Compensation reduced under Section 22 PWDVA

Chattisgarh High Court

First Appeal M 35 of 2010

Sunil Singh …Petitioners

Versus

Smt Neetu Singh…Respondents

Mr Malay Kumar Bhaduri

Mr Rahul Birtharey

CORAM: HONBLE MR T P SHARMA,HONBLE MR R L JHANWAR JJ Dated: 03/09/2010

: JUDGEMENT

Appeal under Section 19 1 of the Family Courts Act 1984 The following judgment of the Court was passed by T.P. Sharma, J: –

1. Challenge in this appeal is to the order dated 25-2-2010 passed by the Judge, Family Court, Bilaspur in Misc. Criminal Case No.592/2005, whereby learned Judge, Family Court has awarded monetary relief of Rs.3,000/- per month and Rs.5 lakhs as one time payment under Sections 19 & 22 of the Protection of Women from Domestic Violence Act, 2005 (for short `the Act of 2005′), to the respondent.

2. Order is impugned on the ground that the Judge, Family Court was not having jurisdiction to award such relief and by awarding such relief, the Judge, Family Court has committed illegality.

3. Brief case of the parties is that the parties are legally wedded spouses and as per the application filed before the Judge, Family Court, Bilaspur on behalf of the respondent, originally the respondent has claimed maintenance of Rs.5,000/- per month under Section 125 of the Code of Criminal Procedure, 1973 (for short `the Code’) against the appellant. The claim was denied by the appellant. During the pendency of the proceeding, the respondent has filed application under Sections 17, 18, 19, 20, 22 & 26 of the Act of 2005 read with Section 7 of the Family Courts Act, 1984 (for short `the Act of 1984′) for grant of monetary relief in terms of Section 20 of the Act of 2005. The application was objected by the appellant. Finally, after providing opportunity of hearing, the Judge, Family Court, while dismissing the application filed under Section 125 of the Code, granted aforesaid monetary relief under Sections 19 & 22 of the Act of 2005.

4. We have heard learned counsel for the parties, perused the order impugned and record of the Court below.

5. Learned counsel for the appellant vehemently argued that in the present case, the Judge, Family Court was not competent to grant any relief under the provisions of the Act of 2005 and only the Magistrate concerned was competent to grant relief under the provisions of the Act of 2005 may be in addition to any relief granted in any legal proceeding pending before the Civil Court, Family Court or Criminal Court. However, in the present case, the Judge, Family Court was not having jurisdiction, but has granted such monetary relief and, therefore, the order impugned is not sustainable under the law. Learned counsel further argued that the Act of 2005 came into force on 26-10-2006 and is not retrospective. Therefore, even otherwise, the Family Court is not competent to grant any relief for the act committed by the parties prior to enforcement of the aforesaid Act. Learned counsel placed reliance in the matter of Shyamlal & others v. Kanta Bai1 in which the High Court of Madhya Pradesh has held that the Act of 2005 is not retrospective, therefore, the parties are not entitled for any relief relating to the act committed prior to enforcement of the Act.

6. On the other hand, learned counsel for the respondent vehemently opposed the appeal and submitted that no provisions for appeal to High Court have been provided under the Act of 2005 and, therefore, the instant appeal is not maintainable. The Legislature has provided for appeal under the Act of 2005 that too before the Sessions Judge, therefore, appeal before this Court is not competent. Learned counsel for the respondent placed reliance in the matter of Smt. Neetu Singh v. Sunil Singh2 in which this Court has held that any application under Section 12 of the Act of 2005 is not maintainable before the Family Court and is only maintainable before the concerned Magistrate.

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7. Vide order impugned, while denying the claim of maintenance of the respondent under Section 125 of the Code on the ground of her ability to maintain herself, the Judge, Family Court has awarded monetary relief to the respondent under Sections 19 & 22 of the Act of 2005. Section 19 of the Act of 2005 does not provide provision for maintenance or grant of compensation, but clause (d) of sub-section (1) of Section 20 of the Act of 2005 provides provision for maintenance in addition to an order of maintenance under Section 125 of the Code. Section 22 of the Act of 2005 provides for award of compensation on account of damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. Para 41 of the order impugned reveals that impliedly the appellant has committed domestic violence and has caused mental torture and emotional distress to the respondent. Sections 20 & 22 of the Act of 2005 read as follows: –

“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 is not limited to,–

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 to 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 incharge 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.”

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8. Definitely, in accordance with the provisions of Sections 20 & 22 of the Act of 2005, the Court competent to grant such relief is competent to award monthly maintenance in addition to an order passed under Section 125 of the Code and also competent to award compensation on account of mental torture and emotional distress caused by the appellant.

