Delhi District Court
Manik Chopra vs At Present Residing At: on 8 October, 2015
Author: Sh. Sudesh Kumar
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL SESSION JUDGE03
SOUTH EAST DISTRICT, SAKET COURTS
IN THE MATTER OF
CASE ID No. 02406R0312702014
CR NO. 44/14
S/o Sh. Vinod Chopra
R/o 12/368, DDA Flats,
Kalkaji, New Delhi
W/o Manik Chopra
D/o Anil Khosla
At present residing at:
Apartment No. 631,
Shiv Kala Apartments,
Plot No. D19,
Sector 51, Noida,
DATE OF INSTITUTION: 19.11.2014 DATE OF RESERVING ORDER: 30.09.2015 DATE OF PRONOUNCEMENT: 08.10.2015 Vide this Petition, the revisionist has assailed the order dated 05.11.2014 passed by Ld. MM thereby directing the revisionist to pay Rs.
60,000/ per month as interim maintenance to the respondent/wife till disposal of the Petition filed U/s 12 of the Protection of Women from Domestic Violence Act, 2005.
During the course of arguments, the issue of maintainability of the present Revision was raised, however, Counsel for the revisionist has contended that the revision filed against the order of interim maintenance was duly maintainable and there was no need for the revisionist/husband to prefer an Appeal against the Order as the Order so passed was unjust and bad in law.
Counsel for respondent however contended that in view of the provisions of the Protection of Women from Domestic Violence Act, 2005, the revision petition as filed against the Order of interim maintenance was not maintainable. Ld. Counsel has also relied upon the following Judgments:
(i) Arivazhagan Vs M. Uma, Crl R.C. (MD) No. 287 of 2012 and M.P. (MD) No. 1 of 2012 passed by the Hon'ble Madras High Court.
(ii) K. Rajendran Vs Ambikavathy, Criminal Revision Case (MD) No. 482 of 2012 and M.P. (MD) No. 1 of 2012 passed by the Hon'ble Madras High Court.
(iii) Mohd. Akber Yaseen Vs Rizwana Sulthana, LAWS (APH)20107129 passed by the High Court of Andhra Pradesh.
Before proceeding further, let me discuss the legal provisions applicable in the present scenario.
Section 29 of the Protection of Women from Domestic Violence Act 2005 provides as under:
There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
Section 399 Cr. PC provides as under:
Sessions Judge's powers of revision In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High court under subsection (1) of section 401.
Further, Section 401 Cr. PC provides as under:
High Court's powers of Revision:
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
Chapter IV of the Protection of Women from Domestic Violence Act, 2005 provides for all the reliefs which an aggrieved person can seek by filing an application before the concerned Magistrate.
Further, Section 29 in the same Chapter specifically provides that there shall lie an appeal to the Court of Sessions against any Order passed by the Ld. Magistrate in the said Chapter.
The Protection of Women from Domestic Violence Act, 2005 is a special Act which has been enacted for providing effective protection to the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected there with or incidental thereto.
There is a specific provision providing for a remedy by way of an Appeal under the Act. There is an effective and alternative remedy available to any aggrieved person to file an Appeal against the Order passed by Ld. MM.
In my considered view against interim Order of maintenance, the remedy lies in preferring Appeal against the Order and the revisional application was not maintainable. In K. Rajendran Vs Ambikavathy, Criminal Revision Case (MD) No. 482 of 2012 and M.P. (MD) No. 1 of 2012 passed by the Hon'ble Madras High Court, it was observed "The Revisional jurisdiction of a concerned Court relates to the supervisory jurisdiction of a superior Court. A right of appeal is conferred only by a Statute. It is not itself a necessary part of procedure in an action but, it is the right of a person entering the superior forum invoking its assistance to correct the error committed by the lower forum. Furthermore, Section 372 of Cr. PC enjoins that "no appeal shall lie from any judgment or order of the criminal Court except as provided for by this Court or by any other Law for the time being in force.
As far as the present case is concerned, as against the impugned order dated 21.09.2012 passed in D.V.O.P. No. 29 of 2012, the Revision Petitioners are to prefer only Statutory Appeal as per Section 29 of the Act. It is a viable efficacious, effective and alternative remedy., as opined by this Court. In the instant case, obviously, the Petitioners have not filed any petition seeking alteration, modification or revocation of the order passed by the Learned Judicial Magistrate in D.V.O.P. No. 29 of 2012 dated 21.09.2012 without seeking alteration, modification or revocation of the order so passed in D.V.O.P. No. 29 of 2012 dated 2.09.2012 by the Learned Magistrate and also not filing the Statutory Appeal under Section 29 of the Act, the Petitioners have directly approached this Court by filing the instant Criminal Revision petition under Section 397 and Section 401 of Cr. PC. Only when a Revision is filed as against the judgment or order passed by the Court of Session in Appeal as per Section 29 of the Act, then only, the right of availing the procedural facility of filing the Revision is available to the Petitioners, in the considered opinion of this Court. When a statutory right of filing an Appeal is provided to the Petitioners (as per Section 29 of the Act), then this Court is of the considered view that the Petitioners cannot invoke the Revisional Jurisdiction of this Court under Section 397 read with 401 of Cr. PC."
Further, in Mohd. Akber Yaseen Vs Rizwana Sulthana, LAWS (APH)20107129 passed by the High Court of Andhra Pradesh, it was observed "In the case of Domestic Violence cases filed for reliefs under Sections 18 to 23 of the Act, there is no element of criminality involved, much less the domestic violence case is a criminal case as such. Unless the case is filed alleging offences under Sections 31 and 33 of the Act, the entire proceedings in a domestic violence case are purely civil in nature, but entertained by criminal Courts applying procedure enunciated under the Code of Criminal Procedure, 1973. Therefore, while issuing notice in domestic violence case filed by respondent nos. 1 to 5, the Magistrate is not expected to apply or exercise his/her mind before issuing notices to the respondents therein. No summonses are issued in a domestic violence case, but only notices are issued. Issuing notices to the respondents in a domestic violence case, in my considered opinion, is not a judicial act but is only a Ministerial act performed by the Magistrate. As against a Ministerial act, no revision is maintainable under Section 397 Cr. PC.
Assuming for a moment for the sake of argument that issuing of notice in a domestic violence case amounts to an order passed by the Magistrate and further a judicial order passed by the Magistrate, even then the revision petition under Section 397 is not maintainable, because any order passed by the Magistrate is appealable under Section 29 of the Act. The petitioners cannot bypass remedy of appeal and approach directly this Court under Section 397 Cr. PC by way of this revision petition. Thus, viewed from any angle, this revision petition is not maintainable in this Court. In the result, the criminal revision petition is dismissed."
In the result, the Revision Petition is dismissed as not maintainable. It is open to the revisionist to prefer an Appeal as per the provisions of the Protection of Women from Domestic Violence Act, 2005 in the manner known to the Law and to seek remedy thereof, if he so desires.
The part amount already deposited by the revisionist/husband towards the interim maintenance however may be adjusted in the disbursement in accordance with the Order dated 05.11.2014 passed by Ld. Trial Court.
Revision Petition record be consigned to Record Room.
TCR be sent back to court concerned alongwith copy of this Order.
ANNOUNCED IN THE OPEN COURT (SUDESH KUMAR) ON 08.10.2015 ASJ, S.E., SAKET COURTS NEW DELHI