Rajeev Kumar Singh vs State Of U.P. & Another
2015 Latest Caselaw 1832 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 48
 
										AFR
 
Case :- APPLICATION U/S 482 No. - 20661 of 2015
 

 
Applicant :- Rajeev Kumar Singh
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Amarendra Pratap Singh,Triloki Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Manoj Misra, J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The instant application, under Section 482 Cr.P.C., has been filed for setting aside the order dated 16.07.2014 passed by the Additional Chief Judicial Magistrate, Court No.1, Varanasi in Case No.891 of 2013 whereby the learned Magistrate, exercising power under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act), has provided interim maintenance @ Rs.5,000/- p.m. to the opposite party no.2 payable by 10th of each month, with effect from the date of the order. The applicant has also challenged the order dated 08.06.2015 passed by the Additional Sessions Judge, Court No.6, Varanasi in Criminal Appeal No.112 of 2014 by which the appeal of the applicant, under Section 29 of the Act, against the order dated 16.07.2014 has been dismissed.

The facts which could be elicited from the record are that the opposite party no.2 was married to the applicant on 04.03.2009 and, thereafter, they lived together as husband and wife till the year 2013. According to the applicant, the opposite party no.2 was not mentally sound, therefore, initially, a suit was instituted i.e. 777 of 2011 for declaring the marriage void, which was compromised on 11.12.2011 and the opposite party no.2 was brought back to her matrimonial home. Thereafter, according to the applicant, again relations deteriorated resulting in lodging of FIR by the opposite party no.2 in the month of March 2013 against the applicant and his family members under sections 498-A, 323, 324, 506 IPC and sections ¾ D.P. Act at P.S. Shivpur, District Varanasi, in which, upon investigation, charge sheet was submitted though, according to the applicant, the proceedings have been stayed by this court. It is the case of the applicant that being plagued by misbehavior of the opposite party no.2, the applicant instituted a suit for divorce which was decreed ex parte on 23.09.2013. In the meantime, on 23.4.2013, the opposite party no.2 filed application under section 12 of the Act for various reliefs and pending proceeding on the said application, on 14.2.2014, applied under section 23 of the Act for interim protection, on which the impugned orders have been passed.

The submission of the learned counsel for the applicant, inter alia, is that the applicant's suit for divorce against the opposite party no.2 has been decreed and the said decree has still not been set aside by any competent court of law, therefore, the opposite party no.2 no longer remains wife of the applicant and, as such, her application under the Act is not maintainable, hence no interim protection could have been accorded to the opposite party no.2.

Various other factual pleas have also been raised which are not being dealt with keeping in mind that the matter is pending before the court below and dealing with those pleas might affect the proceeding of the court below.

The contention of the learned counsel for the applicant that the application under section 12 of the Act as also for interim protection under section 23 of the Act was not maintainable against the applicant, because she stood divorced from the applicant under a decree, cannot be accepted.

Section 2(a) of the Act defines "aggrieved person" as any women 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. Respondent has been defined in Section 2(q) of the Act as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. Section 2 (f) defines "domestic relationship" as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Section 2 (s) defines "shared household" as 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 whether the respondent or the aggrieved person has any right, title or interest in the shared household.

The use of the words "has been" and the phrases "who have, at any point of time, lived together" or "at any stage has lived in a domestic relationship either singly or along with the respondent" in the definition clauses are of significance which means that even if the woman is not currently enjoying status as a woman married to the respondent, she would nevertheless remain an aggrieved person if she have been subjected to any act of domestic violence while she was in domestic relationship with the respondent.

From above, it is clear that even a divorced wife can set up a claim under the Act as an aggrieved person, provided she alleges that she has been subjected to any act of domestic violence by the respondent while she was in domestic relationship with the respondent. The above view finds support from a decision of the Apex Court in the case of Juveria Abdul Majid Patna VS. Atif Iqbal Mansoori and another (2014) 10 SCC 736.

Domestic Violence has been defined under Section 3 of the Act, as follows:-

"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, 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;

(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."

A perusal of Section 3 would go to show that for the purposes of the Act any act, omission or commission or conduct of the respondent would constitute domestic violence in case it 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.

Sub clause (a) of clause (iv) of Explanation 1 to Section 3 of the Act provides that economic abuse would include 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.

In the instant case it has been alleged by the opposite party no.2 that she was physically assaulted and driven out of her matrimonial home and thereafter was neglected by not providing her maintenance even though the applicant was gainfully employed and she had no source of income. From the allegations it, therefore, appears, at least prima facie, that she was subjected to an act constituting domestic violence while she was in domestic relationship with the respondent (applicant herein) during subsistence of marriage. Accordingly, her application under the Act is maintainable.

As the courts below have recorded prima facie satisfaction that the opposite party no.2 has been subjected to acts constituting domestic violence and has been denied maintenance even though she was not in a position to maintain herself, the interim protection order awarding interim maintenance @ Rs.5000/- p.m. as against applicant's take home income of Rs.20000/- p.m., cannot be said to be arbitrary or in any way punitive to the applicant. This Court is, therefore, of the view that the application of the applicant deserves dismissal and is, accordingly, dismissed with liberty to the applicant to contest the case on merits.

It is made clear that this Court has only expressed its opinion on the maintainability of the application under Section 12 of the Act at the instance of a divorced woman against her husband as also on the justification of the interim protection order but has not expressed any opinion on the merits of the claim of either party, which shall be dealt with by the court below, independent of any observation made by this Court in this order, on the basis of the evidence led before it by the parties.

Considering the facts of the case it is provided that the court below will endeavour to conclude the proceeding on the application of the opposite party no.2, as expeditiously as possible, preferably, within a period of three months from the date of production of certified copy of this order provided the applicant cooperates with the proceeding.

Order Date :- 17.8.2015

AKShukla/-