IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 Crl.Rev.Pet.No. 2876 of 2007() ------------------------------ CRA.125/2007 of SESSIONS COURT, KALPETTA, WAYANAD MC.21/2007 of JUDL.FIRST CLASS MAGISTRATE COURT I, SULTHANBATHERY .................... REVISION PETITIONER(S): RESPONDENT/PETITIONER: ---------------------------------------------------------------------------------- AKHILA, W/O.ANIL KUMAR, KALLANCHIRA HOUSE, VARADOOR P.O., KARANI. (NOW RESIDING AT SREENILAYAM HOUSE, PANAMARAM P.O., KUPPATHODE AMSOM) BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): APPELLANT/RESPONDENTS: ------------------------------------------------------------------------ 1. ANIL KUMAR K.R., S/O.K.G.RAMASWAMY, KALLANCHIRA HOUSE, VARADOOR P.O., KARANI. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.M.P.ASHOK KUMAR, SRI.P.C.GOPINATH. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/08/2010 ALONG WITH CRRP NO. 3497 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.Nos.2876 & 3497 of 2007 ------------------------------- Dated this the 30th day of August, 2010. O R D E R As these two revision petitions are intrinsically interconnected and the parties are one and the same, these revision petitions are heard together and being disposed by this common order. 2. In both these revision petitions, the challenge is against the order dated 26.7.2007 in Crl.A.No.125/07 of the Sessions Judge, Wayanad, Kalpetta. Crl.R.P.No.2876/07 is filed at the instance of the wife, who is the aggrieved person and who preferred M.C.No.21/07 before the Judicial First Class Magistrate Court-I, Sulthan Bathery u/s.23 of the Domestic Violence Act, 2005. Crl.R.P.No.3497/07 is preferred by the husband, challenging the order of the appellate court, since he is aggrieved by the said order, as he was not fully relieved of the liability fixed by the learned Magistrate to pay the future maintenance. 3. The revision petitioner in Crl.R.P.No.2876/07 is the wife Crl. R.P.Nos.2876 & 3497 of 2007 2 and the revision petitioner in Crl.R.P.No.3497/07 is the husband and herein after for convenience reference will be made as `wife' and `husband' only. It is beyond dispute that, their marriage was solemnised on 18.5.2003 in accordance with their religious customs and rites. It is also a fact that the marital relationship between the husband and wife became strain and as a result of that, the wife approached the JFCM-I, Sulthan Bathery, by filing a petition u/s.19, 20 and 23 of Protection of Women from Domestic Violence Act, 2005, wherein the husband is the sole respondent, which is taken on file as M.C.No.21/07. During the pendancy of the above matter, the wife filed an application u/s.23 of Protection of Women from Domestic Violence Act, 2005, claiming maintenance @ Rs.40,000/-. After hearing both the parties and on perusal of the affidavit filed by the petitioner, the learned Magistrate issued an order dated 10.5.2007, holding that the petitioner therein is entitled to get an interim maintenance @ Rs.5,000/- per month and accordingly, considering the fact that the respondent/husband is likely to leave abroad, the learned Magistrate directed the respondent to pay a sum of Rs.1,20,000/- Crl. R.P.Nos.2876 & 3497 of 2007 3 (24 months x Rs.5,000/-) to the petitioner within one week u/s.23 of the Protection of Women from Domestic Violence Act, 2005. 4. Challenging the above order, the husband preferred Crl.A.No.125/07 before the Sessions Court, Wayanad, and by an order dated 26.7.07, the learned Sessions Judge allowed the appeal only in part and accordingly the order of JFCM Court in M.C.No.21/07 is modified and the interim maintenance amount is reduced to Rs.3,000/- per month. In the appellate court order, the learned Sessions judge made it clear that, it shall be open to both the parties to adduce appropriate evidence before the learned Magistrate and the Magistrate was directed to dispose of the petition, expeditiously on merits and in accordance with law and as provided under Sections 12(4) and 12(5) of the Act. 5. As indicated earlier, dissatisfied with the order of the appellate court, the husband preferred Crl.R.P.No.3497/07 and against the interference, with the order of the learned Magistrate, the wife preferred Crl.R.P.No.2876/07. 