after 15yrs separation wife files DV! magistrate grants maintenance, residence !!, husband runs to HC, HC quashes the whole tamasha !!
* married on 8.5.1990 at Amravati
* out of wedlock son was born on 24.2.1991.
* wife and son allegedly treated with cruelty for demand of dowry by hubby and relatives.
* Husband allegedly deserted both wife and kid in the year 1992 and since then respondent they are living separately with wife’s father at his village
* divorce case between couple dismissed by lower courts
* appeal on divorce case (dismissal) pending / stayed by higher courts
* wife files DV somewhere in year 2007 !!
* magistrate provides maintenance, money in lieu of residence etc etc by order dated 31.10.2007
* husband runs to HC
* HC thankfully quashes the case !!!
* the HC does NOT say that acts PRIOR to DV act are NOT maintainable under the DV case !! , it just goes on to say that this is an undeserving case !!
* "….Perusal of the Explanation – II shows that the Court is required to take into consideration overall facts and circumstances. Explanation – II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases, …."
….and the explanation is "….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."…..
Bombay High Court
In The High Court Of Judicature At … vs Age About 50 Years, R/O Chimote on 30 March, 2010
Bench: A. B. Chaudhari
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.37/2008
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Kishor s/o Shrirampant Kale, age about 50 years, r/o Chimote
Layout, Dastur Nagar, Amravati.
1. Sou. Shalini w/o Kishor Kale, age about 42 years.
2. Master Shantnu s/o Kishor Kale, age about 15 years, (Minor – through guardian, Respondent No.1).
Both resident of c/o Sahebrao Gadhawe
Kolha – Kakda, Tq. Achalpur, Dist. Amravati.
3. State of Maharashtra,
Rajapeth Police Station,
Amravati, District Amravati.
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[Shri P.P. Mahalle, Adv. for petitioner]
[Ms T.H. Udeshi, Adv. for respdt. Nos.1 & 2]
[A.P.P. for respdt. No.3]
CORAM:- A.B. CHAUDHARI, J.
Date of reserving the judgment :- 17.02.2010
Date of pronouncing the judgment :- 30.03.2010
1. In the present writ petition, the petitioner – husband has put to challenge the proceedings in Misc. Criminal Complaint Case wp37.08.odt 2/22 No.314/2007, filed by respondent Nos.1 and 2 in the Court of Chief Judicial Magistrate, Amravati under Section 12 r/w Section 19 an 20 of the Protection of Women from Domestic Violence Act, 2005 as not maintainable and also the orders dated 31.10.2007 and 11.12.2007, made by the Courts below in the said proceedings.
2. Respondent No.1 is the wife of petitioner and respondent No.2 is the son of the petitioner. They filed complaint under Section 12 r/w 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (For short, hereinafter referred to as ‘the Act of 2005’) in the Court of Chief Judicial Magistrate, Amravati. In their complaint they stated that respondent No.1 was married to the petitioner on 8.5.1990 at Amravati and out of their wedlock respondent No.2 was born on 24.2.1991. Respondent No.1 was treated with cruelty for demand of dowry by the petitioner and his relatives. Finally, the petitioner deserted both the respondent Nos.1 and 2 in the year 1992 and since then respondent Nos.1 and2 are living separately with her father at his village and thereafter at Amravati. She filed proceedings for grant of maintenance which were decided on 30.11.1996 and both respondents were awarded maintenance amount by the Court and presently the maintenance i.e. awarded to them in the proceedings under Section 125 of the Code of Criminal Procedure is Rs.1800/- per month for both. The petitioner had initiated divorce proceedings and were dismissed and now appeal is said to be pending. The petitioner and his mother have sold ancestral house that was located at Kishor Nagar, Amravati with an oblique motive to keep the applicants away from its enjoyment and benefits. The petitioner is a lecturer in Junior College and earning salary of Rs.25,000/- per month. Respondent No.2 is taking education in 12th standard and now he needs separate accommodation for his studies, which is not available at the house of her brother. Her brother has now been asking respondent Nos.1 and 2 to make their own arrangement for residence and therefore they require sum of Rs.7,000/- per month to each of them, which the petitioner can easily pay. The petitioner must provide accommodation to both the respondents as he is under legal obligation to do so. The cause of action for filing the complaint arose initially in the year 1992. The respondent Nos.1 and 2 were deserted and neglected and it continued.
