Section 49 of the Indian Registration Act, 1908,& Section 35 of the Indian Stamp Act, 1899 = The law is settled that an unregistered document which requires registration is admissible in evidence under Section 49 of the Indian Registration Act, 1908, for collateral purpose (see Chinnappareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy and others1 and Roshan Singh v. Zile Singh2), whereas an unstamped or insufficiently stamped document cannot be admitted into evidence for any purpose including for collateral purpose in the face of bar under Section 35 of the Indian Stamp Act, 1899 [see Sanjeeva Reddi v. Johanputra Reddi3 and Rachakonda Ramakoteswara Rao Vs Manohar Fuel Centre, Nereducherla, Khammam4].

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY        

Civil Revision Petition No.4559 of 2011

25-01-2012

Kapu Anasuyamma,Anantapur district  

K.Malla Reddy and 2 others, Anantapur district

Counsel for the petitioner:     Sri Naresh Kumar Gundapu  
for Sri Nimmagadda Satyanarayana
       
Counsel for the respondents:Sri Chetluru Srinivas

? Cases referred:
1. AIR 1969 AP 242
2. AIR 1988 SC 881
3. AIR 1972 AP 373
4. 2003 (2) ALD 638
5. 2010 (6) ALD 4

Order:

        The short issue that arise for consideration in this civil revision
petition is
whether the decision of the learned Junior Civil Judge, Rayadurg,
Anantapur district, overruling the petitioner's objection for marking of
unregistered partition deed dated 20-02-1994 suffers from any illegality.

2. The petitioner filed O.S.No.43 of 2008 against the respondents for perpetual
injunction.  During the course of chief-examination of D.W.1, he sought to mark an unregistered partition deed dated 20-02-1994.  The petitioner raised an
objection for marking the said document on the ground that the same is
unregistered and insufficiently stamped partition deed, which cannot be admitted
in evidence unless it is registered on proper stamp duty.  The Court below has
admitted the document into evidence as Ex.B-1.

3. The law is settled that an unregistered document which requires registration
is admissible in evidence under Section 49 of the Indian Registration Act, 1908,
for collateral purpose
(see Chinnappareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy  
and others1 and Roshan Singh v. Zile Singh2), 
whereas an unstamped or 
insufficiently stamped document cannot be admitted into evidence for any purpose
including for collateral purpose in the face of bar under Section 35 of the
Indian Stamp Act, 1899 [see Sanjeeva Reddi v. Johanputra Reddi3 and Rachakonda   
Ramakoteswara Rao Vs Manohar Fuel Centre, Nereducherla, Khammam4].       

4. In the instant case, the Court below has proceeded on the premise that the
document sought to be marked is an unregistered and insufficiently stamped
partition deed.  However, it misdirected itself in thinking that such a document
can be marked in evidence for collateral purpose by placing reliance on the
judgment of this Court in Guntupalli Venkata Ramaiah Vs Guntupalli Purnachandra
Rao5.

5. From a perusal of the judgment in Guntupalli Venkata Ramaiah (supra), it is
evident that the case before this Court arose in a suit for partition, wherein
this Court has held that the two documents which were in dispute can be looked into for a collateral purpose in spite of non-registration of the documents, 
if the stamp duty and penalty is paid.

6. Without proper comprehension of the said judgment, the Court below has marked 
the document in evidence even without ordering payment of proper stamp duty.  In
this view of the matter, the order of the Court below is reversed.  The
respondents are given liberty to pay proper stamp duty and penalty and resubmit
the same in evidence thereafter.  On payment of such stamp duty and penalty, the
Court below shall mark the same into evidence.

7. Subject to the above directions, the civil revision petition is allowed.  No
costs.
8. As a sequel to the disposal of the civil revision petition, C.R.P.M.P.No.6476
of 2011 is dismissed.

