BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.07.2015
CORAM : THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
CRL.RC.(MD)No.453 of 2014 and M.P.No.1 of 2014
B.Prakash : Petitioner
Vs.
1.Deepa
2.Minor Harini : RespondentsJUDGEMENT
The postulant is a father of a initial respondent and a father of a second respondent. The respondent filed M.C.No.107 of 2008, before a schooled Chief Judicial Magistrate, Thiruchirappalli, claiming upkeep underneath Section 125 of a Code of Criminal Procedure, [hereinafter referred to as “the Act”]. The schooled Chief Judicial Magistrate, by sequence antiquated 19.06.2009, upheld an order, directing a postulant to compensate a sum of Rs.500/- per month to any respondent herein towards their maintenance. As opposite a same, a respondents filed Crl.Rc.No.88 of 2009. By sequence antiquated 23.05.2011, a schooled Additional District and Sessions Judge, Tiruchirappalli, mutated a sequence of a schooled Chief Judicial Magistrate and destined a postulant to compensate a sum of Rs.2,500/- per month to any respondent herein towards their maintenance. The postulant claims that he has been profitable a pronounced volume though any default. While so, a respondent filed M.C.No.158 of 2009, on 20.01.2009, underneath Section 20 r/w Section 12 of a Protection of Women from Domestic Violence Act, 2005, [hereinafter referred to as “the Act”], claiming several reliefs underneath a pronounced Act, including financial service towards their maintenance. The schooled Judicial Magistrate, by sequence antiquated 31.01.2012, destined a postulant to compensate a sum of Rs.2,000/- per month to a initial respondent and a sum of Rs.1,500/- to a second respondent towards their maintenance. Challenging a pronounced order, a postulant filed Crl.A.No.17 of 2012. The schooled Second Additional District and Sessions Judge, by sequence antiquated 31.01.2014, reliable a sequence of a schooled Judicial Magistrate, directing a remuneration of maintenance. The pronounced sequence is underneath plea in this Criminal Revision Case.
2. we have listened Mr.N.Mohideen Basha, a schooled warn appearing for a petitioner, Mr.T.Lajapathi Roy, a schooled Amicus Curiae, allocated by this Court to disagree a box on interest of a respondents and perused a annals carefully.
3. The inaugural row of a schooled warn for a postulant is that a Magistrate, behaving underneath Section 20 of a Act, has got energy to extend upkeep underneath Section 125 of a Code. According to him, Section 125 of a Code and Section 20 of a Act offer dual opposite functions and orders could be upheld underneath these supplies on dual opposite considerations. These dual provisions, according to a schooled counsel, are jointly exclusive.
4. But, Mr.T.Lajapathi Roy, a schooled Amicus Curiae allocated by this Court, would contention that underneath Section 20(1)(d) of a Act, a Judicial Magistrate is entirely empowered to pass an sequence for upkeep also. The schooled warn would serve contention that Section 20 of a Act and Section 125 of a Code are not jointly disdainful and they are interrelated to any other. He would serve contention that an depressed celebration has got choice possibly to go before a Magistrate underneath Section 125 of a Code or underneath Section 20 of a Act, claiming maintenance.
5. Before entering into any serve discussion, let us have a discerning demeanour into a applicable provisions.
6. Section 125 of a Code is reads as follows:-
“125. Order for upkeep of wives, children and parents.
(1) If any chairman withdrawal sufficient means neglects or refuses to maintain-
(a) His wife, incompetent to say herself, or
(b) His legitimate or deceptive teenager child, possibly married or not, incompetent to say itself, or
(c) His legitimate or deceptive child (not being a married daughter) who has achieved majority, where such child is, by reason of any earthy or mental monstrosity or repairs incompetent to say itself, or
(d) His father or mother, incompetent to say himself or herself, A Magistrate of’ a initial category may, on explanation of such slight or refusal, sequence such chairman to make a monthly stipend for a upkeep of his mom or such child, father or mother, during such monthly rate not surpassing 5 hundred rupees in a whole, as such justice thinks fit, and to compensate a same to such chairman as a Magistrate might from time to time direct:
Provided that a Magistrate might sequence a father of a teenager womanlike child referred to in proviso (b) to make such allowance, until she attains her majority, if a Magistrate is confident that a father of such teenager womanlike child, if married, is not hexed of’ sufficient means.
Explanation. For a functions of this Chapter.
(a) Minor means a chairman who, underneath a supplies of a Indian Majority Act, 1975 (9 of 1875) is deemed not to have achieved his majority;
(b) “Wife” includes a lady who has been divorced by, or has performed a divorce from, her father and has not remarried.
(2) Such stipend shall be payable front a date of a order, or, if so ordered, from a due of a focus for maintenance.
(3) Person so systematic fails though sufficient means to association with a order, any such Magistrate may, for any crack of a order, emanate a aver for levying a volume due in a demeanour supposing for whole, or any partial of any month’s stipend remaining delinquent after a execution of a warrant, to seizure for a tenure that might extend to one month or until remuneration if progressing made;
Provided that no aver shall be released for a liberation of any volume due underneath this territory unless focus be done to a justice to levy such volume within a duration of one year from a brave on that it became due:
Provided serve that if such chairman offers to say his mom on condition of her vital with him, and she refuses to live with him, such Magistrate might cruise any drift of refusal settled by her, and might make an sequence underneath this territory notwithstanding such offer, if he is confident that there is usually belligerent for so doing.
Explanation. If a father has engaged matrimony with another lady or keeps a mistress, it shall be deliberate to usually belligerent for his wife’s refusal to live with him.
(4) No mom shall be entitled to accept an stipend from her father underneath this territory she is vital in adultery, or if, though any sufficient reason, she refuses to live with her, husband, or if they are vital alone by mutual consent.
(5) On explanation that any mom in whose foster an sequence has been done underneath this territory is vital in adultery, or that though sufficient reason she refuses to, live with her, husband, or that they are vital alone by mutual consent, a Magistrate shall cancel a order”.
7. Section 20 of a Act reads as follows:-
“20. Monetary reliefs.- (1) While disposing of an focus underneath underling territory (1) of territory 12, a Magistrate might proceed a respondent to compensate financial service to accommodate a waste incurred and waste suffered by a depressed chairman and any child of a depressed chairman as a outcome of a domestic assault and such service might include, though not singular to,-
(a) a detriment of earnings;
(b) a medical expenses;
(c) a detriment caused due to a destruction, repairs or dismissal of any skill from a control of a depressed person; and
(d) a upkeep for a depressed chairman as good as her children, if any, including an sequence underneath or in serve to an sequence of upkeep underneath Section 125 of a Code of Criminal Procedure, 1973, (2 of 1974) or any other law for a time being in force.
(2) The financial service postulated underneath this territory shall be adequate, satisfactory and reasonable and unchanging with a customary of vital to that a depressed chairman is accustomed.
(3) The Magistrate shall have a energy to sequence an suitable pile sum remuneration or monthly payments of maintenance, as a inlet and resources of a box might require.
(4). The Magistrate shall send a duplicate of a sequence for financial service done underneath sub-section (1) to a parties to a focus and to a in assign of a military hire within internal boundary of whose office a respondent resides.
(5) The respondent shall compensate a financial service postulated to a depressed chairman within a duration specified in a sequence underneath sub-section (1).
6. Upon a disaster on a partial of a respondent to make remuneration in terms of a sequence underneath sub- territory (1), a Magistrate might proceed a employer or a debtor of a respondent, to directly compensate to a depressed chairman or to deposition with a Court a apportionment of a salary or salaries or debt due to or accrued to a credit of a respondent, that volume might be practiced towards a financial service payable by a respondent”.
8. A cursory reading of Section 125 of a Code would go to uncover that a mom is entitled for upkeep on explanation that a father has neglected or refused to say her and serve that she is incompetent to say herself. If these 3 contribution are proved, then, she is entitled for an sequence for upkeep opposite her husband.
9. If we demeanour into Section 20 of a Act, sub-section (1) states that an depressed is entitled for financial relief. The pronounced financial service could be systematic to accommodate a waste incurred by a detriment suffered by a depressed person. The tenure “monetary relief” has been tangible in Section 2(k) of a Act, that reads as follows:-
“monetary relief” means a remuneration that a Magistrate might sequence a respondent to compensate to a depressed person, during any theatre during a conference of an focus seeking any service underneath this Act, to accommodate a waste incurred and a waste suffered by a depressed chairman as a outcome of a domestic violence.”
10. The tenure “aggrieved” is tangible in Section 2(a) of a Act, that reads as follows:-
“aggrieved person” means any lady who is, or has been, in a domestic attribute with a respondent and who alleges to have been subjected to any act of domestic assault by a respondent.”
11. In sequence to get an sequence for financial relief, underneath Section 20 of a Act, initial of all, a postulant should be an depressed chairman as a outcome of a domestic violence. The tenure “domestic violence” is tangible in Section 2(g) of a Act, that states that a domestic assault has a same clarification as reserved to it in Section 3 of a Act.
12. Section 3 of a Act reads as follows:-
“3. Definition of domestic violence.- For a functions of this Act, any act repudiation or elect or control of a respondent shall consecrate domestic assault in box it-
(a) harms or injuries or endangers a health, safety, life, baggy or contentment possibly mental or physical, of a depressed chairman or tends to do so and includes causing earthy abuse, sexual, written and romantic abuse and mercantile abuse; or
(b) harasses, harms, injuries or endangers a depressed chairman with a perspective to require her or any other chairman associated to her to accommodate any wrong direct for any dowry or other skill or profitable security; or
(c) has a outcome of melancholy a depressed chairman or any chairman associated to her by any control mentioned in proviso (a) or proviso (b); or
(d) differently injuries or causes harm, possibly earthy or mental, to a depressed person”.
13. Now, a doubt is as to possibly a wife, who has been neglected by her father or refused to be maintained, is depressed person, as tangible in Section 2(a) of a Act. In other words, possibly such slight or refusal by a father would volume to domestic assault as tangible in Section 3 of a Act.
14. As per a clarification of a tenure “domestic violence”, mercantile abuse shall also consecrate a domestic violence. The tenure “economic abuse” has been tangible by proceed of Explanation (1) (iv) of Section 3 of a Act, that reads as follows:-
“(a) damage of all or any mercantile or financial resources to that a depressed chairman is entitled underneath any law or tradition possibly payable underneath an sequence of a Court or differently or that a depressed chairman requires out of prerequisite including, though not limited, to, domicile necessities for a depressed chairman and her children, if any, stridhan, property, jointly or alone owned by a depressed person, remuneration of let associated to a common domicile and maintenance.
(b).disposal of domicile effects, any disunion of resources possibly mobile or immovable, valuables, shares, securities, holds and a like or other skill by trait of a domestic attribute or that might be pretty compulsory by a depressed chairman or her children or her stridhan or any other skill jointly or alone hold by a depressed person; and
(c) breach or limitation to continued entrance to resources or comforts that a depressed chairman is entitled to use or suffer by trait of a domestic attribute including entrance to a common household.”
15. For a wife, upkeep paid by proceed of upkeep volume payable by a father is a financial apparatus for her. Similarly, a rejection of domicile necessities of a mom is also an mercantile abuse. The father is firm to say a wife. If he neglects or fails to maintain, a mom is damage of her financial resources to say herself and to accommodate her domicile necessities. Denial of possibly of these dual would volume to mercantile abuse. Such mercantile abuse will volume to domestic violence. The wife, who is a plant of such domestic violence, is, therefore, entitled for financial service underneath Section 20 of a Act.
16. The financial service to be systematic underneath Section 20 of a Act, should be to accommodate a waste incurred and a detriment suffered by a depressed as a outcome of a domestic violence. The detriment suffered is zero though a detriment of financial resources to be paid by a father towards her maintenance. Thus, if a father neglects a mom or refuses to say her, a pronounced act of a father certainly amounts to domestic assault and therefore, a depressed mom is entitled for financial service and such financial service might include, though not singular to a upkeep for a mom as good as to her children. The financial service paid by proceed of upkeep can be an sequence underneath Section 125 of a Code, that is transparent from a plain reading of Section 20(1)(d) of a Act. Thus, it is transparent transparent that a wife, who has suffered domestic assault by a act of a father in neglecting or refusing to say her is entitled to proceed a Judicial Magistrate seeking an sequence underneath underneath Section 125 of a Code, that itself is a financial service underneath Section 20 of a Act. Any such upkeep sequence done underneath Section 20 of a Act is appealable to a Court of Sessions underneath Section 29 of a Act.
17. The successive question, that arises for consideration, is as to possibly an sequence for upkeep done by a Magistrate underneath Section 125 of a Code, shall be a bar for a Magistrate behaving underneath Section 20 of a Act to pass an sequence for maintenance. In this regard, again, we should have a demeanour into a Section 20(1)(d) of a Act, that states that a financial service postulated underneath Section 20 of a Act might embody an sequence for maintenance, in serve to an sequence of upkeep underneath Section 125 of a Code. Thus, it is transparent transparent that a before sequence for upkeep upheld by a Magistrate underneath Section 125 of a Code, is not a bar for a Magistrate behaving underneath Section 20 of a Act to pass nonetheless another sequence extenuation financial service underneath Section 20 of a Act, by proceed of upkeep underneath Section 125 of a Code. Here, it needs to be remarkable that a successive sequence done underneath Section 20 of a Act is not in any proceed in alteration or movement of a progressing sequence done underneath Section 125 of a Code by a Magistrate.
18. If a mom wants to cgange an sequence done underneath Section 125 of a Code, seeking encouragement of a upkeep amount, a usually choice accessible for her is to record a petition underneath Section 127 of a Code before a same Magistrate, who upheld a order. In other words, a sequence done underneath Section 125 of a Code can be mutated or sundry usually by a same Magistrate, who upheld a progressing order. An sequence done underneath Section 125 of a Code for upkeep by one Magistrate can't be sundry or mutated by a Magistrate behaving underneath Section 20 of a Act. Therefore, it should be remarkable that a financial service postulated towards upkeep underneath Section 20 of a Act might be not in alteration of a before sequence for upkeep upheld underneath Section 125 of a Code, though it might be in serve to a pronounced sequence for upkeep upheld underneath Section 125 of a Code. If an sequence has already been done underneath Section 125 of a Code for maintenance, there can be no doubt that a mom had valid possibly slight or refusal on a partial of a husband. If a mom wants an sequence underneath Section 20 of a Act, in serve to a sequence underneath Section 125 of a Code, she has to infer uninformed acts of a father forming a domestic assault successive to a flitting of a progressing sequence underneath Section 125 of a Code. She can't rest on a acts of a father forming domestic violence, that happened before to a flitting of a sequence underneath Section 125 of a Code. For removing an sequence underneath Section 20 of a Act, in serve to a progressing sequence underneath Section 125 of a Code, a mom should beg and infer that successive to a pronounced sequence done underneath Section 125 of a Code, a father had caused domestic assault and on comment of a same, she had suffered detriment and thus, she is entitled for additional volume as maintenance. Thus, it is manifestly transparent that a before sequence done underneath Section 125 of a Code is not a bar for an depressed mom to proceed a Magistrate underneath Section 20 of a Act, for financial service as an additional service of maintenance, supposing successive to a flitting of a progressing sequence underneath underneath Section 125 of a Code, a father has committed domestic assault ensuing detriment to a wife.
19. In this regard, we might also take note of Section 36 of a Act, that states that a supplies of this Act shall be in serve to and in derogation of a supplies of any other law, for a time being in force, that means Section 20 of a Act is not in derogation of Section 125 of a Code. It also needs to be simplified that as and when there is slight or refusal on a partial of a father to say a wife, she has got choice possibly to find pill underneath Section 125 of a Code or underneath Section 20 of a Act. If she elects to make a explain underneath Section 125 of a Code, on a same means of action, she cannot, simultaneously, make a explain underneath Section 20 of a Act and clamp versa. On a pronounced means of action, if a Magistrate dismisses a explain done by a postulant underneath Section 125 of a Code, then, on a same set of explain and means of action, a mom can't change her march and make a explain underneath Section 20 of a Act. Similarly, carrying inaugurated to proceed a Court underneath Section 20 of a Act, after carrying unsuccessful in her try to get maintenance, on a same set of allegations and means of action, she can't make a uninformed explain underneath Section 125 of a Code for maintenance. Having selected one forum, if a depressed wants to proceed a other forum, such proceed could be done usually on uninformed grounds, that occurred successive to a sequence upheld by a other forum.
20. In a box on hand, a respondents filed M.C.No.101 of 2008, on a record of a schooled Chief Judicial Magistrate, Trichirappalli, on 19.06.2009. The rider filed by a postulant for encouragement of a upkeep volume was likely of by a schooled Second Additional District and Sessions Judge, Trichirappalli, on 23.05.2011. Thus, a pronounced proceedings, underneath Section 125 of a Code, was underneath competition from a year 2008 compartment 23.05.2011. When a same was so pending, a petitioner, simultaneously, filed M.C.No.158 of 2009, before a schooled Judicial Magistrate, No.II, Trichirappalli, underneath Section 20 of a Act, on 20.01.2009, i.e., even before a sequence of a schooled Chief Judicial Magistrate in M.C.No.101 of 2008. Thus, a respondents had approached dual opposite forums, viz., a schooled Chief Judicial Magistrate, Trichirappalli, as good as a schooled Judicial Magistrate, No.II, Trichirappalli, underneath Section 125 of a Code as good as underneath Section 20 of a Act, on a same set of allegations and means of action. This, in my deliberate view, is not legally slight and a same would volume to transparent abuse of routine of Court. The sequence underneath plea was not done on any uninformed drift forming a domestic violence, that occurred successive to M.C.No.101 of 2008.
21. In such perspective of a matter, a impugned sequence is probable to be set aside. If a respondents have got reasons to find alteration of a progressing sequence done underneath Section 125 of a Code, it is always open for them to proceed a really same Magistrate underneath Section 127 of a Code for such alteration so as to have a upkeep volume extended or if a respondents have got any uninformed grounds, forming a domestic violence, that happened successive to a flitting of a sequence underneath Section 125 of a Code, they are during autocracy to proceed a Magistrate underneath Section 20 of a Act to get an sequence for upkeep in serve to an sequence of upkeep already upheld underneath Section 125 of a Code.
22. In perspective of a above, this Criminal Revision Case is authorised and a sequence of a schooled Judicial Magistrate No.II, Thiruchirappalli, done in M.C.No.158 of 2009, antiquated 31.01.2012, is set aside, however, with liberty, as indicated above. Consequently, connected Miscellaneous Petition is closed.
