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2016 DIGILAW 365 (GAU)

Mustt. Sabnam Begum v. State of Assam

2016-05-04

RUMI KUMARI PHUKAN

body2016
JUDGMENT : By filing this application under Sections 397/401 read with Section 482 Cr.P.C. the petitioners have prayed for quashing of the impugned judgment and order dated 15.12.2014 passed by learned Additional Sessions Judge, Dibrugarh in Crl. Appeal No. 2 (1) of 2014 upholding the judgment and order dated 21.01.2013 passed by learned Sub-Divisional Judicial Magistrate 1st Class, Dibrugarh in C.R. Case No.99C of 2012. 2. Heard Mr. B. Baruah, learned counsel appearing for and on behalf of the petitioners. Also heard Mr. K. Munir, learned Additional Public Prosecutor appearing for and on behalf of the State respondent and Mr. G. Alam, learned counsel appearing for and on behalf of the respondent No. 2. 3. The case of the petitioners is that the respondent No. 2 wife of petitioner No. 5 preferred an application on 3.4.2012 u/s 12 read with Sections 18/19/20/22 of the Protection of Women from Domestic Violence Act, 2005 in the court of learned CJM, Dibrugarh which was registered as C.R. Case No. 99C/2012 against the present petitioners claiming relief for (i) Protection order u/s 18 of DV Act, 2005 (ii) Residence Order under Section 19 of D.V. Act, 2005 from petitioner No. 5 (iii) direct for return of articles u/s 19(8) of the said Act (iv) Monetary Relief under Section 20 of the said Act, claiming Rs. 15,000/- per month from the petitioner No. 5 and (v) compensation order under Section 22 of Dowry Prevention Act, 2005 claiming Rs. 20,000/- from the petitioner No. 5 (iv) Cost of proceedings of Rs. 20,000/- under the said Act. The further case of the petitioners is that the said C.R. Case 99C/2012 was proceeded ex-parte against petitioners on the pretext that summons were duly served on the petitioners at Varanasi, Uttar Pradesh. The learned Magistrate after hearing the respondent No.2 and presuming her contention to be correct was pleased to give the relief as sought for by her vide judgment dated 21.01.2013. 4. Thereafter, the petitioners had preferred an appeal before the learned Additional Sessions Judge, Dibrugarh against the judgment & Order dated 21.01.2013 so passed by learned Magistrate, Dibrugarh on the grounds that they were deprived of hearing while deciding the matter by the learned Magistrate. 4. Thereafter, the petitioners had preferred an appeal before the learned Additional Sessions Judge, Dibrugarh against the judgment & Order dated 21.01.2013 so passed by learned Magistrate, Dibrugarh on the grounds that they were deprived of hearing while deciding the matter by the learned Magistrate. It was also urged that appellants No. 4 and 5 had no domestic relationship with the complainant since they got married and residing at a distant place from the matrimonial house of the complainant. That apart, appellant no. 2 and 3 being sister-in-law and brother-in-law are not liable to pay maintenance, accommodation or monetary expenses to her, nor they neglected or tortured the complainant. Another ground of appeal was that the property mentioned by the complainant were not kept in the custody of the petitioners and all the belongings of the complainant were already taken back by her. The appeal so preferred by the petitioners was dismissed by the learned Sessions Judge, Dibrugarh without considering the grounds assigned in the appeal as such present revision has been preferred as against the order so passed by the learned Addl. Sessions Judge challenging the legality and validity of the decision so arrived. 5. The basic contention of the petitioners before the revisional court is that both the orders so passed by the trial court as well as the appellate court are perverse inasmuch as the direction to the appellants No. 1 to 4, directing to provide residential accommodation to the respondent in the shared house hold or an alternative amount of Rs. 3000/- per month as rent. So far as the other monetary reliefs also the appellants No. 1 to 4 are in no way liable to pay the same. It has been contended that the learned court below have come to the findings on surmises and conjectures while arriving at the decision and granting the relief whereas these petitioners are excluded from the purview of the claim of the respondent. As because the respondent herself claim all the reliefs from the respondent /her husband (petitioner No. 5) but the same was not appreciated by both the courts below. It has also been contended that the husband is liable to maintain his wife and no liability can be fastened to the other in-laws of the house unless serious allegation is made out against them within the purview of the Act. It has also been contended that the husband is liable to maintain his wife and no liability can be fastened to the other in-laws of the house unless serious allegation is made out against them within the purview of the Act. It has been prayed to set aside the order so passed by both the courts mentioned above so far as the petitioners 1 to 4. 6. I have heard argument of learned counsels for both the parties. 