IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Crl.Rev.Pet.No. 834 of 2011() ----------------------------- CRA.591/2009 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CMP.1861/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------------- JOHNSON MANUEL, AGED 53 YEARS, S/O. JOSEPH K.O., KONNULLY HOUSE, OLANAD, THIRIMUPPAM VARAPUZHA P.O., ERNAKULAM, NOW RESIDING AT KANNAMPARAMBIL HOUSE, C/O. G.GEORGE, VAZHIKULANGARA, NEAR RENGANANTH AUDITORIUM, N.PARAVUR, ERNAKULAM DISTRICT. BY ADVS. SRI.NISHIN GEORGE VIJAYABABU SMT.ANNAMMA PHILIP RESPONDENTS: ---------------------- 1. LOVELY MARTIN @ LOVELY MARGRETTE, AGED 46 YEARS, W/O. JOHNSON MANUEL, VARIATH HOUSE, CHERANALOOR P.O., EDAPPALLY VIA, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SMT.R.ASALATHA VARMA R2 BY PUBLIC PROSECUTOR : SRI T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AMG Crl. R.P No.834/2011 APPENDIX PETITIONER'S ANNEXURES ANNEXURE-1 – CERTIFIED COPY OF THE JUDGMENT OF THE HON'BLE ADDITIONAL SESSIONS COURT (ADHOC-1) ERNAKULAM IN Crl. A No.591/2009 DATED 09-12-2000. ANNEXURE-2 – COPY OF THE ORDER OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, ERNAKULAM IN CMP No.1861/2009 DATED 22-08-2008. ANNEXURE-3 – COPY OF ARGUMENT NOTES FILED BY THE REVISION PETITIONER DATED 05-05-2010. ANNEXURE-4 – COPY OF THE RECEIPT DATED 19-04-2011 ISSUED BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, ERNAKULAM EVIDENCING PAYMENT OF Rs.15,000/- RESPONDENT'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE AMG S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.834 OF 2011 ----------------------------------------- Dated this the 24th day of October 2011 ORDER 'C.R' Revision is by the respondent in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act (for short, 'the Act'), challenging the orders passed by the magistrate as confirmed by the learned Sessions Judge in appeal prohibiting him from committing any act of domestic violence as against the applicant, to accommodate her in his house mentioned in the complaint and also directing him to pay maintenance at the rate of `.1,500/- to his two children over and above the maintenance awarded to them by the Family Court till enhancement of such claim is effected by such court at the request of the claimant. Propriety, legality and correctness of that order is impeached by the respondent in this revision. 2. Notice given, the applicant in the aforesaid proceedings has appeared. The records of the case were called for and perused. 3. Application arising various reliefs under the Act, moved by the applicant/wife before the Chief Judicial magistrate Court was transferred to the court which has passed the impugned order. Order sheet reflecting the orders passed by the magistrate on the Crl.R.P No.834 OF 2011 - 2 - application discloses, on transfer, the complaint coming up before the court below on 18-07-2009 notice was ordered to the respondent through the protection officer. Complaint was posted for inquiry on 25-07-2009. Since there was no sitting of the court on that day, the complaint was posted on 31-07-2009. That day, the applicant was present, but, there was no report from the protection officer and the case was adjourned to 12-08-2009. That day also the applicant was present. The court ordered fresh notice to the respondent through protection officer and also by registered post, and adjourned the case to 19-08-2009. On 19-08-2009, the complainant and the respondent were present and the case was adjourned to 22-08-2009. The court on 22-08-2009, hearing both sides and also the protection officer, passed the impugned order directing the respondent to accommodate the applicant in his house, restrained him from committing any act of domestic violence, and also awarded maintenance to his two children over and above the claim for maintenance already awarded by the Family Court, with a rider that such claim shall continue to be in force till enhancement of the claim by the Family Court on the application of the applicant is considered and decided. Perusing the records of the case, it is also noticed that Crl.R.P No.834 OF 2011 - 3 - the respondent, on his appearance, has moved an application seeking time to file objections to the claims made, after getting assistance from a counsel. No orders have been passed by the court on the request made by the respondent as aforesaid for filing objections. 4. From the submissions made by the counsel on both sides, it is seen that matrimonial disputes as between the spouses have given rise to series of proceedings before the Family Court and the application moved by the husband for restitution of conjugal rights has been allowed in his favour. Claim for maintenance moved on behalf of the two children of the spouses by the wife/mother has also been allowed by the Family Court directing the husband/father to pay maintenance to the two children. When such proceedings were pending over the matrimonial disputes between the parties, the application under Section 12 of the Act was moved by the wife against the husband. Whatever be the merit of the claims made in that application, an opportunity to meet the case of the wife should have been afforded to the husband before passing any adverse order against him. Posting dates of the case mentioned above would clearly demonstrate that in response to the notice issued the Crl.R.P No.834 OF 2011 - 4 - respondent husband appeared on 19-08-2009 and without giving an opportunity to file objection, for which a written request was made, the final order in the proceedings was passed on 22-08-2009 directing him to comply with the prohibitory orders and also to pay maintenance to his children at the rate fixed. A report from the protection officer, as seen from the records, would indicate that since he was engaged in several official activities, notice ordered through him to the respondent could not be served within the time ordered by the court. That would also indicate prima facie that there was no culpable act or willful default on the part of the respondent to evade the notice ordered by the court in the proceedings. Whatever that be, when the respondent appeared before the court, receiving the notice issued, it was incumbent upon the court to extent him reasonable opportunity to file his objections to the claims raised against him in the proceedings. That was not done in the case would indicate that there was failure to provide fair hearing to the respondent. Further more, it is noticed that the impugned final order in the proceedings has been passed by the magistrate on no evidence. The order only shows that the magistrate put some queries to the respondent and then decided the disputed issues Crl.R.P No.834 OF 2011 - 5 - involved in the case placing reliance on the answers elicited from him. Though the proceedings are before the Criminal Court, it involves determination of disputes affecting substantive rights of the parties. To arrive at a judgment over the disputed issues involved, the magistrate has to provide reasonable opportunity to both sides to tender their pleadings and also to lead evidence. The inquiry of the magistrate should be one in search of truth, to arrive at a fair and correct conclusion on disputed facts presented before him. When opportunity to one or the other party is denied, it tantamounts to flouting of the due process of law. Final order passed by the magistrate, which has been passed without recording the evidence, cannot at all be sustained. The learned sessions Judge, in appeal, has overlooked the material irregularity in the procedure conducted by the magistrate in passing the order though it was challenged by the respondent in the appeal. The order of the magistrate as affirmed by the learned Sessions Judge in the circumstance has to be set aside, and I do so. During the pendency of the proceedings, the respondent has been directed to pay `.15,000/- towards arrears of maintenance awarded by the magistrate under the impugned order. The learned counsel for the respondent would state that since the Crl.R.P No.834 OF 2011 - 6 - amount has been paid to his children as maintenance, whatever be the outcome of the proceedings, no direction/order for its adjustment in the final orders to be passed in the proceedings is required. 5. Parties are directed to appear before the magistrate on 21-11-2011. The magistrate shall take back the complaint on file, complete the proceedings as expeditiously as possible, after affording reasonable opportunity to the respondent to file objections, and to both sides to lead evidence in support of their respective case, and dispose the case in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge