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Category: High Court of Madras Judgment or Order or Notification
R.Nivendran vs Nivashini Mohan @ M.Nivashini on 17 February, 2010
https://indiankanoon.org/doc/1544244/
Kadek Dwi Ani Rasmini Vs Inspector of Police on 02 January, 2019
In this made-up case by Police against Spa owner and massage therapists, Hon’ble Madras High Court has given good lecture on contemporary needs of urban society and the scientific reasoning and support massages have received through out centuries. Compensation of 2.5 Lakhs also granted which will be deducted from the salary of Police officer in 50 installments.
Citations :
Other Sources :
https://indiankanoon.org/doc/108966854/
https://timesofindia.indiatimes.com/city/chennai/pay-rs-2-5l-to-indonesian-woman-hc/articleshow/70424679.cms
B.Prakash Vs Deepa on 28 July, 2015
In this wonderful landmark judgment, Justice Shri Nagamuthu has delivered a death-knell to the false case filing lair knifes.
From Para 13,
Now, the question is as to whether the wife, who has been neglected by her husband or refused to be maintained, is aggrieved person, as defined in Section 2(a) of the Act. In other words, whether such neglect or refusal by the husband would amount to domestic violence as defined in Section 3 of the Act.
From Para 15,
For the wife, maintenance paid by way of maintenance amount payable by the husband is a financial resource for her. Similarly, the denial of household necessities of the wife is also an economic abuse. The husband is bound to maintain the wife. If he neglects or fails to maintain, the wife is deprivation of her financial resources to maintain herself and to meet her household necessities. Denial of either of these two would amount to economic abuse. Such economic abuse will amount to domestic violence. The wife, who is the victim of such domestic violence, is, therefore, entitled for monetary relief under Section 20 of the Act.
From Para 17,
The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.
From Para 18,
If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance under Section 20 of the Act may be not in modification of the previous order for maintenance passed under Section 125 of the Code, but it may be in addition to the said order for maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.
From Para 19,
In this regard, we may also take note of Section 36 of the Act, which states that the provisions of this Act shall be in addition to and in derogation of the provisions of any other law, for the time being in force, which means Section 20 of the Act is not in derogation of Section 125 of the Code. It also needs to be clarified that as and when there is neglect or refusal on the part of the husband to maintain the wife, she has got option either to seek remedy under Section 125 of the Code or under Section 20 of the Act. If she elects to make a claim under Section 125 of the Code, on the same cause of action, she cannot, simultaneously, make a claim under Section 20 of the Act and vice versa. On the said cause of action, if the Magistrate dismisses the claim made by the petitioner under Section 125 of the Code, then, on the same set of allegation and cause of action, the wife cannot change her course and make a claim under Section 20 of the Act. Similarly, having elected to approach the Court under Section 20 of the Act, after having failed in her attempt to get maintenance, on the same set of allegations and cause of action, she cannot make a fresh allegation under Section 125 of the Code for maintenance. Having chosen one forum, if the aggrieved wants to approach the other forum, such approach could be made only on fresh grounds, which occurred subsequent to the order passed by the other forum.
Citation: 2016 All MR(Cri)168,
This was referred to in this 2018 judgment here.
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S.Suriya Devi Vs Thilip Kumar on 26 June, 2018
In this wonderful judgment, Justice Shri M.S.Ramesh has held that “The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above.” The cunning knife had her teeth broken and sent back for trying to manipulate and gain illegal benefits from Hon’ble Courts.
The government is equally to blame for causing such situation, whereby, a complainant is given two ‘options’ for same set of cause of action, under civil law itself. This is a clear case of aiding Double Jeopardy and needs to be dealt with iron fists of Judiciary.
K.Niranjani Vs R.T.Dinesh on 25 June, 2012
The Metropolitan Magistrate had dismissed the DVC due to absence of the complainant on 1 date and acquitted the husband under 256 CrPC with this reasoning.
From Para 7,
Admittedly, on 19.10.2010, due to non-appearance of the complainant/appellant herein, complaint was dismissed and the accused were acquitted, against the same only, the present appeal has been preferred. While perusing the order, the learned XV Metropolitan Magistrate has specifically mentioned as follows:
“Complainant absent. No representation. Respondent 1 present. Respondents 2 & 3 are absent. Petition u/s 317 Cr.P.C. filed allowed. Direction issued by the Fast Track Court to dispose within the stipulated time. Even after specific direction to appear & proceed with the case complainant is absent. No representation. Hence complaint is dismissed. Accused are acquitted.
