In the present case, obviously the wife is
legally entitled to maintenance allowance from her
husband who is a salaried government employee. She
has made out a good case justifying her separate living.
Admittedly, she is a housewife and she has no source of
earning whereas the husband draws a monthly salary of
₹49,000/- excluding all deductions. In these
circumstances, denial of maintenance allowance to the
wife obviously causes ‘economic abuse’ to her within
the meaning of domestic violence as under Section 3 of
the DV Act. There is, therefore, no infirmity in the
impugned judgment.
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P.No.36 of 2020
Ramendra Kishore Bhattacharjee Vs Smt.Madhurima Bhattacharjee
B E F O R E
HON’BLE MR.JSUTICE S.G.CHATTOPADHYAY
Dated: 10.02.2021
[1] This criminal revision petition has been filed
under Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973(Cr.P.C. hereunder) against
the judgment and order dated 18.07.2020 delivered in
Criminal Appeal No. 16 of 2018 by the Additional
Sessions Judge (Court No.4) West Tripura, Agartala
partly allowing the appeal against the judgment and
order dated 23.08.2018 passed by the Judicial
Magistrate, First class (Court No.8) Agartala in case No.
CR 54 of 2016 under the Protection of Women from
Domestic Violence Act, 2005 (‘the DV Act’ in short).
[2] Brief facts of the case are as under:
The wife presented an application under
Section 12 of the DV Act in the court of the Judicial
Magistrate of the First class (court No.8) at Agartala on
22.01.2016 seeking various reliefs under the DV Act
wherein she referred to several incidents of domestic
violence against her husband. It was stated by her that
after solemnization of their marriage a son was born to
them on 28.05.2001. Their relationship was normal for
a period of 01 year only. Thereafter, her husband
subjected her to harassment and torture for dowry and
since she was unable to meet his demand, she was
physically assaulted by her husband on various dates.
Gradually he developed an extramarital affair. When
the wife raised protest against his conduct he assaulted
her. As a result of continuous assault on 16.12.2015
and 17.12.2015 she became ill and received treatment
in IGM Hospital at Agartala. Unable to bear his torture,
the wife parted with his company on 17.12.2015. In
this factual background, she claimed the following
reliefs in the trial court under the DV Act:
(i) A protection order under Section 18 of
the DV Act restraining her husband
from committing acts of domestic
violence to her.
(ii) Residence order under Section 19 of
the DV Act restraining the husband
from dispossessing her from the
shared household.
(iii) Monetary relief under Section 20 of
the DV Act @Rs.15,000/- per month
along with one time medical expenses
of Rs.1 lakh.
(iv) Compensation order under Section 22
of the DV Act against the husband for
payment of compensation and
damages of an amount of Rs.3 lakhs
for the injuries including mental
torture and emotional distress caused
to her by her husband by his acts of
domestic violence.
[3] Her application was registered in the trial
court as case no. CR 54 of 2016 and notice was issued
to the husband.
[4] The husband filed written objection against
the complaint of his wife. In his written objection he
stated that his wife filed a false and frivolous complaint
against him. According to him, she was very arrogant
and torturous right from the beginning of their
marriage. But he condoned her conduct and wanted to
continue the relationship. He noticed no change in her
behavior even after the birth of their son. After he was
transferred to the court of District and Sessions Judge
at Kailashahar, he had taken his wife and child to there
from where the wife used to visit her parents at
Agartala frequently without taking any care of his
convenience. Having noticed growth of abnormalities in
her conduct day by day, the husband with the consent
of her parents had taken her to various psychiatrists.
He had also taken her to Bangalore for treatment in the
National Institute of Mental Health And Neuro Science
(NIMHANS) in 2012 which brought no change in her.
The husband then approached the State Commission
for Women for reconciliation. He also approached the
State Legal Services Authority for a settlement. His
efforts yielded no result. Ultimately, his wife filed an
FIR against him and his old parents on 18.12.2015.
