Parkash Chand, S/o. Shri Ganga Ram v. Kanta Devi, W/o. Shri Parkash Chand
2022-08-25
SATYEN VAIDYA
body2022
DigiLaw.ai
ORDER : By way of instant petition, petitioner has assailed the judgment dated 29.8.2013, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. (Camp at Bilaspur), whereby the order dated 31.10.2022, passed by the learned Judicial Magistrate, 1st Class, Court No.2, Ghumarwin, District Bilaspur in case No. 23/3/2011 has been affirmed. 2. Petitioner and respondent hereinafter shall be referred as the husband and wife respectively for clarity. 3. Wife filed an application under The Protection of Women from Domestic Violence Act, 2005 (for short the Act) inter-alia praying for protection order, residence order, maintenance order and compensation in her favour. Wife alleged domestic violence at the hands of husband. It was alleged that wife was insulted by husband for not bringing the dowry and also bearing the child. She was humiliated. The husband was also accused of not providing any maintenance to the wife after forcing her to live out of shared house-hold. 4. Husband contested the claim of wife on the grounds that the provisions of the Act would not apply in the facts and circumstances of the case. As per husband, he married to wife on 26.12.1980, whereafter the wife left his house within a period of one month. It was alleged that the wife did not join the company of husband voluntarily. Wife was alleged to have left the matrimonial house of her own accord. The wife was also stated to have been awarded maintenance at the rate of Rs. 500/- per month under Section 125 Cr.P.C. 5. I have heard Mr. Anuj Gupta, Advocate, for the petitioner and Mr. B. C. Negi, learned Senior Advocate for the respondent and have also gone through the record carefully. 6. Learned counsel for the petitioner contended that since the parties have been resided separately since 1981, complaint under the Act filed in the year 2011 would not be maintainable. According to learned counsel for the petitioner, the provisions of the Act could be invoked only if wife was living in a domestic relationship with the husband. Challenge has also been made to the impugned judgment on the ground that the wife has already been granted maintenance under Section 125 Cr.P.C. and, therefore, the husband cannot be burdened further by directing him to pay additional maintenance at the rate of 3000/- per month. 7.
Challenge has also been made to the impugned judgment on the ground that the wife has already been granted maintenance under Section 125 Cr.P.C. and, therefore, the husband cannot be burdened further by directing him to pay additional maintenance at the rate of 3000/- per month. 7. Domestic relationship has been defined under Section 2 (f) of the Act as under:- “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”. The requirement of the Act, thus, is that to constitute domestic relationship between two persons it is sufficient if such persons have lived or have had any point of time lived together in a shared household when they are related by marriage. 8. As per Section 2 (a) of the Act, aggrieved person means any woman who is or has been in a domestic relationship with respondent and who alleged to have been subjected to any act of domestic violence by the respondent. 9. Admittedly, the wife was married to the husband in the year 1980. It has also not been denied that the wife and husband shared household as husband and wife. Both the courts below have concurrently held that the wife resided with husband initially from 1980 to 1983 and then from 1987 to 1988. There is also a concurrent finding of fact that the husband is keeping another woman as his wife and has four children from such relationship. The findings to this effect are based on admissions made by the husband. Further, it has also been found on facts by the learned courts below that the wife had reasonable cause to live separately as she cannot be supposed to live with the husband, who has long standing relationship with another woman and has four children from such relationship. 10. The domestic violence as defined under the Act has many facets. It includes any act, omission or commission or conduct of the respondent which injure or endanger to health and safety whether mental or physical of the aggrieved person. It also includes any injury or harm whether physical or mental to the aggrieved person.
10. The domestic violence as defined under the Act has many facets. It includes any act, omission or commission or conduct of the respondent which injure or endanger to health and safety whether mental or physical of the aggrieved person. It also includes any injury or harm whether physical or mental to the aggrieved person. The very fact that husband has a long standing relationship with another woman and has four children therefrom is sufficient to infer harm or injury to the mental health and well being of the wife. 11. The second explanation appended to Section 3 of the Act states that for the purpose of determining whether any act of omission, commission or conduct of the respondent constitutes domestic violence under this section the overall facts and circumstances of the case shall be taken into consideration. 12. As is evident from the grounds raised in the instant petition, no serious challenge has been made to the finding of facts arrived at by the learned courts below. That being so, the contention on behalf of the petitioner as to maintainability of the petition under the Act needs to be out rightly rejected. It has been established that the wife and husband had shared household and were in domestic relationship. The wife thus is the aggrieved person and can definitely maintain the application under the Act alleging domestic violence at the hands of respondent. 13. It is not a case where the factum of receipt of maintenance by wife from husband under Section 125 Cr.P.C. was suppressed. Husband had disclosed this fact in his reply and was not rebutted by the wife. There is no bar under the Act to claim maintenance.
13. It is not a case where the factum of receipt of maintenance by wife from husband under Section 125 Cr.P.C. was suppressed. Husband had disclosed this fact in his reply and was not rebutted by the wife. There is no bar under the Act to claim maintenance. Even if the aggrieved person already gets amount earlier under Section 125 Cr.P.C. Section 20 (1) (d) of the Act reads as under:- “the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the code of Criminal Procedure, 1973 or any other law for the time being in force” From the reading of the aforesaid provisions of the Act, it is clear that the maintenance under the Act can be awarded in addition to an order of maintenance under Section 125 Cr.P.C. In such situation, it is trite that grant of maintenance and its quantum under another act/law has to be considered while grant of maintenance under the Act. Reference can be made to a judgment passed by Hon’ble Supreme Court in the matter of Rajnesh vs. Neha and another, 2021 (2) SCC 324 as under:- “60. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.” 14. As noticed above, there is no challenge to the findings of fact recorded by both the courts below. Considering the income of husband, learned trial Court found it expedient to award a sum of Rs. 3000/-, as maintenance to the wife in addition to the maintenance of Rs.
As noticed above, there is no challenge to the findings of fact recorded by both the courts below. Considering the income of husband, learned trial Court found it expedient to award a sum of Rs. 3000/-, as maintenance to the wife in addition to the maintenance of Rs. 500/- already being received by her under Section 125 Cr.P.C. The finding as to the financial capacity of husband to pay the maintenance, as awarded vide impugned orders, has also not been assailed. Thus, no illegality has been committed by both the courts below while awarding and affirming the payment of maintenance at the rate of Rs. 3000/- per month to the wife. In addition, the protection orders passed in favour of the wife and the order directing the husband to provide reasonable accommodation to the wife also cannot be faulted by taking overall analytic assessment of the facts available on record. Further, the allowance of compensation to the tune of Rs. 10,000/- in favour of wife also cannot be said to be unreasonable. 15. The findings of facts recorded by both the courts below are otherwise borne from the material on record. Nothing has been suggested or shown to this Court, so as to infer any perversity in such findings. From the material on record, no illegality or impropriety has been found as far as impugned judgment is concerned. 16. In view of the above discussion, there is no merit in the instant petition and the same is accordingly dismissed. The impugned judgment is affirmed. No order as to costs. The records be sent back forthwith. Pending applications, if any, also stand disposed of.