Daily Archives: April 7, 2016

Either lump sum OR monthly maintenance u/s 20 DV act. NOT both ! Cal HC Gem !

a mother files DV case on three of her children. The learned MM allows her petition and orders Rs 2000 p.m. from each of her sons AND a fixed deposit of rs 50,000/- per head. Sons appeal to sessions court who sets aside the lump sum payment and grants enhanced monthly maintenance of Rs 2500 per month per son. Mother goes on appeal to HC. HC appreciates the facts and points out that sec 20 of DV act allows only for lump sum OR monthly maintenance AND NOT both !! So HC affirms sessions court judgement and confirms that either Either lump sum OR monthly maintenance can only be granted under Sec 20 DV act !!


IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Appellate Side

Present : THE HON’BLE JUSTICE SANKAR ACHARYYA

C.R.R. No. 1012 of 2015

In the matter of :

Shahira Khatoon Mullick
     Vs.
Rabiul Haque Mullick & Ors.

For the petitioner    : Mr. Suman De; advocate.

For the private respondents  : Mr. S.K. Humayun Rezzak; advocate.

Heard on              : 06.01.2016, 20.01.2016, 29.01.2016,

08.02.2016.

Judgment on           : 29.03.2016

SANKAR ACHARYYA, J.

This revisional application under Sections 397/401/482 of the Code of Criminal Procedure has been filed by petitioner Shahira Khatoon Mullick against her three sons as opposite party nos. 1, 2 and 3 and the State of West Bengal as proforma respondent no. 4.

Petitioner has challenged the judgment dated 13.02.2015 passed by learned Additional Sessions Judge, Arambagh, Hooghly in Criminal Revision No. 01 of 2014 arising out of order dated 31.03.2014 passed by learned Judicial Magistrate, Additional Court, Arambagh in M.C. 83 of 2013.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Petitioner filed M.C. 83 of 2013 under the provisions of the Protection of Women from Domestic Violence Act, 2005 (in short P.W.D.V. Act) against her three sons who are opposite party nos. 1, 2 and 3 herein. In the order dated 31.03.2014 learned Judicial Magistrate passed residence order and order granting monetary reliefs in favour of the petitioner. In that order direction was given to the opposite party nos. 1, 2 and 3 to provide Rs.2000/- each as monthly maintenance to the petitioner and to contribute Rs.50,000/- each in the fixed deposit to be opened in the name of the petitioner in some nationalised bank which is to be dedicated towards her unforeseen medical expenses and needs and treatments expenditure. Said order was challenged by opposite party nos. 1, 2 and 3 in Criminal Revision No. 01 of 2014. In that case learned Additional Sessions Judge, Arambagh allowed the revisional application in part and modified the order of learned Judicial Magistrate setting aside the order for contributing Rs.50,000/- each by the three opposite party nos. 1, 2 and 3 in favour of petitioner as fixed deposits and enhancing the sum of monthly maintenance allowance of the petitioner from Rs.2000/- to Rs.2500/- each payable by said three opposite parties. In this revisional application petitioner has challenged the legality, propriety and correctness of the impugned judgment passed by learned Additional Sessions Judge.

I have gone through the certified copy of the impugned judgment, revisional application and its annexure filed by the petitioner. Undisputedly, the petitioner is mother of the opposite party nos. 1, 2 and 3 and the petitioner is an octogenarian lady having other sons and daughters also.

In this revisional application, inter alia, it has been contended that learned Additional Sessions Judge erred in law setting aside the direction of learned Judicial Magistrate regarding the contribution of Rs.50,000/- each of the three opposite parties towards medical expenses of the petitioner. It has been claimed by the petitioner that Section 20 (1) (b) of the P.W.D.V. Act deals with medical expenses and according to Section 20 (3), maintenance may be paid in lump or monthly basis. Further claim of the petitioner is that in terms of Section 20 (1) (b) of the said Act, the Magistrate, which disposing of an application under Section 12 (1) of the said Act, may direct the respondent to pay medical expenses in addition to other monetary relief. In the same tune, Mr. Suman De, learned counsel advanced his arguments that learned Additional Sessions Judge failed to appreciate that the power of learned Magistrate under Section 20 (3) of the said Act is in addition to the provisions of Section 20 (1) of the said Act and not disjunctive in nature. Petitioner also contended that in view of the provision of appeal under Section 29 of the Act learned Additional Sessions Judge ought to have dismissed the revisional application against the order of learned Judicial Magistrate.

Mr. Rezzak, learned counsel for the opposite party nos. 1, 2 and 3 argued that learned Magistrate erred in passing order for payment of monthly maintenance and lump sum amount both although Section 20 (3) of the P.W.D.V. Act provides for payment of either monthly maintenance or a lump sum amount. He advanced arguments that learned Additional Sessions Judge rightly modified the order of learned Magistrate by proper interpretation of the statutory provisions which requires no interference by this Court.

Regarding maintainability of the revisional application in the Court of learned Additional Sessions Judge, I like to mention that said learned Court is competent to hear an appeal under Section 29 of the P.W.D.V. Act. Statutory bar under Section 397 (2) of the Code of Criminal Procedure is not attracted against the revisional application as per determining question in that Court. In the impugned judgment learned Additional Sessions Judge did not take up for consideration of any matter beyond the scope of determination in an appeal under Section 29 of the P.W.D.V. Act. Yet, it was proper for the opposite party nos.1and 3 to file their petition of appeal under Section 29, P.W.D.V. Act instead of their revisional application before the Court below. It does not appear from the materials on record that present petitioner raised the question of maintainability of revisional application before learned Additional Sessions Judge. Having considered the above aspects I am of the view that excepting the form of application instead of petition of appeal under Section 29 of the P.W.D.V. Act filed by the petitioners in the Court below there was no major defect in proceeding the revisional application before learned Additional Sessions Judge. In my considered opinion, when the substance of the revisional application was entertainable in law and was considered judicially by a competent Court, the defect in form of application which was presented before it does not vitiate the entire proceeding. As such, the legality, propriety and correctness of the impugned judgment should be considered on merits by this Court in the present case.

In respect of observation made in the impugned judgment about enhancement of monthly maintenance of the petitioner from Rs.2000/- to Rs.2500/- payable by each of the three sons of the petitioner there is no challenge from either party before this Court. The only point in issue on merit is whether learned Additional Sessions Judge has fallen in error making observation that the provision under Section 20 (3) of the P.W.D.V. Act empowers the Magistrate to pass an order for an appropriate lump sum payment or monthly payment of maintenance, as the nature and circumstances of the case may require and that the learned Court below has passed an order directing the petitioners (opposite party nos. 1 and 3 herein) to pay both monthly maintenance and also to pay Rs.50,000/- each which is beyond the scope of the provisions of Section 20 (3) of the P.W.D.V. Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

|  Section 20 of the P.W.D.V. Act reads as:-
  |  
  |  “20. Monetary reliefs.-
  |  
  |  1. While disposing of 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 and as a result of the domestic
  |  violence and such relief may include, but is not limited
  |  to,-
  |  
  |  a). the loss of earnings;
  |  b). the medical expenses;
  |  c). the loss caused due to the destruction, damage or
  |  removal of any property from the control of the aggrieved
  |  person; and
  |  d). the 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 of
  |  the Code of Criminal Procedure, 1973 (2 of 1974) or any
  |  other law for the time being in force.
  |  
  |  2. The monetary relief granted under this Section shall be
  |  adequate, fair and reasonable and consistent with the
  |  standard of living to which the aggrieved person is
  |  accustomed.
  |  
  |  3. The Magistrate shall have the power to order an
  |  appropriate lump sum payment or monthly payments of
  |  maintenance, as the nature and circumstances of the case
  |  may require.
  |  
  |  4. The Magistrate shall have the power to order for
  |  monetary relief made under Sub-Section (1) to the parties
  |  to the application and to the in-charge of the police
  |  station within the local limits of whose jurisdiction the
  |  respondent resides.
  |  
  |  5. The respondent shall pay monetary relief granted to the
  |  aggrieved person within the period specified in the order
  |  under Sub- Section (1).
  |  
  |  6. Upon the failure on the part of the respondent to make
  |  payment in terms of the order under Sub-Section (1), the
  |  Magistrate may direct the employer or a debtor of the
  |  respondent, to directly pay to the aggrieved person or to
  |  deposit with the Court a portion of the wages or salaries
  |  or debt due to or accrued to the credit of the respondent,
  |  which amount may be adjusted towards the monetary relief
  |  payable by the respondent”.

In the instant case applicability of the P.W.D.V. Act is not in question. In Sub-Section 1 of Section 20 of that Act Clauses (a), (b), (c) and (d) illustrations have been mentioned for taking into consideration of the monetary relief in composite. In the impugned judgment learned Additional Sessions Judge considered the adequacy, fairness, reasoning and consistency with the standard of living of the petitioner herein for determining the monthly maintenance of the petitioner and for exempting the opposite party nos. 1 and 3 from any liability for payment of lump sum amount in connection with the order of learned Judicial Magistrate. In this case the only determining factor centres around the question as to whether the word ‘or’ mentioned in Sub-Section (3) of Section 20 of the P.W.D.V. Act is conjunctive or disjunctive. Learned counsel for the petitioner tried to impress upon this Court that the said word has been used in the statute to denote conjunctive but learned counsel for the opposite party nos. 1 and 3 argued that the said word is disjunctive. In the impugned judgment said word has been interpreted as disjunctive. Plain reading of the Sub-Section (3) of Section 20 of the P.W.D.V. Act empowers the Magistrate to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. In my opinion, according to the said provisions the Magistrate shall consider the requirement of the aggrieved person according to the nature and circumstances of the case and pass order for payment of monetary relief to the aggrieved person by respondent either in the form of appropriate lump sum amount or in the form of monthly payment of maintenance but not both. As such, said word “or” has been used by the legislature in the statute to denote it as disjunctive. Therefore, I find that learned Additional Sessions Judge has rightly interpreted that word as disjunctive in the impugned judgment. Learned Additional Sessions Judge, maintaining propriety observed correctly that learned Magistrate has ordered both an appropriate lump sum and monthly payment of maintenance which is beyond the scope of the provision of Section 20 (3) of the P.W.D.V. Act.

In summing up my discussions made above I find and hold that the impugned judgment does not suffer from material infirmity on merit and it needs no interference in this revisional process. As a result, this revisional application is liable to be dismissed.

Accordingly, this revisional application is dismissed on contest but without any order as to costs. A copy of this judgment be sent to the learned Additional Sessions Judge, Arambagh for drawing his attention to the provisions of Section 29 of the P.W.D.V. Act and for future guidance.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing all requisite formalities.

(SANKAR ACHARYYA, J.,)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


FIL molested her & husband raped her! wife claims 40 lakhs but gets 4 thousands !! Delhi MM court

This woman has a long list of complaints and serious allegations. She claims her husband was a pickpocket but suddenly became a business man (so that she can claim 40 lakhs from him). She claims her step father (before marriage) had a ill eye on her. She claims her father in law molested her and he husband had sex with her before her kids… She is still staying in the same house as the husband (same shared household) but wants 30 ..40 lakhs from him !! She gets just 4000 and nothing else !!

A sad saga of how Indian families are breaking right in front of eyes

A sad saga of how women could write complaints where the sole aim is NOT justice, but extracting max money !!

Excerpts :

The wife claims “….The aggrieved has sought Rs 35000/­ per month towards food, clothes, medications and other basic necessities; Rs 10 Lakhs towards return of stridhan and damages and Rs 50,000/­ towards loss due to removal of belongings from her control….”

“…The aggrieved has sought Rs.30,00,000/­  : Rs. 30,00,000/­ compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent…”

The Hon court decides “…I deem it fit to award a sum of Rs.2000/­ each per month to the minor children by the respondent as their maintenance as well as Rs. 2000/­ to the aggrieved as her maintenance….”


