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2015 DIGILAW 156 (CHH)

SANTOSHI BAI v. GANGARAM

2015-05-15

MANINDRA MOHAN SHRIVASTAVA

body2015
ORDER : 1. Heard. This revision petition is directed against order dated 05/08/14 passed in appeal by the 4th Additional Sessions Judge, Bilaspur by which, order dated 01/02/14 passed by the Magistrate rejecting petitioner's application for award of maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005 has been affirmed. 2. An application under Section 12, 18, 19, 22 and 23 under the Act of 2005 was moved by the applicant against her husband - Gangaram, her in-laws as also impleading second wife of Gangaram, praying for award of maintenance and also for passing appropriate order of residence and return of agricultural land or in lieu thereof, lump sum amount as also for appropriate compensation for damages caused to the petitioner due to physical and mental cruelty. According to the applicant, she was married to Gangaram, five years before the date of filing the application. She was to undertake household work as also engaged in employment to earn livelihood for the family. She was harassed, tortured and abused accusing her as "tonhi" (one who plays witchcraft). It was alleged that due to maltreatment, she became weak so much so that it affected fetus growth and soon after birth, the child died. She was not provided proper treatment in the hospital. As a specific incidence, it was stated that in the month of April, when marriage of her brothers was to be solemnized, non-applicant/husband and her in-laws objected to send the applicant to her parental house to attend the marriage and when her father came to take her for attending marriage, they told that the applicant would not be allowed to re-enter in the matrimonial house. The non-applicant/husband thereafter, contacted another marriage with one Melan Bai. It was further averred that the applicant was thrown out of her matrimonial house. It was from her income that renovation of the house took place and half an acre of land was purchased, which also, she was not allowed to use. It is stated that she has become weak and unable to maintain herself. As her husband is a Carpenter and earning Rs.10,000/- per month living in a pakka house and also has support from agricultural income, appropriate relief was prayed for. It is stated that she has become weak and unable to maintain herself. As her husband is a Carpenter and earning Rs.10,000/- per month living in a pakka house and also has support from agricultural income, appropriate relief was prayed for. On the other hand, husband opposed prayer firstly on the ground that applicant started living with him without there being any valid divorce from her former husband- Ramkumar. She had also performed "Churi Marriage" (customary marriage) with one Sunil. It is submitted that she left the matrimonial house without the permission of her husband. Her father had entered into quarrel and thereafter, in community meeting, applicant's father and applicant did not participate nor they came back to matrimonial house. 3. Both the Courts below, swayed by the fact that the applicant had earlier married with Ramkumar and she had been co-habiting with non-applicant-Gangaram under an agreement and further recording finding that no case of domestic violence as per Section 3 of the Act of 2005 is made out, the application was rejected and appeal was dismissed. This revision is directed against order passed in appeal affirming dismissal of the application for award of maintenance and other relief by the Magistrate. 4. Submission of learned counsel for the applicant is that for the purposes of attracting provisions of the Act of 2005, all that was necessary for the applicant was to prove 'domestic relationship' as defined in Section 2 (1) of the Act of 2005 and it is not necessary to prove subsistence of valid marriage. The factum of applicant living with non-applicant No.1 as his wife and accepted as such by non-applicant No.1 and his family is sufficient to establish domestic relationship and attract application of the provisions of the Act of 2005. It is next contended that looking to the beneficent object of the legislation intended to protect a woman against all forms of violence and very wide meaning and import of 'domestic violence' as defined under Section 3 of the Act of 2005, the very act of the non-applicants in demanding Rs.25,000/- as a condition preceding for allowing the applicant to enter into and reside in matrimonial house and live matrimonial life with husband and thereafter, throwing her from the matrimonial house, restricting her entry, not providing any assistance, food, clothing, emotional security and remarriage with one Melan Bai constitutes domestic violence. The Court below has completely misconstrued and failed to give effect to the beneficent legislation meant for providing protection. residence and appropriate maintenance to the applicant. 5. Per contra, learned counsel for the non-applicants submits that as the applicant has admitted that she was first married to Ramkumar and in the absence of there being any proof of valid divorce between them, the applicant cannot claim legal status of wife of non-applicant/husband. Even though she was living as his wife, in the absence of there being subsistence of valid marriage, no benefit could be extended to the applicant, as the Act of 2005 itself is not applicable. The allegations of domestic violence are without any specific details, evasive and omnibus in nature. The applicant's father had come to take her to the parental house to attend the marriage of her brothers. Thereafter, her father came in and started quarrelling and took the applicant along with him to parental house. In community meeting also the applicant and her father did not participate nor the applicant came back to her matrimonial house. There is no proof that renovation of the house of the residence had taken place out of the funds earned by the applicant. The agricultural land is not recorded nor purchased in the name of the applicant. Therefore, in the absence of any other clinching evidence, the Courts below have rightly concluded the matter against the applicant and in favour of the non-applicants. 