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.
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
