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2015 DIGILAW 216 (KAR)

S. Nagarathna v. Manushree

2015-02-26

R.B.BUDIHAL

body2015
ORDER : Budihal R.B., J. 1. This revision petition is filed by the petitioners-mother-in-law and sister-in-law of the respondent being aggrieved by the correctness and legality of the judgment and orders of the Trial Court as well as the First Appellate Court. Heard the arguments of the learned Counsel appearing for the revision petitioners and also the learned Counsel appearing for the respondent. 2. Learned Counsel appearing for the revision petitioners during the course of the arguments submitted that firstly, the petition against the petitioners herein was not maintainable as per the definition of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act') and this legal aspect has been completely overlooked by the Trial Court and it has wrongly proceeded to allow the petition filed by the respondent herein. The learned Counsel submitted that the revision petitioners were residing separately and not living with the respondent herein. With regard to the grant of reliefs by the Trial Court, it had not referred to the oral and documentary evidence produced in the case and without ascertaining the financial capacity of the revision petitioners herein, has awarded the amount which is not legal and not sustainable in law. The learned Counsel further submitted that the petitioners have given evidence before the Trial Court on oath that they have not given any sort of ill-treatment or harassment and there was no cause of action for the respondent herein to file such petition before the Trial Court under the provisions of the Act. She has further submitted that the judgment and orders passed by the Trial Court as well as the First Appellate Court are not sustainable in law. Hence, the revision petition may be allowed and the judgment and orders under revision may be set aside. 3. On the other hand, learned Counsel appearing for the respondent during the course of the arguments submitted that the first objection raised by the other side that no such orders can be passed against the petitioners under the provisions of Section 2(q)of the Act, he submitted that looking to the proviso provided to the said definition, it is very clear that petition can be filed even against the relatives of the deceased husband and the Hon'ble Supreme Court has dealt with this aspect in the decision in case of Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Others : 2011 AIR SCW 1327 : (2011)3 SCC 650 : 2011 Cri. L.J. 1687 (SC) : (2011)2 SCC (Cri.) 21, wherein it is held that the petitions can be filed even against the female members and in the proviso, there is no such restriction that the petition cannot be filed against the female members of the husband. With regard to the share of the domestic household with the revision petitioners, the learned Counsel drew the attention of this Court to the judgment of the Trial Court and submitted that the revision petitioners herein themselves admitted before the Trial Court that they are residing together in the said house. In view of the admission of the petitioners herein, the contention of the learned Counsel that they are residing separately cannot be accepted and the Trial Court has rightly recorded the finding in that regard. The learned Counsel further submitted that regarding the financial capacity of the petitioners, revision petitioner 1 is an employee of the Bank earning salary of Rs. 10,000/- per month and getting Rs. 30,000/- per month from the other sources, which was recorded before the Trial Court. Hence, it is submitted that even the financial capacity of the revision petitioners herein was also taken into consideration by the Trial Court while passing the said order. Therefore, no illegality has been committed by the Courts below in coming to such conclusion nor there is any perverse or capricious view taken in this revision petition and there are no grounds for this Court to interfere with the orders of the Courts below. 4. I have perused the grounds urged in the revision petition and also the judgment and orders passed by the Courts below. 5. With regard to the first contention of the learned Counsel for the revision petitioners that the respondent cannot maintain petition against the female members and such petition is not maintainable as per the definition under Section 2(q) of the Act, the said provision reads as under: "2. 5. With regard to the first contention of the learned Counsel for the revision petitioners that the respondent cannot maintain petition against the female members and such petition is not maintainable as per the definition under Section 2(q) of the Act, the said provision reads as under: "2. (q) 'Respondent' means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner". 6. I have also perused the decision of the Hon'ble Supreme Court in Sou. Sandhya Manoj Wankhade's case. In paragraphs 11 to 16 of the said judgment, the Hon'ble Supreme Court has observed as under: "11. Having carefully considered the submissions made on behalf of the respective parties, we are unable to sustain the decisions, both of the learned Sessions Judge as also the High Court, in relation to the interpretation of the expression "respondent" in Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference, in Section 2(q) of the above said Act is extracted herein below: "2. (q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner". 12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage. 13. 13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. 14. In such circumstances, it is clear that the Legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. 15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression "respondent" in the main body of Section 2(q) of the aforesaid Act. 16. The appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15th July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Cri. Writ Petition No. 588 of 2009 are set aside. Consequently, the Trial Court shall also proceed against the said respondents 2 and 3 on the complaint filed by the appellant. 17. The appeal is allowed accordingly." 7. In view of this legal position as laid down by the Hon'ble Supreme Court, the contention of the petitioners that the said petition cannot be maintainable against the family members is not sustainable. 8. With regard to sharing of the domestic relationship, I have perused the order of the Trial Court, wherein at para 20 of the order, the Trial Court has observed as under: "The 1st respondent being the husband, 2nd respondent being the mother-in-law and the 3rd respondent being sister-in-law of the aggrieved person have admitted that they all together were residing at Maddur along with the aggrieved person and hence, the fact that the aggrieved person and the respondents come under the definition of the domestic relationship is established and that they all shared common household is also established." 9. Regarding the financial capacity for grant of reliefs by the Trial Court, perusing the materials on record, the respondent herein was able to establish before the Trial Court about the financial capacity of the revision petitioners herein that they were capable to pay the reliefs granted by the Trial Court. Looking to the materials on record, regarding factual aspects, both the Courts have recorded the concurrent findings. Therefore, in this petition, when the scope is limited, this Court is not suppose to re-appreciate the entire factual aspects and the oral evidence of the parties, until and unless, it is shown to the Court as to what is patent illegality committed by the Trial Court in appreciating the materials placed on record. When the legality and correctness of the order of the Trial Court was challenged before the First Appellate Court and the First Appellate Court being the Court of law and facts has re-appreciated the entire matter and concurred with the findings recorded by the Trial Court, I do not find any illegality in the judgment and orders passed by the Courts below. There is no merit in the petition. It is accordingly rejected.