IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 Crl.Rev.Pet.No. 1406 of 2011 ------------------------------------- (CRA.765/2009 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM MC.81/2009 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR) .................... REVN. PETITIONER(S): REVISION PETITIONER/RESPONDENT ------------------------------- THUSHAR, AGED 30 YEARS, S/O. SASI, MALAYAMPURATHU VEEDU, VENGOLAKARA, ARACKAPPADY VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.R.SREEHARI SRI.K.RAJESH SUKUMARAN RESPONDENTS(S): APPELLANT & STATE/COMPLAINANT ------------------------- 1. ANILA, AGED 26 YEARS,D/O.KUTTAPPAN, KARAYAPURATH VEEDU, THAMMANIMATTAM KARA, KOLENCHERY.P.O., KUNNATHUNADU TALUK, PIN-682311. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI.REKHA.C.NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P.No. 1406 of 2011 ---------------------------------------- Dated this the 7th day of June, 2011 ORDER The challenge in this Criminal Revision Petition is mainly against the judgment dated 31.7.2010 in Crl.A.No.765 of 2009 of the court of Additional Sessions Judge (ADHOC-I), Ernakulam to the extent it directs the petitioner herein to pay maintenance at the rate of Rs.1500/- to the first respondent herein, the aggrieved person, who is the wife of the revision petitioner. 2. The first respondent herein approached the Judicial First Class Magistrate Court, Perumbavoor under Section 12 of the Protection of Women from Domestic Violence Act claiming various reliefs under the above Act against the petitioner herein,who is the respondent therein. By order dated 9.10.2009 in M.C.No.81 of 2009, the learned Magistrate though partly allowed the petition and issued order restraining the petitioner from committing any act of domestic violence against the aggrieved person, and directed the revision Crl.R.PNO.1406 of 2011 :-2-: petitioner to pay maintenance at the rate of Rs. 1000/- to the child. But, the prayer for maintenance in favour of the wife/the aggrieved person is rejected by the learned Magistrate. Aggrieved by the above order of the learned Magistrate, particularly, rejecting the claim for maintenance to the wife and the relief for getting back the gold ornaments and compensation of Rs.1 lakh from the petitioner, the wife preferred Crl.A.No.765 of 2009 before the Sessions Court, Ernakulam. Admittedly,the petitioner herein did not challenge the order of the learned Magistrate restraining the petitioner from committing domestic violence against the aggrieved person or against the order directing to pay maintenance at the rate of Rs.1000/- to the child, and no appeal is preferred. The learned Sessions Judge,by the impugned order,while allowing the appeal in part, directed he revision petitioner herein to pay maintenance at the rate of Rs.1500/- to the wife/the aggrieved person also in addition to Rs.1000/- per month granted by the trial court towards the maintenance for the child. Crl.R.PNO.1406 of 2011 :-3-: Thus, aggrieved by the above order of the appellate court, directing the petitioner herein to pay maintenance to the aggrieved person, the petitioner herein/husband preferred this Criminal Revision Petition. 3. Heard counsel for the petitioner. I have also perused the orders of the trial court as well as the appellate court. 4. Learned counsel vehemently submitted that in the petition preferred by the respondent herein under Section 12 of the Protection of Women from Domestic Violence Act, there is no specific pleading regarding the inability of the aggrieved person to maintain herself and no pleading regarding the income of the revision petitioner. It is also pointed out by the learned counsel, nowhere in the complaint, the aggrieved person has stated the reasons for claiming an amount of Rs.1500/- towards maintenance. Thus, according to the learned counsel, the trial court has rightly rejected the claim of the aggrieved person, but the appellate court, without assigning any proper and valid reasons, allowed the appeal, though only in part and allowed the claim Crl.R.PNO.1406 of 2011 :-4-: of the aggrieved person for maintenance. 5. I have carefully considered the arguments advanced by the learned counsel for the petitioner. Admittedly, the marriage between the petitioner and the aggrieved person/first respondent herein had taken place on 30.4.2006 and in the said wedlock, a female baby was born on 10.2.2007. According to the aggrieved person,immediately after the marriage, there was difference of opinion mainly based upon the dowry and regarding the health condition of the aggrieved person and according to the aggrieved person, she was used to subject to violence and she was not permitted to meet her parents and thus, she was subjected to both mental and physical cruelty. The trial court, after consideration of the petition and the documents produced along with it and on available evidence and materials, came to a conclusion that the respondent therein had committed domestic violence and accordingly, passed an order restraining the revision petitioner herein from committing domestic violence. In the light of the above basic Crl.R.PNO.1406 of 2011 :-5-: findings, the trial court has also directed the revision petitioner to pay maintenance at the rate of Rs.1000/- in favour of the child. Being the guardian of the child, the amount was directed to be paid to the wife, especially when the child is in the custody of the wife. It is relevant to note that the finding of the trial court that the wife was subjected to domestic violence has become final, since the same was not challenged by the revision petitioner. It is true, as rightly observed by the appellate court, there is no averment in the petition that she is unemployed or that it is very difficult to meet her expenses. But the fact is that the revision petitioner is the legally married husband of the aggrieved person/the first respondent herein. From the orders of the courts below, it can be seen that as the relationship between the petitioner and the first respondent became strained, and various litigations are going on including the petition filed by the revision petitioner for restitution of conjugal rights which are pending before the Family Court, Ernakulam. At this stage, this court is not in a Crl.R.PNO.1406 of 2011 :-6-: position to say what would be the result of the petition preferred by the revision petition for restitution of conjugal rights. But, it is a fact that the first respondent is the legally married wife of the petitioner and therefore, he is bound to maintain her, especially since the finding of the trial court that the petitioner has committed domestic violence against the wife, is not challenged, the wife is justified in residing separately and the strict law of pleading or evidence need not be insisted in a proceedings instituted under Section 12 of the Protection of Women from Domestic Violence Act. The petitioner has failed to prove that he has no income or capacity to generate income. So, according to me, the order directing the petitioner, who is the husband to give maintenance to his wife, even though there is not much pleadings, is not liable to be interfered with in revision. Of course, if there is any change of circumstances, including the order in favour of the petitioner in his application for restitution of conjugal rights, it is left open for him to bring those aspects to the notice of the court Crl.R.PNO.1406 of 2011 :-7-: below and to get an order in accordance with the provisions contemplated by the said Act. In the result, I find no reason to interfere with the order impugned and accordingly, the above Criminal Revision Petition, being devoid of merit, is dismissed, but subject to the above observation. V.K.MOHANAN, MBS/ Judge Crl.R.PNO.1406 of 2011 :-8-: V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:.. Crl.R.PNO.1406 of 2011 :-9-: