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2011 DIGILAW 352 (RAJ)

Khushi Mohd. v. Aneesha

2011-02-15

VINEET KOTHARI

body2011
JUDGMENT Hon'ble Dr. KOTHARI, J.—Heard learned counsel for Mr. Khushi Mohd. and Ors. and Mr. Usman Gani, father of Aneesha. 2. These two cross petitions, one S.B. Criminal Revision Petition No. 882/2009 - Khushi Mohd. and Ors. vs. Aneesha and S.B. Criminal Misc. Petition No. 1698/2007 - Annesha vs. Khushi Mohd. and Ors. are directed against the order dated 4.8.2007 passed by the learned Additional Sessions Judge, Sujangarh disposing of the criminal appeal No. 33/2007 - Aneesha vs. Khushi Mohd. and Ors. and Criminal Appeal No. 32/2007 - Khushi Mohd. and Ors. vs. Aneesha. By the said order, the learned Additional Sessions Judge dismissed he appeal by the wife Aneesha and partly allowed the appeal of the husband Khushi Mohd. 3. Both these criminal appeals wee filed by them against the order passed by the learned Judicial Magistrate No.1, Sujangarh on 22.3.2007 in Criminal Case No. 47/2007 - Annesha vs. Khushi Mohd. and Ors. under the provisions of Protection of Women from Domestic Violence Act, 2005. 4. The learned trial Court while allowing the application under Section 12 of the Domestic Violence Act, 2005 directed that the respondents No.1 to 6 (husband Khushi Mohd. and his family members) shall not cause any domestic violence against the applicant wife Aneesha and daughter Aisha alias Asu under Section 18 of the Act. The learned trial Court further directed under Section 19 of the act that the said respondents will permit the applicant - wife and her daughter to live in the portion of the respondents house and under Section 20 of he Act, the learned trial Court directed that husband Khushi Mohd. shall pay monthly maintenance of Rs.4,000/- to Aneesha and Rs. 10,000/- as compensation for harassment and domestic violence caused to her. The said maintenance of Rs. 4000/- was directed to be paid from the month of March, 2007 and continued to be paid on monthly basis. 5. The appellate Court vide its order dated 4.8.2007 while partly allowing the appeal of the husband Khushi Mohd. directed payment of maintenance to the wife to the tune of Rs. 2500/- and since her daughter Asu was residing with husband Khushi Mohd., therefore, payment of maintenance of Rs. 1500/- per month towards the maintenance of said minor child would be subject to the condition if the custody of the child is handed over to the wife Aneesha. directed payment of maintenance to the wife to the tune of Rs. 2500/- and since her daughter Asu was residing with husband Khushi Mohd., therefore, payment of maintenance of Rs. 1500/- per month towards the maintenance of said minor child would be subject to the condition if the custody of the child is handed over to the wife Aneesha. The relief under Section 19 of the Act was modified by the appellate Court and alternatively of payment of rent of Rs. 1500/- for arranging the alternative accommodation of the applicant wife was also added to the direction of allowing her to reside in the shared accommodation of the respondent. 6. Being aggrieved by the said order, both the parties have filed the aforesaid criminal revision petition as well as criminal misc. petition. 7. The learned counsel Mr. Chaitanya Gehlot appearing for the husband Khushi Mohd. raised the following contentions: (i) The petitioner husband had divorced respondent-wife Smt. Aneesha way back in the year 2005 orally on 30.8.2005 and by registered letter dated 21.10.2005 and thus, the respondent - wife did not fall within the definition of 'aggrieved person' as defined in Section 2(1) of the Domestic Violence Act, 2005 and therefore, she was not entitled to the relief granted by he Court below. (ii) The learned counsel for the petitioner further urged that upon grant of divorce, the respondent-wife was to be governed by the provisions of Muslim Women (Protection of Right on Divorce) Act, 1986 and therefore, no relief of maintenance and other relief could be granted in her favour under the provisions of Domestic Violence Act, 2005. (iii) The learned counsel for the petitioner-husband also urged that the parties and arrived at a compromise and upon such compromise only, the father of the respondent - wife Usman Gani had withdrawn the complaint of the respondent-wife and thus, the complaint case No. 88/2007 (regular criminal case No. 339A/2007) was withdrawn from the competent Court on 13.10.2007 and therefore, the present petitioner husband has not pressed his criminal misc. petition No. 472/2008 - Khushi Mohd. petition No. 472/2008 - Khushi Mohd. vs. The State of Rajasthan against the order dated 23.2.2008 by which the learned Additional District Judge had upheld the order dated 6.12.2007 taking cognizance against the petitioner-husband and other family members on the said complaint case No. 88/2007 (Criminal Case No. 339A/2007) and in view of the compromise between the parties, the respondent-wife is not entitled to any relief under the provisions of Domestic Violence Act. The learned counsel for the petitioner-husband therefore, submitted that the revision petition filed by the petitioner-husband deserves to be allowed while the criminal misc. petition filed by the respondent-wife against the order dated 4.8.2007 of the learned Additional Sessions Judge, Sujangarh deserves to be dismissed. However, the learned counsel for the petitioner did not support his contentions with any of the case laws cited at the Bar. 8. Mr. Usman Gani, father of the respondent-wife Smt. Aneesha appeared in the Court on her behalf and made submissions to the Court. He denied any compromise between the parties. He further submitted that the provisions of Domestic Violence Act squarely apply to his daughter Smt. Aneesha in view of provisions of Section 36 of the said Act. He also urged that the alleged compromise was got signed under a threat and blackmail and that is why the complaint case No. 88/2007 was dismissed as withdrawn. He submitted that no amount of maintenance. Mehar or any other amount was paid to his daughter Smt. Aneesha. He also submitted that his another daughter is also married to the brother of the petitioner Khushi Mohd. who is although living in the same family, but even her marriage can be in trouble on account of present dispute and he submitted that the present revision petition filed by the petitioner - husband deserves to be dismissed and the amount of maintenance and other reliefs as directed by the learned Courts below, which have not so far been paid deserve to be paid to her. 9. The Domestic Violence Act, 2005 (Act No. 43 of 2005) was enacted by the Parliament to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. 10. 9. The Domestic Violence Act, 2005 (Act No. 43 of 2005) was enacted by the Parliament to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. 10. From the statement of objects and reasons of said enactment, it is clear that domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. The provisions like Section 498A of the Indian Penal code to provide protection against cruelty by her husband or his relatives were found to be insufficient law to address this phenomenon of domestic violence in its entirety. Therefore, the Parliament proposed to enact a law 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 was intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The said enactment covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women or living with the abuser are entitled to legal protection under the said legislation. 11. Thus, obviously, such enactment was to provide protection to weaker sex or females in the family irrespective of marital relationship and that is why the definition in Clause 2(a) is of "aggrieved person" rather than 'wife' qua the husband. The definition of "aggrieved person" is widely worded to including any woman who is, or has been, in a domestic relationship with the respondent and who alleges t have been subjected to any act of domestic violence by the respondent. The definition of "aggrieved person" is widely worded to including any woman who is, or has been, in a domestic relationship with the respondent and who alleges t have been subjected to any act of domestic violence by the respondent. The word "domestic relationship" was also widely worded to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household, whether 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. Sec. 2(g) read with Section 3 of the Act of 2005 defines the words "domestic violence" to mean any act, omission or commission or conduct of the person shall constitute domestic violence in case it harms, or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, or the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. 12. Recently, the Hon'ble Supreme court in the case of D. Velusamy vs. D. Patchaimmel reported in (2010) 10 SCC 469 = 2011(1) RLW 198 (SC) dealing with a case for interpreting 'relationship' in he nature of marriage under Section 2(f), held in para 31 to 33 as under : "31. In our opinion a "relationship in the nature of marriage" is akin to a common law marriage. Common law marriages require that although not being formally married. (a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified t enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (See "Common Law Marriage" in Wikipedia on Google) In our opinion a "relationship in the nature of marriage" under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a "shared household" as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a "domestic relationship". 32. Merely spending weekends together or a one night stand would not make it a "domestic relationship". 32. In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a "keep" whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. 33. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression "relationship in the nature of marriage" and not "live-in relationship". The Court in the garb of interpretation cannot change the language of the statute." 13. The reliefs which can be granted by the Courts under the provisions of said Act are enumerated in Section 17 to 23 of the said Act. While Section 17 with a non-obstante clause provides that every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. The aggrieved persons shall not be evicted or excluded from the shared household or any part of it. Section 18 empowers the concerned Magistrate to give suitable protection in favour of aggrieved person against the threatened act of domestic violence. Section 19 of the Act empowers the concerned Court while dealing with application under Section 12 of the Act to pass appropriate orders regarding residence of the aggrieved person. Section 18 empowers the concerned Magistrate to give suitable protection in favour of aggrieved person against the threatened act of domestic violence. Section 19 of the Act empowers the concerned Court while dealing with application under Section 12 of the Act to pass appropriate orders regarding residence of the aggrieved person. This includes the respondents being restrained from dispossessing or disturbing the possession of the aggrieved person, directing the respondent to remove himself from the shared household restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved persons resides, restraining the respondent from alienating or disposing of the shared household or encumbering the same and even directing the respondent to secure the same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances, so requires. Section 20 of the Act provides for payment of monetary relief to the aggrieved person to meet the expenditure incurred and loss suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include the loss of earnings, medical expenses and maintenance for the aggrieved person besides the maintenance which can be awarded by the Court under Section 125 Cr.P.C. Section 21 of the Act provides for custody order of the minor child or children to the aggrieved person. Section 22 of the Act empowers the Court to pass compensation orders for the injuries, including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent. Section 23 of the Act empowers the Court to grant ex parte interim relief to the aggrieved person. Section 36 of the Act clearly stipulates that the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force. Thus, the provisions of this Act are widely worded for the benefit of aggrieved person in the domestic relationship with the respondent. 14. Section 36 of the Act clearly stipulates that the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force. Thus, the provisions of this Act are widely worded for the benefit of aggrieved person in the domestic relationship with the respondent. 14. From a reading of the provisions of the Act and with understanding of the scheme of the said enactment, it is clear that it is not necessary that the applicant - woman should have a marriage subsisting and existing with the respondent at the time of filing of such application under Section 12 of the Act. No time period is also prescribed in the said Act as to when the aggrieved person should have been in domestic relationship with the respondent. On the other hand, definition of words "domestic relationship" given in Section 2(f) of the Act clearly uses the words "at any point of time, lived together in a shared household". In view of this clear provision of the Act covering the aggrieved person or woman in such domestic relationship, the contention of the learned counsel for the petitioner - husband Khushi Mohd. that in view of divorce given by the petitioner - husband to the respondent - wife, which fact is disputed from the opposite side, no relief could be granted to her under the provisions of this Act, falls flat on its face. Admittedly, the respondent - wife used to live in the shared accommodation with the petitioner - husband for considerable period and out of this wedlock, a female child Asu was also born and the applicant - wife chose to leave or was thrown out of the matrimonial home only about 1½ years prior to the said application under Section 12 of the said act. In the absence of any period of limitation prescribed in the said Act for approaching the Court, the contention that she left the matrimonial home about 1½ years back and therefore, she is not entitled to any relief under this Act is also devoid of any merit. The period of 1½ years even otherwise is not such a long gap of period to disentitle the wife from claiming relief under this Act, even otherwise. The period of 1½ years even otherwise is not such a long gap of period to disentitle the wife from claiming relief under this Act, even otherwise. The application under Section 12 of the Act could not be said to be suffering from the vice of delay, laches, acquiescence or estoppel on this ground. The Act of 2005 was enacted around the same period and was brought into force w.e.f. 26.10.2006 even though it received the assent of President on 13.9.2005. In the kind of social background the applicant - wife is living and with he low level of awareness of legal rights under this Act, which can be reasonably presumed for such a lady, this Court is not inclined to uphold the contention of the respondent - husband in this regard. 