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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.)