Karnataka High Court

Sunil S/O Suresh Chavan vs Deepali W/O Sunil Chavan on 19 February, 2024

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                                  CRL.RP No.100131 of 2021



 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 19TH DAY OF FEBRUARY, 2024

                       BEFORE
         THE HON'BLE MR JUSTICE S.RACHAIAH
  CRIMINAL REVISION PETITION NO. 100131 OF 2021
BETWEEN:

SUNIL
S/O SURESH CHAVAN
AGED ABOUT 35 YEARS,
OCC: CRPF POLICE,
RESIDING AT SORADI,
TQ: JATH,
DISTRICT SANGLI,
CURRENTLY RESIDING AT JANAKAPURI,
NAVADELHI.

                                              ...PETITIONER

(BY SRI. ANKIT R.DESAI, ADVOCATE FOR
SRI. MALLIKARJUNSWAMY B.HIREMATH)

AND:

1.   DEEPALI
     W/O SUNIL CHAVAN
     AGED ABOUT 24 YEARS,
     OCC: HOUSEHOLD,
     RESIDING AT SORADI,
     TQ: JATH,
     DIST: SANGALI,
     CURRENTLY AT NAMADEV NIVRUTTI BEDGE,
     AINAPUR, TQ: ATHANI,
     DIST: BELAGAVI.


2.   SURESH
     S/O KRUISHNA CHAVAN
     AGED ABOUT 59 YEARS,
     OCC: AGRICULTURE,
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                                   CRL.RP No.100131 of 2021




     RESIDING AT SORADI ,
     TQ: JATH,
     DIST: SANGALI.

3.   SMT. SHAKUNTAL
     W/O SURESH CHAVAN
     AGED ABOUT 54 YEARS,
     OCC: HOUSEHOLD,
     RESIDING AT SORADI,
     TQ: JATH,
     DIST: SANGALI.

                                              ...RESPONDENTS

(BY SRI. YASH R.NADAKARNI, ADVOCATE FOR
SRI. VITTAL S.TELI, ADVOCATE FOR R1;
R2 AND R3-ARE SERVED NOTICE)

     THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C., SEEKING TO SET ASIDE THE ORDER
DATED 03/04/2021 PASSED BY V ADDL. DISTRICT AND
SESSIONS      JUDGE,    BELAGAVI    IN   CRIMINAL      APPEAL
NO.311/2018 AND DISMISS THE APPLICATION FILED UNDER
SECTION 12 OF PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005 FILED BY RESPONDENT NO.1.


     THIS    CRIMINAL   REVISION   PETITION    HAVING      BEEN
HEARD       THROUGH     PHYSICAL     HEARING      /        VIDEO
CONFERENCING HEARING AND RESERVED ON 23.11.2023
BEFORE      THE   DHARWAD    BENCH,      COMING       ON    FOR
PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH
OF BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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                                      CRL.RP No.100131 of 2021



                           ORDER

1. This Criminal Revision Petition is filed by the

petitioner/respondent No.1 seeking to set aside the order

dated 03.04.2021 passed in Crl.A No.311/2018 by V

Additional District and Sessions Judge, Belagavi.

2. The rank of the parties in the Trial Court henceforth will

be considered accordingly for convenience.

Brief facts of the case:

3. The marriage between the petitioner and respondent

No.1 was solemnized on 29.04.2013 at Soradi Village of

Jath Taluk, Maharashtra. It is stated that the petitioner

and respondent No.1 lived together happily for about two

years. Thereafter, the respondents started harassing the

petitioner both physically and mentally without providing

basic necessities to her. As per the averments of the

complaint, the petitioner has been subjected to

harassment both physically and mentally and she was

being insulted by respondent No.1 for having not

brought the additional dowry of Rs.1,00,000/- and also

gold from her parents. The petitioner hoping that the

matter would be settled and she would get a good life

from her matrimonial home. However, the said hope

left unnoticed and remained as dream. On 17.04.2016,

the respondents said to have assaulted and abused the

petitioner and thrown her out of the house. Therefore,

she has lodged a complaint before the police. After she

lodged a complaint, her in-laws and husband have

threatened her with dire consequences.

4. The petitioner tolerated all the trauma caused to her by

the respondent No.1, 2 and 3. Being aggrieved by the

harassment and cruelty, she has to live with her parents.

Therefore, the petitioner had preferred a petition before

the Trial Court in Crl.Misc.No.249/2016 under Section 12

of Protection of Women from Domestic Violence Act,

2005 (for short 'D.V Act') seeking for various relief under

the Act.

5. The Trial Court after considering the evidence of all the

witnesses and also perused the documents produced by

the parties concluded that the petitioner has not made

out a case for maintenance or any other relief and

dismissed the petition. Being aggrieved by the same,

the appellant had preferred an appeal before the

Appellate Court. The Appellate Court after appreciating

the fact and evidence on record, opined that respondent

No.1 herein has made out a case to get the relief.

Accordingly, the Appellate Court directed the petitioner

to pay monthly maintenance of Rs.10,000/- to the

appellant / respondent No.1. Being aggrieved by the

same, the petitioner herein has preferred this Revision

Petition.

6. Heard Sri.Ankit R.Desai, learned counsel appearing on

behalf of Sri.Mallikarjun Swamy.B Hiremath, learned

counsel for the petitioner and Sri.Yash.R Nadkarni,

learned counsel appearing on behalf of Sri.Vittal S.Teli,

learned counsel for respondent No.1.

7. It is the submission of the learned counsel for the

petitioner that it is an admitted fact that the petitioner

and respondent No.1 are husband and wife respectively.

Respondent No.1 deliberately and intentionally picked up

quarrel with her husband and in-laws and left the

matrimonial home and started residing with her parents.

The allegations made against her husband and in-laws

are baseless and absurd and no complaint has been

lodged against her husband and in-laws regarding

demand of dowry or cruelty or harassment.

8. It is further submitted that the petitioner herein working

at CRPF police as Jawan and earlier, both the petitioner

and respondent No.1 were residing at Jarkhand for four

months. Thereafter, the petitioner was transferred to

Delhi and took respondent No.1 to Delhi. When

respondent No.1 was living in Delhi, her father and uncle

went to Delhi and took her to Ainapur without giving

proper reason. The petitioner herein had filed a petition

for Restitution of Conjugal Rights under Section 9 of the

Hindu Marriage Act. The Court granted decree in favour

of the petitioner herein and directed respondent No.1

herein to restore the conjugal rights within a period of

two months from date of order. The said order came to

be passed on 12.01.2018. However, the petitioner

remained with her parents and not bothered to comply

the decree. Respondent No.1 neither challenged the said

decree nor complied it, therefore, the said decree

attained finality. Hence, respondent No.1 is not entitled

for any relief as sought for. Making such submission, the

learned counsel for the petitioner prays to allow the

petition.

9. Per contra, respondent No.1 vehemently justified the

order passed by the Appellate Court and submitted that

it is an admitted fact that the petitioner and respondent

No.1 are the husband and wife and they lived with the

same relationship for more than three years. When she

was staying in her matrimonial home, she was being

harassed both physically and mentally and she was being

forced to bring additional dowry from her parents and

she was not being provided with basic necessities in the

matrimonial home. Being frustrated by the act of the

petitioner and respondent Nos.2 and 3, the respondent

No.1 had to leave the house and forced her to live with

her parents house. In the meantime, the petitioner

herein with deliberate intention filed a petition for

Restitution of Conjugal Rights and obtained decree with

malafide intention to avoid further complications and

also to avoid reunion of the respondent No.1.

10. It is further submitted that maintenance can be ordered

even to the divorced wife. Such being the fact, when

respondent No.1 proved the domestic violence is entitled

for relief as ordered by the Appellate Court. The order

passed by the Appellate Court contains no infirmity and

interference with the said order is not required. Having

submitted thus, the learned counsel for the respondent

No.1 prays to dismiss the petition.

11. After having heard the learned counsel for the respective

parties and also perused the findings of the Appellate

Court, it is relevant to refer to the judgment of the

Hon'ble Supreme Court in the case of LALITA TOPPO v.

STATE OF JHARKHAND AND ANOTHER1, wherein the

Hon'ble Supreme Court in paragraph Nos.1, 2 and 3 laid

down the guidelines regarding economic abuse which

reads thus:

"1. The appellant before us would have an efficacious remedy to seek maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DVC Act, 2005") even assuming that she is not the legally wedded wife and, therefore, not entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973. This is because of the provisions contained in Section

(2019) 13 SCC 796

3(a) of the DVC Act, 2005 which defines the term "domestic violence" in the following terms:

"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"

2. What would be significant to note is that economic abuse also constitutes domestic violence and economic abuse has been defined by Explanation I(iv) to Section 3 of the DVC Act, 2005 to mean:

"(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, household 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 household 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

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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."

3. In fact, under the provisions of the DVC Act, 2005 the victim i.e. estranged wife or live-in partner would be entitled to more relief than what is contemplated under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also."

12. On careful reading of the judgment of the Hon'ble

Supreme Court, it makes it clear that under the DV Act,

2005 the victim i.e., estranged wife or live-in-partner

would be entitled to more relief than as contemplated

under Section 125 of the Code of Criminal Procedure

namely, to a shared house hold also.

"125. Order for maintenance of wives, children and parents. -- (1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, or

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(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate[* * *], as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the

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same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] Explanation.--For the purposes of this Chapter,

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

[(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months 4[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

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Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him.

(4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

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13. On reading of the above dictum of the Hon'ble Supreme

Court, it is no doubt that under the D.V. Act even an

estranged wife or the person who is living together are

also entitled for maintenance or relief provided under the

Act. However, in the present case, respondent No.1

deliberately even after the order of Restitution of

Conjugal Rights, has not complied the order. Be that as

it may, once she has established that she is the wife of

the petitioner, she is entitled for maintenance under the

D.V. Act. Therefore, I am of the considered opinion that

the order passed by the Appellate Court in granting