Partly allowed

Baby Michael v. Shiny Michael

Kerala HC19 May 2022Crl.Rev.Pet/378/2021

Case brief

AI extract

What is this about?

Domestic violence reliefs were challenged on factual grounds, res judicata and maintenance beyond majority. The court rejected the factual and res judicata challenges but partly allowed revision, limiting daughters’ maintenance to majority rather than marriage.

What did the court decide?

Direction to maintain daughters until marriage set aside; maintenance liability limited to attainment of majority.

Baby Michael Vs Shiny Michael — Domestic Violence | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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THURSDAY, THE 19^TH DAY OF MAY 2022 / 29TH VAISAKHA, 1944

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CRL.REV.PET NO. 378 OF 2021

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AGAINST THE JUDGMENT DATED 8.1.2021 IN CRA 59/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT,MOOVATTUPUZHA AND AGAINST THE ORDER DATED 24.01.2019 IN M.C.NO.2/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURTIV, PERUMBAVOOR

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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BABY MICHAEL,AGED 51 YEARS,S/O. LATE MICHAEL, RESIDING AT THANNIKKAPARAMBIL HOUSE, NEELISHWARAM P. O., KALADY, ERNAKULAM, PIN - 683574. BY ADVS. GEO PAUL RADHIKA RAJASEKHARAN P. C.R.PRAMOD S.ASHOK KUMAR. JACOB GEORGE PALLATH NAVEEN T.U.

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RESPONDENTS/RESPONDENTS/COMPLAINANT:

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1 SHINY MICHAEL,AGED 48 YEARS W/O. BABY MICHAEL, THANNIKKAPARAMBIL HOUSE, H.NO.12/337, KALADY VILLAGE, NEELESHWARAM KARA, ALUVA, ERNAKULAM, PIN - 683574.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.

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BY ADV U.K.DEVIDAS

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P.P - SMT.SHYNIMOL V.O

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON 19.05.2022 DELIVERED THE FOLLOWING:

Crl.R.P.No.378/2021

"CR"

M.R.ANITHA, J

****************** Crl.R.P.No.378 of 2021

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Dated this the 19^th day of May, 2022

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O R D E R

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This revision petition has been filed against the judgment in Crl.A.No.59 of 2019 on the files of Additional District & Sessions

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Court, Muvattupuzha which was directed against the order in M.C.No.2/2015 dated 24.01.2019 on the files of Judicial First Class Magistrate Court-IV, Perumbavoor.

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The revision petitioner is the respondent/husband in M.C.No.2/2015 which has been filed under Section 12 of Protection of Women from Domestic Violence Act, 2005 (in short 'the Act') by the first respondent herein who is the wife of the revision petitioner seeking relief under Sections 18, 19, 20 and 22 of the Act. Averments in M.C.No.2/2015 in brief is as follows: (Parties shall be referred as per their status in M.C.No.2/2015).

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3. Marriage between the petitioner and the respondent

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was solemnised on 24.06.1996. After marriage, they lived in the family house of the respondent for a short while. Thereafter, they went to Mumbai where the respondent was working. The petitioner was given 40 sovereigns of gold ornaments and Rs.2,00,000/- at the time of marriage. Using the amount, 10 cents of property was purchased in the joint names of the parties. In December, 1997 respondent went to Dubai and after

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six months he took the petitioner to Dubai where she was subjected to both physical and mental cruelty and ultimately a petition under Section 12 of the Act was filed before the Judicial First Class Magistrate, Kunnamangalam which was decided ex parte against which respondent filed Crl.A.No.1022/2008. The ex parte order was set aside and the case was remanded and again respondent did not appear and M.C was allowed. Against which respondent filed Crl.A.No.243/2009. During the pendency of the

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appeal, the matter settled and the petitioner filed Ext.D7 statement expressing her intention not to proceed with the

