Raju Narayana Swamy and others v. Beena M.D. and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** **Crl.Rev.Pet.No. 1272 of 2017** **AGAINST THE ORDER/JUDGMENT IN CRA 250/2017 of II ADDITIONAL DISTRICT COURT,ERNAKULAM DATED 27-09-2017** **AGAINST THE ORDER/JUDGMENT IN CMP 1140/2017 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI DATED 27-07-2017** ## **REVISION PETITIONER/S:** **1 RAJU NARAYANA SWAMY, R.G 324,ULLOOR GRAMAM, MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM -695001** - **2 K.S VEKITACHALAM IYER, R.G 324, ULLOOR GRAMAM, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM- 695 001** - **3 L. RAJAMMAL, R.G 324, ULLOOR GRAMAM, MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM-695001** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.V.C.SARATH SRUTHY N. BHAT** ## **RESPONDENT/S:** - **1 BEENA M.D., HOUSE NO.XV/798-8-1,VATTAMAKKAL ROAD, MOLLAMKUZHY P.O,ERNAKULAM, KOCHI 682 005** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTORHIGH COURT OF KERALA, ERNAKULAM** **BY ADVS. SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.K.C.ELDHO SRI.MALLENATHAN.M. SRI.S.SREEKUMAR (SR.) OTHER PRESENT: SRI.JIJO THOMAS FOR R1, SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R2** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.06.2019, ALONG WITH Crl.Rev.Pet.1274/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** **Crl.Rev.Pet.No. 1274 of 2017** **AGAINST THE ORDER/JUDGMENT IN CRA 249/2017 of II ADDITIONAL DISTRICT COURT,ERNAKULAM DATED 27-09-2017** **AGAINST THE ORDER/JUDGMENT IN CMP 1140/2017 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI DATED 27-07-2017** ## **REVISION PETITIONER/S:** - **1 RAJU NARAYANA SWAMY, R.G.324, ULLOOR GRAMAM, MEDICAL COLLEGE P.O.,THIRUVANANTHAPURAM-695001.** - **2 K.S.VEKITHACHALAM IYER, R.G.324, ULLOOR GRAMAM, MEDICAL COLLEGE P.O.,THIRUVANANTHAPURAM-695001.** - **3 L.RAJAMMAL, R.G.324, ULLOOR GRAMAM, MEDICAL COLLEGE P.O.,THIRUVANANTHAPURAM-695001. BY ADVS. SRI.V.C.SARATH SRUTHY N. BHAT** ## **RESPONDENT/S:** |**1**|**BEENA M.D., HOUSE NO.XV/798-8-1, VATTAMAKKAL ROAD,**| |---|---| ||**MOLLAMKUZHY P.O., ERNAKULAM, KOCHI-682005.**| |**2**|**STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| ||**BY ADVS.**| ||**SRI.ANEESH JAMES**| ||**SRI.JIJO THOMAS**| ||**SRI.K.C.ELDHO**| ||**SRI.MALLENATHAN.M.**| ||**SRI.S.SREEKUMAR (SR.)**| **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.06.2019, ALONG WITH Crl.Rev.Pet.1272/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.Nos.1272/2017 & 1274/2017 ================== Dated this the 7[th] day of June, 2019 ## **O R D E R** Heard Sri.V.C.Sarath, learned counsel appearing for the petitioners, Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Jijo Thomas, learned counsel appearing for the 1[st] respondent and Sri.Amjad Ali, learned Prosecutor appearing for R-2 State in these Crl.R.Ps. 2. The 1[st] petitioner herein and the 1[st] respondent are divorced spouses. For the sake of convenience, the said parties will be referred to as “ _husband_ ” and “ _wife”_ respectively. It appears that the wife has filed application under Sec.12 of the Protection of Women from Domestic Violence Act, 2013 (“DV Act” for short) claiming maintenance and medical expenses and also protection from domestic violence. The main matter in the DV proceedings before the learned Magistrate has been numbered as CMP No.1138/2017 on the file of the Judicial First Class Magistrate's Court-II, Kochi in M.C.No. 30/2018. The wife had also filed interlocutory application in the said main matter claiming for grant of maintenance and medical expenses. The learned Magistrate after hearing both sides, has rejected the said plea for grant of said interlocutory orders. Being aggrieved by the Crl.Appeal 1272&1274/17 - : 4 :- rejection of the interlocutory reliefs, the wife had filed Crl.Appeal No. 249/2017 and Crl.Appeal No. 250/2017 before the II Addl. Sessions Court, Ernakulam, challenging the said two interim orders rendered by the DV court refusing the interim reliefs in the matter of grant of maintenance and medical expenses respectively. It appears that the appellate Sessions Court has allowed both the criminal appeals and has directed that the 1[st] petitioner herein should pay interim maintenance @ Rs. 30,000/- per month to the 1[st] respondent herein and that he should also pay interim medical expenses of Rs.1,14,300/- to her. It is aggrieved by the abovesaid judgments of the appellate Sessions Court granting the abovesaid interim reliefs to the 1[st] respondent herein that the petitioners have now filed instant the two criminal revision petitions. 3. This Court, while entertaining the revision petitions had passed an interim order on 26.10.2017 that there will be an interim stay for one month on condition that the petitioners herein should pay and continue to pay maintenance @ Rs. 20,000/- per month to R-1 herein until further orders. The complaint raised by the 1[st] respondent herein was that the petitioners have not complied with the condition in the interim stay order. Later this Court has passed Crl.Appeal 1272&1274/17 - : 5 :- ## yet another interim order on 4.4.2019, on Crl.M.A.No. 1/2019 in the above Crl.R.Ps. as follows: _**“** Heard both sides. The 1[st] revision petitioner/applicant has challenged the orders passed by the court below granting interim maintenance and also medical expenses to his wife under Section 23 of the Protection of Women from Domestic Violence Act. The original petition is still pending before the trial court. The orders passed by the trial court were modified in appeal by the appellate court, and now what is payable as interim maintenance to the claimant as per the appellate order is ₹30,000/- per month, and the Court has also ordered payment of some medical expenses. Medical expenses cannot be now assessed or ordered because it is something to be decided at the final stage. So that order will have to be suspended. But as regards interim maintenance, I feel that something will have to be regularly and promptly paid to the claimant. On the earlier occasion while granting interim stay, he was directed to make payment at the rate of 20,000/- per month. The said order has expired₹ and now he seeks revival and extension of the stay order. The application is opposed by the other side on the ground that the 1[st] revision petitioner has kept even the amount ordered by this Court in arrear, and huge amount remains to be paid. The revision petitioner is an IAS Officer and the respondent is a practicing Advocate. The revision petitioner cannot have any excuse to keep the amount of maintenance in arrear. Anyway, on a consideration of the various aspects, I feel it appropriate to modify, revive and extend the interim stay granted by this Court as follows:_ _a. Enforcement of the interim order passed by the court below for medical expenses will stand suspended till the case is finally decided by the trial court._ _b. Enforcement of the order for interim maintenance will stand suspended on condition that the 1[st] revision petitioner shall make payment of interim maintenance to the wife at the rate of 20,000/-₹ per month as already ordered by this Court regularly and promptly, every month the amount being payable before the 7[th] of every English month. The arrear, if any,payable as per the interim orders made earlier shall be deposited by him, within three weeks._ _c. In case the 1[st] revision petitioner did not comply with the conditions of the order granting suspension of execution of the order, the wife can very well execute the order in the trial court._ _Post the revision petitions for final hearing on 3.6.2019.”_ 4. Though the parties are at loggerheads on various issues, this Court is fortunate enough to hear from the learned Advocates appearing on both sides that at least on the limited point that the Crl.Appeal 1272&1274/17 - : 6 :- petitioners have so far complied with the directions in the abovesaid interim order for payment of interim maintenance amount. The whole dispute that is now projected before this Court is only on an interlocutory aspect which was considered by the court below. Then the 1[st] respondent herein challenged the order of the trial court before the Sessions Court. The appellate sessions court decided in favour of the wife. Now the said order of the appellate sessions Court is under challenge in these revision petitions. Therefore, it is beyond any doubt that the main matter in M.C.No. 30/2018 is even now pending on the file of the Judicial First Class Magistrate's Court-II, Kochi. Therefore, all endeavours should be made by the parties as well as the said court concerned to ensure the final disposal of the said main matter without any further delay. 5. One of the grounds urged by the petitioners in these revision petitions is that the main matter under Sec.12 of the DV Act itself is not maintainable since the 1[st] respondent herein has secured a decree of divorce in her favour and that therefore, the domestic relationships between the parties have admittedly ceased to have existed for more than 3 years and hence the proceedings under the DV Act in the matter of grant of maintenance or any such other releifs Crl.Appeal 1272&1274/17 - : 7 :- are not maintainable, etc. 6. Per contra, Sri. S.Sreekumar, learned Senior Counsel appearing for the 1[st] respondent would point out that the said issue has been decided in favour of the 1[st] respondent herein and the said contention of the petitioners is untenable and is covered against the petitioners as per the dictum laid down in various decisions as in the case in _**Juveria Abdul Majid Patni v. Atif Iqbal Mansoori & Anr.**_ [2014-4 Crimes (SC) 442], _**Bipin v. Meera D.S. & Ors.**_ reported in 2016 (4) KLT 418, etc. 7. The learned counsel for the petitioners would try to rebut the sand contention of the 1[st] respondent by placing reliance on the judgment of the Apex Court in _**Krishna Bhatacharjee v. Sarathi Coudhary**_ , reported in 2015 (4) KLT 999 (SC), etc. 8. This Court need not get into the task of resolving the said vexed issues, as those matters are eminently to be adjudicated and decided by the original forum, where the main matter is even now pending. 9. Now it is pointed out by both sides that the petitioners herein have been set ex parte by the learned Magistrate in the main matter in DV proceedings. The matter has been pending before this Crl.Appeal 1272&1274/17 - : 8 :- Court for quite some time. The parties have already got divorce and even now they are litigating. Therefore in the interest of justice and taking into account the welfare of the rival litigants, it is ordered that the impugned proceedings of the Judicial First Class Magistrate's Court-II, Kochi to the extent it has rendered the respondents in M.C.No. 30/2018 as ex parte will stand set aside and the respondents in that M.C. are permitted to file their counter affidavit or such other pleadings, without any further delay, at any rate, within two weeks from the date notified for receiving certified copy of this order. Thereafter, the learned Magistrate will grant reasonable opportunity to both sides and after hearing both sides, will advert to the various contentions raised by the parties and will render its final verdict in the matter without further delay. Final orders disposing of the main matter in M.C.No.30/2018 shall be rendered by the learned Magistrate without much delay, preferably within an outer time limit of 3 months from the date of production of a certified copy of this order. Until final orders are passed by the learned Magistrate in the main matter, the abovesaid interim order granted by this Court on 4.4.2019 as noted herein above, will continue to govern the field purely as an interlocutory arrangement. The directions and orders in Crl.Appeal 1272&1274/17 - : 9 :- the impugned judgment of the appellate sessions court will stand accordingly modified. The parties through their learned Advocates will appear before the Magistrate court concerned at 11.00 a.m. on 29.6.2019. With these observations and directions, the above Criminal Revision Petitions stand finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE**