IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.Rev.Pet.No. 3791 of 2009() ------------------------------ CRA.73/2009 of ADDL. SESSIONS COURT (ADHOC), MAVELIKKARA MC.7/2009 of JUDL.FIRST CLASS MAGISTRATE COURT I, KAYAMKULAM .................... REVISION PETITIONER(S): APPELLANT/RESPONDENT: ---------------------------------------------------------------------------------- ANANDAN K., S/O.KARUTHAKUNJU, VALLAPPALLIL VEEDU, PUTHEN CHANTHA P.O., KAYAMKULAM, NOW EMPLOYED AS CHIEF CONSERVATOR, SOUTH CIRCLE, CHINNAKKADA, KOLLAM. BY ADV. SRI.A.K.ALEX RESPONDENT(S):RESPONDENTS: PETITIONERS: ------------------------------------------------------------------------ 1. SARADA, W/O.ANANDAN, VALLAPPALLIL VEEDU, PUTHEN CHANTHA P.O., VALLIKUNNAM. 2. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ALAPPUZHA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.HARILAL R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3791 of 2009 ------------------------------- Dated this the 31st day of August, 2010. O R D E R This revision petition is preferred by the respondent, who is the husband of the aggrieved person in a petition filed u/s.23 of the Protection of Women from Domestic Violence Act, 2005. As he is aggrieved by the order dated 3.2.2009 of the learned Magistrate, awarding the interim order of maintenance to the aggrieved person @ Rs.4,000/- per month, though an appeal was filed, the appellate court confirmed the order of the learned Magistrate and hence this revision petition. 2. From the impugned orders, it appears that the marriage between the revision petitioner as well as the respondent, hereinafter for convenience referred only as `husband' and `wife' respectively, was taken place during the year 1984. Subsequently, the relationship became worse and finally the wife preferred M.C.No.7/09 u/s.23 of the Protection of Women from Domestic Violence Act, 2005, on various grounds, before the Crl. R.P.No.3791 of 2009 2 Court of Judicial First Class Magistrate-Kayamkulam. During the pendancy of the above proceedings, the wife preferred Crl.M.P.No.2479/08, claiming interim maintenance u/s.23 of the above Act. Challenging the claim in the above Crl.M.P., the revision petitioner/husband raised objection also. After having regard to the facts and circumstances involved in the case and the rival contentions, the learned Magistrate disposed of the above Interlocutory Application, directing the revision petitioner to pay Rs.4,000/- per month to the wife as interim maintenance and also ordered that the payment shall be made before, the 10th of every month, starting from February 2009 onwards, failure of which will be met with Sec.125(3) of Cr.P.C. Beside the above, the revision petitioner was restrained from evicting the petitioner forcefully from his residence, and from committing any act which may disturb her peaceful residents there, and from causing hurt to her. 3. Aggrieved by the above order, the revision petitioner herein preferred an appeal as Crl.A.No.73/09 and by judgment Crl. R.P.No.3791 of 2009 3 dated 26.8.2009, the Court of Addl. Sessions Judge-I, Mavelikkara, dismissed the appeal confirming the order of the trial court. It is the above orders of the trial court as well as the lower appellate court challenged in this revision petition. 4. I have heard Adv.Sri.A.K.Alex, the learned counsel appearing for the revision petitioner/husband as well as Adv.Sri.K.Harilal, the learned counsel appearing for the 1st respondent/wife. 5. The learned counsel for the revision petitioner vehemently submitted that, the courts below miserably failed to consider the objection raised by the revision petitioner that he assigned 20 cents of property to the 1st respondent/the wife and she can derive an income of Rs.3,000/- from that property and therefore the petition seeking interim relief was filed with a view to harass the revision petitioner. Thus according to the learned counsel, the courts below, without considering the objection raised by the revision petitioner and without proper application of mind, passed an order directing the revision petitioner to pay a Crl. R.P.No.3791 of 2009 4 sum of Rs.4,000/- as monthly maintenance allowance. 6. On the other hand, the learned counsel appearing for the respondent submitted that the revision petition itself is not maintainable, as the orders impugned arising out of an interlocutory application and the revision petitioner can raise all his contention at the time of final disposal of the main petition, pending before the trial court. 7. I have carefully considered the contentions raised by the respective counsels and also perused the orders of the courts below and other materials available on record. It is a fact that the main petition filed u/s.23 of the Protection of Women from Domestic Violence Act, 2005, is still pending for consideration in the trial court. It is also beyond dispute that the learned Magistrate issued the impugned order on the basis of an affidavit filed by the wife - the aggrieved person and also after consideration of the objection filed by the revision petitioner-the husband. Admittedly no evidence is taken. It is also a fact beyond dispute that, the 1st respondent herein who is the Crl. R.P.No.3791 of 2009 5 aggrieved party before the trial court is the wife of the revision petitioner and their marital relationship still continue as such, even though there is a difference of opinion among them. The learned Magistrate after having satisfied with the grievance put forwarded by the wife, came into a conclusion, as evident from the impugned order of the learned Magistrate contained in page 2, which reads as follows:- “The petitioner has included her son also as the 2nd petitioner and is claiming maintenance for him also. But as per law, the son, though he is still a student of the age 22 years, cannot claim maintenance. But as the affidavit filed by the petitioner, primafacie discloses acts of Domestic Violence by the counter-petitioner it is urgent and necessary that an interim order be passed in this case.” According to the learned Magistrate, it was inevitable and expedient to pass an interim order. The learned Magistrate came into a conclusion after having referred to the facts and circumstances involved in the case, and while exercising the revisional jurisdiction, this court is not expected to interfere with Crl. R.P.No.3791 of 2009 6 such a satisfaction arrived on by the trial court. 8. The main contention advanced by the learned counsel for the revision petitioner is that the court has not considered the objection filed by the revision petitioner, wherein it is stated that the wife is given 20 cents of property. Even if it is admitted as true, that the wife has got 20 cents of property, there is no evidence to show that the said property is an income generating one so that the wife can depend upon the income from such property for her maintenance. In the absence of any materials or evidence to that effect, it can not be said that the order of the learned Magistrate is illegal, incorrect or improper. Therefore I find no reason to interfere with the order of the appellate court as well. 9. However as indicated earlier, the main proceedings are pending before the trial court and it is for the contesting parties to approach the trial court for an earlier disposal of the matter after adducing evidence. It is upto the revision petitioner to adduce evidence to show that the 1st respondent-wife has got sufficient Crl. R.P.No.3791 of 2009 7 evidence to maintain herself, without depending the revision petitioner and the respondent is also free to adduce contra- evidence to substantiate her contention also. In the result, this revision petition is disposed of relegating the revision petitioner as well as the 1st respondent to approach the trial court for an earlier disposal of the main matter pending before it, in accordance with the procedure and law. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/