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matter. Thereupon Crl.A.No.243/2009 was allowed recording her statement. According to the petitioner, inspite of settlement, respondent continued the ill-treatment and harassment. He did not permit the petitioner to contact her family members and thereby subjected her to cruelty. On 03.03.2011, the parents of the petitioner came to their house and thereafter they went to the family house of the respondent. There, the petitioner and her parents were assaulted by the brother and parents of the respondent. Even though father of the petitioner filed complaint, no action was taken and thereafter petitioner filed complaint and crime No.188/2011 was registered without recording the entire statement of the petitioner since the brother of the respondent was a Head Constable. Since the respondent was not providing maintenance, the petitioner was forced to let out a house covered by Ext.P10 for a rent of Rs.5,250/-, that is the only source of income for the petitioner and the three children. The petitioner and the children were depending on the parents and brothers. Respondent is having a monthly income of

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Rs.1,50,000/- and the petitioner and children are residing in a house situated in Ext.P9 property. Respondent misappropriated the entire gold ornaments of the petitioner. The children of the petitioner are studying. Hence she claims Rs.15,000/- towards her maintenance, Rs.8,000/- each towards the maintenance of the elder daughters and Rs.5,000/- towards the younger one. Accordingly she claims reliefs under Sections 18, 19, 20 and 22 of the Act.

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Respondent filed objection denying the entire allegations but marriage and paternity of the children are admitted. According to him, ever since the marriage, he has been ill-treated by the petitioner making the matrimonial life miserable. In October, 2000 he suffered a stroke while in Sharjah and was bed ridden for five months. Neither the petitioner nor her family members bothered to enquire about him even though they were informed about the illness. On 06.08.2007, the petitioner fell down and sustained an injury. In connection with the same, brother of the petitioner manhandled

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and abused him and his aged mother. After that the petitioner filed M.C.No.201/2007. On 03.03.2011, the petitioner and her parents came to the house of the respondent and abused and assaulted his aged mother. Thereafter, a case was registered at the instance of the petitioner as Crime No.188/2011 which is now pending as C.C.No.685/2014. Petitioner also filed M.C.No.13/2013. There are cases pending before the Family Court, Ernakulam also. Since June, 2010, they never lived together. Respondent lost his job in Dubai and returned to Kerala in 2012. He is staying in a rented house and is in constant medication. Rs.1,00,000/- and 15 sovereigns of gold ornaments given to the petitioner at the time of marriage are with herself and he never misappropriated it. The petitioner is getting Rs.5,250/- towards rent, Rs.5,000/- by selling coconuts and also getting Rs.10,000/- from agriculture. Respondent has financial liability to the tune of Rs.15,00,000/-. The amount claimed by the petitioner is exorbitant.

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Petitioner got examined as PW1 and Exts.P1 to P10 marked from her side. Respondent got himself examined as RW1 and Exts.B1 to B24 were also marked. On evaluating the evidence and facts and circumstances, the learned Magistrate restrained the respondent from causing any physical or mental harassment to the petitioner, children or any other person assisting them. He was also restrained from entering into the residence of the petitioner and causing any sort of acts affecting the peaceful enjoyment of the residence of the petitioner and children and persons assisting them. Respondent was also directed to pay maintenance @ Rs.12,000/- to the first petitioner with a direction to set off Rs.5,250/-, the rent being received by the petitioner. He was also directed to pay maintenance at the rate of Rs.4,000/- to the elder daughter and Rs.2,000/- each to younger daughters till they got married. Respondent is also directed to pay Rs.1,00,000/- as compensation to the petitioner.

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Against which respondent filed Crl.A.No.59/2019 and the learned Additional District & Sessions Judge by the impugned

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judgment confirmed the order of the learned Magistrate and dismissed the appeal.

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Aggrieved by the same, respondent/husband

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approaches this Court in revision.

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Heard Adv.P.Radhika Rajasekharan, learned counsel for the revision petitioner/respondent and Adv.Devidas for the first respondent/petitioner. Lower court records were called for and perused.