                ____________________________    
C.V.NAGARJUNA REDDY, J.    
25th January, 2012

for the opinion of an expert as to the genuineness= the application filed by the petitioners is not only belated but the same lacks bona fides. In the above circumstances, I am of the view that the Court below has not committed any jurisdictional error warranting interference of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. This order, however, will not preclude the petitioners from requesting the Court to compare the contents of Exs.B5 and B6 and the signatures on Ex.B10. If such a request is made, the Court below shall exercise its discretion under Section 73 of the Act and render its findings thereon.

THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY          

Civil Revision Petition No.5388 of 2011

27.01.2012

P.Seshagiri Rao and another

P.Soma Sekhar Rao and another  

^Counsel for the Petitioners:  Ms.Manjiri S.Ganu
                                                                       
!Counsel for respondents:  Sri R.A.Achutanand
       
? Cases referred:
1. AIR 1979 SC 14
2. 2008-AWC-4-3790
3. AIR 2008 AP 163

ORDER:
This civil revision petition arises out of order, dated 28.09.2011, in I.A.No.79
of 2011, in O.S.No.37 of 2003, on the file of the learned Judge, Family Court,
Secunderabad.
The petitioners filed the suit against the respondents for declaration of their
title and also for cancellation of the judgment and decree, dated 12.07.2002, in
O.S.No.1203 of 2001, on the file of the learned XI Additional Junior Civil
Judge, Secunderabad and for consequential injunction.  The evidence has
commenced in the year 2008.  The respondents have confronted petitioner No.1,
who was examined as PW.1 with Exs.B5 and B6, which were the purported receipts  
issued by the petitioners.  After closure of the evidence on the petitioners'
side and during the course of evidence of the respondents' side, Ex.B10 was
marked through the chief examination of DW.2 in June, 2010.  The petitioners
filed I.A.No.79 of 2011 for sending Exs.B5, B6 and B10 for the opinion of an
expert as to the genuineness of the contents of Exs.B5 and B6 and the signatures
on Ex.B10.  The respondents have resisted the said application.  The Court below
on considering the respective pleadings and the material on record dismissed the
said application.
A perusal of the order of the Court below would show that the application was
dismissed on three grounds, namely, that the same was filed at a belated stage,
that in the plaint, the petitioners have not denied the signatures on the
receipts and that PW.1 during his cross-examination admitted the signatures but
denied the contents thereof and hence the burden is on the petitioners to prove
that they have never received any amounts under those receipts.
At the hearing, Ms.Manjiri S.Ganu, learned counsel for the petitioners,
strenuously contended that the Court below has committed serious error in
rejecting the petitioners' application as it has failed to exercise discretion
vested in it under Section 45 of the Indian Evidence Act, 1872 (for short 'the
Act').  In support of her submission, she has placed reliance on the judgments
of the Supreme Court in State (Delhi Administration) v. Pali Ram1, Damara
Venkata Murali Krishna Rao v. Gurujupalli Satvathamma2 and a Division Bench of
this Court in M/s.Janachaitanya Housing Ltd., Ameerpet v. M/s.Divya Financiers3.
Sri R.A.Achutanand, learned counsel for the respondents, seriously opposed the
above submissions of the learned counsel for the petitioners.  He submitted that
the application was filed in order to prolong the litigation, that the
petitioners were well aware of the receipts which were passed on by them as
evident from their legal notice got issued as far back as 18.12.2001.  He has
further stated that having allowed the suit filed by his clients for specific
performance of agreement of sale to be decreed ex parte, the petitioners filed
the present suit for cancellation of the judgment and decree in the said suit
and that they have not shown any diligence whatsoever in filing the application
for sending the disputed documents for expert's opinion.
I have carefully considered the submissions of the learned counsel for the
parties.
As far as the judgments on which reliance was placed by the learned counsel for
the petitioners are concerned, there is no quarrel on the legal proposition that
an application for sending the disputed documents for expert's opinion cannot be
dismissed on the sole ground of delay.  If the Court feels that the expert's
opinion is needed for adjudicating on the dispute relating to the genuineness of
the documents or their contents, it can send the document for the expert's
opinion at any stage.  However, the Courts refrain from exercising such
discretion if it forms an opinion that the parties are not diligent in filing
the said applications or that there are no bona fides behind filing such
applications.
In the instant case, the petitioners pleaded that
they have handed over the
registered sale deed to respondent No.1 i.e., elder brother of petitioner No.1,
to construct building thereon by arranging payment to him, that respondent No.1
made an attempt to construct the building in the said site in the name of the
petitioners and that thereafter, they arranged the funds.
It is their further
case that respondent No.1 misused the offer by handing over the title deeds to
respondent No.2 in order to grab the land taking advantage of permissive
possession.  Before filing the said suit, the petitioners caused a legal notice
issued on 18.12.2001, wherein they have categorically stated that they have not
received any consideration in respect of half of the total extent of land
purchased through the document of 1984, much less they have agreed to sell the
same and that both the respondents might have used the signed papers of the
petitioners intended for other purposes as receipts in favour of respondent
No.2.
They have denied execution of any receipt.
It is thus evident that the petitioners were aware of existence of certain
receipts, the genuineness of which were denied much prior to the filing of the
suit.  However, the plaint is conspicuously silent on the genuineness or
otherwise of the receipts.
As noted above, Exs.B5 and B6 whose contents are
disputed, were introduced in evidence by the respondents, while cross-examining
PW.1 on 15.08.2009.
No application was made for sending the said documents for 
the opinion of the expert within a reasonable time thereafter.
It is only after
DW.2 has introduced Ex.B10 through her chief examination that the present
application is filed.  Moreover,
it is the case of the respondents that in the
suit in which an ex parte decree was passed, these receipts were filed as
exhibits.  These facts would clearly disclose that the petitioners are well
aware of the existence of the disputed documents for a long time, but for the
reasons best known to them, they did not come with an application at an earlier
point of time.
 I am, therefore, of the opinion that the application filed by
the petitioners is not only belated but the same lacks bona fides.
In the above circumstances, I am of the view that the Court below has not
committed any jurisdictional error warranting interference of this Court in
exercise of its supervisory jurisdiction under Article 227 of the Constitution
of India.  This order, however, will not preclude the petitioners from
requesting the Court to compare the contents of Exs.B5 and B6 and the signatures
on Ex.B10.  If such a request is made, the Court below shall exercise its
discretion under Section 73 of the Act and render its findings thereon.
Subject to the above observations, the civil revision petition is dismissed.
As a sequel to dismissal of the civil revision petition, C.R.P.M.P.No.7632 of
2011 shall stand disposed of as infructuous.

