impugned judgment has categorically stated that from the record, it
appears that serious allegations had been leveled against complainant
and no evidence had been brought for providing maintenance and as
such she was not held entitled to protection, residence and custody
order in her favour. It has also come in the judgment passed by learned
Court below that no violence, if any, on the part of petitioner was
proved. While granting compensation of Rs.1,000/- per month, in
favour of the complainant, learned appellate Court below took into
consideration status of complainant, who admittedly had to live and
maintain herself and she had no independent source of income. But, if
evidence led on record by the complainant before learned trial Court, to
prove contents of her application under Section 12 of the Act, is seen
and perused carefully, it nowhere suggests that maltreatment and
violence as defined under the Act was ever meted to the complainant.
There is no specific allegation, if any, of beatings given by husband or
family members, rather there is bald statement of complainant (AW-1)
that she was maltreated but no specific instance as such has been
reported with regard to violence, if any, done on her by the
respondents. Father of the complainant (AW-3) namely Bihari Lal has
also not stated anywhere anything specific with regard to violence, if
any, committed by petitioner or his family members. Apart from above,
no independent witness, if any, from locality was associated to prove
allegations of maltreatment and violence in terms of provisions
contained in the Act. As far as allegations with regard to throwing
complainant from the house are concerned, there is evidence led on
record by the petitioner, that complainant left the house at her own,
after being caught red handed with one Jeet Ram, with whom, she had
illicit relations (as stood proved in the divorce petition). All the
witnesses of the respondent have stated that complainant left the
house to answer call of nature and never turned up thereafter.
15. This Court, after having bestowed its thoughtful
consideration to the pleadings available on record, has no hesitation to
conclude that appellate court below, while granting maintenance of
Rs.1,000/- to the complainant got swayed by emotions and completely
ignored overwhelming evidence available on record suggestive of the
fact that complainant herself had left the house. Since there was no
evidence with regard to maltreatment or violence, learned appellate
Court below ought not have granted any amount on account of
maintenance.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CrMMO No. 30 of 2011
Decided on: May 2, 2017
Anil Kumar
V
Shashi Bala and others
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
2. Instant petition filed under Section 482 CrPC is directed
against judgment dated 4.12.2010 passed by Additional Sessions
Judge, Fast Track Court, Hamirpur in Criminal Appeal No. 30 of 2009,
reversing judgment dated 24.3.2009 passed by Judicial Magistrate 1st
Class, Court No. III, Hamirpur in Domestic Violence Complaint No. 2-1
of 2009, whereby application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter, ‘Act’), having
been filed by respondent No.1-complainant (‘complainant’, hereafter),
came to be dismissed.
3. Briefly stated the facts as emerge from the record are that
the complainant preferred an application under Section 12 of the Act
alleging therein that she was married to appellant-Anil Kumar as per
Hindu rites and customary ceremonies on 17.6.2003 and two children
were born out of said wedlock. Complainant further averred that she
was turned out by her in-laws. Complainant further claimed that after
being ousted from the house, she remained in her parents’ house for
eight months and came back on 22.11.2008, when her father-in-law
did not allow her to enter the house. After two days, she went back to
her parents’ house. On 14.12.2008, when she again came back, she
was taken out of the room and was not allowed to meet her children.
Complainant further alleged that false allegations have been leveled
against her. She further complained that on 23.12.2008, all of her
family members had left the house by locking it and since then she had
been residing in her courtyard and bathroom respectively. Her
husband had also gone away with other family members. In the
aforesaid background, Complainant prayed for providing protection
under Sections 18, 19, 20 and 21 of the Act.
4. Petitioner alongwith proforma respondents No.2 and 3, by
way of reply, refuted the aforesaid claim of the complainant and stated
that false and frivolous application has been moved by the
complainant to put undue pressure as well as to cause harassment to
them. However, petitioner admitted the complainant to be his legally
wedded wife but specifically stated that she developed illicit relations,
as a result of which, divorce petition has been filed. As per petitioner,
despite repeated requests, complainant failed to mend her ways and,
on 23.6.2008, was caught red-handed. Petitioner specifically denied
allegations of maltreatment and claimed that all the basic necessities
of life were provided to the complainant when she remained with him.
With the aforesaid submissions, petitioner claimed that the
complainant is not entitled to the reliefs as claimed in the application.
5. Complainant, by way of rejoinder, reasserted her claim as
put forth in the complaint and specifically denied the allegations as
contained in the reply having been filed by the respondents.