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According to the learned counsel for the respondent, there is no finding by the learned Magistrate regarding domestic violence which has been blindly confirmed by the Additional District & Sessions Judge and hence the reliefs granted to the petitioner is illegal and unsustainable and liable to set aside. It is also contended that the entire proceedings in M.C is barred by res judicata in view of the earlier M.C and the judgment in Crl.A.No.343/2009. According to the learned counsel, the new cause of action alleged to have occurred on 03.03.2011 is in the absence of the respondent since he was in Dubai during that

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period and hence there is no fresh cause of action so as to maintain the present M.C against him and hence the entire proceedings is illegal and unsustainable and is liable to be set aside. It is also contended that Rs.1,00,000/- has been awarded as compensation to the petitioner without any reason since admittedly the petitioner has let out a building belonging to the respondent for a rent of Rs.5,250/-. It is further contended that the maintenance provided to the children even after attaining majority till the date of their marriage, is illegal and unsustainable.

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Learned counsel for the petitioner, on the other hand, would contend that even though no specific point was raised by the learned Magistrate with respect to the factum regarding the domestic violence meted out at the instance of respondent, there is clear finding with regard to domestic violence. There is a finding that the respondent has taken the passport of the petitioner while he left abroad which, according to him, is a clear act of cruelty and harassment. The amount of maintenance

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awarded and the compensation ordered to be paid etc. are in accordance with law and hence no interference is called for in this proceedings.

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The jurisdiction of the revisional court, while exercising the supervisory jurisdiction is restricted to analyse the illegality or impropriety and during that course it is not expected to act as a court of appeal by appreciating the evidence and facts and circumstances afresh so as to enter into a different conclusion than that has been arrived at by the two fact finding bodies. Paragraph No.5 of Duli Chand vs Delhi Administration : AIR 1975 SC 1960 : (1975) 4 SCC 649 is relevant in this context to be extracted which reads thus:

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“5. …..........The High Court in revision was exercising supervisory jurisdiction of a restriction nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purpose of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was

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correct............................”

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State Of Maharashtra v. Jagmohan Singh Kuldip Singh Anand : AIR 2004 SC 4412 : (2004) 7 SCC 659 : 2004 KHC 1535 was a case in which the trial court as well as

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the appellate court passed an order of conviction against accused under Sections 224 and 452 read with 34 I.P.C and sentenced him to undergo simple imprisonment for one month and to pay fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of seven days. But the Hon'ble High Court of Bombay in Crl.R.P filed under Section 397 Cr.P.C, minutely re-examined and re-appreciated the whole evidence and acquitted the accused. Aggrieved by the same, the State of Maharashtra as well as the complainant preferred appeal before the Apex Court by seeking leave. While considering the matter, the revisional powers of the High Court has been dealt with in paragraph Nos.21 and 22 which are extracted below:

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“21. In embarking upon the minutest reexamination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On

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behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal No. 523 of 1997 decided on 9.3.2004 [Ram Briskh v. Ambika Yadav]. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

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22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.P.C. Section 401 Cr.P.C is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. Section 397 Cr.P.C confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 Cr.P.C conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C, read

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together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.”

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In paragraph 23 of the judgment, Duli Chand referred above has also been quoted.

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From the above, it can be deduced that the scope of revision under Section 397 read with 401 of the Code of Criminal Procedure is to evaluate the correctness, legality and propriety of any finding, sentence or order and as to the regularity of any proceedings of an inferior court. So also, it is to be guarded that it can not be exercised in every case of impropriety or illegality unless it causes failure of justice.

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In effect the revisional powers of the court can be exercised whenever it has come out that the decision rendered by the lower forums are erroneous or when there is non compliance with any provisions of law or when it is found that the finding of fact affecting the decision is not based on the evidence or whether material evidence of the parties has not been considered or whether the judicial discretion seem to have been

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exercised arbitrarily or perversely [See Smt.Dipali Mallick v. Nirmal Mallick : (1993) 1 Crimes 727 Cal]. So bearing in mind the above principles, this Court has to approach the contentions advanced by the learned counsel for the respondent.

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The first contention of the learned counsel is that there is no specific finding with respect to domestic violence attributed against the respondent and that itself would disentitle the Magistrate to pass any orders under Sections 18, 19, 20 and 22 and the only incident which has been referred is on 03.03.2011 and during that time the respondent was at abroad. But, on going through the complaint, the chief affidavit as well as the findings of the learned Magistrate it can be seen that there is allegation of cruelty and harassment exerted at the instance of the respondent as well as his family members right from the initial stages of marriage. It has been specifically averred in the chief affidavit that after sometime of marriage the respondent and his family members started harassing her both physically and mentally which was unbearable and it is after that she went

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to Dubai on visiting visa and subsequently it was changed to family visa and had been residing with the respondent. It is also specifically averred in the affidavit that while residing in Mumbai, Dubai as well as when came down to home land, she had been subjected to physical and mental cruelty alleging that the gold and money given to her at the time of marriage was less and thereafter she filed M.C.No.201/2007. Further, it is averred that the case was ultimately compromised and appeal was allowed by the Sessions Court based on the statement filed by the petitioner. The case was settled thinking about the future of her daughters and protection from their father. It is also averred that, at the time of settling the case he had undertaken to return her certificates but those were not returned. She claims to be a Bachelor in Mathematics and is also holding Diploma in Computer Application and had also been working in Mumbai as well as in Dubai. After the settlement, the brother of the respondent and his wife took the petitioner as well as the children from the house at Kunnamangalam to a rented house at Neeleshwaram and

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while so, no household articles or furniture were provided to the petitioner. After returning from Gulf, the respondent continued to ill-treat her both physically and mentally and also forcibly obtained the gold ornaments remained with her and the children and misappropriated the same. He also taken her to Velankanni Church and made her to take an oath that without his consent she will not contact her family and also threatened that if she act against his will he will divorce her and fearing him she never contacted her family members also. She was not allowed to invite her family members even for the house warming of their new house.

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On a mere glance through the evidence of the petitioner there will not be any room for doubt to conclude about the cruelty exerted by the respondent upon the petitioner. There is clear discussion by the learned Magistrate in paragraph No.16 of the judgment about the harassment of the respondent and thereafter, there is elaborate discussion with regard to the incident occurred on 03.03.2011 also and subsequent registration

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of crime etc. There is clear finding ultimately that the petitioner has been subjected to physical and mental harassment and in a case of this nature, the sole testimony of the aggrieved person is sufficient to grant relief. First appellate court also found that even though trial court has not specifically raised a point as to the domestic violence, there is sufficient discussion and finding as to domestic violence perpetrated by the respondent. It has also been found by the appellate court that respondent admitted that he had taken the passport of the petitioner when he went back to Gulf. That was also taken as a clear example of harassment. So also, it has come out that after the settlement of the criminal appeal, according to the petitioner, she was taken to Velankanni Church and made her to take an oath that she will not contact her family members without his consent or permission. All those factors are eloquent enough to establish the mental cruelty and harassment to which the petitioner was subjected to at the instance of the respondent. So, I do not find any reason to accept the contention of the learned counsel for the respondent

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that there is no finding with regard to the domestic violence and hence the relief granted by the learned Magistrate as confirmed by the appellate court is not sustainable in law.

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The learned counsel would further contend about the means of the petitioner and that respondent is providing maintenance to the children by taking money back policy of insurance in the name of children. It has come out in evidence that petitioner has no job or source of income. Appellate court discussed about Ext.D7 and D8 to find that petitioner is depending on friends and family members to meet her requirements. It is also found that even though respondent contended that petitioner is getting income from property and agriculture, no materials have been produced to substantiate that fact. The learned counsel would contend that petitioner admitted during evidence that on 03.06.2016, Rs.50,000/- was received as 'money back' to daughter. But it has come out from her evidence that on 14.05.2015 she availed a loan of Rs.65,000/- from one Syriac Mathew, husband of her friend for the educational

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purposes of her children. The elder daughter has been doing B.Tech at Mannuthy. Ext.D10 would also reveal that her friends and relatives are making financial aid to her. The last payment made by the respondent was on 04.04.2012, an amount of Rs.5,000/-. This M.C was filed in 2015.

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With regard to the means of respondent also there is specific finding by the Magistrate as well as the appellate court. There is a specific finding by the appellate court that though he had taken great effort for producing the account details of petitioner and daughter, he did not produce his account details though he expressed his willingness to produce the same during cross-examination. It has been found by the learned Magistrate as well as the Sessions Court that he is earning income and capable for the same also. I do not find any irregularity or illegality in the said finding.

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Learned counsel has also got a contention that there is no reason whatsoever to award Rs.1,00,000/- towards compensation to the petitioner. Since it has been found that the

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petitioner was subjected to domestic violence by the respondent and in view of the nature of ill-treatment and harassment meted out at the instance of the respondent, the learned Magistrate awarded Rs.1,00,000/- towards compensation to the petitioner which was confirmed by the appellate court also. There is no illegality or impropriety in the said order warranting any interference by the revisional court with its limited jurisdiction. Hence, no interference is called for in that regard also.

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Learned counsel for the revision petitioner has also got a contention that in view of the settlement of earlier M.C, the subsequent proceedings initiated against him is barred by res judicata and with respect to the incident on 03.11.2011, according to her, the respondent was not present and the allegation is only against his family members. So, the question is whether the settlement and the disposal of the earlier criminal appeal in view of the statement filed by the petitioner would operate as res judicata in the subsequent proceedings as against the petitioner.

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Res judicata is a rule of procedure in civil law. Protection of Women from Domestic Violence Act, no doubt, is a civil remedy being adjudicated and executed through a criminal court. In Maghraj Calla v. Kajodi Ma : AIR 1994 Rajasthan 11 : 1994 KHC 2119, the learned Single Judge had occasion to consider the scope of Section 11 of the Code of Civil Procedure, 1908. Paragraphs 11, 12, 13 and 14 of the said judgment is relevant in this context which read thus:

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11. So far as the question whether Section 11, C.P.C. is in its terms exhaustive and is sole repository of the principle of application of res judicata, has its answer in negative, beyond the pale of doubt. The doctrine of res judicata or estoppel by record, is not a mere technical doctrine; but is a fundamental doctrine, of all courts, based on the twin principles -- that there must be an end to litigation and, that man should not be vexed twice over for the same cause.

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12. The general principle of res judicata is founded on maxims taken from Roman law. Res judicata, it is observed in Corpus Juris, Vol. 31, p. 743, is a rule of universal law, pervading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of common law;

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one, the public policy and necessity, which makes it in the interest of the State that there should be an end to litigation -- interest republicae ut sit finis litium; the other -- the hardship on the individual that he should be vexed twice for the same cause -- nemo debet bix vexari pro eaden cause.

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13. The leading exposition of doctrine of res judicata in modern times, is to be found in the words of Sir William de Grey, in Duchess of Kingstone case (Smith's Leading cases (13th Edn.) p. 644) :

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"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow us generally true; first that judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, direction in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly on the point, is, in the like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose."

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14. Halsbury's Laws of England described the doctrine as -- "it is a fundamental doctrine of all courts that there must be an end to litigation ....."

