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2009 DIGILAW 505 (GAU)

Rina Devi Bora v. Dwijen Ch. Bora

2009-07-30

A.C.UPADHYAY

body2009
JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. A.M. Bujarbaruah, learned Counsel for the Petitioner and Mrs. B. Saikia, learned Addl. P.P. Assam, on behalf of the State Respondents. None appears on behalf of Respondent No. 1. The office note together with the affidavits of service upon Respondent No. 1 submitted on behalf of the Petitioner reflects that notice has been duly served on the Respondent No. 1. Therefore, it is apparent that the Respondent No. 1 preferred not to appear in this case. Considering the nature of the case, with the consent of the learned Counsel present this revision is taken up for disposal. 2. This revision petition is directed against an appellate judgment and order dated 18.2.2009 passed by the Learned Sessions Judge, Dibrugarh in Criminal Appeal No. 13 (2)/08. By the aforesaid appellate order learned Sessions Judge set aside the interim residence and protection order dated 12.5.2009, under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Domestic Violence Act"), passed by the learned Additional Chief Judicial Magistrate, Dibrugarh in C.R. Case No. 72C/ 08. By the aforesaid order dated 12.5.2009 learned Addl. C.J.M. directed the O.P. therein to make interim arrangements to allow the Petitioner and her children to reside in the shared house of the Respondent within seven days from the date of the order, till disposal of the proceedings. 3. The moot question for consideration of this Court in this revision petition is (i) Whether continued deprivation of economic or financial resources and continued prohibition or denial of access to shared household is a domestic violence and (ii) Whether the protection under the Domestic Violence Act will be available to the Petitioner, who was driven out from her husband's shared house hold prior to coming into effect of the Domestic Violence Act, if such denial of residence continued even after the Domestic Violence Act came into force. 4. The facts giving rise to this revision may be stated in brief as follows: The Petitioner on 5.3.2008 filed a case against her husband seeking protection under Domestic Violence Act, in the Court of the Learned Chief Judicial Magistrate, Dibrugarh praying for urgent relief of accommodation for the Petitioner in the shared household and other such relief. 4. The facts giving rise to this revision may be stated in brief as follows: The Petitioner on 5.3.2008 filed a case against her husband seeking protection under Domestic Violence Act, in the Court of the Learned Chief Judicial Magistrate, Dibrugarh praying for urgent relief of accommodation for the Petitioner in the shared household and other such relief. The learned Chief Judicial Magistrate thereafter transferred the case to the Court of learned Additional Chief Judicial Magistrate, Dibrugarh for disposal. On 12.4.1990, the Petitioner and the Respondent got married by performing Nam-Kirtan (as per Hindu Rites and Customs). After getting married, they started living together as husband and wife and accordingly two children were born out of the wedlock. At present the age of the daughter Smti. Daisy Bora is about 16 years and that of the son Master Munmun Bora is about 13 years. After the marriage, the Petitioner was staying with her husband at Milan Nagar, Khania Gaon, at the residence of the Respondent and, thereafter shifted to Chiring Chapori in a rented house. Thereafter, the Respondent started falsely accusing the Petitioner for living an adulterous life and started to torment her without any rhyme or reason. Finally on 6th August, 2006, the Respondents took up a quarrel over transfer of two kathas of land which was refused by the Petitioner and on such refusal the Petitioner was allegedly assaulted by the Respondent and, accordingly, she was compelled to leave the house of the Respondent. 5. On 11.3.08 the Petitioner filed a petition claiming interim residential and protection order in terms of the provision of Section 12 r/w 23 of the Domestic Violence Act. The Respondent challenged the claim of the Petitioner by alleging adulterous life style maintained by the Petitioner and for pendency of a divorce case filed by the Respondent on the ground of cruelty, desertion and breaking down of the marriage tie between them beyond repair. 6. Learned Addl. Chief Judicial Magistrate, Dibrugarh by his order dated 12.05.08 allowed the prayer for interim relief and issued direction to the O.P. therein to make interim arrangements to allow the Petitioner and her children to reside in the shared house of the Respondent, within seven days from the date of the order, till disposal of the proceedings. 7. An appeal was preferred as against the aforesaid order in the Court of learned Sessions Judge. 7. An appeal was preferred as against the aforesaid order in the Court of learned Sessions Judge. The learned District Judge, while considering the appeal against interim residence and protection order, held that the Petitioner had been living in a rented house since 6.8.2006, prior to the date on which the Domestic Violence Act came into force i.e. on 26th October, 2006 and there was nothing on record to show that the Petitioner was ill treated and assaulted by the Respondent after 26th October. 2006 and, accordingly, held that any relief to the Petitioner would amount to giving retrospective effect to the provisions of Domestic Violence Act. Thus learned District Judge allowed the appeal and set aside the order passed by the learned Addl. Chief Judicial Magistrate. 8. Now contentious question for consideration is whether the definition of domestic violence, and provisions contained in the Domestic Violence Act, excludes prohibition, deprivation or denial of residence to the Petitioner in the shared household by the Respondent, which commenced prior to the passing of the Act, if such prohibition or denial of stay in the shared house continued even after coming into force of the Domestic Violence Act. Whether only ill treatment and assault is the only parameter to extend relief to an aggrieved person under the Domestic Violence Act. 9. On close analysis of the provisions of Section 3 of the Domestic Violence Act, it appears that domestic violence has been defined to include any omission, commission or conduct of the Respondent which harms or injuries and/or causes economic abuses to the Petitioner. The definition of economic abuses in Section 3(iv) clearly reflects deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom including use or enjoyment of access to shared household. It will be pertinent to portray the provision of Section 3 of the Domestic Violence Act, which runs as follows: 3. It will be pertinent to portray the provision of Section 3 of the Domestic Violence Act, which runs as follows: 3. Definition of domestic violence -- For the purpose 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 purpose of this section-- (i) "physical abuse" means an 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. 