6. On the basis of submission made by learned counsel for the parties, following issues arise for consideration before this Court :-- (a) Whether the applicant is entitled to benefits of protection, residence and maintenance under the Act of 2005. (b) Whether the applicant was subjected to "domestic violence" within the meaning of Section 3 of the Act of 2005. 7. The Act of 2005 was enacted to provide for more effective protection of rights of women guaranteed under the Constitution who are victims of violence of any kind that occurs within the family or matters connected therewith or incidental thereto. That is what has been stated in the preamble to the Act. The preamble clearly indicates the intention and object of the legislation. That is what has been stated in the preamble to the Act. The preamble clearly indicates the intention and object of the legislation. This act brings about revolutionary provisions to protect a woman from all forms of violence as is reflected from a very wide and comprehensive as well as inclusive definition of 'domestic violence' embodied therein. This part shall be dealt with later on but before that, it has to be seen as to who are the beneficiaries for whose benefit and protection, the Act of 2005 has been enacted. 8. Section 12 of the Act of 2005 provides that an aggrieved person or a Protection Officer or any person on behalf of aggrieved person may present the application to the Magistrate seeking relief under the Act which may include a relief for issuance of an order of payment of compensation or damages without prejudice to the right of a person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent. It further provides that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable under the orders of the Magistrate under the Act of 2005 shall be set off against the amount payable under such decree. 9. Section 18, 19 and 20 of the Act contains provision with regard to right to reside in a shared household, residence orders and monetary reliefs respectively. The Court is also entitled to pass appropriate order of compensation under Section 22 of the Act of 2005. At the same time, Section 26 of the Act of 2005 provides that any relief available under Section 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before the Civil Court, Family Court or a Criminal Court, affecting the aggrieved person whether such proceeding was initiated before or after the commencement of the Act of 2005. 10. The aforesaid scheme of the Act is clearly intended to come to the aid and protection of an 'aggrieved person' defined under Section 2 (a) to mean any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the non-applicant. 10. The aforesaid scheme of the Act is clearly intended to come to the aid and protection of an 'aggrieved person' defined under Section 2 (a) to mean any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the non-applicant. "Domestic relationship" has also been defined under Section 2 (f) of the Act of 2005 and being relevant for the purposes of the present case is extracted hereinbelow - 2 (f) - "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when 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. 11. A logical and fair reading of the aforesaid definition of domestic relationship reveals that the legislation, in its wisdom, intended to protect a woman as an aggrieved person having domestic relationship of a very wide import and not merely confined to legally wedded wife. This is clear from the plain language of the provision aforesaid where domestic relationship would include those who live or have, at any point of time, lived together in a shared household when they are related by consanguinity, marriage or through relationship in the nature of marriage or adoption or are family members living together as a joint family. The aforesaid wide definition of domestic relationship, as manifested, not only includes a woman validly married but also includes one who lives or have lived at any point of time together in a shared household through a relationship in the nature of marriage. Therefore, while seeking protection by a woman claiming to be an aggrieved person i.e. one who alleges to have been subjected to any act of domestic violence by the non-applicant, the beneficent provisions of the Act will come to her aid, if she is able to establish 'domestic relationship' as defined and meant under Section 2 (1) of the Act of 2005. 12. 12. Keeping in mind, the aforesaid provisions of the Act of 2005, particularly the wide and comprehensive definition of word "domestic relationship", if the pleadings and evidence led by the parties are examined, it is crystal clear that the applicant was living with Gangaram as his wife after solemnization of their marriage though stated to be in a customary form said to be prevalent and in common parlance known as "Churi Marriage" i.e. accepting a woman as wife by offering her bangles. The applicant has clearly stated in her application that she was married to non-applicant - Gangaram and resided with him for five years. In his reply, the respondent has not disputed the factum of marriage and the applicant residing with non-applicant - Gangaram as his wife and fully accepted by him and his family as his wife, residing with Gangaram. Gangaram, however, has sought to oppose the prayer of the applicant on the ground that as the applicant was first married to one Ram Kumar and as there is no evidence of valid divorce between them, the applicant cannot claim legal status of legally wedded wife and therefore, not entitled to relief under the Act of 2005. However, neither in his pleading nor in his evidence before the Magistrate, he has