Perused the judgment and order passed by the learned Judicial Magistrate. He has minutely scrutinized the evidence led by the respondent/wife and observed that whatever the allegations were levelled against the applicant by respondent in her application, she did not deposed on one hand and on the other hand whatever she deposed before the Court was not pleaded. The learned Additional Sessions Judge also affirmed the finding of the trial Court that there was no domestic violence. She is not entitled for monetary relief, house rent, refund of dowry and compensation.{Para 8}
9. The law is well settled that a person having remedies under the various Acts may exercise it independently. The Domestic Violence Act is a law in addition to and not in derogation of the provisions of any other law, for the time being in force. The wife may simultaneously claim the reliefs under Domestic Violence Act as well as under Section 125 of Criminal Procedure Code. The tests to prove the domestic violence and refusal and neglect to maintain are different. There were no provisions in the Domestic Violence Act to test the refusal and neglect to maintain. The concept of domestic violence is specific as provided in D.V. Act. It could not be compared with the concept of Section 125 of Criminal Procedure Code. She never pleaded that the applicant/husband refused and neglected her.
It was not also the issue before the trial Court. Therefore, this Court is of the view that the subordinate appellate Court cannot travel beyond the pleading and the laws involved in the case. Considering the concept of refusal and neglect and granting the maintenance to wife in D.V. Act case is out of jurisdiction and exaggeration. The order of the learned Additional Sessions Judge, Bhokar is illegal, erroneous and improper and liable to be set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.233 OF 2018
Sunil Vs Jayashri
CORAM : S.G. MEHARE, J.
DATED : MARCH 16, 2023
1. Rule. Rule made returnable forthwith and heard finally
with the consent of parties.
2. Heard the respective parties at length.
3. The husband has preferred the revision against the order
of the Additional Sessions Judge, Bhokar in Criminal Appeal No.14 of
2016 dated 06.06.2018.
4. The respondent/wife had filed an application under
Section 12 of the Protection of Women From Domestic Violence Act,
2005 (for short ‘DV Act’) making allegations that the domestic
violence was committed with her. She had made various allegations.
However, the learned Judicial Magistrate considering the material on
record and appreciating the evidence came to the conclusion that
whatever she deposed before the Court was not pleaded in her
application and what she had pleaded, was not deposed before the
Court. However, the learned Additional Sessions Judge, Bhokar
affirmed the finding of the learned Judicial Magistrate First Class for
non-commission of domestic violence, but considered the case as if it
is an application under Section 125 of the Criminal Procedure Code.
He held that the present applicant refused and neglected to maintain
the respondent/wife and granted her the maintenance.
5. Learned counsel for the applicant reading both the
judgments has pointed out that the findings as regards the domestic
violence are consistent. However, the finding recorded by the learned
Additional Sessions Judge, Bhokar that the present applicant refused
and neglected to maintain her is contrary to the law. No such issue
was before the learned Judicial Magistrate. Therefore, he has
committed a grave error of law in considering the provisions of other
law, which were not before the trial Court. Therefore, it is liable to be
set aside.
6. Learned counsel for the respondent/wife would argue
that there was a communication gap between the lawyer and
respondent no.2. The lawyer did not took instructions properly.
However, there was a evidence that she was ill-treated for demand of
dowry for construction of the house. Hence, she was driven away
from her house. This was sufficient to believe that the domestic
violence had been committed with her. However, she did not
preferred the revision before this Court dissatisfied with the impugned
judgments.
7. Domestic violence is sine qua non for the reliefs to be
granted to the aggrieved person under the D.V. Act. The term
‘domestic violence’ has been defined in the said Act. There are various
types of domestic violence i.e. physical, mental, sexual, verbal and
emotional and economic. The burden to prove domestic violence, lies
on the aggrieved person.
8. Perused the judgment and order passed by the learned
Judicial Magistrate. He has minutely scrutinized the evidence led by
the respondent/wife and observed that whatever the allegations were
levelled against the applicant by respondent in her application, she
did not deposed on one hand and on the other hand whatever she
deposed before the Court was not pleaded. The learned Additional
Sessions Judge also affirmed the finding of the trial Court that there
was no domestic violence. She is not entitled for monetary relief,
house rent, refund of dowry and compensation.
9. The law is well settled that a person having remedies
under the various Acts may exercise it independently. The Domestic
Violence Act is a law in addition to and not in derogation of the
provisions of any other law, for the time being in force. The wife may
simultaneously claim the reliefs under Domestic Violence Act as well
as under Section 125 of Criminal Procedure Code. The tests to prove
the domestic violence and refusal and neglect to maintain are
different. There were no provisions in the Domestic Violence Act to
test the refusal and neglect to maintain. The concept of domestic
violence is specific as provided in D.V. Act. It could not be compared
with the concept of Section 125 of Criminal Procedure Code. She
never pleaded that the applicant/husband refused and neglected her.
It was not also the issue before the trial Court. Therefore, this Court
is of the view that the subordinate appellate Court cannot travel
beyond the pleading and the laws involved in the case. Considering
the concept of refusal and neglect and granting the maintenance to
wife in D.V. Act case is out of jurisdiction and exaggeration. The order
of the learned Additional Sessions Judge, Bhokar is illegal, erroneous
and improper and liable to be set aside. Hence, the following order :
ORDER
I) Revision application is allowed.
II) The order passed by the learned Additional Sessions Judge,
Bhokar in Criminal Appeal No.14 of 2016 dated 06.06.2018 is
quashed and set aside.
III) No order as to costs.
IV) Rule is made absolute in above terms.
(S.G. MEHARE, J.)
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