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2021 DIGILAW 423 (HP)

Manohar Singh v. Dropti Devi

2021-07-19

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Instant Criminal Revision Petition filed under Section 397/401 of the Code of Criminal Procedure lays challenge to judgment dated 20.2.2020, passed by learned Sessions Judge, Shimla, District Shimla, H.P., in Criminal Appeal No. 32-S/10 of 2018, modifying the order dated 21.07.2018, passed by learned Judicial Magistrate 1st Class, Court No.III, Shimla, District Shimla, H.P., in Cr. Petition No.97-3 of 2017/2015, titled as Smt. Dropti Devi versus Manohar Singh, whereby an application under Section 12 of the Protection of Women from Domestic Violence Act, having been filed by the respondent-wife, came to be partly allowed. 2. Briefly stated facts, as emerge from the record are that the respondent-wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ( for short 'Act') against the petitioner-husband alleging therein that she is legally wedded wife of petitioner-husband and marriage interse her and petitioner-husband was solemnized about 30 years back as per Hindu rites and customs and out of their wedlock, two children were born. Though, initially relations interse respondent-wife and petitioner-husband remained cordial, but since after some time certain differences cropped up interse them, respondent-wife left the matrimonial house and started residing at Village Karchoali, District Shimla, H.P. Besides above, respondentwife also alleged that in the year 1992-93, petitioner-husband contracted second marriage with Smt. Anita Devi from whom, he is having two daughters and one son. Respondent-wife further claimed before the Court below that on account of the maltreatment given to her by the petitioner-husband, she was compelled to take shelter in the neighbour's house for some days and thereafter she with the assistance of relatives constructed a Kaccha one room shed and presently residing there alongwith her son. Respondent-wife claimed before the Court below that since she has been deprived from all economic and financial resources, she is finding it difficult to maintain herself as well as her children. Respondent-wife averred in the complaint made by her before the court below that petitioner-husband is owner in possession of 50 bighas of land situate at Mauja Shanal and Shaisear, from which at present he is earning more than 5 lakh. Besides above, respondentwife also alleged that besides aforesaid property, petitioner also have two commercial vehicles, from which he is earning Rs.15, 000/- per month. Besides above, respondentwife also alleged that besides aforesaid property, petitioner also have two commercial vehicles, from which he is earning Rs.15, 000/- per month. Respondent-wife further alleged that petitioner-husband has constructed three storied house and is getting Rs.10,000/- per month as rent from the tenants. Respondent-wife also claimed that the total income of the petitioner-husband from all the sources is more than Rs. 50,000/- per month, as such, be directed to provide adequate maintenance to her as well as her children. Respondent-wife prayed that protection under Section 18(e)(g) of the Act may be provided to her by prohibiting the petitioner from causing any act of Domestic Violence and she may also be held entitled to separate residence under section 19(f) of the Act as she has been ousted from her residential house. Besides above, respondent-wife prayed that petitioner-husband may also be directed to pay monetary relief under section 20(2) of the Act. She also claimed that since petitioner-husband caused physical abuse, mental abuse, emotional abuse and economic use, he may be directed to pay Rs. 50,000/- as compensation under Section 22 of the Act. 3. Aforesaid claim put forth by the respondent-wife came to be resisted on behalf of the petitioner-husband, who categorically stated before the court below that at no point of time respondent-wife was subjected to any kind of domestic violence, rather she of her own volition and without there being any sufficient reasons left her matrimonial house and started living separately. Petitioner-husband claimed that marriage interse him and the respondent-wife was solemnized 40 years back and during this period, respondent-wife never made any effort to reconcile. He also alleged that respondent-wife and his son Om Prakash alongwith his wife are enjoying and cultivating the land given by him in village Karochail. He also claimed before the court below that both respondent-wife and her son Om Prakash are residing separately in the house constructed by him for the last 14 years and at present are occupying about 8.10 bighas of land and as such, she is not entitled to any kind of compensation. 4. He also claimed before the court below that both respondent-wife and her son Om Prakash are residing separately in the house constructed by him for the last 14 years and at present are occupying about 8.10 bighas of land and as such, she is not entitled to any kind of compensation. 4. Learned court below on the basis of the evidence collected on record though arrived at a conclusion that respondent-wife has not been able to prove any kind of domestic violence, as defined under section 3 of the Act, but yet proceeded to award/grant maintenance in the sum of Rs.1000/- per month from the date of the application. 5. Being aggrieved and dissatisfied with the quantum of maintenance awarded by the Court below, respondent-wife approached learned Sessions Judge, Shimla by way of appeal filed under Section 29 of the Act, wherein amount of maintenance awarded by the Court below came to be enhanced from Rs.1000/- to Rs.3000/-. In the aforesaid background, petitioner-husband has approached this Court in the instant proceedings, praying therein to set-aside the impugned judgment and order passed by learned Courts below granting maintenance in favour of the respondent-wife. 6. Having heard learned counsel representing the parties and perused the material available on record vis- -vis reasoning assigned by the court below while granting maintenance in favour of the respondent-wife under Domestic Violence Act, this Court finds substantial force in the submission made by learned counsel representing the petitioner-husband that since respondent-wife failed to prove "domestic violence" of any