Domestic violence Act-Economic abuse -wife entitled to get maintenance

Thus, we come to a narrow compass, as to whether the learned Sessions Judge was right in refusing relief only on the ground of adultery. The husband contended, he found the wife in a compromising position in 2006. He did not file any suit for divorce for about two years. The husband also did not dispute, the wife started living separately. According to the wife, she was driven from the house by the husband whereas the husband would contend, she deserted him. In this regard, we significantly notice, in cross-examination, the husband admitted, it was his mother's advice to part with and live separately. Be that as it may, when the wife was charged with adultery and if such allegation was correct, the husband would have filed a suit for divorce that he did not do contemporaneously. Hence, the evidence of the husband with regard to the allegation of adultery is doubtful and does not inspire confidence of this Court. The learned Sessions Judge found corroboration from the daughter. We cannot be oblivion of the fact that the daughter was 23 years old. She was unmarried at that time. She was staying with her father and obviously would be suffering from insecurity. We cannot expect, the daughter would go against his father. We are told, the daughter was given marriage in December, 2012 by the father. There was no independent witness to corroborate such allegation. The other children did not come to support his father. They were self sufficient earning their means of livelihood. We are told, one of the sons was already married. Hence, the learned Sessions Judge was perhaps not correct to upset the decision of the learned Magistrate who had the benefit of demeanor of the witnesses who adduced evidence before him.

Citation;2013CriLJ4469

IN THE HIGH COURT OF CALCUTTA
CIRCUIT BENCH AT PORT BLAIR

CRR No. 028 of 2012

Decided On: 08.02.2013

Appellants: Smti. Vidyawati
Vs.
Respondent: Shri Kishen

Hon'ble Judges/Coram:Ashim Kumar Banerjee, J.

1. Shri Kishen married Vidyawati on March 16, 1983. Out of the said wedlock three children were born including one daughter. According to Vidyawati, her matrimonial life was not happy. The husband was in the habit of consuming alcohol and creating chaos in the family. Many a times he assaulted Vidyawati and her children. In the year 2008, Shri Kishen pushed her out of the house. Since then she was in precarious condition and supporting her livelihood by working as domestic help. However, due to ill-health she had to stop work for the last two months before making of the application. In the meantime, Shri Kishen obtained a decree for divorce against Vidyawati ex parte. Vidyawati filed an application for setting aside the decree that is awaiting decision from the Civil Court.

2. The appellate order impugned herein, would relate to an order passed by the learned Magistrate under the provisions of section 12 of The Protection of Women from Domestic Violence Act, 2005. She prayed for maintenance at the rate of Rs. 7000/- per month. Significant to note, Shri Kishen was working under the Marine Mercantile Department and was earning about Rs. 24,000/- as contended by Vidyawati before the learned Magistrate. The husband contested the application. According to him, Vidyawati was self sufficient. She got appointment as Midwife in the G.B. Pant Hospital, Port Blair in leave vacancy. She was also a political activist and earning therefrom. She had illicit relationship with one Hari Lal that became the reason for disharmony in the family. Sri Kishen denied, she was driven out from the house. According to him, she herself left the house in the month of January, 2006 and started residing with Hari Lal after marrying him in a rental accommodation at South Point. Vidyawati examined herself as PW. 1 and one K.J. Rajendra Prasad as PW. 2 whereas Shri Kishen himself as OPW No. 1 and his daughter Kumari Kiranwati as OPW No. 2. During cross-examination PW. 1 categorically denied the allegations brought against her by OPW No. 1. However, the husband as well as OPW No. 2, the daughter of the couple deposed as against her. We would be shortly referring to the evidence of OPW No. 2 that would be relevant herein.

3. The learned Magistrate considered the evidence. In paragraph 25 of the examination-in-chief, the husband deposed, in the month of March 2006 he was not keeping well and came back home when he found Vidyawati and Hari Lal in a compromising position. In paragraph 27, he asserted, Vidyawati and Hari Lal was residing for last five years as husband and wife. During cross-examination, Shri Kishen deposed, his eldest son was aged about 27 years and working as Security Guard and his youngest son was also working as Supervisor. The daughter was, however, studying. During cross-examination, he denied to take back his wife. OPW No. 2 in her examination-in-chief admitted the relationship between her mother and Hari Lal. She also deposed, her mother left the house of her own. During cross-examination she, however, stated, "I do not know whether my mother resides with her brother Sat Lall or not." She was 23 years old at the time of cross-examination. She admitted, her mother's health was bad. She was admitted in hospital. She also deposed, there was no family interference for which her mother left.

4. Considering the evidence, the learned Magistrate allowed the application and directed payment of Rs. 3000/- per month as maintenance. The learned Magistrate observed, the allegations of adultery could not be accepted for want of corroboration. Considering the income of the OP, learned Magistrate directed payment of maintenance as referred to above.

5. Being aggrieved, Shri Kishen filed the appeal. The learned Sessions Judge, allowed the appeal and set aside the judgment and order of the learned Magistrate. Hence, this revisional application.

6. According to the learned Sessions Judge, the allegation of adultery found corroboration from the daughter that remained unshaken. According to him, the burden of proof of adultery was on the person alleging adultery and Shri Kishen could successfully prove the same and such evidence was not rebutted by Vidyawati. According to the learned Judge, once it was established that wife was living in adultery, she would not be entitled to any maintenance.

7. The learned Sessions Judge, however, discarded the other argument that after divorce Vidyawati would not be entitled to maintain the application. According to the learned Sessions Judge, as per the Apex Court decision, the divorced wife was also entitled to maintenance under section 125 till she was not married.

