advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, November 26, 2013

The Protection of Women from Domestic Violence Act, 2005 = whether acts committed prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 and which fall within the definition of the term ‘Domestic Violence’ as informed in the Act could form the basis of an action.” = SARASWATHY …. APPELLANT VERSUS BABU ….RESPONDENT = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40988

 whether
    acts committed prior to the coming  into force  of  the  Protection  of
    Women from Domestic Violence  Act,  2005  and  which  fall  within  the
    definition of the term ‘Domestic Violence’ as informed in the Act could
    form the basis of an action.” =


  whether the conduct of the parties even prior  to
the commencement of the PWD Act, 2005  could  be  taken  into  consideration
while passing an order under Sections 18, 19 and 20 fell  for  consideration
before this Court in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.  In  the
said case, this Court held as follows:
    “12. We agree with the view expressed by the High Court that in looking
    into a complaint under Section 12 of the PWD Act, 2005, the conduct  of
    the parties even prior to the coming into force of the PWD  Act,  could
    be taken into consideration while passing an order under Section 18, 19
    and 20 thereof.  In our view, the Delhi High  Court  has  also  rightly
    held that even if a wife, who had shared a household in the  past,  but
    was no longer doing so when the Act came into  force,  would  still  be
    entitled to the protection of the PWD Act, 2005,”

15.   We are of the view that the act  of  the  respondent-husband  squarely
comes within the ambit of Section 3 of the  PWD  Act,  2005,  which  defines
“domestic violence” in wide term.  
The High Court made an apparent error  in
holding that the conduct of the parties prior to the coming into  force  PWD
Act, 2005 cannot be taken into consideration while passing an  order.   This
is a case where the respondent-husband has not complied with the  order  and
direction passed by the  Trial  Court  and  the  Appellate  Court.  He  also
misleads the Court by giving wrong statement before the High  Court  in  the
contempt petition filed by the  appellant-wife.  The  appellant-wife  having
being harassed since 2000 is entitled for protection  orders  and  residence
orders under Section 18 and  19  of  the  PWD,  Act,  2005  along  with  the
maintenance as allowed by the Trial Court under Section 20 (d) of  the  PWD,
Act, 2005.  Apart from these reliefs, she is also entitled for  compensation
and damages  for  the  injuries,  including  mental  torture  and  emotional
distress,  caused  by  the  acts  of  domestic  violence  committed  by  the
respondent-husband.  Therefore, in addition to the reliefs  granted  by  the
courts below,  we  are  of  the  view  that  the  appellant-wife  should  be
compensated by the  respondent-husband.  Hence,  the  respondent  is  hereby
directed to pay compensation and damages to the extent of  Rs.5,00,000/-  in
favour of the appellant-wife.
16.   The order passed by the High Court is set aside with  a  direction  to
the respondent-husband to comply with the orders and  directions  passed  by
the courts below with regard  to  residence  and  maintenance  within  three
months.  The  respondent-husband  is  further  directed  to  pay  a  sum  of
Rs.5,00,000/- in favour of the appellant-wife within  six  months  from  the
date of this order.  The appeal is allowed with aforesaid  observations  and
directions.  However, there shall be no separate order as to costs.
                                    
 REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1999 OF 2013
                  (arising out of SLP(Crl.)No.2190 of 2012)




