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2023 DIGILAW 1347 (ALL)

Rohit Yadav @ Ravi v. State of U. P.

2023-05-18

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Heard learned counsel for the revisionist, learned counsel for the opposite party no. 2 and learned A.G.A. for the State. 2. Present criminal revision has been preferred against order dated 8.1.2022 passed by learned Additional Sessions Judge, Court No. 9, Firozabad, in Crl. Appeal No. 51 of 2021 (Rohit Yadav @ Ravi vs. Smt. Deepika Yadav) as well as order dated 1.11.2021 passed by Nyayadhikari (Judicial Officer), Rural Court Tundla, District Firozabad, in Case No. 367 of 2020, under Sections 12/14/15/17/18/19/20/21/22 Protection of Women from Domestic Violence Act, P.S. Tundla, District Firozabad. By the impugned order dated 1.11.2021, learned Nyayadhikari/Judicial Magistrate allowed the petition under aforesaid sections filed by petitioner Smt. Deepika Yadav, ex-parte against present revisionists, who were respondent in Case No. 637 of 2020 before court of Nyayadhikari and directed them to pay Rs. 7,000/-as monetory compensation towards fooding, clothing, medical and daily needs of opposite party and her two minor daughters Ishanika and Joshika, aged around 7 years and 3 years respectively, from the time of filing of petition in the year 2020. 3. Learned court below also directed the respondents/revisionists to stay away from dispossessing the petitioners/opposite party from shared households where she was residing in a room and were also directed to refrain from harassing the petitioner/opposite party physically or mentally on account of any dispute over property of her late husband Sapan Yadav. 4. Factual matrix of the case which are essential for disposal of present criminal revision is that the Opposite Party No. 2 filed a petition before Nyayadhikari under various provisions of Protection of Women from Domestic Violence Act against the revisionists who are relatives of her late husband, with prayer for issuing necessary orders admissible under provisions of Act like protection order under Section 18, Right to Reside in the share households under Section 17, Monetory relief under Section 20, residence order under Section 19, Compensation order under Section 22 of the Act. In the petition petitioner had stated that her marriage with Sapan Singh was solemnized on 25.12.2010 and from their wedlock two female child born. Unfortunately her husband died on 18.9.2019. After death of her husband, respondents/revisionists who are mother-in-law, brother-in-law (dewar), sister-in-law (devrani), sister-in-law (nanand) and brother-in-law (nandoi) started harassing her. The relatives of her husband are persons of bad character. Unfortunately her husband died on 18.9.2019. After death of her husband, respondents/revisionists who are mother-in-law, brother-in-law (dewar), sister-in-law (devrani), sister-in-law (nanand) and brother-in-law (nandoi) started harassing her. The relatives of her husband are persons of bad character. She has not been in a position to maintain herself. The respondents/revisionists started harassing her both physically and mentally in various ways. She was subjected to rape by respondent nos. 1 (Rohit) and 5 (Vipul Yadav), her brothers-in-law, with collusion of women of shared households and ultimately she was forced to leave her matrimonial home and consequently she was compelled to take shelter in her parental home situated at Anand Nagar, Tundla, Distrcit Firozabad. She filed present petition for above stated reliefs on 11.11.2020 before learned magistrate. 5. The appellants/respondents after service of notice appeared before the trial Court, but not filed objections/W.S. On 6.9.2021, appellants/respondents filed adjournment before lower Court and learned lower Court has allowed the adjournment and fix 07.09.2021 for W.S./objection. On 07.09.2021, appellants/respondents again filed the adjournment and the same was rejected by the lower Court and proceeded the case ex-parte against the appellants/respondents. 6. During the trial the applicant Deepika Yadav examined herself as PW1. After hearing the arguments, learned Magistrate has passed impugned order by allowing the petition against appellants. 7. Feeling aggrieved by the various protection order passed by learned Magistrate, present revisionist filed a Crl. Appeal No. 51 of 2019 before Court of Session, Firozabad on ground that the trial court has failed to appreciate facts and law placed before it. The order passed by learned magistrate is highly illegal and same has not been passed on correct appreciation of facts and law. Learned Trial Judge has failed to observe the aspect of income of the petitioner/opposite party no. 2 and has not given any opportunity of hearing to the appellants/revisionists and passed impugned order arbitrarily and on these grounds they claimed that their appeal may kindly be allowed and order passed by trial court may be set aside. The appellants/revisionists committed no domestic violence against the respondent no. 2. The petitioner/opposite party no. 2 failed to prove any case of domestic violence made against appellants, therefore, the trial court has committed error in granting relief of maintenance and residence order in favour of petitioner/opposite party no. 2. Appellants/revisionists were not given any opportunity of hearing and for filing any written statements in petition. 8. 2. The petitioner/opposite party no. 2 failed to prove any case of domestic violence made against appellants, therefore, the trial court has committed error in granting relief of maintenance and residence order in favour of petitioner/opposite party no. 2. Appellants/revisionists were not given any opportunity of hearing and for filing any written statements in petition. 