When wife is entitled to get maintenance under Domestic Violence Act?

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 25 of 2011.
Date of Decision: 16.08. 2016.

Tej Ram
Vs
Prem Lata

Coram:Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation: 2017 CRLJ(NOC)66 HP

1. The instant criminal revision petition filed under Sections 397 and 401 of Cr.P.C. is directed against judgment dated 30.11.2010, passed by learned Sessions Judge, Kullu, District Kullu in Criminal Appeal No. 8 of 2009, affirming the judgment dated 29.1.2009 passed by learned Judicial Magistrate 1st Class, Manali in Criminal Case No. 310-I/08, whereby learned Trial Court below while allowing the application preferred on behalf of petitioner – Smt. Prem Lata filed under Section 12 of the Protection of women for Domestic Violence Act, 2005 (here-in-after referred to as the ‘Act’), awarded mintenance of Rs.1200/- per month and Rs.700/- per month as rent of the residence. For the sake of convenience, the parties as referred to in the judgment of the trial Court has been referred as such.

2. Briefly stated facts as emerged from the pleadings are that petitioner filed an application under Section 12 of the Act, stating therein that she is legally wedded wife of the respondent. Perusal of the contents contained in application under Section 12 of the Act suggests that marriage was solemnized on 26.11.2007 and thereafter both the parties lived under one roof as husband and wife at village Haripur, Tehsil Manali, District Kullu and out of their wedlock a daughter, namely, Kaushlaya was born on 17.11.2008. As per petitioner, during her pregnancy, the respondent used to threaten her to kill her unborn child and ousted her from the house after gave beatings to her. Due to aforesaid ill behavior of her husband, she was compelled to take shelter in her parents’ house. In the aforesaid background she moved an application under Section 12 of the Act, praying therein for monthly maintenance as well as rent for separate residence. Respondent while filing reply to the petition stated that petitioner is not his legally wedded wife and there is no question of living together. He further stated that petitioner is married to one Joginder, r/o village Simsa, Tehsil Manali, District Kullu and the petitioner has filed the application in order to harass him.

3. Petitioner by way of rejoinder while denying allegation contained in reply asserted that she had moved an application before Pradhan, Gram Panchayat, Haripur and Gram Panchayat taking cognizance of the averments made in the application summoned both the parties with a view to explore the possibility of amicable settlement, if any, between the parties, however, Petitioner’s husband remained adamant not to take her to house. Since, no amicable settlement could take place between the parties, Pradhan, Gram Panchayat referred the application to Police Post, Prini where both the parties were summoned and a compromise was effected between the parties on 14.9.2008. In the aforesaid background, petitioner filed an application, as referred to here-inabove, in the Court of Judicial Magistrate Ist Class, Manali, District Kullu, which was ultimately allowed vide order dated 29.01.2009, whereby, respondent was directed to pay an amount of Rs. 1200/- as maintenance and Rs.700/- per month as rent of the residence.

4. Being aggrieved and dis-satisfied with the order dated 29.1.2009 passed by Judicial Magistrate Ist Class, Manali, District Kullu, respondent filed an appeal in the Court of learned Sessions Judge, Kullu, District Kullu, which came to be registered as Criminal Appeal No. 8 of 2009, however, learned Sessions Judge, Kullu, District Kullu, on the basis of record available, dismissed the appeal and upheld the order passed by learned Judicial Magistrate Ist Class, Manali, District Kullu. Hence, present Criminal Revision Petition before this Court laying challenge to the impugned judgment passed by Sessions Judge, Kullu, H.P.

5. Shri Naveen Bhardwaj, counsel representing the petitioner herein, vehemently argued that order passed by both the Courts below granting maintenance and rent to the respondent herein is not sustainable as the same is not based on correct appreciation of law and the same deserves to be quashed and set aside. Mr. Bhardwaj further contended that bare perusal of the impugned orders passed by the Courts below suggests that same are based upon surmises and conjectures without there being any material on record. Mr. Bhardwaj forcefully contended that both the Courts below have not acknowledged the fact that petitioner-Tej Ram wife was married to another person, namely, Joginder and living with him and as such petition filed under Section 12 of the Act was not maintainable. During arguments having been made on behalf of the petitioner herein, Mr. Bhardwaj also made this Court to travel through the statements of the witnesses to demonstrate that Courts below have not read evidence in its right perspective and has wrongly held petitioner herein liable to grant maintenance as well as rent to the respondent herein. Mr. Bhardwaj invited the attention of this Court to the Statement of RW2, who stated that Prem Lata is married to one Joginder and not to the Tej Ram. Mr. Bhardwaj also stated that a bare perusal of the statement made by the petitioner herein suggest that there is no violence on his part, rather both the Courts have failed to take note of overwhelming evidence available on record clearly establishing that respondent herein was married to another person Joginder and had been living with her during filing of the application. While concluding his arguments, Mr. Bhardwaj forcefully contended that both the Courts below have fallen in grave error in not appreciating the fact that petitioner herein is a labourer and is not earning more than Rs.15,00/- per month and he won’t be in a position to pay maintenance and rent of residence in terms of orders passed by both the Courts below. In the aforesaid background, Mr. Bhardwaj prayed for quashing of the impugned order passed by Courts below.

6. Mr. Peeyush Verma, counsel representing the respondent herein supported the judgments passed by both the Courts below and prayed for dismissal of the present revision petition being devoid of merit. Mr. Verma strenuously argued that bare perusal of the orders passed by both the Courts below suggests that same are based upon the correct appreciation of the evidence on record and no interference whatsoever of this Court is warranted in the facts and circumstances of the present case. Mr. Verma further contended that it stands duly proved that relationship between the parties as husband and wife and a child was born on 17.11.2008 out of their wedlock, whose name stands registered with the Registrar of Death and Birth Ex.PW5/A and as such arguments having been made by counsel representing the petitioner herein (Tej Ram) deserves outrightly rejection. He also invited the attention of this Court to Ex.PW3/B, a certificate to demonstrate that name of husband of Prem Lata has been clearly mentioned as Tej Ram. Mr. Peeyush Verma also stated that this Court has very limited jurisdiction under Section 397 (1) to re-appreciate the evidence especially when the Courts below has recorded concurrent findings on the basis of evidence adduced on record by the respective parties. The reliance has also been placed on the following Hon’ble Apex Court judgments:- State of A.P. versus Rajagopal Rao (2000) 10 SCC 338.

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“4. The High Court in exercise of its revisional power has
upset the concurrent findings of the courts below without
in any way considering the evidence on the record and
without indicating as to in what manner the courts below
had erred in coming to the conclusion which they had
arrived at. The judgment of the High Court contains no
reasons whatsoever which would indicate as to why the
revision filed by the respondent was allowed. In a sense, it
is a non-speaking judgment.”

State of Kerala versus Puttumana Illath Jathavedan (1999) 2 SCC 452

“Having examined the impugned Judgment of the High
Court and bearing in mind the contentions raised by the
learned counsel for the parties, we have no hesitation to
come to the conclusion that in the case in hand, the
High Court has exceeded its revisional jurisdiction. In Its
revisional jurisdiction, the High Court can call for and
examine the record of any proceedings for the purpose
of satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order. In other
words, the jurisdiction is one of Supervisory Jurisdiction
exercised by the High Court for correcting miscarriage of
justice. But the said revisional power cannot be equated
with the power of an Appellate Court nor can it be
treated even as a second Appellate Jurisdiction.
Ordinarily, therefore, it would not be appropriate for the
High Court to re-appreciate the evidence and come to
its own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as
the Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tentamount to gross miscarriage of justice. On
scrutinizing the impugned Judgment of the High Court
from the aforesaid stand point, we have no hesitation to
come to the conclusion that the High Court exceeded its
jurisdiction in interfering with the conviction of the
respondent by re-appreciating the oral evidence. The
High Court also committed further error in not examining
several items of evidence relied upon by the Additional
Sessions Judge, while confirming the conviction of the
respondent. In this view of the matter the impugned
Judgment of the High Court is wholly unsustainable in law
and we, accordingly set aside the same. The conviction
and sentence of the respondent as passed by the
Magistrate and affirmed by the Additional Sessions Judge
in appeal is confirmed. This appeal is allowed. Bail bonds
furnished stand cancelled. The respondent must
surrender to serve the sentence.”

