moved any application under section 22 of the Act. She has not even claimed for
compensation in the relief column of her application filed under Section 12 of the
Act.
In these circumstances, there was no occasion for the learned A.C.J.M. to
award Rs.75,000/- as compensation to the wife. Learned Appellate Court has also
failed to realise this aspect while confirming the order passed by learned A.C.J.M.
Delivered on 9.5.2014
Case :- CRIMINAL REVISION No. - 1780 of 2012
Revisionist :- Sanjeev Kumar Agarwal
Opposite Party :- Smt. Rashmi Agarwal & Another
Coram;
Hon'ble Mrs. Vijay Lakshmi,J.
Citation; 2015 CRLJ(NOC)472 ALL
By means of this revision, the revisionist has questioned the legality of the
order dated 2.5.2012 passed by Addl. Sessions Judge/Special Judge, (E.C. Act),
Rampur whereby the learned Addl. Sessions Judge/Special Judge partly allowed
and partly dismissed the appeal No.76 of 2011 (Sanjeev Kumar Agarwal vs.
Rashmi Agarwal) arising out of judgment and order dated 7.10.2011 passed by
A.C.J.M. Court No.1, Rampur in Case No.224 of 2008 (Smt. Rashmi Agarwal vs.
Sanjeev Kumar Agarwal), under Section 12 of Domestic Violence Act, 2005.
I have heard Shri I.M. Khan, learned counsel for revisionist and learned
counsel for opposite parties.
The brief facts relevant for disposal of this revision are that the revisionist
and respondent no.1 are husband and wife, who were married on 14.5.2003,
according to Hindu rites. Gradually the relations between the two got strained and
the wife had to leave her matrimonial home. The wife feeling neglected, filed two
cases against her husband one under section 125 Cr.P.C. and the other under
Section 12 of Domestic Violence Act. In the complaint case filed under section 12
of Domestic Violence Act, 2005 before the Court of Chief Judicial Magistrate,
Rampur, the wife alleged that her husband was neglecting her. He and his family
members were harassing her on account of insufficient dowry. In June 2004, she
was forced to leave her matrimonial home despite the fact that she was pregnant
at that time. On 4.10.2004, she delivered a child and after delivery, she became
very weak but neither her husband nor any of his relatives came to her parental
house to see her or to make any arrangement for her treatment, medicines or
nutrition. Her mother in law expired on 25.1.2005. Hearing the news of her death,
she went to her matrimonial house, but she was treated badly. She was not
welcomed there and on 14.6.2006, under compelling circumstances, she had to
leave her matrimonial home once again. Since then she is living with her father.
Her husband/revisionist instead of providing her maintenance forced her to sign a
decree of divorce with mutual consent. He threatened her that if she would not sign2
the application for divorce with mutual consent, she would have to face serious
consequences. It was alleged by the wife that despite being a rich person and also
an Advocate having sufficient means to pay maintenance to her, he is not providing
any maintenance.
Mentioning all the aforesaid grounds she sought the following reliefs in the
application moved under section 12 of Domestic Violence Act.
(i) The respondent-husband be directed to restrain from doing any
correspondence by letters etc. with her.
(ii) The respondent be directed to arrange for some residence for her
according to his status.
(iii) The respondent be directed to return 'Streedhan' to her.
(iv) The respondent be directed to pay Rs.20,000/- p.m. to her as
maintenance.
(v) Any other relief as the Court may deem fit.
The respondent/husband appeared and filed objections denying all the
allegations. He alleged that wife herself is not discharging her duties, she out of her
own free will has preferred to live with her parents and without any reasonable
cause and even without his consent has left her matrimonial home. Neither he nor
any of his relatives had ever demanded any dowry from her. It was further alleged
by the husband that he had met with a road accident in March 2004, but despite
sending information, neither his wife nor any member of her parental side family
came to see him. He has always paid money to his wife and his daughter. On the
death of his mother, his wife had come to visit her matrimonial house only for one
day and despite repeated phone calls, she never came back to live with him.
Learned Addl. Chief Judicial Magistrate after hearing both the parties and
after appreciating the evidence available on record partly allowed the application of
wife by the judgment and order dated 7.10.2011. Learned Magistrate after
observing that the applicant/wife was residing in her father's house, denied the
relief regarding arrangement of some separate residence for her by her husband.
Learned Magistrate also denied the first relief claimed by wife by observing that
there being no divorce and the marital relationship being subsisting, the husband
can not be prohibited to have correspondence with his wife.
However learned Magistrate granted 3rd and 4th reliefs by directing the3
husband to return the 'Streedhan' of wife and to pay Rs.1500/-p.m. as maintenance
to her.
In addition to the aforesaid reliefs, learned Magistrate suo motu granted two
more reliefs to wife by awarding Rs.20,000/- as medical expenses and Rs.75,000/-
as compensation for physical and mental atrocities, the wife had to bear in the
circumstances mentioned earlier.
Against the order of learned Addl. Chief Judicial Magistrate, the respondent/
husband filed Criminal Appeal No.76 of 2011 in the court of Sessions. The learned
Appellate Court partly allowed the appeal setting aside the order of learned Addl.
Chief Judicial Magistrate in respect of payment of Rs.20,000/- for medical
expenses and Rs.1500/-p.m. as maintenance, but confirmed the order of learned
Addl. Chief Judicial Magistrate with regard to paying Rs.75,000/-as compensation
to the wife and also regarding return of 'Streedhan.'