SARASWATHY                                …. APPELLANT


                            VERSUS


BABU                                            ….RESPONDENT



                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      Leave granted.  This appeal has been preferred by  the  appellant-wife
against the judgment and order dated 13th December, 2011 passed by the  High
Court of Judicature at Madras.  By the impugned  judgment,  the  High  Court
dismissed the criminal  revision  case  filed  by  the  appellant  and  thus
affirmed the order of First Appellate Court.
2.    The pertinent facts of the case are as follows:
      The parties to the present dispute are married to each other  and  the
said marriage was solemnized on  17th  February,  2000.  
According  to  the
appellant, she brought 50 sovereign gold ornaments and 1 kg silver  articles
as stridhan also Rs.10,000/- was given to the  respondent.  
After  marriage
the appellant lived in her matrimonial house at Padi, Chennai.   After  four
months of the marriage, the respondent-husband and his family demanded  more
dowry in the form of cash and jewels. 
The appellant was not able to  satisfy
the said demand.  Therefore, she was thrown out of her matrimonial house  by
the respondent and her in-laws. 
 Another  allegation  of  the  appellant  is
that after sending  out  the  appellant  from  her  matrimonial  house,  the
respondent-husband intended to marry again. 
 On  hearing  such  rumour,  the
appellant filed petition under Section 9 of the  Hindu  Marriage  Act,  1955
(hereinafter referred to as, “the HM Act, 1955”) bearing  no.  H.M.O.P.  No.
216 of 2001 before the  Principal  Subordinate  Judge,  Chengalpattu,  Tamil
Nadu for restitution of conjugal rights.
      The respondent-husband on the other hand filed  H.M.O.P.  No.  123  of
2002 under Section 13(1) (ia) and (iv) of  the  HMA  Act,  1955  before  the
Principal Subordinate Judge, Chengalpattu, Tamil  Nadu  for  dissolution  of
marriage between the appellant and the respondent .
      On  5th  April,  2006,  the  learned  Principal   Subordinate   Judge,
Chengalpattu, Tamil Nadu dismissed the petition for dissolution of  marriage
filed by the respondent-husband and allowed the petition for restitution  of
conjugal rights filed by the appellant-wife  with  the  condition  that  the
appellant should not insist for  setting  up  of  a  separate  residence  by
leaving the matrimonial home of the respondent.
      In the year 2008, the appellant filed  Crl.  M.P.  No.  2421  of  2008
before learned XIII Metropolitan Magistrate,  Egmore,  Chennai  against  the
respondent seeking relief under Section 19, 20 and 22 of the  Protection  of
Women from Domestic Violence Act, 2005 (hereinafter  referred  to  as,  “the
PWD Act, 2005”).
The learned XIII Metropolitan Magistrate, Egmore,  Chennai
partly allowed the same and directed the respondent to give  maintenance  of
Rs.2,000/- per month to the appellant to  meet  out  her  medical  expenses,
food, shelter and clothing expenses.   
The Magistrate Court’s held that  the
appellant is in domestic relationship with the respondent and the  appellant
being the wife of the respondent  has  a  right  to  reside  in  the  shared
household.  
The  officer  in  charge  of  the  nearest  Police  Station  was
directed to give protection to  the  appellant  for  implementation  of  the
residence orders and was also directed to assist in  the  implementation  of
the protection order.
      The respondent-husband being aggrieved preferred Criminal  Appeal  No.
339 of 2008 before the Sessions Court  (Vth Additional Judge) at Chennai.
      In the meantime, as per the order  passed  by  the  XIII  Metropolitan
Magistrate, Egmore, Chennai  the  appellant-wife  went  to  her  matrimonial
house for staying with the respondent-husband house  along  with  Protection
Officer.  However, the respondent did not obey the order of  the  Court  and
refused to allow the appellant-wife to enter the house and locked  the  door
from outside and went out.
      On 22nd December, 2008, the appellant filed a  complaint  against  the
respondent for not obeying  the  order  of  the  learned  XIII  Metropolitan
Magistrate, Egmore, Chennai and  the  same  was  registered  in  Ambatur  T3
Korattur Police Station as FIR No. 947 of 2008 under Section  31,32  and  74
of the  PWD  Act,  2005.   
The  case  was  committed  to  the  learned  XIII
Metropolitan  Magistrate,  Egmore,  Chennai  and  registered   as   Criminal
Miscellaneous Petition No. 636 of 2011.
      In the meantime, the Criminal Appeal No. 339  of  2008  filed  by  the
respondent-husband was partly allowed  by  the  Sessions  Court  (Vth  Addl.
Judge) at Chennai on 21st October, 2010.
 Sessions Courts by the  said  order
set aside the order prohibiting the respondent-husband from committing  acts
of domestic violence as against the appellant-wife by not  allowing  her  to
live in the shared household and  the  order  directing  the  respondent  to
reside in the house owned  by  respondent’s  mother  and  upheld  the  order
granting maintenance of Rs.2,000/- per month in  favour  of  the  appellant-
wife by the respondent-husband.
3.    Aggrieved by the aforesaid order, the appellant-wife filed  Crl.  R.C.
No. 1321 of 2010 before the High Court.  A criminal  miscellaneous  petition
no.1 of 2010 was also filed in  the  said  revision  application.   On  23rd
December, 2010, the High Court granted an interim stay to  the  above  order
passed by the learned Sessions Court (Vth Addl. Judge) at Chennai.
4.    In the meantime, while the matter was pending before the  High  Court,
the learned  XIII Metropolitan Magistrate, Egmore, Chennai passed  an  order
on 24th February, 2011 in Crl. Misc. Petition No. 636 of 2011  (arising  out
of FIR No. 947 of 2008) and directed the SHO,  Ambatur  T3  Korattur  Police
Station to break the door of the respondent’s house in the presence  of  the
Revenue Inspector and make accommodation  for  the  appellant  with  further
direction to the SHO to inquire about the  belongings  in  the  respondent’s
house in presence of the family  members  of  the  respondent  with  further
direction to submit the report to the respondent as well as  the  Protection
Officer.
The respondent-husband thereafter filed a  petition  for  vacating
the order of stay dated 23rd December, 2010 and vide order dated 9th  March,
2011 the High Court vacated the  order  of  stay  and  made  it  clear  that
appellant-wife can go and reside with her husband in  his  rental  residence
at Guduvancherry. 
 As the order aforesaid  was  not  complied  with  by  the
respondent-husband the appellant-wife filed Contempt  Petition  No.  958  of
2011 against the  respondent-husband   for  wantonly  disobeying  the  order
dated 9th March, 2011 passed by the High Court.
5.    The High Court closed the contempt  petition  vide  order  dated  21st
July, 2011 with following observation:
      “In view of the categorical submission made by the Ld. Counsel for the
      respondent as well as the statement made by the respondent  herein  by
      appearing before this court and stating that the respondent undertakes
      not to prevent  the  contempt  petitioner  from  entering  inside  the
      premises at Door No. 80, Karpagambal Nagar, Nadivaram,  Guduvancherry,
      Chennai and the contempt petitioner also agreed to occupy and stay  in
      the above said premises from  01.08.2011,  the  contempt  petition  is
      hereby closed.”