Since then, the husband has been living separately
along with his son who is studying in school. Having
denied the allegations of his wife, he claimed that his
wife was solely responsible for their matrimonial discord
and as such she was not entitled to any relief under the
DV Act.
[5] During the trial of the case, the wife
examined herself as PW-1, her elder brother Tapan
Bhattacharjee as PW-2 and her neighbor Ranajoyti
Bhattacharjee as PW-3.
[6] The husband on the other hand examined
himself as DW-1, his neighbor Priya Bhusan Deb as
DW-2 and Smt. Rekha Roy as DW-3.
[7] The learned trial court on appreciation of
evidence granted reliefs to the wife vide paragraph 12
of his judgment dated 23.08.2018 which is as under:
“ORDER
(12) In the result, the application filed by the aggrieved
petitioner U.S. 12 of the Act is partly allowed and the aggrieved
petitioner is found entitled to protection order, residence order
and monetary relief. The respondents are prohibited from
committing any act of domestic violence or aiding or abetting in
the commission of acts of domestic violence upon the aggrieved
petitioner. The Respondent No.1 is further directed as part of
residence order to make payment of Rs.2000/- per month as
rent for accommodation to the aggrieved petitioner. He is further
directed to make payment of Rs.15,000/- per month as
monetary relief in the form of maintenance to the aggrieved
petitioner. The payment of Rs.2000/- per month as residence
order and Rs.15,000/- per month as maintenance is to be
deposited within the 10th day of every month in the Bank account
of the aggrieved petitioner.
Supply a copy of this judgment and order free of
cost to both the parties and to the C.D.P.S’s of their respective
jurisdiction of address for doing the needful. This Judgment is
passed on this 23rd day of August, 2018 under the seal and
signature of this Court.
Thus, the case is disposed off on contest. Make
entry in the concerned T.R. The record shall be consigned to
Record Room after due compliance of all legal formalities.”
[8] The husband and his mother, brother and
sister being appellants challenged the said judgment of
the learned trial court in criminal appeal no.16 of 2018
before the learned Additional Sessions Judge [Court
no.4] at Agartala in West Tripura and the leaned
Additional Sessions Judge by the impugned judgment
partly allowed the appeal vide paragraph 8 of the
impugned judgment and directed as under:
“8. In view of the discussion made above, the
present criminal appeal partly succeeds and the
judgment and order dated 23.8.2018 passed by the
Ld. Trial Court in C.R. 54 of 2016 is partly upheld
and interfered with as stated herein below : -
(a) The husband-appellant No.1 is solely
proved to have committed and liable for the
acts of Domestic Violence upon his
aggrieved wife and all other appellant Nos.2,
3 and 4 are hereby discharged from the
liabilities.
(b) The protection order passed by the Ld.
Trial Court under Section 18 of the PWDV
Act is upheld with a direction that the
husband-appellant No.1 strictly adhered the
same.
(c) The order of monetary relief passed in
the form of maintenance under Section
20(1)(d) of the PWDV Act for an amount of
Rs.15,000/- per month is hereby upheld,
and
(d) The order of relief passed under Section
19(f) of the PWDV Act is hereby set aside.”
[9] Aggrieved with the impugned judgment of
the learned Additional Sessions Judge, the husband has
challenged the said judgment in this criminal revision
petition.
[10] Heard Mr. B.Deb, learned counsel appearing
for the husband as well as Mr. Raju Datta, learned
counsel appearing for the wife.
[11] The grounds of challenge to the impugned
judgment of the appellate court are as under:
i) The learned courts below have not
property appreciated the evidence and
materials on record and as such their
judgments are erroneous and liable to be set
aside.
ii) The learned courts below have failed to
appreciate the fact that the wife has left the
son in the custody of her husband.
Thereafter, the husband alone has been
shouldering all expenses of the son including
his educational expenses. The learned courts
below without taking into consideration the
expenses borne by the husband directed him
to provide monetary relief to the wife
@₹15,000/- per month.
iii) While providing the monetary relief to the
wife under Section 18 of the DV Act, the
courts below did not also take into
consideration personal expenses of the
husband and expenses borne by him for
maintaining his old and ailing mother.
