2015 (2) TMI 1404 - HC - Indian Laws

Right to maintenance - Payment of maintenance, medical, clothing and educational expenses - seeking an order to protect the right to reside in the share household, under Section 17 of the Act - seeking protection order, under Section 17(e) of the Act, not to alienate or encumber the property - HELD THAT:- The Protection of Women from Domestic Violence Act, 2005, is to rectify the causus omission in the ordinary civil law. The expression, "Causus Omissus", as explained in various decisions, means (1) Omitted case, (2) What a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a Causus Omissus.

In a given case, Wife would not have made any claim for maintenance under Section 125 of the Code of Criminal Procedure, or any other law, for the time being in force. However, under Section 23 of the Act, she can make a claim for maintenance. In such circumstances, the Magistrate has the power to order monthly payment of maintenance, under Section 20(3) of the Act. Though the words, "appropriate lumpsum payment" in Section 20(3) of the Act, may suggest to mean that it is a permanent alimony, yet from the reading of the Act, the power of the Magistrate, to order for lumpsum payment, arising out of necessity, including educational, medical expenses and such other need, enumerated in Section 20 of the Act, is not circumscribed.

Reading of the Act in entirety makes it clear that the legislature has enumerated certain contingencies and circumstances, in relation to domestic violence and empowered the Court to pass just and proper orders, to redress the grievance of the aggrieved person. From the reading of the Act, it is manifestly clear that the Domestic Violence Act, is independent of other laws.

It provides for redressal of all kinds of deprivation or any economic or financial resources to which the aggrieved person is entitled under any law or custom, whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.

Wife and son have not filed any appeal against the denial of maintenance. But the petitioner has filed Crl. A. No. 180 of 2012 against the directions to pay Rs. 5,00,000/- towards the educational expenses to son. The appellate Court has modified the same, to the extent directing wife to furnish proof of admission in VLB College or any other college, and also to furnish complete fee structure to be paid, for the year 2012, alongwith the proof of capitation fees, if any, before the trial Court and further directed the petitioner to pay 50% of the capitation fees within two days of filing the proof of fees structure before the trial Court - The appellate Court has also directed the balance of 50% of the capitation fees to be paid by the husband and on production of the admission letter, before the trial Court. In addition to the above, the appellate Court has directed Rs. 50,000/- to be paid to the son, with liberty to utilise the same, for his other personal expenses. Monthly maintenance of Rs. 5,000/- for the son has been ordered to be deposited on or before, every 5th day of the English Calendar Month, in the personal account of the son.

Husband is directed to pay a sum of Rs. 2,11,200/- towards the college fees for 3rd and 4th years, in two installments. The first installment should be paid within 10 days, from the date of receipt of a copy of this order. The 2nd payment should be made within one month thereafter. Payment of Rs. 50,000/- to the Son, on admission, is sustained, having regard to the amount spent towards purchase of books, travel, etc., for all these years. Monthly maintenance of Rs. 5,000/- ordered to the Son is modified and ordered to be paid to the Wife. The 4th respondent-College is directed to permit the Son to continue his education in B. Tech (IT) course, without any interruption. Conversion of the amount of maintenance, earlier ordered to the Son, in favour of the Wife, would not preclude the learned Judicial Magistrate No. 1, Coimbatore, to consider the merits of the case and pass suitable orders, as to the entitlement of maintenance of both the respondents. Arrears of maintenance, at the rate of Rs. 5,000/-, ordered to be paid to the wife, upto date, shall be paid, within one month, from the date of receipt of the order.

Both the Criminal Revision Cases are disposed of.