Sunday, 6 January 2013

Since wife is not given share in joint family property owned by her deceased Husband, she is entitled to get maintenance from joint family property


In the instant case, admittedly, the husband has a right in the joint 
family properties. After death of her husband on 11.07.2006 due to Brain 
Malaria, opposite party has acquired such right. Since she has not been 
given her share in the joint family properties, the lower courts have rightly 
granted monthly maintenance to opposite party till she gets a share in the 
petitioner’s properties. 
 As the petitioner has not given to opposite party her share in the joint 
family properties in question, the opposite party is entitled to get 
maintenance till she gets her share in the said properties. In absence of 
getting a share in the ancestral joint family properties, she is deprived of her 
economic and financial resources to which she is legally entitled to get.  
 In view of the definition of ‘domestic violence’ given in Section 3 of 
the Act, 2005 and Explanation (iv) explaining the economic abuse, the 
Courts below are fully justified to grant monthly maintenance to the 
respondent (opposite party herein) till she gets her share in the ancestral 
joint family properties.  Considering the present standard of living, award of 
maintenance @ Rs.1000/- (rupees one thousand) per month by the 
Additional Sessions Judge, Nayagarh cannot be said  to be on the higher side.

 2012 ( II ) ILR - CUT- 904 
V. GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. 
W.P. (CRL.) NO. 519 OF 2011 (Dt.18.05.2012) 
GANGADHAR PRADHAN                                                ……..Petitioner 
                                                           .Vrs. 
RASHMIBALA PRADHAN                                               ………Opp.Parties 
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 
(ACT NO.43 OF 2005) – S. 12.
 Citation;2012(4)Crimes 580 (Orissa)

        Application U/s.12 of the  Act - Maintainability – Held, allegation 
that the Act applies only prospectively i.e. from the date it came into 
force i.e. on 26.10.2006 is wrong – Since the Husband of O.P. has a 
right in the joint family property after his death the O.P. acquired such 
right – Lower Courts have rightly granted monthly maintenance to the 
O.P. till she gets a share in the petitioner’s property – Application 
U/s.12 of the Act is maintainable.                                 (Para 18,20,22)                                        
                                                                                                                                           
Case law Referred to:-
(2008)4 SCC 649    : (Vimlaben Ajitbhai Patel-V-Vatslaben Ashokbhai Patel). 
              