8. Learned first appellate court after hearing arguments of both sides concluded that learned lower court was justified to proceed the case ex-parte against appellants/revisionists as the appellants/revisionists had filed an adjournment on 9.4.2021 and opposite party nos. 4 and 5 had filed discharge application 16-A. Learned court below vide order dated 26.8.2021 dismissed application 16-A and fixed 6.9.2021 for filing the written statement. On 6.9.2021 opposite parties have filed adjournment which was allowed by the learned lower court with cost. On the next date i.e. 7.9.2021, opposite party had again filed the adjournment and same was rejected by learned lower court holding that opposite parties are delaying the process and proceeded the case ex-parte against opposite parties, therefore, grounds taken by appellants regarding knowledge of the case are false and fabricated because it is apparent from perusal of record of lower court that they appeared before lower court and moved the adjournments. On 6.9.2021 learned lower court has given last opportunity to opposite parties to file written statement but on the next date they failed to file any written statements and rather they moved adjournment again before court below. It appears from conduct of opposite party that they tried to delay the proceedings of the case deliberately while the court below had given proper opportunity to opposite parties for filing objection/written statement. It is noteworthy that the appellants had not filed any appeal against ex-parte order while they could have filed the appeal against the said ex-parte order dated 7.9.2021. Therefore, it is clear that learned court below was justified to proceed the case ex-parte against opposite parties/appellants. Learned court below also inferred on the basis of evidence on record that learned trial court has rightly passed the maintenance order in favour of the petitioner. Court below also concluded that the appeal is liable to be dismissed and impugned order passed by learned magistrate deserves to be affirmed. 9. Learned court below also inferred on the basis of evidence on record that learned trial court has rightly passed the maintenance order in favour of the petitioner. Court below also concluded that the appeal is liable to be dismissed and impugned order passed by learned magistrate deserves to be affirmed. 9. Feeling aggrieved by impugned orders passed by court below, revisionists who are respondents before trial court, have filed present criminal revision on grounds that after death of husband of respondent no. 2, all the property which was in the name of her husband was given to her and she took all the articles and ornaments and started living with her children at her parental house. There is dispute between revisionist and respondent no. 2 regarding the property for which several round of mediation was carried out. The respondent no. 2 even lodged a false F.I.R. against revisionist on 21.8.2020 registered as Case Crime No. 181 of 2020, under Sections 498-A, 342, 323, 504, 506 IPC, .P.S. South, District Firozabad in which Section 164 IPC was further added on the basis of statement of respondent no. 2 during investigation. The revisionist challenged the charge sheet filed in said criminal case by police after investigation before this Court in Application U/S 482 Cr.P.C. No. 16933 of 2022, in which interim relief was granted to revisionist vide order dated 20.7.2022 to the effect that till the next date of listing, no coercive action shall be taken against the applicants in said criminal case. The said application was filed by the revisionist Rohit Yadav, dewar of respondent no. 2, Smt. Arti Yadav, sister-in-law (devrani) of respondent no. 2 and Smt. Madhubala (mother-in-law of respondent no. 2). Respondents being relatives of husband of respondent no. 2 cannot be held accountable for providing maintenance. The respondent no. 2 has already taken the share/property, all the insurance money and bank deposits lying in the name of her late husband and she has filed present case only to harass the revisionists but this facts were overlooked by learned court below. The impugned orders are liable to be set aside and revision should be allowed in the interest of justice. 10. The impugned orders are liable to be set aside and revision should be allowed in the interest of justice. 10. Learned counsel for the revisionist stated grounds mentioned in criminal revision in support of his arguments and prayed for allowing present revision and to discharge the revisionists from any liability with which they are saddled by orders of court below in respect of respondent no. 2. 11. Per contra, learned counsel for the respondents and learned A.G.A. submitted that courts below have committed no irregularity, illegality or perversity while passing impugned order which is based on material on record and the impugned order passed by court of first instance towards maintenance of the respondent and her minor daughters is very reasonable and affordable by the revisionists. The impugned order passed by learned Nyayadhikari/Magistrate is preceded by proper appreciation of facts and law placed before it. Trial court has rightly held that original petitioner/respondent no. 2 is living separately due to being subjected to domestic violence and in hands of respondents/revisionists and she is unable to maintain herself as well as her minor daughters. Learned counsel for the respondent no. 2 also contended that the present revisionists have neglected the respondent no. 2 totally and looking to this aspect of the matter trial court has granted the maintenance to the respondent no. 2. Impugned orders are just and proper and do not deserve any interference in present revision as that will add to plight of revisionists who are victim of domestic violence. He prayed for dismissing the present revision. 12. Object and reason clause of Protection of Women from Domestic Violence Act, 2005 (Act No. 43 of 2005 came into force on 26.10.2006) provides that “an act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.” 