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2012 DIGILAW 879 (PAT)

Radha Raman Srivastava v. State of Bihar

2012-06-27

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the state of Bihar, and learned counsel appearing on behalf of the opposite party no.2. 2. The petitioner, being aggrieved by order dated 11.8.2008 passed in Cr. Appeal No. 241 of 2008 by learned Additional Sessions Judge-IV, Patna, affirming the judgment and order darted 22nd May, 2008 passed in Domestic Violence Case No. 9 of 2007 by the learned Judicial Magistrate, 1st Class, Patna, with some modification, has preferred the present revision application under sections 397 and 401 of the Code of Criminal Procedure, 1973, questioning the validity, correctness and propriety of the orders passed by the learned courts below. 3. It is admitted case of the parties that the petitioner had solemnized his marriage with opposite party no.2 on 18.6.1999 in accordance with Hindu rituals. According to the petitioner, unfortunately, opposite party no.2, from the very first day of her marriage, refused to co-habit with the petitioner and refused to have any physical relationship with him, despite all efforts made by him. Consequently, the petitioner filed Divorce Case No. 285 of 2000 before the learned Principal Judge, Family Court, Patna, seeking a decree of divorce from the opposite party no.2 primarily on the ground of cruelty, which is still pending before learned Additional Principal Judge, Family Court, Patna, for its final adjudication. 4. It is also the admitted case of the parties that in the aforesaid Divorce Case filed by the petitioner an ad interim maintenance at the rate of Rs. 4,000/- per month was directed to be paid to opposite party no.2 by an order dated 26.9.2006. Costs of the litigation of Rs. 5,000/- was also awarded in favour of opposite party no. 2. 5. It is the case of the petitioner that the amount of ad-interim maintenance is being deducted from his salary by virtue of order passed by the Family Court, Patna, and is being paid to opposite party no.2. However, for certain interregnum period, when the petitioner had not been paid his salary, the amount of ad-interim maintenance of opposite party no.2 is still due, which the petitioner is, now, prepared to pay. 6. However, for certain interregnum period, when the petitioner had not been paid his salary, the amount of ad-interim maintenance of opposite party no.2 is still due, which the petitioner is, now, prepared to pay. 6. While the aforesaid Divorce case, filed by the petitioner, was still pending, opposite party no.2 filed an application under Section 12 of The Protection of Women From Domestic Violence Act, 2005 ( for short ‘the PWDV’ Act ) giving rise to Domestic Violence Case No. 09 of 2007 in the court of learned Judicial Magistrate, Ist Class, Patna. It is the case of opposite party no.2 that on 13.9.2007, she visited the house of the petitioner for performing Teej festival, but she was not allowed to enter inside the house and was humiliated and was driven out from there. According to the opposite party no.2 abuses were also hurled upon her by the petitioner and his other family members. Therefore, the petitioner is alleged to have committed domestic violence and as such opposite party no.2 is entitled to have protection, compensation, and other reliefs under the provisions of the PWDV Act. 7. In the aforesaid Domestic Violence case, notice was issued to the petitioner and he filed his written statement disputing the allegation of opposite party no.2. It was specifically pleaded that opposite party no.2 was living separately for last several years, since after some time of her marriage, and there is absolutely no domestic relationship between the petitioner and opposite party no.2. It was also pleaded that since opposite party no.2 was getting ad interim maintenance at the rate of Rs. 4,000/- per month pursuant to the order passed by the learned Family Court, Patna in the Divorce case filed by the petitioner, therefore, the present application is not maintainable and opposite party no. 2 is not entitled to get any relief. 8. On consideration of materials produced by the parties, order dated 22.5.2008 was passed by learned Judicial Magistrate, Ist Class, Patna, whereby it was held that opposite party no.2 is not entitled to get any relief under Sections 20, 22 and 23 of the PWDV Act. 2 is not entitled to get any relief. 