Moreover, the learned courts below did not
also consider his permanent disability and
the recurring medical expenses for his
treatment. While determining the amount of
monetary relief the courts below did not also
take into consideration the order of the
Family Court, Agartala passed in Misc. Case
No.463 of 2017 whereby the husband was
directed to pay ₹ 6000/- to his wife in a
proceeding under Section 125 Cr.P.C.
iv) The trial court as well as the appellate
court issued the protection order against the
husband without any proof of commission of
domestic violence. According to the husband,
evidence adduced by him was not
appreciated by the trial court as well as the
appellate court while issuing such protection
order.
[12] Besides projecting the grounds stated
above, Mr.B.Deb, learned counsel appearing for the
husband has also contended that where there is no
evidence of domestic violence, the wife is not entitled
to any relief under the DV Act. In this regard Mr.Deb,
learned counsel has relied on order dated 28.01.2019
of the Apex Court passed in Sangita Saha vs. Abhijit Saha
And Others. [In Petition(s) for Special Leave to
Appeal(Crl.) No(s). 2600-2601 /2016] wherein the Apex
Court has held that petitioner is entitled to relief under
the DV Act only in case she establishes domestic
violence. Mr. Deb, learned counsel has also contended
that in absence of the proof of the ingredients of
domestic violence, the wife is not entitled to
relief/relieves provided under the DV Act. In support of
his contention, Mr. Deb, learned counsel has placed
reliance on the order dated 04.10.2019 of the Apex
Court in Kamlesh Devi vs. Joypal And Others.[Special
Leave Petition (Criminal) …………Diary No.(s) 34053
/2019] wherein the Apex Court has held that relief
under DV Act can be declined where ingredients of
domestic violence are wholly absent. Further
submission on behalf of the husband is that the learned
trial court as well as the appellate court should not
have ignored the maintenance awarded to the wife in a
proceeding under Section 125 Cr.P.C while determining
the amount of monetary relief to the wife under Section
20 of the DV Act. In support of his contention, Mr.Deb
learned counsel has referred to the decision of the Apex
Court in Rajnesh vs. Neha and Another reported in
2020 SCC Online SC 903 wherein the Apex Court has
directed as under:
“Directions on overlapping
jurisdictions
It is well settled that a wife can make a
claim for maintenance under different
statutes. For instance, there is no bar to
seek maintenance both under the D.V.
Act and Section 125 of the Cr.P.C., or
under H.M.A. It would, however, be
inequitable to direct the husband to pay
maintenance under each of the
proceedings, independent of the relief
granted in a previous proceeding. If
maintenance is awarded to the wife in a
previously instituted proceeding, she is
under a legal obligation to disclose the
same in a subsequent proceeding for
maintenance, which may be filed under
another enactment. While deciding the
quantum of maintenance in the
subsequent proceeding, the civil
court/family court shall take into account
the maintenance awarded in any
previously instituted proceeding, and
determine the maintenance payable to the
claimant. To overcome the issue of
overlapping jurisdiction, and avoid
conflicting orders being passed in
different proceedings, we direct that in a
subsequent maintenance proceeding, the
applicant shall disclose the previous
maintenance proceeding, and the orders
passed therein, so that the Court would
take into consideration the maintenance
already awarded in the previous
proceeding, and grant an adjustment or
set-off of the said amount. If the order
passed in the previous proceeding
requires any modification or variation, the
party would be required to move the
concerned court in the previous
proceeding.”
[13] Mr.Deb, learned counsel appearing for the
husband has finally argued that since there is no proof
of domestic violence, the impugned judgment is liable
to be set aside.
[14] Mr.Raju Datta, learned counsel appearing for
the wife on the other hand contends that admittedly the
husband is a government employee having a monthly
salary of not less than ₹50,000/- who is quite able to
maintain his wife. Further contention of Mr.Datta,
learned counsel, is that the wife by producing cogent
and coherent evidence proved that she was subjected
to domestic violence by her husband and the courts
below on appreciation of her evidence and the entire
facts and circumstances of the case granted the reliefs
to her under the DV Act. It is therefore, submitted by
Mr.Datta that there is no reason to interfere with the
findings of the courts below. According to Mr.Datta,
learned counsel, the wife is entitled to the same
standard of living as she would have lived in the house
of her husband and therefore, the trial court rightly
granted ₹15,000/- per month as monetary relief to her
which was also upheld by the appellate court. In
support of his contention, Mr.Datta has referred to the
decision of the Apex Court in Reema Salkan vs. Sumer
Singh Salkan reported in (2019) 12 SCC 303 wherein
the Apex Court succinctly held that while determining
the maintenance allowance for the wife, regards must
be had to the living standard of his husband and his
family.
[15] With regard to the determinants of the
maintenance allowance, Mr.Datta, learned counsel
appearing for the wife has also placed reliance on the
decision of Delhi High Court in Babita Bisht vs.
Dharmender Singh Bisht reported in (2019) SCC
Online Del 8775 wherein Delhi High Court has held as
follows:
“16. The Supreme Court in Reema
Salkan vs. Sumer Singh Salkan in
Crl.A.No.1220/2018 in judgment dated
25.09.2018 relying on the earlier
judgment of the Supreme Court in Bhuwan
Mohan Singh vs. Meena: (2015) 6 SCC 353
held that "the concept of sustenance does
not necessarily mean to lead the life of an
animal, feel like an unperson to be thrown
away from grace and roam for her basic
maintenance somewhere else. She is
entitled in law to lead a life in the similar
manner as she would have lived in the
house of her husband. That is where the
status and strata come into play, and that
is where the obligations of the husband, in
case of a wife, become a prominent one.
In a proceeding of this nature, the
husband cannot take subterfuges to
deprive her of the benefit of living with
dignity. Regard being had to the solemn
pledge at the time of marriage and also in
consonance with the statutory law that
governs the field, it is the obligation of the
husband to see that the wife does not
become a destitute, a beggar. A situation
is not to be maladroitly created where
under she is compelled to resign to her
fate and think of life "dust unto dust". It
is totally impermissible. In fact, it is the
sacrosanct duty to render the financial
support even if the husband is required to
earn money with physical labour, if he is
able-bodied. There is no escape route
unless there is an order from the court
that the wife is not entitled to get
maintenance from the husband on any
legally permissible grounds."”
[16] Mr.Datta, learned counsel appearing for the
wife has further argued that monetary relief
contemplated under Section 20 of the DV Act is
different from maintenance which can be in addition to
an order of maintenance granted under Section 125
Cr.P.C. or any other law. In support of his contention
Mr. Datta, learned counsel has referred to the decision
of the Apex Court in Juveria Abdul Majid Patni vs. Atif
Iqbal Mansoori And Another reported in (2014)10 SCC
736 wherein the Apex Court has held as under:
“23. In the instant case, the appellant sought relief
under Sections 18 to 23 of the Domestic Violence
Act, 2005. It includes Protection order under Section
18, Monetary relief under Section20, Custody orders
under Section 21, Compensation under Section 22
and interim relief under Section 23. Relevant
provisions read as follows:
“Monetary reliefs.—(1) While disposing of an
application under sub-section (1) of section
12, the Magistrate may direct the
respondent to pay monetary relief to meet
the expenses incurred and losses suffered
by the aggrieved person and any child of the
aggrieved person as a result of the domestic
violence and such relief may include, but is
not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the
destruction, damage or removal of
any property from the control of the
aggrieved person; and
(d) the maintenance for the
aggrieved person as well as her
children, if any, including an order
under or in addition to an order of
maintenance under section 125 of
the Code of Criminal Procedure,
1973 (2 of 1974) or any other law
for the time being in force.
(2) The monetary relief granted under this
section shall be adequate, fair and
reasonable and consistent with the standard
of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to
order an appropriate lump sum payment or
monthly payments of maintenance, as the
nature and circumstances of the case may
require.
(4) The Magistrate shall send a copy of the
order for monetary relief made under subsection
(1) to the parties to the application
and to the in-charge of the police station
within the local limits of whose jurisdiction
the respondent resides.
(5) The respondent shall pay the monetary
relief granted to the aggrieved person within
the period specified in the order under subsection
(1).
(6) Upon the failure on the part of the
respondent to make payment in terms of the
order under sub-section (1), the Magistrate
may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved
person or to deposit with the court a portion
of the wages or salaries or debt due to or
accrued to the credit of the respondent,
which amount may be adjusted towards the
monetary relief payable by the respondent."
The Monetary relief as stipulated under Section 20
is different from maintenance, which can be in
addition to an order of maintenance under Section
125 of the Cr.P.C. or any other law. Such monetary
relief can be granted to meet the expenses incurred
and losses suffered by the aggrieved person and
child of the aggrieved person as a result of the
domestic violence, which is not dependent on the
question whether the aggrieved person, on the date
of filing of the application under Section 12 is in a
domestic relationship with the respondent.”
[17] Mr. Datta, learned counsel has also placed
reliance on a decision of the Delhi High Court in Shome
Nikhil Danani vs. Tanya Benon Danani reported in
(2019) 54 Online Del 8016 wherein the Delhi High
Court has held as follows:
“17. Cleary the scope of Section
20 of the DV Act is much wider than that
of Section 125 Cr.P.C. While Section 125
Cr.P.C. talks only of maintenance, Section
20 DV Act stipulates payment of monetary
relief to meet the expenses incurred and
losses suffered as a result of the domestic
violence including but not limited to loss
of earning, medical expenses, loss caused
due to destruction, damage or removal of
any property from the control of aggrieved
person. Further, Section 20(1)(d) of the
DV Act clearly provides that "In
proceedings under the DV Act, the
magistrate may direct the Respondent to
pay the maintenance to the aggrieved
person as well as her children, if any,
including an order under or in addition to
an order of maintenance under section
125 Cr.P.C. or any other law for the time
being in force."
18. This clearly shows that an order
under Section 20 DV Act is not restricted
by an order under section 125 Cr.P.C. The
Trial Court clearly erred in not
appreciating the distinction between the
two provisions and the reasoning is
clouded by an impression that the
respondent-wife in the application
under section 23 was only seeking an
order of maintenance, which is not the
case. In her application under section
23 of the DV Act, the respondent wife has
inter-alia sought residence rights
under Section 19 and protection
under Section 18 apart from the monetary
relief under Section 20.
19. Reference may also be had to the
Judgment of a coordinate bench of this
court in Karamchand & Ors Vs State NCT
of Delhi & Anr (2011) 181 DLT 494 and of
the Supreme Court of India in Juveria
Abdul Majid Khan Patni Vs Atif Iqbal
Mansoori (2014) 10 SCC 736, wherein the
Supreme Court has held that monetary
relief as stipulated under Section 20 is
different from maintenance, which can be
in addition to an order of maintenance
under Section 125 Cr.P.C. or any other
law.
20. Further, it may be seen that
proceeding under the DV Act and
under section 125 Cr.P.C are independent
of each other and have different scope,
though there is an overlap. In so far as
the overlap is concerned, law has catered
for that eventuality and laid down that at
the time of consideration of an application
for grant of maintenance under DV Act,
maintenance fixed under section 125
Cr.P.C shall be taken into account.
21. The Judgment in the case of Rachna
Katuria Versus Ramesh Kathuria (supra)
relied upon by learned Senior Counsel for
the Petitioner to contend that DV Act does
not create any additional right to claim
maintenance on the part of the aggrieved
person and if a woman had already filed a
suit claiming maintenance and after
adjudication maintenance has been
determined, she does not have a right to
claim additional maintenance under
the DV Act is per in curium as it does not
notice the very provisions of Section
20 and 23 of DV Act. Further now the
Supreme Court of India in Juveria Abdul
Majid Khan Patni Vs Atif Iqbal Mansoori
(supra) has held that monetary relief
under Section 20 DV Act is in addition to
maintenance under section 125 Cr.P.C.”
[18] Learned counsel, therefore, contends that
the judgment of the appellate court does not call for
any interference in this criminal revision petition.
[19] As discussed, the wife in support of her case
submitted her examination in chief on affidavit and got
her subjected to cross examination before the trial
court as PW-1. In her examination-in-chief she had
repeated the incidents of torture and harassment
mated out to her by her husband and reiterated that
her husband had compelled her to leave her
matrimonial home by committing physical torture on
her at 8 O’clock in the morning on 17.12.2015. She
also stated that as a result of his torture, she received
treatment from IGM Hospital, Agartala as an outdoor
patient on 18.12.2015. She further stated that after the
said incidences, she filed FIR to the Officer-in-charge of
Amtali Police Station which was registered as Amtali
P.S.Case No.2015 AMT 178 dated 17.12.2015 under
Sections 498A and 325 IPC and investigation of the
case was also taken up by police. During the
proceeding under the DV Act at the trial court, this FIR
lodged by her was taken into evidence and marked as
Exhibit-1. She also submitted the photocopy of doctor’s
prescription to prove that she attended IGM Hospital at
Agartala on 18.12.2015 in the Out Patient Department
after she was assaulted by her husband on the previous
day. In her cross examination she denied that her
husband had taken her to NIMHANS in Bengaluru for
neurological treatment. She also denied that she was
advised to visit NIMHANS at the interval of every 6
months. She denied that she made false allegations of
domestic violence against her husband because of the
only reason that she suspected that her husband was
having extramarital affair.
[20] Elder brother of the wife was examined as
PW-2. In his examination-in-chief submitted on
affidavit, he supported the case of his sister with regard
to her allegations of domestic violence against her
husband. The PW stated at the trial that her husband
used to assault his sister almost on every day to meet
his demand of dowry. His sister complained to him that
her husband had developed extramarital affair. It was
further stated by the PW that his sister was physically
assaulted by her husband on 16.12.2015 and
17.12.2015 for which she left her matrimonial home. In
his cross examination the PW asserted that he met the
husband of his sister and his relatives several times for
mitigation of the discord and differences between the
spouses. But his efforts did not work.
[21] PW-3 Ranajyoti Bhattacharjee in his
examination in chief on affidavit supported the case of
the wife with regard to her allegations of violence and
atrocities against her husband. The PW also stated that
the wife told him that her husband developed an
extramarital relationship. But the PW was not produced
in court for cross examination.
Learned counsel appearing for the husband
agitated on this point. According to him the courts
below should not have taken his examination in chief
into consideration because this PW was not produced in
court for cross examination by the husband.
[22] DW-1, Ramendra Kishore Bhattacharjee, the
husband repeated the same story which was projected
by him in his written objection against the petition of
his wife. He reiterated that he never committed any
sort of domestic violence on his wife. Rather, he left no
stone unturned for her well being. But there was no
change in her conduct despite his efforts. Rather, she
became more violent and abusive to the husband.
According to the PW, his wife was always suspicious
and only for this reason she brought all these false
allegations against him. In his cross examination, the
husband admitted that he was drawing a monthly
salary of ₹49,000/-(Forty-nine thousand) and he also
admitted that he gave no maintenance allowance to his
wife after she parted with his company.
[23] DW-2 Priya Bhusan Deb is the neighbor of
the husband. Priya Bhusan stated at the trial that when
he was secretary of Nabajagaran Sangha, a meeting
was held in the house of the husband at the instance of
the club for settlement of the disputes between them.
During such meeting it came to light that the main
reason of grievance of the wife against her husband
was her suspicion that her husband had an extramarital
affair. They tried to restore their relationship but their
efforts did not work.