6. Learned trial Court, on the basis of pleadings adduced on
record by the respective parties, framed following questions, for
determination:
“1. Whether the applicant is entitled for protection and
relief as claimed in the application? If so, to what extent?
2. Final Order.”
7. However, the fact remains that learned trial Court, on the
basis of evidence adduced on record by the respective parties, came to
the conclusion that there is no merit in the application having been
filed by the complainant and accordingly, rejected the same.
8. Being aggrieved by and dissatisfied with the rejection of
aforesaid application, complainant preferred an appeal under Section
29 of the Act before Additional Sessions Judge, Fast Track Court,
Hamirpur, which came to be registered as Criminal Appeal No. 30 of
2009. Learned appellate court below, while partly accepting the appeal
filed by the complainant, quashed and set aside order dated 24.3.2009
and held complainant entitled to maintenance allowance of Rs.1,000/-
per month, from the date of order. At this stage, it may be noticed that
while passing aforesaid judgment, learned appellate court specifically
concluded that no evidence has been led on record by the complainant
to prove serious allegations as leveled against the respondents in the
complainant. The court below further concluded that no evidence has
been brought on record to demonstrate violence, if any, by the
respondents and accordingly, held her not entitled to protection,
residence and custody order in her favour. Learned appellate court
below, while partly allowing appeal, held that since complainant has to
live and maintain herself and she has no independent source of
income, she is entitled to monetary relief under Section 20 of the Act.
9. Mr. Ajay Sharma, learned counsel representing the
petitioner, while referring to the impugned judgment passed by court
below, vehemently argued that same is not sustainable in the eyes of
law, as such, same deserves to be quashed and set aside. While
inviting attention of this Court to impugned order passed by court
below, Mr. Sharma, strenuously argued that once learned Court below
had come to the conclusion that no evidence worth the name has been
led on record by the complainant, to prove violence, if any, against her
by the petitioner and his family members, there was no occasion,
whatsoever, to provide maintenance of Rs.1,000/- per month. Mr.
Sharma, also invited attention of this Court to the evidence led on
record by the complainant in support of her complaint filed before
learned trial Court, to demonstrate that there is no illegality or
infirmity in the order of learned trial Court, whereby it has rightly come
to the conclusion that complainant has not been able to prove
contents of application, so as to make herself entitled to reliefs under
Sections 18, 19, 20 and 21 of the Act. Mr. Sharma, further contended
that earlier, complainant had filed divorce petition against petitioner
leveling serious allegations of sexual harassment against his father but
same was later on withdrawn. Mr. Sharma also invited attention of this
Court to the decree of dissolution of marriage passed by matrimonial
court in the petition having been filed by the petitioner, wherein
allegations with regard to illicit relations of complainant with one Jeet
Ram, stood duly proved. In the aforesaid background, Mr. Sharma,
prayed that impugned order passed by learned appellate Court below
may be set aside and that of learned trial Court be restored.
10. Mr. Adarsh K. Vashishta, learned counsel representing the
complainant, supported the impugned judgment passed by learned
appellate Court below. Mr. Vashishta while refuting aforesaid
contentions having been made by the learned counsel representing the
petitioner, stated that there is no illegality or infirmity in the judgment
passed by learned Court below, wherein he has specifically come to the
conclusion that since complainant has to live and maintain herself,
and she is having no independent source of income, she is entitled for
monetary relief under Section 20 of the Act.
11. He also contended that a very meager sum of Rs.1,000/-
per month has been awarded by the learned Court below as such, there
is no scope of interference, specifically in view of the fact that it stands
duly proved on record that respondent-complainant is legally wedded
wife of petitioner and it is/was his bounden duty to maintain her
during subsistence of their marriage. Mr. Vashishta also made this
Court to travel through evidence led on record by the complainant
before learned trial Court, to suggest that learned trial Court miserably
failed to appreciate evidence in its right perspective, as a result of
which, erroneous findings have come on record, which were later on
rectified in accordance with law, by the learned appellate Court below,
in the appeal having been filed by the complainant. In the aforesaid
background, Mr. Vashishta, prayed for dismissal of petition.
12. I have heard the learned counsel representing the parties
and also gone through the record very carefully.
