IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

Present: The Hon’ble Justice Shivakant Prasad

CRR 2676 of 2019

Shyamal Dutta

-Versus-

Sheli Dutta

For the Petitioner : Mr. Shekhar Basu

Mr. Kusal Kumar Mukherjee

Heard on : 13.01.2020

Judgment on : 18.02.2020

In this revisional application impugned order dated 14.08.2019 passed by the Additional Sessions Judge, Fast Track Court-II, Howrah in connection with Criminal Appeal No. 100/2018 setting aside the judgment dated 20.07.2018 passed by the learned Judicial Magistrate, 3rd Court, Howrah in Misc. Case no. 452/2013, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is under challenge at the instance of the petitioner/husband with facts leading to the case that the petitioner retired as stenographer Grade-I from the office of the Chief Commissioner of Income Tax- 4 (CCIT-4), Kolkata, Aayakar Bhawan, Kolkata-700069 on 30.11.2018 is now suffering from Idiopathic Parkinson and cervical spondylosis and is under continuous medical surveillance.

It is alleged that the opposite party has been mounting pressure on the petitioner to stay separate from his elder brother since beginning and she became violent and started mental torture on his elder brother. She left her matrimonial home on July, 1998 for her father’s house declaring that if the respondent wants to lead a conjugal life, he will have to leave his elder brother and his ancestral house. On 13.10.1998, the opposite party started abusing the petitioner and on 14.10.1998 on the next day the elder brother of the opposite party arrived at the ancestral house and started assaulting the mentally retarded elder brother of the petitioner. The said incident was reported to the S.I. of police, Howrah and the concerned Gram Panchayat and the Gram Panchayat called the parties for settlement of the dispute. Though the opposite party returned to her matrimonial home on January, 1999 and she became pregnant on 20.04.1999 and was blessed with a baby on 05.12.1999 but she had left her matrimonial home along with all her belongings on 27.03.2000. The petitioner wrote to the Legal Aid Services West Bengal for return of the opposite party to her matrimonial home. The petitioner arranged rental accommodation and as per direction of the Legal Aid Services West Bengal, and on 17.01.2001, opposite party with her child came to the house of the petitioner and requested him to forget the past and promised to lead a normal life in presence of the maternal uncle of the petitioner. The parents-in-law of the petitioner came to the house of the petitioner on 13.04.2001 and abused the petitioner for staying in his ancestral house. The opposite party lodged a case under Section 498A/34 of I.P.C. in Sankrail Police Station being P.S. case No. 73/2001, dated 23.04.2001 and a final report was submitted. On getting the notice of final report a “Protest Petition” was filed before the learned Sub-Divisional Judicial Magistrate, Howrah and the petitioner and his elder brother were discharged under Section 245(2) of the Code of Criminal Procedure on 19.5.2005 finding no prima facie case. Then she filed a maintenance case vide Misc. Case No. 154/2001 under Section 125 of the Cr.P.C. in which both the opposite party and minor child were awarded maintenance of Rs.2000/- in total. She also filed another complaint under Section 406 of the Indian Penal Code being case no. 1280C/2001. Yet, she filed a complaint under Section 12 of the D.V. Act, 2005 in the year 2013 after leaving her matrimonial home on her own volition just after four months of her stay with the petitioner during 15 years of their marriage. Opposite party contended that the petitioner had earned Rs. 45000/- from his service but she has no source of income of her own and at her parent’s house, there is no space for her and her minor child and, therefore, she prayed for return of her “stridhan” articles, monetary relief of Rs. 50,000/- for the educational and medical expenses of the child and also for Rs. 10,000/- for her and Rs. 10,000/- for the minor child as maintenance per month. The Judicial Magistrate, dismissed the case on the finding that opposite party-wife has failed to specify the exact date on which her husband deprived the opposite party and her daughter of proper food and clothing and tortured them mentally and physically whereas the petitioner- husband admittedly had arranged for a rental accommodation after she left her matrimonial home.

She admitted that she has signed on the medical documents arranged by her husband for herself and her daughter but failed to produce any documentary proof that half of her said expenses were borne by her father and also observed the admitted fact that on 14.02.2012 she had received a bank draft along with a letter from the petitioner for expenses of her treatment of Tumour in her spinal cord. The opposite party stated during her evidence that her statement with regard to the stridhan articles is mentioned differently in the body of the petition and affidavit-in-chief and in the schedule of the “stridhan” properties, however, she could not furnish any receipt of gold ornaments. P.W.1 during her cross-examination stated that she had not detailed as to exactly which marital obligations her husband failed to fulfil. She has not specified the exact dates in the petition of complaint as to when her husband used to expect expensive gifts from her father.