8. Ms. Anjili Nag, learned counsel appearing for Vidyawati, the revisionist-wife, contended as follows:

I. The learned Magistrate considered the entire evidence and rejected the defence raised by the husband and allowed the application for maintenance.

II. The learned Sessions Judge, having accepted all the contentions of the wife on the issue of maintainability, should not have dismissed the same only on the ground of adultery that too, was dependent upon the evidence of interested witnesses having contradictions galore.

III. The learned Judge held the petition maintainable. The husband did not challenge the same and accepted the said decision. In any event, the plea of limitation now taken by the husband was not available to him.

9. She relied on the Bombay High Court decisions in the case of Maroti Dewaji Lande Vs. Sou. Gangubai Maroti Lande and another, reported inMANU/MH/1763/2011 : 2012 CRILJ 87 and in the case of Shaikh Ishaq Budhanbhai Vs. Shayeen Ishaq Shaikh & others, reported in MANU/MH/1285/2012 : 2012 CRILJ 4518.

10. She prayed for setting aside of the judgment and order of the learned Sessions Judge and restoration of the judgment and order of the learned Magistrate.

11. Mr. Krishna Rao, learned counsel appearing for the husband contended, the petition was not maintainable in view of the claim being hopelessly barred by the laws of limitation. He also contended, the wife left the house in 2005 prior to the said Act coming into force. The provisions of the said Act of 2005 could not be invoked for an offence committed prior to the said Act coming into force. He referred to paragraph 5 of the petition to show, the wife herself admitted that since 2008 she had been residing separately whereas she had filed the complaint in May, 2011. With regard to adultery, Mr. Rao contended, the daughter supported the father on the issue. That evidence could not be shaken. He relied on the decision of the Apex Court in the case of Inderjit Singh Grewal Vs. State of Punjab & another, reported in MANU/SC/0988/2011 : 2012 CLJ 309. He lastly contended, the wife could not have any lawful grievance after being divorced. She already married for the second time and was spending her married life with one Hari Lal, hence, she was rightly refused maintenance.

12. Before we go into the factual matrix, let us first resolve the issue of maintainability. If we look to the provisions of section 12 of the said Act of 2005, we would find, the learned Magistrate was competent to pass an order on the application of aggrieved party based upon the report of the Protection Officer. Even after passing of such order, in case the respondent would not listen to the same, and would not comply, the learned Magistrate would be entitled to take cognizance of the offence under section 31 of the said Act of 2005. Hence, section 468 of the Criminal Procedure Code would have no application at the stage when section 12 application was being heard and disposed of. Under the said Act of 2005, violence is not only physical violence, it could be economic violence as well, by creating oppression on the wife by not providing her maintenance. In the instant case, admittedly, the husband was not giving any maintenance. Hence, petition was rightly held to be maintainable.

13. Identical issue was dealt with by Aurangabad Bench of Bombay High Court in the case of Shaikh Ishaq Budhanbhai (supra) wherein His Lordship held, issue of applicability of section 468 prescribing power to take up cognizance after the lapse of period of limitation would only arise at the time of taking cognizance under section 31. Invocation of section 12 would, thus, not be hit by section 468 of Criminal Procedure Code.

14. Mr. Rao referred to an unreported decision of this Court in CRR No. 030 of 2010 (Smti. Ruth and another Vs. K. Swamy Das and another). If we go though the facts and circumstances of the case, we would find that approach was made after about 15 years without assigning any reason. The learned Judge considered the provisions of section 3 and held, there was no prima facie case of domestic violence, precisely speaking economic abuse under the Act. I fail to appreciate, how this decision would be of any assistance to the present case.

15. Mr. Rao also relied upon the Apex Court decision in the case of Inderjit Singh Grewal (supra) where the Decree of divorce was obtained on mutual consent. The Apex Court came to conclusion, they obtained decree of divorce by playing fraud upon Court. Considering such special facts, the Apex Court denied relief to the wife being a party to the fraud.

16. In the instant case, the learned Magistrate held the petition maintainable. The learned Sessions Judge upheld the same that could not be questioned, that too, in a proceeding initiated by the wife.

17. Thus, we come to a narrow compass, as to whether the learned Sessions Judge was right in refusing relief only on the ground of adultery. The husband contended, he found the wife in a compromising position in 2006. He did not file any suit for divorce for about two years. The husband also did not dispute, the wife started living separately. According to the wife, she was driven from the house by the husband whereas the husband would contend, she deserted him. In this regard, we significantly notice, in cross-examination, the husband admitted, it was his mother's advice to part with and live separately. Be that as it may, when the wife was charged with adultery and if such allegation was correct, the husband would have filed a suit for divorce that he did not do contemporaneously. Hence, the evidence of the husband with regard to the allegation of adultery is doubtful and does not inspire confidence of this Court. The learned Sessions Judge found corroboration from the daughter. We cannot be oblivion of the fact that the daughter was 23 years old. She was unmarried at that time. She was staying with her father and obviously would be suffering from insecurity. We cannot expect, the daughter would go against his father. We are told, the daughter was given marriage in December, 2012 by the father. There was no independent witness to corroborate such allegation. The other children did not come to support his father. They were self sufficient earning their means of livelihood. We are told, one of the sons was already married. Hence, the learned Sessions Judge was perhaps not correct to upset the decision of the learned Magistrate who had the benefit of demeanor of the witnesses who adduced evidence before him.

18. The revisional application succeeds and is allowed. The judgment and order dated July 4, 2012 passed by the learned Sessions Judge is set aside. The judgment and order dated March 29, 2012 passed by the learned Judicial Magistrate in Misc. Case No. 62/576 of 2011 is restored. Urgent certified copy of this order, if applied for, be given to the parties forthwith.

Print Page