9. As regards competency to grant such relief by the Family Court, the Family Courts Act, 1984 (66 of 1984) came into force in the undivided State of Madhya Pradesh on 19-11-1986 vide notification No.79/6/86 dated 14-11-1986 and the Protection of Women from Domestic Violence Act, 2005 (No.43 of 2005) came into force on 26-10-2006.

10. As per Section 26 of the Act of 2005, any relief available under Sections 18, 19, 20, 21 and 22 of the Act of 2005, may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court. Section 12 of the Act of 2005 provides for filing of an application by an aggrieved person before the Magistrate competent to grant such relief, but if any legal proceeding is pending before a Civil Court, Family Court or a Criminal Court relating to any relief which may be available to the person concerned under Sections 18, 19, 20, 21 and 22 of the Act of 2005, such relief may be sought in such legal proceeding.

11. While dealing with same question, this Court has decided that independent application under Section 12 of the Act of 2005 is not maintainable before the Family Court, but the application for grant of relief available under Sections 18, 19, 20, 21 and 22 of the Act of 2005 is maintainable before a Civil Court, Family Court or a Criminal Court in any pending proceeding.

12. Admittedly, the respondent has filed application before the Family Court in pending proceeding of Section 125 of the Code. Therefore, the Family Court was competent to pass order in terms of Section 26 of the Act of 2005.

13. As regards competency of this appeal, as per Section 29 of the Act of 2005, the order made by the Magistrate is appealable before the Court of Sessions. In the present case, the Magistrate has not passed any order and the Judge, Family Court has passed the order impugned under Section 26 of the Act of 2005. The order passed by the Judge, Family Court is appealable under sub-section (1) of Section 19 of the Act of 1984. Sub-section (2) of Section 19 of the Act of 1984 creates bar in filing appeal relating to consent order or any order passed under Chapter IX of the Code i.e. relating to maintenance. The order impugned has not been passed under Chapter IX of the Code or is not a consent order and, therefore, appeal under sub-section (1) of Section 19 of the Act of 1984 is competent.

14. As regards competency of the order in the light of prospective operation of the Act of 2005, the expression “aggrieved person” is defined in clause (a) of Section 2 of the Act of 2005 which reads as under: –

“aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

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15. In accordance with the definition of the expression “aggrieved person”, any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent is an aggrieved person. It includes any woman who has been subjected to any act of domestic violence.

16. As per claim of the parties, the respondent is not a divorcee wife and marriage between the parties has not been dissolved by decree of divorce prior to enforcement of the Act of 2005 which may disentitle the respondent from claiming any relief under the Act of 2005 on the ground that after enforcement of the Act of 2005, the appellant has not committed any torture or has not caused emotional distress, still the respondent is legally wedded wife of the appellant and is residing separately. The Family Court has considered the factum of mental torture and emotional distress. In these circumstances, the Judge, Family Court was also competent to pass order under Sections 20 & 22 of the Act of 2005.

17. As regards the amount of maintenance and award, considering the ability of the appellant, the Judge, Family Court has awarded maintenance of Rs.3,000/- per month to the respondent. Virtually, under Section 20 (1) (d) of the Act of 2005, the appellant was under obligation to maintain his wife in dignified manner, but instead of maintaining her, the appellant has deserted her. Therefore, the award of maintenance of Rs.3,000/- per month under Section 20 (1) (d) of the Act of 2005 is neither excessive nor unjust.

18. As regards the compensation of Rs.5 lakhs under Section 22 of the Act of 2005, the respondent has not proved any immovable property or definite source of income of the appellant on the ground of mental torture and emotional distress. The Judge, Family Court has awarded compensation of Rs.5 lakhs. At the time of awarding compensation, the Courts are required to consider all surrounding circumstances. As per evidence of the parties, marriage between the parties was solemnized on 28-4-2003, they resided together till 16-9-2004 and they are issueless. Both the parties have made allegations against each other. The appellant was in dominating position and was under obligation to maintain his wife in dignified manner. However, the appellant has failed to discharge his aforesaid obligation. In these circumstances, definitely, the appellant is liable for payment of compensation to the respondent under Section 22 of the Act of 2005, but the amount of compensation of Rs.5 lakhs is not only excessive and unjust, but award of such compensation is arbitrary. At the time of awarding compensation, the Courts are required to grant reasonable compensation. Considering the aforesaid facts, compensation of Rs.50,000/- under Section 22 of the Act of 2005 would be just and proper.

19. Consequently, the appeal is partly allowed. Compensation of Rs.5 lakhs awarded against the appellant under Section 22 of the Act of 2005 is hereby modified and instead of Rs.5 lakhs the appellant is directed to pay compensation of Rs.50,000/- to the respondent. However, the amount of maintenance of Rs.3,000/- per month awarded to the respondent under Section 20 (1) (d) of the Act of 2005 is hereby maintained. No order as to costs.

20. Advocate fees as per schedule.

21. Decree be drawn up accordingly.

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