Bombay High Court
XXX And Ors vs ABC And Anr on 2 March, 2016
Bench: Dr. Shalini Phansalkar-Joshi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.647 OF 2016
1. "XXX" ]
Aged 33 years, Occ.: Business, ]
R/at 4-1-316, Residency Road, ]
Bank Street, Koti, Hyderabad-500001. ]
]
2. "YYY" ]
Aged 68 years, Occ.: Business, ]
R/at 4-1-316, Residency Road, ]
Bank Street, Koti, Hyderabad-500001. ]
]
3. "ZZZ" ]
Age 60 years, Occ.: Business, ]
R/at 4-1-316, Residency Road, ]
Bank Street, Koti, Hyderabad-500001. ] ......Petitioners
Versus
1. "ABC" ]
w/o. "XXX" ]
Aged 28 years, Occ.: Business, ]
R/at House No.17, Lawrence Colony, ]
BT Kawade Road, Hadapsar, ]
Pune - 411 013. ]
]
2. State of Maharashtra ] ...... Respondents
Mr. Sanjay Bhojwani for the Petitioners
Ms. Flavia Agnes for Respondent No.1.
Mr. A.S.Shitole, APP, for Respondent No.2 - State.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 2ND MARCH 2016.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith, by consent. Heard learned
counsel for both the parties and the learned A.P.P.
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2. This Writ Petition is preferred by the husband and in-laws, Original
Respondent Nos.1 to 3 in Criminal Miscellaneous Application No.731 of
2015 for quashing the proceedings initiated against them by Respondent
No.1 herein in the Court of Judicial Magistrate, Cantonment Court, Pune,
under the provisions of Section 12 of Protection of Women from Domestic
Violence Act, 2005, (hereinafter referred to as "the D.V. Act").
3. Facts of the Petition can be stated as follows :-
Respondent No.1 is the wife of Petitioner No.1, their marriage
having been solemnized on 18.02.2012 at St. Patrick's Cathedral, Pune.
Petitioner Nos.2 & 3 are the parents of Petitioner No.1. After marriage,
they were residing together for some days at Hyderabad. Thereafter,
since last about one and half year, to be precise from 1 st July 2015,
Respondent No.1 is residing at her maternal home in Pune along with her
minor daughter Alyssa, born on 6th August 2013. Respondent No.1 herein
had, thereafter, filed Misc. Cri. Appln.No.731 of 2015 before the trial Court
under Section 12 of the D.V. Act, in which she has described in detail her
marital life and the various incidents and the acts which had, according to
her, compelled her to reside separately from the present Petitioners.
4. In the said Application, which is running into about more than 30
paragraphs and several pages, she has sought various reliefs, like the
protection order under Section 18 of the D.V.Act restraining the present
Petitioners from subjecting her to domestic violence and also for
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restraining present Petitioner No.1 from alienating or creating third party
interests in the various properties owned by him. She has also sought
the relief under Section 19 of the D.V. Act directing Petitioner No.1 to
provide separate accommodation in the vicinity of her parent's house at
Pune for her and the child to stay in. She has further sought relief under
Section 20 of the D.V. Act directing Petitioner No.1 to pay a sum of
Rs.1,50,000/- per month by way of maintenance to her and her daughter
from the date of the Application. She has also sought the relief that she
may be allowed to retain custody of her daughter. The said relief was
sought as per the provisions of Section 21 of the D.V.Act. Ultimately, she
has sought direction to Petitioner No.1 to pay her Rs.50,00,000/- towards
compensation for the mental torture and emotional stress caused to her
by the various acts of domestic violence committed on her by the
Petitioners.
5. Along with the main Application, she had filed an Application under
Section 22 of the D.V. Act seeking the relief directing the present
Petitioner No.1 to pay an amount of Rs.50,00,000/- towards
compensation and interim order to that effect during the pendency of the
main Application.
6. Further, she had also filed an Application under Section 23 of the
D.V.Act for interim reliefs which she has claimed as follows :-
"(a) The Respondent No.1 may be directed not to dispose of
any of his assets or his interest in any of the business,
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including but not limited to (a) the Bungalow Property on
Abids Road, Gun Foundry, Basheer Bagh, Hyderabad,
Telengana 500 001, which he jointly owns with his sisters
Nisha and Shaila, and (b) the house at 4-1-316,
Residency Road, Bank Street, Hyderabad 500 001,
which he jointly owns with Respondent No 2 and 3; the
business properties (c) P J Enterprises, 114/B Shop No
66, Ram Nagar, Dr.B.A.Road, Opp Rani Baug, Behind
Pingara Restaurant, Byculla (East), Mumbai 400 027, (d)
factory viz. JJ Pvt. Ltd., Plot No A-20, Road No 9,
Nacharam, Near Industrial Development Authority,
Hyderabad - 500 001, and (e) office of JJ Pvt. Ltd., 4-1-
324, Residency Road, Troop Bazaar, Koti, Hyderabad,
Teleangana 500 001; (f) the cars owned by the
Respondents at present: Mercedes (purchased in 2014
2015), Honda Civic, 8 seater Innova, Corolla, Hyundai I
10 Automatic, Maruti 800, and Tata Nano; (g) the
jewellery/ornaments of the Applicant and her streedhan
properties; one gold and diamond engagement ring
worth approximately Rs.4.5 lacks, one silver and
diamond ring worth approximately Rs.70,000/- and one
gold wedding band worth approximately Rs.15,000/-; and
(h) jewellery items gifted to the daughter;
(b) The Respondent No 1 may kindly be directed to provide
to the Applicant a three BHK fully air-conditioned Flat in
the vicinity of her parents at Pune for her and the child to
stay in,
(c) Respondent No.1 may kindly be directed to pay a sum of
Rs.1,50,000/- (Rupees One Lac Fifty Thousand Only)
per month to the Applicant by way of maintenance for her
and the daughter, from the date of the present
application,
(d) The Applicant may be allowed to retain the custody of the
minor daughter namely Alyssa with her,
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(e) The Respondent may kindly be directed to pay an
amount of Rs.50,00,000/- (Rupees Fifty Lacs Only) or
such amount that may be decided by this Hon'ble Court
towards interim compensation in respect of mental
torture and emotional stress caused by the acts of
domestic violence committed by the Respondents,
(f) Any other just and suitable order in the interest of justice
may kindly be passed."
7. On the main Application filed before the trial Court, the trial Court
was pleased to pass an order as follows :-
"(1) Heard learned advocate of the applicant. Perused
application and the documents.
(2) The application prima facie discloses that, the
applicant was subjected to Domestic violence by the
non applicants.
(3) Issue notice to the non-applicants.
(4) Call for Domestic Incident report from the concerned
protection officer on or before 15/09/2015."
8. Whereas on the interim application, the trial Court was pleased to
pass an order as under :-
"The applicant is praying for ad interim injunction
restraining the respondents from alienating or creating
Third party interest on property and share of the
respondents but there is no documents on record to
show the ownership as alleged by the applicant.
Moreover, there appears no extra ordinary
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circumstances compelling to pass ad-interim order
against the respondents. Hence, it will be legal and
proper to issue notice to the respondents. Hence the
order.
Issue notice to the respondents as to why interim
prayers should not be granted as prayed. Emergency
process allowed, if any."
9. While challenging these orders and the initiation of these
proceedings against the Petitioners by the trial Court under various
provisions of the D.V. Act, submission of the learned counsel for the
Petitioners is that, the impugned orders passed by the learned Magistrate
are mechanical and stereo-typed as even bare perusal of the allegations
made in the application filed before the trial Court under Section 12 of the
D.V.Act does not make out any prima facie case of the domestic violence.
It is urged that Respondent No.1 has hardly stayed in the house of
Petitioners. Mos of the part of her marital life, she has stayed in the house
of her parents at Pune. Learned counsel for the Petitioners has read ad-
verbatum various paras in the said Application and urged that at the most
the allegations of domestic violence are against the Petitioner No.3, the
mother-in-law, but even those allegations are also vague, general and
omnibus in nature. They fail to make out any sort of cruelty, harassment
or mental torture to the Respondent No.1. It is urged that on the basis of
such general and vague allegations made against the Petitioner No.3
alone, the trial Court should not have initiated the proceedings.
10. Further, it is urged that as regards the Petitioner Nos.1 and 2, there
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are absolutely no allegations of, either the domestic violence or
harassment or cruelty. Therefore, in sofar as the Petitioner Nos.1 & 2 are
concerned, it is clearly an abuse of the process of the Court to call upon
them and also the Petitioner No.3 to undergo the entire ordeal of the
court proceedings under the D.V. Act.
11. It is further urged that the Petitioner No.1 has already filed a
Petition for divorce in the Family Court at Hyderabad. Therefore, if at all,
the Respondent No.1 wants to claim any relief of maintenance, which is
the main relief she is claiming in these proceedings, she could claim that
relief in the proceedings pending before the Family Court.
12. It is further urged that in the present proceedings, she is not at all
claiming even the interim relief of protection order for the alleged acts of
domestic violence. It clearly implies and indicates that she was never
subjected to any sort of domestic violence. All the reliefs claimed in the
present case are only of monetary nature. She is either claiming to
restrain the Petitioners from alienating their properties which is also again
an interim relief claimed by her or she is claiming the relief of
maintenance and compensation which are again in the nature of
monetary claims. The applications filed before the Trial court are thus
clearly an attempt to extract exorbitant monies from the Petitioners and
thus a blatant abuse of the process of law.
13. As to her relief for separate accommodation, it is submitted that she
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is already having such accommodation. It is urged that the Respondent
No.1 is also having her own source of income. She is an earning lady and
therefore, in the first place, she cannot be entitled for any monetary relief
of maintenance and if she is entitled as such, she could apply for the
same in the proceedings before the Family Court. As regards
maintenance to the child, it is submitted that the Petitioner No.1 is ready
to pay certain amount for maintenance of the child despite the fact that
the Petitioner No.1 is not given any access to the child though he has
made efforts to that effect.
14. Thus, according to learned counsel for the Petitioners, when the
averments made in the application filed before the trial Court, even if
taken at their face value to be true, they are not making out any case for
the issuance of any order under the provisions of the D.V. Act. Therefore,
the proceedings initiated against the Petitioners are required to be
quashed & set aside. An attempt is also made to submit that the alleged
acts of domestic violence quoted and the averments made in the
applications, even if remain uncontroverted, they do not spell out or make
out the case of domestic violence.
15. Learned counsel for the Petitioners has in support of his
submissions relied upon two authorities of the Apex Court to urge that
even when some serious allegations than the allegations made in the
present Complaint of the Respondent No.1 were made, the Apex Court
thought it fit to quash the process issued against the accused under
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Section 498A of the Indian Penal Code. Thus, in sum and substance,
submission of learned counsel for Petitioners is that this is a fit case
where the process or notice issued to the Petitioners on the Application
given by the Respondent No.1 before the trial Court, seeking various
reliefs under the D.V. Act, is required to be quashed and set aside.
16. Per contra, learned counsel for Respondent No.1, at the outset
itself, has taken serious objection to the maintainability of this Petition by
submitting that the proceedings under the D.V.Act are not the
proceedings for criminal prosecution. The reliefs which are given and
claimed under the said Act are of Civil nature, that of maintenance,
compensation, residence order and at the most, the protection order from
the domestic violence. Here, in the present case, according to learned
counsel for Respondent No.1, therefore, there is no question of quashing
any process or proceedings at the threshold itself, without extending an
opportunity to the Respondent No.1 to substantiate and prove the
allegations which she has made in her Complaint/Application before the
trial Court.
17. Further, it is urged by learned counsel for Respondent No.1 that the
learned counsel for the Petitioners has read only selected or chosen
paragraphs in the said Complaint/Application whereas perusal of the
application in its entirety clearly makes out the case of of mental torture,
economic, verbal, emotional and various other forms of domestic violence
which are covered under the provisions of the D.V. Act. Learned counsel
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for the Respondent No.1 has also referred to those contents in the
Complaint/Application pointing out to the humiliation, insult and
emotional torture to which the Respondent No.1 was subjected, not only
at the hands of the Petitioner No.3 against whom the allegations are
made in detail but even as regards the Petitioner Nos.1 & 2. It is urged
that the act of the Petitioner No.1 of not caring for Respondent No.1 or
their child; not providing any sort of maintenance or any economic
assistance to them, even when they are residing separately since last
about more than a year, clearly amounts to economic abuse, which is
also covered under the definition of the D.V.Act.
18. Lastly, it is urged by learned counsel for Respondent No.1 that
some opportunity is required to be given to Respondent No.1 to prove the
allegations and also to prove that these allegations are falling within the
definition of "domestic violence".
19. Ultimately, it is submitted that, whether Respondent No.1 is
claiming the monetary relief or other reliefs, it is her choice as to which
forum she should approach. Petitioners or even this Court cannot dictate
to her that she should seek those reliefs only in the Family Court or in any
other alternate forum. When the legal remedy is provided to her under the
D.V. Act, she is fully entitled and justified in seeking that remedy. This
Court cannot shut her out by closing the doors of the Court on the ground
that she can seek those monetary reliefs in the proceedings before the
Family Court.
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20. Thus, according to learned counsel for the Respondent No.1, this
entire Writ Petition is totally misconceived in the sense that the provisions
of the D.V. Act do cover wide range of domestic acts of abuse and
harassment than those contemplated in the criminal prosecution like for
the offence punishable under Section 498A of the Indian Penal Code.
Moreover, according to her, in criminal prosecution, the offence has to be
proved beyond reasonable doubt whereas the proceedings under D.V.
Act, being of Civil nature, providing for various Civil remedies, the
Respondent No.1 can prove her case even on preponderance of
probabilities. This distinction in the standard of proof is required to be
borne in mind, coupled with the very object and spirit of the Domestic
Violence Act. Thus, according to learned counsel for Respondent No.1,
this Writ Petition, being devoid of any merit needs to be dismissed.
21. In my considered opinion, as, both, Learned counsel for the
Petitioners and the Respondent No.1 have heavily relied upon the
provisions of the Protection of Women from Domestic Violence Act, 2005,
it would be useful to take a bird's eye view of the various provisions of
the D.V. Act, including the very Object and Reasons of the said Act and
also to look into the definition of the Domestic Violence and the nature of
the remedies provided in the Act.
22. The Preamble of the Act, which succinctly contains the object of the
Act, states that this is an Act to provide for more effective protection of
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the rights of women guaranteed under the Constitution, who are victims
of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto.
23. In the Statement of Objects and Reasons, it is laid down that,
(1) Domestic violence is undoubtedly a human rights issue and
serious deterrent to development of women. The Vienna
Accord of 1994 and the Beijing Declaration and the Platform
for Action (1995) have acknowledged this. The United
Nations Committee on Convention on Elimination of All
Forms of Discrimination Against Women (CEDAW) in its
General Recommendation No.XII (1989) has recommended
that State parties should act to protect women against
violence of any kind especially that occurring within the
family.
(2) The phenomenon of domestic violence is widely prevalent
but has remained largely invisible in the public domain.
Presently, where a woman is subjected to cruelty by her
husband or his relatives, it is an offence under section 498-
A of the Indian Penal Code. The civil law does not however
address this phenomenon in its entirety.
(3) It is, therefore, proposed to enact a law keeping in view the
rights guaranteed under Articles 14, 15 and 21 of the
Constitution to provide for a remedy under the civil law
which is intended to protect the women from being victims
of domestic violence and to prevent the occurrence of
domestic violence in the society.
24. Thus, even a cursory glance to the first 3 Clauses of the Statement
of Objects and Reasons of the D.V. Act makes it clear that the aim and
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object of the Act is to provide for a remedy under the civil law to the
woman, who is subjected to domestic violence. The object of the Act is,
therefore, not to punish the offender, who may be a husband or in-laws,
but to protect the aggrieved woman and her rights by giving her some
remedies under civil law.
25. In further Objects and Reasons, the Act seeks to provide for the
rights of woman to secure housing; to reside in her matrimonial home or
shared household. The further aim and object of the Act is laid down to
empower the Magistrate to pass protection orders in favour of the
aggrieved person to prevent the respondent from aiding or committing an
act of domestic violence. The Act also aims to provide for appointment of
Protection Officers and registration of NGOs as service providers for
providing assistance to the aggrieved person for achieving her rights, as
provided under the Act, with an object to achieve to all these aims.
26. The beauty of the Act lies in its definition of "Domestic Violence",
which has been defined in the most widest possible terms to include not
only the physical abuse but also all sorts of actual acts, like mental
torture, sexual, verbal, emotional or economic abuse and even the threat
and apprehension thereof.
27. Section 3 of the Act defines the domestic violence as follows :-
"3. Definition of domestic violence.- For the purposes
of this Act, any act, omission or commission or
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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."
28. Explanations I and II to Section 3 further elaborates as to what is
physical, emotional, economic or verbal abuse. They are as under :
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;
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(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
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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.
29. Thus, even a cursory glance to this definition of domestic violence
is sufficient to know that it covers not only physical abuse, meaning
thereby acts constituting danger to life, bodily pain, harm or something
injurious to the health and development of a woman, but also covers
insults, ridicule, humiliation, name calling, which are termed as verbal and
emotional abuse. It also covers economic abuse, that of deprivation of all
or any economic or financial resources. Thus, 'Domestic Violence' which
is defined under this Act, is not limited to the physical harassment or
physical violence but it also extends much beyond that and it is with an
intention to secure her right to live with dignity, which is guaranteed under
Article 21 of the Constitution of India, as fundamental right.
30. In consonance with its aim and object, the remedies, therefore,
which are provided to the aggrieved woman, who is defined to mean a
woman subjected to any act of domestic violence, are also of civil nature.
Under Section 12 of the Act, an aggrieved woman or a person can make
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an application seeking various reliefs which are laid down therein,
including 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. Section 17 provides a remedy to
secure her right to reside in the shared household and empowers the
Magistrate to pass the order to protect her from eviction and exclusion
from the shared household or any part of it, save in accordance with the
procedure established by law. Thus, Section 17 protects her right to
residence in shared household whether or not she has any right, title or
beneficial interest in the same, whereas, Section 18 empowers the
Magistrate to pass the protection orders in favour of the aggrieved
woman, for prohibiting the respondent from committing any act of
domestic violence, as defined in Section 3 or aiding or abetting the
commission of the acts of domestic violence. It also empowers the
Magistrate under Clause 18(e) to prohibit the respondent from alienating
any assets by laying down that;
18. Protection orders.--
The Magistrate may, after giving the aggrieved person and
the respondent an opportunity of being heard and on being
prima facie satisfied that domestic violence has taken place
or is likely to take place, pass a protection order in favour of
the aggrieved person and prohibit the respondent from--
(a) ...........................................................................................
(b) ...........................................................................................
(c) ...........................................................................................
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(d) ...........................................................................................
(e) alienating any assets, operating bank lockers or bank
accounts used or held or enjoyed by both the parties,
jointly by the aggrieved person and the respondent or
singly by the respondent, including her stridhan or any
other property held either jointly by the parties or
separately by them without the leave of the Magistrate;
(f) ...........................................................................................
(g) ...........................................................................................
31. As per Section 19 of the Act, the Magistrate, on being satisfied that
domestic violence has taken place, may pass a residence order
restraining the respondent from dispossessing her from the shared
household or disturbing her possession therein. It also gives discretion to
the Magistrate to direct the respondent to remove himself from the shared
household and further restrain the respondent from alienating or
disposing off the shared household. Section 19(f) further provides that
Magistrate may direct the respondent to secure same level of alternate
accommodation to her, as enjoyed by her in the shared household or pay
rent for the same, if the circumstances so require.