IN THE COURT OF MS. POOJA AGGARWAL: METROPOLITAN
MAGISTRATE­02 (MAHILA COURT) : SOUTH DISTRICT
SAKET COURTS:NEW DELHI

CC No: 453/1 (30.08.2014)
Unique Case ID: 02406R0216182014
Jurisdiction of Police Station: Hauz Khas

Smt. Anuradha,
W/o Sh. Rajeev Meena,
R/o 69, Gautam Nagar Road,
Yusuf Sarai, P S Hauz Khas,
New Delhi­110016                                                                    ………….Aggrieved
Versus
Sh. Rajeev Meena,
S/o Sh. Ram Ji Lal,
R/o 69, Gautam Nagar Road,
Yusuf Sarai, P S Hauz Khas
New Delhi­110016                                                                …………..Respondent

Date of Institution:                 30.08.2014
Date of Arguments :                  14.03.2016
Date of Judgment :                   04.04.2016

EX­ PARTE JUDGMENT

  1. 1. By way of the present application filed by Smt. Anuradha (hereinafter referred as ”the aggrieved”) under Section 12 of Protection of Women from Domestic Violence Act, 2005 against her husband Sh. Rajeev Meena (hereinafter referred as “the respondent”), she has sought Protection Order under Section 18; Residence Order under Section 19; Monetary Relief under Section 20; and Compensation/ damages under Section 22 of the Act.
  2. Briefly stated, it is the grievance of the aggrieved that she was married to respondent on 29.04.1998 as per Hindu rites and customs at an early age of 17 years as her step father always kept an ill­eye towards her and her two younger sisters. She has stated that after marriage she came to know that respondent was involved in pick­pocketing and her in­laws were also involved in criminal activities. She has further alleged that on the first night of marriage without showing any love or affection, the respondent attacked her like a rapist, tore her clothes causing her injuries and also threatened to send her back if she disclosed it to anyone.
  3. She has further alleged that after 1­2 months of the marriage i.e. in June­ July, 1998, the father of the respondent also started molesting her physically and used filthy and abusive language and she was beaten up by the respondent as well as her father in law when she objected to the same. She has also stated that the respondent rebuked and slapped her on several occasions and threatened her not to disclose the behavior of his father to anybody and as she was victim of such behavior even before her marriage she got frightened and compromised with the situation.
  4. She has further alleged that respondent along with his family members caused her mental and physical torture and that when she asked for household expenses, she would be abused and sexually tortured by respondent. She has further alleged that respondent would beat her and threaten her to bring money from her family or else she would be treated as call girl which demand she could not fulfill.
  5. She has further alleged that respondent always forced her to have unnatural sex and upon her refusal she had to face consequences and respondent had caused unexplainable serious sexual injuries to her and that the respondent treated her as a call­-girl and not his wife.
  6. She has further alleged that whenever she refused to have sex with him or asked him to give household expenses, he told her that if she cannot have sex with me he would not give her money and would give the money to another woman whom he can enjoy. She has further alleged that she suffered miscarriage due to inhuman behavior and beating of respondent. She has further stated that as the physical, mental and emotional torture was a routine, she was unable to give any particular date.
  7. She has also stated that in December, 1999 when she was 8 months pregnant she refused to have sex with the respondent, the respondent again tortured her and never took care of her health during pregnancy and even kicked her due to which she fell down and it resulted in abdominal pain. She further stated that she gave birth to a baby girl Tripti on 02.01.2000 whose entire expenses were borne by her mother and brother but even then the respondent did not mend his ways.
  8. She has stated that on 06.01.2000 just after 2 days of birth of the baby, the respondent forced her to have sex and upon her refusal, he kicked, slapped her and even abused her as to her character. She has further stated that she had compromised with her life and started to live for her child and started working at home so that she could take care of her child as the respondent used to give money for household expenses only if she allowed the respondent to have sex with her.
  9. She has further alleged that the she used to remain in depression and also became patient of Low Blood Pressure and Thyroid. She has further stated that on 16.01.2001, she gave birth to a baby boy namely Rohan Meena and even with two small children, the respondent did not have any love and affection towards them.
  10. She has further stated that the respondent has left pick­pocketing after 3­4 years of the marriage and is doing private job as property dealer earning handsome amount but still avoided taking care of her and the children. She has also stated that she came to know that the respondent used to take loans from different persons just to show that he was working regularly.
  11. She has further stated that when the children were growing, he never avoided to beat her and the children or to have sex with her in front of the children and that upon objecting to the same he behaved like a rapist in front of their children and she had no one to help and support her. She has stated that during her matrimonial life, she suffered innumerable miscarriages and abortions, which caused her to be physical ill and mentally depressed.
  12. She further alleged that in the first week of August, 2007, during the 6 th month pregnancy, she was beaten badly by her mother­in­law (Mausi Saas namely; Leela­Devi) and brother­in­law namely; Ketan and that on 12.10.2007, she gave birth to a baby Sona.
  13. She has further stated that she made a complaint to the concerned SHO PS Hauz Khas on 16.11.2013 vide DD entry No. 58B but police did not take any action against the respondent saying that it is a matrimonial dispute. She has further stated that due to the conduct of the respondent, she had to leave her matrimonial house with her children and lived with her mother for 5­6 months from November, 2013 to 12.05.2014 during which time the respondent made several threatening calls to her and also reached there and forced her to send the children with him and assured her that he will not do any wrong with her and children in future upon which assurance, she sent the children with the respondent just to save the studies of the children as they are school going children.
  14. She further alleged that on 12.05.2014, the respondent again came to the her parental house and requested her to come back and also assured her that to mend his ways and bear all the household expenses upon which she agreed and joined the company of the respondent and before going to matrimonial home, she informed the Women Cell vide its letter 12.05.2014 for taking action against the respondent if he would again torture her.
  15. She further alleged that when the respondent came to know with respect to the complaints to the concerned PS and Women Cell, he gave threats to kill her and children and asked her to withdraw the complaints but never tried to mend his ways. Aggrieved has further alleged that on 22.5.2014, the respondent assaulted the children on a petty matter and that when she objected, he started abusing her as well as the children, and slapped and pushed her. She has further stated that immediately, thereafter, he picked up an axe/”Kulhari” and attacked her but she escaped and she asked her daughter to make call on 100 number but in the meantime, he caused injury upon himself by the axe saying that ” I will implicate you” and started to slap himself.
  16. Aggrieved has further alleged that on 23.05.2014, police intervened but the respondent gave written apology before the concerned PS Hauz Khas. She has further alleged that on 05.07.2014, the respondent entered into the house after taking liquor and started to use filthy language against her and children and upon her objection, he beat his daughter Tripti and the aggrieved as well as the other small children after which Tripti called the police and she gave a written complaint to the Police also.
  17. She further alleged that the respondent molested his daughter Tripti at the night of 20.07.2014 as revenge in respect of which a case was registered CC No. 453/1/14 Anuradha vs. Rajeev Meena Page No. 6 of 18 u/s 354 IPC & u/s 7/8 POCSO Act, 2012 but which adversely affected her daughter. Aggrieved has stated that she is still living at the house of the respondent with her three children but their life is in danger as her sisters­ in­law have been giving constant threats to kill her and her three children with the help of local goons and further that her sister’s­ in­-laws and one ‘cousin devar’ namely Manish in collusion with each other are trying to sell out the property and they are trying to throw out the aggrieved and her children from the shared household.
  18. She has further alleged that she has no source of income as she is less educated lady and also a mother of three school going children whereas the respondent has his own house and is getting income from property dealing business.
  19. Domestic Incident Report was called for and was filed by the Protection Officer. Despite entering appearance, the respondent neither filed his reply nor income affidavit and even stopped appearing and hence he was proceeded ex­parte vide order dated 17.07.2015.