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Since the proceedings initiated by the petitioner

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against the respondent is under the provisions of the Act, no doubt, if at all the complaint has been filed based on the very same allegations which was disposed on merits in appeal, with out any new cause of action the principles of res judicata would have been applied. But, in the present case, when the appeal was pending before the Sessions Court, based on a statement of the petitioner about the settlement of the matter with the respondent the appeal was allowed. The copy of the judgment has also been produced and marked as Ext.P3 which would reveal that the appeal filed against the order in M.C.No.201/2007 of the Judicial First Class Magistrate Court, Kunnamangalam was allowed in the light of the statement filed by the petitioner that subsequent to the order passed by the learned Magistrate, the petitioner and the respondent settled all disputes in the presence of mediator and she had no objection in allowing the appeal to

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set aside the order in M.C.No.201/2007. So, in the light of the settlement arrived at between the parties, the appellate court allowed the appeal and the order passed by the Magistrate in M.C.No.201/2007 was set aside. So, it is clearly an order based on the settlement arrived at between the parties. Whether that would operate as res judicata is the crucial question for determination.

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It is relevant in this context to quote Susheela v. Kuttikrishnan : 1998 (2) KLT 188 : 1998 KHC 346 , wherein a learned Single Judge of this Court held that a compromise will not operate as res judicata . In that decision, Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao & Ors : AIR

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1967 SC 591 has also been cited wherein it has been held that a decree based on compromise is not a decision by the court and therefore the compromise decree does not operate as res judicata under Section 11 of the Code of Civil Procedure.

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In this case also, since earlier M.C was ultimately compromised during the pendency of the appeal based on

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statement filed by the petitioner, it will not operate as res judicata since it is not a decision by the court and hence the plea of res judicata raised by the learned counsel is also not sustainable.

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Next contention of the learned counsel is with regard to the award of maintenance to the major children which, according to her, is illegal and unsustainable.

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As per the impugned judgment, the Sessions Court has found that the M.C was filed when the eldest daughter had not attained majority and hence the Magistrate cannot be found fault with for granting maintenance to the eldest daughter also. It is also observed by the appellate court that the respondent can approach the Magistrate under Section 25(2) of the Act for modification or alteration of the order and hence no interference is made by the appellate court.

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Magistrate has directed to pay maintenance to the tune of Rs.12,000/- to the petitioner setting off Rs.5,250/- which is being received by her towards rent of the building, Rs.4,000/-

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per month to the elder daughter and Rs.2,000/- each per month to the younger daughters till they got married. The quantum of maintenance is in accordance with the cost of living and other factors and appears to be legal and proper. So, the question is whether the directions made by the learned Magistrate which is confirmed by the appellate court to pay maintenance till the children got married is sustainable in law?

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As per Section 2(b) of the Act, the definition of 'child' means any person below the age of 18 years and includes any adopted, step or foster child. Section 20 of the Act also enables the Magistrate to direct the respondent to pay monetary relief to meet the expenses incurred and loss suffered by the aggrieved person and any child of the aggrieved person. So, the Act expressly not provided that the child includes a major one also. In this context, it is relevant to quote Shri.Rajendra D.Seth v. Rekha Jha : 2014 CriL.J NOC 443 : 2014 KHC 3644 wherein

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a learned Single Judge of Bombay High Court had occasion to consider the scope of Section 2(b) and Section 20 of the Act and

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whether it extends to major children also. Paragraph 26 of the said decision is relevant in this context to be quoted which reads thus :

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“Insofar as children are concerned both of them have completed 18 years of old. Section 20 of the Act provides for granting of maintenance to the aggrieved persons and any child of the aggrieved person. As per S.2(b) 'Child' means any person below the age of 18 years. Thus, the applicant cannot become entitled to maintenance, on behalf of her children, who are admittedly above 18 years of age. Therefore, prima facie, I am of the view that part of the impugned order granting maintenance of Rs.1,000/- each to the children of the applicant, is not sustainable and bound to be set aside.”