3. Based on these facts, reliefs were claimed or directions to the petitioner to pay Rs.7,000/- per month to each for maintenance from the date of application and to allow the respondents to reside in the house of the petitioner or to pay rent for other accommodation. The petitioner appeared before the trial Court and filed application for dismissal of the complaint and also raised objection about maintainability of the complaint. Judicial Magistrate First Class, Court No.5, Amravati rejected the application (Exh.12) for dismissal of complaint by his order dated 31.10.2007 and by order dated 31.12.2007 allowed application (Exh.5) in the complaint by directing the petitioner to pay maintenance @ Rs.2,000/- per month to respondent No.1 and Rs.1,000/- per month to respondent No.2 by way of interim maintenance and Rs.1200/- per month by way of rent of house. Appeal that was filed by the petitioner was dismissed by the appellate Court by order dated 11.12.2007. Hence, this petition under Article 227 of the Constitution of India.
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4. Learned Counsel for the petitioner in support of the writ petition vehemently argued that the complaint that was filed under the Act of 2005 was itself not maintainable and the trial Court ought to have allowed application (Eh.12) for dismissal of complaint. The complaint was not filed in Format-II and Sections 5 and 7 of the Act of 2005 provide for mandatory forms.
5. Learned Counsel for the petitioner invited my attention to Format-II under Rule 6 (1) of the Protection of Women From Domestic Violence Rules, 2006 and the various items mentioned in the said format, which provide for giving information as mentioned therein and according to him, in this case there is failure on the part of the respondents in giving the material details, required as per the said format with a view to suppress the material facts. Learned Counsel repeatedly argued that the details required by the said format were not furnished by the respondents in order that the facts if brought before the Court as per the said information required would have entailed dismissal of the complaint itself. According to him, it is for this reason this format – II will have to be held to be mandatory requirement and upon failure thereof the consequence ought to be the dismissal of such application for non-compliance of mandatory provisions of law. Learned Counsel then argued that it is an admitted fact that since 7.11.1992 i.e. almost 15 years before filing of this complaint, the respondents have been living separate from the petitioner and it is not even the case of respondent Nos.1 and 2 that during this period of 15 years the respondents had seen each other even eye to eye much less had any contact of any nature whatsoever. Learned Counsel then argued inviting my attention to Section 3 of the Act of 2005, which defines domestic violence and the complaint filed by the respondents does not at all disclose any domestic violence within the meaning of said Section 3 of the Act of 2005. The domestic violence according to him has to be shown to have occurred in the near or recent past and since in the instant case from 1992 onwards admittedly there had been no contact, communication or relationship whatsoever the existence of domestic violence cannot be presumed even on the contents or averments in the complaint taken to be true at their face value.
6. Inviting my attention to paragraph regarding cause of action, learned Counsel for the petitioner argued that it is the case of the respondents that cause of action is of the year 1992 and therefore various prayers made in the complaint on the basis of the averments in the complaint were untenable. According to learned Counsel for the petitioner, unless it is shown that there has been domestic violence in the recent past before filing the complaint, the Court cannot entertain the complaint in respect of the cause of action, which according to the respondents arose firstly in the year 1992. According to learned Counsel for the petitioner the complaint nowhere shows single allegation about any restriction or prohibition or the deprivation of any act on his part at a particular time or date or period reasonably recent in point of time before filing of the complaint and therefore, no wp37.08.odt 7/22 domestic violence can be said to have been constituted and consequently the complaint could not have been entertained and was liable to be dismissed by the trial Court. According to him, it is not the case of the respondents that after 1992, respondents had any access to facilities or accommodation etc. or that there was any deprivation thereof by the petitioner. Since the averments in the complaint do not disclose any cause of action and since according to learned Counsel for the petitioner filing of the complaint clearly amounts to abuse of process of the Court, this Court acting in its supervisory jurisdiction may dismiss the complaint as not maintainable as the trial Court did not have jurisdiction to entertain the complaint itself under the Act of 2005. No act of violence was at all alleged against the petitioner in the complaint right after 1992. Respondent No.2 cannot become aggrieved person, he being a minor child on the date of application and thus his complaint was also not maintainable.