  20. To prove her case, the aggrieved led ex­parte complainant evidence and examined only herself to prove her case. As CW1, the aggrieved Smt. Anuradha tendered her evidence by way of affidavit (Ex. CW1/A) and additional affidavit (Ex CW1/A1) on similar lines as her application and also relied upon the following documents i.e Copy of her residence proof Mark CW1/1 (i); Copy of electricity bill in name of respondent Mark CC No. 453/1/14 Anuradha vs. Rajeev Meena Page No. 7 of 18 CW1/1; Copy of school identity card of son Rohan Meena Mark CW1/2; Copy of birth certificate of daughter Parisha Mark CW1/2A; Copy of school identity card of daughter Tripti Mark CW1/2B and Ex. CW­1/2B1; Copy of school identity card of daughter Parisha Ex. CW1/2C; Copy of complaint dt. 16.11.2013 to the SHO Ex. CW1/3; Copy of complaint/letter dt. 12.05.2014 with receipt Ex. CW1/4; Copy of complaint to the SHO dt. 22.05.2014 Ex. CW1/5; copy of written apology dt. 23.05.2014 Ex. CW1/6; Copy of complaint to the SHO dt. 05.07.2014 Ex. CW1/7; Copy of FIR no. 804/14 dt. 20.07.2014 Ex. CW1/8. Colly; Copies of school fee receipts of Parisha Ex. CW1/9; Copy of loan document including receipt Ex. CW1/10; Copies of electricity bills with receipts Ex. CW1/11 and copy of passbook Ex. CW1/12.
  21. I have given my thoughtful consideration to the submissions made on behalf of the aggrieved during the course of final arguments and have carefully perused the entire evidence on record.
  22. By virtue of Section 2(a), the reliefs under the Protection of Women From Domestic Violence Act, 2005 can be availed by a woman only if she is in a domestic relationship with the respondents and was subjected to domestic violence by the respondents.
  23. From the unrebutted testimony of CW1 in respect of her marrying respondent on 29.04.1998 as per Hindu Rites and ceremonies and that thereafter she was residing at house no. 69, Gautam Nagar Road, Yusuf Sarai, P S Hauz Khas, New Delhi with the respondent, the aggrieved has proved that she was living with the respondent as his wife and was living together with him in shared household / matrimonial home. As the respondent was proceeded ex­parte, he failed to defend his case and to lead any evidence in support of his defence. No rebuttal has come against the claims of the aggrieved. The oral testimony of CW1 and has not been traversed and the testimony of CW1 goes un­rebutted and unchallenged. No reason has been brought on record to disbelieve the unrebutted and un­ controverted evidence led by the aggrieved. Hence the factum of domestic relationship between the aggrieved and the respondent has been proved.
  24. In respect of the infliction of the domestic violence, the oral testimony of the aggrieved as CW1 has gone unrebutted as despite opportunities the respondent for reasons best known to him chose not to join the present proceedings nor to controvert any evidence led by the aggrieved. Thus the averments of the aggrieved as also her testimony in her evidence by way of affidavit in respect of infliction of physical, verbal and economic violence the respondent are deemed to be admitted by the respondent as they have remained unchallenged and unrebutted. Further, no reason has been brought on record to disbelieve the uncontroverted evidence led by the aggrieved. Accordingly, by unrebutted testimony, the aggrieved has been able to prove that the respondent has committed certain acts of physical, verbal and economic violence and as the aggrieved person has CC No. 453/1/14 Anuradha vs. Rajeev Meena Page No. 9 of 18 been able to prove the domestic violence committed upon her by the respondent, she is entitled to claim reliefs under the Protection of Women From Domestic Violence Act, 2005 against him.
  25. Reliefs : Protection Order Under Section 18 of Protection of Women From Domestic Violence Act: Aggrieved has sought protection order seeking prohibition of acts of domestic violence by an injunction against the respondent from repeating any of the acts mentioned in the application; to prohibit the respondent from committing any act of domestic violence against the aggrieved; to prohibit him from aiding or abetting in the commission of acts of domestic violence; to prohibit alienation of jewellery, ornaments and articles of the aggrieved by the respondent and her sisters­in­law including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate and prohibiting the respondent from committing any other act as specified in the protection order.
  26. From the unrebutted testimony of the aggrieved as CW1, she has able to prove that she has been subjected to domestic violence. In view of the same, the respondent is restrained from repeating any of the acts of domestic violence as deposed to by the aggrieved. He is further restrained from committing any act of domestic violence against the aggrieved and is also prohibited from aiding or abetting in the commission of acts of domestic violence against the aggrieved. Concerned SHO is directed to ensure compliance of the same. Any default in compliance of this order shall entail a liability under Section 31 of Protection of Women From Domestic Violence Act.
  27. It is pertinent to note that despite seeking a protection order to prohibit the alienation of jewellery, ornaments and articles of the aggrieved by the respondent and her sisters­ in­law including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate, the aggrieved has not specified complete particulars of such jewellery, ornaments and articles as well as other property and in the absence of disclosure of any details, no protection order as sought by the aggrieved can be passed. Hence, this relief for protection order as sought is declined being vague.
