HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL REVISION CASE No.1767 of 2015
ORDER:
This Criminal Revision, under Sections 397 and 401 Cr.P.C., is filed by respondent in D.V.C.No.2 of 2008 on the file of V Metropolitan Magistrate, Anakapalli, and appellant in Crl.A.No.223 of 2013 on the file of VII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam, whereby the Magistrate and Sessions Court passed an order granting various reliefs in a petition filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act'). The Magistrate, having found that respondent herein was subjected to domestic violence, granted relief, under Section 19 (1)(a) of the Act, entitling her to continue to reside in the shared household; maintenance under Section 20 of the Act; and damages for stress and agony faced by her.
Parties hereinafter will be referred to as 'petitioner' and 'respondent' for the purpose of convenience.
The respondent as aggrieved filed petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, claiming various reliefs alleging that the respondent is working as a Grade-II Mechanic in CME Department, Visakhapatnam Port Trust, earning Rs.15,000/- p.m; and, in addition to salary, he own and possessed house No.55, 3rd layout, Sramikasakthi Nagar, 2 China Mushidiwada, Pendurthi, in an extent of 290 sq. yards, fetching Rs.5,000/- p.m. towards rent. The petitioner neglected the aggrieved person, respondent herein, as well as her son without providing daily necessaries and threatened that he would apply long leave or take voluntary retirement and would go abroad leaving them or would kill their son and commit suicide throwing blame on her if she initiates any legal action.
Respondent has no means to maintain herself and her son, whereas petitioner is working in Visakhapatnam Port Trust and earning sufficient income by way of salary besides income from other sources but failed to provide maintenance and subjected to economic abuse and, thereby, claimed maintenance for both respondent Nos.1 and 2 at the rate of Rs.6,000/- p.m. and Rs.4,000/- p.m respectively. Petitioner's father and other relatives instigated him to harass respondent both physically and mentally and, at their advice, he did not pay any amount towards maintenance and her health is deteriorated due to domestic violence. Respondent Nos.1 and 2 were not provided any shelter and drove them out from quarters and locked house No.55, 3rd layout, Sramikashakthi Nagar, China Mushidiwada, Pendurthi. Thereby, she claimed various reliefs viz. protection order, restraining petitioner from further committing domestic violence and alienating assets, operating bank lockers, bank accounts used or held 3 or enjoyed by both parties jointly, including the aggrieved person, without permission of the Court; return of dowry amount, adapaduchu lanchanams, saresamans with interest at the rate of 24% p.a. from the date of marriage till the date of realization; residence order, in favour of respondent, to stay in plot No.55, 3rd layout of Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, Visakhapatnam, restraining petitioner from dispossessing the respondent from the shared household; to provide safety of the respondents by executing bond with or without sureties from preventing commission of domestic violence; pay monetary relief of Rs.2.00 lakhs for the loss suffered by respondents; monthly maintenance of Rs.10,000/- from 24.10.2002 to 07.05.2007 i.e. from the date of petition and future maintenance of Rs.6,000/- and Rs.4,000/- p.m. to the respondent Nos.1 and 2 respectively; and grant Rs.2.00 lakhs for mental torture and emotional distress faced by the respondents in the hands of petitioner.
Petitioner herein (respondent before the V Metropolitan Magistrate, Anakapalli) filed a counter denying material allegations while admitting relationship between the parties. Filing of the present case is a second round of litigation as respondent No.1 had already lodged complaint for the offence under Section 498-A IPC, and respondent No.2 died on 07.12.2009 and the case against respondent Nos.3 to 10 was quashed by this Court in 4 Crl.P.No.5304 of 2009 on 25.07.2010. Petitioner never harassed respondents either physically or mentally and respondent No.1 had not given Rs.2.00 lakhs towards dowry; Rs.41,000/- towards adapaduchu lanchanams and Rs.80,000/- towards saresaman. Petitioner is the absolute owner of plot No.55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, and fetches Rs.5,000/- towards monthly rent and denied borrowing of Rs.3,50,000/- for meeting maintenance by respondent No.1 and not allowing her into the house. Petitioner earlier filed O.P.No.687 of 2005 on the file of Family Court, Visakhapatnam, obtained an order to pay amount of Rs.6,000/- p.m; E.P.No.13 of 2009 was filed for recovery of the said amount; and another E.P.No.10 of 2010 for attachment of arrears to a tune of Rs.85,000/-. At the instance of the employer of petitioner, he as well as respondent joined and resided in port quarters at Saligramapuram where respondent No.1 subjected the petitioner to all sorts of harassment and left the house without intimation and filed a complaint under Section 498-A IPC before the I Additional Chief Metropolitan Magistrate, Visakhapatnam, to which, he filed O.P.No.1398 of 2009 for restitution of conjugal rights. Respondent No.1 is a woman of suspectious nature. Petitioner constructed house at Chinamushidiwada with the amount borrowed from his sister by name A.Neeraja and by obtaining loan 5 from Department and, as he borrowed amount from his sister, he transferred house to his sister. Petitioner also filed G.O.P. No.1207 of 2009 before the Family Court, Visakhapatnam for custody of his son. Respondent Nos.1 and 2 are not entitled to claim any relief as respondent No.1 has been awarded Rs.6,000/- p.m. towards maintenance as per the orders in O.P.No.687 of 2005 and prayed for dismissal of the revision.
During enquiry, PWs.1 to 4 were examined and marked Exs.P.1 to P.9. Respondent examined himself as RW.1 and marked no documents. Upon hearing the arguments, the learned Magistrate, passed an order of protection to respondent No.1 and her son, and directed petitioner not to cause domestic violence under Sections 18 and 19 of the Act; awarded maintenance of Rs.5,000/- (out of which Rs.3,000/- to PW.1 and Rs.2,000/- to her son) from the date of petition i.e. 07.05.2007 under Section 20 of the Act; and compensation of Rs.20,000/- to respondent No.1 towards mental stress and agony under Section 22 of the Act.
Aggrieved by the order passed in DVC.No.2 of 2008 dated 02.08.2013, the petitioner preferred an appeal before the Sessions Court in Crl.A.No.223 of 2013 with Crl.MP.No.492 of 2013. The Sessions Judge, upon hearing the arguments of both counsel, dismissed the appeal having found no merits and confirmed the order dated 6 02.08.2013 passed in D.V.C.No.2 of 2008 by the V Metropolitan Magistrate, Anakapalli.
Being aggrieved thereby, the present Criminal Revision Case is filed mainly on the ground that both the Courts failed to appreciate the evidence in proper perspective and that DVC was filed only to harass the petitioner and to cause metal harassment. It is further contended that the Courts below failed to take into consideration that the petitioner herein and his widowed sister are residing in plot No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, which is the self-acquired property of the petitioner. As there are serious disputes, it is difficult to allow respondent No.1 to stay under one roof with the petitioner. Petitioner also expresses his readiness and willingness to pay rent for alternate accommodation and, therefore, directing the petitioner to allow the respondents to stay in the same premises is not legal and valid. Therefore, passing order, under Section 19(1)(a) of the Act, is illegal.
It is also contended that, despite respondent No.1 obtained an order in O.P.No.687 of 2005 for maintenance at the rate of Rs.6,000/- and, again, claiming maintenance at the rate of Rs.5,000/- in DVC is contrary to law and that there is no justification to grant residence order and prayed to set aside the order of the Magistrate in DVC.No.2 of 2008 7 dated 02.08.2013 as confirmed by the Sessions Court in Crl.A.No.223 of 2013.
During hearing, Sri V.Praveen Kumar, learned counsel for the petitioner, contended that, since there are serious disputes between the petitioner and respondent No.1 herein regarding their marital life, the Magistrate erroneously passed an order under Section 17 of the Act and, if such order is allowed to sustain, it may lead to serious consequences; that apart, awarding maintenance of Rs.5,000/-, in favour of respondent Nos.1 and 2 in addition to maintenance awarded in O.P.No.687 of 2005, is illegal; that the order of residence, under Section 18 of the Act, is contrary to the order under Section 19 (1)(a) of the Act; and prayed to set aside the orders passed by the Courts below. Whereas Sri Gopala Krishna Kalanidhi supported the orders under revision in all respects and prayed to confirm the same.
The jurisdiction of this Court, under Sections 397 and 401 Cr.P.C, is limited and this Court, while exercising power under Sections 397 and 401 Cr.P.C, normally would not interfere with the concurrent fact findings by the Courts below unless the Court finds that there is manifest perversity or apparent error in the fact finding recorded by the Courts below. Therefore, it is for the petitioner to bring to the notice of this Court that there is manifest perversity 8 or apparent error in the fact findings recorded by the Court below.
The first and foremost contention raised by the counsel for the petitioner is that plot No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, is his self-acquired property, whereas he contended before the Magistrate that he constructed house by borrowing amount from his sister and obtaining loan from Department. In view of serious disputes between the petitioner and respondent in relation to matrimonial life, permitting to stay the respondent in the same house with the petitioner may lead to serious consequences and, though the petitioner is ready and willing to pay rent for her separate stay, the order of Magistrate and Sessions Court, under Section 19(1)(a) of the Act, is impermissible under law and prayed to set aside the same. Undisputedly, the Trial Court passed an order under Section 19 (1)(a) of the Act directing the petitioner herein and his relatives not to cause domestic violence and allow her to stay in plot No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy and restrained from obstructing her not to live in the said house (vide para 22, point No.2). In view of the admission made by the petitioner that he is the owner of plot No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, but, in the counter, he admitted that, at the intervention of his employer, there was reunion between the parties and 9 stayed in port quarters at Saligramapuram and petitioner was subjected to harassment by respondent No.1 and she left the house. This fact was not proved by the petitioner herein, however, respondent No.1 contended that they lived together in plot No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy. The Trial Court and Appellate Court, having found that respondent No.1 was subjected to domestic violence, as defined under Section 3 of the Act, concluded that petitioner and respondent No.1 lived together in house No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, and passed an order of restraint, under Section 19(1)(a) of the Act, and the said order though assailed before the Sessions Court, the Sessions Courts confirmed the same.
The word "shared household", as defined under Section 2(s), means a household where the person aggrieved lives or at any stage has lived in a 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 10 whether the respondent or the aggrieved person has any right, title or interest in the shared household.
In view of the wider definition of the word 'shared household', respondent No.1, if proved that she lived either singly or along with the petitioner in domestic relationship, is entitled to claim protection under Section 19(1)(a) of the Act. Here, the evidence of PWs.1 to 4 that respondent No.1 lived, along with the petitioner, and continues to live therein even on the date of filing petition. Therefore, the Trial Court and Appellate Court believed the evidence of PWs.1 to 4 and passed an order under Section 19(1)(a) of the Act and the same was confirmed by the Sessions Court while deciding appeal. The factum of living together is a question of fact. When both the Courts below recorded a concurrent finding that they lived together in house No.11- 55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, it cannot be disturbed while exercising jurisdiction under Sections 397 and 401 Cr.P.C. as nothing has been brought to the notice of this Court that the findings of the Courts below are manifestly perverse or apparently erroneous or based on no evidence. The only contention before this Court in the grounds of revision, is that, in view of serious disputes, respondent Nos.1 and 2 cannot be permitted to stay in house No.11-55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, and no other ground is raised disputing stay of respondent Nos.1 and 2 in the 11 shared household as defined under Section 2(s) of the Act. Therefore, the disputes that arose between the parties is not a ground to deny the relief under Section 18 of the Act.
The Apex Court, in S.R.Batra v. Smt Taruna Batra1, had an occasion to define the word 'shared household' keeping in mind the definition of Section 2(s) of the Act and, observed that, it is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation is accepted, all these houses of the husband's relatives will be shared household and the wife can as well insist to live in all the houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Therefore, interpreting the word 'shared household' with reference to Section 19(1)(f) of the Act, and claiming alternative accommodation can only be made against the husband and not other in-laws relatives. The Supreme Court expressed opinion that the wife is entitled to claim right to residence in a shared household, and `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 neither belonged to Amit Batra nor 1 AIR 2007 SC 1118 12 was it taken on rent by him nor was it a joint family property of which the husband Amit Batra is a member; that it is the exclusive property of mother of Amit Batra; and, therefore, it cannot be called a `shared household'. In view of the observations made in para 20 of the judgment, the house, where wife and husband lived together either belonging to any of them or belonging to joint family or husband is having share in it, alone shall be taken as 'shared household'.
