Appa Pogula Rajesh Kumar, ... vs S.H.O., W.P.S. Saroornagar Ano
2022 Latest Caselaw 6531 Tel

   HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

        CRIMINAL REVISION CASE No.1767 of 2015

ORDER:

This Criminal Revision, under Sections 397 and 401

Cr.P.C., is filed by respondent in D.V.C.No.2 of 2008 on the

file of V Metropolitan Magistrate, Anakapalli, and appellant

in Crl.A.No.223 of 2013 on the file of VII Additional District

and Sessions Judge (Fast Track Court), Visakhapatnam,

whereby the Magistrate and Sessions Court passed an

order granting various reliefs in a petition filed under

Section 12 of the Protection of Women from Domestic

Violence Act, 2005 (for short 'the Act'). The Magistrate,

having found that respondent herein was subjected to

domestic violence, granted relief, under Section 19 (1)(a) of

the Act, entitling her to continue to reside in the shared

household; maintenance under Section 20 of the Act; and

damages for stress and agony faced by her.

Parties hereinafter will be referred to as 'petitioner'

and 'respondent' for the purpose of convenience.

The respondent as aggrieved filed petition under

Section 12 of the Protection of Women from Domestic

Violence Act, 2005, claiming various reliefs alleging that the

respondent is working as a Grade-II Mechanic in CME

Department, Visakhapatnam Port Trust, earning

Rs.15,000/- p.m; and, in addition to salary, he own and

possessed house No.55, 3rd layout, Sramikasakthi Nagar,

China Mushidiwada, Pendurthi, in an extent of 290 sq.

yards, fetching Rs.5,000/- p.m. towards rent. The

petitioner neglected the aggrieved person, respondent

herein, as well as her son without providing daily

necessaries and threatened that he would apply long leave

or take voluntary retirement and would go abroad leaving

them or would kill their son and commit suicide throwing

blame on her if she initiates any legal action.

Respondent has no means to maintain herself and

her son, whereas petitioner is working in Visakhapatnam

Port Trust and earning sufficient income by way of salary

besides income from other sources but failed to provide

maintenance and subjected to economic abuse and,

thereby, claimed maintenance for both respondent Nos.1

and 2 at the rate of Rs.6,000/- p.m. and Rs.4,000/- p.m

respectively. Petitioner's father and other relatives

instigated him to harass respondent both physically and

mentally and, at their advice, he did not pay any amount

towards maintenance and her health is deteriorated due to

domestic violence. Respondent Nos.1 and 2 were not

provided any shelter and drove them out from quarters and

locked house No.55, 3rd layout, Sramikashakthi Nagar,

China Mushidiwada, Pendurthi. Thereby, she claimed

various reliefs viz. protection order, restraining petitioner

from further committing domestic violence and alienating

assets, operating bank lockers, bank accounts used or held

or enjoyed by both parties jointly, including the aggrieved

person, without permission of the Court; return of dowry

amount, adapaduchu lanchanams, saresamans with

interest at the rate of 24% p.a. from the date of marriage till

the date of realization; residence order, in favour of

respondent, to stay in plot No.55, 3rd layout of Sramasakthi

Nagar, Chinnamushidiwada, Pendurthy, Visakhapatnam,

restraining petitioner from dispossessing the respondent

from the shared household; to provide safety of the

respondents by executing bond with or without sureties

from preventing commission of domestic violence; pay

monetary relief of Rs.2.00 lakhs for the loss suffered by

respondents; monthly maintenance of Rs.10,000/- from

24.10.2002 to 07.05.2007 i.e. from the date of petition and

future maintenance of Rs.6,000/- and Rs.4,000/- p.m. to

the respondent Nos.1 and 2 respectively; and grant Rs.2.00

lakhs for mental torture and emotional distress faced by

the respondents in the hands of petitioner.

Petitioner herein (respondent before the V

Metropolitan Magistrate, Anakapalli) filed a counter

denying material allegations while admitting relationship

between the parties. Filing of the present case is a second

round of litigation as respondent No.1 had already lodged

complaint for the offence under Section 498-A IPC, and

respondent No.2 died on 07.12.2009 and the case against

respondent Nos.3 to 10 was quashed by this Court in

Crl.P.No.5304 of 2009 on 25.07.2010. Petitioner never

harassed respondents either physically or mentally and

respondent No.1 had not given Rs.2.00 lakhs towards

dowry; Rs.41,000/- towards adapaduchu lanchanams and

Rs.80,000/- towards saresaman. Petitioner is the absolute

owner of plot No.55, Sramasakthi Nagar,

Chinnamushidiwada, Pendurthy, and fetches Rs.5,000/-

towards monthly rent and denied borrowing of

Rs.3,50,000/- for meeting maintenance by respondent No.1

and not allowing her into the house. Petitioner earlier filed

O.P.No.687 of 2005 on the file of Family Court,

Visakhapatnam, obtained an order to pay amount of

Rs.6,000/- p.m; E.P.No.13 of 2009 was filed for recovery of

the said amount; and another E.P.No.10 of 2010 for

attachment of arrears to a tune of Rs.85,000/-. At the

instance of the employer of petitioner, he as well as

respondent joined and resided in port quarters at

Saligramapuram where respondent No.1 subjected the

petitioner to all sorts of harassment and left the house

without intimation and filed a complaint under Section

498-A IPC before the I Additional Chief Metropolitan

Magistrate, Visakhapatnam, to which, he filed O.P.No.1398

of 2009 for restitution of conjugal rights. Respondent No.1

is a woman of suspectious nature. Petitioner constructed

house at Chinamushidiwada with the amount borrowed

from his sister by name A.Neeraja and by obtaining loan

from Department and, as he borrowed amount from his

sister, he transferred house to his sister. Petitioner also

filed G.O.P. No.1207 of 2009 before the Family Court,

Visakhapatnam for custody of his son. Respondent Nos.1

and 2 are not entitled to claim any relief as respondent

No.1 has been awarded Rs.6,000/- p.m. towards

maintenance as per the orders in O.P.No.687 of 2005 and

prayed for dismissal of the revision.

During enquiry, PWs.1 to 4 were examined and

marked Exs.P.1 to P.9. Respondent examined himself as

RW.1 and marked no documents. Upon hearing the

arguments, the learned Magistrate, passed an order of

protection to respondent No.1 and her son, and directed

petitioner not to cause domestic violence under Sections 18

and 19 of the Act; awarded maintenance of Rs.5,000/- (out

of which Rs.3,000/- to PW.1 and Rs.2,000/- to her son)

from the date of petition i.e. 07.05.2007 under Section 20

of the Act; and compensation of Rs.20,000/- to respondent

No.1 towards mental stress and agony under Section 22 of

the Act.

Aggrieved by the order passed in DVC.No.2 of 2008

dated 02.08.2013, the petitioner preferred an appeal before

the Sessions Court in Crl.A.No.223 of 2013 with

Crl.MP.No.492 of 2013. The Sessions Judge, upon hearing

the arguments of both counsel, dismissed the appeal

having found no merits and confirmed the order dated

02.08.2013 passed in D.V.C.No.2 of 2008 by the V

Metropolitan Magistrate, Anakapalli.

Being aggrieved thereby, the present Criminal

Revision Case is filed mainly on the ground that both the

Courts failed to appreciate the evidence in proper

perspective and that DVC was filed only to harass the

petitioner and to cause metal harassment. It is further

contended that the Courts below failed to take into

consideration that the petitioner herein and his widowed

sister are residing in plot No.11-55, Sramasakthi Nagar,

Chinnamushidiwada, Pendurthy, which is the self-acquired

property of the petitioner. As there are serious disputes, it

is difficult to allow respondent No.1 to stay under one roof

with the petitioner. Petitioner also expresses his readiness

and willingness to pay rent for alternate accommodation

and, therefore, directing the petitioner to allow the

respondents to stay in the same premises is not legal and

valid. Therefore, passing order, under Section 19(1)(a) of the

Act, is illegal.

It is also contended that, despite respondent No.1

obtained an order in O.P.No.687 of 2005 for maintenance

at the rate of Rs.6,000/- and, again, claiming maintenance

at the rate of Rs.5,000/- in DVC is contrary to law and that

there is no justification to grant residence order and prayed

to set aside the order of the Magistrate in DVC.No.2 of 2008

dated 02.08.2013 as confirmed by the Sessions Court in

Crl.A.No.223 of 2013.

