Partly allowed

A.Shyni v. Binu Alex

Kerala HC11 Jun 2019Crl.Rev.Pet/650/2019

Case brief

AI extract

What is this about?

The High Court upheld the Sessions Court's order remanding a domestic violence petition for a fresh hearing on merits. The Court found an illegality in the remand order because it failed to provide for interim maintenance. It directed the husband to pay Rs. 3,000 interim maintenance monthly until the main claim is finally disposed of. The Court emphasized that the Magistrate must decide the main m

What did the court decide?

Confirmed the remand order of the appellate court but directed the husband to pay interim maintenance of Rs. 3,000 per month to the wife from April 1, 2019, pending the final disposal of the remanded

A.Shyni Vs Binu Alex — Domestic Violence | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941

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Crl.Rev.Pet.No.650 of 2019

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AGAINST THE ORDER/JUDGMENT IN CRA 20/2017 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOLLAM DATED 24-07-2018

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AGAINST THE ORDER/JUDGMENT IN MC 144/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM DATED 29-08-2014

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REVISION PETITIONER/S:

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A.SHYNI, AGED 35 YEARS, W/O. ALEX, KATTUKUZHI , THANGASSERI, KAIKULANGARA CHERRY, KOLLAM WEST VILLAGE.

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BY ADV. SRI.C.S.SUMESH

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RESPONDENT/S:

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1 BINU ALEX, S/O. ALEXANDER, BINU BHAVAN, KANNIMEL CHERRY, MARUTHADI, KOLLAM 691 003

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2 MATILDA ALEX, AGED 66 YEARS, W/O. ALEXANDER, BINU BHAVAN, KANNIMEL CHERRY, MARUTHADI, KOLLAM 691 003

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3 ALEXANDER, AGED 70 YEARS, BINU BHAVAN, KANNIMEL CHERRY, MARUTHADI, KOLLAM 691 003

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4 BINDU SALI, AGED 45 YEARS, D/O. ALEXANDER, BINU BHAVAN, KANNIMEL CHERRY, MARUTHADI, KOLLAM 691 003

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5 BEENA FREDY, AGED 43 YEARS, D/O. ALEXANDER, BINU BHAVAN, KANNIMEL CHERRY, MARUTHADI, KOLLAM 691 003

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6 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 682 031.

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BY ADV. SMT.K.G.BINDU

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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Crl.R.P.No. 650 of 2019

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==================

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Dated this the 11^th day of June, 2019 O R D E R

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The above Crl. Revision petition has been filed under Sec. 397 of the Code of Criminal Procedure to impugn the judgment dated 24.7.2018 rendered by the appellate sessions court concerned (Court of Addl. Sessions Judge, Kollam), in Crl.Appeal No.20/2017. Crl.Appeal No. 20/2017 has been filed by the husband of the revision petitioner herein seeking to impugn the ex parte order dated 29.8.2014 rendered by the Judicial First Class Magistrate's Court-II, M.C.No.144/2011 filed by the revision petitioner herein seeking reliefs under the provisions of the Protection of Women from Domestic Violence, Act, 2005. In the said M.C., filed by the wife, respondents therein, the husband and others, were set ex parte, and by merely placing reliance on the proof affidavit filed by the wife, following directions and orders have been passed in M.C.No. 144/2011 as per the impugned order dated 29.8.2014, which read as follows:

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“1. That the respondents are restrained from obstructing the peaceful residence of the petitioner (Bindu Bhavan) in which she is residing.

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2. That the respondents are restrained from harassing the

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Crl.R.P.650/2019 - : 3 :-

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petitioner either mentally or physically.

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3. That the 1^st respondent is directed to pay Rs.3000/- (three thousand only) per month as maintenance to the petitioner from the date of the petition.

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4. That the 1^st respondent is directed to pay Rs.25,000/- as compensation to the petitioner.

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5. That the 1^st respondent is directed to pay the entire cost of the proceedings to the petitioner.”

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It is being aggrieved by the said ex parte order in M.C.No.

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144/2011 dated 29.8.2014, that the husband has filed the aforementioned Crl.Appeal No. 20/2017, which has now been disposed of as per the impugned appellate judgment dated 24.7.2018, by holding that both parties have serious contentions and that the main matter in the M.C. is liable to be remanded back to the learned Magistrate for deciding M.C.No.144/2011 afresh, after hearing both sides.

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The present Crl.R.P has been filed by the wife contending that the appellate sessions court should have appreciated the merits of her arguments and then should have rendered an appellate judgment on merits, instead of remitting the matter to the learned Magistrate for consideration of the main matter in the M.C., afresh.

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After hearing the learned counsel for the petitioner and after due consideration of the pleadings and materials on record, this Court is of the view that since the main matter in M.C. was decided ex

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Crl.R.P.650/2019 - : 4 :-

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parte, the appellate sessions court has not committed any serious illegality in remitting the matter back to the learned Magistrate for consideration of the M.C. afresh, as it is only to provide a reasonable opportunity to the respondent therein to contest the matter on merits. Therefore, this Court is not inclined to interfere with the impugned appellate order. However, while remitting the matter, the appellate sessions court has not made any provision for interim maintenance or provisional maintenance to be paid by the husband to the wife. Therefore, that appears to be a serious illegality committed by the appellate sessions court. The learned Magistrate had directed that an amount of Rs. 3,000/- should be paid by the husband to the wife from the date of the petition.

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Accordingly, the following orders and directions are issued;

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The direction made by the appellate sessions court remitting the main matter in M.C.No.144/2011 to the Judicial First Class Magistrate's Court-II, Kollam for consideration and decision afresh will stand confirmed. The respondents in the M.C., may file their counter affidavit/written objections to the main matter in M.C., without any further delay. Thereafter the learned Magistrate will afford reasonable opportunity to both sides and then will render orders finally disposing of

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Crl.R.P.650/2019 - : 5 :-

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M.C.No. 144/2011 without much delay, preferably within a period of 4 months from the date of production of a certified copy of this order. Until orders are passed finally disposing of M.C.No.144/2011, the 1^st respondent herein (husband) will pay interim maintenance/provisional maintenance of Rs. 3,000/per month to the wife for the period from 1.4.2019 to the date of final disposal of the M.C. The payment of such interim maintenance will be subject to the final result in the M.C. The abovesaid direction to pay interim maintenance is only an interim arrangement and the learned Magistrate shall decide the main matter in the claim for maintenance afresh, independently untrammeled and uninfluenced in any manner by the said interim arrangement now made by this Court.

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The Registry will forward a copy of this order to the Judicial

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First Class Magistrate's Court-II, Kollam for further action.

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With these observations and directions, the above Criminal Revision Petition stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

A.Shyni v. Binu Alex

Case brief

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A.Shyni v. Binu Alex

Case brief

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