Gaurishankar Rajput vs Smt.Punam on 31 August, 2017

1 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

CRIMINAL REVISION NO.934/2012
………Applicant: Gaurishankar Rajput
Versus
…….Respondent : Smt. Poonam
—————————————————————————————-
Shri S.B. Gupta, counsel for the applicant.
None for respondent.
—————————————————————————————-
Date of hearing : 30/08/2017
Date of Order : 31/08/2017
Whether approved for reporting :
ORDER

(31/08/2017)
Per Justice G.S. Ahluwalia,
This Criminal Revision under Section 397,401 of
Cr.P.C. has been filed against the order dated 29-9-2012
passed by 1st Additional Sessions Judge, Bhind in Criminal
Appeal No. 246/2012 affirming the order dated 18-6-
2012 passed by J.M.F.C., Bhind in case No. 46 of 2011, by
which the application filed by the respondent under
Section 12 of The Protection of Women from Domestic
Violence Act, 2005 was allowed and the custody of the
minor daughters namely Ms. Pransi aged about 6 years
and Sheetal aged about 4 years was given to the
respondent, the applicant was directed to provide
accommodation in the house as well as to pay Rs. 2,000
per month to the respondent as well as to her minor
daughters Ms. Pransi and Ms. Sheetal by way of monetary
2 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

relief.

2. The necessary facts for the disposal of the present
revision in short are that the respondent filed an
application under Section 12 of The Protection of Women
From Domestic Violence Act, 2005 (In Short Act, 2005)
alleging interalia that the respondent was married to the
son of the applicant as per Hindu Rites and Rituals on 2-
3-2002. After the marriage, the relations of the
respondent with her husband were cordial and therefore,
three daughters were born out of the wedlock, however,
the applicant was constantly harassing them. On 7-6-
2010, the applicant for no reason, assaulted the husband
of the respondent, as a result of which her husband went
to his room and committed suicide by hanging himself.
The applicant performed the last rites of her husband on
the same night and when it was objected by the
respondent, She was beaten by the applicant. On 2-2-
2011, She was badly beaten by the applicant and he was
interested in developing illicit relations with her,
therefore, she left her matrimonial house and went to her
parent’s home. On 2-2-2011, the applicant had also
forcibly kept her daughters Pransi and Sheetal with him.
Accordingly, an application was filed seeking relief under
Sections 18,19 as well as for interim orders as well as for
the order of custody of her minor children. The
respondent also claimed monetary relief to the tune of
Rs. 4000 per month for herself and to the tune of Rs.
2000/- for each of her minor daughters.

3. The applicant filed his reply and denied the
allegations. It was submitted by him that the applicant
3 Criminal Revision No.934/2012

[Gaurishankar Rajput Vs. Smt. Poonam]

had given an amount of Rs. 48,000 to his son for
purchasing a vehicle. It was alleged that his son was
harassed and insulted by the family members of the
respondent, therefore, he committed suicide. It was
further alleged that after the 13th day ceremony, the
respondent left her matrimonial home after leaving her
daughters. It was further alleged that the husband of the
respondent was his only son and his wife had expired
when he was only 8 months old and it is the applicant
who had brought him up therefore, there was no question
of harassment at the hands of the applicant. In fact
because of the cruel behavior of the family members of
the respondent, his son had committed suicide. It was
also alleged that the respondent had already taken away
her costly belongings including ornaments etc. The
applicant is looking after the minor daughters and is
getting them educated. In para 7 of the reply, it was
specifically stated that the applicant has sufficient land
and property so as to bear the expenses of upbringing of
the minor girls and he is in a position to secure the future
of his grand daughters. It was also pleaded that if the
respondent brings back an amount of Rs. 48,000 and all
the belongings which She has taken away, then She can
come back and stay in the house as only the respondent
and her children are his legal heirs. It was further
alleged that the respondent cannot look after the children
properly nor the future of the daughters is safe in her
hands.

4. The respondent examined herself and her mother
before the Trial Court. On 13-2-2012, the respondent
4 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

closed her evidence and the case was fixed for 13-3-
2012, 13-4-2012,27-4-2012 and 18-5-2012 but neither
the applicant examined himself nor lead any evidence.
Accordingly, the case was fixed for applicant’s evidence
on 6-6-2012. On 6-6-2012, neither the applicant nor his
witnesses were present. The Counsel for the applicant
declared his evidence closed. Thereafter the case was
fixed for final arguments on 12-6-2012,13-6-2012 and
the final arguments were heard on 15-6-2012 and the
final order was passed on 18-6-2012 granting the relief of
custody of the minor children, right of residence in the
shared accommodation as well as monetary relief of Rs.
2000 per month to the respondent as well as Rs. 2000
per month to each of the minor daughter of the
respondent.