During hearing, Sri V.Praveen Kumar, learned

counsel for the petitioner, contended that, since there are

serious disputes between the petitioner and respondent

No.1 herein regarding their marital life, the Magistrate

erroneously passed an order under Section 17 of the Act

and, if such order is allowed to sustain, it may lead to

serious consequences; that apart, awarding maintenance of

Rs.5,000/-, in favour of respondent Nos.1 and 2 in addition

to maintenance awarded in O.P.No.687 of 2005, is illegal;

that the order of residence, under Section 18 of the Act, is

contrary to the order under Section 19 (1)(a) of the Act;

and prayed to set aside the orders passed by the Courts

below. Whereas Sri Gopala Krishna Kalanidhi supported

the orders under revision in all respects and prayed to

confirm the same.

The jurisdiction of this Court, under Sections 397 and

401 Cr.P.C, is limited and this Court, while exercising

power under Sections 397 and 401 Cr.P.C, normally would

not interfere with the concurrent fact findings by the

Courts below unless the Court finds that there is manifest

perversity or apparent error in the fact finding recorded by

the Courts below. Therefore, it is for the petitioner to bring

to the notice of this Court that there is manifest perversity

or apparent error in the fact findings recorded by the Court

below.

The first and foremost contention raised by the

counsel for the petitioner is that plot No.11-55,

Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, is his

self-acquired property, whereas he contended before the

Magistrate that he constructed house by borrowing amount

from his sister and obtaining loan from Department.

In view of serious disputes between the petitioner and

respondent in relation to matrimonial life, permitting to

stay the respondent in the same house with the petitioner

may lead to serious consequences and, though the

petitioner is ready and willing to pay rent for her separate

stay, the order of Magistrate and Sessions Court, under

Section 19(1)(a) of the Act, is impermissible under law

and prayed to set aside the same. Undisputedly, the Trial

Court passed an order under Section 19 (1)(a) of the Act

directing the petitioner herein and his relatives not to cause

domestic violence and allow her to stay in plot No.11-55,

Sramasakthi Nagar, Chinnamushidiwada, Pendurthy and

restrained from obstructing her not to live in the said house

(vide para 22, point No.2). In view of the admission made by

the petitioner that he is the owner of plot No.11-55,

Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, but,

in the counter, he admitted that, at the intervention of his

employer, there was reunion between the parties and

stayed in port quarters at Saligramapuram and petitioner

was subjected to harassment by respondent No.1 and she

left the house. This fact was not proved by the petitioner

herein, however, respondent No.1 contended that they lived

together in plot No.11-55, Sramasakthi Nagar,

Chinnamushidiwada, Pendurthy. The Trial Court and

Appellate Court, having found that respondent No.1 was

subjected to domestic violence, as defined under Section 3

of the Act, concluded that petitioner and respondent No.1

lived together in house No.11-55, Sramasakthi Nagar,

Chinnamushidiwada, Pendurthy, and passed an order of

restraint, under Section 19(1)(a) of the Act, and the said

order though assailed before the Sessions Court, the

Sessions Courts confirmed the same.

The word "shared household", as defined under

Section 2(s), means a household where the person

aggrieved lives or at any stage has lived in a domestic

relationship either singly or along with the respondent and

includes such a household whether owned or tenanted

either jointly by the aggrieved person and the respondent,

or owned or tenanted by either of them in respect of which

either the aggrieved person or the respondent or both

jointly or singly have any right, title, interest or equity and

includes such a household which may belong to the joint

family of which the respondent is a member, irrespective of

whether the respondent or the aggrieved person has any

right, title or interest in the shared household.

