If the provisions of Section 2(a) are read together with the provisions of Section 3 (iv)(a) of the Protection of Women from Domestic Violence Act, 2005, it is clear that a wife, even if, she was driven out of her matrimonial home prior to the commencement of the Protection of Women from Domestic Violence Act, 2005, if continues to be deprived of all or any economic or financial resources to which she is entitled under any law or custom whether payable under an order of a court or otherwise or which she requires out of necessity, is entitled to move an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The view that I am taking is also supported by a decision of the Bombay High Court in the case of Maroti Lande v. Sau. Gangubai Maroti Lande, reported in 2012 CRLJ 87, where the court was of the view that deprivation to the benefits of a matrimonial home amounts to economic abuse and it generates a continuous cause of action.
Petitioner :- Preetam Singh & Another
Respondent :- State Of U.P. & Another
Citation ;2013 CR L J 22 Allahabad
Case :- CRIMINAL REVISION No. - 2355 of 2012
Hon'ble Manoj Misra,J.
1. I have heard learned counsel for the revisionists and the learned A.G.A. for the State.
2.By this revision, the revisionists have challenged the order dated 08.06.2012 passed by the Additional Sessions Judge-I, Jhansi in Criminal Appeal No. 22 of 2010, whereby the order dated 22.02.2010 passed by the Judicial Magistrate, Moth, Jhansi, rejecting the application of the opposite party No.2, under Sections 12, 17, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2009, as not maintainable, has been set aside and the matter has been remanded back to the Court of Magistrate to decide the same in accordance with law.
3. The facts, as they emerge from the record, are that opposite party No.2 (hereinafter refered to as the 'applicant') filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in the Court of Judicial Magistrate, Moth, Jhansi with allegations that she was married to Preetam Singh (the revisionist No. 1 herein) about 30 years ago and out of their wedlock, a son was born, after about 5 years of their marriage. It was alleged that while she was pregnant, Preetam Singh cursed her for being illeterate and of ordinary looks, and without her consent married Bitti Devi (the revisionist No.2 herein). After the birth of her son, Bitti Devi used to fight with the applicant whereas her husband used to take side of Bitti Devi, and used to beat her. Ultimately, the applicant was driven out of her matrimonial home. It was alleged that since that time, the applicant had been seeking shelter in her father and brother's house and had been living in great financial distress, and now, since her father has become old and is unable to maintain her, she was constrained to file the application.
4. This application of the opposite party No.2 was dismissed as not maintainable by the Civil Judge (Junior Division)/Judicial Magistrate, Moth, Jhansi, by its order dated 22.02.2010, on the ground that violence/harassment, alleged in the application, was of a period prior to the commencement of the Protection of Women from Domestic Violence Act, 2005, therefore, the application was not maintainable.
5.Aggrieved by the order dated 22.02.2010, the opposite party No.2 (Smt. Mithila Devi) preferred an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, which was allowed by the Court of Additional Sessions Judge, Court No.1, Jhansi, by its order dated 08.06.2012. It is against this order dated 08.06.2012, the present revision application has been filed.
6. The contention of the learned counsel for the revisionists is that the alleged atrocities/harassment of Smt. Mithila Devi was during a period when the Protection of Women from Domestic Violence Act, 2005, was not enacted, therefore, the application of Smt. Mithila Devi was not maintainable, particularly when she has not been residing with the revisionist since much before the commencement of the said Act.
7.In order to appreciate the arguments advanced on behalf of the revisionists, it would be necessary to examine the provisions of the Protection of Women from Domestic Violence Act, 2005.
8. Under Section 12 of the Protection of Women from Domestic Violence Act, 2005, an "aggrieved person" or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. Accordingly, for the purpose of entitlement to move the application under Section 12 of the Act, the person must be "an aggrieved person" or should be Protection Officer or any other person on behalf of the "aggrieved person". "Aggrieved person" is defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005, as under:-
"2(a) :"aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent."
9.A perusal of the definition of "aggrieved person" goes to show that any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent, is an aggrieved person. The word 'has been' is important. This clearly indicates that any woman "who has been" in a domestic relationship with the respondent could be an aggrieved person, if she has been subjected to any act of domestic violence.
10.Domestic violence has been defined in Section 2(g) of the Protection of Women from Domestic Violence Act, 2005, as under:-
"2(g) :"domestic violence" has the same meaning as assigned to it in section 3;"
Section 3, reads as under:-
Section 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 well-being, 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
(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."
11. A perusal of Section 3 goes to show that even economic abuse would constitute domestic violence. Section 3(iv)(a) of the Protection of Women from Domestic Violence Act, 2005 provides that economic abuse includes 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.
12 If the provisions of Section 2(a) are read together with the provisions of Section 3 (iv)(a) of the Protection of Women from Domestic Violence Act, 2005, it is clear that a wife, even if, she was driven out of her matrimonial home prior to the commencement of the Protection of Women from Domestic Violence Act, 2005, if continues to be deprived of all or any economic or financial resources to which she is entitled under any law or custom whether payable under an order of a court or otherwise or which she requires out of necessity, is entitled to move an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The view that I am taking is also supported by a decision of the Bombay High Court in the case of Maroti Lande v. Sau. Gangubai Maroti Lande, reported in 2012 CRLJ 87, where the court was of the view that deprivation to the benefits of a matrimonial home amounts to economic abuse and it generates a continuous cause of action.
13. Even the Apex Court in its recent decision in the case of V.D. Bhanot v. Savita Bhanot, reported in (2012)3 SCC 183, in paragraph 12 thereof, while approving the view taken by the Delhi High Court, observed as under:-
"12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005."
14. For the reasons aforesaid, I do not find any illegality in the order passed by the court below in upholding that the application of the opposite party No.2 was legally maintainable, under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The revision is, accordingly, dismissed.
Order Date :- 31.7.2012
Sunil Kr Tiwari
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