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A Learned Single Judge of this Court in Viswanathan P.K. v. Geetha Kumari and Another : 2018 (4) KHC 409 : 2018 (4) KLT SN 22 had also occasion to consider the liability of the father to pay maintenance under Section 20 of the Act in the case of children who attained majority. Paragraph 13 of the said decision is relevant to be quoted which reads thus:

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“13. It is clear that the child as defined in the Domestic Violence Act specifically refers to any person below the age of 18 years. These scope of the terms is clear, categoric and unambiguous. There is no scope for any other interpretation. This seems to be clear from the decision reported in (Muhammed Vs. Kunhayisha 2003 KHC 1076), in which the learned Single Judge of this Court while invoking section 125 Cr.P.C held that the language of Crl.R.P.No.1419 of 2017 10 section 125 Cr.P.C does not permit a construction that the status of a major daughter as an unmarried person can by itself be construed as physical or mental abnormality or injury sufficient to bring her care within the sweep of S.125(c) beyond for the statute for meant. It was categorically held that whatever be the religion of the parties, the language of the statute did not permit an unmarried major daughter to be brought in the purview of section 125 Cr.P.C, on the mere ground that she was unmarried. This equally applies to a case under section 2 (b) of the Domestic Violence Act also.

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This view was later affirmed by a Division Bench of this court in (Cholamarakkar and Another Vs. Pathummamma @ Pathumma and Another 2008(3) KHC 973). Hence I am inclined to hold that

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the term child used in section 2 (b) clearly refers to any person below the age of 18 years, whether married or unmarried.”

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In Mohammed v. Kunhayisha : 2003(3) KLT 106 :

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2003 KHC 1076 , another learned Single Judge of this Court while dealing with S.125 of Cr.P.C, when a question arouse as to whether father is bound to maintain an unmarried daughter by construing a major daughter as an unmarried person as physical or mental abnormality or injury sufficient to bring her care with in the sweep of S.125(c) Cr.P.C, it has been held that language of S.125 Cr.P.C does not permit such a construction. In Cholamarakkar and Another v Pathemmamma@ Pathumma and Another: 2008 (3) KLT 887 : 2008 (3) KHC 973 that view was affirmed.

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So, from the above settled principles, without any further discussion it can be safely be concluded that Section 20 of the Act envisages the powers of the Magistrate to direct the respondent to pay monetary relief to make the expenses incurred and losses suffered by the aggrieved person and any child of the

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Crl.R.P.No.378/2021

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¶153

aggrieved person. Child has been defined as any person below 18 years under Section 2(b) of the Act. The Act is a self contained Act. Hence it can be safely concluded that only minor children of the aggrieved person are entitled for maintenance. In the present case, no oral evidence has been let in and documents produced by the petitioner to prove the exact age of the children. But respondent, in the proof affidavit, stated the date of birth of three daughters as 27.03.1998, 07.02.2001 and 17.08.2004 respectively. Exts.P6 to P8 wound certificates dated 03.011.2011 produced to prove the medical examination of the petitioner and children in connection with the incident on 03.03.2011 would refer about the age of the children. Ext.P6 wound certificate shows the age of the elder daughter as 13 years; in Ext.P7 wound certificate, the age of the second daughter has been noted as 9 years and in Ext.P8 wound certificate, the age of the younger daughter is noted as 6 years. The present M.C has been filed in the year 2015. As on the date of filing the M.C, the elder daughter also appears to be a minor. However, the direction of

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Crl.R.P.No.378/2021

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the Magistrate to provide maintenance to the daughters till they got married is not in consonance with the provisions of the Act

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and also the settled position of law and hence is liable to be interfered with.

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In the result, revision petition allowed in part and the

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direction to pay maintenance to the daughters till they get married is set aside and the liability of the respondent to pay maintenance to daughters is limited to the period they attain majority.

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(sd/-) M.R.ANITHA, JUDGE

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jsr/18/05/2022

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True Copy

¶163

P.S.to Judge

Baby Michael v. Shiny Michael

Case brief

What is this about?

What did the court decide?

Baby Michael v. Shiny Michael

Case brief

What is this about?

What did the court decide?

What the court decided

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