had further stated that she would never be instrumental to cause any prejudice to the interests of Dr.K.J.Mathiazhagan or any members of his family and that she would neither claim any relief before the Family Court at Chennai or at any other place in Tamil Nadu or any other state in Union of India and also would not claim any relief for the benefit of her child baby, Divya in future.
13. The learned counsel has further submitted that on 22.06.1984, the mother of the respondent had issued legal notice to her husband, viz., Mr.P.N.Madhusudhanan through her counsel Mr.R.Dhandapani and informed her husband that she is prepared to give her consent for divorce, if her husband so desires. Therefore, the learned counsel would submit that the father of the first respondent was the said Madhusudanan and not the first revision petitioner herein. Therefore, the maintenance case in M.C.No.114 of 2007, on the file of I Additional Family Court, chennai and Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, Chennai are not sustainable under law. Hence, the learned counsel entreats the Court to set-aside the order passed in C.A.No.144 of 2011, modifying the order passed in Crl.M.P.No.1945 of 2010, dated 23.06.2011.
14. The learned counsel for the respondent / Ms.M.Divya has submitted that a maintenance case was filed by the mother of the respondent on behalf of her minor daughter, in M.C.No.114 of 2007, against her father, i.e., first revision petitioner herein on the file of I Additional Family Court and it was proved that she is the daughter of the first revision petitioner herein. As such, the learned judge of Family Court, had granted maintenance in favour of the respondent. The learned counsel has further submitted that the so-called affidavit had been prepared in the name of the mother of the respondent on 20.10.1999 and same was attested by the Notary Public. The contents of the affidavit is only a concocted story and does not reflect the true facts of the case. The mother of the first respondent had clearly stated in her petition in H.M.O.P.No.1314 of 1995, filed before the Family Court, Chennai that she had married the first revision petitioner on 21.11.1991 at Tirumalai Tirupathi Devasthanam as per Hindu Customs and Rites. Subsequently, the marriage reception was conducted on 02.03.1992 at Hotel Palmgrove. Out of wedlock, between the spouses, the respondent was born on 15.08.1992, at 06.54 p.m., at Saroja Nursing Home, Kodambakkam High Road, Chennai. Thereafter, the revision petitioner herein deserted the respondent and her mother in the month of July 1993. Hence, the mother of the respondent had initiated petition for restitution of conjugal rights.
15. The learned counsel has further submitted that the mother of the respondent on behalf of her minor daughter had initiated a maintenance case against the first revision petitioner in M.C.No.114 of 2007, on the file of I Additional Family Court, Chennai. The learned judge, after considering the factual position of the case had granted maintenance, of a sum of Rs.3,000/- to the respondent, payable by the first revision petitioner herein. This order is still in force and has become final. But, the first revision petitioner had a portion of arrears of maintenance amount and as on date a sum of Rs.1,15,000/- is in arrears.
The maintenance order is a judicial order and is operating against the first revision petitioner, who is the father of the respondent.
The learned counsel has further submitted that as per Hindu Succession Act, as per Hindu Partition Act, as per Guardians and Wards Act, and as per Hindu Marriage Act, the illegitimate child is empowered to receive all rights as a legitimate child would receive.
In this case, it is an admitted fact that the first revision petitioner had married the mother of the respondent at Tirumalai Tirupathi Devastanam on 21.11.1991 and the marriage reception was conducted on 02.03.1992.
As such, out of wedlock, the respondent was born on 15.08.1992. Therefore, the question of illegitimate child or legitimate child does not arise in the said case.
The option to live either with the first revision petitioner, i.e., the father of the respondent or with Usharani, the mother of the respondent or to live separately as she is a major, vests entirely with the respondent herein. Therefore, the first revision petitioner's suggestion that the respondent should lead her life with her mother, Usha Rani until her lifetime is not acceptable and not maintainable under any law.
The learned counsel has further submitted that the respondent is a budding lawyer studying at Law College and she has to maintain her status as a budding lawyer and also maintain her social status considering that her father is a leading Ortho Specialist. Now, her natural father is residing at Door No.15, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92. This property spreads over an extent of one ground 300 sq.ft. Over the said property, a pucca building has been constructed by the first revision petitioner herein and the building consists of ground floor and first floor. Therefore, sufficient vacant portions are available at the said house. In the said house, both the revision petitioners herein are living. Both of them are aged persons, and if the respondent is accommodated in the shared house, it would provide extra safety to the revision petitioners herein.
16. The learned counsel has further submitted that due to difference of opinion between the first revision petitioner and the mother of the respondent, she has been put into hardship and unable to continue her studies. The respondent is entitled to occupy the shared house as per order passed by this Court in O.A.No.764 of 2007 in C.S.No.548 of 2007, dated 03.07.2007. The same was affirmed by the learned XVII Metropolitan Magistrate, Saidapet in Crl.M.P.No.1945 of 2010, in his order dated 23.06.2011. Subsequently, the same has been modified by the learned I Additional Sessions Judge, in her order passed in C.A.No.144 of 2011, dated 23.02.2012, modifying the trial Court order, by directing the revision petitioners to pay a sum of Rs.15,000/- per month towards rent to the respondent with effect from 23.06.2011. The learned judge had assigned the reason that alternate accommodation should be given as per Section 19 of Protection of Women from Domestic Violence Act, 2005, instead of the relief of the shared house hold granted under Section 17 of the said Act, and as such, the above order has been passed, which is sustainable under law.
17. The learned counsel has further submitted that as per the order of the first appellate Court, the revision petitioner is liable to pay a sum of Rs.3,25,000/- being arrears of rent upto July 2012. The respondent, being a student, and a non-earning member is struggling to make both ends meet in leading her life, since the first revision petitioner had failed to provide adequate monthly payment as ordered by this Court. The learned counsel for the respondent, supporting her case had filed the counter statement which reveals that the first revision petitioner is an Ortho doctor who comes to Court daily on his professional works and adduces evidence in almost all the Courts as a routine and that he would be in Court from 10.30 a.m., to 2 p.m., everyday. Hence, he has all possible ways to meet his counsel even during the statutory appeal period and also during additional delay period and therefore, the reasons for delay stated in filing the present petition against the order dated 23.02.2012, with a delay of 16 days is not sustainable under law. It was submitted that in order to get himself relieved from the cases against him, the first revision petitioner had acted to have love towards her and had got her a Scooty for her to go to college, everyday. It was submitted that during settlement talks, she had met with a road accident and sustained a foot injury and that the first revision petitioner took her to Aysha Hospital for first aid and thereafter, visited her home and spent much time with her and had also given treatment for the injury for 15 days, since he was an ortho doctor. It was submitted that she had requested him to continue his payment of maintenance as per oder passed in M.C.No.114 of 2007, irrespective of settlement. Since the settlement decided to be arrived at between her and the first revision petitioner, did not reach an amicable level, and as he found that she will not be coming to his terms, he filed Crl.M.P.No.3277 of 2012 before the learned V Metropolitan Magistrate, seeking permission to go abroad even during pendency of the case. She further stated that she filed an intervenor petition and objected for the same on the ground that the first revision petitioner did not pay the maintenance as well as the monthly amount in lieu of shared house as per orders of the Court and she demanded the same. Agreeing to her reasonable objection, the said Court had passed an order directing the first revision petitioner to deposit Rs.1,50,000/- in her favour, but instead of complying with the said condition, the petitioners have come up with the above revision case.
18. Per contra, the learned counsel for the revision petitioners has submitted that the Protection of Women from Domestic Violence Act will not be applicable in the instant case, since the respondent herein or her mother never lived along with the first revision petitioner at Door No.15, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92. Further, there is no quarrel among them or any violence among them. Therefore, the present case will not be covered under the Domestic Violence Act. On the same cause of action, the respondent had initiated a maintenance case, on behalf of her minor daughter in M.C.No.114 of 2007 against the first revision petitioner. The mother of the respondent had also filed H.M.O.P.No.1314 of 1995 for restitution of conjugal rights. Therefore, the Crl.M.P.No.1945 of 2010 filed before the XVII Metropolitan Magistrate is not sustainable under law since there is no cause of action.
19. On the above discussions, this Court considers that in the language of Section 17, and 19 (F) of the Protection of Women from Domestic Violence Act, 2005, it is seen that
"17. Right to reside in a shared house hold-
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
19. Residence Orders.-
(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances require."
20. On considering the factual matrix of the case, this Court is of the view that:-
(i) The mother of the respondent herein has filed the maintenance case on behalf of her minor daughter in M.C.No.114 of 2007, on the file of Additional Family Court, Chennai and claimed maintenance against the first revision petitioner herein / father of the respondent. The learned family Court judge, directed the first revision petitioner to pay the monthly maintenance of a sum of Rs.3,000/- to the respondent with effect from February 2007 and this order was passed on 22.12.2008. Against this order, no appeal or revision has been preferred by the first revision petitioner herein and as such, this order has become final, thereby confirming the relationship between the first revision petitioner and the respondent as the biological father and daughter.
(ii) The mother of the respondent had filed H.M.O.P.No.1314 of 1995, against the first revision petitioner for restitution of conjugal rights and she had narrated that her marriage with the first revision petitioner was solemnized at Tirumalai Tirupathi Devasthanam, between the spouses and that following the marriage celebrations, reception was conducted on 02.03.1992 at Hotel Palmgrove. She had further stated that out of wedlock, the first respondent was born on 15.08.1992, at 06.54 p.m., at Saroja Nursing Home, Kodambakkam High Road, Chennai-34. It is seen that all the three places mentioned for showing the nexus of the relationship of the first revision petitioner and the respondent, as mentioned by the mother of the respondent, are public places. This was not denied by the first revision petitioner before the trial Court as well as the first appellate Court and this Court too.
