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2017 DIGILAW 1919 (RAJ)

SURESH v. STATE OF RAJASTHAN

2017-08-28

PANKAJ BHANDARI

body2017
JUDGMENT : PANKAJ BHANDARI, J. 1. Criminal Revision Nos.1205/2016 has been preferred by husband and 1206/2016 has been preferred by mother-in-law and father-in-law aggrieved by the judgment and order dated 12.04.2014 passed by Additional Civil Judge (J.D.) and Judicial Magistrate, Kishangarh who awarded Rs. 2,500/- per month under Section 19 for residence, Rs. 2,000/- per month for maintenance under Section 20 and Rs. 1,00,000/- as one time compensation under section 22 of the Protection of Women From Domestic Violence Act, 2005 and against the judgment and order dated 21.11.2015 passed by Additional Sessions Judge, Kishangarh whereby the appeal was partly allowed and the amount awardable as maintenance was directed to be adjusted with the amount awarded in other proceedings, the appellate Court further reduced the one time compensation from Rs. 1,00,000/- to Rs. 25,000/- under section 22 of the Protection of Women From Domestic Violence Act, 2005. 2. Criminal Revision Nos.128/2016 and 236/2016 have been preferred by wife Smt. Seema aggrieved by the order of the appellate Court dated 21.11.2015 vide which the appellate Court has reduced the one time compensation from Rs. 1,00,000/- to Rs. 25,000/- and against the direction that the maintenance payable would be adjusted with the maintenance payable under other proceedings. Wife has also claimed that the maintenance under the Protection of women from Domestic Violence Act, 2005 be enhanced. 3. Briefly stated facts of the case are that the marriage of Suresh and Seema took place on 17.04.2009 an F.I.R. was lodged by Smt. Seema on 01.05.2010. The proceedings under the Protection of women from Domestic Violence Act was initiated on 04.05.2010 and application under Section 125 Cr.P.C., 1973 was filed on 18.12.2010. The order under the Protection of women from Domestic Violence Act was passed by the trial Court on 12.04.2014 and husband Suresh was convicted under Section 498-A I.P.C. on 09.04.2015. 4. It is contended by counsel for petitioner-husband, Suresh that the orders passed under the Protection of women from Domestic Violence Act could not have been passed by the Court as Sections 18, 19, 20 and 22 of the Act applies only when the Court is satisfied that domestic violence has taken place. It is also contended that the Courts below have not considered the report of the Protection Officer which is required to be considered in view of Section 12 of the Act. 5. It is also contended that the Courts below have not considered the report of the Protection Officer which is required to be considered in view of Section 12 of the Act. 5. It is contended that the Protection Officer has given a specific report that the wife is not ready to stay with her husband as she wants to lead a luxurious life. It is also contended that the Court below has erred in not relying on the report of the Protection Officer on the ground that the Protection Officer has not examined witnesses. 6. Counsel for the petitioner has drawn my attention towards the order passed by the Judicial Magistrate, Kishangarh dated 12.04.2014, wherein, the Court has held that the complainant-wife failed to prove that she was subjected to cruelty. 7. It is contended that the Court has come to the conclusion that there is domestic violence as the wife is living separately for last four years and the only possibility why she was living separately could be the behaviour of the husband. It is also contended that the husband was continuously making a prayer before the Court that he is willing to keep the wife but the wife refused on the grounds that she wants to stay in the matrimonial home and is not willing to stay in rented premises with the petitioner. 8. It is also contended that the wife was living with her parents and she has admitted in her cross-examination that no incident took place on 26.04.2010. It is also urged that there being no incident of cruelty, there was no domestic violence and consequently, the impugned orders suffer from perversity. 9. It is also contended that the wife built up a case that the husband has entered into a 'Nata' marriage and filed a complaint alleging that the petitioner has entered into marriage on 08.07.2014 and F.I.R. was registered upon this complaint on 17.07.2014. The Police after investigation submitted negative final report which was accepted by the Court on 22.09.2014. 10. It is further contended that the factum of the entering into second marriage was not proved before the Court below. The Police after investigation submitted negative final report which was accepted by the Court on 22.09.2014. 10. It is further contended that the factum of the entering into second marriage was not proved before the Court below. It is also contended that on the date when the order was passed under the Domestic Violence Act, there was no order passed by the Court under Section 498-A I.P.C, therefore, there was no material before the Court on the date of passing of the order with regard to commission of domestic violence. It is also contended that there was a finding of the trial Court that the wife left in the year 2009, injury report was of 2010. A false case under the Domestic Violence Act was made by the wife. 11. Counsel for the wife has opposed the revision petition. His contention is that the husband has entered into second marriage and has a child from second marriage. 12. It is also contended that there was a demand of dowry after the marriage which is established by the evidence adduced by the parties in the proceedings under Section 498-A I.P.C. It is also contended that under the Protection of women from Domestic Violence Act, definition of domestic violence has a wide implication and includes commission of any act which 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. It is also contended that there is ample evidence on record to establish that there was domestic violence and, therefore, the Court has not committed any perversity in passing the order under Sections 19, 20, & 22 of the Act. 13. However, it is contended that the appellate Court have erred in reducing the compensation from Rs. 1,00,000/- to Rs. 25,000/- under Section 22 of the Act and has further erred in directing the amount awarded under Section 20 of the Act to be adjusted with the amount awarded in other proceedings. 14. Counsel for the respondent has drawn my attention towards Sub-clause (d) of Section 20 of the Act, wherein, an order can be passed in addition to an order of maintenance under Section 125 Cr.P.C., 1973 15. 