5. Being aggrieved by the order of the Magistrate, the
applicant filed a criminal appeal, which too has been
dismissed by order dated 29-9-2012.

6. Challenging the orders passed by the Courts below,
it is submitted by the Counsel for the applicant, that the
applicant was not granted opportunity by the Trial Court
to lead evidence. The applicant was admitted in the
hospital and the medical documents were filed before the
Appellate Court, however, they have not been taken into
consideration. It is further submitted that the applicant
has only 2.038 hectares of land and therefore, he is
unable to pay the monetary relief of Rs. 2000 to the
respondent as well as to each of her daughters. Further,
the applicant was always ready and willing to provide
accommodation in the house, however, it is the
5 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

respondent who did not come to her matrimonial house.
None appears for the respondent though represented.

7. Heard the learned Counsel for the applicant.
7.1 So far as the question of non-affording of
opportunity to the applicant by the Trial Court to lead
evidence is concerned, as already pointed out, 5
opportunities were given to the applicant to lead evidence
but the same were not availed by him. It is submitted by
the applicant that he was admitted in the hospital
therefore, could not appear before the Trial Court on 6-6-
2012. The applicant has placed the copy of the medical
documents to substantiate his contention. From the
record it is clear that the case was fixed 13-3-2012, 13-
4-2012,27-4-2012,18-5-2012 and 6-6-2012 for leading
evidence but on none of the date, neither the applicant
was present nor his witnesses were present. According to
the medical documents filed by the applicant, it appears
that a certificate has been issued by a Doctor to the effect
that the applicant was not well from 1-6-2012 till 30-7-
2012. In the present case, the case was fixed for
applicant’s evidence on 13-3-2012, 13-4-2012,27-4-
2012 and 18-5-2012, however, no explanation has been
given by the applicant for not giving evidence on the said
dates. Further, it was argued by the Counsel for the
applicant that the applicant was admitted in the Hospital
in the month of June, 2012, therefore, he could not
appear before the Trial Court and his Counsel had wrongly
closed his case. So far as the admission of the applicant
in the Hospital is concerned, the applicant has not filed
any discharge ticket to show that he was ever admitted in
6 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

the hospital. Further no prescription has been filed to
show that he was ever treated by the Doctor. A simple
certificate advising to take rest by a Doctor cannot be
said to be sufficient to hold that the applicant was not
well. Further, it is submitted by the Counsel for the
applicant that the Counsel for the applicant had wrongly
closed the case of the applicant without any instruction.
If a lawyer had acted contrary to the instructions issued
by the client, then the client would have certainly taken
any action against his lawyer, in the Bar Council of
Madhya Pradesh. No complaint was ever made by the
applicant, which shows that the stand taken by him is
false. Thus, this Court is of the considered opinion that
sufficient opportunities were given to the applicant by the
Trial Court to lead evidence, however, the same were not
availed by the applicant without any reasonable reason,
therefore, the submission made by the Counsel for the
applicant with regard to violation of principle of Natural
Justice is rejected.

7.2 It is next contended by the Counsel for the applicant
that the applicant had clearly mentioned in the reply that
he is ready and willing to provide accommodation in the
house but it is the respondent who did not come. I have
gone through the reply. The submission made in the
reply by the applicant of providing accommodation in the
house was not unconditional. He had put certain
conditions before providing accommodation in the house.
The applicant has failed to prove that he had ever given
Rs. 48,000 to his son for purchasing a vehicle. He has
also failed to prove that the respondent had left her
7 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

matrimonial house after taking away all her valuables.
Thus, the submission made by the Counsel for the
applicant to the effect that, the applicant was all the time
ready and willing to provide accommodation to the
respondent, in his house is false. Further, there is
nothing on record to show that any steps were taken by
the applicant to bring her daughter-in-law back to her
matrimonial house. Hence, the submission made by the
Counsel for the applicant is rejected.
7.3 It is next contended by the Counsel for the
applicant, that the applicant is having only 2.038 hectares
of land which is not sufficient to meet his own needs
therefore, he is not in a position to pay the monetary
relief as granted by the Courts below to the respondent
and to her minor daughters.

7.4 The submission made by the Counsel for the
applicant cannot be accepted and hence rejected for two
reasons. Firstly, in the written reply, it was submitted by
the applicant, that he is having sufficient land and
property so as to provide good education and living
standard to the minor daughters of the respondent.
Thus, when the applicant himself has admitted that he is
having sufficient means, then now he cannot be allowed
to take a summersault and to submit that he has no
means of livelihood. Further, under the Act, 2005, every
“respondent” is liable to pay monetary relief to the
“aggrieved person”.

7.5 This Court in the case of Ramu Singh Tomar
Anr. vs. Smt. Bhuri Bai (M.Cr.C. No. 5884/2013) by
order dated 15.2.2017 has held as under:-

8 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

“In order to appreciate the submission
made by the Counsel for the applicants, it
would be necessary to find out that whether the
monetary relief on monthly basis can be termed
as maintenance in its strict sense, as provided
under Section 125 of Cr.P.C. or under Hindu
Adoptions and Maintenance Act or any other
law in force or Monetary relief is other than the
maintenance. It is true that in view of the
specific provisions of law as provided under
different statutes, the duty to maintain wife is
on the husband and it is a personal obligation.
However, in The Act, 2005, the words “Wife”,
“Husband”, have not been used. In the Act,
2005, the words “Aggrieved Person”,
“Domestic relationship”, and “respondent”
have been issued.

Section 2(a) defines “aggrieved person”
which reads as under :

“(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.”

Section 2(f) defines “domestic
relationship” which reads as under :

“(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;”

Section 2(q) defines “respondent”.

Thus, it is clear that The Act, 2005
nowhere deals with the relationship of Husband
and Wife but it deals with “Aggrieved person”,
“Domestic Relationship” and “respondent”.

Section 20(1)(d) of The Act, 2005 provides that
9 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

the monetary relief would be other than the
maintenance as awarded under Section 125 of
Cr.P.C. or under any other law for the time
being in force. Thus, in fact the provisions of
Section 125 of Cr.P.C. or provisions of any
other law for the time being in force have been
excluded expressly. Since, the word “Husband”
has not been used, and the word “respondent”
has been used, therefore, all the persons who
are covered by the definition of
“respondent”would be liable to maintain
monetary relief, including the maintenance.”
7.6 The Supreme Court in the case of Juveria Abdul
Majid Patni Vs. Atilf Iqbal Mansoori (2014) 10 SCC
736, has held as under:

“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 CrPC 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 Section
12 is in a domestic relationship with
the respondent.”

7.7 In the present case, the applicant himself has
claimed in his written reply that he has sufficient land and
property to meet the educational and other expenses of
his minor grand daughters. Secondly, merely because
the “respondent” does not have sufficient means, would
not mean that no monetary relief can be granted under
the Act, 2005.

7.8 In the present case, the Courts below have awarded
10 Criminal Revision No.934/2012
[Gaurishankar Rajput Vs. Smt. Poonam]

Rs. 2000 per month to the respondent and to each of her
two minor children i.e., in all Rs. 6000/- per month.
Considering the inflation and price index, by no stretch of
imagination, the monetary relief of Rs. 2000/- per month
to the respondent and to each of her minor daughter,
awarded by the Courts below can be said to be on a
higher side.

7.9 Further, it is candidly admitted by the Counsel for
the applicant that the mother is the natural guardian of
the child and therefore, it is clear that the Courts below
didnot commit any illegality by awarding the custody of
the children to the respondent.

7.10 No other argument was advanced by the
Counsel for the applicant.

8. Considering the totality of the facts and
circumstances of the case, this Court is of the considered
opinion that the Trial Court as well as the Appellate Court
did not commit any illegality while granting relief of
residence in a shared accommodation, monetary relief of
Rs. 2000/- per month to the respondent and to each of
her two minor daughters as well as the custody of the
children to the respondent.

Accordingly, the order dated 29-9-2012 passed by
the Trial Court and order dated 18-6-2012 passed by the
Appellate Court are hereby affirmed.

The Revision fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge
…./08/2017
Arun*
11 Criminal Revision No.934/2012

[Gaurishankar Rajput Vs. Smt. Poonam]

HIGH COURT OF MADHYA PRADESH, JABALPUR,
BENCH AT GWALIOR

CRIMINAL REVISION NO.934/2012

………Applicant: Gaurishankar Rajput
Versus
…….Respondent : Smt. Poonam

ORDER post for 31/08/2017

(G.S. Ahluwalia)
Judge
…./08/2017

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