B.N.MAHAPATRA, J. This Writ Petition has been filed challenging 
correctness of the order dated 16.04.2011 passed by the learned Additional 
Sessions Judge, Nayagarh in Criminal Appeal No.44 of 2010 whereby the 
order dated 07.09.2010 passed by the learned S.D.J.M., Nayagarh in CMC 
No. 116 of 2007 has been modified with a direction  to the appellantpetitioner to pay a sum of Rs. 1000/- towards monthly maintenance to the 
respondent-opposite party keeping all other conditions of the order 
unaltered. 
2. Bereft of unnecessary details, the facts and circumstances giving rise 
to the present writ petition are as follows: 
Opposite party-Rashmibala Pradhan had filed an application bearing 
CMC No.116 of 2007 under Section 12 of the Protection of Women from 
Domestic  Violence  Act,   2005  (for short, “Act, 2005”)  before   the  learned  
S.D.J.M., Nayagarh, who vide order dated 30.01.2008 directed the petitioner 
to pay monthly maintenance of Rs.300/- to opposite party until she is given 
her legitimate share in the joint family properties of the petitioner. Being 
aggrieved, the petitioner filed Criminal Appeal No.20 of 2008 before the 
learned Additional Sessions Judge, Nayagarh, who set aside the order of the 
learned S.D.J.M., Nayagarh with a direction to dispose of the case afresh 
after giving opportunity to both parties to adduce evidence. After hearing the 
parties and taking into consideration the evidence  adduced by them, the 
learned S.D.J.M., Nayagarh vide order dated 07.09.2010 enhanced the 
monthly maintenance to Rs.1,500/- in favour of opposite party until there is 
partition among the co-shares providing definite share to the opposite party 
in the properties of the petitioner. Being aggrieved by the said order of the 
learned S.D.J.M., Nayagarh, the petitioner again filed an appeal bearing Crl. 
Appeal No.44 of 2010 before the learned Additional  Sessions Judge, 
Nayagarh, who after hearing both parties directed the petitioner vide order 
dated 16.04.2011 to pay a sum of Rs.1000/- as monthly maintenance to the 
opposite party keeping all other conditions imposed by the learned S.D.J.M., 
Nayagarh unaltered. Hence, the present writ petition. 
 3. Mr. G.S. Mohanty, learned counsel appearing on  behalf of the 
petitioner submitted that the petitioner is the father-in-law of opposite party. 
The husband of opposite party died on 11.07.2006 due to Brain Fever and 
Malaria. Opposite party lodged an F.I.R. before the I.I.C., Nayagarh Police  
Station on 28.09.2006 on  the basis of which P.S. Case No. 259 of 2006 
corresponding to G.R. Case No. 463 of 2006 under Sections 498-A/506/34 
I.P.C  read with Section 4 of the D.P. Act was registered against the 
petitioner and other in-laws. While the said case was pending before the 
learned S.D.J.M., Nayagarh, the opposite party filed a petition under Section 
12 of the Act, 2005. It was submitted that the petitioner is an old man, who 
does not have any source of income other than cultivation of his ancestral 
lands. The annual income from the agricultural land is insufficient to maintain 
his family. Therefore, the direction given by the learned Additional Sessions 
Judge,  Nayagarh to pay  monthly maintenance of Rs.1000/- is not justified 
and legal.  The learned Court below has made an error by awarding 
maintenance to opposite party even though the opposite  party had not 
made any such prayer in  her petition  bearing Crl. Misc. Case  No.116 of 
2007. The application under the provisions of Section 12 of the Act, 2005  is 
not maintain able against the petitioner and his son as  the alleged domestic 
violence took place prior to 26.10.2006, i.e. on the date on which the Act, 
2005 came into force.  
  Despite notice none appeared for opposite party. 
4. In the present case, the following questions fall for consideration by

