whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. =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.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010 V.D. BHANOT ... PETITIONER Vs. SAVITA BHANOT ... RESPONDENT O R D E R ALTAMAS KABIR, J. 1. The Special Leave Petition is directed against the judgment and order dated 22nd March, 2010, passed by the Delhi High Court in Cr.M.C.No.3959 of 2009 filed by the Respondent wife, Mrs. Savita Bhanot, questioning the order passed by the learned Additional Sessions Judge on 18th September, 2009, 2 dismissing the appeal filed by her against the order of the Metropolitan Magistrate dated 11th May, 2009. 2. There is no dispute that marriage between the parties was solemnized on 23rd August, 1980 and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006, the Respondent filed a petition before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as the "PWD Act", seeking various reliefs. By his order dated 8th December, 2006, the learned Magistrate granted interim relief to the Respondent and directed the Petitioner to pay her a sum of Rs.6,000/- per month. By a subsequent order dated 17th February, 2007, the Magistrate passed a protection/residence order under Sections 18 and 19 of the above Act, 3 protecting the right of the Respondent wife to reside in her matrimonial home in Mathura. The said order was challenged before the Delhi High Court, but such challenge was rejected. 3. In the meantime, the Petitioner, who was a member of the Armed Forces, retired from service on 6th December, 2007, and on 26th February, 2008, he filed an application for the Respondent's eviction from the Government accommodation in Mathura Cantonment. The learned Magistrate directed the Petitioner herein to find an alternative accommodation for the Respondent who had in the meantime received an eviction notice requiring her to vacate the official accommodation occupied by her. By an order dated 11th May, 2009, the learned Magistrate directed the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, which she claimed to be her permanent matrimonial home. The learned 4 Magistrate directed that if this was not possible, a reasonable accommodation in the vicinity of Nirman Vihar was to be made available to the Respondent wife. She further directed that if the second option was also not possible, the Petitioner would be required to pay a sum of Rs.10,000/- per month to the Respondent as rental charges, so that she could find a house of her choice. 4. Being dissatisfied with the order passed by the learned Metropolitan Magistrate, the Respondent preferred an appeal, which came to be dismissed on 18th September, 2009, by the learned Additional Sessions Judge, who was of the view that since the Respondent had left the matrimonial home on 4th July, 2005, and the Act came into force on 26th October, 2006, the claim of a woman living in domestic relationship or living together prior to 26th October, 2006, was not maintainable. The learned Additional Sessions Judge was of the view 5 that since the cause of action arose prior to coming into force of the PWD Act, the Court could not adjudicate upon the merits of the Respondent's case. 5. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis-`-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the 6 Constitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Respondent wife on merits. 7 6. As indicated hereinbefore, the Special Leave Petition is directed against the said order dated 22nd March, 2010, passed by the Delhi High Court and the findings contained therein. 7. During the pendency of the Special Leave Petition, on 15th September, 2011, the Petitioner appearing in-person submitted that the disputes between him and the Respondent had been resolved and the parties had decided to file an application for withdrawal of the Special Leave Petition. The matter was, thereafter, referred to the Supreme Court Mediation Centre and during the mediation, a mutual settlement signed by both the parties was prepared so that the same could be filed in the Court for appropriate orders to be passed thereupon. However, despite the said settlement, which was mutually arrived at by the parties, on 17th January, 2011, when the matter was listed for orders to be passed on the settlement arrived at 8 between the parties, an application filed by the Petitioner was brought to the notice of the Court praying that the settlement arrived at between the parties be annulled. Thereafter, the matter was listed in-camera in Chambers and we had occasion to interact with the parties in order to ascertain the reason for change of heart. We found that while the wife was wanting to rejoin her husband's company, the husband was reluctant to accept the same. For reasons best known to the Petitioner, he insisted that the mutual settlement be annulled as he was not prepared to take back the Respondent to live with him. 8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. 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 9 into force of the PWD Act, could be taken into consideration while passing an order under Sections 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. 9. On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the Petitioner at Mathura, being his official residence, while in service. After more than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum of 10 Rs.6,000/- which the Petitioner was directed by the Magistrate by order dated 8th December, 2006, to give to the Respondent each month. By a subsequent order dated 17th February, 2007, the Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the Respondent wife to reside in her matrimonial home in Mathura. Thereafter, on the Petitioner's retirement from service, the Respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum of Rs.10,000/- per month to the Respondent towards rental charges for acquiring an accommodation of her choice. 10. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005, 11 which defines "domestic violence" in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court. However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified. We, therefore, modify the order passed by the High Court and direct that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under Section 19 of the PWD Act, and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate and 12 in terms of the said order, the Respondent is receiving a sum of Rs.6,000/- per month towards her expenses. 11. Accordingly, in terms of Section 19 of the PWD Act, 2005, we direct the Petitioner to provide a suitable portion of his residence to the Respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the Respondent, within 29th February, 2012. The said portion of the premises will be properly furnished according to the choice of the Respondent to enable her to live in dignity in the shared household. Consequently, the sum of Rs.10,000/- directed to be paid to the Respondent for obtaining alternative accommodation in the event the Petitioner was reluctant to live in the same house with the Respondent, shall stand reduced from Rs.10,000/- to Rs.4,000/-, which will be paid to the Respondent in addition to the sum of 13 Rs.6,000/- directed to be paid to her towards her maintenance. In other words, in addition to providing the residential accommodation to the Respondent, the Petitioner shall also pay a total sum of Rs.10,000/- per month to the Respondent towards her maintenance and day-to-day expenses. 12. In the event, the aforesaid arrangement does not work, the parties will be at liberty to apply to this Court for further directions and orders. The Special Leave Petition is disposed of accordingly. 13. There shall, however, be no order as to costs. ...................................................J. (ALTAMAS KABIR) New Delhi ...................................................J. Dated:07.02.2012 (J. CHELAMESWAR)

With regard to the execution of the order relating to monetary reliefs Section 20 (6) of Protection of Women from Domestic Violence Act paves the way to the petitioner to approach the trial Court so as to execute the Order. Section 20(6) contemplates that; "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." Section 20(5) envisages that; "The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section(1)."

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.12.2010

CORAM:

THE HONOURABLE MR.JUSTICE T. MATHIVANAN

Crl.O.P Nos.23661, 24335
and 26145 of 2010

Vasanthi ... Petitioner

Vs.

1. K.Ponsingh Konar
2. K.Balasingh Konar ... Respondents

Prayer: Petitions are filed under Section 482 Cr.P.C, praying for the following directions;
(1) to pay the arrears towards her wearing apparels (cloths) as directed by the Learned III Additional Sessions Judge in Crl.A.194 of 2009 dated 13.08.2010.
(2) to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge  and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005.
(3) to direct the first respondent to return all the original Kisan Vikas Patras for the value of Rs.3,25,000/- to the petitioner.

  For Petitioner :Mrs.Vasanthi(Party in Person)
For Respondents :Mr.R.Manickavel



C O M M O N  O R D E R

Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. the petitioner has preferred this petition seeking the following directions against the  respondents;
(1)to pay the arrears towards her wearing apparels (cloths) as directed by the Learned III Additional Sessions Judge in Crl.A.194 of 2009 dated 13.08.2010.
(2)to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge  and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005.
(3)to direct the first respondent to return all the original Kisan Vikas Patras for the value of Rs.3,25,000/- to the petitioner.

2. Since the petitioner and the respondents in all the three petitions are one and the same they have been clubbed together and heard simultaneously.  Hence it has become necessary for this Court to pronounce a common order.

3. The facts which are absolutely necessary for the disposal of these three Criminal Original Petitions ,may be summarised briefly as follows;

4. The petitioner is the legally wedded wife of the first respondent.  The second respondent is the elder brother of the first respondent. Out of the wedlock with the first respondent, she begotten two female children namely, Jeniffer and Renita.  From the beginning of the marriage she was harassed and put under cruelty by the first respondent and his relatives.  Then she was forced to work in abroad for earning money and believing her husband she used to send money to the first respondent with fond hope that there would be a bright future.  He had also purchased house, car in the name of the petitioner for the benefit of enjoyment of the family and two minor children.

5. When she returned to India under the fond hope that she would have a comfortable family life along with her husband and two minor children, it was to her utter surprise and shock that she was treated in inhuman manner. She was also deprived of maintenance and equal status of the first respondent.  She was also forced to bring money in the form of dowry by both the respondents and their relatives.  Both the respondents spindled many of the assets of the petitioner and thereafter the petitioner was bought to street.  Hence the petitioner was forced to file petitions for restitution of conjugal rights, maintenance, and for custody of the children under the guardians and Wards Act.

6. Now the petitioner has been depending upon her siblings  and her elderly mother for her basic needs from November 2007 onwards.  Her daughters were not allowed to communicate with her.  Even the petitioner was also pressurised to withdraw the Criminal cases which has been filed against the respondents.

7. The children were given money to deposit in Post Office at Thiruvanmiyur in the form of Kisan Vikhas Pathiras for the value of Rs.3,50,000/-.  The first respondent being the husband of the petitioner had received all the original Kisan Vikas Pathiras, directly from the post master on 04.11.2006 and keeping in his custody illegally.  Under the above circumstances the petitioner has come forward with these three petitions for the reliefs as aforesaid.