(iii) The revision petitioner has filed a copy of affidavit which had been signed by the mother of the respondent stating that she has filed a false case in H.M.O.P.No.1314 of 1995. This affidavit has been shown in front of Notary Public and had not been marked a document before any Court. Therefore, these contentions made by the mother of the respondent cannot be taken as a true factor to decide the case as against the respondent.
(iv) This Court granted interim relief in original application filed by the respondent in O.A.No.764 of 2007 in C.S.No.548 of 2007, dated 03.07.2007, on the file of High Court, permitting her to share the house of the first revision petitioner. This judicial order has not been challenged by the first revision petitioner herein. Therefore, the relationship between the father and his biological daughter has not been contradicted. This aspect has been considered by the learned XVII Metropolitan Magistrate, Chennai, who had followed Section 19 of Protection of Women from Domestic Violence Act and granted relief to the first respondent herein.
(v) Against the said order, the first revision petitioner had filed the appeal in C.A.No.144 of 2011, and challenged the trial Court's order. The learned appellate judge, on considering that the first revision petitioner is already living in the said house, along with his first wife and children, directed the first revision petitioner to pay monthly rent of a sum of Rs.15,000/- in lieu of shared household to the respondent. This Court is of the view that the quantum of monthly rent awarded by the first appellate Court is reasonable since the respondent is a budding lawyer and the first revision petitioner is also a leading serving ortho specialist doctor and considering social status of both of them and further observing that the respondent is living in the Metro City of Chennai.
(vi) As per law, the illegitimate child is empowered all the rights to enjoy equal status in life as a legitimate child enjoys and as such, this Court views that the term 'illegitimate' child should not be raised to address the innocent respondent, who through no fault of hers had been brought into this world. This Court strongly feels that the term 'illegitimate' child should not be used as it would deeply impact on the mind of the respondent and cast a stigma on her status in society, thereby, impeding her future prospects in life.
(vii) The result of the birth of a new-born child should not be distinguished as legitimate or illegitimate since the innocent baby was indeed born to two adult consenting partners. If the male of the species denies the knowledge of being involved in the parenting of such a child then he should be firmly warned that he will be subjected to DNA testing, the most reliable scientific testing to determine parenthood and if proven beyond doubt, then he would receive the maximum penalty. We should all understand that in the eyes of God, human life is most valuable, hence, nothing should be done to distort the image and the future of a new born innocent child brought into this world through a lewd and demeaning pair of consenting human beings. Could a brief moment of such sexual pleasure by two consenting partners besmirch and destroy the birth right of an innocent child?.
(viii) This Court is of the further view that the respondent is now a major. Therefore, as per her desire she can opt to live either with the first revision petitioner or with her mother or she can live separately and hence, the revision petitioners contention that the respondent should live only with her mother till her lifetime is unacceptable.
21. On considering the arguments advanced by the learned counsels on either side and on perusing the impugned judgment passed in C.A.No.144 of 2011, on the file of I Additional Sessions Court, dated 23.02.2012, and this Court's view listed above as (i) to (viii), this Court does not find any discrepancy in the said order. Hence, this court directs the first revision petitioner to comply with the order passed in C.A.No.144 of 2011, by way of depositing the entire arrears of monthly rent, upto the month of February 2013, on or before, 30th April 2013 into the credit of Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, failing which, the respondent herein, viz., Divya is at liberty to enter, into the house property situated at Door No.15, Vaigai Street, Chinmaya Nagar, Stage-II, Virugambakkam, Chennai-92, and occupy an extent of space measuring 200 Sq. feet either at the first floor or ground floor. Further, if the respondent requires police assistance, she may make representations to nearest police station and avail police assistance for entering into the house. If the respondent herein makes any representations before the concerned police station, the Inspector of Police, law and order, should provide police assistance to ensure her safety. This order has been passed by this Court after invoking its discretionary power, considering the nature of case.
22. If the revision petitioner deposits the said amount before the trial Court, it is open to the respondent to withdraw the same, after filing a Memo, along with a copy of this order. This Court further directs the first revision petitioner herein to pay monthly maintenance as per the first appellate Court's order regularly to the respondent on or before the 5th of every succeeding English calender month, by way of demand draft or deposit of the said amount in the account of respondent or deposit it before the trial Court.
23. In the result, the above appeal is dismissed with the above modified order. Consequently, the judgment passed in C.A.No.144 of 2011, on the file of the I Additional Sessions Judge (i/e) II Additional Court, Chennai, dated 23.02.2012, modifying the order passed in Crl.M.P.No.1945 of 2010, on the file of XVII Metropolitan Magistrate, Saidapet, Chennai-15, dated 23.06.2011 is confirmed. Connected miscellaneous petitions are closed. Accordingly ordered.
11 / 03 / 2013
Index : Yes.
Internet : Yes.
r n s
C.S.KARNAN, J.
r n s
To
1. I Additional Sessions Judge,
Chennai.
2. The XVII Metropolitan Magistrate,
Saidapet.
Pre Delivery order made in
Crl.R.C.No.906 of 2012 &
M.P.Nos.1 and 2 of 2012
11 / 03/2013
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.