The learned Magistrate rightly held that the allegation of physical and mental torture by the petitioner has been belied by her admission that she had not informed the police or other authorities about such ill-treatment while her father and two brothers are in police service and dismissed the application under Section 12 of Domestic Violation Act, 2005. The opposite party challenged the said order of dismissal in appeal before the learned Sessions judge, Howrah registered as Criminal Appeal No. 100 of 2018 which was decided by the learned Judge, Fast Track Court-II, Howrah by impugned judgment directing the petitioner-husband to pay compensation and monetary aid of Rs.25,000/- per month and Rs.7,000/- per month for rental accommodation in total Rs.32,000/- per month payable to the wife- opposite party from the date of the filing of the petition with direction that maintenance amount given under Section 125 of Cr.P.C. was to be deducted from the amount and to clear off the arrear amount in three equal instalments.

To urge that there is no case of domestic violence, Mr. Shekhar Basu, learned senior counsel for the petitioner adverted to the provision of Section 3 of Domestic Violence Act, 2005 which deals with the purpose of the Act to say that 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. 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 intimation 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 reasonable 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. 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.

It is submitted that the learned Appeal Court has not considered the entire facts and circumstances of the case and passed the impugned order without proper assessment of the evidence awarding the reliefs of compensation and for alternative accommodation as discussed above. It is submitted that the opposite party in her evidence had deposed that she had no receipt with regard to the stridhan articles and about taking of cash Rs.25,000/-, 7 bhories of gold ornaments and furniture as dowry which were all denied by the present petitioner during cross-examination of opposite party. The allegation against the elder brother of the petitioner that he used to ill behave with the opposite party in absence of the petitioner, has not been in evidence as she had admitted in unequivocal term during cross-examination that since there was no other family member in her in-laws house, her husband told her to stay in her parent’s house for proper care and nourishment of the baby. This admitted fact has not been taken into consideration by the learned Judge by judicial application of mind. The opposite party-wife had also admitted during cross-examination that on 10.04.2017 even though she had not intimated the petitioner that their daughter had passed Higher Secondary examination with 80% marks, the petitioner had sent Rs.1000/- in cash along with a letter and she has failed to specify the exact dates on which her husband deprived her of food and clothing, committing torture on her. She had admitted having regularly received maintenance amount as per the order of the Court and has even received Rs.5000/- for puja contingency from her husband which fact was also not considered and the impugned order is illegal per-se. The opposite party had deposed that she had no income of her own but during the cross- examination on 17.11.2016 she admitted that she joined WBREDA on “no work no pay” basis to run the educational expenses of her daughter who was pursuing her study in class XII and who had joined since 2014 on average income of Rs.5000/- to Rs.6000/- per month. But she did not intimate to the Court about her employment since 2013.

It is also submitted that she had left her matrimonial home out of her own volition and as such the application under Section 12 of Domestic Violence Act, 2005 is not applicable and relied on a case of Aditya Anand Vs. State of West Bengal (2015 (4) E Cr. N (CAL) 702) to argue that the application under Section 12 & 23 of the Protection of Women from Domestic Violence Act, 2005 was filed without verification as required under Rule 6 read with Form III of the Protection of Women from Domestic Violence Rules, 2006 and the application not being duly verified as required under Rule is not maintainable. I am unable to agree with such submission as the application under Section 12 of Domestic Violence Act is duly supported by an affidavit with due verification. That apart, the cited decision was on the different set of fact all together when a coordinate-bench of this Hon’ble Court was of the opinion that any ex parte and interim relief under Section 23(2) of the Act ought to commence from the date of such rectification and not earlier thereto inasmuch as the legislative requisite to grant such ex parte relief is requisite satisfaction of the Magistrate on the basis of a duly verified affidavit as prescribed in Form III of the Rules by further holding that the rectification or amendment of the affidavit in Form III while under Section 23(2) of the Act was permissible by supplying verification thereto. It is true that the application under Section 23(2) is required to be filed in Form III but no such dispute above was raised before the Trial Court and even before the Appellate Court.

However, I fully agree with Mr. Basu that on the face value of the evidence in the background of the facts discussed in the foregoing paragraph, there is no prima facie case of domestic violence as defined under Section 3 of the D.V. Act inasmuch as I find from the order of Secretary Legal Aid Service West Bengal dated 05.10.2001 (Annexure P/2) that on 25th July, 2000, the opposite party-wife admitted during counselling that she was never tortured either physically or mentally, though she made some allegation in her letter. It is also depicted from the Final Report no. 2 dated 15.01.2002 that Sankrail P.S. case no. 73/2001 dated 23.4.2001 under Section 498A/34 IPC filed by the opposite party-wife was recorded in FRMF/FRML, non- cognizable and allegation was considered fake as the opposite party-wife had stayed in her father’s house for birth of her baby and she returned to her in- laws place after delivery. Accordingly, the petitioner was discharged and necessary order was sought for to submit prosecution under Section 182/211 IPC against complainant for false and fabricated case and by order dated 19.5.06 in G.R. No. 666/01 Judicial Magistrate 4th Court, Howrah discharged the petitioner and his brother under Section 245 Cr.P.C. In the proceeding under Section 12 of D.V. Act, 2005, the opposite party as the aggrieved person prayed for protection orders, inter alia, prohibiting the respondent from committing any act of domestic violence on her, for residence order restraining the respondent from dispossessing and making any disturbance and/or obstructing/interfering in free egress and ingress in the matrimonial house of the aggrieved person, direction upon the husband to return her stridhan properties and valuable securities described in the schedule to the petition, a direction for monetary relief for payment of Rs. 50,000/- as temporary basis for the educational aid, medical expenses of the child of the aggrieved person, and to pay Rs. 10,000/- for the wife and Rs. 10,000/- for her minor child for the maintenance. The learned Magistrate has categorically observed that on being asked during trial the wife had expressed her unwillingness to return to her husband’s house with her daughter and refused to accept the said request of her husband. It is admitted fact that the husband had rented out a separate mess, obviously for living with the wife and child and she had stayed with him only four months during the period of fifteen years of marital life. Therefore, the application under Section 12 of DV Act filed in the year 2013 with the allegation that she was subjected to mental and physical violence or otherwise emotionally and economic abused cannot be viewed readily on the findings that she had left her matrimonial house out of her own volition. It is in the finding of the learned Magistrate that the wife had joined WBREDA of no work no pay to run educational expenses of her daughter studying in class-XII and also that she had joined since 2014 on average income of Rs. 5,000/- to 6,000/- and has not intimated about her employment in 2013 at the time of filing of the case about her employment whereas she had stated on affidavit that she had no income of her own. The learned Appeal Court found on evidence that the husband had earning of Rs. 79,000/- per month which fact was suppressed in his objection and on consideration that he was employed as a Grade-I category employee of Central Government in Income Tax Department, awarded compensation of Rs. 25,000/- to the wife from the date of the filing of the petition and Rs. 7,000/- for the rent of the house and thus, directed a total sum of Rs. 32,000/- to be paid. Mr. Basu has relied on a decision in a case of Shalu Ojha Vs. Prashant Ojha (2018 (7) Supreme 121) wherein it has been held that proceedings under DV Act, 2005 being summary in nature, amount of maintenance cannot be adjudicated. Proper course would be a petition under Section 16 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code Criminal Procedure, 1973. I humbly agree with the observation of the Hon’ble Supreme Court.

In the context of the discussion above and having perused the judgment impugned, I am of the view that the learned Appeal Court below has erred in law and was swayed by emotion while awarding compensation of Rs. 25,000/- and Rs. 7,000/- for alternative rental accommodation per month payable to the opposite party-wife as the husband cannot be held guilty of committing any sort of domestic violence in the given facts of the case as the opposite party-wife on her own volition stayed in her parent’s house obviously for giving birth to her baby when she was expectant mother. After that arrangement was made by the petitioner for her living in separate mess on the mere wishful allegation that her brother-in-law had bad eye on her daughter but there is no such observation made in the evidence or in the order except the observation so made by the Appeal Court whereas the opposite party-wife has admitted that since the death of the mother of her husband, his brother was suffering from depression and was mentally retarded person and in that view of the matter, the allegation of ill-behaviour towards the wife cannot be accepted. Morally, it was duty of the petitioner, an earning member, to support his ailing brother and so also of the opposite party-wife. This Court finds that the complaint case under Section 498A had ended in FRT and the petitioner with his brother were discharged thereof due to false and fabricated allegation of the opposite party no. 2. Thus, bearing in mind the findings above, I am of the considered view that there was no ground for passing an order directing the respondent-petitioner to pay compensation as no mental injuries, torture or emotional abuse, distress caused by the acts of domestic violence on the part of the petitioner- husband. Section 22 of the D.V. Act, 2005 deals with the compensation and damage for the injuries, including mental torture and emotional distress only when domestic violence is committed by the husband/respondent and not otherwise. So the wife was not entitled to use it as a weapon to gain compensation. Opposite party was also not entitled to an amount of Rs. 7,000/- on account of rental charges for alternative accommodation, when the petitioner is ready and willing to live together and when the door of the house of the petitioner is open to welcome her.

Therefore, in conclusion this Court is unable to agree with the grant of such reliefs given by the learned Appeal Court. If the wife is willing to live with the petitioner-husband along with their daughter, she would be welcome by him to stay together and to lead a happy marital life as the petitioner-husband retired from the service is now around 70 years old and suffering from some ailment who would obviously need the company of his wife and daughter. Therefore, there was no justification on the part of the learned Appeal Court below to grant compensation of Rs. 25,000/- payable to the wife per month. But of course, if the daughter is prosecuting higher studies, all expenses for her education has to be borne by the petitioner because the opposite party is employed on ‘no work no pay’ basis, that would not be sufficient to cater the need of the daughter for her studies.

In the above premises, the judgment impugned dated 14.8.2019 passed in C.R.A. 100/2018 is hereby set aside, accordingly, this revisional application being C.R.R. No. 2676 of 2019 is allowed and disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on completion of all necessary formalities.

(Shivakant Prasad, J.)