this Court: 
(i) Whether the application of opposite party under Section 12 of the 
Act, 2005 is maintainable before the S.D.J.M., Nayagarh as the 
allegation against the petitioner and his son was made prior to 
26.10.2006 on which date the Act, 2005 came into force and the said 
Act has not been given retrospective effect ? 
(ii) Whether learned Additional Sessions Judge is justified to direct the 
petitioner to pay monthly maintenance of Rs.1,000/- to opposite 
party ? 
5. Since both the questions are interlinked, they are dealt with together.  
6. The Act, 2005 has been enacted to provide for more effective 
protection of the rights of women guaranteed under the Constitution, who are 
victims of violence of any kind occurring within the family and for matter 
connected therewith or incidental thereto.  
 It is very much necessary to know the statements of object and 
reasons for enactment of the Act, 2005. 
“STATEMENT OF OBJECT AND REASONS 
Domestic violence is undoubtedly a human rights issue and 
serious deterrent to development. The Vienna Accord of 1994 and 
the Beijing Declaration and the Platform for Action (1995) have 
acknowledged this. The United Nations Committee on  Convention 
on Elimination of All Forms of Discrimination Against Women (C E D 
A W) in it's General Recommendation No. XII (1989)  has 
recommended that State Parties should act to protect women 
against violence of any kind especially that occurring within the 
family. 
2. The phenomenon of domestic violence is widely prevalent but has 
remained largely invisible in the public domain. Presently, where a 
woman is subjected to cruelty by her husband or his relatives, it is an 
offence under Section 498A of IPC. The Civil Law does not however 
address this phenomenon in its entirety. 
3. It, is therefore, proposed to enact a law keeping in view of the Rights 
guaranteed under Articles 14, 15 and 21 of the Constitution to 
provide for a remedy under the Civil Law which is intended to protect  
the woman from being victims of domestic violence and to prevent 
the occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following:- 
(i) It covers those women who are or have been in a relationship with 
the abuser where both parties have lived together in a shared 
household and are related by consanguinity, marriage or through a 
relationship in the nature of marriage or adoption. In addition, 
relationships with family members living together as a joint family are 
also included. Even those women who are sisters, widows, mothers, 
single women, or living with the abuser are entitled to legal 
protection under the proposed legislation. However, whereas the Bill 
enables the wife or the female living in a relationship in the nature of 
marriage to file a complaint under the proposed enactment against 
any relative of the husband or the male partner, it does not enable 
any family relative of the husband or the male partner to file a 
complaint against the wife or the female partner.  
(ii) It defines the expression “domestic violence” to include actual abuse 
or threat or abuse that is physical, sexual, verbal, emotional or 
economic. Harassment by way of unlawful dowry demands to the 
woman or her relatives would also be covered under this definition.  
(iii) It provides for the rights of women to secure housing. It also provides 
for the right of a women to reside in her matrimonial home or shared 
household, whether or not she has any title or rights in such home or 
household. This right is secured by a residence order, which is 
passed by the Magistrate. 
(iv) It empowers the Magistrate to pass protection orders in favour of the 
aggrieved person to prevent the respondent from aiding or 
committing an act of domestic violence or any other specified act, 
entering a workplace or any other place frequented by the aggrieved 
person, attempting to communicate with her, isolating any assets 
used by   both   the   parties   and  causing violence to the aggrieved 
person, her relatives or others who provide her assistance from the 
domestic violence.  
(v) It provides for appointment of Protection Officers and registration of 
non-governmental organizations as service providers for providing 
assistance to the aggrieved person with respect to  her medical 
examination, obtaining legal aid, safe, shelter, etc. 
5. The Bill seeks to achieve the above objects. The notes on clauses 
explain the various provisions contained in the Bill.” 
7.  Now, the question arises as to whether the petition filed under 
Section 12 of the Act, 2005 is maintainable in respect of cause of action 
arose prior to the date, i.e., 26.10.2006, when the Act, 2005 came into force. 
It was argued that G.R.  Case No. 463/2006 as well  as Criminal Case 
bearing No. CMC 116 of 2007 arose out of the same cause of action. The 
opposite party had filed FIR before the IIC, Nayagarh P.S. on 28.09.2006 
vide PS Case No. 259/2006 corresponding to G.R. Case No.463/2006 under 
Sections 498(A)/ 506/34 IPC read with Section 4 of the D.P. Act against the 
petitioner and other in-laws. The said cases are pending before the learned 
S.D.J.M., Nayagarh.  
 Thus, according to the petitioner, since the Act, 2005 came into force 
with effect from 26.10.2006, the domestic violence, if any occurred prior to 
that date the opposite party is not entitled to get any relief under the Act, 
2005 as the Act, 2005 has no retrospective operation. The Act should be 
applied prospectively, i.e., from the date of its coming into force on 26
th
October, 2006. Act of domestic violence prior to 26.10.2006 shall be 
governed by the provisions of the Indian Penal Code. 
8. The term “domestic violence” as defined under Section 3 of the Act, 
2005 is extracted below: 
 “3. Definition of domestic violence.-For the purposes of 
this Act, any act, omission or commission or conduct of the 
respondent shall constitute domestic violence in case it – 
(a) harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends 
to do so and includes causing physical abuse, sexual abuse, verbal 
and emotional abuse and economic abuse; or abuse and economic 
abuse; or 
(b) harasses, harms, injures or endangers the aggrieved person with 
a view to coerce her or any other person related to her to meet any 
unlawful demand for any dowry or other property or  valuable 
security; or 
(c) has the effect of threatening the aggrieved person or any person 
related to her by any conduct mentioned in clause (a) or clause (b); 
or 
(d) otherwise injures or causes harm, whether physical or mental, to 
the aggrieved person. 
Explanation I.-For the purposes of this section,- 
(i) "physical abuse" means any act or conduct which is of such a 
nature as to cause bodily pain, harm, or danger to life, limb, or health 
or impair the health or development of the aggrieved person and 
includes assault, criminal intimidation and criminal force; 
(ii) "sexual abuse" includes any conduct of a sexual nature that 
abuses, humiliates, degrades or otherwise violates  the dignity of 
woman; 
(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule 
specially with regard to not having a child or a male child; and 
(b) repeated threats to cause physical pain to any person in whom 
the aggrieved person is interested. 
(iv) "economic abuse" includes- 
(a) deprivation of all 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; 
(b) disposal of household effects, any alienation of assets whether 
movable or immovable, valuables, shares, securities, bonds and the 
like or other property in which the aggrieved person has an interest 
or is entitled to use by  virtue  of  the  domestic  relationship or which  
may be reasonably required by the aggrieved person or her children 
or her stridhan or any other property jointly or separately held by the 
aggrieved person; and 
(c) prohibition or restriction to continued access  to resources or 
facilities which the aggrieved person is entitled to use or enjoy by 
virtue of the domestic relationship including access to the shared 
household.
Explanation II.-For the purpose of determining whether any act, 
omission, commission or conduct of the respondent constitutes 
"domestic violence" under this section, the overall facts and 
circumstances of the case shall be taken into consideration.” 
9. “Aggrieved person” as defined under Section 2(a) means any woman 
who is, or has been, in domestic relationship with the respondent and who 
alleges to have been subjected to any act of domestic violence by the 
respondent. 
10. The definition of “Respondent” as contained in  Section 2(q) is that 
any adult male person who is, or has been, in a domestic relationship with 
the aggrieved person and against whom the aggrieved person has sought 
any relief under the Act, provided that an aggrieved wife or female living in a 
relationship in the nature of a marriage may also file a complaint against a 
relative of the husband or the male partner.  
11. Under the Scheme of the Statute if an aggrieved person is subjected 
to domestic violence she can present an application to the Magistrate 
seeking one or more reliefs under the Act. Besides, aggrieved person, a 
Protection Officer or any other person on behalf of the aggrieved person can 
also present an application to the Magistrate seeking one or more reliefs 
under the Act.  
12 Sub-section (2) of Section 12 provides a relief  for issuance of an 
order for payment of compensation or damages without prejudice to the right 
of such person to institute a suit for compensation or damages for the 
injuries caused by the acts of domestic violence committed by the 
respondent. 
13.  Section 20 of the Act, 2005 provides (i) while disposing of an 
application under sub-section (1) of Section 12, the Magistrate may direct 
the respondent to  pay  monetary  relief  to  meet the expenses incurred and 
losses suffered by the aggrieved person and any child of the aggrieved 
person as a result of the domestic violence and such relief may include, but 
not limited to.- (a) the loss of earnings; (b) the medical expenses; (c) the loss 
caused due to the destruction, damage or removal of any property from the 
control of the aggrieved person; and (d) the maintenance for the aggrieved 
person as well as her children, if any, including an order under or in addition 
to an order of maintenance under Section 125 of the Code of Criminal 
Procedure, 1973 (2 of 1974) or any other law for the time being in force. 
Monetary  relief   granted  under   this  section  shall  be  adequate,  fair  and  
reasonable and consistent with the standard of living to which the aggrieved 
person is accustomed. 
  
14. Section 22 deals with Compensation orders. It provides, in addition to 
other reliefs as may be granted under this Act, the Magistrate may on an 
application being made by the aggrieved person, pass an order directing the 
respondent to pay compensation and damages for the  injuries, including 
mental torture and emotional distress caused by the acts of domestic 
violence committed by that respondent. 
15. Section 23 provides power to pass interim and ex parte orders.  
16. Section 31 of Act, 2005 provides for penalty for breach of protection 
order by respondent. A breach of protection order, or of an interim protection 
order, by the respondent shall be an offence under  this Act and shall be 
punishable with imprisonment of either description  for a term which may 
extend to one year, or with fine which may extend to twenty thousand 
rupees, or with both. 
17. As it appears from the order dated 30.01.2008,  passed in CMC 
116/2007 the opposite party in her petition under Section 12 of the Act, 2005 
sought for following reliefs:-  
(a) direction to the respondent to give return of “Streedhan” properties, viz, 
a sum of rs.45,000/- given as dowry at the time of her marriage, gold 
ornaments worth Rs.65,000/- belonging to her,  
(b) an order of restraint prohibiting  the respondents from alienating the 
properties, more fully described in Schedule ‘A’ of the petition; and  
(c) a direction to give possession of the said properties to her. 
18. Relief claimed in the petition filed under Section 12 of the Act 2005 is 
civil in nature. Till date of filing of the petition under Section 12, the petitioner 
(opp. party herein) was   not  granted any  of  the  reliefs  sought  for  in  her 
petition under Section 12 of the Act, 2005. Therefore, it is a continuous act of 
deprivation of petitioner’s right. Admittedly, she was not given her share in 
joint family properties by the present petitioner.  Thus, it is a continuous 
cause of action for which the petition filed under  Section 12 of Act, 2005 
claiming the above reliefs is maintainable and the  prohibition of Act, 2005 
are squarely applicable to the present case. 
19. As it appears, the criminal cases referred to above have been filed 
under the Indian Penal Code and  the  Dowry  Prevention  Act. Those cases 
have nothing to do with the petition filed under Section 12(1) of the Act, 
2005.  
20. In view of the above, the plea of the petitioner that the petition filed by 
the opposite party under Section 12 of the Act, 2005 is not maintainable on 
the ground that the Act, 2005 applies only prospectively, i.e., from the date of 
coming into force on 26
th
 October, 2006 is totally misconceived and not 
sustainable in law.   
        