In view of the wider definition of the word 'shared

household', respondent No.1, if proved that she lived either

singly or along with the petitioner in domestic relationship,

is entitled to claim protection under Section 19(1)(a) of the

Act. Here, the evidence of PWs.1 to 4 that respondent No.1

lived, along with the petitioner, and continues to live

therein even on the date of filing petition. Therefore, the

Trial Court and Appellate Court believed the evidence of

PWs.1 to 4 and passed an order under Section 19(1)(a) of

the Act and the same was confirmed by the Sessions Court

while deciding appeal. The factum of living together is a

question of fact. When both the Courts below recorded a

concurrent finding that they lived together in house No.11-

55, Sramasakthi Nagar, Chinnamushidiwada, Pendurthy, it

cannot be disturbed while exercising jurisdiction under

Sections 397 and 401 Cr.P.C. as nothing has been brought

to the notice of this Court that the findings of the Courts

below are manifestly perverse or apparently erroneous or

based on no evidence. The only contention before this

Court in the grounds of revision, is that, in view of serious

disputes, respondent Nos.1 and 2 cannot be permitted to

stay in house No.11-55, Sramasakthi Nagar,

Chinnamushidiwada, Pendurthy, and no other ground is

raised disputing stay of respondent Nos.1 and 2 in the

shared household as defined under Section 2(s) of the Act.

Therefore, the disputes that arose between the parties is

not a ground to deny the relief under Section 18 of the Act.

The Apex Court, in S.R.Batra v. Smt Taruna Batra1,

had an occasion to define the word 'shared household'

keeping in mind the definition of Section 2(s) of the Act

and, observed that, it is quite possible that the husband

and wife may have lived together in dozens of places e.g.

with the husband's father, husband's paternal grand

parents, his maternal parents, uncles, aunts, brothers,

sisters, nephews, nieces etc. If the interpretation is

accepted, all these houses of the husband's relatives will be

shared household and the wife can as well insist to live in

all the houses of her husband's relatives merely because

she had stayed with her husband for some time in those

houses in the past. Therefore, interpreting the word 'shared

household' with reference to Section 19(1)(f) of the Act, and

claiming alternative accommodation can only be made

against the husband and not other in-laws relatives. The

Supreme Court expressed opinion that the wife is entitled

to claim right to residence in a shared household, and

`shared household' would only mean the house belonging

to or taken on rent by the husband, or the house which

belongs to the joint family of which the husband is a

member. The property neither belonged to Amit Batra nor

AIR 2007 SC 1118

was it taken on rent by him nor was it a joint family

property of which the husband Amit Batra is a member;

that it is the exclusive property of mother of Amit Batra;

and, therefore, it cannot be called a `shared household'. In

view of the observations made in para 20 of the judgment,

the house, where wife and husband lived together either

belonging to any of them or belonging to joint family or

husband is having share in it, alone shall be taken as

'shared household'.

In the present facts of the case, it is admitted fact that

house No.55, Shramikshakthi Nagar, China Mushidiwada,

Pendurthi, was constructed by the petitioner and

respondent No.1 and they lived together in domestic

relationship and she is entitled to continue to live in the

shared household in view of Section 17 of the Act. Section

17 of the Act contemplates that every woman in a domestic

relationship shall have right to reside in the shared

household, whether or not she has any right, title or

beneficial interest in the same. Here, respondent No.1 lived,

along with the petitioner, in domestic relationship in house

No.55, Shramikshakthi Nagar, China Mushidiwada,

Pendurthi, and the said fact was accepted by the Magistrate

and Sessions Court and not even questioned such finding

in any of the grounds of appeal. Therefore, in view of Clause

2 of Section 17, the aggrieved person shall not be evicted or

excluded from the shared household or any part of it by the

petitioner - husband. Respondent No.1 asserted that she

continues to live in the house belonging to the petitioner

house No.55, Shramikshakthi Nagar, China Mushidiwada,

Pendurthi, and shall not be evicted or excluded from the

shared household except by following due process of law.

Therefore, the restraint order passed by the Magistrate and

confirmed by the Sessions Court, under Section 19(1)(a) of

the Act, in favour of respondent Nos.1 and 2 and against

petitioner from dispossessing or evicting or excluding

shared household No.55, Shramikshakthi Nagar, China

Mushidiwada, Pendurthi, is in accordance with law.

It is the specific contention that the petitioner is

willing to pay rent for her residence and there is no

possibility of living together under one roof in view of

serious disputes. The order, under Section 19(1)(a) of the

Act, to reside in a shared household is totally distinct from

the order under Section 19, residence order. But, in the

present facts of the case, though respondent No.1 claimed

various reliefs including residence order under Section 19,

and right to reside in a shared household under Section 17,

the Magistrate passed an order under Section 17 while

denying residence order under Section 19 of the Act. If the

Magistrate Court and Sessions Court passed a residence

order under Section 19, payment of rent may be one of the

reasons to deny right to reside in a shared household under

Section 17. According to Section 19(1)(f) of the Act, the

Magistrate may direct the husband to secure same level of

alternate accommodation for the aggrieved person as

enjoyed by her in the shared household or to pay rent for

the same, if the circumstances so require. Thus, both

Section 17 and Section 19 of the Act must be read together.

Section 19(1)(a) of the Act enables the Magistrate to restrain

the respondent from dispossessing or in any other manner

disturbing the possession of the aggrieved person from the

shared household, whether or not the respondent has legal

or equitable interest in the shared household. While

deciding an application under Section 12(1) of the Act, the

Magistrate passed the order under Section 19(1)(a) of the

Act. But, in view of the serious disputes between the

petitioner and respondent No.1 regarding their matrimonial

relationship, the Magistrate ought to have exercised his

power under Section 19(3) of the Act with condition to

execute bond if the circumstances so require. The Act did

not enumerate any circumstances under which the

Magistrate can exercise power under Section 19(3) of the

Act but it varies from case to case.

In the present facts of the case, respondent No.1

lodged a complaint for the offence punishable under

Section 498-A IPC and earlier when O.P.No.687 of 2005

was pending before the Family Court, Visakhapatnam, she

obtained an order of maintenance and filed E.P. one after

another for realization of various amounts in O.P. All these

circumstances clinchingly establish that there is bitter

enmity between the petitioner and respondent No.1. It is

difficult to live together under one roof. If the court passed

an order, it may lead to serious consequences of filing cases

against one another or sometimes it may lead to serious

disputes of causing physical injury or bloodshed. To avoid

such consequences, it is appropriate to pass an order

under Section 19(1)(f) of the Act, read with Sub-section 3 of

the Act directing the petitioner to provide same level of

alternate accommodation to respondent Nos.1 and 2 as

enjoyed by them in the share household in house.55,

Shramikshakthi Nagar, China Mushidiwada, Pendurthi, or

pay rent for the same. Though the Trial Court passed such

an order, the Appellate Court did not appreciate the

contention with reference to the provisions of the Act and

committed an error in confirming the order passed by the

Court.

The Supreme Court in Samir Vidyasagar Bhardwaj

v. Nandita Samir Bhardwaj (C.A.No.6450 of 2017), while

considering Section 19(1)(b) of the Act, directed to secure

alterate accommodation for the aggrieved party and pay

rent for the same and restrained the respondent from or

renouncing property rights or valuable security of the

aggrieved party. Since the Courts below passed an order

under Section 19(1) of the Act, the same principle can be

applied to the present facts of the case. Therefore, both the

Courts committed an error in passing an order under

Section 19(1)(a) of the Act without considering serious

disputes between the petitioner and respondent No.1.

Having considered facts and circumstances of the

case, I find this is a fit case to set aside the restraint order

passed under Section 19(1)(a) of the Act while directing

petitioner to secure alternate accommodation of the same

level for the aggrieved person as enjoyed in the shared

house hold or pay rent for the same and to execute bond

with or without surety for preventing commission of

domestic violence and, accordingly, the order passed by the

Magistrate and confirmed by the Appellate Court is

modified.

The second contention urged before this Court is that

though respondent No.1 obtained an order in O.P.No.687 of

2005 on the file of Family Court, Visakhapatnam for

maintenance at the rate of Rs.6,000/- p.m, she claimed

monetary relief under Section 20(1)(d) of the Act i.e.

maintenance on the ground of refusal and neglect to

maintain her.