7. Considered the matters on record in pursuance to the submissions made by the petitioners that they have not meted out any sort of torture upon the respondent and that the respondent prayed all the reliefs as against the petitioner No. 5 only. It is to be noted that the respondent in her complaint petition as well as in her evidence has given her statement in a very vague manner that the petitioners by demanding an amount of Rs. 4 lacs started torture upon her but she has not mentioned any specific incident as regards her physical torture as well as mental torture. There is a vague statement that she has not been served with adequate food and clothing which is not enough to make out a case of harassment or torture. The respondent has examined only one related witness and equally his evidence is vague as to the manner of torture. No any sort of medical document has been produced to prove the physical torture meted out to the complainant/respondent and her evidence also fails to reflect the case of mental torture. No any other supporting evidence was adduced by the respondent in support of the case as to under what circumstances the respondent had to return from the matrimonial home. 8. Now if we compare the evidence of the respondent with that of her initial petition, it is found that the version of the respondent is not consistent. In paras 7, 8 and 9 of the petition, it has been stated that after 6 months of Nikaah respondent No. 1, i.e. her husband went to Saudi Arab and before leaving he asked her to bring cash amount of Rs. 4 lacs otherwise he will not keep her in his house. In paras 7, 8 and 9 of the petition, it has been stated that after 6 months of Nikaah respondent No. 1, i.e. her husband went to Saudi Arab and before leaving he asked her to bring cash amount of Rs. 4 lacs otherwise he will not keep her in his house. After returning from Saudi Arab after one year her husband started torturing her again by demanding dowry and during his absence her in-laws did not treat her well, like they did not provide food to her, that medical treatment was not given and lastly she stated that her husband along with other respondents threatened her by demanding Rs. 4 lacs over phone while she was staying in her rental house due to her ailment. In the prayer portion of the petition the petitioner has prayed all the relief like residence order, monetary relief, compensation order, cost of proceeding from her husband only as regards return of articles she has prayed a direction to all the respondents (petitioners herein) to return the stridhan articles annexed in the list. Thus it appears that she has claimed all the reliefs from her husband and her evidence is also could not make out the case of torture as against her in-laws i.e. the petitioner Nos. 1 to 4. On the basis of such vague and uncorroborated evidence on record, it would be unjustified to make liable all the family members of her husband. 9. The petitioners have relied upon a decision of the Hon’ble Apex Court reported in 2007 Crl. LJ 3361 (M.M. Ahmed and Ors vs. State of A.P. and Ors.), wherein it has been held that in a case of domestic violence where the relief is claimed against the husband only, there being no specific allegation against other family members except mentioning that at their instance husband was not providing money for medical expenses to her wife and disowned the liability, in such backdrop, prosecution against other family members is liable to be quashed. 10. In another decision reported in AIR 2007 SC 1118 (1) S.R. Batra and Anr. Vs. Smti. Taruna Batra it has been held that “in a case under Domestic Violence Act right to alternative accommodation can be claimed only against the husband and the house of mother-in-law does not become shared household only because applicant/wife had shared household with her husband earlier. Vs. Smti. Taruna Batra it has been held that “in a case under Domestic Violence Act right to alternative accommodation can be claimed only against the husband and the house of mother-in-law does not become shared household only because applicant/wife had shared household with her husband earlier. For that it has to be a house owned or taken on rent by her husband or a house which belong to a joint family of which husband is a member. It has also been held that shared household under Section 2(s) of the Act is not happily worded and appears to be the result of clumsy drafting, but we have to give interpretation which is sensible and which does not lead to chaos in the society.” 10. Turning to the matter in hand as has been discussed above, I find that no specific allegation has been made against the petitioners No. 1 to 4 except the husband/respondent No. 5 and no relief is claimed against these petitioners by the respondent herself and in such backdrop fastening the liability as against the petitioners is not proper. So far as the case of the husband concerned it is evident that the entire claim is against him, by respondent wife. 11. In view of the allegation that the petitioner No. 5 raised the demand of dowry of Rs. 4 lacs and subsequently abandoned the petitioner in her matrimonial home without providing her any sort of relief to her, is enough to embrace him with the liability to pay the reliefs as prayed for by his wife/respondent. As such the findings as regards the petitioner No. 5 is not interfered. All other petitioners who were sister in law and brother in law of the respondent is hereby exempted from the liability to provide the relief as sought for and was granted by the court mentioned above. Accordingly the findings of the courts below as regard these present petitioners is hereby set aside. They are however agreeable to the direction that they will not torture the respondent and the respondent is at liberty to take her goods which remained in her matrimonial house, if any. 12. Accordingly the findings of the courts below as regard these present petitioners is hereby set aside. They are however agreeable to the direction that they will not torture the respondent and the respondent is at liberty to take her goods which remained in her matrimonial house, if any. 12. The impugned order as regards the petitioner No. 5 (petitioner No. 1 husband in the main case) is hereby upheld and he is directed to comply with all the direction given by the court and the court will be at liberty to take all stringent measures to realise the monetary relief as well as other reliefs from the petitioner No. 5, towards execution of the order as aforesaid. 13. The revision petition is allowed to the extent as indicated above.