8. It was contended by the respondents that the petitioner who is none other than the wife of the first respondent is a very harsh, adamant and rude person by nature and therefore she was not able to co-habit peacefully along with the first respondent and children.  It was only out of her own wish she had been to abroad for employment, even without least interest towards the children.  The first respondent was working as an Indian Medicine Practitioner in IMCOPS, Thiruvanmiyur  and was earning a very handsome salary and  without being satisfied with the salary of the first respondent, she adamantly wanted to go abroad and work for herself and for her family.  The second respondent herein is working as a Personal Secretary to the Collector, Agricultural Department, Tuticorin and is earning a very handsome salary and his wife is also a Professor in a prestigious Government College at Tuticorin and hence there is no need for the parents of the first respondent as well as the second respondent to live and feed on the petitioners money.  

9. The petitioner, on number of occasion, has gone to the extent of filing false complaints against the respondents.  It is pertinent to note here that on 12.03.2010, the II Additional Principal Judge, Family Court at Chennai in I.A.No.3458 of 2009 in O.P.No.1478 of 2008 has dismissed the Interlocutory Application, after observing that;
"the petitioner has not understood her children properly in the right perspective.  Having the welfare of the children in mind this court holds that the only way to make the children happy and safe is to dismiss the petition with a judicial mind and a heavy heart."

10. The petitioner has filed a case against the first respondent under the provisions of Domestic Violence Act along with 18 other cases and all the cases are pending and as such the first respondent along with his children is running against all the Courts defending themselves from the harassment and torture of the petitioner.  It is during that time the III Additional Judge City Civil Court Chennai in C.A.No.194 of 2009 has directed the first respondent to pay a sum of Rs.20,000/- per year for the petitioners wardrobe, but the petitioner cannot covert the High Court as an executing Court or trial Court by filing the original petitions which ought to have been filed in the trial Court or the Court of first instance.  The non compliance of the order passed by the Magistrate shall be executed in the manner provided in The Protection of Women from Domestic Violence Act as the Magistrate has got power under Section 20(6) to execute the order and since there are specific provisions to execute the order, the present petition filed by the petitioner invoking the proviso to Section 482 Cr.P.C. ought to be dismissed with exemplary cost.

11. Similarly the petition filed by the petitioner to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge  and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005 is nothing but a frivolous and vexatious attempt.  No valid ground are assigned to transfer the above said petition from the file of the Learned III Additional District and Sessions Court, Chennai.

12. It is obvious that the petitioner has approached  the Learned III Additional District and Sessions Judge, Chennai by way of an appeal in Crl.M.P.No.3007 of 1998 and this petition was filed by the petitioner under the provision of Protection of Women's from the Domestic Violence Act before the V Metropolitan Magistrate, Egmore, Chennai and therefore the petition does not have any concern in any manner with the case pending before the Learned Additional District and Sessions Judge (Mahila Court) Chennai.

13. It is true that the first respondent had received the Kisan Vikas Pathiras on 04.11.2006 and subsequently, when the petitioner had returned from abroad in the middle of the year 2007, she started creating hell of a problem in the matrimonial home under the advise of her family members.  That on 02.11.2007, she had left the matrimonial home voluntarily whileso, she had taken away all her belongings and other important documents along with her which included the kisan Vikas Pathiras.  Even if the petitioner does not posses the original Kisan Vikas Pathiras with her, she can very well request for the duplicate of the said pathiras to her from the post office.

14. The petitioner Tmt. Vasanti has appeared before this Court in person.  Mr.R. Manikyavel, learned counsel has appeared for the respondents 1 and 2.  This Court, keeping in view of the importance of the petitions has called for the back records from the Court of the Learned VII Addition Sessions Judge, Chennai.  After receiving the records, this Court has gone through the material records and it appears that there was a strained relationship between the first respondent and the petitioner.  Now the female children by name Jeniffer and Renita are in the custody of the first respondent.  It also appears from the records that the petitioner has filed a petition in Crl.M.P.No.3007 of 2008 before the Learned V Metropolitan Magistrate, Egmore, Chennai under the provisions of Protection of Woman's from Domestic Violence Act.  Besides this a maintenance case is also pending before the Learned Additional District and Sessions Judge (Mahila Court) Chennai in SC No.122 of 2009.  The learned counsel for the respondent has also submitted that besides the petition in Crl.M.P.No.3007 of 2008 which is filed by the petitioner under the Provisions of Protection of Woman's from the Domestic Violence Act on the file of the V Metropolitan Magistrate, Egmore, Chennai the petitioner has also instituted several petitions as against the respondents.