C.V.NAGARJUNA REDDY, J    
27th January, 2012

Section 125 of the Code of Criminal Procedure = As the heading of the chapter itself indicates, these provisions relate only to order for maintenance in favour of wives, children and parents and it does not encompass in it's sweep an order for maintenance in favour of the husband from the wife.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2012
CORAM
THE  HONOURABLE MR. JUSTICE S.NAGAMUTHU
Crl.O.P.No.10466 of 2012
B.Clement
... Petitioner
Vs.

Mrs.Mcthel Thanga Annam @ P.Mcthel
   ... Respondent

Petition filed under Section 482 of the Code of Criminal Procedure praying to transfer the case in M.C.No.3 of 2011 pending on the file of the learned Chief Judicial Magistrate, Dharmapuri to be tried with M.C.No.21 of 2011 pending on the file of the Judicial Magistrate, Ambattur.

For petitioner : Mr.V.Lakshmi Narayanan

For respondent     : Mr.K.P.Anantha Krishna
 Government Advocate
 [Criminal Side]
ORDER

The Provision for order for maintenance of wives, children and parents envisaged in chapter X of the Code of Criminal Procedure serves a social purpose.
 It is a measure of social justice and specially enacted to protect women, children and parents and it falls within the constitutional sweep of Article 15(3) of the Constitution of India reinforced by Article 39 of the Constitution of India. 
The intention of the legislature is to cast an obligation upon a person, who neglects or refuses to maintain his wife or children or parents.  
As has been held by the Hon'ble Supreme Court, the provisions of this Chapter constitute a complete code in itself and the proceedings referred to thereunder are basically of civil nature, that are certainly not punitive and that the rights of the parties have got to be determined with reference to the object which the proceedings are expected  to serve [vide Nandlal Mishra v. Kanhaiya Lal Misra, AIR 1960 SC 882]. 
 As the heading of the chapter itself indicates, these provisions relate only to order for maintenance in favour of wives, children and parents and it does not encompass in it's  sweep an  order for maintenance in favour of the husband from the wife. To read and understand the scope of Section 125 of the Code of Criminal Procedure is not a tortuous task. The words are plain and the intention is explicit.
The legislature would not have intended to clothe the husband with the right to claim maintenance from his wife under this Chapter. Though under some personal laws, the husband may be entitled to claim maintenance from the wife, it is certainly not possible under Section 125 of the Code of Criminal Procedure.

2. With this background, let us go into the facts of the instant case. The petitioner, the husband of the respondent herein, filed a case in M.C.No.3 of 011 on the file of the learned Chief Judicial Magistrate, Dharmapuri, claiming monthly maintenance of Rs.10,000/- from the respondent/wife. Taking the case on file, the learned Chief Judicial Magistrate  summoned the respondent. The respondent herein in turn filed a case in M.C.No.21 of 2011 before the learned Judicial Magistrate, Ambattur, Tiruvallur District, under the provisions of The Protection of Women from the Domestic Violence Act, 2005 wherein she has prayed for various reliefs including maintenance from her husband, the petitioner herein.  In those circumstances, the petitioner has approached this court with this original petition seeking  transfer of the case in M.C.No.3 of 2011 from the file of the learned Chief Judicial Magistrate, Dharmapuri, to the file of the learned Judicial Magistrate, Ambattur so as to be tried along with M.C.No.21 of 2011.

3. When this original petition came up for hearing on 04.06.2012, this court raised a fundamental question to the learned counsel for the petitioner  as to how  the case in M.C.3 of 2011 itself is maintainable under Section 125 of the Code of Criminal Procedure. The learned counsel took time to clarify the legal position. On 07.06.2012, this petition case was again taken up for hearing. When the learned counsel was again invited to explain to the court as to how the case in M.C.No.3 of 2011 itself is maintainable, the learned counsel has nothing in store to explain. He, however, offered to withdraw the present original petition.  But, this court pointed out that even if the present petition for transfer is allowed to be withdrawn, this court would not stop without quashing the proceedings in M.C.No.3 of 2011 suo motu by exercising the power saved under Section 482 of Cr.P.C.  Thereafter, the learned counsel for the petitioner filed a memo dated 07.06.2012 wherein he has stated in paragraph 3 and 4 as follows:-
"3. The petitioner further submits that now he understands that the 125 Cr.P.C. for maintenance cannot be invoked by the petitioner against wife. In the above circumstances the petitioner begs to file this Memo.
4.  Hence, this Hon'ble Court may be pleased to quash the proceedings in M.C.No.3 of 2011 on the file of the C.J.M. Dharmapuri and thus render justice."

4. In view of the legal position that the maintenance case filed by the husband against the wife is not maintainable under Chapter X of the Code of Criminal Procedure  and in view of the fact that the learned counsel for the petitioner himself has filed a memo expressing no objection for this court to quash the proceedings in M.C.No.3 of 2011, while dismissing the present petition for transfer, this court is inclined to proceed to quash the very case in M.C.No.3 of 2011 on the file of the learned Chief Judicial Magistrate, Dharmapuri.

5. In the result, the criminal original petition is dismissed, however, the case in M.C.No.3 of 2011 on the file of the learned Chief Judicial Magistrate, Dharmapuri, is hereby quashed. 



Index : yes / no                          07.06.2012
Internet : yes / no          

kmk

To
1.The Chief Judicial Magistrate, Dharmapuri.
2.The Judicial Magistrate, Ambattur.