disputed that he had performed marriage and thereafter, the applicant started residing with him as his wife in his house. He has admitted that a child was born out of their wedlock but died soon after taking birth. Pleadings of both the parties proceed on admitted position that the applicant was residing with the non-applicant - Gangaram as his wife. However, pleadings of both the parties attempt to justify their respective stand. While case of the applicant has been that she has been unceremoniously' shunted out from matrimonial house, not provided maintenance, no allowed shelter in the matrimonial house and non-applicant/Gangaram having contacted second marriage, the case of Gangaram is that applicant's father had taken her to the parental house for attending marriage of her brothers without due permission and thereafter, when she was brought back, an objection was taken to the manner in which she had left the matrimonial house, her father started quarrelling and thereafter, she was not brought back nor attended community meeting towards resolution of dispute. Therefore, the factum of marriage is fully admitted by the non-applicant/husband. 13. Therefore, the factum of marriage is fully admitted by the non-applicant/husband. 13. The aforesaid admitted position on record satisfies the requirement of 'domestic relationship' as defined under Section 2 (f) of the Act of 2005. Even if for the sake of arguments, it is assumed that the marriage was not valid under the law, the' admitted fact of applicant residing with Gangaram in his house as his wife, accepted by all members as his wife and even child born from their wedlock, undoubtedly partakes the nature of domestic relationship between them and covered within the clause (f) of Section 2 of the Act of 2005. Once it is held that the applicant was in domestic relationship with the respondent, the provisions of the Act are immediately attracted and come to the rescue of woman / the applicant, provided it is established that she has been subjected to any act of domestic violence by the non-applicant. 14. The next question which falls for consideration of this Court is whether the applicant has been subjected to domestic violence. In order to decide this issue, it is relevant to look into the provisions contained in Section 3 of the Act of 2005 which defines domestic violence. Section 3 of the Act of 2005 defines domestic violence in widest possible terms and indicative of legislative intention to include within its mischief, all conceivable forms of violence which a woman could be subjected to, while in a domestic relationship with the abuser. The relevant provision is reproduced hereinbelow - "3. Section 3 of the Act of 2005 defines domestic violence in widest possible terms and indicative of legislative intention to include within its mischief, all conceivable forms of violence which a woman could be subjected to, while in a domestic relationship with the abuser. The relevant provision is reproduced hereinbelow - "3. Definition of domestic violence - For the purposes 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 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 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 m 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." 15. A bare reading of the aforesaid provision leaves no scintilla of doubt that the Act has been brought into force in order to protect women from all conceivable forms of violence. It not only includes physical abuse of wide import, including therein, almost every kind of bodily injury but also sexual abuse, verbal, emotional abuse and economic abuse. The provision, as it reads, is so wide that it encompasses physical mental, verbal, economic abuse of all forms. This widest definition is legislative indica to protect a woman and provide her appropriate relief of residence as also provide her monetary relief. 16. The pleadings and evidence on record viewed from the window of domestic violence as defined under Section 3 of the Act of 2005, reveals that the applicant was subjected to domestic violence. The pleadings and evidence led by both the parties, read in its totality, reveal that the dispute arose on a trivial issue of applicant going to her parental house to attend marriage of her brothers. The pleadings and evidence led by both the parties, read in its totality, reveal that the dispute arose on a trivial issue of applicant going to her parental house to attend marriage of her brothers. The entire pleading of non-applicants is that the applicant left the matrimonial house with her father when non-applicant/husband was not in the house, what is ventilated through the pleadings and evidence of the non-applicants is that the applicant left the matrimonial house without his permission to attend the marriage of her brothers. While the evidence led by both the parties and their pleadings refer to this incident as the main operative reason of dispute, each of them have their own version. The case of the applicant has been that when she came back to matrimonial house after attending marriage of her brothers, her father was asked by non-applicant/Gangaram to pay an amount of Rs.25,000/- as per agreement (Ex.D/1) as a condition precedent for re-entry in the matrimonial house. Thereafter, she was not permitted to enter into the house, unceremoniously shunted out, not allowed to reside in the matrimonial house and non-applicant - Gangaram contacted another marriage. On the other hand, evidence of non-applicant/husband has been that the applicant was brought back by her father to her matrimonial house and there, he started quarrelling with the non-applicant and took her daughter back to the parental house and thereafter, neither attended community meeting towards resolution of dispute nor left the applicant to her matrimonial house. 