6.    Thereafter the appellant made representation before Sub  Inspector  of
Police, Guduvancherry  and stated  that  the  respondent-husband  has  given
false address and in order to comply with the court’s order,  the  appellant
went to the address and on enquiry came to  know  that  the  address  was  a
bogus one.  The appellant thereby submitted a complaint  and  requested  the
police to enquire from the respondent to ascertain the real facts so  as  to
ensure that the court’s order is executed in its letter and spirit.
7.    When the matter was pending before the Police, the High Court  decided
the criminal miscellaneous  case  filed  by  the  appellant  and  held  that
although the  offending  acts  of  the  respondent  could  be  construed  as
offences under other enactments  it  could  not  be  construed  as  acts  of
domestic violence under the PWD Act, 2005 until the  Act  came  into  force.
The High Court dismissed the revisional application.
8.    From the bare perusal of the impugned  judgment  passed  by  the  High
Court, we find that the High Court framed the following question:
      “4. The primary question that  arises  for  consideration  is
whether
    acts committed prior to the coming  into force  of  the  Protection  of
    Women from Domestic Violence  Act,  2005  and  which  fall  within  the
    definition of the term ‘Domestic Violence’ as informed in the Act could
    form the basis of an action.”

9.    The High Court after taking into consideration the stand taken by  the
parties held as follows:
    “5. This court would first concern itself with whether acts  which  now
    constitute domestic violence but committed prior  to  the  coming  into
    force of the Act would form a basis of an action thereunder.  With  due
    respect to the authorities above cited, this court  would  inform  that
    the fundamental issue stands unaddressed.  The Act cam  into  force  on
    2005.  It cannot be disputed that several wrongful actions which  might
    have amounted to offences such as cruelty and demand for  dowry  cannot
    have taken the description of “Domestic violence” till  such  time  the
    act came into force.  In other words the offending acts could have been
    construed as offences under other enactments but could  not  have  been
    construed as acts of ‘Domestic Violence’ until the act came into force.
     Therefore, what was not ‘Domestic violence’ as defined in the Act till
    the Act came into force could not have formed the basis of  an  action.
    Ignorance of law is no excuse but the application of this maxim on  any
    date prior to the coming into force of the Act could only have  imputed
    knowledge of offence as subsisted prior to coming  into  force  of  the
    Act.  It is true that it is only violation of orders passed  under  the
    Act which are made punishable.  But those very orders could  be  passed
    only in the face  of  acts  of  domestic  violence.   What  constituted
    domestic violence was not known until the passage of the act and  could
    not have formed the basis of a complaint  of  commission  of  ‘Domestic
    violence’.”


