Dismissed

Subramanian, M/48 v. Rameswari

Madras HC4 Jul 2017CRL RC/883/2017

Case brief

AI extract

What is this about?

In a criminal revision, the Madras High Court upheld the dismissal of a petition filed under Section 45 of the Indian Evidence Act seeking a medical examination of the respondent wife to determine if she is a 'woman' entitled to protection under the Domestic Violence Act.

What did the court decide?

Revision petition dismissed; order of the lower court upholding dismissal of the medical examination petition affirmed.

Subramanian, M/48 Vs Rameswari — Civil Procedure and Limitation | Madras HC (2017)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 04.07.2017

¶3

CORAM:

¶4

THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

¶5

Crl.R.C.No.883 of 2017

¶6

Subramanian

¶7

.. Petitioner

¶8

PRAYER: Criminal Revision Case has been filed under Section 397 and 401 Cr.P.C., to call for the entire records in so far relates to order passed in Crl.M.P.No.3074 of 2016 in D.V.A.No.4 of 2016, dated 10.03.2017 on the file of the Judicial Magistrate-III, Erode, Erode District and set aside the same.

¶9

This Criminal Revision Case is filed against the order passed by the Judicial Magistrate No.III, Erode in Criminal M.P.No.3074 of 2016.

¶10

Before the Court below, the petitioner has filed a Miscellaneous Petition, under section 45 of the Indian Evidence Act, with a prayer, to direct the respondent to undergo medical examination before a competent medical officer attached to Government Head Quarters Hospital, Erode to prove the fact that she is not a woman, as defined under section 2 of the Protection of the Woman from Domestic Violence Act 2005.

¶11

In support of the said petition, the petitioner averred that the respondent/wife is not a woman and therefore, she is not entitled to file the main case i.e. D.V.A.No.4 of 2016 (filed under the provisions of the Protection of Women from Domestic Violence Act, 2005).

¶12

It is also the case of the petitioner that though marriage had been solemnized between the petitioner and the respondent, they could not lead the marriage life peacefully, and within a short period, difference of opinion arose. With the result, the petitioner had filed the HMOP No.114 of 2015 on the

¶13

https://hcservices.ecourts.gov.in/hcservices/

¶14

file of the Subordinate Judge, Tiruchengode.

¶15

It is further case of the petitioner that when the said HMOP filed by the petitioner is pending before the competent court, as a counter blast, the respondent had filed the present case under Domestic Violence Act. Therefore, the petitioner had moved the petition under section 45 of the Indian Evidence Act, to examine the respondent by way of medical diagnosis, as to whether she is a woman or not.

¶16

Opposing the said petition, the respondent had filed counter before the court below, where, she has averred that the marriage between the petitioner and the respondent was solemnized on 09.07.2014 at a temple called Arulmigu Marutha Kaliamman Thirukovil at Nasiyanur Village, Erode District.

¶17

The averment of the respondent in the counter was that 10 sovereigns of jewels and Rs.50,000/- towards the marriage expenses had been spent by the family of the respondent and also after the marriage, the petitioner and the respondent led a comfortable and happy married life, of course, for a short period.

¶18

Thereafter, the petitioner under the influence of alcohol, started troubling the respondent and it is also alleged in the counter that the petitioner had demanded a further sum of Rs.1,00,000/- towards dowry and also a two wheeler (Motor cycle). Only in that circumstances, the said HMOP No.114 of 2015 was filed and it is pending adjudication.

¶19

It was further alleged by the respondent in the counter that though on attempt was made for compromise, by the family members and relatives from the respondent side, on 16.11.2014, the said move was repulsed by the petitioner. The respondent has also stated at para-5 of the counter in Court below as follows:

¶20

“fle;j 16/11/2014 k; njjp kDjhuupd; bgw;nwhh;. g[fhh;jhuUf;Fk; gpujpthjpf;Fk; Vw;gl;l kd tUj;jj;ij nghf;fp rkurk; ngr \g;gd;fhl;ow;F te;jdh;. mg;nghJ gpujpthjp. mtuJ jhahh;. mf;fh. mf;fh kfs;. mz;zd; Mfpnahh;fs; nrh;e;J moj;J Jd;g[Wj;jp. g[fhh;jhuhpd; bgw;nwhUlnd moj;J Juj;jptpl;lhh;fs;/ ,e;epiyapy; fle;j 05/08/2014k; njjp gpujpthjp g[fhh;jhuiu gyte;jg;gLj;jp clYwt[ bfhs;s Kad;wij jhnk jkJ vjpUiuapy; xg;g[f;bfhs;fpwhh;/”

¶21

10/ Therefore, the respondent has averred in the counter that, only under such circumstances, the petition under the Domestic Violence Act, was filed against the petitioner, and only as a counter blast, the petitioner has come forward with the present petition under section 45 of the Indian Evidence Act. 11. Heard Mr.C.Prakasam, learned counsel appearing for the petitioner.

¶22

https://hcservices.ecourts.gov.in/hcservices/

¶23

The lower court after having considered the claim and counter claim of the parties concerned and after having gone through the averments made in the petition as well as the counter field therein, has come to a conclusion that the court below does not have power to order medical examination of the respondent and therefore it was decided that the petition was bereft of merits and accordingly, it was dismissed.

¶24

The learned counsel appearing for the petitioner invited attention of this Court to section 2(a) of the Protection of Women from Domestic Violence Act, 2005, (herein after referred to as the Act). The said clause reads thus Para -2

¶25

a.“aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

¶26

The learned counsel argued that, since the word ''woman'' has not been defined under the Act and it is defined as aggrieved person, and according to section 2(a) of the Act, aggrieved person means, ''any woman'', the petitioner since is of the definite view that the respondent is not a woman, therefore she is not fit person to lead a family life.

¶27

Mr.C.Prakasam would also submit that in view of section 45 of the Indian Evidence Act, the petitioner has got every right to move the said petition, as the one moved by the petitioner before the court below, and therefore, he submits, that the same ought not to have been dismissed by the lower court.

¶28

I have considered the submission made by the learned counsel for the petitioner and also perused the materials placed before this court. At the out set, this court wants to examine whether the said petition, which is dismissed by the lower court, filed under section 45 of the Indian Evidence Act, would be maintainable for the prayer sought for therein. In this regard, section 45 of the Evidence Act could be usefully referred to.

¶29

Opinions of experts.-When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting 2*[or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3*[or in questions as to identity of handwriting] 2*[or finger impressions] are relevant facts.

¶30

On a plain reading of section 45 of the Act, one

¶31

https://hcservices.ecourts.gov.in/hcservices/

¶32

can easily understand that if at all the Court wants to form an opinion upon a point on foreign law or science or art, or to identify handwriting or finger impression, then the opinion upon that point of persons specially skilled in such areas are the relevant facts.

¶33

Section 45 of the Evidence Act cannot be stretched to that extent to have a medical examination to get a result as to whether a particular person is woman or not, and she would be fit to be a person to lead a family life that too after solemnizing the marriage and leading a marriage life for a while, and that move, is, in the opinion of this Court, completely out of purview of section 45 of the Indian Evidence Act.

¶34

On an complete wrong understanding, the petitioner had moved the court below with a petition, seeking such extreme relief. If at all the petitioner had any grievance as to the present one, the same could very well have been agitated in the pending HMOP before the competent family court.

¶35

However, in so far as in the present case under the Domestic Violence Act, filed by the respondent to take remedial action against the petitioner, these kind of petition, especially under section 45 of the Evidence Act, in the opinion of this court, could not be entertained. Therefore, the learned trial Judge, after having considered these aspects, has rightly dismissed the petition, filed by the petitioner.

¶36

Moreover, once the marriage was solemnized between the petitioner and the respondent and the same has been accepted by both sides, whatever remedy the party wants in the eye of law, can only be agitated in the manner known to law. Therefore, for the said purpose, the method adopted by the petitioner, by way of filing petition, seeking the respondent to undergo medical examination under section 45 of the Indian Evidence Act, is thoroughly out of the purview of the very Domestic Violence Act and therefore, there is every justification on the part of the learned judge, in the court below, to dismiss the said petition. Therefore, for all these reasons, this court is not inclined to entertain this revision as it deserves to be dismissed. Accordingly, it is dismissed.

¶37

Sd/Assistant Registrar(CS II)

¶38

//True Copy//

¶39

Sub Assistant Registrar

¶40

rli/tar

¶41

https://hcservices.ecourts.gov.in/hcservices/

¶42

¶43

The learned Judicial magistrate-III, Erode, Erode District.

¶44

+1cc to Mr.C.Prakasan, Advocate SR.No.46713

¶45

Crl.R.C.No.883 of 2017

¶46

GN(31/07/2017)

¶47

https://hcservices.ecourts.gov.in/hcservices/

Subramanian, M/48 v. Rameswari

Case brief

What is this about?

What did the court decide?

Subramanian, M/48 v. Rameswari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M.Ponnusamy, Vs the Presiding Officer

N. Chinnasamy Vs the Chairman

K.a.Prabhu, Vs the Regional Lpg Manager

Karthick, M/26 Vs State Represented by

Manoj Kumar Gangawal Vs Ashakavita Jain

Selvam @ Selvaraj, Vs the Executive Magistrate Cum