14. Counsel for the respondent has drawn my attention towards Sub-clause (d) of Section 20 of the Act, wherein, an order can be passed in addition to an order of maintenance under Section 125 Cr.P.C., 1973 15. It is contended that the entering of 'Nata' Marriage also tantamounts to domestic violence and, hence, the impugned order passed by the appellate Court do not suffer from any illegality or perversity except to the extent of reducing the compensation amount and directing adjustment with the amount awarded under other proceedings. 16. It is also contended that in the complaint filed with relation to the husband entering 'Nata' marriage, a negative final report was accepted by the Court on 22.09.2014 against which the wife preferred a criminal misc. petition which is pending before the High Court. 17. I have considered the contentions. 18. The Protection of Women from Domestic Violence Act, 2005 provides for relief to the wife which includes residence order, monetary relief and compensation orders. Section 12 of the Act provides that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act. Proviso to Sub-section (1) of Section 12 of the Act, however, makes it mandatory for the Magistrate to take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Sections 18, 19, 20 and 22 of the Act empowers the Magistrate to pass an order on being satisfied that domestic violence has taken place. The prerequisite for passing an order under the provision of the Protection of Women from Domestic Violence Act, 2005 is the satisfaction of the Court that domestic violence has taken place. 19. In the present case in hand, the wife moved a complaint on 04.05.2010 alleging therein that she was subjected to beating by the husband on 26.04.2010 upon which she called her parents. Her parents took her to Kishangarh on 27.04.2010. The allegation in the complaint was about demand of Rs. 50,000/- which according to the complainant was paid, upon which demand was raised to Rs. 1,00,000/- and a motor-cycle was also demanded. Complainant Seema was examined before the Court, her mother Prem Devi and father Bhagchand were also examined. On behalf of husband, statement of Suresh was recorded. 20. The allegation in the complaint was about demand of Rs. 50,000/- which according to the complainant was paid, upon which demand was raised to Rs. 1,00,000/- and a motor-cycle was also demanded. Complainant Seema was examined before the Court, her mother Prem Devi and father Bhagchand were also examined. On behalf of husband, statement of Suresh was recorded. 20. The trial Court observed that no injury report was produced before the Court and the injury report Ex.P-1 pertain to the year, 2010 whereas, the complainant was residing in her parental home since 2009 and the conclusion that the injury report does not establish beating by in-laws, however, the Court held that since the wife is residing separately for four year, the only reason for living separately was the behaviour of the husband. There was no conclusion of the Court with regard to commission of domestic violence rather the Court observed that since the wife was living separately since 2009, therefore, there was domestic violence. 21. There being no finding of commission of domestic violence only on assumption that the wife was living separately, therefore, it implies that the behaviour of the husband was not proper does not afford a valid reason for coming to the conclusion that there was domestic violence. 22. The fact of lodging of F.I.R. under Section 498-A I.P.C. and the conviction also do not come in aid of the wife for the very reason that the conviction order dated 09.04.2015 is subsequent to the order dated 12.04.2014 passed under the Domestic Violence Act. The conviction order under Section 498-A I.P.C. is challenged before the High Court in revisional jurisdiction which is pending before the High Court. 23. As far as the husband having entered into a 'Nata' marriage is concerned, a complaint and F.I.R. lodged in this regard resulted into a negative final report against which misc. petition was filed by the wife which is pending adjudication before the High Court. Be that as it may, the husband entering a 'Nata' marriage even if assumed to be true does not fall within definition of domestic violence more particularly when there is a negative final report. There was thus no justification to have come to the conclusion that the husband has entered into a 'Nata' marriage. Be that as it may, the husband entering a 'Nata' marriage even if assumed to be true does not fall within definition of domestic violence more particularly when there is a negative final report. There was thus no justification to have come to the conclusion that the husband has entered into a 'Nata' marriage. The preresuisite of domestic violence having been committed was not established before the Court below, hence, both the Courts below have committed perversity in allowing the application under Section 19, 20 and 22 of the Act. 24. The Court below has further committed perversity in not placing reliance on the report of the Protection Officer and without discussing the same has erred in coming came to the conclusion about commission of domestic violence. The evidence of the witnesses produced on behalf of the wife further do not inspire confidence for the very reason that the Court below has not found the factum of demand of dowry established. 25. In view of the same, there being no proof about commission of domestic violence and there being no report of protection officer that domestic violence has taken place, there was no justification for the Court below to pass orders under Sections 19, 20 and 22 of the Act. The Revision Petition Nos.1205/2016 and 1206/2016, therefore, deserve to be and are, accordingly, allowed. The impugned orders passed by the Court below are quashed and set aside. 26. In view of the fact that the orders passed by the Court below are quashed and set aside. Any amount deposited by the husband in pursuance of the impugned orders would be adjusted in the orders passed under section 125 of Cr.P.C., 1973 27. The Revision Petition Nos. 128/2016 and 236/2016 filed by the wife for enhancing the compensation deserve to be dismissed as the impugned order have been set aside by this Court on the ground that there was no domestic violence, hence, there was no justification for awarding any compensation or maintenance. 28. Stay petition also stands disposed of. 29. A copy of this order be placed in connected files.