M. Selvakumar, v. S. Raja Rajeshwari

O R D E R The above civil revision petition is preferred as against the order dated

28.04.2023 passed in Crl.M.P.No.355 of 2023 in Crl.A(MD)No.36 of 2023 by the learned Additional District Judge, Tenkasi.

¶2According to the revision petitioners, the first respondent/wife filed a petition under the Domestic Violence Act in DVC No.1 of 2019 before the learned Judicial Magistrate, Tenkasi. The learned Judicial Magistrate granted various reliefs to the respondents, against which, the petitioners herein filed Crl.A.No.36 of 2023 before the Additional District Court, Tenkasi and also filed Crl.M.P.No.335 of 2023 to stay the order of the learned Judicial Magistrate. However, the learned Additional District Judge, Tenkasi, dismissed the above said petition in Crl.MP.No.355/2023 Against which, the present revision is preferred.

¶3It is submitted by the learned counsel for the petitioners that the respondents themselves have claimed only Rs.10,000/- as maintenance for each children. However the learned Judicial Magistrate granted maintenance double, claim made by the wife, which is totally unfair and unethical. Hence, the petitioners preferred the appeal in Crl.A.No.36 of 2023 against the order passed by the learned Judicial Magistrate, Tenkasi and also filed stay petition to stay the order of the learned Judicial Magistrate. But the learned Additional District Judge dismissed the stay petition by stating that there is no urgency to stay the operation of the order passed by the learned Judicial Magistrate and also on the ground that the learned counsel appearing for the respective party did not state whether any execution petition was filed by the respondents.

¶4The further contention of the learned counsel for the revision petitioners is that the first petitioner is the husband of the first respondent and the petitioners 2 and 3 are the parents of the first petitioner and the fourth petitioner is the sister of the first petitioner. It is submitted that the first petitioner is the only earning member in the family and he had incurred a loss of Rs.15 lakhs by purchasing a house property, which was auctioned due to non-payment of installments. It is further stated that the first respondent/wife is a Teacher and earning a sum of Rs.1,00,000/- per month. Therefore, the first respondent will not find any difficulty to maintain the minor children. It is further submitted that in DVC No.1 of 2019, the respondents claimed a sum of Rs.10,000/- each as maintenance. But the learned Judicial Magistrate ordered a sum of Rs.20,000/- each to the respondents 2 and 3 and a sum of Rs.20,00,000/- as compensation which is unfair. Hence, the petitioners preferred the appeal before the Additional District Court, Tenkasi and also filed a stay petition, which was dismissed. Against which, the present civil revision petition is preferred. Since there are arguable points to be considered, the learned Additional District Judge ought to have allowed the stay petition in the interest of justice. Therefore, the order passed in Crl.M.P.No.355 of 2023 is liable to be set aside.

¶5The learned counsel for the respondents would submit that the learned Judicial Magistrate has power to enhance the maintenance. Considering the materials available on records, the learned Judicial Magistrate has rightly awarded the maintenance amount, which calls for no interference.

¶6Heard on both side and records perused.

¶7The first petitioner is the husband and the petitioners 2 to 4 are the in-laws of the first respondent herein. The first respondent is the wife of the first petitioner and the respondents 2 and 3 are the minor children of the first petitioner and the first respondent. The respondents filed DVC No.1 of 2019 before the Judicial Magistrate Court, Tenkasi. By an order dated 16.12.2022, the learned Judicial Magistrate disposed the said DVC petition with the following directions:- '46(i). 1k; kDjhuH gzpGhpAk; fy;tp mYtyfj;jpy; my;yJ mtuJ tPl;by; 1> 2> 3> 5 vjpHkDjhuHfs; my;yJ mtiur; rhHe;j

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vd;W cj;jutplg;gLfpwJ. ,e;j guhkhpg;Gj; njhif xt;nthU Mq;fpy khjKk; 5k; Njjpf;Fs; toq;fg;gl Ntz;Lk;. kDj; Njjpahd 19.12.2018ypUe;J ,d;W (16.12.2022) tiuAs;s epYitj; njhif 2 khj fhyj;jpw;Fs; 1k; vjpHkDjhuuhy; toq;fg;gl Ntz;Lk;. 46(iii). Nkw;fz;l tpthjj;jpypUe;J 1k; kDjhuUf;F FLk;g td;Kiw nray;fSf;F ,og;gPlhf 1> 2> 3> 5 vjpHkDjhuHfs; jdpj;jdpahf $l;lhfNth &.20>00>000/- toq;f Ntz;Lk; vd;W cj;jutplg;gLfpwJ.'

