Samiran Nessa vs Aynal Hoque
2021 Latest Caselaw 2739 Gua

                                                                                Page No.# 1/9

GAHC010106842020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./163/2020

             SAMIRAN NESSA
             W/O AYNAL HOQUE, D/O SANGSHER ALI, VILL. RAKHAYASINI PT. I, P.O.
             RAKHAYASINI, P.S MORNOI, DIST. GOALPARA, PIN-783101



             VERSUS

             AYNAL HOQUE
             S/O LT. JULUM UDDIN, VILL. NEPALI KHUTI, BELTOLA, PATHARPARA, P.O.
             MORNOI, P.S MORNOI, DIST. GOALPARA, PIN-783101



Advocate for the Petitioner   : MR. A ROSHID

Advocate for the Respondent : MR. M A SHEIKH

BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

Date of hearing & judgment: 09.11.2021.

JUDGEMENT AND ORDER (ORAL)

The case of the petitioner is that she is married wife of the respondent. The marriage

between the parties solemnized on 20.05.2016, as per the Muslim Shariyat and thereafter Page No.# 2/9

they started their conjugal life. However, after 6/7 months of their marriage, the

respondent/husband, by demanding Rs.50,000/- from her parents, started to harass the

petitioner and as the parents of the petitioner was poor, they failed to fulfill his demand.

Accordingly, the husband of the petitioner inflicted both physical and mental torture upon her

and lastly on 31.07.2017, at about 8 P.M., she was assaulted by her husband with a bamboo

stick, resulting severe injuries on her body, at the instigation of other family members and

she was driven out from their house. Since thereafter, she is in her parental house and she

filed an application under Section 12 of the Protection of Women from Domestic Violence Act,

2005 (in short 'the D.V. Act'), praying different sort of reliefs such as maintenance,

compensation, etc.

2. The respondent contested the case by filing written statement contending, inter alia

that he married the petitioner with the understanding that she will take care of his two

children from his first wife (since deceased) and his old aged mother. But after few months of

the marriage, she showed apathy towards the family liability towards the children and the old

aged mother and left his house at her own volition. He denied any sort of torture, domestic

violence or dowry demand, as alleged by the petitioner and prayed to dismiss the petition.

3. The learned trial Court, after examining the witnesses of both sides, by its order dated

25.04.2019, directed the respondent from committing any domestic violence by the petitioner

and also directed to pay a sum of Rs.1500/- per month to the petitioner towards the rent

from the date of order. Additionally the respondent was directed to pay Rs.2,000/- per month

as maintenance and to pay another sum of Rs.50,000/- as compensation, in PWDV Case

No.47/2017. On appeal, so preferred by the respondent, it was held by the appellate Court

that the respondent /petitioner is not entitled to get any relief and the appeal was allowed on Page No.# 3/9

contest vide order dated 30.06.2020, in Criminal Appeal No.11/2019.

4. Challenging the findings of the appellate Court, the petitioner has preferred the present

revision petition by contending that the learned Appellate Court has passed the order without

application of mind, whereas the petitioner has proved her case against the respondent but

the learned Appellate Court, by relying upon the evidence of DW.1 to DW.3, who are

interested witnesses of the respondent, allowed the appeal, which has been passed illegally

and arbitrarily and the same is liable to be quashed and set aside.

5. Heard the submission of Mr. A. Roshid, learned counsel for the revision petitioner/wife.

Also heard Mr. M.A. Sheikh, learned counsel appearing for and on behalf of the

respondent/husband. Also gone through the impugned orders as well as the evidence

adduced by both sides.

PLEADINGS AND EVIDENCE ON RECORD

6. I have carefully examined the pleadings between the parties before the learned trial

Court, which is very much necessary to decide the fate of the present petition. The

foundation of the case always lied upon the pleadings on record.

7. The petitioner in her application under Section 12 of the D.V. Act, filed before the

learned trial Court has contended that after few months of the marriage, by demanding

Rs.50,000/-, by her husband at the instigation of other family members, she was firstly

tortured and thereafter she was ousted from his house by assaulting her by the bamboo

stick. But at the time of evidence, she developed her case to a great extent that due to such

demand by her husband, her father paid Rs.40,000/- to him, which was never pleaded in the Page No.# 4/9

petition.

8. On the next, during trial she has stated that she was ousted by the accused person by

snatching her gold and silver ornaments from her, as a result of which she sustained severe

injuries, which is again not pleaded in her petition. In support of the contention regarding his

such dowry demand and torture and that an amount of Rs.40,000/- was paid against such

demand, her parents as well as other members of the family has not been examined to

substantiate the same.

9. That apart, there is no injury report that she was brutally assaulted on the day, while

she was ousted from her matrimonial house. Save and except few lines statement that she

was tortured in her matrimonial house, she has not narrated any of the incident, date and

time and manner as to how she was treated in her matrimonial house, which tantamount to

cruelty or domestic violence in the eye of law. Further the PW.2 is a person who resides 4/5

miles away from her matrimonial house and he has no personal knowledge about the

occurrence nor he is an eye witness to any of the incident. The PW.2 also stated that he has

no knowledge about the payment of money made by the parents of the informant to the

respondent/ husband.

