Sulochana A.R. v. Soman C.B. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.398 OF 2020** **AGAINST THE JUDGMENT IN CRA 250/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT, MUVATTUPUZHA** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** **SULOCHANA A.R. AGED 64 YEARS W/O.SOMAN.C.B., HOUSE NO.XV/58, CHETTICHATH HOUSE, KANJIRAMATTOM P.O., ERNAKULAM-682 315.** **BY ADVS. SRI.P.R.JAYAKRISHNAN SRI.R.REJI KUMAR** ## **RESPONDENT/APPELLANT/RESPONDENT:** - **1 SOMAN C.B. AGED 66 YEARS S/O.BHASKARAN, HOUSE NO.XV/58, CHETTICHATH HOUSE, KANJIRAMATTOM P.O., ERNAKULAM-682 315.** - **2 STATE OF KERALA,** - **REPRESENTED BY GOVERNMENT PLEADER/PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM.** **R1 BY ADV. SMT.LEKHA SURESH R1 BY ADV. SRI.ASHOK SURESH** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.12.2020, ALONG WITH CRL.REV.PET.415/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P Nos.398 & 415 of 2020 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.415 OF 2020** **AGAINST THE JUDGMENT IN CRA 250/2019 DATED 11-03-2020 OF ADDITIONAL DISTRICT & SESSIONS COURT,MUVATTUPUZHA** **AGAINST THE ORDER IN CMP NO.907/2019 IN MC 2/2019 DATED 23-07-2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM** ## **PETITIONER/APPELLANT/RESPONDENT** **SOMAN C.B. AGED 67 YEARS S/O.BHASKARAN, HOUSE NO.XV/58, CHETTICHATH HOUSE, KANJIRAMATTOM P.O., ERNAKULAM DISTRICT, PIN - 682 315.** **BY ADVS. SMT.LEKHA SURESH SRI.ASHOK SURESH** ## **RESPONDENT/RESPONDENT/PETITIONER:** **1 SULOCHANA A.R., AGED 64 YEARS, RESIDING AT HOUSE NO.XV/58, CHETTICHATH HOUSE, KANJIRAMATTOM P.O., ERNAKULAM DISTRICT, PIN - 682 315.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **R1 BY ADV. SRI.P.R.JAYAKRISHNAN R1 BY ADV. SRI.R.REJI KUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.12.2020, ALONG WITH CRL.REV.PET.398/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P Nos.398 & 415 of 2020 3 ## **ALEXANDER THOMAS, J.** ## **=========================== Crl.R.P Nos.398 & 415 of 2020 ===========================** Dated this the 21[st] day of December, 2020 ## **ORDER** As both these criminal revision petitions challenge the same judgment of the Appellate Sessions Court and as the respective revision petitioners in these cases are the applicant and the respondent in the proceedings under the Domestic Violence Act, these petitions are disposed of on the basis of this common order. 2. The prayers in Crl.R.P No.398/2020 are as follows: - _“i. Issue directions or orders, quashing the Annexure A1 judgment to the extent it reduced the monthly maintenance from Rs 16,500/- to Rs 10000/- per month;_ - _ii. Issue directions or orders, staying the operation of Annexure A1 judgment to the extent it reduced the monthly maintenance from Rs 16,500/- to Rs 10,000/- per month;_ - _iii. To issue such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 3. The prayer in Crl.R.P No.415/2020 is as follows: _“................ to call for the records leading to the judgment of the Learned Addl.District and Sessions Court, Muvattupuzha in Crl.Appeal No.250/2019 dated 11.3.2020 and to revise, alter, modify or set aside the same and dismiss CMP 907/2019 in M.C.2/2019 of the Judicial first Class Magistrate Court, Piravom and pass such further orders as are deemed fit and proper on the facts and circumstances of the case including costs of the proceedings to the petitioner.”_ Crl.R.P Nos.398 & 415 of 2020 4 4. The revision petitioner in Crl.R.P No.398/2020 is stated to be the wife of the revision petitioner in Crl.R.P No.415/2020, whereas the revision petitioner in Crl.R.P No.415/2020 would claim that the marriage between the abovesaid parties have not been solemnized in the manner known to law, etc. Further, for the sake of convenience, the revision petitioner in Crl.R.P No.398/2020 will be referred to as the wife and the revision petitioner in Crl.R.P No.415/2020 will be referred to as husband. The wife has filed M.C No.2/2019 before the Judicial First Class Magistrate’s Court **,** Piravom, in which the husband has been arrayed as the respondent therein, seeking various reliefs under the Protection of Women from Domestic Violence Act (hereinafter referred for short as ‘DV Act’). 5. The learned Magistrate has passed the impugned interim order dated 23.07.2019 in Crl.M.P No.907/2019 in M.C No.2/2019, ordering that the wife should be paid interim maintenance at the rate of Rs.16,500/- per month by the husband during the pendency of the abovesaid main petition. Certain other interim reliefs are also granted in the said interim order dated 23.07.2019. 