The Hon’ble High Court of Madras has set aside the acquittal order with this reasoning picked from Hon’ble Supreme Court judgment from 2004. There is a later judgment from Hon’ble Supreme Court in 2008 on same subject here.
From Para 8,
At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant reported in 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) in para-4, it reads as follows:
“4.The Supreme Court in the case in Associated Cement Co. Ltd. Vs. Keshjvanand 1998 Crl.L.R. 856 has held as follows:
“Two constraints are imposed on the Court for exercising the power under section 256. First is, if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.“
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Sakthivel Vs Subramaniyan on 15 December, 2016
In this case in front of Hon’ble High Court of Madras, it was held that “a Court of Law is to deliver a substantial Justice to the parties to secure the ends of Justice. A shortcut approach adopted by the trial Court resulting in dismissal of the complaint really would cause disaster effect on the complaint filed by the Appellant/Complainant.”
Meaning, instead of acquitting the accused based on attendance aspect by dismissing the complaint, the trial court magistrate must have proceeded further with case on merits.
Rajesh Vs The State of Tamilnadu on 17 May, 2018
Excellent judgment which is well supported and reasoned from hon’ble High Court of Madras regarding issuance and recall of NBW non-bailable warrants.
It is further seen that the cases in which trial courts issue Non Bailable Warrants may be broadly classified in four categories namely, (i) the trial court issues Non Bailable Warrants without issuing summons first, (ii) the trial court issues a Non Bailable Warrant when the accused is absent for one or two hearings without inquiring into the cause of absence, (iii) where the accused is absent for one or two hearings and files a petition under Section 317 of the Code, the Court rejects the petition and issues a Non Bailable Warrant and (iv) where the accused has intentionally absented himself from the trial and does not attend any hearings and then, the trial court issues a Non Bailable Warrant.
From Para 18, 19 and 20,
It is also brought to my notice that apart from various other reasons for the long pendency of cases before the trial Courts, the non execution of Non Bailable Warrant is one among the reasons. This fact is reiterated through the last data collected by the NCRB.
In most of these pending cases, it is seen that whenever a Non Bailable warrant is kept pending execution, the usual practice among many of the Court is to adjourn the case on the ground that “Non Bailable Warrant is pending”. In heinous crimes, where there is deliberate and continuous non appearance of the accused, the trial Court may proclaim him as person absconding under Section 82 of the Code of Criminal Procedure. Thus, under Section 82 of Cr.P.C., there can be no impediment on the part of the trial Court to pronounce him as a proclaimed offender, instead of keeping the matter pending indefinitely for the purpose of having the warrant executed. Hence, the existence of the fourth category of cases cannot be a ground to preclude the High Court to do justice in the first three categories particularly, when they constitute a major portion of the pending cases in the State of Tamil Nadu, in which, Non Bailable Warrants are pending execution.
Referenced Supreme Court precedent is available here.
Dr.Varun Kumar Vs The State of TN on 26 June, 2018
This is a case of malicious litigation per High Court of Madras in a complaint for offences under Sections 406, 417, 420, 506(i) IPC, Section 4 of Dowry Prohibition Act, 1961 (herein after referred to as DP Act), Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 (herein after referred to as TNPHW Act) and Section 66 of Information Technology Act, 2000 (herein after referred to as IT Act).
Hon’ble Court has mercilessly quashed the petition and threw it out the window, for good.
Hari Har Raj Kalingarayar Vs Aarti on 22 June, 2018
Hon’ble High Court of Madras has, in this judgment, held that no maintenance for knife who is duly employed and having sufficient means and source of income.
On bare perusal of the petition for maintenance under Section 125 of Cr.P.C. filed by the 1st respondent, this Court is able to see that in the petition it is focused that the revision petitioner to be a person of sound financial capacity, besides holding valuable assets. It is obvious to see the petition primly projects the financial capacity of the revision petitioner rather than describing the respondent’s incapacity and inability to maintain her.
Legal tenet
The provision of maintenance provided under section 125 CrPC is neither penal nor compulsory, but is to be decided in the light of the financial capacity of the wife to maintain herself.
From Para 34,
Before parting with the case, this Court expresses its deep concern that though the legislation for maintenance is a valuable and beneficial legislation safeguarding hapless and helpless wife, who is unable to maintain herself, but there are some instances in which as in the case on hand the wife focus her husband as like that of an automated teller machine and the beneficial provisions of law is managed to be utilized as a tool of harassment.
