BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :
18. 02.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Criminal Revision Case (MD)No.291 of 2014 and M.P(MD)No.1 of 2014 S.Jeeva Ashok ... Petitioner/Respondent/ Respondent Vs. Kalarani ... Respondent/Petitioner/ Petitioner Prayer : Revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, to set aside the order dated 17.12.2013 passed in Cr.M.P.No.8269 of 2013 in C.C.No.412 of 2010 on the file of the Judicial Magistrate Court No.II, Dindigul. !For Petitioner : Mr.Y.Krishnan ^For Respondent : Mr.S.Palanivelayutham :ORDER
The petitioner is the respondent in Cr.M.P.No.8269 of 2013, filed under Section 31 of the Protection of Women from Domestic Violence Act, 2005, (in short "DV Act"), seeking enforcement of the order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010, on the file of the Court of Judicial Magistrate No.II, Dindigul. The said petition came to be ordered, after contest, on 17.12.2013 and challenging the legality of the same, the present revision is filed.
2. It was the case of love marriage between the revision petitioner and the respondent, which came to be solemnised on 08.02.2004 and once again, came to be performed on 20.06.2004 as per the Hindu rites and customs and the said marriage was also registered on 27.07.2007 and out of the wedlock, a girl child, namely, Lashya was born on 24.11.2004.
3. The respondent filed the complaint under the DV Act making allegations against the petitioner herein/husband and his relatives and prayed for number of reliefs including the monthly maintenance of Rs.15,000/- (Rupees Fifteen Thousand only), for return of stridhan articles and to meet out the educational expenses of her daughter and it came to be numbered as C.C.No.412 of 2010 on the file of the Court of Judicial Magistrate No.II, Dindigul and pending disposal of the same, she filed Cr.M.P.No.7910 of 2010 under Section 23 of the DV Act, praying for return of her articles, utensils, bureau, cot and jewels, family card/ration card and also interim maintenance of Rs.7,000/- (Rupees Seven Thousand only) per month from the revision petitioner.
4. It was opposed by the revision petitioner who was arrayed as the respondent therein. However, the lower Court has taken into consideration the facts that the revision petitioner herein is facing prosecution for the commission of the offence under Section 498-A I.P.C, etc., and that he was also directed to pay maintenance under Section 125 Cr.P.C., from the year 2008 onwards and that he has also not paid the arrears of the same, thought fit to direct the revision petitioner to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) initially and thereafter, a sum of Rs.3,000/- (Rupees Three Thousand only) per month on or before 10th day of every month until further orders.
5. The lower Court further directed the revision petitioner to return the utensils, bureau, cot, etc., said to have been taken by him.
6. The revision petitioner also filed Crl.R.C.(MD)No.459 of 2011 challenging the common order dated 21.04.2011 passed in Crl.R.C.No.1 of 2011 by the learned Principal Sessions Judge, Dindigul, in awarding the maintenance at the rate of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) and Rs.3,500/- (Rupees Three Thousand and Five Hundred only) to the respondent and her minor daughter, while revising the order passed in M.C.No.63 of 2008 by the Court of Chief Judicial Magistrate, Dindigul.
7. The revision petitioner also made a challenge to the order dated 11.02.2011 in Cr.M.P.No.7910 of 2010 in C.C.No.412 of 2010 passed by the learned Judicial Magistrate No.II, Dindigul, by filing Crl.R.C.(MD)No.3391 of 2011.
8. Both the revisions were taken up for final disposal together and they were disposed of, by common order dated 30.07.2013, wherein it was observed that the order passed in Cr.M.P.No.7910 of 2010 is nothing but an interim order and the Maintenance Application is once for all, disposed of, then the question of implementing the order passed under the DV Act, is not necessary.
9. On the merits of Crl.R.C(MD)No.459 of 2011, this Court observed that the salary of the revision petitioner/husband was only Rs.17,000/- (Rupees Seventeen Thousand only) which was increased to Rs.33,000/- (Rupees Thirty Three Thousand only) and directed both the parties to produce the documents before the trial Court regarding the said aspect and the Court of the Chief Judicial Magistrate was directed to fix the maintenance from 01.01.2012 for the subsequent period.
