Bombay High Court
Jayshree Giresh Devre vs Giresh Roopehand Devre And Ors on 6 April, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.948 OF 2014
Smt. Jayashree Giresh Devre .. Petitioner
Vs.
Giresh Roopchand Devre & Ors. .. Respondents
...
Mr. Adaba Khan with Mr. Rohit Jadhav i/b Ms. Neha Bhosale
for the petitioner.
Mr. Rajesh S. Jadhav for respondent Nos.1, 3 and 4.
Mr. Y.Y. Dabake, A.P.P. for the State.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 6TH APRIL, 2021.
P.C:-
1. By the impugned order dated 26/11/2013, the Additional
Sessions Judge, Nashik reversed the orders passed by JMFC,
Kalwan on 04/04/2013 in Criminal Misc. Application No.62 of
2012. The said Application was instituted by the petitioner
before the JMFC alleging domestic violence and the harassment
meted out to her and praying that she as well as her son should
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be paid an amount of maintenance and rent for the residential
premises and together claiming an amount of Rs.8,000/-.
The JMFC granted the said Application on 04/04/2013 and
directed that by way of interim maintenance, the respondent
shall pay an amount of Rs.1,700/- per month to the petitioner as
well as her minor son. Further, a direction was also issued to
pay to the petitioner, an amount of Rs.500/- towards rent. It was
also observed that the said order was made as an interim
arrangement since a dispute between the same parties was
pending in the same court as regards the earning of the petitioner
and liberty was granted to make appropriate application in the
said proceedings. Further, the matter was also referred for
mediation.
2. It is this order which is reversed by the Additional Sessions
Judge, Nashik on the premise of an erroneous understanding of
the provisions of the Protection of Women from Domestic
Violence Act, 2005 (for short, "DV Act") holding that the DV
Act is not retrospective and since the same came into force on
26/10/2006, the incident narrated in the application, which
occurred prior to that date, will not be covered by the provisions
of the DV Act. Further, a cursory reference has been made that
there is no indication in the Application pointing out the
domestic violence and only vague allegations are made that she
was threatened telephonically.
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3. The Additional Sessions Judge has erred on both the
aspects. On perusal of the application, it is clear that the
petitioner has narrated the incidents of cruelty meted out to her,
which would clearly fall within the parameters of the violence,
she being a wife of the respondent. On the second aspect that
the D.V. Act is not retrospective in its effect is concerned, the
DV Act has been enacted in the year 2005 aimed to provide for
more effective protection of the rights of women guaranteed
under the Constitution, who are victims of violence of any kind
occurring within the family. The definitions of various terms
will have to be kept in mind while considering the objectives of
the enactment of the DV Act. The term 'aggrieved person' is
defined in Section 2(a) of the DV Act which reads as under:
2. Definitions. - In this Act, unless the context
otherwise requires, -
(a) "aggrieved person" means any woman
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;
4. Further Section 2(f) defines the term '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
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relationship in the nature of marriage, adoption or are family
members living together as a joint family. The term 'domestic
violence' is defined in Section 3 of the DV Act.
5. Taking into consideration the objectives of the enactment
of DV Act, the understanding of the Additional Sessions Judge,
Nashik that it will not cover the incidents of domestic violence,
which had occurred prior to coming into effect of the DV Act is
on an erroneous reading of the provisions of the DV Act. In
2012 itself, Hon'ble Apex Court in the case of V.D. Bhanot v.
Savita Bhanot, reported in (2012) 3 SCC 183, has clarified the
object of the enactment and has ruled that the protection
provided under Sections 18 to 20 of the DV Act would entail the
conduct of the parties prior to coming into force of the DV Act to
be taken into consideration while passing the order. The Hon'ble
Apex Court in paragraphs 8 and 12 of the said judgment held as
under:
"8. After considering the
constitutional safeguards under Article 21 of the
Constitution, vis-a-vis, the provisions of Sections
31 and 33 of the PWD Act, 2005, and after
examining the statement of objects and reasons
for the enactment of the PWD Act, 2005, the
learned Judge held that it was with the view of
protecting the rights of women under Articles 14,
15 and 21 of the Constitution that the Parliament
enacted the PWD Act, 2005, in order to provide
for some effective protection of rights guaranteed
under the Constitution to women, who are
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victims of any kind of violence occurring within
the family and matters connected therewith and
incidental thereto, and to provide an efficient
and expeditious civil remedy to them. The
learned Judge accordingly held that a petition
under the provisions of the PWD Act, 2005, is
maintainable even if the acts of domestic
violence had been committed prior to the coming
into force of the said Act, notwithstanding the
fact that in the past she had lived together with
her husband in a shared household, but was no
more living with him, at the time when the Act
came into force.
12. We agree with the view expressed by the
High Court that in looking into a complaint
under Section 12 of the PWD Act, 2005, the
conduct of the parties even prior to the coming
into force of the PWD Act, could be taken into
consideration while passing an order under
Sections 18, 19 and 20 thereof. In our view, the
Delhi High Court has also rightly held that even
if a wife, who had shared a household in the
past, but was no longer doing so when the Act
came into force, would still be entitled to the
protection of the PWD Act, 2005."
6. In the light of the said authoritative pronouncement, the
order passed by the Additional Sessions Judge cannot sustain
and, is liable to be quashed and set aside, and is accordingly
quashed and set aside. At the same time, an important aspect of
the matter also cannot be ignored being the Additional Sessions
Judge did not take into consideration the merits of the matter
barring the sketchy observations made in paragraph 9 of the
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order. As far as the amount of maintenance, which had been
granted by the Magistrate and the amount directed to be paid
towards rent would have to be re-determined by taking into
account the fact that the petitioner is already granted
maintenance under Section 125 of the Code of Criminal
Procedure (for short, "Cr.P.C."). While granting the monetary
relief under Section 20 of the DV Act, the court is bound to take
into consideration maintenance amount, if any, granted under
Section 125 of the Cr.P.C. In such circumstances, it would be
appropriate to remit the matter to the Additional Sessions Judge,
Nashik to re-determine the amount of maintenance in an appeal
filed by respondent since the earlier rejection is on the non
applicability of the provisions of the DV Act, which dismissal
has been quashed and set aside. The Additional Sessions Judge
is directed to decide the said appeal within a period of three
months from today. Needless to state that the Sessions Judge
shall take into consideration all contentions of the petitioner and
the respondent on merits while deciding the appeal.
7. The Writ Petition is disposed of in the aforestated terms.
SMT. BHARATI DANGRE, J.
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