[24] DW-3, Smt. Rekha Roy, another neighbor of
the husband has also given similar evidence. She also
supported the fact that a meeting was held in the house
of the husband at the instance of local club where
efforts were taken to solve the differences between the
spouses. But the efforts failed since the wife had
suspected her husband to have extramarital affair.
[25] The core issue which has been agitated by
learned counsel appearing for the husband is that relief
under the DV Act has been provided to the wife in
absence of any proof of domestic violence.
[26] Under Section 12 of the DV Act only the
aggrieved person or a protection officer appointed
under the DV Act or any other person on behalf the
aggrieved person may present an application to the
magistrate seeking one or more reliefs under this Act.
It would be apposite to reproduce Section 12 of the DV
Act at this juncture which is as under:
“12. Application to Magistrate.—(1) 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 this Act:
Provided that before passing any order on such
application, the Magistrate shall take into consideration
any domestic incident report received by him from the
Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may
include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right
of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any,
paid or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the
time being in force, be executable for the balance
amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in
such form and contain such particulars as may be
prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing,
which shall not ordinarily be beyond three days from the
date of receipt of the application by the court.
(5) The Magistrate shall Endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.”
[27] Aggrieved person has been defined under
Section 2(a) of the DV Act which reads as under:
“2. Definitions.—In this Act, unless the
context otherwise requires,—
(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;
(b) .............................................................
(c) .............................................................
:
:
:
:
[28] A conjoined reading of Section 12 and
Section 2(a) makes it abundantly clear that relief under
the DV Act can be granted only to an aggrieved person
defined under the DV Act and an aggrieved person has
been defined as a woman who is or has been in a
domestic relationship with the respondent who alleges
to have been subjected to any act of domestic violence
by the respondent. Therefore, allegation of domestic
violence is a sine qua non for pursuing a petition under
the DV Act.
[29] In this case, the wife who filed the
application under Section 12 of the DV Act in the trial
court is obviously an aggrieved person within the
meaning of the Act because she made allegations of
domestic violence against her husband and the fact that
she was in a domestic relationship with the husband as
his wife has been admitted by her respondent husband.
Now the question is whether the wife proved
commission of domestic violence against her husband
at the trial court and become entitled to a relief under
Section 12 of the DV Act.
[30] In the definition clause of the DV Act i.e.
Section 2 under clause (g) states that domestic
violence has the same meaning as assigned to it in
Section 3 of the DV Act. Section 3 of the DV Act defines
domestic violence as under:
“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, house hold
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 house
hold 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.”
[31] Apparently, domestic violence has been
defined under Section 3 of the Act in a very wider term
and with regard to proof of domestic violence,
explanation II to said Section 3 provides that for
determining whether any act, an omission, commission
or conduct of the respondent constitutes “domestic
violence” under the said Section, the overall facts and
circumstances of the case, shall be taken into
consideration.
[32] It may be recalled that in the present case,
the spouses have brought allegations and counter
allegations against each other and the learned
additional sessions Judge after examining these
allegations and the materials placed before the court by
the contesting spouses set aside the protection order as
against the mother, brother and the sister of the
husband. While affirming the protection order as well as
the monetary relief against the husband, the residence
order for payment of house rent @Rs.2000/- per month
to the wife under Section 19(f) was also set aside by
the learned Additional Sessions Judge by the impugned
judgment.
[33] In gist, the Additional Sessions Judge upheld
the direction of the trial court prohibiting the husband
from committing any kind of domestic violence or
aiding or abetting in the commission of any act of
domestic violence upon the wife and by means of
monetary relief as under Section 20 of the Act, the
order for payment of ₹15,000/- to the wife was also
upheld.
[34] In the instant case, during his crossexamination
before the trial court the husband had
categorically admitted that his monthly salary was
₹49,000/- excluding all deductions. He also admitted
that he gave nothing towards maintenance of his wife
from 13.12.2015. His statement is reproduced as
under:
“At present my gross salary is 49,000/-
excluding deductions. It is true that I have not given
any maintenance to my wife since 13.12.2015.”
