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2020 DIGILAW 555 (KER)

Anil Thomas v. Bindhu George

2020-06-30

M.R.ANITHA

body2020
ORDER : M.R. Anitha, J. 1. The unsuccessful husband in a petition filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is before this Court in revision. 2. Revision Petitioner is the respondent in M.C. No. 1/2013 on the file of the Chief Judicial Magistrate Court, Ernakulam. The parties are referred as per their status before the court below. 3. Petitioner's case in short is as follows: The marriage between the petitioner and the respondent was solemnised on 23.05.1994. She is an Associate Professor and the respondent is a Dental Surgeon. After marriage, the petitioner and the respondent resided together in rented houses in Alleppey, Alwaye and finally they settled at Vyttila in 2010. Several acts of cruelty has been attributed against the respondent including his insistence to not to reveal the conceivement of the second child since his mother could not tolerate the birth of the second child. Another incident of brutally assaulting her during sleep while she was carrying the second child when inadvertently her nail touched the body of the respondent is also alleged. Again, in 2008, when herpes was diagnosed on the ear of her son, on the failure of the respondent to take him to skin specialist despite her request, she took the child to the hospital and when returned she was brutally manhandled, which resulted in perforation of the eardrum and as a result she is suffering from hearing problem and imbalance. Another incident on 03.12.2008 at 5 a.m. while he brutally fisted at her nose, it resulted in internal nasal ruptures, is further alleged. Again the assault while preparing thesis for Ph. D and further subjecting her to mental torture alleging psychic problems to her and administering medicine without her knowledge for psychiatric illness etc are attributed. He is also alleged to be suspicious of her morals and according to the petitioner she was subjected to continued physical and mental torture. Hence the petition. 4. Respondent filed objection denying all the allegations in the petition and various instances of physical and mental torture. According to him, he is a loving husband and has given proper care and attention to the wife and children and he had purchased property in her name. His readiness and willingness to look after the petitioner and the children is also made emphatic. It is also his contention that the petitioner manhandled him. According to him, he is a loving husband and has given proper care and attention to the wife and children and he had purchased property in her name. His readiness and willingness to look after the petitioner and the children is also made emphatic. It is also his contention that the petitioner manhandled him. He suffered all atrocities at the instance of the petitioner. It is also contended that due to the behaviour of the petitioner, his family members avoided him and they never used to come to his house. The allegation regarding administration of medicine without instruction of doctors etc. are also denied. Hence he prayed for dismissal of the petition. 5. On the side of the petitioner PW1 to PW3 were examined and Exts. P1 to P3 were marked. Respondent got himself examined as RW1 and Ext. D1 series, D2, (D3 series and D4 were marked subject to proof), D5 and D6 were marked. Thereafter, on hearing both sides, the trial court allowed the petition, against which Crl. A. No. 90/2016 was filed and by the impugned judgment the Additional Sessions Judge-VII, Ernakulam dismissed the appeal confirming the order passed by the trial court. Against which, this criminal revision petition has been filed by the husband. 6. Notice was issued to the respondents and first respondent appeared through Adv. Sri. Johnson Gomez, and the second respondent through Sri. M.S. Breeze, Public Prosecutor. Lower court records were called for and perused and both sided were heard. 7. The learned counsel for the respondent/husband assailed the concurrent orders passed by the courts below on various grounds. According to him, the respondent is a husband who settled the property standing in his name in favour of the petitioner/his wife and by selling that property the property was purchased at Vyttila in their joint name and subsequently by availing a housing loan, a house was put up and EMI was being remitted by the respondent till 2013. He would also contend that all along while the petitioner was working in Alleppey and Alwaye, he had been residing with them and had been looking after the family and he also aided her for doing Ph. D. and further that though an incident was alleged that of refusing to take the son to the hospital when diagnosed with herpes, no evidence has been adduced by the petitioner to substantiate that allegation. D. and further that though an incident was alleged that of refusing to take the son to the hospital when diagnosed with herpes, no evidence has been adduced by the petitioner to substantiate that allegation. So also though it has been alleged that she had been administered with psychiatric medicine without her knowledge, no independent evidence was adduced, even the maid servant who alleged to have informed the matter to the petitioner was not cited as a witness and further he would contend that with regard to the physical torture and fisting at nose in 2008, the averment in the petition was that in order to protect the respondent and to save him from a criminal case she explained the cause of injury as fall to the doctor whereas Ext. P1 now produced would say otherwise. So also Ext. P1 has not been proved since PW2 is not the doctor who treated PW1. It is also his contention that both the courts below gave undue weightage to the evidence of PW3 who is none other than her father and is a highly interested witness. Further he would contend that Ext. P1 relates to the period 2008 and so many years elapsed thereafter and the M.C. was filed in the year 2013 and hence there is limitation for harping upon the said incident for attributing cruelty against him. 8. With regard to the purchase of property at Vyttila and the claim of exclusive right of the respondent over the same, admittedly, an O.P. had been filed for declaration of right of parties over the same and that has been decided by the Family Court and against which an appeal is pending. So, with regard to the right and title of the respondent over the property, this Court is not expected to enter into a finding. It is true that Ext. D2 certified copy of Settlement Deed No. 3831 of 2006 of Alwaye SRO would go to show that by that document the respondent settled 3.33 ares of property in favour of the petitioner/wife. Ext. D6 is the certified copy of the Sale Deed No. 5054/1/2007 of Alwaye SRO by which the petitioner sold the said property to a third person in the year 2007. Anyway, admittedly, the property at Vyttila has been purchased in their joint name. Ext. D6 is the certified copy of the Sale Deed No. 5054/1/2007 of Alwaye SRO by which the petitioner sold the said property to a third person in the year 2007. Anyway, admittedly, the property at Vyttila has been purchased in their joint name. At the time of cross examination, PW3-the father, would state that the salary of the petitioner was obtained in lump for eight years; i.e. four years for St. Joseph's College, Alleppey and four years salary for St. Acquinas college, Edakochi and the total working amount was Rs. 5.5 lakhs and he has given Rs. 6 lakhs and a housing loan was also taken and that was how the fund was raised to purchase the property and house was put up. Anyway, as I stated earlier, since the purchase and right over the property is not a fact in issue in this proceedings, I am not supposed to enter into a finding with regard to the same in this proceedings. 9. So the question for consideration is whether the domestic violence attributed against the respondent/husband could not be established by the petitioner/wife and whether there is any reason for interfering with the concurrent findings of fact entered into by the courts below. 10. According to the learned counsel, though the petitioner alleges that respondent failed to take the son who has been diagnosed with herpes in the ear to ENT specialist and she was forced to go with the child during night at about 9 p.m. along with the other child in an autorickshaw and returned home after consulting the doctor and on that day the respondent slapped her severely on her ear and that resulted in the rupture of eardrum, apart from her oral evidence, no documents to substantiate that allegation has been produced. 11. In this context the learned counsel for the respondent also would contend that, normally, no ENT Specialist would be available at 9 p.m. and hence normally no prudent man would take a patient who has been diagnosed with herpes at 9 p.m. to a hospital and hence that story put forwarded by the petitioner itself is not believable. In view of the facts and circumstances, it has to be appreciated along with the other facts and circumstances which has been brought out in evidence. In view of the facts and circumstances, it has to be appreciated along with the other facts and circumstances which has been brought out in evidence. With regard to the incident took place on 03.12.2008 at 5 a.m. the petitioner could produce documentary evidence and also examined PW2 the doctor attached to the said hospital where she underwent treatment. 12. It is true that the learned counsel for the respondent in this context would contend that the averments in the petition was that she revealed the cause of history as fall to the doctor in order to protect the respondent from criminal case and maintain the family reputation. But Ext. P1 and the evidence of PW2-the doctor would show that the alleged cause stated to the doctor was also assault by husband on the nose with his fist. PW2 is a doctor through whom Ext. P1 case sheet has been marked. His evidence is that he is working as Medical Officer at Medical Centre, Ernakulam and Ext. P1 is the case sheet of Smt. Bindu George and it is also stated by him that she came to the casualty O.P. of Ernakulam Medical Centre at about 6.30 a.m. on 03.12.2008. The alleged history is hit by husband on her nose with his fist and she had complaints of bleeding from nose and she was examined by Maxillofacial Surgeon at 11 a.m. on the same day and on examination she was found to have contusion on nose with epistadine (the word is not clear). During cross examination it was brought out that he had not examined the patient personally and Ext. P1 was not issued by him. But it has come out during cross examination that he had brought the original case sheet. He would also state that the consultant has signed in the case sheet and he is aware of the signature of Dr. Sreekumar and it is also suggested to him that this injury is possible to be caused by fall in bathroom and he answered in the affirmative. 13. The learned counsel would contend that Ext. P1 is not signed by a doctor and PW2 is not the person who examined PW1 and hence Ext. P1 and the evidence of PW2 cannot be accepted. It is also his contention that Ext. 13. The learned counsel would contend that Ext. P1 is not signed by a doctor and PW2 is not the person who examined PW1 and hence Ext. P1 and the evidence of PW2 cannot be accepted. It is also his contention that Ext. P1 and also the evidence of PW2 is also in variance with the averment in the petition that the alleged cause stated to the doctor was fall by her in order to save the respondent and maintain the family reputation. But it is to be noted that the incident took place in the year 2008 and the case has been filed in the year 2013. So the petitioner may not be actually remembering the alleged history stated by her to the doctor and that may be the reason why the averment with regard to the alleged cause is so stated in the petition. But PW2 the doctor who is working in Ernakulam Medical Centre and he had brought the original case sheet and the attested copy is marked as Ext. P1 and the alleged cause stated in the case sheet is in corroboration with the case of the petitioner in the M.C. Ext. P1 being produced from Ernakulam Medical Centre through PW2 who is a Medical Officer presently working in Ernakulam Medical Centre and the original case sheet has also been produced and no question seems to have been put as to whether he was not the custodian of the records it cannot be said that Ext. P1 case sheet is not from proper custody though PW2 is not the doctor who examined PW1 at the time of incident. So evidence of PW2 and Ext. P1 case sheet can be read in corroboration with the evidence of PW1 and it is also notable that the respondent did not deny that incident during evidence and suggestion put to PW2 was that she sustained injury due to fall in the bathroom. 14. The evidence of respondent as RW1 in this context is relevant to be appreciated. P1 case sheet can be read in corroboration with the evidence of PW1 and it is also notable that the respondent did not deny that incident during evidence and suggestion put to PW2 was that she sustained injury due to fall in the bathroom. 14. The evidence of respondent as RW1 in this context is relevant to be appreciated. During cross examination when question was put with regard to this incident and assault by him on 02.12.2008 during night he denied that and further a specific question was put that in the morning he fisted thrice at her nose and caused bleeding, he denied and stated that when the servant came she opened the door thereupon the petitioner slipped and fell down and he took her to the hospital and further he admitted that Ext. P1 document is in connection with that incident. So though PW2 is not the doctor who treated PW1 since the respondent also admitted that Ext. P1 is with respect to that incident the evidentiary value of Ext. P1 cannot be further questioned by the respondent. He also admitted that bleeding from nose had been ice-blocked. In Ext. P1 it has been noted about complaint of bleeding from nose and history of assault by husband and hit on the nose with fist and there was no bleeding at the time of examination. 15. In this context it is to be noted that in the objection filed by the respondent his specific contention was that the allegation that on 03.12.2008 respondent fisted the petitioner severely on her nose and she was admitted in ICU of the Ernakulam Medical Centre is a fabricated story and there is no further explanation that she was so taken to the hospital on that day due to fall. So the defence subsequently put forward by the respondent with respect to the fall and subsequent injury sustained is only an afterthought on seeing the case sheet. So the case of the petitioner with regard to the physical assault by the respondent on 03.12.2008 by fisting at nose and causing injury leading her to undergo treatment at Ernakulam Medical Centre is proved. 16. The petitioner narrates in the petition and sworn in the proof affidavit about the continued physical and mental torture. So the case of the petitioner with regard to the physical assault by the respondent on 03.12.2008 by fisting at nose and causing injury leading her to undergo treatment at Ernakulam Medical Centre is proved. 16. The petitioner narrates in the petition and sworn in the proof affidavit about the continued physical and mental torture. Petitioner has also got a contention that the respondent is attempting to pictures her as a psychiatric patient and has administered medicine without her knowledge by consulting psychiatrist. A specific incident of administering a psychotic drug by name resperidone liquid through tea has also been put forwarded by her and according to her that created severe health problem and it is also alleged by her that when questioned about it the respondent told that it was administered as per the advise of Dr. Dinesh of Amrutha Institute of Medical Science and it is also her allegation that when she approached the doctor for enquiring about the same the doctor revealed that the respondent approached him saying that she needed medication and requested the doctor to prescribe this particular drug. It is true that the doctor was not examined and the servant who gave information about the administration of the medicine through tea to the petitioner was also not examined. But at the instance of the respondent Ext. D3 and D3 (a) have been produced and it has been marked subject to proof. Without examining the doctor it cannot be said that Ext. D3 series-the two prescriptions, in the letter head of Dr. M. Dinesh has been proved. 17. The learned counsel for the petitioner also took my attention to Ext. P2 which is the certified copy of the judgment in O.P. (F.C.) No. 483/2014 dated 08.10.2015 by which this Court set aside the order of the Family Court in I.A. No. 1440/2014 in O.P. 363/2013, which was filed seeking for a direction from the Family Court to the parties to consult a clinical psychologist and to take proper medicine as suggested by the doctor. The copy of that petition has also been produced from the side of the petitioner as Ext. P3. In Ext. The copy of that petition has also been produced from the side of the petitioner as Ext. P3. In Ext. P2 it has been stated that as the petitioner herein filed counter affidavit to I.A. No. 1440/2014 contending that reliefs sought for to consult a clinical psychologist is intended to harass her and it is also contended that there is every likelihood that the respondent may influence the psychologist to make a wrong diagnosis he being a dentist and further it was contended that she cannot be compelled to consult a psychologist. Though the Family Court allowed that petition, by Ext. P2 order of the Family Court was quashed. So filing of Ext. P3 by the respondent also probabilise the case of the petitioner. It is in this context that the evidence of PW3 the father of the petitioner has to be appreciated. Both the courts below have accepted his evidence as a balanced one and he is also a retired professor. He speaks about the brilliant academic career of the petitioner of holding triple first class for B.A. and first class for M.A. and distinction for B.Ed and A Grade for M.Phil. During his cross examination also attempts were made by the respondent to bring out that he had taken the petitioner to his doctor colleagues and he was asked about the clinical psychologist by name Jasmine Padamadan and taking the petitioner to him for consultation and again about Dr. Krishna Prasad his colleague and taking the petitioner to his house and further about doctor C.J. John and taking the petitioner to him for consultation. All those have been stoutly denied by him. So the cross examination of PW3 and also Ext. P2 and Ext. P3 also would indicate the attempt on the part of the respondent to pictures the petitioner as a person suffering from psychiatric problem. In this context it is to be noted that the petitioner is a Ph. D holder working in private college. So if at all she was having any psychiatric problem or illness as has been alleged by the respondent she cannot normally be continued in service. The evidence of PW3 her father when questioned regarding the psychiatric problem of the petitioner the answer given by him is that when a person is beaten up, she may have made her own problem. The evidence of PW3 her father when questioned regarding the psychiatric problem of the petitioner the answer given by him is that when a person is beaten up, she may have made her own problem. It was also brought out during his cross examination that after the incident of 2008 he had called both the petitioner and the respondent and tried to make them understand the matters on several times and he would state that when he heard them he understood that there was differences of opinion and he would also deposed that the respondent never open up when the petitioner stated that she was kicked or fisted and when he asked about it, the respondent just kept mum always. It is also stated by him that he convened a meeting of his uncle and cousins. During re-examination a question was put to him as to what was the condition of the petitioner when he came to her on information regarding the physical torture. Then he categorically stated that there was swelling over her face and body and further he added that it was an array of incidents and he do not know what gave him the patience to bear with all these. So the words of PW3 is that of a hapless father on seeing the pathetic condition of an academically brilliant daughter. PW3 also stated that the respondent used to beat her on her face and blow her on her abdominal part and she lost partial hearing and she developed uterine problems and ENT problems. His evidence would also show that he made his level best to rejoin them. In this context it is to be noted that even though the respondent would contend in his objection and also in the affidavit that the petitioner did not like his family members to come to his house and do not co-operate with them, no attempt was made by him to examine any of his family members to support his contention. So, as has been rightly found by the court below, much credence can be given to the evidence of PW3 the father of the petitioner as a corroborative piece of evidence with that of PW1 and PW2. 18. The learned counsel for the respondent would further contend that M.C. was filed 01.01.2013 and she obtained an interim order on that day itself against the respondent. 18. The learned counsel for the respondent would further contend that M.C. was filed 01.01.2013 and she obtained an interim order on that day itself against the respondent. Thereafter without the permission of the court and informing the court she shifted the residence on 05.01.2013 to a rented house by taking all the articles along with the children. But in the proof affidavit the petitioner has solemnly affirm that despite the interim order passed by the court, the respondent continued his ill treatment with more rigour and vigour and that was causing serious damage to the academic eminence of the children especially of the elder son for whom Central Board Examination for plus two classes were soon approaching. It is also alleged that the respondent in order to harass her and her children cause all kinds of distress during examination days. He would lock up the room where books and school uniforms of the children are kept and hide away the keys and gets the car wheel punctured in the morning and hence the petitioner and children could not reach the working place or school and hence it became impossible and destructive for her and children to continue and live under the roof of the respondent. In the said circumstances she was forced to move out of the shared house. So the reason for leaving the home in spite of the interim order passed in favour of the petitioner have been described in detail in the chief examination. During cross examination also she reiterated that she shifted the residence after the filing of the case for a life sake of herself and children. She also stated when a specific question was put as to whether she had filed any complaint till June then her answer was that she ignored all these because her priority was the children and she had no time to go to police station. Those are all natural and spontaneous answers given by the petitioner and there is no reason whatsoever to disbelieve her while stating so. 19. It is true that the learned counsel for the respondent also would contend that in order to prove the incident of administering medicine with tea at least the petitioner could have examined the maid servant from whom she got information regarding the same. 19. It is true that the learned counsel for the respondent also would contend that in order to prove the incident of administering medicine with tea at least the petitioner could have examined the maid servant from whom she got information regarding the same. He would also contend that in order to prove the alleged physical assault or the various mental cruelty attributed against him at least the children could have been examined. But I have already found that the petitioner could prove the physical assault causing injuries to her to the nose and taking her to the hospital and her father PW3 also deposes before the court about the cruelty which the daughter had been subjected to at the instance of the respondent. He also deposed that he tried to interfere and make both of them understand after 2008 incident when he came to know about the difference of opinion in between them and he also categorically stated that he could not personally influence professionally since the respondent never opened up when his daughter told that she was kicked or fisted and when he asked about the same to the respondent he kept mum always. So also during the end of examination when he was asked about the condition of the daughter when he reached the house on getting information regarding the torture he categorically stated that there was swelling over her face and body and it was an array of incidents and he do not know what gave him the patience to bear with all these. So in spite of subjecting PW3 and PW1 to a lengthy cross examination, nothing could be brought out to discredit their testimony with regard to the physical and mental torture which the petitioner was subjected to at the hands of the respondent. So non-examination of the maid or the children is of no relevance. 20. The learned counsel for the respondent also would contend that the incident of fisting her at the nose took place in the year 2008 and the M.C. has been filed only in the year 2013 and during all these period she had been living with the respondent which would indicate that she had condoned the cruelty and hence the present petition filed by her would be barred by limitation. 21. 21. The learned counsel for the respondent, in this context took my attention to a decision in Nagarajan V. and Ors. v. B.P. Thangaveni 2019 KHC 4298], wherein while dealing with Section 468 and 428 of Cr.P.C. and Section 28 and 32 of the PWDV Act, 2005 and Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006, in a petition alleging domestic violence, wife who left the matrimonial home in 2014 lodged complaint in 2017, and it was held that she ought to have filed the complaint within a period of one year from the date of the incident and since complaint has not been filed within one year from the date of incident proceedings are barred by limitation under Section 468 of Cr.P.C. and accordingly it was quashed. On going through the fact situation of that case, it is seen that the marriage was solemnised on 02.02.2014 and due to the matrimonial disputes the respondent-wife was living separate from the matrimonial home and the complaint was filed in the year 2017. In that case there is a concrete finding that the respondent left the matrimonial home in the year 2014 itself and thereafter a crime was registered upon her complaint under Section 406, 498A IPC in 2015 and that has been pending for trial as C.C. No. 25/2016. The husband also filed divorce petition for dissolution of marriage and thereafter the present complaint has been filed. But the fact situation of this case is entirely different. Though the petitioner could prove a physical violence specifically on 03.12.2008, her case as I stated earlier is continuous torture and harassment both physical and mental at the instance of the respondent and the petitioner has not left the matrimonial home at all and only after filing the present petition after five days she left the house at Vyttila. So the question of limitation does not arise in this case. 22. Learned counsel also took my attention to another decision in Jyoti Shrivastava and Anr. So the question of limitation does not arise in this case. 22. Learned counsel also took my attention to another decision in Jyoti Shrivastava and Anr. v. Vivek Shrivastava 2019 KHC 4712] wherein while dealing with Section 125 of Cr.P.C. sufficient cause for granting maintenance by the husband to the wife was considered and wife alleged that her husband was prone to exhibiting extreme behaviour, sometimes being caring her and at other times exhibiting extreme brutality and the wife termed him as psycho without any pleading in the petition and only instance of suspected assault is perceptible which cannot be termed as a sufficient ground for the applicant to leave the husband and hence it was found that the applicant/wife has not been able to prove sporadic violent behaviour of the husband and hence it was found that wife is not entitled to claim maintenance. But on going through that decision it is seen that, that was a case in which trial court rejected the claim with respect to the wife and awarded maintenance to the son alone and there is a specific finding by the trial court that the applicant/wife and children are not only duly cared for by the non-applicant and he even splurged on her taking to various places of tourist destinations, took her to movies and restaurants and the photo-album submitted by the non-applicant also showed their happy life and the trial court found that the applicant-wife is living separately without any reason or sufficient cause. On appreciating the evidence adduced from the side of the petitioner, the revisional court also came to a conclusion that excepting one instance on 17.01.2014, there has no proof regarding assault on earlier occasions and although the wife terms her husband as psycho, in the application under Section 125 of Cr.P.C., there was no such mention and it was in the said circumstance it has been found that an instance of suspected assault on the petitioner cannot be considered as a sufficient reason for wife to leave her matrimonial home. But in this case there is concrete evidence regarding the physical assault on 03.12.2008 and the evidence of PW1 and PW3- the father also would go to show that there is continuous mental torture at the instance of the respondent. 23. The learned counsel also took my attention to another decision in Shri. Vjayanand Dattaram Naik and Ors. But in this case there is concrete evidence regarding the physical assault on 03.12.2008 and the evidence of PW1 and PW3- the father also would go to show that there is continuous mental torture at the instance of the respondent. 23. The learned counsel also took my attention to another decision in Shri. Vjayanand Dattaram Naik and Ors. v. Smt. Vishranti Vijayanand Naik and Anr. [Crl. R.P. No. 60/2018 in the High Court of Bombay at Goa] which is also a revision petition filed against an order under Section 20 of the PWDV Act awarding maintenance to the wife and child. Feeling aggrieved by the quantum of amount awarded by the trial court respondent/revision petitioner/wife filed appeal and the Additional Sessions Judge enhanced the amount and feeling aggrieved by the same, the husband and others filed the revision before the High Court and in that case it has been found that in the absence of any finding with regard to the domestic violence being committed by the petitioner, the petition ought not have been allowed. But in view of the submission by the learned counsel for the petitioner, he continued to pay the maintenance at the rate fixed by the trial court for a period of six months. There is no doubt to the proposition that in order to pass a residence order under Section 19, the petitioner should prove the act of domestic violence at the instance of the respondent. 24. Here, I have already found that there are evidence in abundance to prove the act of domestic violence meted out by the petitioner at the instance of the respondent. So the above said decisions also have no application to the facts situation of the present case. So, in effect, I do not find any illegality or impropriety in the concurrent findings of facts made by the courts below calling for an interference at the instance of this Court. In the result, criminal revision petition is found to be devoid of any merit and hence dismissed.