10. As against the case of the petitioner, the respondent/husband pleaded that the

petitioner married him despite knowing his marital status that he has two children out his first

wife (since deceased) and his old aged mother to maintain. But after the marriage, she

refused to discharge her obligation and responsibility to his children and old aged mother and

she herself left his house to avoid the responsibility and ultimately has filed the case on the

false pretext. The respondent also pleaded that he went to bring back the petitioner along Page No.# 5/9

with some witnesses but she refused to return back.

11. In support of his plea, the respondent/husband has adduced witnesses including

himself to prove that he went to bring back the petitioner from his house after she left the

matrimonial house but she denied to return. The other two witnesses who were examined,

have supported the contention of the respondent/husband that the petitioner/wife being

annoyed with the responsibilities of looking after the children and to escape the liability to

look after old aged mother of the respondent, she returned to her parental house and refused

to return back, evenafter their approach. The petitioner side has failed to rebut the evidence

adduced by her husband.

THE FINDINGS OF THE TRIAL COURT

12. The learned trial Court, accepted the evidence of the petitioner and her other witnesses

in toto and held that mere denial on the part of the husband does not disprove the allegation

brought by the aggrieved woman. Relying upon the evidence of the petitioner/wife, the

learned trial Court held that she was subjected to domestic violence and is entitled for relief,

as sought for and provided various reliefs including prohibiting the respondents from

committing any domestic violence upon the petitioner and directed him to pay a sum of

Rs.1500/- per month to the petitioner towards the rental accommodation, to pay another sum

of Rs.50,000/- as compensation and to pay Rs.2,000/- per month as maintenance. There

appears no proper appreciation of evidence and failed to take note of material omission, on

the part of the petitioner.

ORDER OF THE APPELLATE COURT

13. The learned appellate Court has appreciated the evidence that have been adduced by Page No.# 6/9

both the parties and noted the aspect that the petitioner/wife could not specify the time and

manner etc., while demanding Rs.50,000/- or about the payment of Rs.40,000/- by her

father. It also observed that the income of the respondent/husband could not be asserted by

the wife nor the same was appreciated by the learned trial Court. Further it was held that the

evidence of PW.2 is no way helpful to the petitioner, as he merely a hearsay witness and has

no personal knowledge about the occurrence. The learned appellate Court also of the view

that mere lodging of complaint cannot ipso facto treated as cruelty or to denote domestic

violence and has held that the learned trial Court has failed to appreciate the discrepancies of

the prosecution case and discarded the petitioner's evidence that has been adduced. Further

it has been held that in absence of any cogent material on record that the aggrieved person

was subjected to domestic violence and other necessary evidence, the petitioner has failed to

prove her case and there is nothing to discard the evidence of defence witnesses.

14. The relevant portion of findings of the appellate Court is quoted below for ready

reference:

"18. As we all know the standard of proof under the Domestic Violence Act is not proof beyond reasonable doubt but is preponderance of probability. Even though the standard of proof in a DV Act case is that of preponderance of probability, such preponderance must be based on more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. As we all know proof on balance of probabilities on the other hand, admits of the possibility of contradictory versions being true but favours the version which has more weight than the other. To prove a fact by balance of probabilities is to prove one's version better, even slightly, than the version of the other party. All the Court needs to be convinced of is that though both the versions of fact are possible, one version is more likely than the other to be true. In this case the version of the Appellant that the Aggrieved on his refusal to live Page No.# 7/9

separately from his mother and children had left the matrimonial home appears to be more probable".

FINDINGS OF THIS COURT

15. This revisional Court has a limited scope to interfere into the findings of the appellate

Court, as the appellate Court has the power and scope to re-appreciate the entire evidence,

while coming to the conclusion. This Court can only appreciate as to whether there is any

perversity in the findings of the appellate Court and/or any relevant piece of evidence has

been ignored to interfere into such finding. As has been discussed above, no cogent and

convincing evidence to prove the torture or domestic violence has been proved by the

petitioner, whereas the defence side has substantiated their plea. The petitioner has failed to

prove the necessary ingredients of domestic violence within the purview of Section 3 of the

D.V. Act.

16. Section 3 of the D.V. Act reads as follows:

"3. Definition of domestic violence.--For the purposes of this Act, any act, omission or commission or 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.

Explanation I.--For the purposes of this section,--

Page No.# 8/9

(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;

(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, house hold 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 house hold 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 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".

17. The material discrepancy in evidence of petitioner contradicting her own case, with Page No.# 9/9

exaggeration and decoration, has destroyed the credibility of evidence of the petitioner. Mere

bold statement of a witness is not enough, unless the same is substantiated by legal

evidence. As noticed above, the petitioner's evidence is found wholly unreliable but the

learned trial Court has accepted the same. On the other hand, the learned appellate Court

has assigned good reasons, for rejection of such evidence, as discussed above.

18. There being no any perversity in the findings of the appellate Court, no interference is

called for in the present revision petition. Accordingly the same is dismissed.

19. Return back the LCRs forthwith.

JUDGE

Comparing Assistant