10. This Court has also taken into consideration the fact that insofar as recovery orders, the salary of the revision petitioner has already been under attachment and further, directed the revision petitioner to deposit the arrears of maintenance in three equal installments within seven months and both those revisions were disposed of accordingly.
11. It is the submission of the learned Counsel for the revision petitioner that the order passed in Crl.R.C(MD)No.459 of 2011, dated 30.07.2013, has been complied with and he is also paying a sum of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) and Rs.3,500/- (Rupees Three Thousand and Five Hundred only) to the respondent and her minor daughter, respectively, without fail and the said statement, on instructions, is placed on record.
12. Insofar as the merits of the present case is concerned, the learned Counsel for the revision petitioner would submit that the impugned order came to be passed under Section 23 of the DV Act and for enforcing the said order, the respondent herein has invoked Section 31 of the DV Act, which speaks about penalty for breach of protection orders.
13. It is the submission of the learned Counsel for the revision petitioner that the impugned order passed under Section 23 of the DV Act, under the present facts and circumstances of the case, cannot be construed as a protection order as defined under Section 18 of the DV Act, for the reason that sub-clause (e) of Section 18 of the DV Act, only speaks about alienating any assets, operating bank lockers or bank accounts used for held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Court and if at all, any order could have been passed, it should be a restraint order, restraining the revision petitioner herein from alienating those properties and there cannot be any positive order, directing him to return the articles said to have been belonged to the respondent herein.
14. The learned Counsel for the revision petitioner, in support of his submissions, placed reliance upon the decisions in Kanaka Raj v. State of Kerala and another reported in 2010 Crl.L.J.(NOC) 447 (Ker.) and in Kanchan v. Vikramjeet Setiya reported in 2013 Crl.L.J.
85 (Rajasthan High Court).
15. Per contra, the learned Counsel for the respondent would contend that sub-section (2) of Section 23 of the DV Act, speaks about the grant of exparte order on the basis of the affidavit in such form as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 of the DV Act against the respondent and therefore, the impugned order passed under Section 23 of the DV Act is to be construed as a protection order under Section 18 of the Act and in that event, the petition filed under Section 31 of the DV Act, is perfectly maintainable and the said aspect has been rightly taken into consideration by the lower Court and hence, prays for the dismissal of this revision.
16. This Court has carefully considered the rival submissions and also perused the materials available on record as well as the decisions relied on by the learned Counsel for the revision petitioner.
17. Section 2(g) of the DV act defines 'domestic violence' and it has been the same meaning as assigned to it in Section 3 of the DV Act. Chapter II of the DV Act, deals with 'domestic violence' and Section 3 defines 'domestic violence'. Section 3(iii) of the DV Act defines 'verbal and emotional abuse' and Section 3(iv)(b) of the DV Act defines 'economic abuse' which includes, disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person.
18. Section 20 of the DV Act speaks about monetary reliefs and sub- section (1)(d) of Section 20 of the DV Act, speaks about the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 Cr.P.C., or any other law for the time being in force. Sub-section (6) of Section 20 of the DV Act speaks about non-compliance of the order, which says that upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
19. As already pointed out, to enforce the order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010, the respondent herein filed Cr.M.P.No.8269 of 2013 under Section 31 of the DV Act, wherein vide impugned order dated 17.12.2013, the lower Court has directed the return of articles belonging to the respondent herein alleged to have been taken by the revision petitioner, within a period of one month i.e. on or before 09.01.2014.
20. In Kanchan v. Vikramjeet Setiya reported in 2013 Crl.L.J.
85 (Rajasthan High Court), the facts of the case would disclose that the petitioner therein-wife filed an application for maintenance under Sections 12 and 23 of the DV Act and the husband was directed to pay the maintenance and on account of non-compliance, the wife filed a petition under Section 31 of the DV Act for execution of the breach of order of monetary relief. The said petition was dismissed and challenging the same, she filed a Criminal Miscellaneous Petition on the file of Rajasthan High Court. The Rajasthan High Court, after dealing with exhaustively the provisions contained in the DV Act, has held that Section 31 of the DV Act with regard to the breach of order of monetary relief, is not maintainable, as Section 18 of the DV Act does not deal with monetary relief and also taken into consideration Section 20 of the DV Act, which, entitles a Magistrate to direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due or payable to the person concerned and observed that only in a case of salaried person, such kind of orders can be passed. As regards the enforcement of the order granting monetary relief, in paragraph 10 of the decision, the Rajasthan High Court observed that the Court would have to fall back-on to the procedure provided under Section 28 of the DV Act, which lays down that the Court shall be governed by Cr.P.C., in relation to the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 as well as for the offence under Section 31 of the DV Act and for execution of the order, a resort has to be had to the general provisions of Cr.P.C. The Rajasthan High Court, citing the said reasons, has dismissed the petition filed by the wife.
21. In Kanaka Raj v. State of Kerala and another reported in 2010 Crl.L.J.(NOC) 447 (Ker.), it has been held that only if the order passed by the Magistrate is a protection order or an interim protection order, the Magistrate can direct registration of case and investigate the same under Section 31 of the DV Act and even if award is passed by Lok Adalat unless made in terms of Section 18 of the DV Act, it cannot be a protection order or interim protection order and breach of it will not attract the offence under Section 31 of the DV Act.
22. Insofar as the order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010 is concerned, it contains two portions. The first portion is that the revision petitioner has to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) initially and a sum of Rs.3,000/- (Rupees Three Thousand only) per month, within a time frame to the respondent herein and the second portion of the order is that the revision petitioner herein shall return the utensils and other articles of the respondent herein.
23. This Court, while disposing of Crl.R.C(MD)Nos.459 and 3391 of 2011, by common order dated 30.07.2013, observed that the above said order is only an interim measure and further directed the revision petitioner herein to pay the arrears in three equal installments in respect of the petition filed under Section 125 Cr.P.C.
24. According to the learned Counsel for the revision petitioner, he has entirely paid the arrears and continues to pay the maintenance amount to the respondent herein and the said fact is disputed by the learned Counsel for the respondent.
25. However, this Court, at this stage, is not prepared to consider the said submission for the reason that the main case filed under the DV Act, is pending adjudication and any observation made herein may affect the rights of either of the parties.
26. In the considered opinion of this Court, the order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010, as observed by this Court in the common order dated 30.07.2013, passed in Crl.R.C(MD)Nos.459 and 3319 of 2011, is only an interim order and it was passed under Section 23 of the DV Act.
27. In the light of the above said provisions of the DV Act and the decisions rendered by the Rajasthan High Court as well as Kerala High Court (cited supra), this Court is of the view that the said order cannot be construed as a protection order and therefore, it is not enforceable under Section 31 of the DV Act.
28. It is also pertinent to point out at this juncture that the interim order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010 directing return of articles to the respondent herein, has reached finality. Though it is an interim order, of course, it is subject to the final orders to be passed in the main case in C.C.No.412 of 2010 on the file of the Court of Judicial Magistrate No.II, Dindigul.
29. In the result, this Criminal Revision Case is allowed and the impugned order dated 11.02.2011, passed in Cr.M.P.No.7910 of 2010 by the learned Judicial Magistrate No.II, Dindigul, is set aside and it is made clear that it is open to the respondent herein to work out her remedy in accordance with law for implementation of the order dated 11.02.2011 made in Cr.M.P.No.7910 of 2010 in C.C.No.412 of 2010, under the provisions of Cr.P.C., or any other law. Consequently, the connected miscellaneous petition is closed. Index :Yes/No 18.02.2015 Internet :Yes/No rsb To 1.The Court of Judicial Magistrate No.II, Dindigul. M.SATHYANARAYANAN,J.
rsb Criminal Revision Case (MD)No.291 of 2014 and M.P(MD)No.1 of 2014 18.02.2015