Bombay High Court
Priya Vaibhav Kole vs Vaibhav Shankar Kole And Ors on 18 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:2785
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.157 OF 2017
Priya Vaibhav Kole ...Applicant
Versus
Vaibhav Shankar Kole & Ors. ...Respondents
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Ms. Prajakta Jadhav Khedekar for the Applicant.
Ms. M. R. Tidke, APP for the Respondent/State
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 18, 2024
P. C. :
1. None appears for the Respondents though served. On the last
occasion, the Respondent was present in person and the order records that
the Application will be decided finally at the stage of admission. Today
none appears, as such, the matter is taken up for hearing.
2. The challenge in the Revision Application is to the Judgment of the
Sessions Court dated 20th December, 2016 passed in Criminal Appeal No.
581 of 2016 filed under Section 29 of the Protection of Women from
Domestic Violence Act, 2005 (D.V. Act) whereby the Sessions Court has
partly allowed the Appeal and modified the order of the Trial Court as
regards clause 3 and clause 5. By the said modification, the rent for the
alternate accommodation is fixed at Rs. 5,000/- per month and the
compensation of Rs. 25,000/- which was granted by the Trial Court is
reduced to Rs. 10,000/-.
3. Heard Ms. Prajakta Jadhav, learned counsel for the Applicant.
4. Learned counsel for the Applicant has taken this Court through the
findings of the Trial Court and the Sessions Court. She would submit that
there is no basis given for reducing the compensation amount from Rs.
25,000/- to 10,000/- as the compensation has been granted by the Trial
Court for the reason that Respondent No. 1 had initiated criminal
proceedings as well as the civil proceedings and had failed to substantiate
his case, in those proceedings driving the Application to incur ligation
expenses. She would further submit that there is no finding on the basis of
which the rent of the alternate accommodation is fixed at Rs. 5,000/-.
5. Considered the submissions and perused the Judgments of the Trial
Court and the Appellate Court.
6. D. V. Application being 8/DV/2012 was filed by the Applicant
under Section 12, 17 , 18, 19, 20 and 22 of the D.V. Act. The case of the
Applicant was that the marriage was performed on 10 th December, 2009
and there is one child from the said wedlock. It was contended that
subsequently, there was a dispute between the parties due to extra marital
affairs of Respondent No.1. It was further pleaded that she was mentally
harassed and had lodged the police complaints and Respondent No. 2
who is the brother of Respondent No. 1 did not allow her to enter into
the matrimonial house. It was further pleaded that subsequently, the
Respondent No. 1 filed a Petition for divorce. As regards the properties, it
was contended that there were two flats being flat Nos. 3 and 8 owned by
the parents of the Respondent No. 1 and 2 and the Respondents are the
owners after the death of their parents. It was contended that the
Applicant was staying with the Respondent No. 1 in Room No. 8. It was
contended that the Respondent No. 1 is earning Rs. 40,000/- to 50,000/-
per month.
7. The Application came to be contested by the Respondent however,
the fact of the marriage as well as the birth of the child is not disputed as
also filing of the divorce Petition before the family Court. The parties
went to Trial and after evidence was led, the Trial Court by Judgment
dated 17th July 2015 passed the following order.:
-: ORDER:-
1. The application is allowed.
2. The respondents No.1 is hereby prohibited from
committing any act of Domestic Violence against the
applicant and respondent No.2 is prohibited from aiding
or abetting such act.
3. The respondent No.1 is hereby directed to allow the
applicant for residing at Room No.3 Ramkutir, Bhaskar
Colony, Naupada, Thane (W). In the alternative, he is
directed to secure same level of alternative accommodation
for her as enjoyed by her in the shared household or pay
rent for the same.
4. The respondent No.1 is directed to pay Rs.8,000/-
(Rs.Eight Thousand Only) per month to the applicant
towards her maintenance from the date of this order. He
shall continued to pay Rs.4,000/- (Rs.Four Thousand
Only) towards maintenance of Prathamesh as agreed
before the Councellor.
5. The respondent No.1 is also directed to pay Rs.25,000/-
(Rs. Twenty Five Thousand Only) to the applicant
towards compensation.