32. Section 20 then deals with the monetary reliefs which are given to
aggrieved woman under the Act, like directing the respondent to pay for
the loss of earnings, the medical expenses, the loss caused due to the
destruction, damage or removal of any property from the control of the
aggrieved woman and for the maintenance to the aggrieved woman as
well as her children. Section 21 protects her custody rights over the
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children whereas Section 22 deals with the compensation orders which
Magistrate may pass on her Application directing the respondent to pay
compensation and damages for the injuries, including mental torture and
emotional distress, caused by the acts of domestic violence committed by
the respondent.
33. Section 23 empowers the Magistrate to grant interim and ex parte
orders as deemed just and proper, on being satisfied that application
prima facie discloses that respondent is committing or has committed or
there is likelihood of his committing an act of domestic violence.
34. Thus, the perusal of the provisions of the D.V. Act makes it amply
clear that this legislation aims to protect in all possible ways the rights of
the woman, who alleges or claims that she is subjected or likely to be
subjected to the acts of domestic violence, as defined under Section 3 of
the Act and as stated above, Section 3 of the Act covers all sort of abuse;
physical, mental, sexual, emotional, verbal, and economic.
35. In the light of these provisions of the Act, one has to appreciate the
allegations made in the Complaint/Application filed by the Respondent
No.1 before the trial Court to know whether she has made out any prima
facie case.
36. At the outset itself it has to be stated that to call her application filed
under Section12 of the Act as a complaint may be misnomer as it is an
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application seeking various civil remedies provided to her under the Act. It
is a civil proceeding, though filed in the Court of the Magistrate dealing
with criminal cases. Hence, there cannot be a question of quashing the
process or proceedings as such.
37. Coming to the Contents Application, in para 1, Respondent No.1
has stated about her marriage and relationship with the present
Petitioners. In para 2 of the Application, she has stated that the present
Petitioners have treated her with utmost physical as well as mental and
matrimonial cruelty right from the very beginning of the marriage. She has
further stated that the entire expenses of the marriage were borne by her
parents. The present Petitioners refused to contribute or share any
expenses stating that they did not need to do so as they would look after
the Respondent No.1 for the rest of her life. Then she has also
elaborately stated as to how she had to leave her studies in the USA to
get married on the ground that she did not need to work. However, after
the marriage, Petitioner No.1 refused to help Respondent No.1 to repay
the student loan and to pay her LIC premiums and instead he told her to
get her father to pay the premiums and student loan.
38. In para 3 of her application, she has stated as to how the present
Petitioner No.3 ridiculed her when she made enquiry with her about a
beauty parlour. In para 4 of the Application, she has stated that there was
a separate menu for Petitioner No.1 which she was prevented from eating
and how Petitioner No.3 ordered that she should eat vegetarian food only.
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In para 5 of the Application, she has stated that the Petitioner No.3 asked
her what her parents had given her as dowry; when she told that her
parents had given her a studio apartment, Petitioner No.3 told her to ask
her parents to get it up-graded to one or two bed room apartment.
Further, she has stated that the Petitioner No.3 warned her not to touch
the fridge which was given to Petitioner No.3 by her parents. She has
also stated that she was not overweight nor had any medical problem but
Petitioner No.3 used to compel her to have vegetarian food only.
39. In para 5 of the Application, she has further stated that Petitioner
Nos.2 and 3 used to insult her by saying that the honeymoon phase of
her and Petitioner No.1 was over and so they need to wake up by specific
time in the morning. She has also stated as to how she and the Petitioner
No.1 were not allowed to lock the room from inside and the Petitioner
No.3 would barge into their room unannounced.
40. In para 6 of the Application, the Respondent No.1 has stated how
Petitioner No.3 used to insult her by stating that what she was bringing for
the Petitioner No.1 to wear, did not look nice on him and thus, Petitioner
No.3 used to insult and mentally harass her for everything and Petitioner
No.1 used to support Petitioner No.3. She has also narrated the incident
as to when she had prepared brownies for desserts and when the guests
complimented Respondent No.1, Petitioner No.3 stated that the maid had
prepared the brownies. In this para, Respondent No.1 has also stated
that when she was bedridden with gastroenteritis, Petitioner No.3 neither
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provided any medical help to her, nor offered any different meal for her,
considering that she could not eat a regular diet. In para 7 of the
Application, she has stated about how she was compelled to sit by the
pool even though she was not keeping well on that particular day.
41. In para 8 of the Application, she has stated that Petitioner No.3 told
her to stop her various classes of cooking and foreign language on the
ground that it was wasting fuel to travel to the classes everyday. In para 9
of the Application, she has stated about the incident which had happened
while they were staying at Taj-Fort Aguada at Goa where even Petitioner
No.2 and her father had to intervene and in their presence she narrated
about the interference of Petitioner No.3 in her personal affairs and the
insults she had been suffering in the house.