13. Before adverting to the genuineness and correctness of the
impugned order passed by appellate court below as well as
submissions of learned counsel representing the parties, it may be
noticed that marriage of petitioner with complainant stands dissolved
on the ground of cruelty, as is evident from decree passed by learned
District Judge in HMA No. 18 of 2008, on 3.3.2011, whereby
matrimonial court, while accepting petition filed by the petitioner has
dissolved marriage on the ground of cruelty. It may also be stated at
this stage that aforesaid judgment having been passed by matrimonial
court was laid challenge before this Court by way of FAO No. 205 of
2011, which came to be decided by this Court on 2.5.2017. This
Court, vide aforesaid judgment, while dismissing appeal having been
preferred by the complainant, has upheld the decree of dissolution of
marriage passed by matrimonial court.
14. This Court, solely with a view to ascertain the perversity, if
any, in the impugned judgment passed by appellate court, carefully
perused pleadings as well as evidence adduced on record by the
respective parties, perusal whereof certainly compels this Court to
agree with the contentions raised by learned counsel representing
petitioner that learned appellate Court below has failed to appreciate
evidence adduced on record by respective parties in its right
perspective, as a result of which, erroneous findings have come on
record. Bare perusal of impugned judgment passed by learned
appellate Court below itself suggests that even appellate court was not
convinced of evidence led on record, which could make complainant
entitled for protection as claimed by way of application under Section
12 of the Act. Learned appellate Court below, in para 16 of the
impugned judgment has categorically stated that from the record, it
appears that serious allegations had been leveled against complainant
and no evidence had been brought for providing maintenance and as
such she was not held entitled to protection, residence and custody
order in her favour. It has also come in the judgment passed by learned
Court below that no violence, if any, on the part of petitioner was
proved. While granting compensation of Rs.1,000/- per month, in
favour of the complainant, learned appellate Court below took into
consideration status of complainant, who admittedly had to live and
maintain herself and she had no independent source of income. But, if
evidence led on record by the complainant before learned trial Court, to
prove contents of her application under Section 12 of the Act, is seen
and perused carefully, it nowhere suggests that maltreatment and
violence as defined under the Act was ever meted to the complainant.
There is no specific allegation, if any, of beatings given by husband or
family members, rather there is bald statement of complainant (AW-1)
that she was maltreated but no specific instance as such has been
reported with regard to violence, if any, done on her by the
respondents. Father of the complainant (AW-3) namely Bihari Lal has
also not stated anywhere anything specific with regard to violence, if
any, committed by petitioner or his family members. Apart from above,
no independent witness, if any, from locality was associated to prove
allegations of maltreatment and violence in terms of provisions
contained in the Act. As far as allegations with regard to throwing
complainant from the house are concerned, there is evidence led on
record by the petitioner, that complainant left the house at her own,
after being caught red handed with one Jeet Ram, with whom, she had
illicit relations (as stood proved in the divorce petition). All the
witnesses of the respondent have stated that complainant left the
house to answer call of nature and never turned up thereafter.
15. This Court, after having bestowed its thoughtful
consideration to the pleadings available on record, has no hesitation to
conclude that appellate court below, while granting maintenance of
Rs.1,000/- to the complainant got swayed by emotions and completely
ignored overwhelming evidence available on record suggestive of the
fact that complainant herself had left the house. Since there was no
evidence with regard to maltreatment or violence, learned appellate
Court below ought not have granted any amount on account of
maintenance. Moreover, as has been noticed above, marriage between
the parties has been dissolved vide judgment dated 3.3.2011, which
has been further upheld by his Court and as such, this Court sees no
force, much less substantial, in the complaint of the complainant,
which was rightly rejected by the learned trial Court.
16. Consequently, in view of above, judgment dated 4.12.2010
passed by Additional Sessions Judge, Fast Track Court, Hamirpur in
Criminal Appeal No. 30 of 2009 is set aside and judgment dated
24.3.2009 passed by Judicial Magistrate 1st Class, Court No. III,
Hamirpur in Domestic Violence Complaint No. 2-1 of 2009 is upheld.
However, keeping in view the fact that instant petition under Section
12 of the Act remained pending adjudication till passing of decree of
dissolution of marriage i.e. wherein allegations with regard to illicit
relationship of complainant stood proved, this court deems it fit to
grant/award of Rs.10,000/- to the complainant, to be paid by the
petitioner, within a period of eight weeks from today, as maintenance
under Section 12 of the Act.
17. The petition stands disposed of accordingly. Pending
applications, if any are also disposed of. Interim directions, if any, are
also vacated.
(Sandeep Sharma)
Judge
May 2, 2017
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