10.    From the judgment  passed  by  the  Trial  Court  (XIII  Metropolitan
Magistrate, Egmore, Chennai dated 5th  December,  2008)  we  find  that  the
appellant filed petition against  her  husband  Babu  seeking  relief  under
Sections 18, 19, 20 and 22 under the PWD Act, 2005.   Sections  18,  19,  20
and 22 read as follows:
       “18.  Protection  orders.-The  Magistrate  may,  after   giving   the
    aggrieved person and the respondent an opportunity of being  heard  and
    on being prima facie satisfied that domestic violence has  taken  place
    or is likely to take place, pass a protection order in  favour  of  the
    aggrieved person and prohibit the respondent from-
    (a) committing any act of domestic violence;
    (b) aiding or abetting in the commission of acts of domestic violence;
    (c) entering the place of employment of the aggrieved person or, if the
    person aggrieved is a child, its school or any other  place  frequented
    by the aggrieved person;
    (d) attempting  to  communicate  in  any  form,  whatsoever,  with  the
    aggrieved person, including personal, oral or written or electronic  or
    telephonic contact;
    (e) alienating any assets, operating bank lockers or bank accounts used
    or held or enjoyed by both the parties, jointly by the aggrieved person
    and the respondent or singly by the respondent, including her  stridhan
    or any other property held either jointly by the parties or  separately
    by them without the leave of the Magistrate;
    (f) causing violence to the dependants, other relatives or  any  person
    who give the aggrieved person assistance from domestic violence;
    (g) committing any other act as specified in the protection order.

    19. Residence orders.-(1) While disposing of an application under  sub-
    section (1) of section 12, the Magistrate may, on being satisfied  that
    domestic violence has taken place, pass a residence order –


    a) restraining 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 a  legal  or  equitable
       interest in the shared household;

    b)  directing  the  respondent  to  remove  himself  from  the   shared
       household;


    c) restraining the respondent or any of his relatives from entering any
       portion of the  shared  household  in  which  the  aggrieved  person
       resides;


    d) restraining the respondent from  alienating  or  disposing  off  the
       shared household or encumbering the same;


    e) restraining the respondent from renouncing his rights in the  shared
       household except with the leave of the Magistrate; or


    f)  directing  the  respondent  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:


      Provided that no order under clause (b) shall be  passed  against  any
    person who is a woman.


    (2) The Magistrate may impose any additional conditions or pass any
    other direction which he may deem reasonably necessary to protect or to
    provide for the safety of the aggrieved person or any child of such
    aggrieved person.


    (3) The Magistrate may require from the respondent to execute a bond,
    with or without sureties, for preventing the commission of domestic
    violence.

    (4) An order under sub-section (3) shall be deemed to be an order under
    Chapter VIII of the Code of Criminal Procedure, 1973 (2  of  1974)  and
    shall be dealt with accordingly.

    (5) While passing an order under sub-section (1),  sub-section  (2)  or
    sub-section (3), the court may also pass an order directing the officer
    in charge of the nearest police  station  to  give  protection  to  the
    aggrieved person or to assist her or the person making  an  application
    on her behalf in the implementation of the order.


    (6) While making an order under sub-section  (1),  the  Magistrate  may
    impose on the respondent obligations relating to the discharge of  rent
    and other payments, having regard to the financial needs and  resources
    of the parties.


    (7) The Magistrate may direct  the  officer  in-charge  of  the  police
    station in whose jurisdiction the Magistrate  has  been  approached  to
    assist in the implementation of the protection order.


    (8)  The  Magistrate  may  direct  the  respondent  to  return  to  the
    possession of the aggrieved person her stridhan or any  other  property
    or valuable security to which she is entitled to.

    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  as  a
    result of the domestic violence and such relief may  include,  but  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 send a copy of the 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  the  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.


    22. Compensation orders.-In addition to other reliefs as may be granted
    under this Act, the Magistrate may on an application being made by  the
    aggrieved person,  pass  an  order  directing  the  respondent  to  pay
    compensation and damages for the injuries, including mental torture and
    emotional distress, caused by the acts of domestic  violence  committed
    by that respondent.”


