IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
25. / 06 /2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.726 of 2011 & M.P.No.1 of 2011 P.N.Elumalai ... Petitioner Vs. E.Soundaravalli ... Respondent PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to set-aside the order and judgment dated 23.02.2011 made in C.A.No.161 of 2010, on the file of the Additional Sessions Judge, Fast Track Court No.V, Chennai, confirming the conviction and sentence imposed in the judgment dated 24.08.2010 on the file of II Metropolitan Magistrate, Egmore, Chennai made in C.C.No.4628 of 2009 convicting the petitioner u/s.18, 19(1)(2)(3)(4), 20(a), 20(b) and 22 of the Protection of Women and Domestic Violence Act, 2005 and call for the records and acquit the petitioner from all the charges. For Petitioner : Dr.A.E.Chelliah For M/s.Arulselvam Associates For Respondent : Mr.A.Kumaraguru ******* ORDER
The brief history of the case are as follows:- The respondent herein / complainant / wife has filed a case in C.C.No.4628 of 2009, on the file of II Metropolitan Magistrate, Egmore, Chennai-8, against the revision petitioner / husband under Section 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, stating that her husband had treated her cruelly and physically tortured her. Hence, she has claimed Rs.1,00,000/- for medical expenses and Rs.5,00,000/- towards compensation and Rs.10,00,000/- for loss of income and Rs.15,000/- towards monthly maintenance to her.
2. The husband has filed a counter stating that O.P.No.3539 of 2009, was filed by the complainant/wife and it is pending. Further, he had undergone heart surgery one year ago and is also continuing to take medical treatment. From the date of marriage, no complaint has been made by his wife against him. In order to grab money, the said complaint has been filed by her. The complainant/wife is running a beauty parlour and earning sufficient income. The respondent/husband further stated that he had availed bank loan for constructing the house and he did not demand any dowry or caused sexual harassment against the complainant.
3. On considering the averments of both parties, the learned Magistrate had framed an issue, viz. ".Whether the husband had harassed the wife mentally and physically as per Section 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005?.".
4. P.W.1 had adduced evidence that she worked as a beautician and also worked in transcription training centre run by her husband. She further stated that at the time of her marriage in the year 1988, her husband was aged 29 years and she was aged 16 years. No children were born to them through wedlock. She was made to undergo 'D' and 'C' operation but actually her husband was impotent and she came to know about this after two years of marriage. Subsequently, her husband had started treating her cruelly, both mentally and physically by using abusive words and beating her with equipments and also started doubting her character. He also removed her clothes in public and did not permit anyone to come to the house. Further, her husband removed the brake wire of her two wheeler and tried to kill her. Further, her husband's nephew attempted to set her ablaze by pouring kerosene on her and throwing the matchstick after lighting it up. She further stated that she is surviving through her parents income. Further, she stated that her husband demanded a dowry of Rs.1,00,000/- but she was unable to meet the demand. Her husband and associates threatened to murder her.
5. She further stated that in the year 1993, her husband had smashed her jaw with his fist and as a result 4 of her teeth in her upper jaw had been broken. After two years, her husband had again smashed his fist in her lower jaw due to which, two of her teeth had been broken. Now, artificial teeth had been fixed on 21.11.2008. Further, she was beaten by her husband all over her body, viz., neck, eye, nose and she was kept in a dark room under lock and key. She had received loan of a sum of Rs.10,00,000/- from Dena bank and started beauty parlour at Purusaiwalkam and another at Aynavaram. The income derived through the beauty parlour was taken by her husband. She further stated that at the matrimonial house, she is living in the front portion and her husband is living on the back portion of the house. One portion of the house was let out to travels and the drivers used to knock at the window and would abuse her and it was done by the drivers on the instigation of her husband.
6. In order to support her evidence, she had marked 14 documents, viz., marriage invitation, marriage photo, family card, undertaking letter given by her husband, complaint lodged before the W-6 Police Station, dated 26.03.2009, medical bill (series), Jewels mortgage receipts, bank loan sanction order, another bank loan sanction order, loan documents showing that her father had paid Rs.1,00,000/- as loan; release deed executed by her three sisters in-law in favour of her husband. On the side of the husband, no one was examined and no document was marked.
7. After considering the evidence of the complainant/wife and perusing of documents marked by her, the learned Magistrate had observed that the wife had started her own business and maintained the family and that her husband had not contributed any amount to run the family. Further, the learned Magistrate had come to the conclusion that the complainant/wife had proved the case beyond doubt and directed her husband to pay a sum of Rs.10,000/- towards monthly maintenance and further directed the husband to pay a sum of Rs.1,25,000/- to the complainant/wife as compensation towards medical expenses and Rs.5,00,000/- as compensation for loss of earning and Rs.1,00,000/- as compensation towards mental agony and physical disability. Further, the learned Magistrate, by his order passed in C.C.No.4628 of 2009, dated 24.08.2010, directed the husband to pay the total amount of Rs.7,25,000/- within three months to his wife.
8. Against the said order, the husband has filed the appeal in C.A.No.161 of 2010, on the file of the Additional Sessions Judge, Fast Track Court No.V, Chennai. After hearing the arguments of the learned counsels on both sides and on perusing the trial court's order, the learned judge dismissed the said appeal and confirmed the order of the trial Court. The learned judge observed that both were divorcees and that the divorce has been granted on the ground of torture.
9. Against the said dismissal order, the revision has been filed.
10. The learned senior counsel argued that the Courts below have not applied their mind on the complaint lodged by the respondent dated 26.03.2009 addressed to the Tamil Nadu State Women's Commission. Before the forum, the respondent stated that the petitioner owns the property worth Rs.4 crores and earning Rs.50,000/- per month and has claimed permanent alimony of a sum of Rs.5,00,000/- while so, the respondent, during her chief examination on 11.01.2010 entirely differed with her story from that of her complaint ingredients. Both the Courts have accepted the unscrupulous testimony of the respondent and passed the erroneous order. The respondent had produced Ex.P6, medical records. In order to determine the veracity of the said records, the doctor was not examined. The allegation levelled by the complainant against the petitioner herein that he had beaten the respondent herein and caused mental and physical torture is false. The learned senior counsel further stated that after 21 years of marriage, she had levelled false complaint against the petitioner that he had demanded dowry. At the same time, the complainant had marked Ex.P10, wherein it is disclosed that the complainant's father had paid a sum of Rs.1,00,000/- on the basis of written instrument as loan. The learned counsel further contended that the complainant had stated that her jaw had been smashed on two occasions by the husband, but no medical records had been produced to prove this contention.
11. The highly competent senior counsel further contended that without determining the income proof of the revision petitioner, the Courts below directed him to pay a sum of Rs.5,00,000/- for loss of earning; Rs.1,25,000/- towards medical expenses; Rs.10,000/- towards family maintenance; Rs.1,00,000/- towards compensation for mental and physical disability. Without medical records and doctors examination, the Courts below granted Rs.1,00,000/- under the head of physical disability which is not appropriate in the instant case. The Courts below had also ordered payment of a sum of Rs.5,00,000/- towards loss of earning to the respondent herein which is not sustainable under law since there is no authenticated document to prove the income of the respondent herein. As such, the Courts below passed the said orders on the basis of hypothetical theory and not on relevant documentary facts. The learned senior counsel further submitted that the revision petitioner had undergone a surgical operation at Chettinad Hospital. In order to prove the same, medical records had been submitted. Further, the house property is the self acquired property of the father of the revision petitioner herein, who had executed the Will in favour of the revision petitioner on condition that he pays a sum of Rs.1,00,000/- each to his four sisters. As such, there is bindings over the said property and therefore, the revision petitioner is not the absolute owner of the property and as such, he is not the legally authorized person to allot any portion to the respondent herein. The respondent herein had lodged a complaint before the All Women Wing Police Station regarding the same allegation. The Inspectress of Police, had duly conducted enquiry and advised them to approach the Family Court since it is a family dispute. Accordingly, she had also filed a case before the Family Court since it is purely civil in nature. Therefore, the complaint in C.C.No.4628 of 2009, filed u/s 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, will not be applicable in the instant case.
12. The very competent senior counsel further contended that the case in C.C.No.4628 of 2009, had not been disposed on merits since the respondent had not been heard and exparte decree has been passed. The exparte order can be set aside at any stage and if the exparte order is set-aside, neither the petitioner nor the respondent will be prejudiced. Hence, the learned senior counsel entreats the Court to allow the above revision and set-aside the orders of the Courts below.
13. The highly competent counsel for the respondent vehemently argued that the respondent/wife/petitioner had filed C.C.No.4628 of 2009, on the file of II Metropolitan Magistrate, Egmore, Chennai-8. In that case, the summons was duly served on the revision petitioner/ husband/respondent. The respondent did not come froward to resist the case. However, the case has been disposed on the basis of oral and documentary evidence given by the respondent herein and also on the strength of the report of the District Social Welfare Officer. The highly competent counsel contended that the revision petitioner had punched the respondent on her face with his fist on two occasions, as a result of which four of her teeth in upper jaw and two in her lower jaw had fallen and artificial teeth was fixed. This had been proved through documentary evidence and on facial observation. Therefore, the medical expenses and compensation for mental and physical disability and compensation for loss of earning granted by the trial Court and confirmed by the appellate court is appropriate. There is no lacuna in the said orders of the Courts below. Therefore, the case need not be remitted to the trial Court for fresh trial. The learned counsel further contended that the learned senior counsel has sought for remand of the case for fresh trial at a belated stage before this Court and the same relief had not been sought before the first appellate Court. In order to prove the domestic violence, medical records, wound certificate, police complaint were produced. The revision petitioner, with the support of his associates, threatened the respondent with dire consequences. In order to prevent the same, the remedy has been granted by the Courts below. Actually, the respondent had started beautification clinic at Purusawalkam and Ayanavaram and had earned considerable income and out of the said income, the house has been constructed. Now, the respondent is in a deserted condition and her physical strength had deteriorated due to repeated assaults made by the revision petitioner herein. The revision petitioner has the financial capacity to comply with the orders passed by the Courts below. In order to create multiplicity of proceedings and with the intention of harassing the respondent, the revision has been filed. The respondent, being a dutiful wife had to bear all the ill treatment meted to her by her husband. Due to intolerable conditions, the present case has been registered. In support of his contentions, the learned counsel has cited the following judgments:- (i) V.D.Bhanot Versus Savita Bhanot reported in CDJ2012SC131".2. There is no dispute that marriage between the parties was solemnized on 23rd August, 1980 and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006, the Respondent filed a petition before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as the ".PWD Act"., seeking various reliefs. By his order dated 8th December, 2006, the learned Magistrate granted interim relief to the Respondent and directed the Petitioner to pay her a sum of Rs.6,000/- per month. By a subsequent order dated 17th February, 2007, the Magistrate passed a protection/residence order under Sections 18 and 19 of the above Act, protecting the right of the Respondent wife to reside in her matrimonial home in Mathura. The said order was challenged before the Delhi High Court, but such challenge was rejected.". (ii) D.Velusamy Versus D.Patchaiammal reported in CDJ2010SC951".Protection of Women from Domestic Violence Act, 2005-Section 2(f) - for getting maintenance under Section 125 of the Cr.P.C. live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'. The term 'relationship in the nature of marriage' this Act 2005 must also fulfill the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'. Parliament has used to expression 'relationship in the nature of marriage' and not 'live in relationship'.". Hence, the learned counsel entreats the Court to dismiss the revision.
14. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned judgments of the Courts below, this Court is of the view that, (i) the learned II Metropolitan Magistrate, Egmore, Chennai, had granted a sum of Rs.5,00,000/- under the head of compensation for 'loss of earning', but in order to prove the same, no substantial documents had been marked by the respondent herein. Hence, the award granted under this head is set-aside. (ii) The Courts below granted a sum of Rs.1,25,000/- towards medical expenses and this Court confirms the same as it is evident from Ex.P6, medical bill series that the respondent had lost her teeth in her upper and lower jaw. (iii) The Courts below had granted a sum of Rs.1,00,000/- towards mental agony and physical disability. However, this Court accepts the disability due to loss of her teeth from her upper jaw and lower jaw and observes that this would result in mental agony and physical disability and therefore, this Court confirms the award. (iv) Further, the Courts below had directed the revision petitioner to pay a sum of Rs.10,000/- per month towards family maintenance. This Court modifies the maintenance amount payable from Rs.10,000/- to Rs.5,000/- as it is found to be appropriate since it has not been proved that the revision petitioner is capable of paying the amount fixed by the Courts below. Further, the Court is of the view that the learned senior counsel had produced medical records to show that the revision petitioner has undergone a heart bye-pass surgery.
15. This Court directs the revision petitioner to pay the sum awarded by this Court within a period of three months from the date of receipt of this order, including monthly maintenance arrears. Thereafter, the revision petitioner has to pay monthly maintenance from the date of complaint in C.C.No.4628 of 2009 a sum of Rs.5,000/- regularly on or before the 10th of every succeeding English calendar month.
16. In the result, the above revision is partly allowed. Consequently, the judgment and decree passed in C.A.No.161 of 2010, on the file of the Additional Sessions Judge, Fast Track Court No.V, Chennai, dated 23.02.2011, confirming the order passed in C.C.No.4628 of 2009, on the file of II Metropolitan Magistrate, Egmore, Chennai, dated 24.08.2010 is modified. Connected miscellaneous petition is closed. Accordingly ordered. 25 / 06 / 2013 Index : Yes/No.Internet : Yes/No.r n s C.S.KARNAN, J.
r n s To 1.The II Metropolitan Magistrate, Egmore, Chennai, 2.The Additional Sessions Judge, Fast Track Court No.V, Chennai. Pre Delivery order made in Crl.R.C.No.726 of 2011 & M.P.No.1 of 2011 25 / 06/2013