Bombay High Court

Sau. Sarita W/O Sureshkumar ... vs Sureshkumar S/O Dhaniram ... on 14 September, 2017

Bench: P.N. Deshmukh

                                              1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL WRIT PETITION NO.483 OF 2012.


   PETITIONER:                  Sau.Sarita w/o Sureshkumar Maladhare,
                                aged about 32 years, Occu: Nil, R/o
                                C/o Deorao Tarachandji Londhe, Shantiwari
                                Ward, Ramtek, Tq.Ramtek, Distt.Nagpur.


                                            : VERSUS :

   RESPONDENTS:                 Shri Sureshkumar s/o Dhaniram Maladhare,
                                aged 46 years, Occu: Service, R/o Co.Mohan
                                Krishnaji Karade, Tahsildar, little flowers
                                English School, Jeeja Mata Nagar, Hingoli, Distt.
                                Hingoli.

   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.A.S.Tiwari, Advocate for the petitioner.
   Mr.D.R.Upadhye, Advocate for respondent.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
             
                      CORAM:   P.N.DESHMUKH, J.

                      DATE OF RESERVING THE JUDGMENT      :  7/09/2017.

                     DATE OF PRONOUNCING THE JUDGMENT: 14/09/2017.


   ORAL JUDGMENT:

1. Challenge in this petition is to impugned order dated 24th

July, 2012 passed by learned Additional Sessions Judge-5, Nagpur,

whereby appeal preferred by respondent against the order passed by

learned trial Court granting monetary reliefs under Section 20 of the

Protection of Women from Domestic Violence Act, 2005 (hereinafter

referred to as "Act of 2005") to petitioner of Rs.2000/- per month and to

her sons Rs.1000/- each, respectively, and also granting compensation

of Rs.5000/- under Section 22 of the Act of 2005, was partly allowed

thereby rejecting amount of maintenance granted to petitioner - wife,

and confirming order of maintenance granted to her children, who were

original applicant nos.2 and 3. It is the case of petitioner that the

learned Appellate Court did not consider evidence on record in its

proper perspective and wrongly came to the conclusion that the

petitioner is not entitled for maintenance granted by the learned trial

Court. It is contended that in fact evidence of petitioner remained

unconverted and in fact respondent did not bring on record any

evidence before the learned trial Court establishing that he was not in

any manner liable for payment of maintenance. By referring to the

evidence of petitioner, it is pointed out as to how the learned Appellate

Court failed to hold that respondent has committed domestic violence,

and as to why petitioner was constrained to live separately without any

monitory support and therefore, contended that impugned order is

liable to be quashed and set aside.

2. Learned counsel for the respondent, on the other hand, has

submitted that the proceedings initiated against him are false and has

come out with the specific case that when petitioner's father was

working in the government service at Gadchiroli, he performed second

marriage and thereafter was not providing sufficient monitory relief to

petitioner's mother, brother or other family members and therefore,

petitioner was behind the respondent to provide money to her mother

and other family members which respondent in spite of complying to

some effect was finding it difficult to provide sufficient amount of

money due to his own financial constraints and on that count petitioner

was inviting quarrels. Another ground put forth by respondent is that

mother of petitioner started construction of house at Ramtek for which

purpose petitioner was pressing respondent to provide Rs.2,00,000/- on

obtaining loan, however, since it was not possible for the respondent to

satisfy such demand, petitioner on her own left the company of

respondent and started residing at Ramtek where respondent visited

and requested her to join back his company, however, she refused for

the same. Thus, it is the case of respondent that at no point of time he

had ill-treated petitioner and submitted that petition be dismissed.

3. In view of submissions advanced as aforesaid, on perusal of

facts it is noted that marriage between the parties was solemnized on 1 st

June, 1998 at the native place of respondent and thereafter they resided

together at Hingoli till petitioner left the company of respondent and

went to Ramtek in September, 2009. Thereafter, in December, 2009

respondent went to Ramtek to bring petitioner back and had agreed

not to provide any ill-treated when petitioner accompanied him and

after residing for 10 to 12 days left the company of respondent in the

month of February, 2010 along with her children and since then is

residing with her parents. It is the case of petitioner that she has no

source of income while respondent is working as a teacher earning

Rs.20,000/- per month.

4. In the background of facts as above, before considering other

evidence, it is necessary to consider the scope of "domestic violence", as

has been set out under the Act of 2005 wherein wider meaning is given

to domestic violence and therefore it covers various acts including

physical abuse, sexual abuse, verbal and emotional abuse, economic

abuse and also include harm and injuries as well as the act endangering

to health, safety, life, limb or well being to the aggrieved person. Said

term also covers act related to meeting of unlawful demand for dowry

or other property or valuable security. Physical abuse includes bodily

pain, harm or danger to life, limb or health etc. while verbal and

emotional abuse includes insults, ridicule, humiliation and economic

abuse includes deprivation of all or any economic or financial resources

to which the aggrieved person is entitled under any law or custom.

Needless to say that the aggrieved person includes the wife.

5. Having regard to the object of the Act of 2005 as aforesaid,

together with the definition of 'Domestic Violence', the case of petitioner

appears to be of domestic violence provided to her by respondent by

way of physical abuse, economic abuse and monetary harassment

caused to her. In the light of case of petitioner as aforesaid, therefore,

on perusal of evidence of petitioner, it appears that the learned

appellate Court, did not find it necessary to consider evidence of

petitioner about ill-treatment provided to her by respondent after

marriage, finding that petitioner, admittedly, has not pleaded said fact

in the petition. However, it is material to note that apart from said type

of evidence, learned Appellate court failed to discuss other evidence of

petitioner which, in fact, is found duly considered by the learned trial

Court when petitioner has deposed that respondent was initiating

quarrels on trifle issues and was also suspecting the character of

petitioner and for that reason was not allowing her to talk to

neighbours. Said evidence of petitioner is found corroborated with the

evidence of her mother who has stated that respondent on suspecting

petitioner's character, was providing ill-treatment to her and had also

assaulted her.

6. Though learned counsel for the respondent has submitted

that marriage between the parties took place in the year 1998 while

petitioner left her matrimonial home in 2009 and in between, there was

no complaint made by her to any authorities which fact by itself

establish that there was no kind of ill-treatment or harassment provided

to her, said submissions to some extent can be considered in favour of

respondent in view of the fact that mother of petitioner has, in her

cross-examination admitted that petitioner used to visit her parental

home during family functions and festivals but at no point of time made

any complaint in the Police Station. It is, therefore, urged on behalf of

respondent that after having led happy married life for a long period of

12 years, and having two school going children, there can be no

substance in the case of wife that she is provided ill-treatment at the

hands of husband. However, on considering above submissions with

the evidence of respondent, it is material to note that he had not

brought on record any evidence to establish that as per monetary

demand of petitioner, he had satisfied the same and therefore, case of

respondent about petitioner's requesting him to provide monetary

assistance to her mother, brothers and their family members and also

for obtaining loan for construction of house to be initiated by her

mother does not stand for any reason.

Though respondent by examining his witness, the land lord

had made an attempt to bring on record fact of respondent being a

person having good relations with his neighborhood and has placed on

record certificate issued by the Headmaster, Z.P.Primary School.

Distt.Hingoli establishing that in his service tenure there is no case

pending against him, these aspects do not establish that respondent's

attitude towards petitioner and his children is also cordial. Moreover,

respondent has not examined any independent witness to establish that

his relations with petitioner were cordial.

7. From the evidence as discussed above, thus there appears

much substance when it is submitted on behalf of petitioner that she is

entitled for maintenance as she is compelled to live separately from

respondent since February, 2010, as neglected by respondent, who has

failed to maintain her.

8. In the circumstances and from the facts as aforesaid, as it is

established by petitioner that she is subjected to domestic violence as

contemplated under the Act of 2005 and she is entitled for monetary

reliefs under Section 20 of the said Act. For that purpose petitioner has

claimed Rs.8000/- contending that respondent is earning Rs.20,000/-

per month and has placed on record his Salary Certificate at Exh.18.

Admittedly, respondent has not disputed fact that, both the children are

residing with petitioner nor had come out with the case that petitioner

has independent source of income. From the record it reveals that after

permissible deductions respondent is paid Rs.13,703/- per month and

learned trial Court had granted Rs.2000/- per month for petitioner and

Rs.1000/- per month for each of the children as monetary reliefs. In

that view of the matter, the learned trial Court, in fact, appears to have

rightly considered the evidence and awarded monetary reliefs to

petitioner as aforesaid, however, the learned Appellate Court while

rejecting the claim of petitioner appears to have weighed with the fact

of second marriage performed, by father of petitioner since it is noted in

the impugned judgment that the most important fact which non-

applicant (respondent) has brought on record is that the father of

applicant no.1 (petitioner)/wife got married with another woman and

the second wife had given birth to a child who is named as Umang and

same is held to be the cause for destruction of family life of the parties.

The view taken by the learned Appellate Court as such does not stand

for any reason, as marriage of petitioner's father can be no ground for

denying monetary reliefs to her. In the facts involved in the petition,

reference can usefully be made to the case of Krishna Bhattacharjee

..vs.. Sarathi Choudhary and anr., reported in (2016)2 SCC 705

where in paras 2 and 3 of its judgment the Hon'ble Apex Court had

observed thus -

"That the Protection of Women from Domestic

Violence Act, 2005 has been legislated, as its

Preamble would reflect, to provide for more

effective protection of the rights of the 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. The 2005 Act is a detailed Act. The

dictionary Clause of the 2005 Act, which we shall

advert to slightly at a larger stage, as in a broader

spectrum. The definition of "domestic violence"

covers a range of violence which takes within its

sweep "economic abuse" and the words "economic

abuse", as the provision would show, has many a

facet.

3. Regard being had to the nature of the

legislation, a more sensitive approach is expected

from the courts whereunder the 2005 Act no relief

can be granted, it should never be conceived of but,

before throwing a petition at the threshold on the

ground of maintainability, there has to be an

opposite discussion and thorough deliberation on

the issues raised. It should be borne in mind that

helpless and hapless "aggrieved person" under the

2005 Act approaches the court under the

compelling circumstances. It is the duty of the

court to scrutinize the facts from all angles

whether a plea advanced by the respondent to

nullify the grievance of the aggrieved person is

really legally sound and correct. The principle

"justice to the cause is equivalent to the salt of

ocean" should be kept in mind. The court of law is

found to uphold the truth which sparkles when

justice is done. Before throwing a petition at the

threshold, it is obligatory to see that the person

aggrieved under such a legislation is not faced with

a situation of non-adjudication, for the 2005 Act

as we have stated is a beneficial as well as

assertively affirmative enactment for the

realization of the constitutional rights of women

and to ensure that they do not become victims of

any kind of domestic violence."