42. In para 11 of the Application, she has disclosed about how the
Petitioner No.1 became very secretive and refused to share details of the
business or his finances with her. She has also stated about the incident
that has happened in the 2nd week of October, 2012 when Petitioner No.3
continued her harassment by insulting her on the ground that the
Petitioner No.1 was treating Petitioner Nos.2 and 3 badly and he had
never behaved like this before the marriage; therefore, Respondent No.1
is a burden for the family. She has also averred that Petitioner No.3 used
to taunt her by saying that Petitioner No.1 had better proposals than the
Respondent No.1, the girls who were more educated, wealthy and slim. In
para 12 of the Application, she has stated about her pregnancy and
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Petitioner No.3 continuously asking her to get a sonography done to
determine sex of the foetus. She has stated in this para that during her
pregnancy, she had to look after herself; the Petitioner No.1 did not
support her though she was advised bed rest, none of the Petitioners
offered her any food or help; instead she was told to prepare her own
meals. As a result of it, she was undernourished and therefore, was put
on saline when she came to Pune to stay with her parents.
43. In para 13 of the Application, Respondent No.1 has stated about
the incident in April, 2013 when she was criticized by Petitioner No.3 on
her sense of dressing and humiliated and embarrassed by alleging that
she was not well turned up for meeting with the sister of the Petitioner
No.3.
44. In para 14 of the Application, she has elaborated on the aspect
about the food which was being served to her and how she was
restrained from eating spicy food. In this para, she has also deposed
about the incident when she made sweets for Christmas. However, sister
of the Petitioner No.1 refused to accept the same and Petitioner No.1 was
witness to the same but refused to support Respondent No.1.
45. In para 15 of the Application, she has stated that in March, 2014,
Petitioner No.1 argued with her on petty issues and he booked ticket for
her and her daughter on a flight from Hyderabad to Pune and told her to
leave the house.
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46. In further paras of the Application also, Respondent No.1 has given
various details of the incidents in which according to her, the Petitioner
No.3 was nasty, rude and insulting to her and her parents.
47. In para 23 of the Application, she has stated that on account of this
conduct of the Petitioners, she was under considerable stress. As per
averments in para 24 of the Application, her debit card was cut off by
Petitioner No.1 without informing her and he ignored all the attempts
made by her to contact him. As a result of it, she felt very humiliated and
hurt.
48. In para 26 of the Application, she has stated that once she had
SKYPE session with Petitioner No.1 and in that session Petitioner No.1
was very aggressive with her and threatened her that he would end their
marriage within a period of ten days, if she did not return by the 2 nd
birthday of their daughter, though according to her, the counsellor has
insisted her that they should live separately from his parents for their
marriage to work.
49. In para 28 of the Application, she has stated that "she was suffering
constant domestic violence, as referred above, at the hands of the
Petitioners. Petitioner No.1 supported Petitioner Nos.2 & 3 to harass and
insult her. They have been subjecting her to mental, emotional, social,
matrimonial and financial cruelty. She had made all the efforts to work the
marriage but it was of no use".
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50. In the same para of the Application, she has also stated as to how
on several times she was reprimanded for using the car. She has also
stated as to how she was always forced to sit near seat of one Mr.
Swaroop on dining table though she was not conversant with Mr.
Swaroop and she was never treated a part of the Petitioners' family. She
has also stated about Petitioner No.1 wanting to divorce her for the
reason that the Petitioner Nos.2 & 3 did not want her in the family.
Ultimately, she has stated about how she and her daughter are not being
provided with any amount for their living expenses.
51. Needless to state that, if the averments made in her Application
filed before the trial Court are perused, then at this prima facie stage,
those averments even if, may not be touching the aspect of physical
abuse but they do fall in the ambit of verbal, emotional and economic
abuse, as contemplated under the definition of 'domestic violence' as
given under Section 3 of the D.V.Act. At this stage, therefore, it cannot be
said that there is absolutely no case made out for initiation of these
proceedings under the D.V.Act. As stated above, the D.V.Act not only
covers in its ambit physical abuse or apprehension thereof, but also other
forms of abuses of emotional and verbal nature, like insult, ridicule,
humiliation or economic abuses like depriving her of any economic or
financial resources. The allegations which are quoted in detail above, do
show that there are sufficient averments in each and every para of the
Application about various acts and omissions on the part of the
Petitioners, which Respondent No.1 considered as insult, ridicule,
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humiliation and deprivation of the economic and financial resources.
Therefore, at this prima facie stage, it cannot be said that her Application
was not at all maintainable or there are no allegations of domestic
violence, as required under the provisions of the D.V.Act. As to whether
she will be able to prove them or not is entirely a different matter, as it can
be decided only at the stage of final hearing when respective parties are
given an opportunity to lead the evidence and to substantiate their case.