7. I have heard learned counsel for the parties as well carefully gone through the record of the case.

8. True, it is that this Court has very limited powers under Section 397 Cr.P.C. while exercising its revisionary jurisdiction but in the instant case, this Court solely with a view to ascertain that the judgments passed by learned Courts below are not perverse and same are based on correct appreciation of the evidence on record, undertook an exercise to examine the case.

9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-

8. The object of Section 483 and the purpose behind
conferring the revisional power under Section 397 read
with Section 401, upon the High Court is to invest
continuous supervisory jurisdiction so as to prevent
miscarriage of justice or to correct irregularity of the
procedure or to mete out justice. In addition, the
inherent power of the High Court is preserved by
Section 482. The power of the High Court, therefore, is
very wide. However, the High Court must exercise such
power sparingly and cautiously when the Sessions
Judge has simultaneously exercised revisional power
under Section 397(1). However, when the High Court
notices that there has been failure of justice or misuse
of judicial mechanism or procedure, sentence or order
is not correct, it is but the salutary duty of the High
Court to prevent the abuse of the process or
miscarriage of justice or to correct irregularities/
incorrectness committed by inferior criminal court in its
judicial process or illegality of sentence or order.”

10. Careful perusal of evidence led on record leaves no doubt that petitioner is the legally wedded wife of the respondent – Tej Ram. As per Petitioner, her marriage was solemnized on 26.11.2007 and thereafter they lived under one roof at village Haripur, Tehsil Manali, District Kullu, H.P. and out of their wedlock she gave birth to a daughter on 17.11.2008. However, aforesaid factum of marriage as well as birth of daughter was specifically denied by the respondent. Petitioner in her application stated that during her pregnancy respondent gave beatings to her and threatened to kill her unborn baby and she was forcibly ousted from the house. Thereafter, she moved an application before Pradhan, Gram Panchayat, Haripur with a view to settle the matter amicably but the respondent did not agree to take the petitioner to house and, as such, Pradhan, Gram Panchayat referred the matter to the Police Post, Prini where both the parties entered into compromise dated 14.9.2008. Since respondent failed to take the petitioner to house, she was compelled to file an application Under Section 12 of the Act as referred here-in-above. Perusal of reply filed by the respondent clearly suggests that he denied that petitioner is legally wedded wife and as such there is no question of living together. Respondent also denied of extending threats to petitioner as claimed by the petitioner in the application under Section 12 of the Act.

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11. Petitioner in order to prove her case examined herself as PW1, in which she stated that her marriage was solemnized on 26.11.2007 with the respondent and lived under one roof at VPO Haripur, Tehsil Manali, District Kullu. She also stated that during pregnancy her husband gave beating and threatened to kill her unborn baby. She also stated that she presented application before Pradhan, Gram Panchayat, Haripur but respondent refused to resolve the matter amicably. She further stated that Pradhan, Gram Panchyat referred the application to the Incharge, Police Post, Prini, where parties entered into a compromise on 14.9.2008 but despite compromise her husband neither took her to house nor provided any maintenance. She further stated that at present she resides with her mother. Bare perusal of cross-examination conducted on this witness clearly suggests that nothing contrary to what has been stated in examination-in-chief. It is safely concluded that respondent was unable to shatter the testimony of PW1. In her cross-examination, she specifically denied that she is not married to respondent and she is married to one Joginder, resident of village Simsa. She also denied the suggestion put to her that she never resided with the respondent, rather self stated that she resided with the respondent.

12. PW2 Rakesh Kumar also stated that he recognizes the aggrieved person and the respondent. He further stated that he is brother-in-law of the petitioner. It also came in his statement that aggrieved person and respondent are husband and wife in relation, who resided at Haripur. He specifically stated that he used to visit them and they used to visit him. He also stated that petitioner and respondent had quarrel and thereafter petitioner started residing with her mother. PW2 further stated that whenever he visited the house of respondent, he saw respondent was quarreling with aggrieved person. Perusal of cross-examination conducted on this aforesaid witness also suggests that respondent was unable to shatter the testimony of PW2, who has been very very consistent and candid in stating the facts. Careful perusal of the cross-examination conducted on this witness clearly suggests that he stuck to his statement made in examination-in-chief. PW2 in his cross-examination also asserted the factum of marriage of aggrieved person with the respondent, which was soleminised at place Dungri, where about ten people attended the marriage. He also identified the respondent being a resident of Siraj. Close scrutiny of the statement given by PW2 clearly suggests that he fully corroborated the version put-forth by PW1 in her application as well as statement made before the Courts below. It clearly emerges from the statements of PW1 and PW2 that before living separately, petitioner was residing with her husband Shri Tej Ram.

13. PW3 Smt. Bina, Anganwari Worker also stated that she recognized aggrieved person as well as respondent and they are husband and wife in relation. She further stated that during her pregnancy, the aggrieved person visited the Anganbari and she got herself registered there for nutrient food. PW3 also tendered into evidence the copy of attendance register of the aggrieved person as Ex.PW-3/A and stated that same are correct as per original. Copy of attendance register Ex.PW3/A clearly suggests that Prem Lata is recorded as wife of respondent (Tej Ram), which clearly corroborates the statements of PW1 and PW2.

14. PW4 Devia Ram, M.C., Police Post, Prini, Tehsil Manali, Distt. Kullu stated that Prem Lata had moved an application before the Pradhan, Gram Panchayat, Haripur qua ousting of her from matrimonial house. He further stated that Pradhan, Gram Panchyat forwarded the application to Police Post, Prini, wherein aggrieved person Prem Lata and Tej Ram visited the Police Post, Prini alongwith other persons and compromise was effected on 14.09.2008 and thereafter no proceedings were carried by the police. Statement of PW4 corroborates the statement of PW1 in which she has stated that she had reported the matter to Pradhan, Gram Panchayat, who further forwarded the complaint to Police Post, Prini and ultimately compromise was effected on 14.09.2008.

15. PW 5 Narinder Kumar, Assistant Secretary, Panchayat Soyal, Tehsil Manali, District Kullu came present in Court alongwith requisitioned record i.e. certified copy of certificate Ex. PW5/A and stated that this birth certificate is correct as per original record. In his cross-examination, he stuck to his statement made in the examination-in-chief. Perusal of Ex.PW5/A suggest that Kaushalya Devi was born on 17.11.2008 at village Haripur and her father and mother names are recorded as Tej Ram and Prem Lata. Ex.PW5/A clearly corroborates the statement of PW1 in which she stated that she gave birth to a baby on 17.11.2008. The recording of the name of Tej Ram as father and Prem Lata as mother in the register establish that they are husband and wife in relation.

16. Careful perusal of the statements of aforesaid witnesses clearly suggests that petitioner is wife of respondent and after her marriage they resided as husband and wife under one roof at village Haripur. It also stands proved that she gave birth to a child on 17.11.2008 out of the aforesaid wedlock. Respondent while appearing as RW1 stated that he resides with his mother and his mother works as servant with Lovekishore Gupta. He also stated that he does not recognize aggrieved person personally and she has filed present case falsely against him. He stated that he works as labourer and Prem Lata is married to one Joginder, r/o Simsa and he never resided with the petitioner. In his cross-examination stated that he had not been called at Police Post, Prini and no compromise was effected.

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17. Interestingly, careful reading of the aforesaid statement of RW1 clearly suggests that RW1 has not disclosed true facts to the Court, rather his statement is self contradictory and as such cannot be relied upon. In his examination-in-chief he stated that he does not recognize the aggrieved person Prem Lata but In his crossexamination he stated that he was not called at Police Post, Prini and no compromise was affected, whereas PW4 Devia Ram categorically stated that Prem Lata and Tej Ram were summoned to Police Post, Prini alongwith other persons on 14.9.2008, where they effected compromise. Statement of PW4 stands fully corroborated by statement of PW1 wherein she categorically stated that compromise could not be effected in Gram Panchayat, then Pradhan of the Gram Panchayat referred the matter to the Police Post, Prini and compromise was effected on 14.9.2008 at Police Post, Prini. This Court has no reason to disbelieve the testimony of PW4, who is an independent witness, rather this Court after perusing the statement of RW1 sees sufficient reasons to conclude that statement of RW1 is not trustworthy and confidence inspiring and as such same has been rightly not appreciated by the Courts below. RW2 Roop Chand also stated that he recognized Prem Lata and she resides with her mother. RW2 is maternal cousin of the petitioner. He stated that Prem Lata is married with one Joginder. RW2 further stated that Tej Ram resides with her mother and he is not married.

