Monday, May 27, 2013

DV at VERY small town in TN: Rs. 10000 p.m. maint! hubby unable 2 pay, so arrest warrant on hubby, hubby runs 2 HC, HC turns away hubby citing procedure

Notes
  • Judicial Magistrate of a very small town called Aranthangi in Tamil Nadu issues a order of Rs 10,000/- maintenance p.m. against a husband !
  • This is a VERY small town in Tamil Nadu and it is hard to see IF people even earn 10,000 p.m. in such places !!
  • The wife and kid also gets residence order !
  • The husband goes on appeal to the court of Learned Principal District and Sessions Judge, Pudukottai another middle sized town nearby
  • No orders are passed on appeal (probably the courts are overloaded there too !!)
  • With the passage of time there is a HUGE arrears of Rs.170,000 against the husband !
  • Obviously the hubby is unable to pay the same
  • On the next date, the husband is shown as NOT having paid maintenance and NOT appeared before the Judicial Magistrate court, so the J. magistrate goes on to issue a warrant on the husband !!
  • So the hubby runs to the High court at chennai to set aside the exparte maintenance decree and the clock ticking on !!
  • the HC dismisses his application and sends him away saying he has to file an appeal (which he has already done) !!!
  • I do NOT understand what is happening to hapless husbands in this country !!! They do NOT get a stay, nor do they get relief from the HC, precious time and effort and a lot of lawyer's fee and money is lost ....just because of a simple sin ...THEY ARE MARRIED !!!





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.