The revision petitioner herein challenges the order passed by the learned Judicial First Class Magistrate -II, Hosdurg in M.C 83/2009 under Section 12 of the Protection of Women from Domestic Violence Act 2005 (for short ' the Act'), confirmed in appeal. The respondent is the wife of the revision petitioner. She was married by him on 21.10.1996 and she has been residing separately since 2.11.2009. Two children born in the wedlock, aged 16 years and 10 years respectively, are now with the respondent. On the allegations of extreme acts of cruelty and neglect to maintain, the respondent brought proceedings under Section 12 of the Act for different reliefs like protection order, residence order, maintenance order etc. 2. The case of the respondent in her complaint brought under Section 12 of the Act is that she had been subjected to much mental and physical ill treatment by her husband, but she suffered everything for years for the children. However on 2.11.2009 she was driven out from the matrimonial home, and since then her husband has not given anything to her and the children by way of maintenance. She has serious apprehension that she would even be done away with if she continues in the shared house hold home without sufficient and adequate protection under the law.
3. The revision petitioner entered appearance in the trial court and filed objection statement contending that his wife in fact left the shared house hold on her own, and she has been residing separately without any reason or excuse. He denied all the allegations of cruelty, and he also denied the allegation of neglect to maintain. His grievance is that if he is not allowed to continue in the shared house hold he will have to go street, and if the respondent is given protection order, that will create further problems in matrimony. As regards the claim for maintenance his case is that he is a Coolie, and he cannot pay that much amount claimed by the wife and children.
4. The trial court conducted an enquiry in the proceedings and recorded evidence. The respondent herein examined herself as PW1 to substantiate the allegations in the complaint, and the revision petitioner examined himself as RW1. The respondent gave evidence regarding the allegations made in the complaint including cruelty, neglect etc, but the revision petitioner adduced contra evidence denying everything.
5. On an appreciation of the evidence the learned Magistrate found that the respondent herein has a genuine grievance, and she cannot continue in the matrimonial home without sufficient protection under the law, and that the wife and children are entitled to get maintenance. In the particular facts and circumstances, the learned Magistrate also found the necessity of keeping the revision petitioner away from the matrimonial home as a measure of providing protection to the wife and children. Accordingly, the trial court passed orders in M.C 83/2009 on 27.12.2010 restraining the revision petitioner from committing any sort of domestic violence against the wife, directing him to remove himself from the shared house hold, directing him not to disturb the peaceful possession of his wife over the shared house hold, and also directing the revision petitioner to pay maintenance to his wife and children at the rate of `1000/- per month each. The said order is under challenge in this revision.
6. Aggrieved by the order the revision petitioner approached the Court of Session, Kasaragod at Crl. A 47/2011. But the learned Additional Sessions Judge (Adhoc II) confirmed the order and dismissed the appeal.
7. In spite of notice, the respondent did not turn up to contest this revision. However, the revision is being disposed of on merits. The learned Counsel for the revision petitioner made effective arguments challenging the various orders passed by the court below. However, the learned Counsel submitted that the main challenge is on the first and third clauses of the impugned order.
8. The first order granted by the trial court is a protection order under Section 18(a) of the Act, the second order granted by the trial court is an order under Section 19(b) of the Act, the third one is under Section 19(c) and the fourth one is a maintenance order under Section 20 of the Act.
9. As regards the maintenance order I do not find any scope or necessity for interference in the quantum of maintenance because the rate awarded by the trail court is in fact much lesser than the normal rate of maintenance that could be awarded these days on a consideration of the present day cost of living and the present day needs and necessities. It is submitted that one child is now aged 16 years and the other is aged 10 years. They will have their own requirements including education expenses, which cannot be met by the mother with just Rs.1000 per month paid by the father. Assuming that the revision petitioner is a Coolie, we will have to consider the present day wage structure. On a consideration of all relevant aspects, I find that the said order granted under Section 20 of the Act does not require any interference.
10. Of course, admittedly the respondent left the matrimonial home on 2.11.2009, but now she is in the shared house hold. The revision petitioner is not happy with the order allowing her to continue there. His apprehension is that if he and the wife live under the same roof, it will cause further disputes in matrimony. Of course, the right of the wife to continue in the matrimonial home cannot, in any circumstance be denied or disputed. The respondent herein has given evidence substantiating the allegations of cruelty. But I find that those acts of cruelty alleged by her are not in fact of a high degree, or of extreme nature, requiring interference of the court by way of an order directing him to keep away from the matrimonial home. I feel that the second part of the order can be set aside, when there is already clause three of the order directing the revision petitioner not to create any problem to his wife. I find that the first part of the order granting protection from actual domestic violence will also adequately protect the lady from any act of domestic violence, or any apprehended act of cruelty at the hands of the husband. It is submitted that the revision petitioner has no other abode, and if he is not permitted to live in the matrimonial home, he will have to go to street. The respondent did not turn up to contest the matter. It appears that she is not very much concerned about the 2nd part of the order directing the husband to remove himself from the shared house hold. A person who does not have another abode, or who cannot even afford to find out an alternate accommodation with the limited resources, will have to be allowed to continue in the shared house hold, of course, subject to appropriate directions that he shall not do any act of domestic violence and he shall not in any manner disturb his wife's possession or residence in the shared house hold. In the particular facts and circumstances I find that the first part and the third part of the order will give adequate protection and safety to the respondent, and she can very well continue in the matrimonial home with the children, without any threat or violence from the part of her husband. The court makes it clear that if the revision petitioner commits any such act of cruelty or domestic violence, the respondent can very well approach the police or even the trial court with complaint under Section 498 A IPC. This court hopes that the revision petitioner will always be aware of the consequences, and that he will not commit any act of violence or cruelty in the matrimonial home.
11. As discussed above, I find that this revision can be allowed in part, to the limited extent of setting aside the second part of the impugned order directing the revision petitioner keep himself away from the matrimonial home.
In the result, this revision petition is allowed in part. The first, third and fourth parts of the impugned order will stand confirmed, but the 2nd part directing the revision petitioner to keep himself away from the shared house hold will stand set aside.
P.UBAID, JUDGE sab