11.   The Trial Court having noticed the provisions of  PWD  Act,  2005  and
the fact that the appellant-wife was prevented by the respondent-husband  to
enter the matrimonial house even after the order passed by  the  Subordinate
Judge, granted protection under Section 18 with  further  direction  to  the
respondent-husband under Section 19 to allow the appellant-wife to enter  in
the shared household and not to disturb the  possession  of  the  appellant-
wife and to pay maintenance of Rs.2,000/- per  month  to  meet  her  medical
expenses, food and other expenses. However, no compensation or  damages  was
granted in favour of the appellant-wife.
      Notices were issued on the  respondent  but  inspite  of  service,  no
affidavit has been filed by the respondent denying  the  averments  made  in
the petition.
12.   Section 2 (g) of PWD Act, 2005 states that   “domestic  violence”  has
the same meaning as assigned to it in Section 3 of PWD Act, 2005.    Section
3 is the definition of domestic violence. Clause (iv) of Section  3  relates
to “economic abuse” which includes prohibition or restriction  to  continued
access to resources or facilities which the aggrieved person is entitled  to
use or enjoy by virtue of the domestic relationship including access to  the
shared household as evident from clause (c) of Section 3(iv).
13.   In the present case, in view of the fact that  even  after  the  order
passed by the Subordinate Judge the respondent-husband has not  allowed  the
appellant-wife to reside in the shared household matrimonial house, we  hold
that  there  is  a  continuance  of  domestic  violence  committed  by   the
respondent-husband  against  the  appellant-wife.   In  view  of  the   such
continued domestic violence, it is not necessary for  the  courts  below  to
decide whether the domestic violence is committed prior to the  coming  into
force of the Protection of  Women  from  Domestic  Violence  Act,  2005  and
whether  such  act  falls  within  the  definition  of  the  term  ‘Domestic
Violence’ as defined under Section 3 of the PWD Act, 2005.
14.   The other issue that
whether the conduct of the parties even prior  to
the commencement of the PWD Act, 2005  could  be  taken  into  consideration
while passing an order under Sections 18, 19 and 20 fell  for  consideration
before this Court in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.  In  the
said case, this Court held as follows:
    “12. We agree with the view expressed by the High Court that in looking
    into a complaint under Section 12 of the PWD Act, 2005, the conduct  of
    the parties even prior to the coming into force of the PWD  Act,  could
    be taken into consideration while passing an order under Section 18, 19
    and 20 thereof.  In our view, the Delhi High  Court  has  also  rightly
    held that even if a wife, who had shared a household in the  past,  but
    was no longer doing so when the Act came into  force,  would  still  be
    entitled to the protection of the PWD Act, 2005,”

15.   We are of the view that the act  of  the  respondent-husband  squarely
comes within the ambit of Section 3 of the  PWD  Act,  2005,  which  defines
“domestic violence” in wide term.  
The High Court made an apparent error  in
holding that the conduct of the parties prior to the coming into  force  PWD
Act, 2005 cannot be taken into consideration while passing an  order.   This
is a case where the respondent-husband has not complied with the  order  and
direction passed by the  Trial  Court  and  the  Appellate  Court.  He  also
misleads the Court by giving wrong statement before the High  Court  in  the
contempt petition filed by the  appellant-wife.  The  appellant-wife  having
being harassed since 2000 is entitled for protection  orders  and  residence
orders under Section 18 and  19  of  the  PWD,  Act,  2005  along  with  the
maintenance as allowed by the Trial Court under Section 20 (d) of  the  PWD,
Act, 2005.  Apart from these reliefs, she is also entitled for  compensation
and damages  for  the  injuries,  including  mental  torture  and  emotional
distress,  caused  by  the  acts  of  domestic  violence  committed  by  the
respondent-husband.  Therefore, in addition to the reliefs  granted  by  the
courts below,  we  are  of  the  view  that  the  appellant-wife  should  be
compensated by the  respondent-husband.  Hence,  the  respondent  is  hereby
directed to pay compensation and damages to the extent of  Rs.5,00,000/-  in
favour of the appellant-wife.
16.   The order passed by the High Court is set aside with  a  direction  to
the respondent-husband to comply with the orders and  directions  passed  by
the courts below with regard  to  residence  and  maintenance  within  three
months.  The  respondent-husband  is  further  directed  to  pay  a  sum  of
Rs.5,00,000/- in favour of the appellant-wife within  six  months  from  the
date of this order.  The appeal is allowed with aforesaid  observations  and
directions.  However, there shall be no separate order as to costs.



                                                    ………..………………………………………..J.
                            (SUDHANSU JYOTI MUKHOPADHAYA)








                                                      ………………………………………………….J.
                                              (V. GOPALA GOWDA)
NEW DELHI,
NOVEMBER  25, 2013.
-----------------------
1


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.