[35] Section 20 of the DV Act provides for
payment of monetary relief to the aggrieved person
which reads as under:
“20. Monetary reliefs.—(1) While disposing of an
application under sub-section (1) of section 12,the
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered
by the aggrieved person and any child of the aggrieved
person as a result of the domestic violence and such relief
may include, but not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved
person; and
(d) the maintenance for the aggrieved person as well as
her children, if any, including an order under or in addition
to an order of maintenance under section 125 of the Code
of Criminal Procedure, 1973 (2 of 1974) or any other law
for the time being in force.
(2) The monetary relief granted under this section shall be
adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case
may require.
(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the parties
to the application and to the in charge of the police station
within the local limits of whose jurisdiction the respondent
resides.
(5) The respondent shall pay the monetary relief granted
to the aggrieved person within the period specified in the
order under sub-section (1).
(6) Upon the failure on the part of the respondent to make
payment in terms of the order under sub-section (1), the
Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to
deposit with the court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent,
which amount may be adjusted towards the monetary
relief payable by the respondent.”
[36] Under Section 3 of the DV Act which defines
domestic violence, ‘economic abuse’ is a form of
domestic violence. Clause (iv) of explanation I of
Section 3 relates to ‘economic abuse’ which includes
deprivation of all or any economic financial resources to
which the aggrieved person is entitled under any law or
custom whether payable under an order of a court or
otherwise. The said clause (iv) of the Explanation I of
Section 3 of the DV Act, reads as under:
“(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 5 to,
house hold 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 house hold 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.”
[37] In the present case, obviously the wife is
legally entitled to maintenance allowance from her
husband who is a salaried government employee. She
has made out a good case justifying her separate living.
Admittedly, she is a housewife and she has no source of
earning whereas the husband draws a monthly salary of
₹49,000/- excluding all deductions. In these
circumstances, denial of maintenance allowance to the
wife obviously causes ‘economic abuse’ to her within
the meaning of domestic violence as under Section 3 of
the DV Act. There is, therefore, no infirmity in the
impugned judgment.
[38] In so far as the quantum of monetary relief
is concerned, it is asserted by the husband in his memo
of appeal that the Family Court, Agartala in Misc. case
No. 463 of 2017 also directed the husband to pay
monthly maintenance allowance of ₹6,000/- to his wife
and it has been averted by the husband that the
learned trial court as well as the appellate court
committed error in not taking into account this amount
while determining the amount of monetary relief in the
proceeding under the DV Act. The Apex Court in case of
Rajnesh vs. Neha (supra) has held that maintenance
provided in a previously instituted proceeding can be
adjusted or set off in the subsequent proceeding.
Though the husband has not produced any document
with regard to his averment that there is an order
passed by the Family Court for payment of monthly
maintenance allowance of Rs.6000/- to the wife, such
amount, if any, shall be adjusted towards the said
amount of ₹15,000/- in view of the directions issued by
the Apex Court in the case of Rajnesh vs. Neha(supra).
[39] The husband will, therefore, pay ₹15,000/-
to his wife as monetary relief as directed by the
Additional Sessions Judge by the impugned judgment
w.e.f the date of filing of the petition i.e. from
01.10.2018. The said monetary relief shall be paid by
the husband by depositing the same in her savings
bank account. The learned Judge, Family Court Agartala
will determine the mode of payment of the outstanding
arrear till 31.01.2021 after issuing notice to the parties
and hearing them in person. If the husband fails to pay
the arrear, the same shall be deducted from his salary
and paid to the wife.
[40] Resultantly, the petition stands dismissed.
Interim order with regard to monetary relief,
if any, stands vacated.
Send back the LCR.
Pending application(s), if any, also stands
disposed of.
Copy of this judgment be supplied to the
parties and a copy be sent to Judge, Family Court,
Agartala immediately.
JUDGE
No comments:
Post a Comment