Bal Mukund Tiwari vs State Of U.P. & Others on 26 July, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 18

Case :- CRIMINAL REVISION No. – 2125 of 2009

Revisionist :- Bal Mukund Tiwari

Opposite Party :- State Of U.P. Others

Counsel for Revisionist :- Kailash Nath Saksena, K.D. Tripathi, K.N. Saxena, Raj Kumar Singh, Rajiv Dwivedi

Counsel for Opposite Party :- Govt. Advocate, Kamal Kumar Singh, Kharag Singh, Shashi Kant Mani Tripathi, Ulajhan Singh Bind, Z.H. Hanfi, Zahid Husain

Hon’ble Mrs. Sangeeta Chandra,J.

1. This criminal revision has been filed against the judgment and order dated 21.04.2009 passed by the learned Additional Sessions Judge/Fast Track Court-II, Chitrakoot in Criminal Appeal No. 35 of 2008 (Bal Mukund Tiwari vs Smt. Heeramani Tiwari and others), whereby the learned Sessions Judge, Chitrakoot has dismissed the criminal appeal of Bal Mukund Tiwari, the revisionist and also the order dated 18.09.2008 passed by the learned Chief Judicial Magistrate, Chitrakoot in Case No. 95/XII/08 (Heeramani and others vs Tulsa and others).

2. The facts relevant for deciding the controversy, in brief, are stated herein-below:

3. The revisionist Bal Mukund Tiwari was married to Smt. Heeramani Tiwari in 1990 and out of their wedlock, one daughter and two sons were born. The revisionist was working as a part time Tube-well operator initially and was later promoted on the post of Pump Operator in the Irrigation Department. He neglected his wife. Smt. Heeramani Tiwari, who therefore filed an application under section 125 Cr.P.C. claiming maintenance for herself and also for her three minor children.

4. It was contended by Smt. Heeramani Tiwari in the said application that she was subjected to both physical and mental abuse as a result of which, she had also lodged an FIR against the revisionist in the year 2000 at the police station concerned. The revisionist had got an ex-parte divorce decree passed against his wife and had married some other lady. The revisionist was a man of sufficient means. He not only had a job of Pump Operator in the Irrigation Department, but also was co-tenure holder in joint family property of about 55-60 bighas of which 8-9 bighas fell in the share of the revisionist.

5. The revisionist had also filed objections in the said application under section 125 Cr.P.C. and in his statement before the court concerned, he had admitted that since the year 2005, the revisionist had not given a single penny to his wife and children for their upkeep. He admitted that he had taken an ex-parte divorce decree against his wife on 05.09.2006 and at the time of taking such divorce he had also not given any monetary help to his wife Smt. Heeramani Tiwari.

6. The Judicial Magistrate, Chitrkoot after looking into the merits of the case had passed an order directing the revisionist to give Rs. 700/- to each of the applicants i.e. wife Smt. Heeramani Tiwari and daughter Roshni and Sushil and Manish, the two sons of the revisionist on 14.07.2008.

7. It had been contended by Smt. Heeramani in her application moved under section 12 of the Protection of Women from Domestic Violence Act, 2005 (herein-after referred to as the ‘Domestic Violence Act, 2005′) that the revisionist did not challenge the order passed on the application under section 125 Cr.P.C., but also did not make any effort to comply with the same, nor did he give a single penny to his wife and children for their maintenance. Smt. Heeramani Tiwari prayed for relief with regard to residence or in the alternative, for giving of Rs.1500/- as rent along with Rs.3000/- per month for food, clothes, medicines and other basic human amenities, and also prayed for Rs. 5,00,000/- (rupees five lac) for marriage of daughter Roshni and Rs. 2,000/- as tuition fees for the two minor sons, with a further prayer for maintaining status quo with regard to the house, in which the applicants were residing, and compensation of Rs.1,00,000/- for physical, verbal, emotional and economic abuse that the applicant had undergone along with her children.

8. This application was filed by the applicant-opposite party No. 2, Smt. Heeramani Tiwari against her husband Bal Mukund Tiwari, the revisionist and against her two brothers-in-law and her mother-in-law.

9. The Chief Judicial Magistrate while allowing the said application had taken into account the fact that the revisionist owned a big house in Sitapur, which although is in the name of the aggrieved applicant, but was being enjoyed by the revisionist alone. He also took into account the complaint made by the applicant that the revisionist although directed by the Chief Judicial Magistrate in the case filed under section 125 Cr.P.C. to give Rs. 2800/-per month to the applicant along with three children, had not paid a single penny to the applicant. Being divorced and pennyless with three children to look after the daughter Roshni being 16 years of age, sons Sushil and Manish being aged 13 and 11 years respectively, she had nowhere to go. The Chief Judicial Magistrate took into account that the revisionist along with his co-tenure holder had about 55 bighas of land, of which his share was of 8-9 bighas, moreover, he was getting Rs. 9,000/- per month as salary from his work as a Pump Operator in the Irrigation Department. He was a man of having sufficient means, yet he was neglecting his wife and three children. The Chief Judicial Magistrate considered the objections made by the revisionist that after obtaining divorce from the applicant-opposite party No. 2, he had married another lady from whom also he had children. He had to look after them also and that he was ready and willing to take care of the three children staying with their mother and made applicants in the said application along with their mother. The children however refused to stay with their father in their statements before the Chief Judicial Magistrate.

10. The Chief Judicial Magistrate also took into account the fact that although the revisionist had expressed the willingness to take the three children, educate them and to marry his daughter when the time comes, but he had not paid a single penny since the date of desertion of his wife and his children by him, despite order of the court to the contrary.

11. The Chief Judicial Magistrate therefore ordered the revisionist to pay Rs.4,500/- per month to the applicant as well as her three children as cumulative expenses relating to food, medicines, tuition and clothing etc. This amount was to be deposited in Bank account of the applicant after adjusting Rs.2800/- that had already been ordered by the court concerned as maintenance on an application under section 125 Cr.P.C.

12. The revisionist was further directed to open a separate Bank account and make savings deposit of Rs. 1,50,000/- in the name of Km. Roshni, his daughter, which money would be utilized for her marriage when she attained majority. The revisionist was directed to forbear from all conduct which would amount to physical, mental or emotional abuse of the applicant and her children and a further direction was issued that in the house situated at Satanyaw, where the applicant had wished to stay, the revisionist shall make arrangements for two rooms for her residence and shall forbear from any action which would amount to an attempt to evict the applicant and her three children. The house at village Satanyaw as well as the agricultural land, which was in the name of the revisionist shall not be sold off without prior permission of the court.

READ  Ou vs Neeraj Lalchand Kalro And Ors. : on 13 February, 2013

13. Against the order passed by the Chief Judicial Magistrate, Chitrakoot on 18.09.2008 in Case No. 95/XII of 2008, the revisionist filed an appeal before the District Sessions Judge, which was taken up and decided by the Additional Sessions Judge/Fast Track Court No. 2, Chitrakoot.

14. The appellate court considered the grounds of appeal taken by the revisionist including the ground that there was already an order passed by the competent court for giving Rs. 2800/- per month to the applicant as well as her children on an application under section 125 Cr.P.C. and therefore, the Chief Judicial Magistrate had no jurisdiction to entertain the application under section 12 of the Protection of Women from Domestic Violence Act.

15. The appellate court found no good ground to warrant any interference in the order passed by the learned court below because there was a provision in the Act itself which provided that a separate application could be moved by an aggrieved person under the Protection of Women from Domestic Violence Act for claiming reliefs as admissible under the said Act and for a direction for giving facility of residence and other monetary reliefs and compensation. The only requirement under the law was that the court concerned shall take into account the order of maintenance passed by the competent court under section 125 Cr.P.C. and thereafter it may pass appropriate orders adjusting the claim and reliefs given with the relief given under section 125 Cr.P.C.

16. This criminal revision has been filed by the revisionist challenging the orders of the learned courts below mainly on the ground that revisionist had been granted a divorce decree by the competent court of law, which has not been challenged or set aside and also on the ground that the applicant had been granted maintenance under section 125 Cr.P.C. on 01.09.2007 by the court concerned at Rs. 2800/- per month hence, the application under section 12 of the Protection of Women from Domestic Violence Act was not maintainable.

17. The third ground taken by the revisionist before this Court is that after the divorce decree dated 06.09.2007, the applicant and the revisionist were not living together and therefore, no question of harassment of physical, mental or emotional abuse arises and thus, the application under the Protection of Women from Domestic Violence Act was not maintainable.

18. This Court at the time of admission of this criminal revision had stayed the operation of the impugned order in the meantime.

19. The applicants, opposite party Nos. 2 to 5 herein have filed stay vacation application along with counter affidavit, wherein it has been stated that even after the order had been passed by the competent court on 14.09.2008 for giving maintenance to the tune of Rs.2800/-, the revisionist has not paid the same. Also, after the interim order was granted by this Court, no payments have been made to opposite party Nos. 2 to 5. They are living in penury and facing great hardship and the criminal revision being devoid of merits should be dismissed at the earliest.

20. Having heard learned counsel for the parties, this Court finds that only two arguments have been raised by the learned counsel for the revisionist. Firstly, since opposite party No. 2, Smt. Heeramani Tiwari had already been divorced by the revisionist and there was a divorce decree by a competent court of law dated 06.09.2007, which was in existence and they are not living together, there was no question of any harassment and thus, no ground arose for filing application under section 12 of the Domestic Violence Act. Secondly it has been argued that there was already an order passed by the competent court in an application under section 125 Cr.P.C. for giving Rs. 2800/- per month as maintenance, which order was being complied with and thus, application under the Domestic Violence Act was not maintainable.

21. I have gone through the orders passed by the learned court below and I do not find any infirmity in the same looking into the law as settled by the Hon’ble Supreme Court in the case of V.D. Bhanot vs Savita Bhanot, 2012 (3)SCC 183, where the Hon’ble Supreme Court has held that a woman, who was living in a shared house in the past, but was no longer residing with her husband and who was subjected to any act of Domestic Violence as defined under the Domestic Violence Act in the past, but was not suffering any harassment in the present, could also file an application under the Domestic Violence Act.