At this stage, when this Court is exercising its jurisdiction under Section
482 of the Code of Criminal Procedure Code or under Article 227 of the
Constitution of India, this Court has only to go by the averments made in
the Application filed before the trial Court and those averments in the
Application are sufficient to make out case for initiation of proceedings.
52. It also cannot be accepted that the allegations made against
Petitioner No.3 are only of general, vague and omnibus nature. There
are specific instances, specific words and specific conduct of the
Petitioner No.3, given in detail in the Application. Therefore, it will not be
possible to call those allegations as vague, general and omnibus in
nature. Even as regards Petitioner No.1, there are more than sufficient
averments made in the Application as to how his conduct has also
amounted to economic abuse due to his act of cutting of her Debit Card,
by depriving her from living expenses of her daughter and also of
humiliation. As to the case against Petitioner No.2, according to
Respondent No.1, there are some incidents in which Petitioner No.2 had
also taken part. Therefore, sofar as the averments, as they stand in the
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Application are concerned, they make out a prima facie for initiation of the
proceedings.
53. Now, coming to the submission that in the Application for interim
relief, Respondent No.1 has not asked for any protection order, which
indicates that there was no domestic violence to her. In the considered
opinion of this Court, the necessity of seeking protection order would
have been there, if it was a case of physical abuse or physical cruelty.
Then in such situation, she would have asked for it. However, the case of
Respondent No.1 is mainly and mostly of verbal, emotional and economic
abuses. In such situation, immediate protection order might not have
been necessary, especially, as at the time of filing application, she was
residing separately from the Petitioners in a different city. Therefore,
merely because she has not sought such protection order, it cannot be
said that there was no domestic violence at all. At the cost of repetition, it
has to be stated that domestic violence under the D.V. Act does not
include only physical abuse but also economic, emotional and verbal
abuse. In view of such economic, emotional and verbal abuse as she is
already residing separate from the Petitioners, she may not be in the
immediate need of protection order.
54. As regards the submission that the Respondent No.1 has sought
mostly and only monetary reliefs at interim level, which she could have
sought in the proceedings pending in the Family Court at Hyderabad, it is
pointed out by the learned counsel for the Respondent No.1 that the
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proceedings before the Family Court are filed subsequent to this
Application for domestic violence filed in the trial Court and therefore,
when Respondent No.1 filed this Application as family court proceedings
were not pending, that forum was not available to her. Section 26 of the
D.V. Act, which provides for concurrent jurisdiction to the Civil Court,
Family Court and Criminal Court, where any legal proceeding in between
the parties are pending as to the reliefs available under Sections 18 to 22
of the D.V. Act is only an enabling provision and not to be invoked to
compel the aggrieved woman to choose a particular forum only. The D.V.
Act is enacted to protect her rights and interests and not to create
hindrances in her path of seeking protection of her rights.
55. Moreover and most importantly, it was and is for Respondent No.1,
the aggrieved woman to decide which forum to approach for seeking
redress of her grievances. It is totally her discretion. She may choose to
apply for maintenance under the matrimonial litigation in the Family Court
or she may seek relief of maintenance independently under Section 125
of the Code of Criminal Procedure or she may seek necessary relief of
maintenance under the D.V. Act. All the three avenues are made open to
her by the legislation and it is entirely for her to decide which forum to
approach. It is her choice and her discretion as to which forum she should
choose. As her proceedings are maintainable in this forum, she cannot be
restrained from doing so. It also cannot be said that her proceedings are
required to be quashed and set aside as she might have some alternate
remedy for maintenance under the Family Court proceedings.
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56. It has also to be kept in mind that the D.V. Act is enacted to provide
quick and effective remedy to the aggrieved woman. Section 12 of the Act
provides that the first date of hearing shall not ordinarily be beyond three
days from the receipt of the application by the Court and Section 12(5)
further mandates that the Magistrate shall endeavour to dispose of every
application made under this Section within a period of sixty days from the
date of its first hearing. Hence, shutting the doors of this forum, specially
created for her to get her grievances redressed as early as possible, in a
more effective way, is rendering the very object of the D.V. Act nugatory
and frustrated.
57. Moreover, in the present case, proceedings before the Family Court
are initiated by the Petitioner No.1 husband subsequent to Respondent
No.1 filing of this application under the D.V. Act. It is not that Respondent
No.1, the wife, has initiated two simultaneous proceedings at two different
forums siutate at two different places and the States, only with an
intention to harass the Petitioners. Proceedings for divorce are filed by
the Petitioner husband in Family Court at Hyderabad, whereas,
Respondent No.1 is residing at maternal house in Pune with her daughter
of one and half year. Hence, calling upon her to go to Hyderabad to seek
redressal of her grievances and to get amount of maintenance, will act
against the very object of the D.V. Act. The object of the Legislature
behind granting jurisdiction to Magistrate is to ensure that the said Court
is available at every small Taluka place, where woman resides so as to
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provide her easy access to Courts, unlike Family Courts which are
presently at the district places only. The object of Legislature also in
granting concurrent jurisdictions to all the three Courts - Civil Court,
Family Court and Magistrate Court was to enable her to seek remedy in
the pending proceedings and not to confine her to one forum, which may
not be convenient to her and which husband has chosen or to drive her
away from the forum chosen by her to the one chosen by her husband
subsequently and which may not be convenient to her at all, as in the
instant case. It is as good as taking away the rights given to her by the
Legislature.
58. It is pertinent to note that, despite the availability of existing forums
like Family Courts and Civil Courts for an aggrieved woman to seek the
reliefs of injunction or maintenance, the Legislature has taken a
conscious decision in its wisdom to provide her one more forum of the
Court of the Magistrate so as to provide her efficacious and quick remedy.
The Court cannot take away by its decision what is given to her by the
Legislature.
59. As regards the submission advanced by learned counsel for
Petitioners that Respondent No.1 is earning an income and therefore, she
cannot be entitled for maintenance and hence, her Application to that
effect is not tenable; needless to say that this contention can be
considered only by the trial Court while deciding her application and not
by this Court in Writ Petition as it involves disputed questions of facts.
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60. Even, as regards the contention that relations between Petitioner
Nos.1 to 3 and the Respondent No.1 are cordial even now and in support
of which her E-mails are produced, it has to be stated that the said aspect
will also have to be considered by the trial Court at the time of granting or
refusing relief to her as claimed by her but this Court cannot go into this
issue, as the allegations made in the Application are making out the
essential ingredients of domestic violence. On the same ground,
submission advanced that out of total matrimonial period of 10460 days,
Respondent No.1 has stayed at her matrimonial home only for a period of
919 days, again it is a matter of factual appreciation and not to be
considered by this Court at this prima facie stage.
61. Now, coming to the authorities relied upon by learned counsel for
the Petitioners, that of Pritam Ashok Sadaphule and others vs. State
of Maharashtra and another, Cri.Appeal No.487 of 2015, and Swapnil
and Others vs. State of Madhya Pradesh, Cri.Appeal No.1144 of
2014. The issue raised for consideration in these authorities before the
Supreme Court was about the quashing of proceedings and charges
framed against the appellants under Section 498A, 506 Part II of the
Indian Penal Code (45 of 1860) and Section 4 of the Dowry Prohibition
Act, 1961. Needless to say that the provisions of Sections 498A, 506 Part
II of the Indian Penal Code and Section 4 of the Dowry Prohibition Act,
1961 deal with the criminal liability which is required to be proved beyond
reasonable doubt. The present proceedings are under D.V. Act and they
pertain to remedies under the Civil law which are to be proved on the
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preponderance of probabilities. They do not attract any criminal or penal
liability. For the purpose of 498A of the IPC, standard of cruelty or the
proof cruelty, which is required to be proved being totally different, same
standard or proof of domestic violence cannot be made applicable to the
proceedings under the D.V. Act.
62. As regards the Judgment of Division Bench of this Court in Vikrant
Sudhakar Ambhore & Ors vs. Varsha Vikrant Ambhore reported in
2014 ALL MR (Cri) 2826, relied upon by learned counsel for the
Petitioners, on the facts of the said case, it was found that there were no
averments made in the complaint which could make out any offence as
the only allegation was about the demand made by the Accused/husband
and In-laws. Hence, as it was found that there was no pleading about the
harassment or harm or injury or anything which endangered her to coerce
her to fulfill the demand, it was held that the proceedings initiated under
Section 12 of the D.V.Act are required to be quashed and set aside. As
the said decision pertains to the particular facts of the case, where there
were no necessary averments as such, that decision cannot be made
applicable to the instant case as in the instant case, there are sufficient
averments making out the essential ingredients of the verbal, emotional
and economic abuse, which fall in the definition of domestic violence as
given in Section 3 of the Act.
63. To sum up, therefore, it has to be held that challenge to the
proceedings filed before the trial Court cannot be entertained.
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64. However, before concluding, it has to be stated that both the
Petitioner No.1 and the Respondent No.1 are young and having a small
daughter of less than one and half years age only. Respondent No.1, who
is personally present, states that she is ready to go for counselling before
the Trial Court. In view thereof, it is expected that the trial Court will make
the services of counselling, as laid down under Section 14 of the D.V. Act,
available to both the parties and further make all the efforts, as may be
necessary, for amicable reconciliation between the parties.
65. It is submitted by learned counsel for Petitioners that the matter is
kept in the trial Court tomorrow. Learned counsel for the Respondent
No.1 states that she will not press for any order tomorrow and will allow it
to be adjourned to 21.03.2016.
66. It is hoped and expected that the trial Court will proceed with the
matter as expeditiously as possible.
67. At this stage, it is also made clear that all the observations made
herein above as to merits of the case are made only for the purpose of
deciding this Writ Petition and the trial Court is not to be influenced or
swayed by them.
68. Writ Petition is dismissed with above directions. Rule is discharged.
(DR.SHALINI PHANSALKAR-JOSHI, J.)
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