15. It is obvious to note here that the petitioner has filed a petition in Crl.M.P.No.1660 of 2009 before the Learned V Metropolitan Magistrate, Egmore, Chennai to direct the first respondent to pay a sum of Rs.5 lakh towards her wardrobe.  That petition was dismissed along with other petitions by the Learned V Metropolitan Magistrate, Egmore, Chennai on 21.08.2009.  Being aggrieved by the order, the petitioner had filed an appeal in C.A.No.194 of 2009 before the Learned VII Additional District and Sessions Judge, City Civil Court, Chennai.  After hearing both sides the Learned III Additional District and Sessions Judge had passed an order directing the first respondent to pay a sum of Rs.20,000/- per year to the petitioner towards her wardrobe on 13.08.2010.  Now the petitioner has contended that the first respondent has failed to comply with the order of the Learned III Additional District and Sessions Judge dated 13.08.2010 and made in C.A.No.194 of 2009 in Crl.M.P.No.1669 of 2009.

16. With regard to the execution of the order relating to monetary reliefs Section 20 (6) of Protection of Women from Domestic Violence Act paves the way to the petitioner to approach the trial Court so as to execute the Order.  Section 20(6) contemplates that;

"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."

Section 20(5) envisages that;
"The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section(1)."

17. Section 20 deals with monetary reliefs.  It empowers the Magistrate to pass orders for grant of monetary relief to the aggrieved person from the respondent to meet the expenses incurred and losses suffered including loss of earnings, medical expenses, loss to property and maintenance of the aggrieved person and her children including maintenance under, or in addition to Section 125 Cr.P.C. or any other law for the time being in force.  The money relief shall be adequate, fair and reasonable and consistent with standard of living of the aggrieved person to which she is accustomed of.  The Magistrate has power to issue directions for the implementation of the order granting monetary reliefs.

18. Hence it is made clear that when there is a specific provision in the Protection of Women from Domestic Violence Act the inherent jurisdiction of this Court as contemplated under Section 482 Cr.P.C. can be invariably invoked.

19. Secondly, with regard to withdrawal of the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge  and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005, this Court is of the considered view that the petitioner is not entitled to avail this relief because it appears that the petition in Crl.M.P.No.3007 of 2008 seems to have been filed by the petitioner under the provisions of Protection of Women from Domestic Violence Act before the Learned V Metropolitan Magistrate Egmore, Chennai.  Further the petitioner has not assigned any valid reasons for transfer of the above said petition from the file of the Learned III Addition Sessions Judge.  Hence the prayer of the petitioner in this regard is turned down.

20. Thirdly, in respect of seeking direction to the respondent to return the Kisan Vikas Pathiras valuing Rs.3,50,000/-, this Court is not satisfied with the reply given by the first respondent. The learned counsel for the respondents have submitted that when the petitioner had left the matrimonial home on 02.11.2007, she had taken away all her belongings including the Kisan Vikas Pathiras.  This contention is not able to be countenanced and hence, this Court is of the opinion that the first respondent may be directed to return all the original Kisan Vikas Pathiras for the value of Rs.3,25,000/- to the petitioner.  It is also pertinent to note here that the first respondent has admitted in his counter that he had received the said Pathiras on 04.11.2006, but contrary to his admission he has now stated that the petitioner had taken away all the Pathiras along with her when she had left the matrimonial home on 02.11.2010.  This piece of contention advanced on behalf of the first respondent is not able to be accepted.

21. Having regard to the above fact circumstances this Court doeth passes the following orders;
(1) The petitioner is directed to approach the trial Court i.e., the Learned V Metropolitan Magistrate, Egmore, Chennai to execute the order dated 13.08.2010 and made in Crl.A.No.194 of 2009 in Crl.M.P.No.3007 of 2008 on the file of the III Additional District and Session Judge, Chennai.
(2) No valid ground are assigned to withdraw the records pertaining to Crl.M.P.No.3007 of 2008 from the file of the Learned III Additional Sessions Judge  and to transfer the same to the file of the Learned Additional District and Sessions Judge (Mahila Court) Chennai to be heard along with the case in SC NO.122 of 2005 because originally the petition in Crl.M.P.No.3007 of 2008 has been filed before the Learned V Metropolitan Magistrate, Egmore, Chennai under the provisions of Protection of Women's from Domestic Violence Act.  Hence, the petition in Crl.O.P.No.24335 of 2010 is dismissed.
(3) The first respondent is directed to hand over all the original Kisan Vikas Pathiras for the value of Rs.3,25,000/- to the petitioner within a period of two weeks from the date of receipt of a copy of this order.

With the above observations the Crl.O.P.Nos.23661 and 26145 of 2010 are disposed of and the petition in Crl.O.P.No.24335 of 2010 is dismissed.


20.12.2010
prm
Internet:Yes/No
Index:Yes/No

Note:Issue order copy on 21.12.2010








T.MATHIVANAN,J

prm



To,
1. The Learned III Additional
Sessions Judge, Chennai.

2.The Learned Additional
  District and Sessions Judge
 (Mahila Court), Chennai.

3.The Learned V Metropolitan
  Magistrate, Egmore, Chennai.



CRL.O.P.Nos.23661, 24335
and 26145 of 2010










20.12.2010

The admitted facts are that the petitioner and respondent were married as per the Islamic law and the petitioner as a husband has subsequently pronounced talak against the respondent and the respondent has come forward with the suit that the said pronounciation of talak was not in accordance with law and so she sought for declaration that the said 'talak' is null and void and the marriage is subsisting and also for consequential reliefs. The said suit has to enter trial, since the written statement has already been filed on the side of the petitioner. In the meantime the application has been filed by the respondent seeking for an interim maintenance at Rs.40,000/- per month from the date of filing of the suit till the date of disposal under the provisions of Protection of women from Domestic Violence Act 2005.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED  :07-10-2010

CORAM

THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH

CRP.NPD.No.3284 of 2010
and
M.P.No.1 of 2010



M.S. Khader Basha .. Revision petitioner

Vs.

F. Ayisha Husnara .. Respondent

Prayer :-This revision has been filed under Article 227 of the Constitution of India against the order dated 22.06.2010 passed in I.A. 3222 of 2009 in O.S. No.161 of 2007 on the file of I Additional Family Judge, Chennai.


For Petitioner     : Ms.S. Vidhya

For Respondent     : Mrs. Sudharshana Sundar


ORDER
This revision has been filed by the petitioner against the order dated 22.06.2010 passed in I.A. 3222 of 2009 in O.S. No.161 of 2007 by the lower court an application for grant of interim maintenance at Rs.10,000/- per month.

2. Heard Ms. S. Vidhya, learned counsel for the petitioner and Mrs. Sudharshana Sundar, learned counsel for the respondent.

3. Learned counsel for the petitioner would submit in her argument that the lower court has not promptly exercised its jurisdiction in ordering interim maintenance. She would further submit that the petitioner was affluent and she is able to maintain herself and therefore, she is not entitled to get an order of interim maintenance in her favour. She would further submit that the lower court had without any evidence had come to the conclusion that the petitioner would  earn a sum of Rs.25,000/- to Rs.30,000/- per month but the petitioner is not doing any business to earn any profits. She would further submit that the petitioner is only an employee and he is drawing a sum of Rs.5000/- per month. She would further submit in her argument that there is no basis for awarding a sum of Rs.10,000/- per month and even the said amount is excessive and beyond the ability of the petitioner. She would further submit that the order passed by the lower court is perverse and the same could be seen from the perusal of the entire order and therefore, it has to be interfered and set aside and thus revision be allowed.

4. Learned counsel for the respondent would submit in her argument that the petitioner is having extensive properties and business also and the respondent/plaintiff was living with the petitioner in a comfortable manner and it is utter falsehood to say that he is earning only a sum of Rs.5000/- as a workmen. She would further submit that the ground raised in (f) is not in good taste and it would reflect the attitude of the petitioner. She would further submit in her argument that the petitioner had admitted in the written statement filed before the lower court that he required children for inheriting the business as well as the properties that he had and the said plea itself would show that he had got extensive properties and business. She would also submit that the petitioner did not adduce any evidence on his side to deny the allegations made in the affidavit. She would also submit that the suit has been filed by the respondent as plaintiff seeking for a declaratory relief of the 'talak' pronounced by the petitioner as null and void and to have a reunion and also for permanent injunction against the petitioner not to remarry any other women. If for any reason the petitioner is not fastened with a liability of interim maintenance who is able to pay the said sum, the respondent wife will be put in jeopardy and would be left without any money for her maintenance in future. Therefore, she would request the court to dismiss the revision petition and to pass suitable directions for payment of maintenance.

5. I have given anxious thoughts to the arguments advanced on either side.

6. The admitted facts are that the petitioner and respondent were married as per the Islamic law and the petitioner as a husband has subsequently pronounced talak against the respondent and the respondent has come forward with the suit that the said pronounciation of talak was not in accordance with law and so she sought for declaration that the said 'talak' is null and void and the marriage is subsisting and also for consequential reliefs. The said suit has to enter trial, since the written statement has already been filed on the side of the petitioner. In the meantime the application has been filed by the respondent seeking for an interim maintenance at Rs.40,000/- per month from the date of filing of the suit till the date of disposal under the provisions of Protection of women from Domestic Violence Act 2005.

7. The only point to be seen is whether the quantum ordered by the lower court is excessive. Indisputably, the petitioner as husband is liable to pay maintenance since the respondent wife has not remarried. It is the dictum of this court as discussed by the lower court that the divorce Muslim women are entitled to maintenance from their respective husbands not only during the period of Iddat but also during the subsequent period until she is remarried. Therefore, there is no second opinion that the respondent as wife is not entitled to any maintenance from her husband. It is also not disputed by the petitioner that the respondent is an earning member and her earnings would be sufficient for maintaining herself. Therefore, the liability of payment of maintenance is unassailable. The only question before this court is what would be the quantum of maintenance payable to the respondent by the petitioner. According to the submission made by the learned counsel for the petitioner that the petitioner husband as a workman is earning a sum of Rs.5000/- only, per month. It is further contended that the respondent has not proved the existence of any properties and the business of the husband as alleged in her affidavit. Similarly it has also been contended that the allegation regarding the income to the tune of Rs.1 crore per month has also not been established. However, it has been refuted by the respondent counsel that it has been categorically admitted by the petitioner himself in the written statement in para 9 that the defendant/petitioner wants to have children and heir to his properties and business.

8. It is true that the defendant had admitted in the written statement that he has got properties and business. When such admission has been shown to the court it is for the petitioner to show to court that he has got minimal income from the properties as well as from business and not at the rate of Rs.1 crore per month as put forth in the affidavit of the respondent. The petitioner did not enter into the witness box to distinguish the admission and to disprove the allegation made by the respondent. In the aforesaid circumstances, there is no other options except presuming the income of the petitioner at Rs.25,000/- to Rs.40,000/- per month. It is not a fabulous income derived by one person who is having business and properties in Madras city. Therefore, the conclusion of the lower court that the petitioner would be deriving an income of Rs.40,000/- could be sustainable.

8. In these circumstances, the payment of maintenance at the rate of Rs.10,000/- per month to the respondent is also sustainable. Therefore, there is no reason for this court to interfere with the order passed by the lower court to which the respondent is entitled as per the provisions of law. However, the lower court has not fixed any time limit for the payment of maintenance upto date. Therefore, it has become necessary for this court to direct the petitioner to deposit the said arrears of amount upto date into the court within a period of 15 days from the date of receipt of the copy of this corder. In default to pay such amount it is for the lower court to proceed further in accordance with law.

9. With the aforesaid observation, the revision petition is dismissed without costs. Connected miscellaneous petition is closed.








kpr

To,

The I Additional Family Judge
Chennai

DOMESTIC VIOLENCE BY SONS , AGAINST THE MOTHER - BEAUTIFUL JUDGEMENT

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU                
Criminal Revision Case No.1093 of  2010


06-07-2010 


Sikakollu Chandramohan and 2 others. 


Sikakollu Saraswathi Devi and another.


Counsel for the Petitioners : Sri G. Chandrasekhara Rao


Counsel for the 1st Respondent:  ----
Counsel for the 2nd respondent: Public Prosecutor


:ORDER:  


1.      The sons/petitioners 1 to 3 question judgment dated 18.05.2010 passed  by
the III Additional Metropolitan Sessions Judge, Hyderabad in Criminal Appeal
No.7 of 2007 by which the lower appellate court confirmed order dated 20.10.2009
passed by the III Additional Chief Metropolitan  Magistrate, Hyderabad in
D.V.C.No.17 of 2007 granting maintenance  of Rs.75,000/- per month at the rate
of Rs.25,000/- by each of the sons and compensation of Rs.50,000/- from each of
the sons to the 1st respondent/mother.


2.      The 1st respondent  has got  three sons (who are the petitioners 1 to 3)
and five married daughters.  The 1st respondent was aged 76 years by the time
she filed Domestic Violence Case before the Magistrate. Her  husband Subbarao 
died in the year 1994.  Originally, the parties belonged to Singarayakonda of
Prakasam District.  Now the 1st respondent is residing at Hyderabad along with
her third daughter.  It is alleged that  the 1st respondent is suffering from
several ailments and that her health condition is deteriorating day-by-day.
Originally late Subba Rao established Coromandel Cements  Limited in which the
first respondent was also an Additional Director.  Now the petitioners changed
the company into Ckoromaandel Cements Limited. Under will dated 10.03.1991 of  
her husband,  the 1st respondent got several properties to the extent of 1/4th
share in the estate left by him.  It is alleged that the petitioners obtained
several signatures of the 1st respondent on several documents on the pretext  of
managing affairs of the company and also on several blank papers and empty stamp 
papers.  It is also further alleged  that the 1st respondent was deprived by the
petitioners of her immovable property, cash deposits, shares, 100 tolas of gold
jewellery and 10 kgs. of silver.  Originally the 1st respondent was residing
with the 2nd petitioner at Vijaywada.  There is no dispute that  in or about
May, 2006, the 1st respondent left the 2nd petitioner's house due to alleged
ill-treatment, cruelty, negligence etc. and began residing with one or the other
daughters.
        
3.      Having regard to date of separate living of the 1st respondent since May,
2006, it is contended by the Senior Counsel for the petitioners that since cause
of action took place prior to the Protection of Women from Domestic Violence
Act, 2005 (in short, the Act) coming into force, D.V.C.No.17 of 2007 does not
lie and that the Act is  prospective  in its operation  and not retrospective in
operation.  Though the Act was passed in the year 2005, it came into force on
26.10.2006 after the rules were framed thereunder.


4.      It is well settled principle of law that any substantive enactment is
prospective in nature unless specifically stated otherwise.   There is no
indication in the Act to hold that the Act is not prospective but retrospective
in operation.  But, simply because the Act is found to be prospective in
operation, it cannot be said that  provisions under the Act cannot be invoked in
case separation between the parties was prior to the Act coming into force.  It
has to be seen whether  the cause of action arose or cause of action continued
to exist even after the Act coming into force.


        Section 3 of the Act defines  domestic violence as follows:
"3. Definition of domestic violence:-


For the purposes of this Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it :-
(a) harms or injures or endangers the health, safety, life, limb or well-being,
whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or 


(b) harasses, harms, injuries or endangers the aggrieved person with a view to
coerce her or any person related to her to meet any unlawful demand for any
dowry or other property or valuable security; or


(c) has the effect of threatening the aggrieved person or any person related to
her by any conduct mentioned in clause (a) or clause (b); or


(d) otherwise injures or causes harm, whether physical or mental, to the
aggrieved person.


Explanation I:-For the purposes of this section, -


(i) "physical abuse" means any act or conduct which is
of such a nature as to cause bodily pain, harm, or danger to life, limb, or
health or impair the health or development of the aggrieved person and includes
assault, criminal intimidation and criminal force;


(ii) "sexual abuse" includes any conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates the dignity of woman;


(iii) "verbal and emotional abuse" includes :-
(a) insults, ridicule, humiliation, name calling and insults or ridicule
specially with regard to not having a child or a male child; and


(b) repeated threats to cause physical pain to any person in whom the aggrieved
person is interested.


(iv) "economic abuse" includes :-


(a) deprivation of all or any economic or financial resources to which the
aggrieved person is entitled under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved person requires out of
necessity including, but not limited to, household necessities for the aggrieved
person and her children, if any, stridhan, property, jointly or separately owned
by the aggrieved person, payment of rental related to the shared household and
maintenance; 


(b) disposal of household effects, any alienation of assets whether movable or
immovable, valuables, shares, securities, bonds and the like or other property
in which the aggrieved person has an interest or is entitled to use by virtue of
the domestic relationship or which may be reasonably required by the aggrieved
person or her children or her stridhan or any other property jointly or
separately held by the aggrieved person; and


(c) prohibition or restriction to continued access to resources or facilities
which the aggrieved person is entitled to use or enjoy by virtue of the domestic
relationship including access to the shared household.


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."


The above definition  includes  physical abuse, sexual abuse, verbal and
emotional abuse and also economic abuse within the meaning of domestic violence. 
When there was separation between the parties prior to the Act came into force,
there  may not be possibility of physical abuse; but, there may be possibility
of verbal and emotional abuse and economic abuse.  As per Clause(iv) of
Explanation-I to Section 3 of the Act, economic abuse includes deprivation of
all or any economic or financial resources to which the aggrieved person is
entitled  under any law or custom, and requires  out of necessity.  Even though
separation between the parties  was prior to the Act  coming into force, still
economic abuse by way of deprivation of the aggrieved person of right to
residence and right to maintenance etc., would continue  both before and after
the Act coming into force. In that view of the matter, it cannot be said that
the mother/1st  respondent has no cause of action to maintain domestic violence
case against the petitioners after the Act coming into force.