21. Now, the question arises as to whether the courts below are justified 
to grant monthly maintenance till the present opposite party gets her share in 
joint family properties.  
 While dealing with the right of maintenance under the Act, 2005, the 
Hon’ble Supreme Court in the case of  Vimlaben Ajitbhai Patel v. 
Vatslaben Ashokbhai Patel, (2008) 4 SCC 649,  held that the Act, 2005 
provides for a higher right in favour of the wife, who not only acquires a right 
to be maintained but also thereunder acquires a right of residence which is a 
higher right. However, the said right as per the legislation extends only to 
joint properties in which the husband has a share. 
22. In the instant case, admittedly, the husband has a right in the joint 
family properties. After death of her husband on 11.07.2006 due to Brain 
Malaria, opposite party has acquired such right. Since she has not been 
given her share in the joint family properties, the lower courts have rightly 
granted monthly maintenance to opposite party till she gets a share in the 
petitioner’s properties. 
23. As the petitioner has not given to opposite party her share in the joint 
family properties in question, the opposite party is entitled to get 
maintenance till she gets her share in the said properties. In absence of 
getting a share in the ancestral joint family properties, she is deprived of her 
economic and financial resources to which she is legally entitled to get.  
24. In view of the definition of ‘domestic violence’ given in Section 3 of 
the Act, 2005 and Explanation (iv) explaining the economic abuse, the 
Courts below are fully justified to grant monthly maintenance to the 
respondent (opposite party herein) till she gets her share in the ancestral 
joint family properties.  Considering the present standard of living, award of 
maintenance @ Rs.1000/- (rupees one thousand) per month by the 
Additional Sessions Judge, Nayagarh cannot be said  to be on the higher 
side
25. In the facts situation, we do not find any infirmity or illegality in the 
order dated 16.4.2011 passed by the learned Additional Sessions Judge, 
Nayagarh warranting interference of this Court. Accordingly, the writ petition 
is dismissed.  
                                                     



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