Raj. HC: DV Act cannot be invoked mechanically to pass maintenance order

Rajasthan High Court
Ramu @ Ramlal Talk vs Smt Nirmala Devi And Anr on 30 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Revision No. 663 / 2017
Ramu @ Ramlal Talk S/o Late Shri Indra Talk B/c Harijan, Aged
About 56 Years, R/o Near Tagor Public School, Naya Kheda, Kacchi
Basti, Jaipur
—-Petitioner
Versus
1. Smt. Nirmala Devi W/o Ramu @ Ramlal Talk D/o Late Lalita
Prasad B/c Harijan, R/o 140, Harijan Basti, Yogshala Ki Bavdi,
Purani Basti, Jaipur

 

2. State of Rajasthan Through PP
—-Respondents
_____________________________________________________
For Petitioner(s) : Mr. Amit Ratnawat For Respondent(s) :
Mr. Yashpal Singh Jhala Mr. Prakash Thakuriya, P.P. for State
_____________________________________________________
HON’BLE MR. JUSTICE PANKAJ BHANDARI Order 30/08/2017

1. Petitioner has preferred this revision petition aggrieved by order dated 25.03.2017 passed by Additional Sessions Judge, Women Atrocities Cases No. 1, Jaipur Metropolitan, Jaipur who allowed the appeal filed by the wife and set-aside the order dated 12.08.2016 passed by Metropolitan Magistrate No. 16, Jaipur, Metropolitan, Jaipur who had dismissed the criminal complaint filed by the wife.

2. It is contended by counsel for the petitioner that the petitioner was married to respondent No. 1 in the year 1984. She left the matrimonial home in the year 1986 and started residing (2 of 5) [CRLR-663/2017] with her brother-in-law Kishan. The complaint was filed under Section 12 of the Protection of Women from Domestic Violence Act read with Sections 18, 19, 20 and 22 of the Act, wherein, it was alleged that the petitioner gave beating to the complainant in the year 2011. Respondent claimed Rs. 10,000/- per month as maintenance under Section 20 of the Act. The trial Court rejected the application aggrieved by which the respondent preferred an appeal and the Appellate Court has reversed the order passed by the trial Court and awarded maintenance to the tune of Rs. 5,000/- per month.

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3. It is contended that the explanation of Section 3 provides that 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.

4. It is contended that since the respondent was living separately since 1986 and the complaint was filed in the year 2012 after a lapse of 16 years and 7 years after the enactment of the Protection of Women from Domestic Violence Act, 2005, the same did not fall under the definition of Domestic Violence.

5. It is contended that the trial Court looked into the entire aspects of the case and rejected the application filed by the respondent. The Appellate Court has erred in allowing the appeal of the respondent and awarding maintenance to the tune of Rs. 5,000/- per month.

6. It is also contended that during the intervening period right from year 1984 to year 2012 and till date no criminal proceedings (3 of 5) [CRLR-663/2017] have been initiated against the petitioner to establish commission of Domestic Violence. It is also contended that the impugned orders do not make a mention of any domestic incident report. Since the proviso to Section 12 makes it mandatory for the Court to take into consideration a domestic incident report received from the Protection Officer or the service providers. The grant of maintenance by the Appellate Court was a perversity committed by the Appellate Court.

7. Counsel for the respondent wife has opposed the revision petition. His contention is that the Protection of Women from Domestic Violence Act has retrospective operation and wife is entitled to maintenance.

8. It is also contended that the definition of domestic violence has a very wide implication and includes economic abuse as well and since the petitioner deprived the respondent wife from the financial resources, it tantamounts to domestic violence.

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9. It is also contended that the petitioner has entered into a second marriage and the respondent is looking-after her children hence the Appellate Court has not committed any illegality in awarding Rs. 5,000/- per month as maintenance. It is also contended that the respondent till date continues to be legally married wife as petitioner has not obtained any divorce decree against the respondent and she is entitled to maintenance from her husband.

10. I have considered the contentions of counsel for the parties and have perused the orders passed by the Court below.

11. From the perusal of the order passed by the trial Court, it is (4 of 5) [CRLR-663/2017] apparent that few months after the marriage the respondent left the house and started residing with her brother-in-law Kishan the respondent has also admitted this fact. It has also come in evidence of mother of the respondent that her daughter and son- in-law never stayed together after she partied from her husband.

12. Respondent herself has stated in her evidence that she was married to the petitioner about 30 to 40 years back and they have not resided together for last 24-25 years. She has also admitted that she resided with her brother-in-law Kishan at District Dausa. It has also come in evidence that after the respondent left the house of the petitioner and started residing with her brother-in- law, petitioner tried his level best to bring her back but she refused to stay with her husband and the marriage stood terminated with the intervention of the society members.

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13. The factum of the petitioner treating her wife with cruelty and the allegation that he gave beating to her was not established as the respondent admitted that she never lodged any F.I.R. against her husband.

14. It is true that the Protection of Women from Domestic Violence Act, 2005 has retrospective operation but it is equally true that for the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes domestic violence, overall facts and circumstances of the case have to be taken into consideration.

15. In the present case in hand the respondent wife left the house way back in the year 1986 and started residing with her brother-in-law. After the demise of brother-in-law now in the year (5 of 5) [CRLR-663/2017] 2012 i.e. after a lapse of around 16 years she has come up with the case of domestic violence.

16. Admittedly, the respondent was not residing with her husband for last two decades and in view of the same considering the second explanation, no case of domestic violence can be said to be made out against the petitioner. The fact that marriage still subsist has no bearing on the present case as this fact has also come to the notice of the Court that the respondent was staying separately with her brother-in-law and refused to stay with her husband. There being no domestic violence, the order passed by the Appellate Court deserves to be set-aside and that passed by the trial Court deserves to be upheld.

17. The revision petition is accordingly allowed. The impugned order dated 25.03.2017 passed by Additional Sessions Judge, Women Atrocities Cases No. 1, Jaipur Metropolitan, Jaipur is quashed and set-aside. Stay application stands disposed.

(PANKAJ BHANDARI), J.

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