8. On consideration of materials produced by the parties, order dated 22.5.2008 was passed by learned Judicial Magistrate, Ist Class, Patna, whereby it was held that opposite party no.2 is not entitled to get any relief under Sections 20, 22 and 23 of the PWDV Act. However, learned Judicial Magistrate has allowed her claim in terms of Sections 18 and 19 of the PWDV Act prohibiting the petitioner and his other family members from committing any act of domestic violence against the opposite party no.2 and further directing the petitioner to allow her to live in his residential house, otherwise a rented house should be provided to her, and rent at the market rate should be paid. 9. The petitioner, being aggrieved by the aforesaid order, preferred Cr. Appeal No.241 of 2008, which was finally heard and disposed of by the impugned appellate order dated 11th August, 2008, passed by the learned Additional Sessions Judge- IV, Patna, modifying the order passed by the learned Magistrate and directing the petitioner to pay a lump sum amount of Rs. 1,000/- per month to opposite party no.2 for her residence. Hence, the present criminal revision application. 10. Learned counsel appearing on behalf of the petitioner has raised a very short question. According to him on the basis of materials produced by the parties, the learned Magistrate has recorded a finding of fact that no domestic violence was committed by the petitioner against opposite party no.2. It is also contended that since opposite party no.2 is living separately, since immediately after some time of her marriage on 18.6. 1999, there is absolutely no domestic relationship between the petitioner and opposite party no.2; though the Divorce case filed by the petitioner is still pending and the matter requires adjudication by the learned Family Court, Patna. 11. Learned counsel appearing on behalf of opposite party no.2 has strenuously argued the matter and supported the impugned order passed by the learned Magistrate and affirmed by the learned appellate court with some modification. It is contended that till the matter in the Divorce case is finally decided by learned Family Court, opposite party no.2 is legally wedded wife of the petitioner and, therefore, he cannot escape from his liability of maintaining and providing accommodation to his wife with full comfort. It is contended that till the matter in the Divorce case is finally decided by learned Family Court, opposite party no.2 is legally wedded wife of the petitioner and, therefore, he cannot escape from his liability of maintaining and providing accommodation to his wife with full comfort. In support of his contention, he has placed reliance upon a judgment of the Apex Court in the Case of V.D.Bhanot Vs. Sabita Bhanot, reported in I (2012) DMC 482 ( SC) and a judgment of the Delhi High Court. 12. After having heard the parties at length and on consideration of materials available on record, the following conclusions can easily be arrived:– (a) The marriage between the petitioner and opposite party no.2 had taken place on 18.6.1999 according to Hindu rituals. (b) Immediately, after solemnization of marriage, relationship between the petitioner and opposite party no.2 had taken an ugly turn. According to the petitioner, opposite party no.2 refused to co-habit with the petitioner from the date of her marriage itself, though this allegation has been disputed and challenged by opposite party no.2. (c) Divorce Case No. 285 of 2000 filed by the petitioner seeking a decree of divorce on the ground of cruelty is still pending before the learned Family Court, Patna. (d) By order dated 26.9.2006 passed by learned Additional principal Judge, Family Court, Patna, an ad interim maintenance at the rate of Rs. 4,000/- per month was directed to be paid to opposite party no.2 by the petitioner and that amount is being deducted from the salary of the petitioner excepting for certain interregnum period, when the petitioner was not being paid his salary. The petitioner has undertaken to pay the arrear amount of ad interim maintenance to opposite party no.2 for the interregnum period, which could not be paid earlier. (e) On the basis of materials produced by the parties, the learned Magistrate has recorded a finding of fact that opposite party no.2 has failed to prove the case of domestic violence said to have taken place on 13.9.2007. The learned Magistrate has also recorded a finding of fact that the Protection Officer has not conducted proper enquiry regarding allegation of domestic violence made by opposite party no.2. 13. The learned Magistrate has also recorded a finding of fact that the Protection Officer has not conducted proper enquiry regarding allegation of domestic violence made by opposite party no.2. 13. In order to appreciate the points raised on behalf of the parties and in order to appreciate the validity and correctness of the impugned orders passed by the courts below, examination/ scrutiny of Sections 18 and 19 of the PWDV Act would be relevant, which are reproduced herein below:– “18. Protection orders.