6. Copies of the judgment/order be supplied to the parties
free of costs.
7. Copy of judgment/order also be sent to the Office of
Police Commissioner, Thane where Room No.3,
Ramkutir, Bhaskar Colony, Naupada, Thane (W) is
situated and N.M.Joshi Marg Police Station.
8. The Trial Court came to a finding on the basis of evidence that the
case of domestic violence which is a sine qua non for grant of relief was
made out. As regards the maintenance, a sum of Rs. 8,000/- was granted
to the Applicant and Rs. 4,000/- to the child, which order has not been
interfered with by the Sessions Court. The Sessions Court has modified
the order as far as the payment of compensation is concerned. The Trial
Court considered that the Respondent No. 1 had initiated civil and
criminal proceedings against the Applicant for which she was required to
incur litigation expenses and has therefore assessed the same at Rs.
25,000/-. The Appellate Court has interfered with the exercise of
discretion of grant of compensation by holding that the Court is required
to consider the damages for injuries including mental torture and mainly
by act of domestic violence, however, the Trial court has failed to bifurcate
the same and directly jumped to the conclusion of Rs. 25,000/-. At this
stage it would be relevant to refer to the statutory provisions as regards the
grant of compensation under Section 22 of D. V. Act which provides that
the Magistrate is empowered to pass an order directing the Respondent to
pay compensation and damages for the injuries including mental torture
and emotional distress caused by acts of domestic violence committed by
the Respondent.
9. In the instant case, it is not disputed that the civil as well as the
criminal proceeding has been initiated against the Applicant by the
Respondent in which he had not succeeded. As such, the Applicant was
required to incur litigation expenses. The Sessions Court lost sight of the
fact that the Magistrate is empowered to pass an order directing the
Respondent to pay compensation and damages for the injuries. The Trial
Court has granted compensation by taking into consideration the
litigation expenses which were incurred. There was no warrant for
interfering with the discretion exercised by the Trial Court especially
when the Sessions Court has not given any reasoning for reducing the
amount from Rs. 25,000/- to 10,000/-. The Sessions Court, in my
opinion, could not have interfered with the discretion exercised by the
Trial Court without any finding as to why the amount of compensation is
reduced.
10. As regards the fixation of the amount of rent of Rs. 5,000/-, the
Respondent No. 1 is residing in flat situated at Naupada, Thane West.
The Trial Court by taking into consideration the provisions of Section 9
of the D. V. Act had rightly directed the Respondent No. 1 to secure the
same level of alternate accommodation for the Applicant or the rent for
the same. There cannot be any debate that the Applicant is entitled to the
same status and the same living standard as that of the Respondent No.1.
It was therefore incumbent upon the Respondent No. 1 to either secure
the same level of alternate accommodation or to bring on record sufficient
material to demonstrate the rental amount which would be paid for
securing the same level of alternative accommodation. Perusal of the
order of the Sessions Court indicates that there is absolutely no reasoning
given as to why a rent of Rs. 5,000/- has been fixed. The order of the
Sessions Court does not reflect that any material was brought on record by
Respondent No. 1 to demonstrate that for securing the same level of
alternate accommodation, a rent of Rs. 5,000/- per month would be
sufficient. It can be noted that the order has been passed in the year 2016,
however, even in the year 2016 in a locality of Thane West, it is well
known that no accommodation could have been secured at the rent of Rs.
5,000/-. The Session Court without recording any reasons and in absence
of any material being on record has fixed the rent at Rs. 5,000/- which is
unsustainable. The Sessions court lost sight of the fact that there is a child
born of the wedlock and the Applicant as well as the child is entitled to
the same living standard as that of the Respondent No. 1.
11. The findings of the Sessions Court suffers from perversity as
discussed above and thus required to be quashed and set aside.
Resultantly, the Application succeeds.
12. The impugned order dated 20th December, 2016 passed by the
Sessions Court in Criminal Appeal No. 581 of 2016 is quashed and set
aside and the Judgment of the Metropolitan Magistrate dated 17 th July,
2015 stands revived.
(SHARMILA U. DESHMUKH, J. )