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7. Per contra, learned Counsel for respondent Nos.1 and 2 vehemently opposed the petition and argued that both the respondents became aggrieved persons in the light of definition under Section 2(a) and 2(b) of the Act of 2005. According to her, there is no dispute that the legal status of marriage between the petitioner and respondent No.1 and paternity of respondent No.2 is also not in dispute and consequently respondent No.1 is the legally married wife and respondent No.2 is the child born out of the wedlock between petitioner and respondent No.1 and therefore as per Section 2 (f) of the Act of 2005 there is domestic relationship by marriage. According to her, domestic violence as defined in Section 3 of the Act of 2005 is not to be understood with the literal meaning of the word violence as sought to be canvassed by learned Counsel for the petitioner and in terms of Section 3 of the Act of 2005 amplitude thereof is very wide and the Act of 2005 being beneficial piece of legislation settled interpretation in relation thereto will have to be applied while interpreting the provisions of Act of 2005. It is not necessary for constituting the domestic violence the party should come in contact or physical contact as is clear from the explanation (iii) of verbal and emotional abuse and explanation (iv) economic abuse. She further submitted that economic abuse, refusal to provide maintenance, house accommodation or financial resources or such other facilities as the respondents are entitled to from the petitioner/husband without there being any actual violence amounts to domestic violence since the said definition of domestic violence under Section (3) of the Act of 2005 is inclusive in nature. These are ultimately the matters which are required to be decided on evidence and the question can be raised by the petitioner in the trial Court where the trial is on. The extraordinary jurisdiction under Article 227 of the Constitution of India cannot be exercised in the present matter and it is for the trial Court to determine upon recording evidence etc. answers to the questions raised in the present writ petition. The son of the petitioner and respondent No.1 i.e. respondent No.2 has grown up and is taking education in engineering and both the respondents who are living together want to live in Amravati for his education and consequently they require more amount towards maintenance and they also require accommodation at Amravati, which the petitioner is obliged to provide and that is why grant of house rent allowance @ 1200/- per month has been made by the Courts below. There is averment in the complaint about disposal of the ancestral house property of the petitioner and his mother and the said act on their part would fall within the meaning of economic abuse. It is not necessary that there would be no domestic violence as defined under the Act merely because of the separation from the year 1992. Learned Counsel for respondents, therefore, prayed for dismissal of writ petition.
8. I have heard learned Counsel for the rival parties at length on some dates. I have gone through the copy of the complaint under wp37.08.odt 10/22 Section 12 r/w Sections 19 and 20 of the Act of 2005 carefully. Following facts are not in dispute.
The petitioner and respondent No.1 were married on 8.5.1990 and respondent No.2 was born on 24.2.1991. Thereafter on 7.11.1992 respondent No.1 went to her father with her son at his village and started living with her father and thereafter brother since the year 1992. Litigation between the parties thus started after 1992 and award of maintenance to both respondent Nos.1 and 2 was made by the Court and the amount of monthly maintenance is being paid to respondent Nos.1 and 2 in those proceedings under Section 125 of the Code of Criminal Procedure. A decree of divorce was passed on 2.10.2008 and in the appeal the said order has been stayed, in the result the legal status of respondent No.1 as a married wife of petitioner continues. On the date of filing of the application, respondent No.2 – son was admittedly minor but immediately after few months of the filing thereof he became major i.e above 18 years. Respondent No.2 is taking education and as per submission made by respondent No.1 he is now taking education in Amravati in some engineering college. There is further no dispute that after a departure of respondent No.1 from the house of petitioner on 7.11.1992 there had been neither any conduct nor communication or relationship of wp37.08.odt 11/22 whatsoever nature except for the relationship as understood in law. In other words, practically speaking, there had been no communication or relationship between them for all these number of years till the date of filing of complaint in question and admittedly after period of 15 years respondent No.1 filed the complaint in question alleging domestic violence under the Act of 2005 on the ground that the petitioner had given false information to his authority, showing respondent No.1 as dead and thus removing her name as his nominee and that the petitioner and his mother disposed of ancestral house at Kishor Nagar, Amravati with a view to keep the respondents away from its enjoyment and benefits ; and respondent No.2 wants to pursue his studies and does not have independent accommodation for studies at the house of her brother and that wife of her brother wants her to make her own separate arrangement of residence and that they need Rs.7,000/- per month each towards maintenance and respondent No.2 being grown up, needs company of his father, who is under legal obligation to maintain both the respondents. In paragraph No.7, regarding cause of action, it is stated that cause of action arose in the year 1992 when they were deserted and it is continued one since the wife of her brother had asked her to make her own arrangement of accommodation. It is on the basis of these averments in the complaint reliefs are claimed for grant of maintenance @ Rs.7,000/- per month and for residence at Amravati where petitioner is living or to pay rent in lieu thereof.
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9. Reading of the entire complaint to my mind it would be pertinent to note that the complaint does not contain a single averment that before filing the complaint, the petitioner had committed any act of omission or commission or shown any such conduct by which he wanted to deprive any of the respondents from enjoyment of shared household and maintenance or the petitioner had at any point of time prohibited or restrained or restricted any alleged continued access to the resources or facilities which the respondents could be said to have been entitled to use or enjoy by virtue of their domestic relationship. To put it in other words, there is no assertion anywhere in the complaint that the respondents had made any such demand for accommodation for any reason whatsoever with the petitioner and the petitioner had denied to provide the same or had omitted to do so even by conduct of any nature whatsoever. It is in the light of these averments in the complaint the fate of the present matter will have to be decided. The law is well settled that the averments in the complaint even if taken to be true at their face value if no offence is made out ; and in the instant case offence of domestic violence, the complaint is liable to be thrown out as the Court does not get jurisdiction to entertain the same in the absence of any such offence having been made out. It is with this legal position the present case will have to be carefully examined in the light of the various provisions of the Act of 2005.
10. In the instant case, peculiar facts are that admittedly the petitioner and respondents have not been in contact with each other physically or otherwise for the last 15 years before filing of the complaint against him. In other words, suddenly after a big gap of 15 years the Act of 2005 having been brought into force, respondent Nos.1 and 2 approached the Court with the grievance that they want higher amount of maintenance and rental in lieu of accommodation as there is domestic violence on the part of the petitioner, which constitutes economic abuse and since the economic abuse is included in the domestic violence under Section 3 of the Act of 2005, offence of domestic violence is made out. The moot question, therefore, in the light of these admitted facts is whether the complaint could be said to be maintainable. In so far as the averments regarding showing name of respondent No.1 as nominee in the service book or she being shown as dead are vague. In so far as averments regarding disposal of ancestral house at Kishor Nagar by petitioner and his mother are as vague as could be and it is not possible to hold that on such vague averments the complaint should be entertained on the ground that the averments could be proved in the evidence. That is not enough.
The Act of 2005 opens with the preamble as under : "An Act 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 and for matters connected therewith or incidental thereto."
11. Following definitions of the Act of 2005 are relevant.
"2 (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;
(b) "child" means any person below the age of eighteen years and includes any adopted, step or foster child.
(f) "domestic relationship" means 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 relationship in the nature of marriage, adoption or are family members living together as a joint family.
(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household where 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."
12. Definition of ‘domestic violence’ is to be found in Section 3 of the Act of 2005, which reads thus.
"Section 3 (a) harms or injuries or endangers the health, safety, life limp 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
Explanation I – For the purposes of this section, – (i) ………………
(iv) "economic abuse" includes –
(a) deprivation of all or any economic or financial resources to which the aggrieved person in 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 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 wp37.08.odt 17/22 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."
13. Perusal of the definition of ‘aggrieved person’ shows that respondent No.1 being married wife of petitioner, respondent No.2 being son of petitioner and minor till he attains majority would be aggrieved persons. Therefore, reading definition of ‘aggrieved person’ with the definition of ‘domestic relationship’ there is no manner of doubt that the application at the instance of respondent No.1 as a wife and at the instance of respondent No.2 till he attains the age of majority, is maintainable. The Court is, however, entitled to decipher the period of minority and majority of respondent No.2. The expression ‘has been’ and harms, injures or endangers’ occurring in the definition of aggrieved person and elsewhere will have to be interpreted keeping in mind the opinion expressed by the Apex Court in the case of The Secretary, Regional Transport Authority, Bangalore and another…Versus…D.P Sharma and another, reported in 1989 Supreme Court 509, in particular paragraph No.15, which reads thus.
"15. ……..In our opinion, whether the expression ‘has been’ occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute."
Now Explanation – II clearly provides that ‘overall facts and circumstances of the case shall be taken into consideration’. In the case at hand, the respondents have abruptly after a long gap of 15 years alleged domestic violence against the petitioner. There is no proximity shown anywhere nearer to the date of filing the complaint or any deprivation, prohibition or restriction upon demand being made before filing the complaint.
14. Looking to the definition of ‘shared household’ it can be seen that the words used are ‘at any stage has lived in a domestic relationship or has right in such household’. Definition of ‘domestic violence’ in Explanation – I (iv) to Section 3 shows that economic abuse has been by inclusion defined as ‘domestic violence’. Explanation – I (iv) ‘economic abuse’ has further been elaborated.
Following are the dictionary meanings :
Deprivation – denial of something considered essential.
Prohibition – action to prevent.
Restriction – put a limit on.
Perusal thereof particularly in clause (a) and (c) show that aggrieved person has to be deprived of the economic or financial resources or maintenance by the petitioner or the aggrieved person requires out of necessity for herself and children including payment of rental related to accommodation and maintenance. Now in the instant case, it is not in dispute that both respondents are getting maintenance as per the orders of the Court passed in various proceedings way back in the year 1996 and therefore, to say that the petitioner has committed domestic violence by not paying any maintenance would be incorrect. What the respondents want is the higher amount of maintenance due to the higher cost of living but then there is nothing on record to show in the complaint that any such higher amount of maintenance for any good reasons was demanded by them from the petitioner and he refused or omitted to accede to such demand. Similar is the case of the rental. Since it is an admitted fact that complaint does not show single averment to the effect that accommodation in the house of the petitioner was demanded by both of them or the petitioner was doing any such acts resulting into deprivation of the accommodation and/or entitled to consequent payment of rental thereof in lieu of accommodation due to failure to provide one.
Looking to Explanation – I (iv) sub clause (c) to Section 3 of the Act of 2005 the same shows that there has to be prohibition or restriction to continued access to resources which the aggrieved person is entitled to use and enjoy. There is neither any prohibition averred in the complaint anywhere by the petitioner thereof nor any averment that he had put any restriction or full or part use thereof or that there was use made by the respondents just before filing of the complaint or recent past before the complaint and that the continuity thereof was broken by the petitioner. On the contrary, it is an admitted position that for the last 15 years there has been no contact or relationship between them.
14. Perusal of the Explanation – II shows that the Court is required to take into consideration overall facts and circumstances. Explanation – II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases, which will be filed under the provisions of the Act of 2005. In the instant case the various factual aspects which I have noted above and in particular regarding the total eclipse for the period of 15 long years and in the absence of any complaint regarding domestic violence at any point of time before filing of the complaint in the recent past wp37.08.odt 21/22 thereof or within reasonable period this Court is of the opinion that overall facts and circumstances of this case clearly show that even if the averments in the complaint are taken to be true at their face value, no case of domestic violence can even be inferred by the Court. The respondents could have adopted their remedy available under the other Laws for enhancement of maintenance or accommodation or rental or as the case may be, but certainly in the light of the above discussion the respondents were not entitled to take recourse to the Act of 2005. Consequently, the Court did not get jurisdiction under Section 27 of the Act of 2005 to entertain the complaint which was not maintainable for the above reasons. Both respondents, however, were entitled to take recourse to remedies under other Laws.
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15. It is true as argued by learned Counsel for the respondents that the Act of 2005 is beneficial piece of legislation, but then the provisions of the Act of 2005 and in particular Explanation – II thereof clearly show that domestic violence cannot readily be inferred but will have to be found out on the facts and circumstances of each case. In the instant case according to me domestic violence having been alleged only after 15 years by the respondents would constitute an abuse of process of law. Certainly this beneficial piece of legislation would be available to those who are entitled to the benefits thereof wp37.08.odt 22/22 and in the instant case, I have found that the respondents are not entitled to at least under the Act of 2005 though they may be entitled to the reliefs sought by them in the proceedings in some other Law.
16. In the result, writ petition must succeed. Hence, I make the following order.
(i) Rule is, therefore, made absolute and it is held that Misc. Criminal Complaint Case No.314/2007 before the Judicial Magistrate First Class, Court No.5, Amravati under Section 12 r/w Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 is not maintainable and is thus quashed and consequently, all the orders passed in the said complaint by the Courts below are quashed.
No order as to costs.
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CASE FROM JUDIS DOT NIC / MUMBAI HC / INDIAN KANOON WEB SITE
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist