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2017 DIGILAW 69 (ORI)

Sabita @ Bijuli Sahoo v. Niranjan Sahoo

2017-01-13

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. Marriage speaks of absolute faithfulness, mutual encouragement, admiration, respect and assistance of the couple to each other with all love and grace to make out a peaceful institution. It is a permanent commitment for life and to admit if one is in wrong, try to rectify it and to be careful in future to see that such wrong things never happen again. Wild accusations against each other without real criticism destroy the sanctity of marriage. Learning to understand the difference and adjustment can make the bond of matrimony stronger. Mistakes and misunderstandings do happen in marital life but one who apologizes amongst two first is the bravest, one who forgives first is the strongest and one who forgets first is the happiest. This revision petition has been filed by the petitioner Sabita @ Bijuli Sahoo, who is the wife of the opposite party Niranjan Sahoo challenging the impugned judgment and order dated 09.05.2016 passed by the learned District Judge, Nayagarh in Criminal Appeal No. 65 of 2015 in setting aside the order dated 17.10.2015 passed by the learned J.M.F.C., Nayagarh in I.C.C. Case No. 234 of 2014 in directing the opposite party to return a sum of Rs.80,000/-(rupees eighty thousand only) to the petitioner which is the dowry money besides giving custody of the minor girl child to the petitioner. 2. An application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereafter ‘P.W.D.V. Act’) was filed by the petitioner in the Court of learned J.M.F.C., Nayagarh which was registered in I.C.C. Case No. 234 of 2014 seeking the following reliefs:- (i) to direct the opposite party to return the baby Soni Sahoo to the lap of the petitioner for better nourishment; (ii) to direct the opposite party to return back stridhan to the petitioner as per the schedule; (iii) to direct the opposite party to return back the dowry amount of Rs. Rs.80,000/-(rupees eighty thousand only) to the petitioner; (iv) to direct the opposite party to pay the compensation towards monetary relief; (v) to direct the opposite party to pay the maintenance amount awarded in Criminal Misc. Case No. 138 of 2013 immediately after getting notice as interim relief. 3. Rs.80,000/-(rupees eighty thousand only) to the petitioner; (iv) to direct the opposite party to pay the compensation towards monetary relief; (v) to direct the opposite party to pay the maintenance amount awarded in Criminal Misc. Case No. 138 of 2013 immediately after getting notice as interim relief. 3. It is the case of the petitioner that her marriage was solemnized with the opposite party on 17.04.2008 and her mother paid Rs.80,000/-(rupees eighty thousand only) to the opposite party towards dowry and they were blessed with a female child namely Sony on 01.10.2010. The opposite party and his family tortured the petitioner demanding further dowry of Rs.1,00,000/-(rupees one lakh only) and drove her out of the matrimonial house. The petitioner filed a maintenance case under section 125 of Cr.P.C. against the opposite party in the Court of S.D.J.M., Nayagarh and in spite of award of maintenance, the opposite party did not comply with the same. The opposite party also took away the daughter Sony from the custody of the petitioner on false pretext. 4. The opposite party filed his show-cause and while not disputing the marriage and the parenthood of daughter Sony, denied the other accusations leveled against him. 5. During course of hearing, the petitioner examined four witnesses on her behalf and the opposite party also examined four witnesses. 6. Considering the available materials on record, the learned Magistrate was of the view the domestic violence has not been proved from the testimony of the witnesses. However, the learned Magistrate directed the opposite party to return the list of all dowry articles and the dowry money of Rs.80,000/-(rupees eighty thousand only) given at the time of marriage. Apart from that the opposite party was directed to provide the custody of the minor child to the petitioner for a period of one year and in between the petitioner was directed to file case before the appropriate Court for the maintenance and custody of the child. The order passed by the learned J.M.F.C., Nayagarh was challenged by the opposite party before the learned District Judge, Nayagarh in Criminal Appeal No. 65 of 2015. The order passed by the learned J.M.F.C., Nayagarh was challenged by the opposite party before the learned District Judge, Nayagarh in Criminal Appeal No. 65 of 2015. The learned Appellate Court came to hold that the evidence adduced by the petitioner does not specifically indicate when the amount of Rs.80,000/-(rupees eighty thousand only) had been given to the opposite party towards stridhan for which no definite order can be passed in favour of the petitioner giving direction to the opposite party for return of the amount. The learned Appellate Court further held that the order of custody of the child passed by the Magistrate in this regard is not viable factually besides being not legally viable for want of proof of commission of domestic violence and accordingly, the direction of the Magistrate to the opposite party to return Rs.80,000/-(rupees eighty thousand only) besides giving custody of the child to the petitioner was held to be illegal and accordingly set aside. 7. Mr. Arun Kumar Acharya, learned counsel for the petitioner while challenging the impugned judgment and order passed by the learned Appellate Court contended that there are ample materials available on record to show that at the time of marriage, a sum of Rs.80,000/-(rupees eighty thousand only) was paid by the mother of the petitioner to the opposite party and nothing has been brought out in the cross-examination to take a contrary view. The learned counsel further contended that the order of the Magistrate in directing the petitioner to return back the stridhan to the opposite party as well as to give custody of the girl child to the petitioner was perfectly justified and there was no earthly reason on the part of the learned Appellate Court to interfere the same and take a contrary view and therefore, the impugned judgment of the learned Appellate Court should be set aside. Mr. Bhawani Sankar Panigrahi, learned counsel for the opposite party on the other hand contended that when both the Courts below have given findings that there has been no domestic violence on the petitioner, therefore, the direction for payment of Rs.80,000/-(rupees eighty thousand only) by the opposite party to the petitioner as ordered by the Magistrate was rightly set aside by the learned Appellate Court. The learned counsel for the opposite party however does not dispute that the girl child is now in custody of the petitioner. 8. The learned counsel for the opposite party however does not dispute that the girl child is now in custody of the petitioner. 8. Considering the submissions made by the learned counsels for the respective parties and on perusal of the available materials on record, it is apparent that the marriage between the parties is not disputed. It is also not disputed they were blessed with the female child who is now in the custody of the petitioner. So far as the stridhan dowry amount of Rs.80,000/-(rupees eighty thousand only) is concerned, it has been brought to the notice of this Court by the learned counsel for the petitioner that in the First Information Report which was lodged by the petitioner against the opposite party and his family members, in the list of articles given at the time of marriage, it is specifically mentioned that an amount of Rs.80,000/-(rupees eighty thousand only) was given to the bride groom. Mr. Acharya filed the certified copy of the F.I.R. in Narasinghpur P.S. Case No. 30 of 2010 instituted by the petitioner which corresponds to C.T. No.52 of 2010 on the file learned J.M.F.C., Narasinghpur so also the charge sheet and order of cognizance to substantiate his contention. Learned counsel for the opposite party on the other hand contended that such First Information Report has not been exhibited before the learned Magistrate during hearing of the case and the contents of the F.I.R. are required to be proved during trial of the case and as there is no documentary evidence relating to such payment of money, therefore, the same should not be accepted. On perusal of the evidence of the petitioner who has examined as P.W.2, it appears that she has specifically stated that at the time of marriage, her mother had given Rs.80,000/-(rupees eighty thousand only) to the opposite party besides other articles. The mother of the petitioner has been examined as P.W.3 and she has also stated that at the time of marriage, she had given Rs.80,000/-(rupees eighty thousand only) on demand apart from other articles. Though it has been suggested to the witnesses that no such money has been given at the time of marriage but nothing else has been brought out in the cross-examination of either P.W.2 or P.W.3 to disbelieve their statements. Though it has been suggested to the witnesses that no such money has been given at the time of marriage but nothing else has been brought out in the cross-examination of either P.W.2 or P.W.3 to disbelieve their statements. Merely because there is no documentary evidence regarding payment of Rs.80,000/-(rupees eighty thousand only) to the opposite party by the mother of the petitioner at the time of marriage, the payment cannot be disbelieved in view of the clinching ocular evidence. Very rarely documentary evidence relating to payment of cash to the bridegroom at the time of marriage is kept. In view of the evidence of P.W.2 and P.W.3, I am of the view that the petitioner has proved during course of hearing of the application under section 12 of the P.W.D.V. Act that at the time of marriage, an amount of Rs.80,000/-(rupees eighty thousand only) has been given to the opposite party. 