Aggrieved by the aforesaid order dated 2.5.2012 passed by lower appellate
court, the husband has filed the present revision questioning the legality of the
impugned order mainly on the following ground:-
That the orders passed by the learned trial Court as well as the lower
appellate court, so far as it relates to the payment of compensation is wholly illegal
and without jurisdiction. Both the courts below have completely ignored the fact
that respondent no. 1 has nowhere asked for any compensation for physical and
mental agony. Hence, the order passed suo motu by the courts below regarding
payment of compensation is wholly illegal and without jurisdiction.
In this regard, learned counsel for revisionist has drawn the attention of this
court to Section 22 of “Protection of Women From Domestic Violence Act, 2005
(hereinafter referred to as “Act”) which provides for payment of compensation and
which is quoted below:-
22. Compensation orders.-”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.“
Learned counsel for the revisionist has vehemently argued that Section 22
of the Act clearly provides that the Magistrate may pass an order directing the
respondent to pay compensation “on an application being made by the
aggrieved person.”4
Learned counsel for revisionist has argued that if there is specific and clear
provision in the Act itself, providing for the procedure, the court has no jurisdiction
to read between the lines and to pass any order suo motu regarding payment of
compensation without any application or without even any prayer for that. Learned
counsel for the petitioner has contended that the application moved by wife under
section 12 of Domestic Violence Act which is annexed with the counter affidavit
filed by her against the instant revision clearly shows that wife has not claimed any
such relief, hence, the order passed regarding award of compensation by both the
courts below is without jurisdiction.
Per contra, learned counsel for respondent-wife has argued that learned
Magistrate after taking into account the entire facts, has ordered for compensation
for physical and mental torture, the wife had to bear because of neglectful
behaviour and maltreatment by her husband. The Magistrate is empowered to
grant any other relief while disposing the application under section 12 of the Act
and the wife had claimed “any other relief as Court may deems fit” in her
application.
After having heard learned counsels appearing from both the sides, and
after a careful perusal of the impugned judgements, it appears that the only legal
issue involved in this revision is that whether both the courts below have committed
any illegality or irregularity by passing an order granting suo motu of Rs.75,000/- to
the respondent-wife as compensation, that too without any application under
section 22 of the Act as Section 22 of the Act specifically and clearly provides that
the Court may grant compensation “on an application” moved by the aggrieved
person.
To arrive at a correct decision on this issue, the rules of interpretation of
statutes must be looked into. In this regard the rules of interpretation are based on
three 'Legal Maxims' :-
(1) “ EXPRESSO UNIUS EST EXCLUSIO ALTERIUS” - which means
Express mention of one thing implies the exclusion of another.
(2) “ EXPRESSUM FACIT CESSARE TACITUM”- which means
Expression precludes implication.
(3) “A VERBIS LEGIS NON EST RECEDENDUM”- which means
From the words of law, there must be no departure.5
The Hon'ble Supreme Court, in the case of A.R. Antulay vs. Ramdas
Sriviwas Nayak, (1984) 2 SCC 500; has held “Express enactment shuts the
door to further implication” which means “Where a statute requires to do a
certain thing in a certain way, the thing must be done in that way or not at all.
Where a statute prescribes a procedure for doing a thing, it must be done
accordingly unless there is any contrary indication.”
In the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655; the
Hon'ble Apex Court has observed that:-
“Court can supply or supplement the deficiency in the statute
but it cannot introduce into it an entirely new provision”.
The Hon'ble Apex Court in the case of New Piece Goods Bazar Co. Ltd. v.
C.I.T.., AIR 1950 SC 165 has held as under:-
“ it is the primary duty of a Court to give effect to the intention
of the Legislature as expressed in the words used by it, and no
outside consideration can be called in aid to find that
intention”.
In another case of Ambica Quarry Works v. State of Gujarat, AIR 1987
SC 1070 the Apex Court has held:
“No canon of construction can be said to be more fairly
established than this that the Legislature uses appropriate
language to manifest its intention”.
The intention of the Legislature must be gathered from
the words used in the section itself, and the Courts cannot, on
the possibility of abuse, give the provision a different
construction when the grammatical construction undoubtedly
achieves the object as indicated in the proviso.”
In the case of Communist Party of India, Nagpur vs. State of
Maharastra, AIR 1989 Bom 29 at 48, it has been held hereunder:
“Intention of the Legislature must be gathered from the
words of the statute and not from what the Government
professes it to be when it has translated intention into a statute
of a rule”.
All the aforesaid views have been strengthen recently by Constitution Bench
judgment of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of
Punjab 2014 (1) JIC 539 (SC) in which it has been observed as under :-
“The Courts have to administer the law as they find it,
and it is not permissible for the Court to twist the clear
language of the enactment, in order to avoid any real, or
imaginary hardship which such literal interpretation may
cause........under the garb of interpreting the provision,6
the Court does not have the power to add or subtract
even a single word, as it would not amount to
interpretation, but legislation.”
From the pleadings of the parties, it is clearly evident that the wife had not
moved any application under section 22 of the Act. She has not even claimed for
compensation in the relief column of her application filed under Section 12 of the
Act.
In these circumstances, there was no occasion for the learned A.C.J.M. to
award Rs.75,000/- as compensation to the wife. Learned Appellate Court has also
failed to realise this aspect while confirming the order passed by learned A.C.J.M.
For the aforesaid reasons and in wake of the legal position, well settled by
Hon'ble Apex Court in a plethora of judgments cited above, both the impugned
orders are liable to be quashed and the revision deserved to be allowed.
Accordingly, the revision is allowed. The order dated 2.5.2012 passed by
Addl. Sessions Judge/Special Judge, (E.C. Act), Rampur and the order dated
7.10.2011 passed by A.C.J.M. Court No.1, Rampur are hereby quashed.
However, the respondent-wife is at liberty to move fresh application under
section 22 of the Act.
Dt./-May, 9th2014
Hon'ble Mrs. Vijay Lakshmi,J.
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