13. In Section 2 which is definition clause, following expressions are defined as under: (a) “aggrieved person’ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. In Section 2 which is definition clause, following expressions are defined as under: (a) “aggrieved person’ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. (f) “domestic relationship” has 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. (q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. (s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person of the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.” 14. The domestic violence is defined under Section 3 of the Act which includes physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse on aggrieved by respondents. 15. Section 20 provides for monitory reliefs which is reproduced as under: “Monetary reliefs: (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to: (a) the loss of earnings. (b) the medical expenses. (b) the medical expenses. (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person. (d) 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 (2 of 1974) or any other law for the time being in force. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides. (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1). (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.” 16. Section 23 empowers the magistrate to grant interim and ex-parte orders on the basis of affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or as the case may be, Section 22 against the respondents. Section 28 provides that same as otherwise provided in this Act, all proceedings under Section 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Cr.P.C. 1973, however, sub-section (2) clarifies that nothing in sub-section (1) shall prevent the court from laying down its own priviso for disposal of an application under Section 12 or under sub-section (2) of Section 23. 17. 17. The revisionist has not stated in revision memo that they are not financially capable to provide for maintenance awarded by learned magistrate instead they have raised some technical objections against impugned orders passed by court below, for providing maintenance and residence order in favour of present respondent no. 2. They were given ample opportunity by the court of first instance to file written statements and participate in hearing of the case before court below but have failed to ever file written statement against averment made in petition filed by the petitioner, who is respondent no. 2, presently. They had obtained several adjournments for filing written statements and participate in process of hearing of the case but even after being aware of the case and hearing before court below, they did not try to defend themselves and court had to proceed ex-parte against them and decide the case ex-parte against present revisionists who were respondents before court of first instance. 18. The respondent no. 2 has stated in her original application before court of first instance seeking various sort of protection order in respect of matters under controversy and that respondent nos. 1 to 3 are resident of 1/682, Suhagnagar, District Firozabad, who are her brother-in-law, sister-in-law and mother-in-law. Respondent nos. 4 and 5 are her sister-in-law (nanand) and brother-in-law (nandoi) who reside in Vipulkhand. She was also residing in the same house which belongs to respondent nos. 1 and 2, after her marriage with her husband and even thereafter due to taking view of harassment and torture meted out to her by opposite parties, she was compelled to leave her matrimonial home on 12.7.2020 and shifted to the place of her parents along with her minor daughters. Opposite party nos. 1 and 2 who are her brother-in-law (dewar) and mother-in-law who have ancestral property at village Chamraula, Tehsil Atmadpur, District Agra, Village Itayli, Tehsil-Bah, District Agra, Village Alampur Jarkhi, District Firozabad, Village Pachawan, District Firozabad, Mauza Ushayni, Tehsil Tundla, District Firozabad. One house at Firozabad along with six shops and a number of immovable property in city Firozabad from which they earn sufficient income through rents. They do not pay any money for maintenance of the applicant and her minor children. In report submitted by D.P.O., the factum of allegation of domestic violence made in the complaint filed by the present respondent no. 2 was found to have established. They do not pay any money for maintenance of the applicant and her minor children. In report submitted by D.P.O., the factum of allegation of domestic violence made in the complaint filed by the present respondent no. 2 was found to have established. Courts below have given a finding that applicant (Smt. Deepika Yadav) is unable to maintain herself along with her children. She has supported the version of complaint by way of her evidence before the court which has been filed in the form of affidavit evidence and same was un-controverted as opposite parties had failed to participate in the process of hearing. In Indra Sharma vs. V.K.V. Sharma, AIR 2014 SC 309 , Hon’ble Apex Court held that Protection of Women from Domestic Violence Act has been enacted to provide a remedy in civil law for protection of women from being victims of Domestic Violence Act and to prevent occurrence of domestic violence in the society. The act has been enacted also to provide an effective protection of the rights of women who are victims of violence on any kind, occurring within the family. 19. In Satish Chandra Ahuja vs. Sneha Ahuja, AIR 2020 SC 2483, Hon’ble Apex Court held that S.R. Batra and Another vs. Taruna Batra, (2007) 3 SCC 169 , has not correctly interpreted the provisions of Section 2(s) of Domestic Violence Act and does not lay down correct law, where the court held that wife is only entitled to claim a right to residence, share households would only mean the house belonging to or taken on rent by the husband, or the house which belongs to joint family of which husband is a member. Hon’ble Apex Court further held in Satish Chandra Ahuja’s case (supra) that definition of share household as noticed in section 2(s) does not indicate that a share household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “respondent” under the Act. Respondent in a proceedings under the Domestic Violence Act can be any relative of the husband. We have noticed the definition of “respondent” under the Act. Respondent in a proceedings under the Domestic Violence Act can be any relative of the husband. In event the shared households belongs to any relative of the husband with whom in a domestic relationship, the women has lived, the conditions mentioned in sub-section 2(s) are satisfied and the said house will become a shared household and from provisions of Section 2(s) it is clear that for a shared houshold there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The object and purpose of the Act was to grant a right to aggrieved person, a woman of residence in shared households. The interpretation which is put by this Court in S.R. Batra’s Case (supra), if accepted, shall clearly frustrate the object and purpose of the Act. The wife is entitled to claim a right to residence in a share households belonging to relatives of her husband. 20. In present case, the revisionists have not taken a stand that they are unable to pay the amount of maintenance awarded by the court of first instance against them which is payable to respondent no. 2 for maintenance of herself and her two minor daughters. The main thrust of contention raised on behalf of revisionists is that there is property dispute between the revisionists and respondent no. 2 as revisionists are in-laws of respondent no. 2 and the impugned order passed by court below and affirmed by first appellate court is ex-parte. Courts below have properly addressed the issue that why the court had to pass ex-parte judgment against the revisionists as even after appearance in the court, the revisionists failed to file any written statement. They took several adjournments for filing written statements and subsequently absented themselves and even after passing of order with effect that case will be heard ex-parte against them, they did not file any application for recall of ex-parte order dated 7.9.2021, therefore, the court was left with no option but to proceed to receive ex-parte evidence and decide the case ex-parte against present revisionists. Revisionists have not made any specific averments regarding quantum of maintenance as ordered by court below or inability to pay the amount of maintenance to respondent no. Revisionists have not made any specific averments regarding quantum of maintenance as ordered by court below or inability to pay the amount of maintenance to respondent no. 2, therefore, I find no factual or legal error regarding quantification of amount of maintenance awarded by learned Nyayadhikari and affirmed by Appellate Court. However, this fact cannot be lost sight that revisionist no. 4 and 5, who are impleaded as opposite party no. 4 and 5 before court below, are married sisters-in-law (nanand and nandoi) of the complainant/respondent no. 2. They admittedly reside at some other place and their address have been given by the complainant herself in Vipulkhand, Lucknow as the revisionist nos. 1 to 3 as well as respondent no. 2 are presently residing in district Firozabad, therefore, it cannot be said that revisionist nos. 4 and 5 were in domestic relationship with the complainant/respondent no. 2, particularly in absence of specific pleadings and evidence in this regard. The shared households where respondent no. 2 has stated to have lived after marriage with her late husband and thereafter for sometime with revisionist nos. 1 to 3 belongs to Revisionist No. 1 and 2 according to version of the complainant herself. Respondent nos. 4 and 5 being family members of her late husband cannot be saddled with the responsibility of providing maintenance awarded to the complainant/respondent no. 2 in impugned judgment of court of first instance nor they can be held accountable to provide an accommodation to her in shared household which does not belong to them, therefore, the impugned order is liable to be modified to the extent that relief granted by court below in impugned judgment will be confined to in respect of revisionist nos. 1 to 3 and revisionist nos. 4 and 5 are exempted from complying with impugned order passed by court below providing maintenance and accommodation in shared households to the complainant, therefore, the revision stands partly allowed to the extent that impugned order is quashed with regard to opposite party nos. 4 and 5 in Complaint Case no. 637 of 2020, who are revisionist nos. 4 and 5 before this Court, however, impugned order shall held good in respect of revisionist nos. 1 to 3, who are opposite party nos. 1 to 3 before court below. 21. 4 and 5 in Complaint Case no. 637 of 2020, who are revisionist nos. 4 and 5 before this Court, however, impugned order shall held good in respect of revisionist nos. 1 to 3, who are opposite party nos. 1 to 3 before court below. 21. With this modification, this Court does not find any illegality, irregularity, or in proprietary in the impugned judgments passed by court below which are under challenged before this Court. The impugned order shall be binding upon respondent nos. 1 to 3 and will be executable against them on application made by respondent no. 2 in this respect, however, it is made clear that observations made while deciding this revision are only for purpose of present revision and will not be any bearing on criminal case filed by the complainant against the revisionists.