–The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from :– (a) Committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate; (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection orde. 19. 19. Residence Orders.–(1) While disposing of an application under sub-section(1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order- (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause(b) shall be passed against any person who is a woman.- - - - - - - - -” (Emphasis added) 14. On plain reading of Sections 18 and 19 of the PWDV Act, it is apparent that for passing any order under Section 18 of the PWDV Act, the Magistrate has to be satisfied about the domestic violence having taken place or is likely to take place. However, for passing any order under Section 19 of the PWDV Act, the Magistrate is obliged to record his satisfaction about commission of domestic violence. Merely on surmises and conjecture, orders under Sections 18 and 19 of the PWDV Act cannot be passed. In the present case, the learned Magistrate has conclusively recorded a finding of fact that opposite party no.2 has failed to prove charge of domestic violence having taken place on 13.9.2007. It is also apparent that opposite party no.2 is already getting Rs. 4,000/- per month from the petitioner as an ad interim maintenance by virtue of an order passed in the Divorce case. She cannot claim that she is left in the lurch and is not in a position to maintain herself. It is also apparent that opposite party no.2 is already getting Rs. 4,000/- per month from the petitioner as an ad interim maintenance by virtue of an order passed in the Divorce case. She cannot claim that she is left in the lurch and is not in a position to maintain herself. Further, it is apparent that the petitioner and the opposite party No.2 are living separately for more than 12 years, as the Divorce Case was filed by the petitioner in the year 2000. It is not the case of opposite party no.2 that since the date of institution of the aforesaid case she ever lived with the petitioner in a shared household. Therefore, there does not appear to be domestic relationship between the petitioner and the opposite party no.2. 15. Since the learned Magistrate has recorded a finding of fact that opposite party no.2 has failed to prove the case of domestic violence having taken place as alleged by opposite party no.2, therefore, to my mind, the learned Magistrate had no occasion to pass the impugned order allowing the claim of opposite party no.2 in terms of Section 19 of the PWDV Act. The learned Magistrate has also not recorded a finding of fact that domestic violence is likely to take place or the petitioner has ever attempted to commit domestic violence on the separate abode of opposite party no.2 after the institution of divorce case in the year 2000. The powers exercised by the learned Magistrate seem to be arbitrary and in violation of the mandates of The P.WDV Act. The impugned order passed by the learned Magistrate is not sustainable in eye of law. Learned lower appellate court has also failed to appreciate the points involved in the present case, and has mechanically affirmed the order with minor modification. Consequently, the orders impugned cannot be sustained. 16. In the result, this application stands allowed. The impugned orders dated 22nd May, 2008 passed by the learned Judicial Magistrate, Ist Class, Patna, and the impugned appellate order dated 11th August, 2008 passed by the learned Additional Sessions Judge–IV, Patna are hereby set aside. 17. However, this does not conclude the matter. Admittedly, the petitioner has not paid the amount of ad interim maintenance to opposite party no.2 for certain period. 17. However, this does not conclude the matter. Admittedly, the petitioner has not paid the amount of ad interim maintenance to opposite party no.2 for certain period. According to the averments made in the counter affidavit filed on behalf of opposite party no.2 in the present proceeding, more than Rs. 1.5 lacs is due against the petitioner towards ad-interim maintenance payable to her. The petitioner is hereby directed to pay the entire arrear amount of ad-interim maintenance, as directed and calculated by the learned Additional Principal Judge, Family Court, Patna in Divorce Case No. 285 of 2000 and that should be paid to opposite party no.2 within a maximum period of three months from today. If arrears amount of ad interim maintenance is not paid within the aforesaid prescribed time, then the learned Additional principal Judge, Family Court, Patna shall be at liberty to take all coercive measures for recovery of the aforesaid arrear amount of ad-interim maintenance either from the household property of the petitioner or from his salary through his employer, or through any other legal means. 18. The parties are left to bear their costs of the present proceeding.