Under the provisions of Act, 2005, aggrieved person can claim the relief of share envisaged in Sections 17, 18, 19, 20, 21 and 22. Under these sections, no right is created for an aggrieved person to claim arrears of rent or possession of disputed property. Even for claiming the reliefs under the above referred sections, the aggrieved person must prima facie establish that there is domestic violence as contemplated under Section 3 of the Act. This Court in KUPPILI SRIDHAR KUMAR AND OTHERS Vs.KUPPILI SIVA SANTOSHI AND ANOTHER ( ) held as follows:
One of the main ingredients which has to be prima facie established before claiming reliefs under the provisions of the said Act is that there should be domestic violence as contemplated under Section 3 of the Act.
Andhra High Court
Kolli Babi Sarojini And Others vs Kolli Jayalaxmi And Another on 29 April, 2014
HONOURABLE SRI JUSTICE S.RAVI KUMAR
CRIMINAL REVISION CASE No.1160 OF 2008
Citation;2015 ALLMR(CRI)JOURNAL178
This revision is against order dated 25-6-2008 in Criminal Appeal No.42 of 2008 on the file of V Additional Metropolitan Sessions Judge, (Mahila Court) at Hyderabad whereunder order dated 6-11-2007 in D.V.C.No.11 of 2007 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad is set aside.
2. Parties are herein after referred to as complainant and respondents as arrayed in the D.V.C.No.11 of 2007 for convenience and for better understanding.
3. The brief facts leading to this revision are as follows:
Complainant filed petition under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act 2005) contending that her marriage with Kolli Narendrababu (son of first respondent and brother of respondents 2 and 3) was solemnized on 9-5-1987 at T.T.D.Kalyanamandapam, Tirupathi and it was an arranged marriage. After marriage, couple left for Vijayawada on 10-5-1987 which is the place of in-laws of the complainant and marriage was consummated on 11-5-1987. After some time, couple shifted to Hyderabad. In a couple of weeks after the marriage, complainant noticed that the respondents cheated her and her father by suppressing the fact that her late husband Narendrababu was suffering from psychological disorder and was not mentally sound. Three months after the marriage, her husband left for Vijayawada on the pretext of the ailment but respondents 1 and 2 did not allow him to return back to Hyderabad and complainant was forced to go to Kodada to her in-laws house and there complainant was treated like a maid servant. At the time of marriage, it is informed to the father of the complainant by the first respondent and her brother Y.Venkataratnam Babu and respondents 2 to 4 that 13 shops located at Nela Kondapalli village in Khammam District were allotted to the share of Narendrababu though they stand in the name of 2nd respondent and all the benefits arising out of those shops can be enjoyed by the complainant and her husband after marriage. But first respondent was collecting rents from the tenants of the above mentioned shops at Nela Kondapalli village and never paid rents to the complainant or her husband. Complainant was blessed with a girl child by name Gouthami on 18-8-1988 and at the age of two years, her daughter was snatched away from her and kept at the house of respondents 3 and 4. Complainant was harassed and her life was made miserable which made her to leave the house to reach her fathers house. She approached Woman Protection Cell in the year 1992 and on the counselling by the protection cell, she came back to matrimonial house. Thereafter, complainant was blessed with boy on 23-7-1993 and after the birth of boy, first respondent separated complainant and her husband and was paying a meager some of Rs.1500/- towards monthly expenditure of the complainant and her two children and that compelled her to borrow money from her father and her brother for monthly maintenance. On the intervention of elders, the complainant was allowed to collect rents from 13 shops and respondents also paid a sum of Rs.8,00,000/- to the complainant styling it to be the share of her husband. On 23-5-2006, wife of 2nd respondent passed away and after the ceremonies, complainants daughters mind was polluted by the respondents and she was taken away to the respondents house at S.R.Nagar and complainant and her husband returned to Hyderabad on 7-6-2006. Complainant was not allowed to meet her daughter. Respondents instructed the tenants of the shops to stop payment of rents from June, 2006 and the second respondent started collecting those rents. While so, complainant husband suffered from sever chest pain on 28-1-2007 and he was treated as out patient at Nikhil Multi Specialty where they suggested surgery. None of the respondents showed any humanity nor responsibility and the petitioner lost her husband on 4-2-2007 because of the sheer non-cooperation of the respondents. After the ceremonies, complainant was wrongfully confined at Kodada and with great difficulty, she could reach at her maternal uncles house at Guntur and the son of the complainant was also taken away by respondents by polluting his mind. Hence, the petition to direct respondents to pay Rs.20,00,000/- being the rents collected by them over the complainants property of 19 shops for the period from 8-7-2001 and June, 2006-June, 2007, to direct the respondents to redeliver those 19 shops to the complainant and further to direct the respondents not to sell those 19 shops and to direct respondents to handover custody of her two children.
4. Respondents filed reply to the above petition contending that complaint is not maintainable and the provisions of Act, 2005 are not applicable. It is contended that there is no domestic relationship and the complainant do not fall under the definition of aggrieved person. It is further contended that complainant and respondents never had any share household, first respondent, complainant and her husband stayed together only during the time of marriage ceremonies in the year 1987 and immediately, they moved to Hyderabad and during their stay at Hyderabad, the complainant was moving closely with some men which caused annoyance to her husband Narendrababu. The complainant was demanding huge amount for her luxurious life, for which, her husband was very upset and latter, Narendrababu went to Kodada and complainant also joined him at Kodada. First respondent was mostly residing at her brothers house and subsequently, on the pretext of children education, complainant moved her family to Hyderabad in the year, 2001. These facts would clearly reveal that the complainant and her husband never had a shared house as defined under the Act. The complainant herself abandoned children and left the home on 10-2-2007 due to her adulterous acts. Shops at Nelakondapalli village belong to the second respondent and the complainant has no right whatsoever on that property. Family partition has taken place much before the marriage of complainant, and the respondents supported Mr.Narendrababu financially to do contracts. From the inception of marriage, behaviour of complainant was strange and she was interested in luxurious way of life and she was moving freely with men in an undesirable fashion. When her husband objected for the same, complainant did not care him which caused mental depression to Narendrababu. He was hale and healthy before marriage and due to unwanted behavior of complainant, he developed mental disorder. The respondents, due to abundant love towards Narendrababu, used to help him financially. The shops at Nelakondapalli village are self acquired properties of second respondent and due to his soft corner towards his brother and his brothers children, second respondent allowed them to collect rents of six shops initially and the complainant and her husband had no share in the said property. Complainant has developed closeness with one Anilkumar an L.I.C.agent, when she was moving with him, her husband and children strongly objected with her activities. This Anil kumar went to the extent of scolding children, attempted to sexually abuse against the daughter of the complainant by misbehaving with her. This was brought to the notice of maternal uncle of the daughter (Gowthami) and Mr.Narendrababu was informing the respondents that in the event of his death, they have to take care of his children and even during his life time, he advised his daughter to stay with his sister for her security. The complainant committed more cruel acts towards her husband by indecent behavior with Anil Kumar in his presence. Respondents 1 to 4 nor brother of first respondent Venkata Ratnam Babu never gave any assurance to complainant or her father that 13 shops located at Nelakondapalli village would be given to the husband of the complainant and this property was purchased by second respondent in the year 1977 with his self acquired income and he is the absolute owner of the property. In fact, he purchased vacant site and latter on, constructed shops in that property. The Grampanchayat records and cist receipts would prove that the 2nd respondent is the owner of the shops. Petition under the provisions of Act, 2005 is not maintainable and the allegations made by the complainant are baseless and false and the petition is liable to be dismissed.
5. On these allegations and counter allegations, III Additional Chief Metropolitan Magistrate, Hyderabad dismissed the petition filed under Section 12 of the Act, 2005 and aggrieved by the said dismissal, complainant carried the matter in appeal to the Metropolitan Sessions Judge, and V Additional Metropolitan Sessions Judge by order dated 25-6-2008 allowed the appeal by setting aside lower courts order and remitted the matter back to the trial court and aggrieved by the same, respondents preferred present revision.
6, Both sides have argued at length in support of their respective claims and the sum and substance of the arguments is according to respondents, application under the provisions of Act, 2005 is not maintainable and the learned Sessions Judge erred in remitting back the record with a direction to consider the documents filed on behalf of the complainant in respect of the property at Nelakondapalli village and the trial court, in a domestic violence application, cannot decide title of the property and the remedy of the complainant is before civil court and the order of the learned Sessions Judge is contrary to the spirit of Act, 2005.
7. On the other hand, it is the contention of the advocate for complainant that the learned Sessions Judge has rightly remitted back the case to the trial court as the learned Magistrate has not considered the documents filed on behalf of the complainant showing that she was collecting rents of the shops and no prejudice would be caused if the Magistrate reconsiders the application of the complainant on the basis of the documents.
8. Now the point that would arise for my consideration in this revision is whether order of the learned Metropolitan Magistrate and the judgment of the learned Metropolitan Sessions Judge are legal, correct and proper?
9. POINT:
Before going into the contentions and rival contentions of both parties, I must first refer to the prayer in the petition filed under Section 12 of the Act, 2005. There are six reliefs that are claimed by the complainant.
10. First relief is to direct the respondents to pay Rs.20,00,000/- being the rents collected by respondents over the complainants property of 19 shops situated at Nelakondapalli village, Khammam District from 1987 to 2001 and June, 2006 to June, 2007. Secondly to direct the respondents to re-deliver the 19 shops situated at Nelakondapalli, Khammam District to the complainant. Thirdly to direct the respondents not to sell 19 shops belonging to the complainant situated at Nelakondapalli village, near Kodada, Nalgonda Dsitrict, Fourthly, to direct the respondents to handover the custody of Ms.Gowthami and Master Pavan Sai Mohan to the complainant. Fifthly to direct the respondents to pay a sum of Rs.20,00,000/- as compensation and damages for mental torture and emotional distress caused by the respondents by committing acts of domestic violence caused to the complainant for the last 20 years.. Lastly to direct the respondents to pay a sum of Rs.50,00,000/- towards medical expenses incurred by the complainant for the treatment of her husband.
11. The main objection of the respondents is to attract the provisions of Act, 2005. Complainant has to first show that she is the aggrieved person and secondly, the property claimed by her is a shared house. Section 2 (a) of Act, 2005 defined aggrieved person which reads as follows:
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.
12. A plain reading of the above definition makes it clear that there shall be domestic relationship between the complainant and respondents to treat the complainant as aggrieved person.
13. Shared house hold is defined in Section 2 (s) of the Act, 2005 which reads as follows:
shared household means a household where the person aggrieved lives or at any stage has lived in the domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
14. From a reading of the above definition, it is clear that the aggrieved person must live in the property in domestic relationship either singly or along with the respondents and there shall be right, title, interest or equity in that property which may belong to the joint family of which respondent is a member. To attract this, the complainant has to show that the property claimed in this petition is the joint family property and that her husband has got a share in the said property.
15. Honourable Supreme Court in VIMLABEN AJITBHAI PATEL Vs. VATSLABEN ASHOKBHAI PATEL ( ) held as follows:
It is not for an owner of the property to establish that it is self- acquired property and the onus would be on the one, who pleads contra.
16. Here the contention of the complainant is that the 13 shops at Nelakondapalli are the joint family property and at the time of marriage, it was promised that these shops would be given to her husband, but as seen from the documents, filed on behalf of the respondents, this property stands in the name of second respondent and it was purchased long prior to the marriage. Admittedly, marriage of complainant with Narendrababu was performed in the year 1987 whereas this Nelakondapalli property was purchased in the year 1977 by second respondent.
17. According to complainant, they collected rents from these shops in their own right, but according to respondents, because of their affection towards husband of complainant, they allowed Narendrababu to collect rents from these shops taking into consideration his financial position. According to complainant rent receipts issued by tenants are not considered by the trial court and those documents are supporting her claim. Here the respondents filed material to show that the shop stands in the name of second respondent and they have only permitted husband of complainant to collect rents for some period. Even from the averments of the petition filed on behalf of the complainant, they collected rent only after 2001 though their marriage was in the year 1987. If really husband of complainant had a right or share in the property, they would have collected these rents from 1987 onwards. From the decision of Honourable Supreme Court referred above, burden is on the complainant to prove that the property in dispute is a joint family property. As rightly pointed out by advocate for respondents, these rent receipts would no way confer any title on the property particularly when second respondent contended that he allowed late Nagendrabababu to collect rents from these shops which is substantiated from circumstances these rent receipts do not have any evidentiary value.
18. Under the provisions of Act, 2005, aggrieved person can claim the relief of share envisaged in Sections 17, 18, 19, 20, 21 and 22. Under these sections, no right is created for an aggrieved person to claim arrears of rent or possession of disputed property. Even for claiming the reliefs under the above referred sections, the aggrieved person must prima facie establish that there is domestic violence as contemplated under Section 3 of the Act. This Court in KUPPILI SRIDHAR KUMAR AND OTHERS Vs.KUPPILI SIVA SANTOSHI AND ANOTHER ( ) held as follows:
One of the main ingredients which has to be prima facie established before claiming reliefs under the provisions of the said Act is that there should be domestic violence as contemplated under Section 3 of the Act.
19. A reading of the complaint, the allegation against respondents is that husband of the complainant was suffering with ailment of mental disorder even prior to the marriage and suppressing the same, her marriage was performed. Except making vague allegation in the complaint, there is absolutely no material of any kind to support the version of the complainant. On the other hand, it is the contention of the respondents that because of the attitude of the complainant and her adulterous life, her husband became upset and developed mental disorder and he was hale and healthy prior to the marriage. Material on record, prima facie, show that the complainant is accustomed to lead luxurious life and she was moving closely with some men and she closely moved with one Anil Kumar, an L.I.C. agent and she was living in adultery with that person. Complainants own daughter gave a detailed affidavit about her close movements with the said Anil Kumar and her adulterous life. Though the complainant contended that her daughters mind and her sons mind are polluted, the same cannot be accepted because no daughter would go to the extent of making a statement with regard to chastity of her own mother.
20. One of the contentions of the respondents is that complainant without any material, on vague allegations, involved all the family members of her husband after his death and the present lis is nothing but abuse of process of beneficial legislation.
21. Learned counsel for the respondents relied on a decision of this court in BURAVILLI SIVA MADHURI Vs. BURAVILLI SATYA VENKATA LAKSHMANA RAO AND ORS.( ), whereunder this court held as follows:
If a person is made to face criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of court. The court has to subject the allegations levelled in the complaint to thorough scrutiny to find out prima facie whether there is any ring of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge, ultimately to make them to face endless criminal prosecutions. To prevent abuse of process of court and to save the innocent from the false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, if they appear to be frivolous and false have to be quashed at the threshold.
22. From the averments of the complaint, it is clear that the respondents are residing at different places. First respondent is mother-in-law of complainant, second respondent is elder brother of complainants husband, third respondent is sister of complainants husband and fourth respondent is husband of third respondent. There is no prima facie material to show how these persons would fall within the meaning of respondent as defined under Section 2 (q) of Act, 2005.
23. As per the definition, respondent means, 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 this Act.
24. There is no whisper in the complaint how these respondents have a domestic relationship with the complainant. The entire case of the complainant is in respect of Nelakondapalli property. As already observed supra, the relief in respect of that property as claimed by complainant is not available under the Act, 2005 and remedy of the complainant is only in civil court. So when the petition itself is not maintainable, implicating all the family members of her late husband, is definitely abuse of process of court.
25. The other reliefs of the complainant is for custody of the children. Now from the submissions of the advocate for respondents, both children have attained majority and the relief for the custody has become infructuous. It appears that both the children are now married and the marriage expenses of the daughter were born out by the 3rd respondent who is the paternal aunt of the girl.
26. One of the contentions of the respondents is that this property do not come under the definition of shared house and there is no material produced on behalf of complainant to show that at least prima facie this Nelakondapalli property would fall under the definition of a shared house.
27. The Honourable Supreme court in S.R.BATRA AND ANOTHER Vs. TARUNA BATRA ( ) held as follows:
The house in question belongs to the mother-in-law of the respondent. It does not belong to her husband. Hence, the respondent cannot claim any right to live in that house. There is no such law in India, like the British Matrimonial Homes, Act, 1967 and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.
28. It is also held in that decision as follows: Wife is only entitled to claim a right under section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to the respondents husband nor was it taken on rent by him nor is it a joint family property.
29. In this case, from prima facie material it is shown that disputed property is self acquired property of second respondent who is the brother of complainants husband, therefore, it cannot be treated as shared household. Further subsequent to this litigation property of Nelakondapalli is gifted to the children by the 2nd respondent on 30-6-2009 through two separate registered documents. This shows the concern of respondents towards the children of late Nagenderababu.
30. The other reliefs are for compensation of 20 lakhs for the loss of life of complainants husband. There is no material to show that her husband was not sound prior to the marriage and that the respondents caused mental torture to the complainant by suppressing such material fact. On the other hand, material prima facie discloses that husband of complainant is fed up with the attitude of the complainant and suffered mental agony and disorder on account of her adulterous life.
31. The next claim of the complaint is that she is entitled to recover Rs.50,00,000/- from the respondents which she has spent towards medical expenses of her husband. Absolutely, no material is placed for the alleged medical expenses incurred for the treatment of her husband. She has not filed any documents and she has not produced any record either for the treatment or for the ailment.
32. Learned Magistrate has elaborately discussed each and every aspect of the matter and dismissed the petition by a reasoned order. But the learned Sessions Judge without looking into these aspects, simply carried away with the submissions of the complainant that she was not given an opportunity to prove the documents that are filed without going into the relevancy of those documents in a domestic violence petition. As per the provisions of the Act, the proceedings have to be held in camera and to be tried summarily. According to the provisions of the Act, time fixed is 60 days for disposal from the date of the first hearing. This Act is to provide speedy remedy for deserving aggrieved person and for that reason, a summary enquiry is contemplated The court in a domestic violence petition cannot go into the title dispute and relief of the complainant and the documents sought to be relied on in this case are in respect of title dispute. On a scrutiny of the material, I am of the view benefits of the Act, 2005 are not to protect a lady like complainant who by her adulterous life caused mental agony and family disorder both for husband and children. Therefore, learned Sessions Judge has committed error in setting aside the well reasoned order of the learned III Additional Chief Metropolitan Magistrate, Hyderabad.
33. For the reasons stated above, this Criminal Revision Case is allowed and the impugned order of the V Additional Sessions Judge, Hyderabad is set aside confirming the order of the III Additional Chief Metropolitan Magistrate, Hyderabad. Consequently, the dismissal of the D.V.C. No.11 of 2007 by the trial court is upheld.
34. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed. _______________________ JUSTICE S.RAVI KUMAR Dated 29-4-2014.
No comments:
Post a Comment