6. Aggrieved thereby, the husband has filed Crl.Appeal No.250/2019 before the First Additional Sessions Court, Muvattupuzha Crl.R.P Nos.398 & 415 of 2020 5 under Sec.29 of the DV Act, challenging the said interim order dated 27.10.2019 rendered by the Judicial First Class Magistrate’s Court **,** Piravom in Crl.M.P No.907/2019 in the above M.C, ordering the abovesaid monthly interim maintenance. The abovesaid Appellate Sessions Court has passed the impugned judgment dated 11.03.2020 in Crl.Appeal No.250/2019, whereby the said appeal has been partially allowed by ordering that the interim maintenance awarded by the learned Magistrate at the rate of Rs.16,500/- per month, will stand reduced to Rs.10,000/- per month. All the other interim reliefs granted by the learned Magistrate has been upheld in the said judgment. 7. Being aggrieved by the said appellate judgment, the wife has filed the aforecaptioned Crl.R.P No.398/2020 contending that the Appellate Sessions Court has exercised its discretion wrongly in having reduced the interim maintenance from Rs.16,500/- per month, as ordered by the learned Magistrate to Rs.10,000/- per month. When Crl.R.P No.398/2020 had come up for consideration on 10.06.2020 and had also granted the interim order that the operation and enforcement of the impugned judgment of the Appellate Sessions Court to the extent it has reduced the monthly maintenance awarded to the petitioner from Rs.16,500/- per month to Rs.10,000/- per month, will stand stayed until Crl.R.P Nos.398 & 415 of 2020 6 further orders. 8. Further, the husband has later filed Crl.R.P No.415/2020 contending that the Appellate Sessions Court has committed a grave illegality, even having awarded interim maintenance at the lower rate and that the marriage between the parties have not been solemnized and further that, the wife is having reasonable source of income and that Appellate Sessions Court should have actually set aside the interim order of the learned Magistrate in its entirety, so that the said party need not have to pay any interim maintenance amount to the lady. 9. Both sides have been _heard in extenso_ on the previous occasions. As noted hereinabove, one of the main contentions urged by the learned counsel for the revision petitioner in Crl.R.P No.415/2020 is that no valid marriage has been solemnized as between the parties and further that, the lady has adequate and reasonable source of livelihood and income and that therefore, she is not entitled either for final maintenance or for interim maintenance. 10 _Per contra_ , the learned counsel for the revision petitioner in Crl.R.P No.398/2020 would contend that the abovesaid contention of the husband is bereft of any merit and is in derogation of the well accepted principles of presumptions and contentions have been made on Crl.R.P Nos.398 & 415 of 2020 7 the basis of provisions of the Indian Evidence Act, more particularly, Sec.108 of the Act and would contend that therefore, the provisions in Sec.107 of the Indian Evidence Act will not come into play in this case and that therefore, the husband cannot even remotely raise such a contention against the fact that both are spouses. So also, contentions have been made by the petitioner in Crl.R.P No.398/2020, on other aspects of the matter and would state that the Appellate Sessions Court has committed a grave illegality in having exercised its discretion to reduce the interim maintenance amount and that original amount awarded by the learned Magistrate should be upheld. 11. After hearing both sides, it appears that both these parties are raising various contentions against each other. There appears to be only one aspect which both cannot dispute in unison and that is that the impugned proceedings in this case is arising essentially out of an interlocutory decision of the learned Magistrate. True that the interlocutory order of the learned Magistrate under the DV Act has been subjected to appellate challenge and the impugned decision of the Appellate Court is a judgment in a criminal appeal filed under Sec.29 of the DV Act. Therefore, technically the parties can contend that since the order that is directly under challenge in this case is a judgment of the Crl.R.P Nos.398 & 415 of 2020 8 Appellate Sessions Court under Sec.29 of the DV Act, the said decision of the Appellate Sessions Court cannot be termed as an interlocutory order as understood in Sec.397(2) of the Cr.P.C and that therefore, the revision petition is maintainable, as the impugned decision is not an interlocutory order of the Appellate Sessions Court. That may be so, but the heart of the matter is that the impugned criminal proceedings arising out of both the proceedings of the original Forum as well as the Appellate Forum is essentially emanating from an interlocutory order of the learned Magistrate rendered under the DV Act. So also, both sides cannot have any disputes that the main matter in M.C No.2/2019 on the file of the learned Magistrate is still pending adjudication and determination. Crl.R.P No.398/2020 has been filed before this Court on 21.05.2020 and has been pending since then, whereas Crl.R.P No.415/2020 has been filed on 23.06.2020 and has been pending since then. Both these matters are pending for quite some time and if necessary directions has been given at the admission stage itself, the main dispute between the parties itself would have been ordered to be finally resolved by the learned Magistrate in terms of the provisions contained in the DV Act. Crl.R.P Nos.398 & 415 of 2020 9 12. After anxiously considering the contentions on both sides, this Court is of the considered view that any decision that may render on the merits of these pleas, may prejudice the one side or the other or even both partially and parties may contend that this will lead to prejudicing their contentions, that are still pending for final adjudication before the learned Magistrate. The matter is hotly contested by both sides. If this Court is now entering into the merits of the controversy regarding the applicability of the provisions of the Evidence Act regarding the presumption, etc. and then to assess any contentions of both sides on the factum of solemnization of the marriage or otherwise, one side or other may raise objection of prejudice, etc. True, that any such finding that may be made by this Court, legally can be seen only as one rendered in the context of the present lis and may not have any present lis, etc. So also, after hearing both sides, this Court is of the considered view that the impugned order need not be interdicted at this stage and the ends of justice would be advanced and this Court directs that the main matter in M.C No.2/2019 is finally disposed of by the learned Magistrate within the shortest possible time. 13. Therefore, it is ordered that the Judicial First Class Magistrate’s Court, Piravom will take all reasonable endeavours possible Crl.R.P Nos.398 & 415 of 2020 10 in the circumstances to ensure the final disposal of M.C No.2/2019, without much delay, preferably within a period of four months, at any rate, within an outer time limit of five months from the date of production of a certified copy of this order. The court below concerned as well as the parties will strictly observe the norms and guidelines rendered by the Apex Court in the judgment dated 04.11.2020 in Crl.Appeal No.730/202 in the case _**Rajanesh v. Neha & anr.**_ [2020 (6) KHC 1 (SC) = 2020 (2) KLD 811]. Hence, it is ordered that the interim stay order dated 10.06.2020 passed by this Court in Crl.R.P No.398/2020 will stand vacated. The learned counsel for the wife would allege that even now, not even single paise is given by the husband for the last about 16 months or so. This Court need not enter into such issues, as the remedy in such a case is for the party concerned to file appropriate execution application before the learned Magistrate for enforcement of such claims, in accordance with law and after hearing both sides. 14. It is made clear that the learned Magistrate will pass final orders in the aboesaid M.C, independently and on merits and in accordance with law and strictly in accordance with the directions and norms issued by the Apex Court in _**Rajanesh’s case**_ (supra) 2020 (6) Crl.R.P Nos.398 & 415 of 2020 11 KHC 1 (SC) and untrammelled and uninfluenced in any manner by any of the observations and findings made by this Court hereinabove or any of the observations and findings, in which the impugned interim order passed by the learned Magistrate or by the Sessions Court in the impugned judgment. In other words, the provision for interim maintenance shall be purely interlocutory in nature and the final claims in this case will have to be decided independently and in accordance with law and strictly in accordance with the guidelines and norms issued by the Apex Court in _**Rajanesh’s case**_ (supra) 2020 (6) KHC 1 (SC). With these observations and directions the above Crl.R.Ps will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd Crl.R.P Nos.398 & 415 of 2020 12 ## **APPENDIX OF Crl.Rev.Pet 398/2020** |**PETITIONER'S/S**|**EXHIBITS:**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF JUDGMENT DATED 11.03.2020 IN**| ||**CRIMINAL APPEAL NO.250/2019 OF ADDITIONAL**| ||**DISTRICT COURT, MUVATTUPUZHA.**| |**ANNEXURE A2**|**TRUE COPY OF ORDER DATED 23.07.2019 IN**| ||**CMP NO.907/2019 IN MC NO.2/2019 OF JFCM**| ||**COURT, PIRAVOM.**| |**ANNEXURE A3**|**TRUE COPY OF APPEAL MEMORANDUM DATED**| ||**21.08.2019 FILED BY RESPONDENT BEFORE**| ||**DISTRICT DISTRICT AND SESSIONS COURT,**| ||**ERNAKULAM.**| |**ANNEXURE A4**|**TRUE COPY OF THE LETTER DATED 29.08.2002**| ||**WRITTEN BY THE RESPONDENT TO THE**| ||**PETITIONER FROM KUWAIT.**| |**ANNEXURE A5**|**TRUE COPY OF THE LETTER DATED 31.07.2003**| ||**WRITTEN BY THE RESPONDENT TO THE**| ||**PETITIONER.**| |**ANNEXURE A7**|**TRUE COPY OF PENSION PAYMENT ORDER DATED**| ||**30.08.2017 ISSUED BY EMPLOYEES PROVIDENT**| ||**FUND ORGANIZATION, AHMEDABAD.**| |**ANNEXURE A8**|**TRUE COPY OF THE RESPONDENT'S LOAN**| ||**STATEMENT**<br>**NO.0032081000004026**<br>**DATED**| ||**22.03.2019 ISSUED BY THE SOUTH INDIAN**| ||**BANK, KANJIRAMATTOM BRANCH.**|