Continued deprivation of economic or financial resources and continued prohibition or denial of access to shared household to the aggrieved person is a domestic violence

 In the case of Rina Devibora vs Dwijen Ch. Bora & Anr.(supra) the Hon'ble Single Judge of the Gauhati High Court has held in para 15 as follows ;-

"The respondent is continuously depriving the petitioner, who is

legally entitled to a shared household in terms of the provisions

of the Domestic Violence Act. The

denial of access to shared household

to the petitioner took place prior

to coming into force of the Domestic

Violence Act, but such denial continued even thereafter. As the

act complained of by the petitioner

is a continuing breach of legal

right as envisaged in the Domestic

Violence Act, there is no question

putting a halt to the relief sought

for. Therefore, giving relief to the

petitioner for such continuous breach of the legal right which has

accrued to her, would not amount to

giving retrospective effect to the

provisions of the Domestic Violence

Act. In view of my above discussion,

I have no hesitation to hold that

continued deprivation of economic or

financial resources and continued

prohibition or denial of access to

shared household to the aggrieved

person is a domestic violence and

the protection under the Domestic

Violence Act will be available to

the petitioner, who was driven out

from her husband's shared household

prior to coming into effect of the

Domestic Violence Act, as the

deprivation continued even after the

Act came into force."

Kolkata High Court (Appellete Side)

Nityananda Das @ Chantu Das vs State Of West Bengal & Anr on 7 July, 2011

1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure against the judgment and order dated 10.12.2010 passed by the Learned Additional 2
Sessions Judge, Fast Track, 8th Court, Bichar Bhawan, Calcutta in Criminal Appeal No. 14 of 2010 affirming thereby the order dated 11.01.2010 passed by the Learned Metropolitan Magistrate 14th Court, Calcutta in Case No. C/09/10 under Section 12 and 23 of the Protection of Women from Domestic Violence Act, 2005.
2. The petitioner / wife / aggrieved person filed a case bearing No. C/9/10 under Section 12 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act'), alleging that she was married with the O.P. on 12th August 1986. After marriage they lived together as husband and wife in the matrimonial home. Out of the wedlock one son and one daughter were born. The respondent used to assault her physically and commit torture upon her. The petitioner was driven out from the matrimonial home on 20.10.93. The petitioner has prayed for monthly maintenance @ Rs. 15,000/- per month for herself with two children and a further sum of Rs. 1,25,000/- only in lump towards the litigation expenses and compensation etc.
3. The Learned Magistrate vide order dated 11.01.10 passed an order prohibiting the respondent from committing any act of domestic violence upon the petitioner and from alienating any assets of the petitioner including the articles which were given to her at the time of marriage. The respondent has 3
been further directed to pay a sum of Rs. 4000/- per month to the petitioner to meet the expenses of herself and her children. The respondent has also been restrained from alienating or disposing of the shared household i.e. the two flats owned by the respondent at 34, K. G. Bose Sarani, Kolkata - 700 085 till disposal of the case.
4. The learned counsel appearing for the petitioner submits that the circumstances as stated in the petition by the aggrieved person occurred prior to the coming into force of the Act. It is the contention of the learned counsel that the said Act has no retrospective effect and, as such, the circumstances which allegedly occurred prior to the coming into force of the Act 2005, cannot be taken into consideration for granting any relief under the said Act.
5. The learned counsel further submits that there is provision in the Act for arrangement of alternative accommodation which the Learned Magistrate has not considered at all. The learned counsel has referred to and cited the decisions reported in 2011(1) CHN (CAL) 265 [Sujoy Kumar Sanyal vs. Shakuntala Sanyal(Halder) & Anr.] ; E Cr. N. 2009 (4) 724(GAU) [Rina Devibora vs Dwijen Ch. Bora & Anr.]; 2009-ILR (MP)-0-2120 ; 2009-ALT (Cri)-1-285 [UU Thimmanna vs. UU Santhya]
6. The learned counsel for the petitioner submits that the OP/ Wife previously filed a matrimonial suit for divorce which 4
was dismissed for default and subsequently she filed another case under Section 125 Cr. P.C. which was also dismissed for default. Thereafter she filed the instant case under Section 12 & 23 of the Act.
7. It is the further contention of the learned counsel for the petitioner that the Learned Magistrate has no jurisdiction to pass an order restraining the respondents from alienating his share in the property, in as much as, it is the personal property of the petitioner herein and he has the legal right to alienate such property.
8. The learned counsel appearing for the O.P. submits that the acts of torture, cruelty etc, although committed prior to the coming into force of the Act are continuous causes of action and, as such, the question of retrospective effect of the Act does not arise at all.
9. It is contended on behalf of the O.P. that the Learned Magistrate has jurisdiction to pass an order ex-parte under Section 23 of the Act restraining the OP/husband from alienating the property. It is contended that since the marital tie has not yet been dissolved by decree of divorce, the wife has the lawful right in the shared household and the Learned Magistrate has rightly passed the order restraining the OP / husband from alienating his share in the property. The learned counsel has referred to and cited the decisions 5
reported in E Cr. N. 2010 (1) 599(GAU) [Bulu Das vs. Ratan Das]; E Cr. N. 2009 (4) 724(GAU) [Rina Devibora vs Dwijen Ch. Bora & Anr.](supra).
10. It appears that the Learned Magistrate after the receipt of the petition has passed the interim order after hearing both sides and upon perusal of the report of the Protection Officer and the petition filed by the petitioner/ aggrieved party. The question as to whether the Act has a retrospective effect or not is not material at all in view of the decisions reported in the case of Bulu Das vs. Ratan Das and Rina Devibora vs Dwijen Ch. Bora & Anr (supra). In the case of Bulu Das, the Hon'ble Single Judge of the Gauhati High Court upon relying a decision of the Hon'ble Supreme Court in the case of Vanka Radhamanohari vs. Vanka Venkata Reddy, (1993 (3) SCC 4) has observed in para 8 (supra)as follows ;- "Taking into consideration the
submission of the learned counsel
appearing for the parties and
keeping in view the ratio laid down
by the Apex Court in Banka
Radhamanohari case (supra) and
Deokaran Nenshi case (supra), this
Court is of the considered view that
there is a continuing cause of
action for filing the said case i.e,
Case No. 81M/2006 before the learned
SDJM/ Dibrugarh, by the present
petitioner - wife. Admittedly, the
Protection of Women from Domestic
Violence Act, 2005 came into force
on 26.10.2006 vide S.O. 1776(E),
dated 17.10.2006. Since, there is a
6
continuing cause of action for the
reasons discussed above, this Court
is of the firm view that the
provisions of the said Act, 2005 are
attracted to the present case; and
accordingly, the petitioner-wife
filed the said case i.e. Misc. Case
No. 81M/2006 under the Act, 2005."
11. In the case of Rina Devibora vs Dwijen Ch. Bora & Anr.(supra) the Hon'ble Single Judge of the Gauhati High Court has held in para 15 as follows ;-
"The respondent is continuously depriving the petitioner, who is
legally entitled to a shared household in terms of the provisions
of the Domestic Violence Act. The
denial of access to shared household
to the petitioner took place prior
to coming into force of the Domestic
Violence Act, but such denial continued even thereafter. As the
act complained of by the petitioner
is a continuing breach of legal
right as envisaged in the Domestic
Violence Act, there is no question
putting a halt to the relief sought
for. Therefore, giving relief to the
petitioner for such continuous breach of the legal right which has
accrued to her, would not amount to
giving retrospective effect to the
provisions of the Domestic Violence
Act. In view of my above discussion,
I have no hesitation to hold that
continued deprivation of economic or
financial resources and continued
prohibition or denial of access to
shared household to the aggrieved
person is a domestic violence and
the protection under the Domestic
Violence Act will be available to
the petitioner, who was driven out
from her husband's shared household
7
prior to coming into effect of the
Domestic Violence Act, as the
deprivation continued even after the
Act came into force."

12. In the instant case it has been alleged in the petition under Section 12 & 23 of the Act that even after torture upon the aggrieved person in her matrimonial home, the respondent/husband threatened, and abused the aggrieved party in various ways for which the aggrieved party lodged written complaints and diaries with the local police station. It has further been alleged that on 20.03.93 the respondent became very much violent and aggressive towards the aggrieved party and ultimately drove her away from the matrimonial home.
13. In para 5 of the petition, the petitioner / wife alleged that in the matrimonial home she was subjected to mental cruelty, physical torture, abuse and misbehaviour.
14. It is the contention of the learned counsel appearing for the petitioner that the petitioner / husband has the legal right in his property and no such restriction can be imposed restraining him from alienating his own property. In view of the provision contained in Section 23 and Sections 18,19,20 & 21 of the Act I find that the contention of the learned counsel appearing for the petitioner is not acceptable. As regards the retrospective effect of the Act, relying on the decisions of the Hon'ble Single Judge of the Gauhati High Court as discussed above, I 8
find that the acts of torture, cruelty etc are the continuing causes of action for which the Learned Magistrate has the jurisdiction to pass necessary orders under the provisions of the Act.
15. In view of such circumstances, the decisions cited by the learned counsel appearing for the petitioner do not come in the aid of his contention.
16. I have gone through the order passed by the Learned Magistrate and the order passed by the Learned Additional Sessions Judge, Fast Track Court No.8 Bichar Bhawan, Calcutta, I find that the interim order was passed by the Learned Magistrate and the application is yet to be disposed of. The Learned Magistrate also recorded in his order dated 11.01.2010 that the respondent / husband was trying to drag this case on various pretexts and enough opportunity was given to the respondent for filing written objection, if any, against the interim prayer of the petitioner, but, in spite of the same, respondent / husband failed to file the written objection. As such, the Learned Magistrate took up the application and passed the interim order, upon perusal of the application and the report of the Protection Officer. At this stage there is no ground to interfere with the order passed by the learned court below.
9
17. In the result, the application fails and the same stands dismissed.
18. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible. (Kalidas Mukherjee, J. )