'Economic abuse' is defined under Section 3(iv) of the

Act. The word 'domestic violence' though defined under

Section 1(f), it is amplified under Section 3 which includes

various types of abuses. Explanation 1 of Section 3

enumerates such of those abuses viz.(i) physical abuse; (ii)

sexual abuse (iii) verbal and emotional abuse; and

(iv) economic abuse. This Court is concerned with

'Economic abuse'. Earlier, in O.P.No.687 of 2005 on the file

of Family Court, Visakhapatnam, it was established that

the petitioner herein failed to provide necessary

maintenance. According to clause (iv), of Explanation I of

Section 3, 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. Therefore, failure to provide

maintenance also amounts to 'economic abuse'. Therefore,

failure to provide maintenance would mean subjecting

respondent No.1 to domestic violence. According to clause

(d) of Section 20, while disposing an application under

sub-section (1) of Section 12, the Magistrate may direct the

respondent to pay monetary relief to meet the expenses

incurred and losses suffered by the aggrieved person and

any child of the aggrieved person as a result of the domestic

violence and such relief may include maintenance for the

aggrieved person as well as her children, if any, including

an order under or in addition to an order of maintenance

under Section 125 Cr.P.C. or any other law for the time

being in force. Therefore, clause (d), of Section 20 of the

Act, manifestly envisages to award maintenance in addition

to an order of maintenance under Section 125 Cr.P.C.

There is no fetter on the power of the Magistrate to pass the

order. The Magistrate has to take into consideration the

relevant circumstances which means standard of living;

maintenance awarded under Section 125 or under any

other Act for the time being in force; and the cost of living

as on the date of deciding petition. According to the

allegations made in the petition, the petitioner herein was

drawing Rs.15,000/- as salary. Hence the petitioner's

salaried income was not disputed while denying that he is

not receiving any amount from any other sources.

Therefore, it is proved that the petitioner is receiving

Rs.15,000/- as salary. In such case, the income of the

petitioner alone shall be taken while fixing maintenance. If

salary alone is taken into consideration, granting

maintenance at Rs.5,000/- p.m. to respondent Nos.1 and

2, in addition to maintenance awarded in O.P.No.687 of

2005 on the file of Family Court, Visakhapatnam, is

unreasonable and exorbitant and it will be more than 3/4th

of the salary received by the petitioner. Therefore, granting

maintenance at the rate of Rs.5,000/- to respondent Nos.1

and 2 (i.e. Rs.3,000/- and Rs.2,000/- respectively) is

excessive and unreasonable. In view of the maintenance

already awarded by the Family Court, Visakhapatnam and,

taking into consideration the facts and circumstances,

including the income of the husband, standard of living,

and the house enjoyed by respondent No.1 while living in

shared household in domestic relationship, an amount of

Rs.1,000/- is awarded as maintenance to respondent No.1

in addition to maintenance awarded in O.P.No.687 of 2005

while maintaining maintenance at the rate of Rs.2,000/-

p.m. to respondent No.2. Hence, the order under Section

20(1)(d) of the Act passed by the Magistrate and confirmed

in the Sessions Court, is modified awarding maintenance at

the rate of Rs.1,000/- p.m. to respondent No.1 and

Rs.2,000/- to respondent No.2 in addition to maintenance

awarded in O.P.No.687 of 2005 by the Family Court,

Visakhapatnam.

The Magistrate awarded damages in the form of

compensation at Rs.20,000/- to respondent No.1 in terms

of Section 22 of the Act for mental stress and agony. This

was not specifically challenged in the revision in any of the

ground or during arguments. In the absence of specific

ground raised in the grounds of revision or urged during

hearing, this Court, exercising power of revision under

Section 397 Cr.P.C, shall not disturb such findings.

Therefore, I find no ground to reverse or set aside the order

passed by the Magistrate and Sessions Judge under

Section 22 of the Act awarding damages by way of

compensation of Rs.20,000/-

In view of my foregoing discussion, the order passed

by the Magistrate and confirmed by the Appellate Court is

modified directing the petitioner to secure alternate

accommodation of the same level for the aggrieved person

as enjoyed in the shared house hold or pay rent for the

same and to execute bond with or without surety for

preventing commission of domestic violence.

The Criminal Revision Case is disposed of to the

extent indicated above.

Miscellaneous petitions pending, if any, shall stand

dismissed.

                                M.SATYANARAYANA MURTHY,J

Date:       .11.2017
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