Dismissed

K.Saravanan v. Agilandeswari

Madras HC22 Oct 2021CRL RC/463/2015

Case brief

AI extract

What is this about?

The High Court of Madras dismissed the husband's criminal revision petition challenging the maintenance and compensation order granted against him and his in-laws under the Domestic Violence Act, holding that the findings of domestic violence were undisputed and the lower courts did not err procedurally.

What the court decided

AI extract

K.Saravanan Vs Agilandeswari — Domestic Violence | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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ORDERS RESERVED ON : 08.09.2021

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ORDERS PRONOUNCED ON : 22.10.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.R.C.NO.463 OF 2015 AND M.P.NO.1 OF 2015

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K.Saravanan ... Petitioner

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Agilandeswari ... Respondent

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PRAYER:-

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Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C., to set aside the order passed in Crl.A.No.49 of 2014 dated 15.04.2015 on the file of Principal District and Session Judge, Vellore District in partly modifying the order passed in M.C.No.4 of 2012 dated 23.04.2014 on the file of the Judicial Magistrate No.V, Vellore District.

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For petitioner : Mr.S.Saravanan

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For Respondent : Mr.S.Karthikeyan For Mr.M.Ravi

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O R D E R

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The husband is the revision petitioner herein.

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This revision is filed to set aside the order passed in Crl.A.No.49 of 2014 dated 15.04.2015 on the file of Principal District and Session Judge, Vellore District in partly modifying the order passed in M.C.No.4 of 2012 dated 23.04.2014 on the file of the Judicial Magistrate No.V, Vellore District.

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The learned counsel for the revision petitioner would contend that the complaint was preferred by the wife under the Domestic Violence Act, before the learned Judicial Magistrate No.V, Vellore, for

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

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(i) Protection order

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(ii) Monitory award of maintenance

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(iii) Damages for the domestic violence caused upon her

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(iv) For return of the jewels alleged to have been presented by her mother which is now said to be with the husband side.

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The first respondent is the wife of the petitioner herein.

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The marriage between the petitioner and the respondent was solemnized at marriage hall in Sathuvachari at Vellore on 21.10.2010. A daughter by name Dhanuska was born at C.M.C hospital on 04.12.2011. 3 years Prior to filing petition under Section 12 of the Domestic Violence Act both husband and wife are living separtely and the above situation, M.C.No.4 of 2012 is filed by the wife against the husband and father in law and mother in law claiming various reliefs under the Domestic Violence Act under Sections 18 (Protection Order), 20 (Maintenance order), 21 (Police custody order), and 22 (compensation order).

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The learned Magistrate has awarded maintenance order of Rs.10,000/- per mensem towards the wife and Rs.7000/- towards the child and compensation of Rs.20,000/- for committing Act of Domestic Violence and also return of 3/4 kilo silver and also the list of household articles. As against the respondents 2 and 3 namely father-in-law and mother-in-law, no separate order was passed. Aggrieved against the said order, the husband seems to have filed the appeal in C.A.No.49 of 2014 wherein order of maintenance finding of commission of Domestic Violence was upheld return of articles are also upheld. While the quantum of compensation has been reduced from Rs.20 lakhs to Rs.10 lakhs and hence further appeal by the husband.

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The learned counsel for the revision petitioner-husband contended that there is no specific prayer in the Domestic Violence petition before the Magistrate seeking the return of articles has envisaged under Section 19. In the absence of any prayer domestic the learned judge has committed an error and the calculation arrived at for Rs.20 lakhs by the Magistrate or Rs.10 lakhs by the learned Sessions Judge are not based on any reasonable calculation.

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The learned counsel for the respondent has made submission in support of the order passed by the Courts below.

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This Court in (i) 2008 (1) MLJ (Crl) Page 1315 [Amar

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Kumar Mahadevan V.Karthiyayini] has held as follows:-

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"For taking cognizance of application filed by aggrieved person, receipt of domestic incident report from Protection Officer not a condition precedent - Proceedings pending under Act could not be quashed merely on ground of minor procedural deviation, if any".

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and (ii) 2011 Vol.1 MWN Crl.567 [ M.Palani Vs.Meenakshi] has held as follows:-

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"The Magistrate is necessarily follwed and act in accordance with proviso to section 12(1) - proviso section 12(1) Mandates, A Magistrate has to take into consideration the Domestic Incident Report filed by Protection Officer. Only the report is considered and necessary opportunities extended to parties concerned truth will come out.".

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The Magistrate has taken into consideration of the affidavit of P.W.1 and also the various documents marked therein namely Exs.1 to 12.

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Admittedly, the revision petitioner has chosen himself not to present before the Domestic Violence Court namely the Judicial Magistrate but chosen to file an appeal.

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After perusing the evidence and relevant documents submitted by the respondent-wife, both the Courts below have come to the conclusion that her husband namely the revision petitioner and in laws committed physical adduce, verbal and committed economical adduce against the appeal.

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In view of the above finding, I hold that the respondent wife is a aggrieved person and as an aggrieved person, she has preferred petition under Section 12 of the Protection of Woman Domestic Violence Act.

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Further, it is referred in Delhi High Court by Hon'ble Mr.Justice S.Ravindra Bhat Hon'ble Mr.Justice S.P.Garg on 17.05.2012 Crl.M.C.No.3083 of 2011 and Crl.M.A.No.10914 of 2011, Shambhu Prasad Singh/petitioner vs.Manjari/respondent that:

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It is noteworthy that Section 12(1) does not mandate that an application seeking relief under the Act be accompanied with the DIR or even that it should be moved by a Protection Officer. Even Rule 6 which stipulates the form and manner of making an

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application to the Magistrate does not require that the DIR must accompany an application for relief mdae under Section 12. It is only the proviso to Section 12(1) which mandates that the Magistrate shall consider the DIR "received by him from the Protection Officer or the service provider". No obligation to call for the DIR has been imposed upon the Magistrate. The plenitude of the power under Section 12, to pass appropriate orders, upon the application by "an aggrieved person"i.e., the victim of domestic violence is thus emphasized. A unique feature which the Court has to keep in mind is that the opening phrase in Section 12 are wide ("An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act....". If Parliament had intended that a report of the Protection Officer is a pre-condition for the magistrate to act upon the complaint of an aggrieved person, or someone acting on her behalf, it would have expressed that intention more clearly. The Court instead, is circuitously asked to interpret that provision, in the light of a Proviso, which is contextual, rather than compulsive".

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However it is to submit that in the present case the involvement of the protection officer as a service provider as much exist and she had also submitted her Domestic incident Report (DIR) in a prescribed form with an affidavit to the Hon'ble Magistrate V - dt.30.10.2012 in which the complainant Ahilandeswari deposed all the Domestic Violences committed on her by the respondents 1,2,3 and 4. In this context it is to be noted that the reliefs granted under various provisions of DV Act may not have any relevance as it is the lawful duty of the Hon'ble Judicial Magistrate to take the cognizance of such offence and to pass appropriate orders to protect the aggrieved person. No way passing of such necessary orders will have any any binding over the DIR report. The Protection Officer is the service provider and to report the domestic violences committed on aggrieved person and to identify the residence and appropriate jurisdiction. Thus, the lower Court has not violated any mandatory provisions of Sections in DV Act, especially in the context of provision assigned to protection officer in submitting the

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

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DIR.

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Taking into consideration of the nature of the employment, both the Courts below have rightly granted maintenance award of Rs.10,000/- to the wife and Rs.7000/towards child under Sections 21(d), 20(d) and also 22 of the Act.

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I am perused the counter before the judicial magistrate at Para.18 which rreads as follows:-

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"nkYk; gphpt[ 19(8) rPhpthpir bghUl;fis jpUg;gpj;ju nfhhpa[s ;s tpiy cah;e ;j bghUl;fs; kw;Wk ; j';f eiffs; kw;Wk ; kDjhuhpd; cilikfs; midj;Jk ; jd;dpr ;irahfnt vLj;Jf ;bfhz;L jd; jha; tPl;ow ;F vLj;J te;jjhf mth; jhf;fy ; bra;Js ;s kDtpy; Fwpg;gpl;Ls;shh ;/ vdnt gphpt[ 19(8)y; nfhhp[as;s kPjKs;s 3-4 Kjy; 1 fpny bts;sp rhkhd;fs ;. fg;nghh;L. T.V.flha; kw;Wk ; ikf;nuh ntt; Xtd; 1?k; vjph;kDjhuh; trKs;sJ mjid jpUg;gpj ;ju vt;tpjkhd Ml;nrgida[k ; ,y;iy/ kDjhuh; nfhhpa[s ;s gphpt[ 19(8)d;go jpUg;gp xg;gilf;Fk ;go nfhhpa[s ;s ghpfhuj;jpypUe;nj///////"

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In view of the counter filed before the Court, both the Courts below has directed to return of those articles belongs to the respondent wife and hence I find that in view of the affidavit filed before the Court that the in-laws are ready to return the articles it is not open to the husband, who is not contested the case before the Magistrate Court to raise a technical objection that in the absence of any prayer for return of articles the order given by the Courts below cannot be countenance and said contention of the revision petitioner husband cannot be countenance. Since by their affidavit they expressed the disclosed fact those articles are with the respondent and the article belongs to the wife and their relief return the articles and hence the prime contention raised by the revision petitioner- husband is stands negatived. As to the quantum of compensation for committing the Domestic Violence Act, after going through the order passed by the learned Magistrate and the finding that was confirmed by the lower Appellate Court, I find that the same does not warrant any interference.

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It remains to be stated that the revision petitioner herein has not appeared before the Court. He is not contested the case. Now, it is not open to challenge the finding when he was not contest the case. Admittedly the in laws are not filed the revision. Hence viewing any angle, I find no merits.

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In view of the affidavit filed as extracted supra by the respondent, both the Courts below have rightly ordered for return of articles and hence this Criminal Revision Petition is

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devoid of merits.

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