5.      The 1st respondent previously filed maintenance case in OP No.202 of 2007
before the Judge, Family Court, Visakhapatnam and obtained order of interim
maintenance under Section 125 Cr.P.C against the petitioners 1 to 3 to an extent
of Rs.25,000/- per month.  Apart from the said interim maintenance of
Rs.25,000/- per month, both the courts below granted Rs.75,000/- per month from
the petitioners 1 to 3 at the rate of  Rs.25,000/- per month each.  Grant of
interim maintenance by the Family Court under Section 125 Cr.P.C is no bar for
granting monetary relief under Section 20 of the Act by way of further
maintenance amount over and above granted by the Family Court under Section 125  
Cr.P.C. Section 20(1)(d) of the Act provides for granting relief of maintenance
to the aggrieved person in addition to an order of maintenance under Section 125
Cr.P.C or any other law for the time being in force.  So, it has to be seen
whether there is any justification for grant of the above maintenance by the
Courts below under Section 20 of the Act.  As per Section20(2) of the Act,
monetary relief granted thereunder should be adequate, fair and reasonable and
consistent  with the standard of living to which the aggrieved person is
accustomed.  The 2nd respondent is widow of  founder of Coromaandel Cements  
Limited company and she was also an Additional Director in that company when her 
husband was  alive and thereafter until,  according to her, she  was deprived of
that position by obtaining her signatures on several documents.  The documents
executed by the 2nd respondent  are subject-matter of civil suits and the
litigation went upto the Supreme Court.  There is no dispute that the
petitioners 1 to 3 as Chairman, full time Director and Managing Director of
CKoromaandel Cements Limited are drawing salaries or emoluments from the company    
to the extent of Rs.8,00,000/- per month each.  Having regard to status of the
parties and need of the petitioner who is aged about 80 years and her health
condition and medical needs, it cannot be said that a sum of Rs.1,00,000/- per
month (including interim maintenance granted by the Family Court under Section
125 Cr.P.C) is in no way excessive or unreasonable and unjust.  It is contended
by the Senior Counsel appearing for the petitioners that the 2nd respondent can
have monetary compensation of Rs.50,000/- from each of the petitioners as per
orders of the courts below and that the 1st  respondent wanted to extract money
at the rate of Rs.1,00,000/- per month from the petitioners 1 to 3 with a view
to give the same to her daughters.  Naturally, when the 1st respondent is taking
shelter in daughter's house and is taking food and getting assistance to her  in
daughter's house, the 1st respondent may part with some of the cash to her
daughter  or daughters who attend on her and provide her personal and medical
needs.  Having regard to status of the parties, in case of any hospitalisation,
the 1st respondent may not go to a Government hospital or a third rate private
hospital, but she may prefer to go and take treatment from Corporate hospitals
having super speciality facilities, which may charge even  more than Rs.5,000/-
per day.  Having regard to  background of family of the parties and requirements
of the 2nd respondent, this Court is of the opinion that amount of maintenance
awarded by the courts below at Rs.25,000/- per month from each of the
petitioners  is highly reasonable.


6.      It is contended by the Senior Counsel for the petitioners  that the 2nd
respondent as P.W.1 in cross-examination deposed  that it was only the 2nd
petitioner who committed domestic violence against her  and not the petitioners
1 and 3.  One cannot expect the 2nd respondent to know definition of domestic
violence with all its explanations contained in Section 3 of the Act.  What
P.W.1 stated was physical abuse and mental abuse when she referred to domestic  
violence.  But, as per  law, domestic violence includes economic abuse also,
which further includes deprivation of any economic or financial resources to
which she is entitled under any law or custom.  Therefore, the evidence of P.W.1
in her cross-examination cannot have   any bearing in determining existence of
domestic violence in this case as per law and as per definition contained under
Section3 of the Act.  Therefore, this Court  has no hesitation to hold that the
petitioners 1 to 3 are guilty of domestic violence against the 1st respondent
and that the courts below rightly granted monetary relief by way of maintenance
and also compensation in favour of the 1st respondent against the petitioners 1
to 3.


7.      In the result, the revision case is dismissed.

RETURN OF GOLD AND OTHER COMPENSATION

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005 - SEC. 12 THE COMPLAINANT FILED PRIVATE COMPLAINT AGAINST THE ACCUSED FOR RETURN OF HER GOLD JEWELERY AND OTHER COMPENSATION EXPENSES ETC., THEY ARE SQUARELY COVERED UNDER VARIOUS PROVISIONS OF LAW SINCE THERE IS PRIMA FAICE CASE, IT IS MAINTAINABLE FINALLY THE MAGISTRATE CAN DECIDED WHETHER THE RELIEF CAN BE GRANTED OR NOT=2009[1] A.L.D.Cri.AP 817.

PROTECTION OF WOMEN UNDER D V ACT

SEC.12, 20 AND 22 MONETARY RELIEFS ASKED ONLY AGAINST HUSBAND ONLY, AND NO RELIEFS WERE ASKED AGAINST OTHER RESPONDENTS, AND AS SUCH THE COMPLAINT IS LIABLE TO BE QUASHED AGAINST THE OTHERS - 2007 [2] ALD CRI. AP 248.