IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2876 of 2007()
1. AKHILA, W/O.ANIL KUMAR,
... Petitioner
Vs
1. ANIL KUMAR K.R., S/O.K.G.RAMASWAMY,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.K.A.SALIL NARAYANAN
For Respondent :SRI.M.P.ASHOK KUMAR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/08/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.Nos.2876 & 3497 of 2007
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Dated this the 30th day of August, 2010.
O R D E R
As these two revision petitions are intrinsically
interconnected and the parties are one and the same, these
revision petitions are heard together and being disposed by this
common order.
2. In both these revision petitions, the challenge is against
the order dated 26.7.2007 in Crl.A.No.125/07 of the Sessions
Judge, Wayanad, Kalpetta. Crl.R.P.No.2876/07 is filed at the
instance of the wife, who is the aggrieved person and who
preferred M.C.No.21/07 before the Judicial First Class Magistrate
Court-I, Sulthan Bathery u/s.23 of the Domestic Violence Act,
2005. Crl.R.P.No.3497/07 is preferred by the husband,
challenging the order of the appellate court, since he is aggrieved
by the said order, as he was not fully relieved of the liability fixed
by the learned Magistrate to pay the future maintenance.
3. The revision petitioner in Crl.R.P.No.2876/07 is the wife
Crl. R.P.Nos.2876 & 3497 of 2007
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and the revision petitioner in Crl.R.P.No.3497/07 is the husband
and herein after for convenience reference will be made as `wife’
and `husband’ only. It is beyond dispute that, their marriage was
solemnised on 18.5.2003 in accordance with their religious
customs and rites. It is also a fact that the marital relationship
between the husband and wife became strain and as a result of
that, the wife approached the JFCM-I, Sulthan Bathery, by filing a
petition u/s.19, 20 and 23 of Protection of Women from Domestic
Violence Act, 2005, wherein the husband is the sole respondent,
which is taken on file as M.C.No.21/07. During the pendancy of
the above matter, the wife filed an application u/s.23 of Protection
of Women from Domestic Violence Act, 2005, claiming
maintenance @ Rs.40,000/-. After hearing both the parties and
on perusal of the affidavit filed by the petitioner, the learned
Magistrate issued an order dated 10.5.2007, holding that the
petitioner therein is entitled to get an interim maintenance @
Rs.5,000/- per month and accordingly, considering the fact that
the respondent/husband is likely to leave abroad, the learned
Magistrate directed the respondent to pay a sum of Rs.1,20,000/-
Crl. R.P.Nos.2876 & 3497 of 2007
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(24 months x Rs.5,000/-) to the petitioner within one week u/s.23
of the Protection of Women from Domestic Violence Act, 2005.
4. Challenging the above order, the husband preferred
Crl.A.No.125/07 before the Sessions Court, Wayanad, and by an
order dated 26.7.07, the learned Sessions Judge allowed the
appeal only in part and accordingly the order of JFCM Court in
M.C.No.21/07 is modified and the interim maintenance amount is
reduced to Rs.3,000/- per month. In the appellate court order,
the learned Sessions judge made it clear that, it shall be open to
both the parties to adduce appropriate evidence before the
learned Magistrate and the Magistrate was directed to dispose of
the petition, expeditiously on merits and in accordance with law
and as provided under Sections 12(4) and 12(5) of the Act.
5. As indicated earlier, dissatisfied with the order of the
appellate court, the husband preferred Crl.R.P.No.3497/07 and
against the interference, with the order of the learned Magistrate,
the wife preferred Crl.R.P.No.2876/07.
6. Heard Mr.Salil Narayanan K.A., the learned counsel
appearing for the revision petitioner in Crl.R.P.No.2876/07 and
Crl. R.P.Nos.2876 & 3497 of 2007
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Mr.M.P.Ashok Kumar, the learned counsel appearing for the
revision petitioner in Crl.R.P.No.3497/07, who are also appearing
for the opponents in the respective revision petitions.
7. Mr.Salil Narayanan K.A., the learned counsel appearing
for the wife submitted that, the order of the appellate court is
liable to set aside, since without assigning any valid reasons, the
interim order, issued by the learned Magistrate in favour of the
aggrieved person is interfered by the appellate court and the
future maintenance amount was reduced to Rs.3,000/- per
month, unsupported by any evidence or materials. On the other
hand, Mr.M.P.Ashok Kumar, the learned counsel for the husband
submitted that the learned Magistrate issued the impugned order
without considering the affidavit filed by the husband/respondent
and the lower appellate court miserably failed to consider the fact
that the husband has lost his job and also inadverting to the fact
that the wife has got an employment and therefore both the
orders are liable to be set aside.
8. I have carefully considered the arguments advanced by
both the counsels and also perused the materials available on
Crl. R.P.Nos.2876 & 3497 of 2007
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record. Several legal and factual contentions are advanced by
both the counsels but in view of the order which I proposed to
pass, I am not inclined to consider the merits or demerits of the
above arguments.
9. As rightly observed by the appellate court, while passing
the order by the learned Magistrate, the learned Magistrate failed
to consider the contentions raised by the husband, which he
advanced through the counter affidavit. However, even in the
absence of any evidence and other materials, the lower appellate
court interfered with the order of the trial court and reduced the
maintenance amount to @ Rs.3,000/- per month. Though the
husband, by filing an additional affidavit, stated that he had lost
his job and now he is with the unemployment benefit given by the
Govt. of Canada, no details are given. It is also the contention of
the learned counsel for the husband that, the husband
approached the Family Court and filed a divorce petition and the
same was allowed, against which an appeal has been filed and
the same is pending for consideration of this court.
10. However, even in the event of confirming the divorce in
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appeal, the divorced wife is entitled to get maintenance. It is also
relevant to note that though an order was passed by the learned
Magistrate as early as on 10.5.2007, no substantial amount is
seen paid towards the total amount ordered by the trial court.
Even though there was a direction issued by the appellate court,
directing the learned Magistrate to dispose of the matter pending
before it, the same has not disposed so far because of the stay
order in this matter. No amount is paid to the wife, except
penalty of a sum of Rs.30,000/- deposited by the husband.
11. In the light of the facts and circumstances referred
above, I am of the view that these revision petitions can be
disposed of directing the husband/revision petitioner to pay the
entire arrears of maintenance @ Rs.3,000/- per month from the
date of the order ie., 10.5.2007 till 10.5.2010 and the husband
need to deposit only the balance amount, after deducting a sum
of Rs.30,000/-, which already deposited by the husband. From
the entire balance amount to be paid, 50% of the arrears shall be
deposited, within 1 month from today and the remaining 50%
amount shall be deposited within one month, from the date of
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the deposit of the Ist instalment and the wife is entitled to
withdraw the entire amount on depositing the same. The parties
are directed to appear in the trial court on 4.10.2010, either in
person or through their counsels, on which date the learned
Magistrate is directed to take up the case and proceed with the
same in accordance with procedure and law and dispose the
entire matter pending before it, within a reasonable time as
expeditiously as possible. It is also made clear that if the
proceedings are prolonged, the learned Magistrate is free to pass
fresh appropriate orders regarding the interim measures,
including interim maintenance based upon available materials or
evidence.
V.K.MOHANAN,
Judge.
ami/