In the present facts of the case, it is admitted fact that house No.55, Shramikshakthi Nagar, China Mushidiwada, Pendurthi, was constructed by the petitioner and respondent No.1 and they lived together in domestic relationship and she is entitled to continue to live in the shared household in view of Section 17 of the Act. Section 17 of the Act contemplates that every woman in a domestic relationship shall have right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. Here, respondent No.1 lived, along with the petitioner, in domestic relationship in house No.55, Shramikshakthi Nagar, China Mushidiwada, Pendurthi, and the said fact was accepted by the Magistrate and Sessions Court and not even questioned such finding in any of the grounds of appeal. Therefore, in view of Clause 2 of Section 17, the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the 13 petitioner - husband. Respondent No.1 asserted that she continues to live in the house belonging to the petitioner house No.55, Shramikshakthi Nagar, China Mushidiwada, Pendurthi, and shall not be evicted or excluded from the shared household except by following due process of law. Therefore, the restraint order passed by the Magistrate and confirmed by the Sessions Court, under Section 19(1)(a) of the Act, in favour of respondent Nos.1 and 2 and against petitioner from dispossessing or evicting or excluding shared household No.55, Shramikshakthi Nagar, China Mushidiwada, Pendurthi, is in accordance with law.
It is the specific contention that the petitioner is willing to pay rent for her residence and there is no possibility of living together under one roof in view of serious disputes. The order, under Section 19(1)(a) of the Act, to reside in a shared household is totally distinct from the order under Section 19, residence order. But, in the present facts of the case, though respondent No.1 claimed various reliefs including residence order under Section 19, and right to reside in a shared household under Section 17, the Magistrate passed an order under Section 17 while denying residence order under Section 19 of the Act. If the Magistrate Court and Sessions Court passed a residence order under Section 19, payment of rent may be one of the reasons to deny right to reside in a shared household under Section 17. According to Section 19(1)(f) of the Act, the 14 Magistrate may direct the husband to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require. Thus, both Section 17 and Section 19 of the Act must be read together. Section 19(1)(a) of the Act enables the Magistrate to restrain the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has legal or equitable interest in the shared household. While deciding an application under Section 12(1) of the Act, the Magistrate passed the order under Section 19(1)(a) of the Act. But, in view of the serious disputes between the petitioner and respondent No.1 regarding their matrimonial relationship, the Magistrate ought to have exercised his power under Section 19(3) of the Act with condition to execute bond if the circumstances so require. The Act did not enumerate any circumstances under which the Magistrate can exercise power under Section 19(3) of the Act but it varies from case to case.
In the present facts of the case, respondent No.1 lodged a complaint for the offence punishable under Section 498-A IPC and earlier when O.P.No.687 of 2005 was pending before the Family Court, Visakhapatnam, she obtained an order of maintenance and filed E.P. one after another for realization of various amounts in O.P. All these 15 circumstances clinchingly establish that there is bitter enmity between the petitioner and respondent No.1. It is difficult to live together under one roof. If the court passed an order, it may lead to serious consequences of filing cases against one another or sometimes it may lead to serious disputes of causing physical injury or bloodshed. To avoid such consequences, it is appropriate to pass an order under Section 19(1)(f) of the Act, read with Sub-section 3 of the Act directing the petitioner to provide same level of alternate accommodation to respondent Nos.1 and 2 as enjoyed by them in the share household in house.55, Shramikshakthi Nagar, China Mushidiwada, Pendurthi, or pay rent for the same. Though the Trial Court passed such an order, the Appellate Court did not appreciate the contention with reference to the provisions of the Act and committed an error in confirming the order passed by the Court.
The Supreme Court in Samir Vidyasagar Bhardwaj v. Nandita Samir Bhardwaj (C.A.No.6450 of 2017), while considering Section 19(1)(b) of the Act, directed to secure alterate accommodation for the aggrieved party and pay rent for the same and restrained the respondent from or renouncing property rights or valuable security of the aggrieved party. Since the Courts below passed an order under Section 19(1) of the Act, the same principle can be applied to the present facts of the case. Therefore, both the 16 Courts committed an error in passing an order under Section 19(1)(a) of the Act without considering serious disputes between the petitioner and respondent No.1.
Having considered facts and circumstances of the case, I find this is a fit case to set aside the restraint order passed under Section 19(1)(a) of the Act while directing petitioner to secure alternate accommodation of the same level for the aggrieved person as enjoyed in the shared house hold or pay rent for the same and to execute bond with or without surety for preventing commission of domestic violence and, accordingly, the order passed by the Magistrate and confirmed by the Appellate Court is modified.