15. Equally meritless is the contention of the learned counsel for the petitioner - husband that after divorce, the respondent - wife was only entitled to the relief under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 and not under the provisions of this Act. No such prohibition is either contained in the Domestic Violence Act, 2005 nor this is the case of the petitioner husband that any such benefit has been granted to the respondent-wife under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. On the other hand, provisions of Section 36 of the Domestic Violence Act, 2005 clearly makes it an Act to have additional field for the benefit of aggrieved person. therefore, even if some benefit could be envisaged or allowed to the respondent - wife under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, that cannot come in the way of the applicant - wife to secure the relief under the provisions of Domestic Violence Act, 2005. 16. The learned appellate Court has in fact discussed in detail these aspects and has clearly found that notwithstanding the claim of the petitioner - husband of having granted divorce, which the Courts below have found, was not done according to Shariat law and therefore, no such divorce could be presumed, the applicant wife was entitled to the relief under the provisions of Domestic Violence Act, 2005. It is not even in dispute before this Court that the learned Courts below had power to grant monetary relief to the applicant - wife in the form of monthly maintenance. In fact, the appellate Court has partly allowed the appeal of the petitioner - husband and has provided him relief to the extent of bifurcating the monthly maintenance of Rs. 4000/- into two parts, one for Rs. 2500/- for the respondent - wife Aneesha and Rs. 1500/- for minor child Asu subject to the condition that if the custody of the minor child Asu is given to the respondent - wife. The learned appellate Court has further granted part relief to the petitioner - husband to the extent of making alternative accommodation available to her at the monthly rent of Rs. 1500/- to be paid by the petitioner - wife to reside in the shared accommodation. In the considered opinion of this Court, the petitioner - husband could not have asked to more relief in the present case since the factum of domestic violence and domestic relationship as defined in the Act of 2005 were establi-shed and they are the findings of facts of Courts below, which are not liable to be interfered with by this Court in the revisional jurisdiction at the instance of petitioner - husband at this state and as far as power of Courts below to grant relief in question is concerned, this Court finds the said relief to be fully within the parameters of provisions of the said Domestic Violence Act of 2005. 17. On the other hand, so far as the criminal misc. petition filed by the respondent - wife under Section 482 Cr.P.C. seeking increase of monthly maintenance from Rs. 2500/- to 30,000/- in the connected misc. petition No. 1698/2007 is concerned, this Court finds no force in such prayer for enhancement sought by the respondent - wife also and the same appears to be without any basis. No reasonable basis has been averred and founded on material by the respondent wife to claim such huge amount of monthly maintenance of Rs. 30,000/-. petition No. 1698/2007 is concerned, this Court finds no force in such prayer for enhancement sought by the respondent - wife also and the same appears to be without any basis. No reasonable basis has been averred and founded on material by the respondent wife to claim such huge amount of monthly maintenance of Rs. 30,000/-. Both the families are engaged in the work of cloth colour dyeing and father of the respondent - wife who appeared in the Court also admitted that the applicant Aneesha shared his work and could be said to be earning herself by doing the work to the extent of Rs. 2000/- per month. Since she is living with her parents at Sujangarh, whereas the petitioner - husband is living at Churu, the claim of Rs. 30,000/- by the respondent - wife and the misc. petition under Section 482 Cr.P.C. filed for this purpose equally does not require any interference by this Court in the impugned order of the appellate Court dated 4.8.2007. 18. Consequently, for the aforesaid reasons, the present revision petition No. 882/2009 filed by the petitioner - husband and his family members and Criminal Misc. Petition No. 1698/2007 filed by the respondent - wife both are liable to be dismissed and the same are accordingly dismissed. No order as to costs.