17. Applicant - Santoshi Bai has stated in her evidence that her child died immediately after birth as proper treatment was not provided and thereafter, she was being taunted, teased and harassed by branding her as "tonhi" (one who plays witchcraft). The non-applicant/husband refused to send her to attend the marriage of her brothers. On the date of marriage, her father had come to take her to the parental house and at that time, again she was not granted permission and it was said that if she wants to go she may go but she will be treated as dead for their family. After marriage, when her father took her to the matrimonial house, Rs.25,000/- was demanded as pre-condition of her re-entry. The applicant has been subjected to detailed cross examination. In her cross examination, she had reiterated that she was taunted and teased by branding her as "tonhi". After marriage, when her father took her to the matrimonial house, Rs.25,000/- was demanded as pre-condition of her re-entry. The applicant has been subjected to detailed cross examination. In her cross examination, she had reiterated that she was taunted and teased by branding her as "tonhi". She has also stated in her cross examination that when she was brought back to her matrimonial house. Rs.25,000/- was demanded. Similar is the evidence of other witness-Deendayal, Manghilal and Laxman her father. They all have stated that the dispute arose at the time of marriage of applicant's brothers. All these witnesses have clearly stated that non-applicants were not inclined to allow the applicant to go to attend the marriage of her brothers and when she came back with her father, she was not allowed to enter the house and for re-entry, Rs.25,000/- was demanded. 18. The evidence of non-applicants witness including non-applicant/family- Gangaram, Mukhiram and Pitauram is that the applicant had gone to attend marriage of her brother without permission and after marriage, she was brought back to matrimonial house by her father who started quarrelling and took her daughter away. Thereafter, community meeting was held which the applicant and her father did not attend nor came back. 19. From the aforesaid statement and evidence, it is crystal clear that a dispute arose on the applicant going to attend the marriage of her brothers. There is abundance of reliable evidence that the applicant was brought back by her father to the matrimonial house as reflected from the evidence of both the parties. Non-applicant/Gangaram has not stated as to what efforts have been made to bring her back but states that she was taken by her father which appears to be wholly improbable. Having admitted that the applicant had come with the father to the matrimonial house, there is no reason why the applicant would refuse to reside in the matrimonial house. Therefore, the evidence led by the applicant that Rs.25,000/- was demanded by the husband of the applicant as a condition for re-entry in the matrimonial house, deserves to be accepted. Infact, the non-applicant witnesses-Mukhiram and Pitauram have stated that the issue of payment of Rs.25,000/- demanded from the applicant and her father by the non-applicants had arisen and later on, applicant and her father did not appear in the community meeting. Infact, the non-applicant witnesses-Mukhiram and Pitauram have stated that the issue of payment of Rs.25,000/- demanded from the applicant and her father by the non-applicants had arisen and later on, applicant and her father did not appear in the community meeting. Therefore, irrespective of whether the applicant and her father attended the community meeting, this fact is clearly borne out that when the applicant had come with her father to the matrimonial house, the non-applicant refused to allow entry in the house stating that Rs.25,000/- will have to be paid before claiming such re-entry. It is thus clear that it is not the applicant but the non-applicant who denied the applicant her right of residence in the matrimonial house as also deprived her of all maintenance to which she is entitled to protect her as also necessary for her bare survival. Therefore, in these circumstances, the applicant has been subjected to 'economic abuse' as defined under Section 3 of the Act of 2005, which amongst other things, includes deprivation of economic and financial resources to which the applicant requires out of necessity including, but not limited to household necessities for herself for her bare maintenance, food, clothing and shelter. 20. In view of above finding, the applicant is entitled to appropriate relief under the Act of 2005. It has come in the evidence of non-applicant Gangaram and he has also admitted that he has contacted another marriage. Nevertheless, once a case of domestic violence is made out, even when the husband has contacted another marriage, the applicant is entitled to appropriate relief under the Act. Consequently, it is directed that the applicant is not only entitled to shared residence facility in the matrimonial house along with her husband-Gangaram. The non-applicants are also restrained to act in domestic violence against the applicant. Taking into consideration the nature of violence to which the applicant has been subjected to, by way of monetary relief as provided under Section 20 of the Act of 2005. it would be in the interest of justice to direct that a sum of Rs. 15,000/- be paid by non-applicant - Gangaram to the applicant and monthly payment of Rs. Taking into consideration the nature of violence to which the applicant has been subjected to, by way of monetary relief as provided under Section 20 of the Act of 2005. it would be in the interest of justice to direct that a sum of Rs. 15,000/- be paid by non-applicant - Gangaram to the applicant and monthly payment of Rs. 1,500/- be paid to the applicant by non-applicant No.1 with effect from the date of this order, taking into consideration applicant's evidence that Gangaram is a Carpenter and also engaged in contractorship and earns Rs.10,000/- per month and has agricultural land also with him. 21. The revision petition is accordingly allowed.