The second contention urged before this Court is that though respondent No.1 obtained an order in O.P.No.687 of 2005 on the file of Family Court, Visakhapatnam for maintenance at the rate of Rs.6,000/- p.m, she claimed monetary relief under Section 20(1)(d) of the Act i.e. maintenance on the ground of refusal and neglect to maintain her.
'Economic abuse' is defined under Section 3(iv) of the Act. The word 'domestic violence' though defined under Section 1(f), it is amplified under Section 3 which includes various types of abuses. Explanation 1 of Section 3 enumerates such of those abuses viz.(i) physical abuse; (ii) sexual abuse (iii) verbal and emotional abuse; and 17
(iv) economic abuse. This Court is concerned with 'Economic abuse'. Earlier, in O.P.No.687 of 2005 on the file of Family Court, Visakhapatnam, it was established that the petitioner herein failed to provide necessary maintenance. According to clause (iv), of Explanation I of Section 3, 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, household 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 household and maintenance. Therefore, failure to provide maintenance also amounts to 'economic abuse'. Therefore, failure to provide maintenance would mean subjecting respondent No.1 to domestic violence. According to clause
(d) of Section 20, while disposing 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 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 Cr.P.C. or any other law for the time 18 being in force. Therefore, clause (d), of Section 20 of the Act, manifestly envisages to award maintenance in addition to an order of maintenance under Section 125 Cr.P.C. There is no fetter on the power of the Magistrate to pass the order. The Magistrate has to take into consideration the relevant circumstances which means standard of living; maintenance awarded under Section 125 or under any other Act for the time being in force; and the cost of living as on the date of deciding petition. According to the allegations made in the petition, the petitioner herein was drawing Rs.15,000/- as salary. Hence the petitioner's salaried income was not disputed while denying that he is not receiving any amount from any other sources. Therefore, it is proved that the petitioner is receiving Rs.15,000/- as salary. In such case, the income of the petitioner alone shall be taken while fixing maintenance. If salary alone is taken into consideration, granting maintenance at Rs.5,000/- p.m. to respondent Nos.1 and 2, in addition to maintenance awarded in O.P.No.687 of 2005 on the file of Family Court, Visakhapatnam, is unreasonable and exorbitant and it will be more than 3/4th of the salary received by the petitioner. Therefore, granting maintenance at the rate of Rs.5,000/- to respondent Nos.1 and 2 (i.e. Rs.3,000/- and Rs.2,000/- respectively) is excessive and unreasonable. In view of the maintenance already awarded by the Family Court, Visakhapatnam and, 19 taking into consideration the facts and circumstances, including the income of the husband, standard of living, and the house enjoyed by respondent No.1 while living in shared household in domestic relationship, an amount of Rs.1,000/- is awarded as maintenance to respondent No.1 in addition to maintenance awarded in O.P.No.687 of 2005 while maintaining maintenance at the rate of Rs.2,000/- p.m. to respondent No.2. Hence, the order under Section 20(1)(d) of the Act passed by the Magistrate and confirmed in the Sessions Court, is modified awarding maintenance at the rate of Rs.1,000/- p.m. to respondent No.1 and Rs.2,000/- to respondent No.2 in addition to maintenance awarded in O.P.No.687 of 2005 by the Family Court, Visakhapatnam.
The Magistrate awarded damages in the form of compensation at Rs.20,000/- to respondent No.1 in terms of Section 22 of the Act for mental stress and agony. This was not specifically challenged in the revision in any of the ground or during arguments. In the absence of specific ground raised in the grounds of revision or urged during hearing, this Court, exercising power of revision under Section 397 Cr.P.C, shall not disturb such findings. Therefore, I find no ground to reverse or set aside the order passed by the Magistrate and Sessions Judge under Section 22 of the Act awarding damages by way of compensation of Rs.20,000/-
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In view of my foregoing discussion, the order passed by the Magistrate and confirmed by the Appellate Court is modified directing the petitioner to secure alternate accommodation of the same level for the aggrieved person as enjoyed in the shared house hold or pay rent for the same and to execute bond with or without surety for preventing commission of domestic violence.
The Criminal Revision Case is disposed of to the extent indicated above.
Miscellaneous petitions pending, if any, shall stand dismissed.
M.SATYANARAYANA MURTHY,J
Date: .11.2017
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