IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 Crl.Rev.Pet.No. 2130 of 2010() ------------------------------ CRA.146/2010 of ADDL.SESSIONS COURT,-I, MAVELIKKARA MC.55/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS-II,MAVELIKKARA .................... REVN. PETITIONER(S)/APPELLANT/PETITIONER/RESPONDENT :- -------------------------------------------------------------------------------------------- MONI, AGED 52 YEARS S/O.NARYANAN, MONI HOUSE VEDARAPLA, THAMARAKULAM,MAVELIKARA TALUK. BY ADV. SRI.R.PADMAKUMAR RESPONDENT(S)/RESPONDENT/RESPONDENT/APPLICANT :- ------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 2. JALAJA, AGED 43 YEARS W/O.MONI, MONI HOUSE VEDARAPLA, THAMARAKULAM, MAVELIKARA TALUK – 690 101 PUBLIC PROSECUTOR MR. C.M.NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~ Crl.R.P.No.2130 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 16th day of July 2010 O R D E R The revision petitioner herein is the respondent in M.C.No.55/2008, which is a petition filed under Sec.22 and 25(2) of the Protection of Women from Domestic Violence Act, 2005, by the wife of the petitioner. 2. During the pendency of the above petition, the wife of the petitioner moved Crl.M.P.No.2528/2008 for interim maintenance and by order dated 06-09-2008 the trial court directed the revision petitioner herein to pay interim maintenance at the rate of Rs.6,000/- to the wife. Against the above order, though the revision petitioner had preferred an appeal as Crl.A.No.463/2008 the lower appellate court dismissed the same by order dated 16-02-2009. Thus according to the revision petitioner, he Crl.R.P.No.2130 of 2010 -: 2 :- had deposited a sum of Rs.6,000/-. Thereafter, the respondent wife filed another petition claiming maintenance at the rate of Rs.6,000/- from 01-12-2009. On the basis of the above petition, the learned Magistrate issued an order directing the revision petitioner herein to pay monthly maintenance at the rate of Rs.6,000/- from 01-12-2009. Aggrieved by the above order, the revision petitioner had preferred C.M.P.No.580/2010 to review the said order. But the learned Magistrate by order dated 10-03-2010 in C.M.P.No.580/2010 the request for review of the petitioner was declined. 3. Aggrieved by the above orders of the learned Magistrate, the revision petitioner herein preferred Crl.A.No.146/2010. The learned Sessions Judge while disposing the appeal reduced the rate of monthly maintenance ordered by the trial court and fixed the same as Rs.4,000/-. But while disposing the appeal, though the amount was reduced and fixed as Rs.4,000/-as monthly Crl.R.P.No.2130 of 2010 -: 3 :- maintenance allowance to be paid to the aggrieved person the wife of the revision petitioner, the learned Sessions Judge suo moto modified the order dated 05-12-2009 of the learned Magistrate and directed the revision petitioner to pay the interim maintenance, retrospectively from the date of the petition, ie; 1.12.2008. 4. Though the revision petitioner approached the lower appellate court aggrieved by the order of the learned Magistrate in maintenance to the wife with effect from 01-12-2009, the learned Sessions Judge gave retrospective effect for the order of the learned Magistrate that too without hearing the petitioner on that issue. The learned counsel pointed out that against the order of the learned Magistrate, fixing the maintenance to be paid with effect from 01-12-2009 only, the aggrieved person has not filed any appeal. According to the learned counsel, in the absence of appeal by the aggrieved person to have the benefit of the maintenance from 01-12-2008, it is improper Crl.R.P.No.2130 of 2010 -: 4 :- on the part of the learned Sessions Judge giving effect of the order retrospectively from 01-12-2008 and that too on the appeal preferred by the revision petitioner. 5. On a perusal of the impugned orders and the other relevant documents and hearing of the learned counsel, it appears to me that the learned Sessions Judge passed the impugned order after having satisfied that the learned Magistrate issued the order, directing to pay maintenance to the wife, without perusal and appreciating the documentary evidence and it was on that ground the learned Sessions Judge reduced the amount from Rs.6,000/- to Rs.4,000/-. It is also discernible from the order of the learned Sessions Judge that the learned Magistrate is directed to expedite the trial of the M.C. within 60 days also. In the absence of any petition or claim from the side of the aggrieved person for getting retrospective effect of the order for maintenance from the date of filing of the M.C. ie; 1.12.2008 and when the revision petitioner approached Crl.R.P.No.2130 of 2010 -: 5 :- the lower appellate court aggrieved by the order of granting maintenance to the aggrieved person, the learned Sessions Judge is not expected to pass an order giving retrospective effect to the payment of maintenance especially without hearing the revision petitioner on those aspects. Therefore, according to me it is only proper to direct the learned Sessions Judge to reconsider the order impugned particularly with respect to the direction, giving retrospectivity of the order of the learned Magistrate, provided the revision petitioner depositing the remaining arrears from 1.12.2009 onwards within a reasonable time. In the result, this revision petition is disposed of setting aside the order of the learned Sessions Judge to the extend of directing the revision petitioner to pay the maintenance with effect from 1.12.2008 and the learned Sessions Judge is directed to reconsider the above question after hearing the petitioner as well as the other necessary parties including the respondent herein and dispose the Crl.R.P.No.2130 of 2010 -: 6 :- same within a period of 2 months from the date of receipt of a copy of this judgment which will be produced by the revision petitioner in the lower appellate court and on further condition that the revision petitioner depositing the entire arrears due with effect from 1.12.2009 at the rate of Rs.4,000/-, within one month from today in the trial court. The revision petitioner is further directed to produce the receipt, showing the deposit of the arrears in the trial court, before the lower appellate court within 10 days from the date of remittance of the arrears. On such production of the receipt, the lower appellate court is directed to take up the appeal and dispose the same as directed above. Crl.R.P. is disposed of as above. V.K.MOHANAN, JUDGE. Jvt