S.NAGAMUTHU. J.,


kmk
















Crl.O.P.No.10466 of 2012













07.06.2012

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."= "256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. " Considering the above decision along with Section 256 Cr.P.C., it is a discretion of the Magistrate to adjourn the matter or dispose of the matter, the Magistrate has to exercise his discretion judicially. Since it is a matrimonial dispute and the complainant is residing away from her matrimonial home, the learned Magistrate has to give one more opportunity to put forth her case. But the discretion exercised by the learned Metropolitan Magistrate is not legally sustainable. But however, the matter is pending in the matrimonial Court (i.e.) Sub-Court Tambaram in respect of divorce petition filed by the husband under Section 13(1)(i)(a) of the Hindu Marriage Act. Considering the gravity of the complaint and relationship between both sides, I am of the view, the order passed by the learned XV Metropolitan Magistrate is liable to be set aside and hence, it is hereby set aside.

                IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:25.06.2012

CORAM:

THE HONOURABLE MS. JUSTICE R. MALA

Criminal Appeal No.709 of 2010


K.Niranjani                                           .. Appellant/Complainant
                                                 

v.      

1.R.T.Dinesh
2.R.T.Giri
3.T.Amsa                                              .. Respondents
                                               
Prayer:Criminal appeal filed under Section 378 of Cr.P.C., against the judgment dated 19.10.2010, in M.P.No.5872 of 2010 in D.V.C.No.1 of 2010, on the file of the learned XV Metropolitan Magistrate, George Town, Chennai.

For Appellant             : Mr.P.Ezhil Nilavan
     
For Respondents       : Mr.S.V.Vijay Prashanth


           J U D G M E N T      
           
This appeal arises out of the judgment of dismissal dated 19.10.2010, in M.P.No.5872 of 2010 in D.V.A.C.No.1 of 2010, on the file of the learned XV Metropolitan Magistrate, George Town, Chennai, stating that on the absence of complainant, the complaint has been dismissed and the accused were acquitted.

2.The appellant/wife had filed an application against the respondents herein, who is her husband, father-in-law and mother-in-law respectively, under Sections 12 R.W.S. 18, 19, 20(1) & 22 of the Protection of Women from Domestic Violence Act, 2005, which was taken on file in D.V.A.C.No.1 of 2010 and interim order of Rs.25,000/- per month has been awarded to the wife as maintenance and the right of residence was ordered. As per the order dated 08.03.2010, the above said order has been modified. Therefore, her husband, who is the first respondent herein had filed C.A.No.39 of 2010 before the Appellate Forum for reducing the maintenance and the wife, who is the appellant herein, had filed C.A.No.46 of 2010 for right of residence. Both the appeals have been disposed of on 24.09.2010, with a direction to dispose of the main petition in D.V.A.C.No.1 of 2010 within 60 days. But on 19.10.2010, since the appellant/complainant was called absent, the learned XV Metropolitan Magistrate, by invoking Section 256 Cr.P.C., dismissed the complaint and acquitted the respondents herein, against which, the present appeal has been preferred by the wife/complainant.
3.Mr. P.Ezhil Nilavan, learned counsel for the appellant/ complainant submitted that when the matter was posted on 19.10.2010,  the counsel for the wife, who has to appear before the Court, was admitted in hospital. As the wife/appellant herein was also suffering from stomach pain, she sent the medical certificate through her uncle and on her behalf,  her uncle appeared before the Court. But the Court, not accepting to receive the adjournment petition, dismissed the complaint. In the after noon, on the same day, the wife/appellant/complainant herself appeared before the Court and she was directed to file an application for restoration of the same on the very next day. But that restoration petition was not entertained by the trial Court. He further submitted that even though 60 days time has been granted, the learned XV Metropolitan Magistrate without giving any opportunity, dismissed the complaint for non prosecution. Since wife/appellant is a deserted wife and she is left in lurch, he  prayed for setting aside the order.

4.Resisting the same, Mr.S.V.Vijay Prashanth, learned counsel appearing for the respondents submitted that the main aim of the appellant/complainant is to drag on the proceedings. She filed an application under Domestic Violence Act and obtained an interim order of Rs.25,000/- per month as interim maintenance, against which, both husband and wife preferred appeals in C.A.Nos.39 and 46 of 2010 respectively. In the appeals, an order was passed on 24.09.2010 to dispose of the entire matter within 60 days and the maintenance was reduced to Rs.5,000/-. He further submitted that on 04.09.2011, there was an agreement between the spouses. In pursuance of the agreement, the wife/appellant/complainant has received all the belongings, jewels and also cash, which was present at the time of marriage and she consented for divorce. The learned counsel would take me through page-89 of the typed set of papers and submitted that but on 19.09.2011, she filed an application for setting aside the exparte order passed on 08.09.2011.  It shows that the main aim of the wife/appellant/complainant is to drag on the proceedings and to make the paternal in laws to face the proceedings before the Court. Hence, he prayed for the dismissal of the appeal.

5.Considered the rival submissions made on both sides and the materials available on record.

6.The relationship of the appellant and the respondents is not disputed and the factum of the marriage is also not disputed. The wife/appellant filed an application under Domestic Violence Act against her husband and in-laws and obtained interim order of Rs.25,000/- as maintenance and her right of residence was modified, against which, both husband and wife preferred appeals in C.A.No.39/2010 for reducing interim maintenance and C.A.No.46/ 2010 for right of residence respectively. After hearing both sides, the learned Sessions Judge passed an order dated 24.09.2010, stating that the interim maintenance has been reduced to Rs.5,000/- and right of residence has been cancelled and the wife was directed to live with her husband and the husband should provide suitable atmosphere to live in the matrimonial home in the newly rented house. In para-63 of the above order, a specific direction was given to the learned XV Metropolitan Magistrate to dispose of the D.V.A.C.No.1 of 2010 within 60 days. The above factum are admitted by both sides.

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. "

But the order in the appeals have been pronounced only on 24.09.2010, within 30 days, the learned XV Metropolitan Magistrate dismissed  the complaint for non prosecution by invoking Section 256 Cr.P.C.

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."

9.It is appropriate to incorporate Section 256 Cr.P.C., which reads as follows:
"256. Non-appearance or death of complainant.
  (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
  Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. 
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. "

Considering the above decision along with Section 256 Cr.P.C., it is a discretion of the Magistrate to adjourn the matter or dispose of the matter, the Magistrate has to exercise his discretion judicially. Since it is a matrimonial dispute and the complainant is residing away from her matrimonial home, the learned Magistrate has to give one more opportunity to put forth her case. But the discretion exercised by the learned Metropolitan Magistrate is not legally sustainable.  But however, the matter is pending in the matrimonial Court (i.e.) Sub-Court Tambaram in respect of divorce petition filed by the husband under Section 13(1)(i)(a) of the Hindu Marriage Act. Considering the gravity of the complaint and relationship between both sides, I am of the view, the order passed by the learned XV Metropolitan Magistrate is liable to be set aside and hence, it is hereby set aside.


10.In fine,
(i)     Criminal Appeal is allowed.
(ii)    Acquittal order passed by the trial Court is set aside.
(iii)    The matter is remitted back to the learned XV Metropolitan
      Magistrate, George Town, Chennai.
(iv)   Both the appellant and the first respondent are directed to
     appear before the trial Court on each and every hearing and
     shall extend their co-operation.
(v)     Respondents 2 and 3 are directed to appear before the Court
     whenever they directed to appear.
(vi)   The learned XV Metropolitan Magistrate, George Town, Chennai.
     is directed to dispose  of the matter within a period of 45 days
     from the date of receipt of copy of  this order on day to day
      basis.


25.06.2012
Index:Yes
Internet:Yes
Note to office: The Registry is
directed to issue copy of the
order within a week.
kj


R.MALA,J.



Kj




To
XV Metropolitan Magistrate's Court
George Town, Chennai.