kind, there was no occasion for the Court below to grant maintenance/compensation, if any, under Domestic Violence Act. 7. Learned counsel representing the respondent-wife while making this court to peruse the judgment and order passed by Courts below made serious attempt to persuade this Court that since factum with regard to second marriage of petitioner-husband with Smt. Anita has not been denied by the petitioner, respondent-wife deserves to be granted maintenance on account of cruelty. However, this Court is not inclined to accept the aforesaid submission made on behalf of learned counsel for the respondent-wife because under Domestic Violence Act, maintenance can only be granted if person seeking maintenance is able to prove that victim was subjected to "domestic violence" as defined under Section 3 of the Act. However, this Court is not inclined to accept the aforesaid submission made on behalf of learned counsel for the respondent-wife because under Domestic Violence Act, maintenance can only be granted if person seeking maintenance is able to prove that victim was subjected to "domestic violence" as defined under Section 3 of the Act. Domestic Violence has been specifically defined under Section 3 of the Act and as such, applicant seeking maintenance/compensation under Domestic violence necessarily required to prove "Domestic violence" as defined under the Act. In the case at hand, respondent-wife has specifically admitted that for the last 30-40 years she alongwith her son is residing separately from the petitioner-husband. Though, with a view to have maintenance on account of domestic violence, respondent- wife attempted to carve out a case that she was repeatedly subjected to physical abuse, mental abuse and economic abuse, but if evidence led on record by the respondent- wife is perused in its entirety, it can be nowhere concluded that she was ousted from matrimonial house, rather as per her own statement she left her house out of her free will and started living with his son Om Prakash in separate accommodation. 8. Though, learned court below after having scanned entire evidence have returned concurrent finding of the fact that the respondent-wife has been not able to prove any kind of physical abuse, mental abuse and economic abuse and as such, she is not entitled to any kind of maintenance under Domestic Violence Act, but yet proceeded to award some amount on account of maintenance on the pretext that petitioner being husband of the respondent is otherwise liable to maintain her. Though, in the case at hand respondent-wife also attempted to prove that she was subjected to cruelty by the petitionerhusband on account of second marriage of petitioner with Smt. Anita Devi, but such fact never came to be proved in accordance with law and as such, no maintenance could be granted on the basis of the same. Mere pleadings with regard to second marriage of the petitioner is /was not sufficient to prove factum with regard to cruelty, rather to have maintenance under Domestic violence, it is/ was incumbent upon the respondent- wife to specifically prove that she was compelled to leave her matrimonial house on account of 2nd marriage of the petitioner husband. Mere pleadings with regard to second marriage of the petitioner is /was not sufficient to prove factum with regard to cruelty, rather to have maintenance under Domestic violence, it is/ was incumbent upon the respondent- wife to specifically prove that she was compelled to leave her matrimonial house on account of 2nd marriage of the petitioner husband. Evidence led on record by the respondent-wife itself suggests that now dispute interse her and petitioner is purely on account of property and such dispute does not fall within the definition of "Domestic Violence Act" as defined under the Act. 9. Evidence led on record by the respondent-wife nowhere proves any kind of domestic violence and as such, courts below have erred in granting maintenance in favour of the respondent-wife. Since there was no evidence of maltreatment of respondent-wife, courts below ought not have granted any amount of maintenance/compensation. If the entire scheme of DV Act is perused, it clearly suggests that very object and purpose of provisions contained under the Act is to give relief to respondent-wife on account of Domestic violence, as defined under the Act, allegedly meted to her by husband and other family members. Maintenance under Domestic violence can be granted on three counts i.e. physical abuse, mental abuse and economic abuse, which otherwise have been specifically defined in the definition of "Domestic Violence" as provided under section 3 o the Act. 10. Reliance is placed upon the judgment rendered by this Court in Anil Kumar versus Shashi Bala and others, (2017) 2 ShimLC 900 , wherein it has been held as under:- "15. This Court, after having bestowed its thoughtful consideration to the pleadings available on record, has no hesitation to conclude that appellate court below, while granting maintenance of Rs.1,000/- to the complainant got swayed by emotions and completely ignored overwhelming evidence available on record suggestive of the fact that complainant herself had left the house. Since there was no evidence with regard to maltreatment or violence, learned appellate Court below ought not have granted any amount on account of maintenance. Moreover, as has been noticed above, marriage between the parties has been dissolved vide judgment dated 3.3.2011, which has been further upheld by his Court and as such, this Court sees no force, much less substantial, in the complaint of the complainant, which was rightly rejected by the learned trial Court" 11. Moreover, as has been noticed above, marriage between the parties has been dissolved vide judgment dated 3.3.2011, which has been further upheld by his Court and as such, this Court sees no force, much less substantial, in the complaint of the complainant, which was rightly rejected by the learned trial Court" 11. Consequently, in view of the above, the preset petition is allowed and judgment/ order passed by learned Courts below are quashed and set-aside. Needless to say, respondent-wife on account of her marriage with the petitioner can always seek maintenance, if any, under Section 125 of Cr.P.C, if so advised, in accordance with law. 12. Pending applications, if any, also stand disposed of.