Dnyaneshwar Devrao Jadhao vs Mala Dnyaneshwar Jadhao
2017 Latest Caselaw 7243 Bom

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

                    CRIMINAL WRIT PETITION NO. 921 OF 2016

Dnyaneshwar Devrao Jadhao,
aged about 43 years, Occupation
Service, R/o Kamandev Fata,
Tq. Ner, Distt. Yavatmal.                                        ... PETITIONER

                                            VERSUS

Mala Dnyaneswar Jadhao,
aged about 40 years, Occupation
Labour, R/o C/o Namdeo 
Thawara Rathod, Dolhari, Tq.
Darwha, Distt. Yavatmal.                      ... RESPONDENT
                                     ....
Shri A.K. Tripathi, Advocate holding for Shri Anand Deshpande, Advocate 
for the petitioner.
Shri N.B. Rathod, Advocate for the respondent.
                                     ....


                                        CORAM : P.N. DESHMUKH, J.

DATE OF RESERVING THE JUDGMENT  : 14TH SEPTEMBER, 2017.

DATE OF PRONOUNCING THE JUDGMENT : 18TH SEPTEMBER, 2017.


JUDGMENT : 

Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties.

2. Challenge in this petition is to impugned judgment and order

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passed by the first appellate Court in Criminal Appeal No. 06 of 2011dated

19.09.2016 whereby appeal preferred by the petitioner under Section 29 of

the Protection of Women From Domestic Violence Act, 2005 (hereinafter

referred as "Act of 2005") against order of the learned trial Court granting

monetary relief of Rs.1,500/- to respondent/wife under Section 20 of the

Act of 2005, is dismissed.

3. Learned Counsel for the petitioner submitted that in view of

admitted fact of respondent having been residing separately from

petitioner after her marriage which is solemnized about 20 years before, by

itself is sufficient to hold that there was no any kind of domestic violence

provided to her by the petitioner. It is contended that the trial Court, while

granting monetary assistance, has however, held that fact of respondent

leaving the matrimonial house, after a long period of 20 years, by itself is

sufficient to hold otherwise as without any sufficient cause she would not

have taken such a drastic step to leave the company of petitioner and

accordingly held her entitled for maintenance and, therefore, submitted

that on this sole ground, petition is liable to be allowed by setting aside the

impugned judgment.

4. Learned Counsel for the respondent/wife, on the other hand,

has submitted that from the evidence, as has been discussed by the

learned trial Court in its judgment dated 27th January, 2011, clearly

established that respondent was subjected to domestic violence by the

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petitioner and as such contended that the trial Court, therefore, rightly

held that the respondent is entitled for Rs.1500/- per month towards

monetary assistance under the provisions of Section 20 of the Act of 2005

which order has been upheld by the learned appellate Court by passing a

well reasoned judgment. The respondent has thus submitted that the

petition be dismissed.

5. To reveal the controversy involved in the petition, few facts are

necessary to be placed on record, that marriage between the parties took

place about 18 years before filing the complaint, during which period they

had three children out of this wedlock. With regard to bring her case

within the ambit of "domestic violence" as has been set out in the Act of

2005. It is the case of respondent that petitioner was suspecting her

character and on that count he was ill treating her and was also demanding

sum of rupees one lakh from her father and in spite of making payment of

Rs.75,000/-, as per his monetary demand, continued with ill treatment and

due to the continuous ill treatment provided to her, she was constrained to

leave the company of petitioner. One of the grounds further raised by the

respondent is about petitioner performing the second marriage which fact

was learnt by respondent on 13.01.2009 and has lodged report to the

police. However, no action is taken upon the same and has thus filed an

application under Section 12 seeking relief under Sections 18, 19, 20 and 22

of the Act of 2005. The trial Court rejected her claim of relief sought under

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Sections 18, 19 and 22 and, at the same time also rejected the application

against non-applicant Nos.2 to 7, who are relations of petitioner, however

granted monetary relief under Section 20 of the Act of 2005, which is under

challenge.

6. The petitioner has denied the case of respondent. It is the case

that in the year 2008, respondent's father has constructed house at Nagpur

for which he had provided amount of rupees two lakhs towards hand loan

and against this transaction, respondent's father had agreed to transfer

agricultural land in the name of petitioner in the event respondent's father

fails to repay the loan amount. However, since her father neither made

payment of said amount nor had transferred the agricultural land,

respondent, on being pressurized by her father on above ground,

anticipating any action to be initiated against them by the petitioner, left

his company. Thus, it is the case of petitioner that he had not committed

any domestic violence which compelled respondent to leave her

matrimonial house.

7. In the light of facts, as aforesaid, from the evidence of

respondent, it has come on record that the petitioner has demanded

rupees one lakh from her father and till said amount was paid, was

subjected to beating. She further deposed that even on making payment

of Rs.75,000/-, petitioner was insisting to transfer four acres of land in his

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name and as said demand was not satisfied, she was subjected to ill

treatment and was kept starving.

8. In the background of above, it is further stated by the

respondent that on 23.03.2008, the petitioner saying that respondent is

entangled in love affairs with the person residing in neighbourhood,

manhandled her when she sustained head injury. Three days thereafter,

she visited the hospital and was provided treatment and lodged report

with the police. However, as police did not take step, on 09th September,

2008, she had also made a complaint with the Superintendent of Police.

9. Though the respondent had further stated about her visiting to

the house of petitioner at Kamandev with her brothers Vasant Rathod and

Manik Rathod, after she learnt about second marriage of petitioner,

neither of these brothers are examined by her to establish this fact.

However, evidence of respondent, as aforesaid, duly establish that she was

subjected to domestic violence to which finding, the learned trial Court

has rightly reached, noting that otherwise there is no other reason for

respondent to leave the matrimonial house that too, after 20 years of her

married life which view has been upheld by the appellate Court.

10. Though the petitioner has examined himself and had denied

the case of respondent, has admitted in the cross-examination that

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respondent has lodged police complaint against him which admission to

some extent further corroborates evidence of respondent of her being

subjected to ill treatment at the hands of petitioner as without any such

reason no wife would make police complaint against her husband.

11. Though the petitioner, in support of his case, had examined

witnesses namely Babybai and Bayanabai, their evidence does not

establish the case of any of the parties in view of the fact that both these

witnesses have admitted that they have no knowledge about the relations

between the parties to the petition. From the evidence, the trial Court in

fact further appears to have rightly come to the conclusion that as the

house warming ceremony of the house of respondent's father was held in

the year 2005 which function was attended by respondent at Nagpur,

which fact is admitted by the petitioner, there can be no reason for

respondent's father for obtaining hand loan of rupees two lakhs from the

petitioner in the year 2008.

12. Considering the evidence on record as discussed above, both

the Courts below, therefore, appear to have considered the evidence, in its

right perspective and the trial Court, having considered the fact that the

petitioner is earning Rs.4,500/- by working in the State Road Corporation,

has granted reasonable relief by providing monetary assistance to the

respondent to the extent of Rs.1500/- per month, in which order by a

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reasoned order, the appellate Court did not find it fit to interfere with.

13. In view of the facts involved in the petition, reference can

usefully be made to the case of Krishna Bhattacharjee ..vs.. Sarathi

Chou d h a ry and anr., ( r eported 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

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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 womenyoutube and to ensure that they do not become victims of any kind of domestic violence."

In the result, the writ petition is dismissed. Rule is discharged

with no order as to costs.

JUDGE

*rrg.