Criminal Appeal No.709 of 2010













25.06.2012

This court is not inclined to entertain the writ petition at the instance of the petitioner as she was neither a party to the proceedings before the learned Magistrate, Tambaram nor she has locus standi to file such a writ petition.The marriage between the second respondent and her husband was not dissolved so far.As against the said order, an appeal lies to the Sessions Court in terms of the Section 29 of the Act. Hence the petitioner if aggrieved she should file an appropriate application before the Sessions Court after getting the leave of the court to challenge the same. Section 17(2) itself says that an aggrieved person cannot be evicted or excluded from the shared household or any part of it by any person except the procedure established by law. Therefore, it is for the petitioner to establish her title before the appropriate court before seeking for any relief against the cancellation of the shared housedhold order given by the learned magistrate. There is no case made out by the petitioner. Accordingly, the writ petition will stand dismissed. No costs.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :  10.04.2012

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.No.9665 of 2012


Rehana ..  Petitioner

Vs.

1.Protection Officer,
   (Protection of Women from
    Domestic Violence Act, 2008)
   Kancheepuram District,
   Kancheepuram.

2.A.Malika Begum ..  Respondent


This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in CMP No.118 of 2009 on the file of the Judicial Magistrate, Tambaram and quash the "residence order" made therein on 14.7.2009 and directing the first respondent to remove the second respondent from the "shared household" i.e. No.7, First Cross Street, 2nd Main Road, Lakshmipuram Extension-II, West Tambaram, Chennai-600 045.

For Petitioner  : Mr.O.R.Abul Kalaam


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ORDER

The petitioner is the second wife of one Mohammed Aslam. 
The second respondent is the first wife of the said Mohammed Aslam. 
In this writ petition, the petitioner has come forward to challenge an order passed by the learned Judicial Magistrate, Tambaram in Crl.M.P.No.118 of 2009, dated 14.7.2009. 
The petitioner seeks to set aside the said order and also for a direction to remove the second respondent from the household i.e. No.7, First Cross Street, 2nd Main Road, Lakshmipuram Extension-II, West Tambaram, Chennai.
2.This court is not inclined to entertain the writ petition at the instance of the petitioner as she was neither a party to the proceedings before the learned Magistrate, Tambaram nor she has locus standi to file such a writ petition.
3.The contention of the petitioner was that the premises in question belonged to her. 
Therefore, the learned Magistrate cannot pass an order in terms of Section 17 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). 
It is seen from the records that the second respondent who was married to Mohammed Aslam both under the Special Marriage Act as well as as per the Islamic Rites, was neglected by her husband. 
She also moved the Family Court for maintenance.
The marriage between the second respondent and her husband was not dissolved so far. 
Even as per the admission made by the second respondent's husband in the counter statement, dated 9.3.2009 filed before the learned Judicial Magistrate, Tambaram, he had categorically stated that he did not seek for any divorce in the interest of the children though he claimed that the complaint was the false complaint. 
4.On the other hand, the stand of the second respondent before the learned Magistrate was that 
after their marriage,  Mohammed Aslam had clandestinely transferred some properties in favour of the petitioner and she was pushed out of the place  along with her disabled child. 
This necessitated her to move the learned Judicial Magistrate under the provisions of the PWDV Act. 
The learned Magistrate after going through the rival contentions had granted the relief. 
As against the said order, an appeal lies to the Sessions Court in terms of the Section 29 of the Act. 
Hence the petitioner if aggrieved she should file an appropriate application before the Sessions Court after getting the leave of the court to challenge the same. 
On the other hand, the stand taken by the husband of the second respondent before the learned Magistrate was very evasive and correctly the learned Magistrate, Tambaram had granted the relief in favour of the second respondent. 
Such an order is always subjected to further order. 
Section 17(2) itself says that an aggrieved person cannot be evicted or excluded from the shared household or any part of it by any person except the procedure established by law.  
Therefore, it is for the petitioner to establish her title before the appropriate court before seeking for any relief against the cancellation of the shared housedhold order given by the learned magistrate. There is no case made out by the petitioner. Accordingly, the writ petition will stand dismissed. No costs.










vvk

To

Protection Officer,
(Protection of Women from
 Domestic Violence Act, 2008)
Kancheepuram District,
Kancheepuram