Natchathiram vs Vanitha, S. Muthuramalingam and S. Krishnan

The Honourable Mr. Justice S. Palanivelu

This Criminal Revision is preferred to call for the records in Criminal Appeal No. 62 of 2010, on the file of the learned Fast Track Court No. II,

Madurai, confirming the order passed in CMP. No. 246 of 2009 on the file of the learned Judicial Magistrate No. II, Madurai and set aside the

same and pass appropriate orders.

The Petitioner is the husband of the first Respondent. The second and the third Respondents are the brothers of the Petitioner. The first

Respondent filed an application before the learned Judicial Magistrate No. VI, Madurai, u/s 12 of the Protection of Women from Domestic

Violence Act,2005. (for short ''the Act''). The Petitioner filed a counter before the Court below stating that the learned Judicial Magistrate No. VI

was not having jurisdiction to try the matter and hence, the said Magistrate suo motu transferred the case to the learned Judicial Magistrate No. II,

Madurai. After several adjournments, an order was passed on 21.06.2010, directing the Petitioner to pay Rs. 5,000/- per month as interim

maintenance to the first Respondent herein. The said order was challenged by the Petitioner before the learned Additional District Judge, Madurai,

in Criminal Appeal No. 62 of 2010. But, the said appeal was dismissed on 05.05.2011 confirming the order of the Court below. Hence, this

revision.

The Learned Counsel for the Petitioner would submit that the order of the learned Judicial Magistrate would clearly show that the Petitioner was

not heard before passing the afore-said orders, that the first Respondent has wilfully suppressed the grant of interim maintenance by the Family

Court, Madurai, in H.M.O.P. No. 615 of 2008 in her favour, that without perusing any documents, the concerned learned Judicial Magistrate has

passed the order of interim maintenance and the same has been wrongfully confirmed by the appellate Court.

The Learned Counsel for the Respondents Mr. S.M.A. Jinnah would submit that the learned Judicial Magistrate is empowered u/s 20 of the Act

to pass interim orders as and when necessary, that only after affording ample opportunities to both sides the order was passed by the said Judicial

Magistrate and that there is no necessity to disturb the findings of the Court below.

When B-Diary extract maintained by the learned Judicial Magistrate No. II, Madurai, is perused, on the consecutive hearings, there is no

mention about the hearing of arguments of Advocates on both sides. On 21.06.2010, it is stated that the Petitioner and the Respondents were

present and the interim order was pronounced. The order of the learned Judicial Magistrate would show that the arguments of advocates were not

heard, but the request of the first Respondent herein was considered and the order was passed.

In the considered view of this Court, when both parties are represented by the respective Counsel, the Court below should have afforded ample

opportunities to both sides to put forth their contentions through their Counsel, but, it is not done so.

The next contention of the Petitioner is that as per Section 26(3) of the Act what are all the orders granted by other Court in favour of the

aggrieved person, should have been produced before the concerned learned Judicial Magistrate in the proceedings taken under the Protection of

Women from Domestic Violence Act, 2005 and in this case, the said provision has been violated; that the order of the learned Judicial Magistrate

does not show that the Respondents produced the earlier order of the Family Court below granting interim maintenance in her favour and

therefore, the order challenged is vitiated in this regard. For better appreciation of the case, Section 26(3) of the said Act is extracted below:

Relief in other suits and legal proceedings:

...

(3)In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to

inform the Magistrate of the grant of such relief.

In view of the said provision, the first Respondent is legally bound to inform the concerned learned Judicial Magistrate as to the relief of interim

maintenance granted in I.A. No. 153 of 2009 in H.M.O.P. No. 615 of 2008 by the Family Court, Madurai. It is seen that the said order was in

existence at the time of passing the order by the learned Judicial Magistrate. In the aforesaid circumstances, the order of the learned Judicial

Magistrate suffers from illegality.

On the basis of the report given by the Protection Officer, the learned Judicial Magistrate has fixed the salary of the Petitioner at Rs. 20,000/- ,

per month, since he is working as police constable in police department. But, it is the bounden duty of the Court below to peruse the salary

certificate of the Petitioner before fixing at the above-said amount.

In view of the above said circumstances, the orders challenged before this Court suffer from infirmities and they have to be set aside and

accordingly, they are set aside.

In the result, the criminal revision case is allowed with following directions setting aside the orders passed by the Courts below and the matter

is remitted back to the learned Judicial Magistrate No. II, Madurai, for fresh determination on the point of fixing quantum of maintenance after

affording ample opportunities to both parties.

It is brought to the knowledge of the Court that as per the conditional order of this Court passed in the stay petition, dated 29.06.2011, the

Petitioner has not deposited Rs. 15,000/- . On 22.10.2010, the Family Court, Madurai, had fixed Rs. 3,000/- to each of the Petitioners as interim

maintenance in I.A. No. 153 of 2009 in H.M.O.P. No. 615 of 2008, till the disposal of the petition before the jurisdictional Magistrate. As per the

order of the Court below, the Petitioner shall pay tentatively a sum of Rs. 3,000/- to the first Respondent per month till the actual maintenance

ordered by the Court below.

In view of the above, at present, the Petitioner is directed to pay a total sum of Rs. 40,000/- (Rupees Forty Thousand Only) to the first

Respondent, out of which, a sum of Rs. 15,000/- shall be paid within a period of two weeks from the date of receipt of a copy of this order and a

sum of Rs. 25,000/- shall be paid within six weeks thereafter. On making the said deposit, the first Respondent shall withdraw the said amount.

Besides, the Petitioner shall continue to pay a sum of Rs. 3,000/- per month on or before 05th of every month without any default, till the fixation

of maintenance orders passed by the concerned learned Judicial Magistrate as maintenance. Interim order for maintenance shall be passed by the

Court below preferably within a period of fifteen days from the date of receipt of a copy of this order and the main case shall be disposed of within

40 days thereafter. Consequently, the connected miscellaneous petition is closed. No costs.