10. Deprivation of an aggrieved woman from maintenance and denial of access to shared household itself is a domestic violence as envisaged under Section 3 of the Domestic Violence Act. As a matter of fact, any continued deprivation of economic or financial resources or prohibition of access to shared household would be a domestic violence. There is no scope to argue that if a deprivation as aforesaid has taken place on a particular day, it would cease to be a deprivation on the next day. The definition of domestic violence itself clearly spells out that it is not necessary that the aggrieved person has to be ill treated and assaulted by the Respondent to constitute domestic violence, any continuous deprivation and prohibition as defined under Section 3 of the Domestic Violence Act, comes within the purview of the domestic violence. 11. The definition of domestic violence itself clearly spells out that it is not necessary that the aggrieved person has to be ill treated and assaulted by the Respondent to constitute domestic violence, any continuous deprivation and prohibition as defined under Section 3 of the Domestic Violence Act, comes within the purview of the domestic violence. 11. It clearly emerges from the materials on record that the Petitioner is facing continuous deprivation of economic and financial resources and prohibition of access to shared household since the day on which she was driven out by the Respondent is a victim of domestic violence. Apparently, the Petitioner who was thrown out of the household of the Respondent is staying in a rented house. Section 2(s) of the Domestic Violence Act defines shared household, which reads as follows: Sec. 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 with 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; 12. Hon'ble Supreme Court in S.R. Batra v. Taruna Batra (2007) 3 SCC 169 , at page 174 held as follows: 27. It is well settled that any interpretation which leads to absurdity should not be accepted. 28. Learned Counsel for the Respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's (sic) in-laws or other relatives. 29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. 29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a "shared household". 30. No doubt, the definition of "shared household" in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society. 13. The learned Counsel for the Petitioner pointed out that preamble of the Domestic Violence Act clearly specifies that this Act has been enacted chiefly to provide protection to women who are the victims of domestic violence and to prevent the occurrence of domestic violence in the society or matters connected therewith. Drawing the attention of the Court to the objects and reasons of the Domestic Violence Act, the learned Counsel has submitted that this Act has been proposed to be enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence in the society and this Act intended to cover those woman who are and have been in relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity marriage or through a relationship in the nature of marriage or adoption. If the Petitioner is entitled to some benefit of shared household, in terms of the provision of the Domestic Violence Act and if such deprivation is continuous she shall be entitled to relief if the relationship of husband and wife subsists. As discussed above ill-treatment and assault is not the only requirement to constitute domestic violence. 14. If the Petitioner is entitled to some benefit of shared household, in terms of the provision of the Domestic Violence Act and if such deprivation is continuous she shall be entitled to relief if the relationship of husband and wife subsists. As discussed above ill-treatment and assault is not the only requirement to constitute domestic violence. 14. On perusal of the scheme of the Domestic Violence Act, it transpires that a power has been vested upon the Magistrate to exercise jurisdiction if the facts placed before him discloses that the Respondent is committing or has committed an act of domestic violence to the aggrieved person. The very provision of the Act clearly reflects that the domestic violence is a continuing offence unlike any other penal offence under the Penal Acts. A domestic violence persists so long the deprivation as envisaged in the Domestic Violence Act subsists. The Hon'ble Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhi Patel reported in (2008) 4 SCC 649 , held that the Domestic Violence Act provides for a higher right in favour of the wife. She not only acquires a right to be maintained but also there under acquires a right of residence which is a higher right. The said right, as per the legislation, extends only to joint properties in which husband has a share. 15. The Respondent is continuously depriving the Petitioner, who is legally entitled to a shared household in terms of the provisions of the Domestic Violence Act. The denial of access to shared household to the Petitioner took place prior to coming into force of the Domestic Violence Act, but such denial continued even thereafter. As the act complained of by the Petitioner is a continuing breach of legal right as envisaged in the Domestic Violence Act, there is no question putting a halt to the relief sought for. Therefore, giving relief to the Petitioner for such continuous breach of the legal right which has accrued to her, would not amount to giving retrospective effect to the provisions of the Domestic Violence Act. Therefore, giving relief to the Petitioner for such continuous breach of the legal right which has accrued to her, would not amount to giving retrospective effect to the provisions of the Domestic Violence Act. In view of my above discussion, I have no hesitation to hold that continued deprivation of economic or financial resources and continued prohibition or denial of access to shared household to the aggrieved person is a domestic violence and the protection under the Domestic Violence Act will be available to the Petitioner, who was driven out from her husband's shared household prior to coming into effect of the Domestic Violence Act, as the deprivation continued even after the Act come into force. 16. Therefore the impugned appellate order passed by the learned District Judge, Dibrugarh deserves to be interfered. Accordingly the impugned order it is set aside and quashed. 17. This Criminal Revision Petition accordingly stands allowed. Let a copy of this order be sent to the learned Court below immediately.