¶8Aggrieved by the same, the petitioners have preferred an appeal in Crl.A.No.36 of 2023 before the Additional District and Sessions Court, Tenkasi. In the said appeal, the petitioners have filed Crl.M.P.No.335 of 2023 to stay the order passed by the learned Judicial Magistrate, Tenkasi in DVC No.1 of 2019 dated 16.12.2022 till the disposal of the criminal appeal. By the impugned order dated 28.04.2023, the learned Additional District and Session Judge, Tenkasi, dismissed the said petition with the following observation:- "7.Point: In this petition the Petitioners' main contention is that the Lower Court had passed the order against the prayer of the Respondents which is biased and the 1st petitioner could not pay the amount as ordered by the Judicial Magistrate. Therefore he had preferred this Appeal and till the disposal of this Appeal stay is to be granted. Whereas the Respondents' main objection is that the provision under which the stay is prayed is wrong. And the 1st petitioner did not pay any amount till date. And he himself had admitted that he is working in foreign country therefore the Lower Court has rightly passed the order. Hence, the petition is to be dismissed.

¶8The provision under which the petitioner prayed for stay is u/s. 29 of D.V. Act. And this Section deals only with Appeal. But the Petitioner had prayed to stay the operation of the order of learned Judicial Magistrate. The main argument of the Petitioner is that the Lower Court had passed the order which is not prayed by the Respondents. The legality of the order cannot be decided in the stay petition. When the stay is to be prayed, the Petitioner must disclose that whether there is any urgency to stay the operation of the order and he must show that he will incur loss and difficulty by the order. Both the counsels did not state whether any Execution Petition is filed by the Respondents. Under such circumstances, there is no imminent urgency for staying the operation of the order of the learned Judicial Magistrate. There are no merits in the petition. Hence, this petition is to be dismissed.''

¶9This Court, by its order, dated 26.06.2023, directed the first petitioner to deposit a sum of Rs.20,000/- each per month towards maintenance for the respondents 2 and 3 herein. With regard to payment of compensation of Rs.20,00,000/-, an order of interim stay is granted against the order passed by the learned Judicial Magistrate, Tenkasi.

¶10Considering the above facts and circumstances of the case, the first petitioner shall continue to deposit a sum of Rs.20,000/- each per month towards maintenance for the respondents 2 and 3 herein to the credit of DVC No.1 of 2019 on the file of Judicial Magistrate Court, Tenkasi. The first respondent is at liberty to withdraw 50% of the said amount upon filing appropriate application before the trial Court. As far as deposit of compensation of Rs.20,00,000/- is concerned, an order of interim stay is granted until disposal of Crl.A.No.36 of 2023. Accordingly, this Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.

10.11.2023 NCC : Yes/No Index : Yes/No Internet : Yes cp To The Additional District Judge, Thenkasi. K.GOVINDARAJAN THILAKAVADI cp/vsn

10.11.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on 26.07.2023 Pronounced on 10.11.2023 CORAM: THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI and CMP(MD)No.7293 of 2023 1.M.Selvakumar 2.Manoharan 3.Meenakshi 4.Nithya ... Petitioners Vs. 1.S.Raja Rajeshwari 2.Aiswarya 3.Aradhana ... Respondents (First respondent is the guardian for R2 & R3) PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, to call for the records in pursuant to the order of dismissal dated 28.04.2023 passed by the learned Additional District Judge, Thenkasi, in Cr.M.P.No.335 of 2023 in Crl.A.No.36 of 2023 and to set aside the same. For Petitioners : Mr.Karunanithi for Mr.K.Sundaravel For Respondents : Mr.T.Govinda Samy