  28. Further it is duly noted that in view of the protection orders already passed further protection orders to prohibit the respondent from committing any other act are not warranted and hence the said relief is declined.
  29. Residence Order Under Section 19 of Protection of Women From Domestic Violence Act: The aggrieved has prayed for residence orders to the effect that the respondent and his family members be restrained from dispossessing or in any other manner disturbing her possession in the shared household whether or not the respondent has a legal or equitable interest in the shared household; restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; restraining the respondent from alienating or disposing off the shared house hold or encumbering the same; directions against the respondent to secure same level of alternate accommodation for her as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require; imposition of any additional conditions or pass any other direction which may be deemed reasonably necessary to protect or to provide for the safety of the aggrieved and her children; directions against the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence; and also directions to the the officer in charge of the nearest police station to give protection to the aggrieved and her children; seeking imposition on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties with further directions to the respondent to return the stridhan or any other property or valuable security to which the aggrieved is entitled to.
  30. It is duly noted that the aggrieved is still residing in the shared household. However, she has not led any evidence to indicate the portion in which she is residing nor is any site plan on record to show her possession in respect of the particular portion of the shared household and hence no order can be passed to restrain the respondents from entering any unspecified portion of the shared household. Hence the said relief is declined as being unproved.
  31. However, as the aggrieved has led unrebutted evidence to prove that she is still residing in the shared household, the relief restraining the respondent from dispossessing or disturbing the possession of the aggrieved in shared household without any legal or equitable interest of the respondent having been proved therein can only be granted to a limited extent and the respondent is restrained from dispossessing her or her children from the shared household except in accordance with due process of law. He is further restrained from alienating or disposing off the shared house hold or encumbering the same except in accordance with due process of law.
  32. The aggrieved has also sought alternate accommodation or rent for the same. She has further sought directions seeking imposition on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. This relief shall however be decided alongwith the monetary relief.
  33. In view of the protection order already passed, the orders imposing any additional conditions or further direction to protect or to provide for the safety of the aggrieved and her children; directions against the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence and also directions to the officer in charge of the nearest police station to give protection to the aggrieved and her children are not warranted and hence are declined.
  34. The aggrieved has sought further directions against the respondent to return the stridhan or any other property or valuable security to which the aggrieved is entitled to. However, she has not led any evidence to prove the stridhan or any other property or valuable security to which the aggrieved is entitled to and in the absence of disclosure of any details or evidence being led to prove her entitlement or stridhan, no protection order as sought by the aggrieved can be passed. Hence, this relief as sought is declined being vague.
  35. Monetary Relief Under Section 20 of Protection of Women From Domestic Violence Act: The aggrieved has sought Rs 35000/­ per month towards food, clothes, medications and other basic necessities; Rs 10 Lakhs towards return of stridhan and damages and Rs 50,000/­ towards loss due to removal of belongings from her control.
  36. As per the income affidavit of the aggrieved Smt Anuradha she is aged about 33 years being 8th class pass without any professional qualification without any occupation and monthly income but with monthly expenditure of Rs 10,000/­ with her three minor children dependent on her. Since legal aid has been provided to the aggrieved she has not disclosed any litigation charges. She has disclosed education expenses of about Rs.4,000/­ quarterly of her children with Rs 1000/­ being transportation expenses for Parisha and Rohan. She has disclosed Rs 500/­ pm as expenses towards books/stationary. She has disclosed not disclosed any income but has disclosed expense of Rs.200/­ per month towards maintenance, Rs.6000/­ per month towards household groceries/food etc. including water, electricity and gas; Rs.300/­ per month towards telephone/ cable each; Rs 500 pm towards maintenance of household articles; Rs.500/­ per month towards medical expenditure and pocket money of Rs.200/­ being given to her children with a friendly loan of Rs 90,000/­, Gold Loan of Rs 18000/­ from Muthoot Finance for total monthly expenditure of Rs.10,000/­ except the loan amount. She has disclosed one mobile phone without any further assets or liabilities and has stated the status of the parties to be middle class.
  37. She has asserted that the respondent is 8th class pass and working as a taxi driver earning Rs 15000/­ per month and has stated the house at Yusuf Sarai to be his own house.
  38. As per the settled law, the aggrieved is entitled to get monetary relief which is adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. It is duly noted that the aggrieved has not supported her purported expenditure by placing on record documentary evidence for the same except in the form of electricity bills.
  39. It is also duly noted that the aggrieved has not mentioned the fact of the respondent working as a taxi driver in her application or her evidence as tendered in the court. Rather in a clarification affidavit filed by her, she has stated that the respondent is working as a taxi driver and is also doing a business of property dealing as well as to arrange loan facility to the shop owners in the area in the name and style of “Rohan Property and Finance” earning more that Rs 50,000/­ per month.
  40. However, no documentary evidence has been led by her even in the form of a visiting card to prove her assertions as to the job of the respondent, income therefrom, any income tax records of the respondent no.1 etc. Thus, her oral testimony regarding the business of the respondent remain unsubstantiated and hence not proved.
  41. In these circumstances, as the respondent is not alleged to be differently abled he is assumed to be able bodied man and as the aggrieved is the wife of the respondent, keeping in view that it is the legal duty of the respondent being the husband to maintain her as well as the minor children born out of the wedlock, assuming the income of the respondent as per the Minimum Wages Act, to be Rs.10,000/­ ­ Rs 11,000/­ per month, on the scale of balance of convenience, and in the absence of the respondent having brought on record that number of family members dependent upon him, it is presumed that only the aggrieved and the three minor children are dependent upon the respondent and thus I deem it fit to award a sum of Rs.2000/­ each per month to the minor children by the respondent as their maintenance as well as Rs. 2000/­ to the aggrieved as her maintenance. The amount shall be payable to the minor children from the date of filing till they attain majority while the amount shall be payable to the aggrieved from 05.11.2014 on which date the respondent is stated to have been released from judicial custody till the aggrieved becomes disentitled for the same as per law.
  42. It is duly noted that the aggrieved has not led any evidence to prove the value of her stridhan articles or loss thereof of Rs.10 lakhs nor has she led any evidence to prove loss of Rs.50000/­ due to removal of belongings from her control and hence the relief as sought by aggrieved is declined as being unproved. Further, as the aggrieved is already residing in the shared household, no occasion arises at this stage to award her any amount towards alternate accommodation or giving further directions to the respondent regarding discharge of rent and other payments. Hence, the said reliefs are also declined.
  43. Respondent shall pay the awarded amount directly into the account of the aggrieved upon supplying the details of the bank account within three weeks from today to the respondents and filing a copy on record. The amount shall be payable by 10th day of every English calendar month starting from the next month. The arrears be cleared within the period of six months.
  44. The default shall be viewed in terms of the judgment of Hon’ble High Court in Gaurav Sondhi Vs. Divya Sondhi-120 DLT(2005)426. Any maintenance that may have already been paid or has been awarded by any other forum, shall be accordingly adjusted.
  45. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: The aggrieved has sought Rs.30,00,000/­ Rs. 30,00,000/­ compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. However, she has not produced any material on record to prove her entitlement to the amount as claimed. Be that as it may, as it has gone unrebutted that she has been subjected to domestic violence she is awarded compensation for mental trauma a sum of Rs. 10,000/­ to be paid by the respondent to the aggrieved.
  46. No grounds exist for granting any other relief in favour of the aggrieved.
  47. Application of the aggrieved under Section 12 of the Protection of Women From Domestic Violence Act, 2005 is accordingly disposed off in the said terms.
  48. Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the respondent are ex­parte, a copy of this order be served upon them through the Protection Officer.
  49. File be consigned to the record room after necessary compliance.

 

Pronounced in the open Court on 04.04.2016
(POOJA AGGARWAL)
Metropolitan Magistrate­02(Mahila Court)

Saket/New Delhi