Azhagananth
(Lawyer)
29 July 2017
am a practising advocate only... but not a senior advocate... the below judgment para 10 to end may give you a answer....
Vasanthi vs K.Ponsingh Konar on 20 December, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2010
CORAM:
THE HONOURABLE MR.JUSTICE T. MATHIVANAN
Crl.O.P Nos.23661, 24335
and 26145 of 2010
Vasanthi
... Petitioner
Vs.
1. K.Ponsingh Konar
2. K.Balasingh Konar
... Respondents
Prayer: Petitions are filed under
Section 482 Cr.P.C, praying for the following directions;
(1) to pay the arrears towards her wearing apparels (cloths) as directed by the Learned III Additional Sessions Judge in Crl.A.194 of 2009 dated 13.08.2010.
(2) to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005.
(3) to direct the first respondent to return all the original Kisan Vikas Patras for the value of Rs.3,25,000/- to the petitioner.
For Petitioner :Mrs.Vasanthi(Party in Person) For Respondents :Mr.R.Manickavel C O M M O N O R D E R Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. the petitioner has preferred this petition seeking the following directions against the respondents;
(1)to pay the arrears towards her wearing apparels (cloths) as directed by the Learned III Additional Sessions Judge in Crl.A.194 of 2009 dated 13.08.2010.
(2)to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005.
(3)to direct the first respondent to return all the original Kisan Vikas Patras for the value of Rs.3,25,000/- to the petitioner.
2. Since the petitioner and the respondents in all the three petitions are one and the same they have been clubbed together and heard simultaneously. Hence it has become necessary for this Court to pronounce a common order.
3. The facts which are absolutely necessary for the disposal of these three Criminal Original Petitions ,may be summarised briefly as follows;
4. The petitioner is the legally wedded wife of the first respondent. The second respondent is the elder brother of the first respondent. Out of the wedlock with the first respondent, she begotten two female children namely, Jeniffer and Renita. From the beginning of the marriage she was harassed and put under cruelty by the first respondent and his relatives. Then she was forced to work in abroad for earning money and believing her husband she used to send money to the first respondent with fond hope that there would be a bright future. He had also purchased house, car in the name of the petitioner for the benefit of enjoyment of the family and two minor children.
5. When she returned to India under the fond hope that she would have a comfortable family life along with her husband and two minor children, it was to her utter surprise and shock that she was treated in inhuman manner. She was also deprived of maintenance and equal status of the first respondent. She was also forced to bring money in the form of dowry by both the respondents and their relatives. Both the respondents spindled many of the assets of the petitioner and thereafter the petitioner was bought to street. Hence the petitioner was forced to file petitions for restitution of conjugal rights, maintenance, and for custody of the children under the guardians and Wards Act.
6. Now the petitioner has been depending upon her siblings and her elderly mother for her basic needs from November 2007 onwards. Her daughters were not allowed to communicate with her. Even the petitioner was also pressurised to withdraw the Criminal cases which has been filed against the respondents.
7. The children were given money to deposit in Post Office at Thiruvanmiyur in the form of Kisan Vikhas Pathiras for the value of Rs.3,50,000/-. The first respondent being the husband of the petitioner had received all the original Kisan Vikas Pathiras, directly from the post master on 04.11.2006 and keeping in his custody illegally. Under the above circumstances the petitioner has come forward with these three petitions for the reliefs as aforesaid.
8. It was contended by the respondents that the petitioner who is none other than the wife of the first respondent is a very harsh, adamant and rude person by nature and therefore she was not able to co-habit peacefully along with the first respondent and children. It was only out of her own wish she had been to abroad for employment, even without least interest towards the children. The first respondent was working as an Indian Medicine Practitioner in IMCOPS, Thiruvanmiyur and was earning a very handsome salary and without being satisfied with the salary of the first respondent, she adamantly wanted to go abroad and work for herself and for her family. The second respondent herein is working as a Personal Secretary to the Collector, Agricultural Department, Tuticorin and is earning a very handsome salary and his wife is also a Professor in a prestigious Government College at Tuticorin and hence there is no need for the parents of the first respondent as well as the second respondent to live and feed on the petitioners money.
9. The petitioner, on number of occasion, has gone to the extent of filing false complaints against the respondents. It is pertinent to note here that on 12.03.2010, the II Additional Principal Judge, Family Court at Chennai in I.A.No.3458 of 2009 in O.P.No.1478 of 2008 has dismissed the Interlocutory Application, after observing that;
"the petitioner has not understood her children properly in the right perspective. Having the welfare of the children in mind this court holds that the only way to make the children happy and safe is to dismiss the petition with a judicial mind and a heavy heart."
10. The petitioner has filed a case against the first respondent under the provisions of Domestic Violence Act along with 18 other cases and all the cases are pending and as such the first respondent along with his children is running against all the Courts defending themselves from the harassment and torture of the petitioner. It is during that time the III Additional Judge City Civil Court Chennai in C.A.No.194 of 2009 has directed the first respondent to pay a sum of Rs.20,000/- per year for the petitioners wardrobe, but the petitioner cannot covert the High Court as an executing Court or trial Court by filing the original petitions which ought to have been filed in the trial Court or the Court of first instance. The non compliance of the order passed by the Magistrate shall be executed in the manner provided in The Protection of Women from Domestic Violence Act as the Magistrate has got power under Section 20(6) to execute the order and since there are specific provisions to execute the order, the present petition filed by the petitioner invoking the proviso to Section 482 Cr.P.C. ought to be dismissed with exemplary cost.
11. Similarly the petition filed by the petitioner to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005 is nothing but a frivolous and vexatious attempt. No valid ground are assigned to transfer the above said petition from the file of the Learned III Additional District and Sessions Court, Chennai.
12. It is obvious that the petitioner has approached the Learned III Additional District and Sessions Judge, Chennai by way of an appeal in Crl.M.P.No.3007 of 1998 and this petition was filed by the petitioner under the provision of Protection of Women's from the
Domestic Violence Act before the V Metropolitan Magistrate, Egmore, Chennai and therefore the petition does not have any concern in any manner with the case pending before the Learned Additional District and Sessions Judge (Mahila Court) Chennai.
13. It is true that the first respondent had received the Kisan Vikas Pathiras on 04.11.2006 and subsequently, when the petitioner had returned from abroad in the middle of the year 2007, she started creating hell of a problem in the matrimonial home under the advise of her family members. That on 02.11.2007, she had left the matrimonial home voluntarily whileso, she had taken away all her belongings and other important documents along with her which included the kisan Vikas Pathiras. Even if the petitioner does not posses the original Kisan Vikas Pathiras with her, she can very well request for the duplicate of the said pathiras to her from the post office.
14. The petitioner Tmt. Vasanti has appeared before this Court in person. Mr.R. Manikyavel, learned counsel has appeared for the respondents 1 and 2. This Court, keeping in view of the importance of the petitions has called for the back records from the Court of the Learned VII Addition Sessions Judge, Chennai. After receiving the records, this Court has gone through the material records and it appears that there was a strained relationship between the first respondent and the petitioner. Now the female children by name Jeniffer and Renita are in the custody of the first respondent. It also appears from the records that the petitioner has filed a petition in Crl.M.P.No.3007 of 2008 before the Learned V Metropolitan Magistrate, Egmore, Chennai under the provisions of Protection of Woman's from
Domestic Violence Act. Besides this a maintenance case is also pending before the Learned Additional District and Sessions Judge (Mahila Court) Chennai in SC No.122 of 2009. The learned counsel for the respondent has also submitted that besides the petition in Crl.M.P.No.3007 of 2008 which is filed by the petitioner under the Provisions of Protection of Woman's from the Domestic Violence Act on the file of the V Metropolitan Magistrate, Egmore, Chennai the petitioner has also instituted several petitions as against the respondents.
15. It is obvious to note here that the petitioner has filed a petition in Crl.M.P.No.1660 of 2009 before the Learned V Metropolitan Magistrate, Egmore, Chennai to direct the first respondent to pay a sum of Rs.5 lakh towards her wardrobe. That petition was dismissed along with other petitions by the Learned V Metropolitan Magistrate, Egmore, Chennai on 21.08.2009. Being aggrieved by the order, the petitioner had filed an appeal in C.A.No.194 of 2009 before the Learned VII Additional District and Sessions Judge, City Civil Court, Chennai. After hearing both sides the Learned III Additional District and Sessions Judge had passed an order directing the first respondent to pay a sum of Rs.20,000/- per year to the petitioner towards her wardrobe on 13.08.2010. Now the petitioner has contended that the first respondent has failed to comply with the order of the Learned III Additional District and Sessions Judge dated 13.08.2010 and made in C.A.No.194 of 2009 in Crl.M.P.No.1669 of 2009.
16. With regard to the execution of the order relating to monetary reliefs Section 20 (6) of Protection of Women from
Domestic Violence Act paves the way to the petitioner to approach the trial Court so as to execute the Order. Section 20(6) contemplates that;
"Upon the failure on the part of the respondent to make payment in terms of the order under sub section(1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
Section 20(5) envisages that;
"The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section(1)."
17. Section 20 deals with monetary reliefs. It empowers the Magistrate to pass orders for grant of monetary relief to the aggrieved person from the respondent to meet the expenses incurred and losses suffered including loss of earnings, medical expenses, loss to property and maintenance of the aggrieved person and her children including maintenance under, or in addition to Section 125 Cr.P.C. or any other law for the time being in force. The money relief shall be adequate, fair and reasonable and consistent with standard of living of the aggrieved person to which she is accustomed of. The Magistrate has power to issue directions for the implementation of the order granting monetary reliefs.
18. Hence it is made clear that when there is a specific provision in the Protection of Women from Domestic Violence Act the inherent jurisdiction of this Court as contemplated under
Section 482 Cr.P.C. can be invariably invoked.
19. Secondly, with regard to withdrawal of the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005, this Court is of the considered view that the petitioner is not entitled to avail this relief because it appears that the petition in Crl.M.P.No.3007 of 2008 seems to have been filed by the petitioner under the provisions of Protection of Women from Domestic Violence Act before the Learned V Metropolitan Magistrate Egmore, Chennai. Further the petitioner has not assigned any valid reasons for transfer of the above said petition from the file of the Learned III Addition Sessions Judge. Hence the prayer of the petitioner in this regard is turned down.
20. Thirdly, in respect of seeking direction to the respondent to return the Kisan Vikas Pathiras valuing Rs.3,50,000/-, this Court is not satisfied with the reply given by the first respondent. The learned counsel for the respondents have submitted that when the petitioner had left the matrimonial home on 02.11.2007, she had taken away all her belongings including the Kisan Vikas Pathiras. This contention is not able to be countenanced and hence, this Court is of the opinion that the first respondent may be directed to return all the original Kisan Vikas Pathiras for the value of Rs.3,25,000/- to the petitioner. It is also pertinent to note here that the first respondent has admitted in his counter that he had received the said Pathiras on 04.11.2006, but contrary to his admission he has now stated that the petitioner had taken away all the Pathiras along with her when she had left the matrimonial home on 02.11.2010. This piece of contention advanced on behalf of the first respondent is not able to be accepted.
21. Having regard to the above fact circumstances this Court doeth passes the following orders;
(1) The petitioner is directed to approach the trial Court i.e., the Learned V Metropolitan Magistrate, Egmore, Chennai to execute the order dated 13.08.2010 and made in Crl.A.No.194 of 2009 in Crl.M.P.No.3007 of 2008 on the file of the III Additional District and Session Judge, Chennai.
(2) No valid ground are assigned to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005 because originally the petition in Crl.M.P.No.3007 of 2008 has been filed before the Learned V Metropolitan Magistrate, Egmore, Chennai under the provisions of Protection of Women's from
Domestic Violence Act. Hence, the petition in Crl.O.P.No.24335 of 2010 is dismissed.
(3) The first respondent is directed to hand over all the original Kisan Vikas Pathiras for the value of Rs.3,25,000/- to the petitioner within a period of two weeks from the date of receipt of a copy of this order.
With the above observations the Crl.O.P.Nos.23661 and 26145 of 2010 are disposed of and the petition in Crl.O.P.No.24335 of 2010 is dismissed.
20.12.2010 prm Internet:Yes/No Index:Yes/No Note:Issue order copy on 21.12.2010 T.MATHIVANAN,J prm To,
1. The Learned III Additional Sessions Judge, Chennai.
2.The Learned Additional District and Sessions Judge (Mahila Court), Chennai.
3.The Learned V Metropolitan Magistrate, Egmore, Chennai.
CRL.O.P.Nos.23661, 24335 and 26145 of 2010 20.12.2010
