Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 AGAINST THE ORDER/JUDGMENTCRA 86/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, THIRUVANANTHAPURAM / II ADDITIONAL MACT MC 39/2016 OF SPECIAL COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF CASES U/S.138 NI ACT(JMFC XI), THIRUVANANTHAPURAM REVISION PETITIONER/S:
ANIL KUMAR AGED 47 YEARS KRISHNAVILASOM, S. V NAGAR, KOLLAM NOW R/AT KP 14/60A, SOUHARDHA NAGAR, KANNIMELCHERI, KILLIKOLLOOR, KOLLAM., PIN - 691005 BY ADVS. BINU GEORGE HEMALATHA RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 MITHRA AGED 37 YEARS D/O.AZHAKESHAN, T.C.26/E-6,MANI MANDIRAM, AMBA NAGAR, VANCHIYOOR, THIRUVANNATHAPURAM DISTRICT, PIN - 695035 BY ADVS. PUBLIC PROSECUTOR BINDUMOL JOSEPH BEENA JOSEPH(K/77/2008) THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
-------------------------------------- Crl.Rev.Pet.No.311 of 2023 --------------------------------------- Dated this the 1st day of August, 2023
JUDGMENT
Challenge in this Crl.Rev.Pet. is to the judgment dated 29.11.2021 in Crl.A.No.86/2019. The revision petitioner is respondent No.1 in M.C. 39/2016, an application filed by the party respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Respondent No.2 prayed for directing the revision petitioner to pay Rs.10,000/- to meet the expenses incurred by her for her child. The trial Court granted the prayer and directed the revision petitioner to pay an amount of Rs.10,000/- to Respondent No.2. The matter was taken up in appeal and the Additional Sessions Court-V modified the order passed by the Trial Court and reduced the amount of medical expenses to be paid by the revision petitioner at Rs.8,000/- per month from the date of the order.
2. Heard both sides.
3. The learned counsel for the revision petitioner
submitted that the order of the Court below directing the revision petitioner to pay Rs.8,000/- per month is without any basis and the same is liable to be set aside. It is contended that the amount sought to be realized is exorbitant.
4. The learned counsel for the party respondent
submitted that the child is suffering from 'night blindness' and that he requires treatment which is highly expensive. It is also submitted that the revision petitioner is not paying the treatment expenses for the child's illness.
5. The trial Court as well as the first appellate Court
had taken into account the medical bills produced by the party respondent and came to the conclusion that the revision petitioner is liable to pay the expenses for meeting the medical expenses of the child. The relevant portion of the impugned judgment passed by the first appellate Court is extracted below.
15. Considering the rival submissions, I have gone through
the evidence on record. It is an admitted fact that the minor child is suffering from eye illness for the past several years and undergoing treatment. The appellant/husband would say the name of illness as 'Nerve Shrinkage', whereas the respondent/wife would say the name of illness as 'Night Blindness'. Anyway, treatment is undergoing at Matha Ayurveda Eye Hospital Kudappanakunnu. Exts.P2 and P2 (a) to (d) are the discharge card and discharge bills for the period from 16/04/2015 to 05/05/2015 and the total
treatment expense would come at Rs.50,782/- for 20 days Ayurvedic treatment. Exts.P3 and P3 (a) & (b) are the ledger account details with respect to the treatment charges, room rent, etc., for the period from 01/03/2016 to at Rs.66,029/-. Exts.P4 and P4 (a) & (b) are the treatment expense bills dated 18/04/2017 and the total amount- would come Rs. 29,055/-. Ext.P5 is room rent paid in connection with treatment and the same would come at Rs.4,500/- dated 22/04/2017. Exts.P6 and P6 (a) are treatment bills for an amount of Rs.24,255/- dated Rs.3,130/- dated 27/04/2017. Ext.P8 is treatment expense bill for an amount of Rs.3,400/- dated 28/04/2017. Ext.P9 is room rent in connection with treatment for an amount of Rs.6,300/- dated 29/04/2017. Ext.P10 is room rent in connection with treatment for an amount of Rs.3,600/- dated 02/05/2017. Exts.P11 and P11 (a) & (b) are bills with respect to the treatment for a total amount of Rs.70,610/- dated 03/05/2017. Ext.P12 is treatment bill for an amount of Rs.12,150/- dated 26/03/2018. Ext.P13 is treatment bills for a total amount of Rs.9,760/- dated 27/03/2018. Ext.P14 is treatment bills for an amount of Rs.22,850/- dated total amount of Rs.20,305/- dated 03/04/2018. Exts.P16 and 16 (a) & (b) are treatment bills for a total amount of Rs.14,105/- dated 07/04/2018. Exts.P17 and 17 (a) to (c) are treatment bills for a total amount of Rs.42,757/- dated for a total amount of Rs.1,402/- dated 01/09/2018.
16. In the light of the above medical bills incurred for the
years from 2015 to 2018, it can be arrived at a conclusion
that average amount per year for treatment would come around Rs.1 lakh. The contention raised by the appellant in the appeal memorandum, to the effect that the medical bills produced by the respondent are faspend money for treatment. Therefore, the finding of below that the 1" respondent is liable to pay an amount towards the treatment expense is legal. The court below directed the 1 respondent to pay Rs.10,000/- per month. Now, it is submitted that the order of the court below is to be modified to the effect that permitting the appellant to pay the treatment expense directly to the hospital, where the child is undergoing the treatment and then the appellant would get reimbursement of the treatment bills from the department, where he is working. I do not find the said submission is bonafide. So far the appellant has not paid any amount towards the treatment expense as ordered by the court below. Appellant has always said that he is ready to pay the treatment expense. Then why didn't he pay the amount at least for the past two years? So, I am not inclined to modify the order of the court below as submitted by the learned counsel for the appellant. However, keeping in view of the monthly income of the 1 respondent and considering all the attended circumstances of the case and evidence, I find that the order passed by the court below to pay an amount of Rs.10,000/- per month to meet the medical treatment expenses incurred for the minor child's illness is to be modified by reducing the amount to Rs.8,000/- per month...bricated, has no legs to stand because all those bills were tendered in evidence and marked without the objection of the appellant and there is an endorsement made as "No objection in marking the document" by the counsel for the appellant. Moreover,
the appellant has admitted that he is ready and willing to spend money for treatment. Therefore, the finding of the Court below that the 1st respondent is liable to pay an amount towards the treatment expense is legal. The court below directed the 1st respondent to pay Rs.10,000/- per month. Now, it is submitted that the order of the court below is to be modified to the effect that permitting the appellant to pay the treatment expense directly to the hospital, where the child is undergoing the treatment and then the appellant would get reimbursement of the treatment bills from the department, where he is working. I do not find the said submission is bonafide. So far the appellant has not paid any amount towards the treatment expense as ordered by the court below. Appellant has always said that he is ready to pay the treatment expense. Then why didn't he pay the amount at least for the past two years? So, I am not inclined to modify the order of the court below as submitted by the learned counsel for the appellant. However, keeping in view of the monthly income of the 1st respondent and considering all the attended circumstances of the case and evidence, I find that the
order passed by the court below to pay an amount of
Rs.10,000/- per month to meet the medical treatment expenses incurred for the minor child's illness is to be modified by reducing the amount to Rs.8,000/- per month. Accordingly I do so. Point No.1 is answered accordingly.
6. I have gone through the materials placed before
the Court below. I find no reason to record that the finding of the Court below directing the revision petitioner to pay Rs.8,000/- per month as medical expenses is perverse or untenable in law or is grossly erroneous or glaringly unreasonable
7. The revisional power of the Court under section
397 to 401 Cr.P.C.is not to be equated with that of an appeal. Unless the finding of the Court whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the
decision is based on no materials or where the material facts
are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the Courts may not interfere with the decision in exercise of their revisional jurisdiction. Therefore, this Crl.Rev.Pet. lacks merits and hence it is dismissed. Sd/- K.BABU, JUDGE saap