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Gomathi vs Chakratis on 27 March, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.03.2018
CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.R.C.(MD)No.815 of 2017

Gomathi : Petitioner
Vs.

Chakratis : Respondent

PRAYER: Criminal Revision Case is filed under Sections 397 and 401 of the
Criminal Procedure Code praying to call for the records of the impugned order
dated 16.08.2017 in C.A.No.15 of 2017 passed by the learned Principal
Sessions Judge, Tiruchirappalli Division, Tiruchirappalli in respect of the
modification made in the order directing the respondent herein to pay the
monthly maintenance to the petitioner and her children from the date of order
of the Trial Court and set aside the same and confirm the order dated
29.12.2016 in D.V.C.No.107 of 2016 passed by the learned Judicial Magistrate,
Additional Mahila Court, Tiruchirappalli.

!For Petitioner : Mr.C.Arul Vadivel Alias Sekar
^For Respondent : Mr.S.Rajesh Kanna

:ORDER

For the sake of convenience, the parties will be referred to by their
name.

2. Gomathi got married to Chakratis and they have two children through
the wedlock. On account of the matrimonial discord, the couple got estranged
resulting in Gomathi being left to fend for herself with her children.
Therefore, Gomathi filed S.T.C.No.644 of 2009 before the learned Judicial
Magistrate No.VI, Trichy under the provisions of the Protection of Women from
Domestic Violence Act, 2005 for various reliefs against Chakratis. On the
orders of the learned Chief Judicial Magistrate, S.T.C.No.644 of 2009 was
transferred to the learned Judicial Magistrate, Additional Mahila Court,
Trichy and was re-numbered as D.V.C.No.107 of 2016. Gomathi examined herself
as P.W.1 and her son Prabhakaran was examined as P.W.2. On behalf of Gomathi,
Exs.P.1 to P.15 were marked. No witness was examined on behalf of Chakratis,
but, however, Exs.R.1 and R.2 were marked. After considering the evidence
adduced by both sides, the Trial Court, by order dated 29.12.2016, in
D.V.C.No.107 of 2016, directed Chakratis to pay Rs.3,000/- per month to
Gomathi and Rs.2,000/- each per month to her two children (totally Rs.7,000/-
per month) from the date of petition. Challenging the order, Chakratis filed
Crl.A.No.15 of 2017 before the Sessions Court, Trichy, and the learned
Principal Sessions Judge, by judgment dated 16.08.2017, has modified the
order passed by the Trial Court by holding that the maintenance amount of
Rs.7,000/- will be payable only from the date of order of the Trial Court,
namely 29.12.2016 and not from the date of petition before the Trial Court,
namely 05.12.2008. Challenging this portion of the order, Gomathi is before
this Court.

3. Heard Mr.C.Arul Vadivel Alias Sekar, learned counsel for Gomathi
and Mr.S.Rajesh Kanna, learned counsel for Chakratis.

4. The learned counsel for Chakratis submitted that the Sessions Court
was right in modifying the order, because, the Trial Court has not given any
special reason for awarding maintenance from the date of petition, that is
05.12.2008.

5. In support of his contention, the learned counsel placed strong
reliance on the judgment of the Supreme Court in Shail Kumari Devi v. Krishan
Bhagwan Pathak [2008 Cri.L.J. 3881] (SC).

6. The learned counsel for Chakratis submitted that in the docket
order, the Magistrate has not stated that the maintenance amount should be
payable from the date of petition, but, has, instead, stated as if the
maintenance is payable every month. The learned counsel produced the docket
order, which reads as follows:

“U/sec.20 of D.V.Act for maintenance concerned, the respondent is
directed to pay a sum of Rs.3,000/- for petitioner and Rs.2,000/- for each
children totally Rs.7,000/- to be payable to the petitioner and her children
on or before 5th of every month. Finally, the petition is allowed and no
cost.”

7. Per contra, Mr.C.Arul Vadivel alias Sekar, learned counsel for
Gomathi refuted the contentions and placed reliance on the same judgment and
relied upon Paragraph No.47 of the judgment, which reads as follows:

“47. We, therefore, hold that while deciding an application under
Section 125 of the Code, a Magistrate is required to record reasons for
granting or refusing to grant maintenance to wives, children or parents. Such
maintenance can be awarded from the date of the order, or, if so ordered,
from the date of the application for maintenance, as the case may be. For
awarding maintenance from the date of the application, express order is
necessary. No special reasons, however, are required to be recorded by the
court. In our judgment, no such requirement can be read in sub-section (1) of
Section 125 of the Code in absence of express provision to that effect.”

8. This Court gave its anxious consideration to the rival submissions.

9. At the outset, this is not a proceedings under Section 125 of the
Code of Criminal Procedure and this is a proceedings under the provisions of
the Protection of Women from Domestic Violence Act, 2005. The Trial Court
order in D.V.C.No.107 of 2016 is a detailed order and it is in Tamil
language. However, the docket entry, which, the learned counsel for Chakratis
is relying upon, is in English and it is the precis of the detailed order.
This Court cannot act on the docket order and can act only on the detailed
order, which has been assailed even before the Sessions Court in appeal.

10. In the opinion of this Court, the reason given by the learned
appellate Judge for holding that maintenance amount should be paid only from
the date of the order of the trial Court is not sustainable. It was open to
the appellate Court to have given reasons, if so required, for awarding
maintenance from the date of the order. Merely saying that the Trial Court
had failed to give reasons for awarding maintenance from the date of petition
and, therefore, maintenance has to be paid only from the date of the order of
the Trial Court, would amount to shirking judicial responsibility. This
Court finds that Gomathi has been fighting this case from 2008 onwards. Her
son has got into the witness box and given evidence against Chakratis. The
Trial Court has given a finding that it was the mother, who has been taking
care of the two children without any help from the father. This finding has
not been disturbed by the Sessions Court.

11. As stated above, the provisions of the Protection of Women from
Domestic Violence Act, 2005, are not similar to the provisions of Section 125
of the Code of Criminal Procedure. Even, as per the judgment of the Supreme
Court, that has been relied upon by the learned counsel for Chakratis, it is
clear from Paragraph No.47 that special reasons need not be given. In such
view of the matter, the order passed by the Sessions Court, in Crl.A.No.15 of
2017 warrants interference. Accordingly, this Criminal Revision Case is
allowed and the order dated 16.08.2017, in Crl.A.No.15 of 2017 passed by the
learned Principal Sessions Judge, Trichy, is, hereby, set aside and the order
passed by the learned Judicial Magistrate, Additional Mahila Court, Trichy,
in D.V.C.No.107 of 2016 is restored. Chakratis shall pay maintenance from
05.12.2008, as awarded by the Trial Court.

To

1.The Principal Sessions Judge,
Tiruchirappalli Division,
Tiruchirappalli.

2.The Judicial Magistrate,
Additional Mahila Court,
Tiruchirappalli.

.

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