18. Careful perusal of statement made by RW2 clearly suggests that it will not be of any help to the RW1 since he did not utter a word with regard to the factum of residing of the petitioner with respondent as wife. RW2 only stated that Prem Lata is married to one Joginder but he did not utter a word with regard to residing of Prem Lata with RW1.

19. Conjoint reading of evidence led on record by aggrieved person Prem Lata clearly establish that she was married to respondent, namely, Tej Ram and she also gave birth to a baby daughter on 17.11.2008, whose name stands mentioned with the Registrar of Death Birth i.e. Ex.PW5/A. Further perusal of Ex. PW5/A clearly establishes that name of the father and mother of child stands mentioned as Tej Ram and Prem Lata. All the witnesses adduced on record by petitioner corroborated version of the petitioner and have been candid and straightforward in making their depositions. Whereas, respondent has not been able to extract anything contrary in their cross-examination. RW1 while deposing before Court below has not been able to prove that petitioner-Prem Lata was not his legally wedded wife and no marriage was solemnised on 26.11.2007. Though, RW1 in his statement, stated that no marriage was solemnized with the petitioner and he does not recognise her but he also stated in her statement that petitioner is married to one Joginder, resident of Simsa, which itself falsify the earlier part of the statement given by RW1, wherein he stated that he does not recognize the petitioner. Similarly, RW2 stated that petitioner is married to one Joginder but he nowhere stated that petitioner never used to reside with RW1 Tej Ram.

20. Close scrutiny of statement of PW1-Prem Lata clearly establish that she was married to RW1-Tej Ram on 26.11.2007 and she resided with him in the house of one Lovekishore Gupta of Haripur. She also proved that she was ousted from the house during her pregnancy and respondent used to give beatings to her. Aforesaid factum of beatings and mis-behaviour stands corroborated with the statement of PW2 Rakesh Kumar. He categorically stated that he used to visit the house of petitioner and respondent and respondent oftenly use to quarrel with the petitioner. Factum of giving birth to daughter on 17.11.2008 duly stand proved on record with the production of Ex.PW5/A i.e. Death Birth Register, wherein, Kaushlaya Devi, a female child was born on 17.11.2008 at village Haripur is recorded as daughter of Tej Ram and Prem Lata. Similarly, PW1 has been able to prove that before filing the present application under Section 12 of the Act, she reported the matter to the Pradhan, Gram Panchayat, who summoned the parties for amicable settlement but respondent remained adamant in not taking her to house. Similarly, factum with regard to effecting of compromise dated 14.9.2008 stands duly proved on record with statement of PW4 M.C. Devia Ram, who categorically stated that petitioner had moved an application against her husband Tej Ram in the Gram Panchayat, Haripur and thereafter Pradhan referred the application to Police Post, Prini. He categorically stated that Tej Ram and Prem Lata alongwith other persons came present on 14.9.2008 and they effected the compromise.

21. Hence, it can be safely concluded that PW1-Prem Lata successfully proved that she was legally wedded wife of the respondent – Tej Ram, who threw her out of house after giving beatings. It also stands proved on record that out of their wedlock a baby child was born. Hence, this court has no hesitation to conclude that petitioner-Prem Lata was able to prove her case by leading cogent and convincing evidence that she was legally wedded wife of the respondent – Tej Ram and they lived under one roof at Haripur and out of their wedlock a child was born and she was subjected to domestic violence by her husband, as such she is entitled for maintenance and rent of residence. PW1 stated that respondent works as labourer and earns Rs. 12,000/- per month. Since, respondent has failed to refute the aforesaid statement of PW1 before the Courts below, it can be rightly presumed that respondent has sufficient source of income keeping in view the fact that he is able bodied person.

22. Consequently, in view of the aforesaid discussions, there is no illegality and infirmity in the orders passed by learned Courts below as such the same are upheld and the present petition is dismissed being devoid of merit.

(Sandeep Sharma),
Judge.
August 16, 2016

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