9. Even though the Courts below have mentioned that there is no material relating to “domestic violence” available on record, the petitioner has mentioned in ground no.D that it is case of domestic violence which has been lost sight of by the learned Court below. On perusal of the definition of “domestic violence” as per the section 3 of the 2005 Act, it appears that if the conduct of the respondent harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so, it would amount to “domestic violence” which includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. If the respondent 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 dowry or other property or valuable security, it would also amount to “domestic violence”. Physical abuse, sexual abuse, verbal and emotional abuse as well as economic abuse has been defined under the Explanation I to section 3 of the P.W.D.V. Act. As per Explanation II, the overall facts and circumstances of the case shall be taken into consideration to see whether the act, omission, commission or conduct of the respondent constitutes “domestic violence” or not. As per Explanation II, the overall facts and circumstances of the case shall be taken into consideration to see whether the act, omission, commission or conduct of the respondent constitutes “domestic violence” or not. On perusal of the evidence of P.W.2, it appears that she has not only stated about the payment of money of Rs.80,000/-(rupees eighty thousand only) and other articles at the time of marriage but also stated that after two months of the marriage, her in-laws demanded further amount of Rs.1,00,000/-(rupees one lakh only) and her mother could not pay the demand amount and her husband left her while she was pregnant and abused her. She further stated she reported the matter in Narasinghpur Police Station and Women Commission and also filed the complaint case in the Court of S.D.J.M., Narasinghpur. She has further stated that during the birth of the daughter in the parental house, her in-laws had not come to her house. She further stated that her mother had given the dowry by selling the agricultural lands. She stated about the torture given to her by the opposite party while answering to the questions put by the counsel for the opposite party in the cross-examination. The mother of the petitioner was examined as P.W.3 who corroborated the evidence of P.W.2. “Physical abuse” as per the definition given under Explanation I 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. In view of the available materials on record, particularly the evidence of the petitioner and her mother examined before the learned J.M.F.C., Nayagarh, I am of the view that the finding of the Courts below that there was no “domestic violence” on the petitioner is not sustainable in the eye of law. 10. Section 19 of the 2005 Act which deals with the “residence orders” states that while disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place can also direct as per sub-section (8) to the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to. As the petitioner has proved during hearing of the application under section 12 of the P.W.D.V. Act that at the time of marriage an amount of Rs.80,000/-(rupees eighty thousand only) had been given to the opposite party as per demand, obviously such stridhan property is to be returned to the petitioner and therefore, the learned Magistrate has not committed any illegality in directing the opposite party to return such amount. There was no justification on the part of the Appellate Court to take a contrary view. Similarly, since the parties were having a girl child and she is now staying with her mother (petitioner) after the order passed by the learned Magistrate, I do not want to disturb the custody of the child. 11. In view of the aforesaid discussions, I am of the view that the impugned judgment and order passed by the learned Appellate Court is not sustainable in the eye of law which is accordingly set aside and the order dated 17.10.2015 passed by the learned J.M.F.C., Nayagarh in I.C.C. Case No.234 of 2014 is resorted back. The opposite party is directed to return the dowry money of Rs.80,000/-(rupees eighty thousand only) given at the time of marriage as was directed by the learned J.M.F.C., Nayagarh to the petitioner by the end of February 2017 failing which the petitioner is at liberty to take appropriate steps for the realization of such amount. With the aforesaid observations, the CRLREV petition is allowed.