22. The law as settled in the case of V.D. Bhanot (supra) has been reiterated by the Hon’ble Supreme Court in the case of Juveria Abdul Majid Patni vs Atif Iqbal Mansoori and Another, 2014(10) SCC 736. The Hon’ble Supreme Court in the aforesaid case after referring to in great detail the provisions of Domestic Violence Act came to the conclusion that the respondent therein may have taken divorce and the appellant as well as the respondent may not no more be living as husband and wife yet erstwhile wife may claim or all reliefs under sections 18, 19, 20, 21 and 22 of the Act and also interim relief under section 23 of the Domestic Violence Act, if domestic violence had taken place when the wife lived together in shared household with her husband in a relationship in the nature of marriage.

23. Paragraphs 19, 20, 21, 22, 23, 24, 25 and 26 of the aforesaid judgment lays down as follows:

“19. For determination of such issue, it is desirable to notice the relevant provisions of the Domestic Violence Act, 2005, as discussed hereunder:

19.1.Section 2 (a) of the Domestic Violence Act, 2005 defines aggrieved person as follows:

“2(a) ‘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;”

Therefore, it is clear that apart from the woman who is in a domestic relationship, any woman who has been, in a domestic relationship with the respondent, if alleges to have been subjected to act of domestic violence by the respondent comes within the meaning of aggrieved person.

19.2. Definition of Domestic relationship reads as follows:

“2 (f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

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From the aforesaid provision we find that a person aggrieved (wife herein), who at any point of time has lived together with husband (1st respondent) in a shared household, is also covered by the meaning of “domestic relationship”.

19.3. Section 2(s) defines shared household;

“2(s) ‘shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”

Therefore, if the “person aggrieved” (wife herein) at any stage has lived in a domestic relationship with the respondent (husband herein) in a house, the person aggrieved can claim a “shared household”.

19.4. Definition of “domestic violence” as assigned in Section 3 reads:

“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, injures or endangers the aggrieved person with a view to coerce her or any other 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.

Therefore, apart from physical abuse and sexual abuse, verbal and emotional abuse and economic abuse also constitute domestic violence.

20. Chapter IV of the Domestic Violence Act, 2005 deals with Procedure for obtaining the orders of reliefs. Section12relates to the application to Magistrate, which reads as follows:

“12. Application to Magistrate. (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an, application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under Sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application Under Sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under Sub-section (1) within a period of sixty days from the date of its first hearing.”

21. As per proviso to Sub-section (1) of Section12, the Magistrate before passing any order under Section 12 is required to take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

22. The reliefs which can be granted by the Magistrate under the Domestic Violence Act, 2005 are as follows:

(i) Right to reside in a shared household-Section 17;

(ii) Protection orders-Section 18;

(iii) Residence orders-Section 19;

(iv) Monetary relief-Section2 0;

(v) Custody orders-Section 21;

(vi) Compensation orders-Section 22 and

(vii Interim and ex parte orders-Section 23.

23. In the instant case, the appellant sought relief under Sections 18 to 23 of the Domestic Violence Act, 2005. It includes Protection order under Section 18, monetary relief under Section 20, custody orders under Section 21, compensation under Section 22 and interim relief under Section 23. The relevant provisions read as follows:

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“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 of 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 in-charge 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.

The Monetary relief as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application under Section12is in a domestic relationship with the respondent.

24. “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.

23. “Power to grant interim and ex parte orders”.-(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section19, Section20, Section21or, as the case may be, Section22against the respondent.

Therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief as he deems just and proper, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing,or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.

25. It is not necessary that relief available under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a Civil Court and Family Court, apart from the Criminal Court, affecting the aggrieved person whether such proceeding was initiated before or after commencement of the Domestic Violence Act, This is apparent from Section26of the Domestic Violence Act, 2005 as quoted hereunder:

“26. Relief in other suits and legal proceedings.-(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.”

(2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

26. Appellant had filed an F.I.R. against the 1stRespondent for the offence committed under Section 498-A of Indian Penal Code. The High Court refused to quash the F.I.R. qua first respondent on the ground that prima facie case has been made out. Even before the Criminal Court where such case under Section-498-A is pending, if allegation is found genuine, it is always open to the Appellant to ask for reliefs under Sections 18 to 22 of the Domestic Violence Act and Interim relief under Section 23 of the said Act.”

24. The Hon’ble Supreme Court has further observed in paragraph 30 thus:

“30. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief Under Section 20, Child Custody Under Section 21, Compensation Under Section 22 and interim or ex parte order Under Section 23 of the Domestic Violence Act, 2005.” (emphasis supplied)

25. For the reasons mentioned as aforesaid, I do not find any legal infirmity or factual error in the orders impugned before this Court in this criminal revision.

26. The criminal revision is dismissed as devoid of merits. The Registry is directed to send a copy of this order to the courts below, so that it is ensured that the orders passed by the learned courts below are complied with forthwith.

Order Date :- 26.07.2017

Sazia

 

 

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