6. Heard Mr.Salil Narayanan K.A., the learned counsel appearing for the revision petitioner in Crl.R.P.No.2876/07 and Crl. R.P.Nos.2876 & 3497 of 2007 4 Mr.M.P.Ashok Kumar, the learned counsel appearing for the revision petitioner in Crl.R.P.No.3497/07, who are also appearing for the opponents in the respective revision petitions. 7. Mr.Salil Narayanan K.A., the learned counsel appearing for the wife submitted that, the order of the appellate court is liable to set aside, since without assigning any valid reasons, the interim order, issued by the learned Magistrate in favour of the aggrieved person is interfered by the appellate court and the future maintenance amount was reduced to Rs.3,000/- per month, unsupported by any evidence or materials. On the other hand, Mr.M.P.Ashok Kumar, the learned counsel for the husband submitted that the learned Magistrate issued the impugned order without considering the affidavit filed by the husband/respondent and the lower appellate court miserably failed to consider the fact that the husband has lost his job and also inadverting to the fact that the wife has got an employment and therefore both the orders are liable to be set aside. 8. I have carefully considered the arguments advanced by both the counsels and also perused the materials available on Crl. R.P.Nos.2876 & 3497 of 2007 5 record. Several legal and factual contentions are advanced by both the counsels but in view of the order which I proposed to pass, I am not inclined to consider the merits or demerits of the above arguments. 9. As rightly observed by the appellate court, while passing the order by the learned Magistrate, the learned Magistrate failed to consider the contentions raised by the husband, which he advanced through the counter affidavit. However, even in the absence of any evidence and other materials, the lower appellate court interfered with the order of the trial court and reduced the maintenance amount to @ Rs.3,000/- per month. Though the husband, by filing an additional affidavit, stated that he had lost his job and now he is with the unemployment benefit given by the Govt. of Canada, no details are given. It is also the contention of the learned counsel for the husband that, the husband approached the Family Court and filed a divorce petition and the same was allowed, against which an appeal has been filed and the same is pending for consideration of this court. 10. However, even in the event of confirming the divorce in Crl. R.P.Nos.2876 & 3497 of 2007 6 appeal, the divorced wife is entitled to get maintenance. It is also relevant to note that though an order was passed by the learned Magistrate as early as on 10.5.2007, no substantial amount is seen paid towards the total amount ordered by the trial court. Even though there was a direction issued by the appellate court, directing the learned Magistrate to dispose of the matter pending before it, the same has not disposed so far because of the stay order in this matter. No amount is paid to the wife, except penalty of a sum of Rs.30,000/- deposited by the husband. 11. In the light of the facts and circumstances referred above, I am of the view that these revision petitions can be disposed of directing the husband/revision petitioner to pay the entire arrears of maintenance @ Rs.3,000/- per month from the date of the order ie., 10.5.2007 till 10.5.2010 and the husband need to deposit only the balance amount, after deducting a sum of Rs.30,000/-, which already deposited by the husband. From the entire balance amount to be paid, 50% of the arrears shall be deposited, within 1 month from today and the remaining 50% amount shall be deposited within one month, from the date of Crl. R.P.Nos.2876 & 3497 of 2007 7 the deposit of the Ist instalment and the wife is entitled to withdraw the entire amount on depositing the same. The parties are directed to appear in the trial court on 4.10.2010, either in person or through their counsels, on which date the learned Magistrate is directed to take up the case and proceed with the same in accordance with procedure and law and dispose the entire matter pending before it, within a reasonable time as expeditiously as possible. It is also made clear that if the proceedings are prolonged, the learned Magistrate is free to pass fresh appropriate orders regarding the interim measures, including interim maintenance based upon available materials or evidence. V.K.MOHANAN, Judge. ami/