IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3791 of 2009()
1. ANANDAN K., S/O.KARUTHAKUNJU,
... Petitioner
Vs
1. SARADA, W/O.ANANDAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.A.K.ALEX
For Respondent :SRI.K.HARILAL
The Hon'ble MR. Justice V.K.MOHANAN
Dated :31/08/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.3791 of 2009
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Dated this the 31st day of August, 2010.
O R D E R
This revision petition is preferred by the respondent, who is
the husband of the aggrieved person in a petition filed u/s.23 of
the Protection of Women from Domestic Violence Act, 2005. As
he is aggrieved by the order dated 3.2.2009 of the learned
Magistrate, awarding the interim order of maintenance to the
aggrieved person @ Rs.4,000/- per month, though an appeal was
filed, the appellate court confirmed the order of the learned
Magistrate and hence this revision petition.
2. From the impugned orders, it appears that the marriage
between the revision petitioner as well as the respondent,
hereinafter for convenience referred only as `husband’ and `wife’
respectively, was taken place during the year 1984.
Subsequently, the relationship became worse and finally the wife
preferred M.C.No.7/09 u/s.23 of the Protection of Women from
Domestic Violence Act, 2005, on various grounds, before the
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Court of Judicial First Class Magistrate-Kayamkulam. During the
pendancy of the above proceedings, the wife preferred
Crl.M.P.No.2479/08, claiming interim maintenance u/s.23 of the
above Act. Challenging the claim in the above Crl.M.P., the
revision petitioner/husband raised objection also. After having
regard to the facts and circumstances involved in the case and
the rival contentions, the learned Magistrate disposed of the
above Interlocutory Application, directing the revision petitioner to
pay Rs.4,000/- per month to the wife as interim maintenance and
also ordered that the payment shall be made before, the 10th of
every month, starting from February 2009 onwards, failure of
which will be met with Sec.125(3) of Cr.P.C. Beside the above,
the revision petitioner was restrained from evicting the petitioner
forcefully from his residence, and from committing any act which
may disturb her peaceful residents there, and from causing hurt
to her.
3. Aggrieved by the above order, the revision petitioner
herein preferred an appeal as Crl.A.No.73/09 and by judgment
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dated 26.8.2009, the Court of Addl. Sessions Judge-I,
Mavelikkara, dismissed the appeal confirming the order of the
trial court. It is the above orders of the trial court as well as the
lower appellate court challenged in this revision petition.
4. I have heard Adv.Sri.A.K.Alex, the learned counsel
appearing for the revision petitioner/husband as well as
Adv.Sri.K.Harilal, the learned counsel appearing for the 1st
respondent/wife.
5. The learned counsel for the revision petitioner
vehemently submitted that, the courts below miserably failed to
consider the objection raised by the revision petitioner that he
assigned 20 cents of property to the 1st respondent/the wife and
she can derive an income of Rs.3,000/- from that property and
therefore the petition seeking interim relief was filed with a view to
harass the revision petitioner. Thus according to the learned
counsel, the courts below, without considering the objection
raised by the revision petitioner and without proper application of
mind, passed an order directing the revision petitioner to pay a
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sum of Rs.4,000/- as monthly maintenance allowance.
6. On the other hand, the learned counsel appearing for the
respondent submitted that the revision petition itself is not
maintainable, as the orders impugned arising out of an
interlocutory application and the revision petitioner can raise all
his contention at the time of final disposal of the main petition,
pending before the trial court.
7. I have carefully considered the contentions raised by the
respective counsels and also perused the orders of the courts
below and other materials available on record. It is a fact that the
main petition filed u/s.23 of the Protection of Women from
Domestic Violence Act, 2005, is still pending for consideration in
the trial court. It is also beyond dispute that the learned
Magistrate issued the impugned order on the basis of an affidavit
filed by the wife – the aggrieved person and also after
consideration of the objection filed by the revision petitioner-the
husband. Admittedly no evidence is taken. It is also a fact
beyond dispute that, the 1st respondent herein who is the
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aggrieved party before the trial court is the wife of the revision
petitioner and their marital relationship still continue as such,
even though there is a difference of opinion among them. The
learned Magistrate after having satisfied with the grievance put
forwarded by the wife, came into a conclusion, as evident from
the impugned order of the learned Magistrate contained in page
2, which reads as follows:- “The petitioner has included her son
also as the 2nd petitioner and is claiming maintenance for him
also. But as per law, the son, though he is still a student of
the age 22 years, cannot claim maintenance. But as the
affidavit filed by the petitioner, primafacie discloses acts of
Domestic Violence by the counter-petitioner it is urgent and
necessary that an interim order be passed in this case.”
According to the learned Magistrate, it was inevitable and
expedient to pass an interim order. The learned Magistrate came
into a conclusion after having referred to the facts and
circumstances involved in the case, and while exercising the
revisional jurisdiction, this court is not expected to interfere with
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such a satisfaction arrived on by the trial court.
8. The main contention advanced by the learned counsel
for the revision petitioner is that the court has not considered the
objection filed by the revision petitioner, wherein it is stated that
the wife is given 20 cents of property. Even if it is admitted as
true, that the wife has got 20 cents of property, there is no
evidence to show that the said property is an income generating
one so that the wife can depend upon the income from such
property for her maintenance. In the absence of any materials or
evidence to that effect, it can not be said that the order of the
learned Magistrate is illegal, incorrect or improper. Therefore I
find no reason to interfere with the order of the appellate court as
well.
9. However as indicated earlier, the main proceedings are
pending before the trial court and it is for the contesting parties to
approach the trial court for an earlier disposal of the matter after
adducing evidence. It is upto the revision petitioner to adduce
evidence to show that the 1st respondent-wife has got sufficient
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evidence to maintain herself, without depending the revision
petitioner and the respondent is also free to adduce contra-
evidence to substantiate her contention also.
In the result, this revision petition is disposed of relegating
the revision petitioner as well as the 1st respondent to approach
the trial court for an earlier disposal of the main matter pending
before it, in accordance with the procedure and law.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/