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2024 DIGILAW 919 (ALL)

Purushottam Das v. State of U. P.

2024-03-29

SURENDRA SINGH I

body2024
JUDGMENT : SURENDRA SINGH-I, J. 1. Heard Sri Ray Sahab Yadav, learned counsel for the revisionists and Sri Umesh Chandra Prajapati, learned counsel for the opposite party no. 2. 2. The instant criminal revision has been instituted against the impugned judgment and order dated 07.06.2023 passed by the Additional Sessions Judge, Court No. 1, Jhansi, in Criminal Appeal No. 98 of 2022 (Smt. Bharti Devi vs. State of U.P. and Others) filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act No. 43 of 2005’) 3. By the impugned order, the appellate court has set aside the order dated 01.11.2022 passed by the Civil Judge (Junior Division)/FTC (CAW)/J.M. Jhansi in Complaint Case No. 1023 of 2016 and directed the revisionist to pay maintenance allowance Rs. 3000/- per month to the opposite party no. 2 and Rs. 2000/- to her son, Harshit, till he attains the age of majority, from the date of order of the (Junior Division)/FTC (CAW)/J.M. Jhansi on 10th of each calender month. 4. By the aforesaid order, the trial court has rejected the application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 filed by the opposite party no. 2, Smt. Bharti Devi. 5. The avermment has been made on behalf of the revisionist that the appellate court had passed the order against the weight of evidence on record and without taking into consideration the provisions of law. It has also been submitted that the opposite party no. 2 had left the house of the revisionist voluntarily without any domestic violence committed by the revisionist and his family members against her. It has also been submitted that the opposite party no. 2 did not fulfil her duties as a wife in the house of the revisionist and had misbehaved with the revisionist and his family members. It has also been submitted that the opposite party no. 2 has filed Maintenance Case No. 34 of 2015 (Smt. Bharti Devi vs. Purushottam Das) under Section 125 Cr.P.C. in which the court has granted Rs. 9,000/- as maintenance allowance to the opposite parties. The opposite party no. 2 is not prepared to reside with revisionist no. 1, therefore she is not entitled for maintenance. 6. Per contra, learned counsel for the opposite party no. 9,000/- as maintenance allowance to the opposite parties. The opposite party no. 2 is not prepared to reside with revisionist no. 1, therefore she is not entitled for maintenance. 6. Per contra, learned counsel for the opposite party no. 2 has opposed the criminal revision making averment that the appellate court has passed the impugned order considering the evidence on record as well as the law applicable to the facts of the case, therefore no interference in the impugned order by this Court is warranted. 7. Facts of this case which are necessary for disposal of the criminal revision are that the revisionist no. 1, Purushottam Das, was married to opposite party no. 2, Smt. Bharti Devi, on 26.02.2009 according to Hindu Rites and Customs in Jhansi. The revisionist no. 1, Purushottam Das, was an employee in a nationalized bank at Punjab. In the matrimonial home of Smt. Bharti Devi, the revisionist no. 1, her husband and other family members used to harass her for getting a four wheeler in dowry. Three four months after staying at her matrimonial home the revisionist took her to Punjab where he was in a bank job. Thereto, the revisionist no. 1 used to beat his wife and torture physically and mentally for getting a four wheeler in dowry and during her pregnancy, he did not look after her and the expenses of delivery was borne by the parents of Smt. Bharti Devi. When the opposite party no. 2 raised objection, the revisionist beat her with iron rod and on 05.12.2015 he expelled her along with her child from her matrimonial home. The revisionist no. 1 works as Field Officer in a nationalised bank and is getting Rs. 60,000/- as monthly salary. 8. The revisionist no. 1 has admitted that the opposite party no. 2, Smt. Bharti Devi, is legally wedded wife and her minor son, Harshit has been born from their wedlock. The revisionist no. 1 has also submitted that he is getting Rs. 36,000/- per month as salary. 9. The opposite party no. 2, Smt. Bharti Devi, has submitted in her interim maintenance application filed under Section 23 of the Act No. 43 of 2005 that she is dependent on her parents for maintenance of herself and her minor son for the last two years. She also submitted that her husband is earning Rs. 9. The opposite party no. 2, Smt. Bharti Devi, has submitted in her interim maintenance application filed under Section 23 of the Act No. 43 of 2005 that she is dependent on her parents for maintenance of herself and her minor son for the last two years. She also submitted that her husband is earning Rs. 60,000/- per month as salary, therefore maintenance allowance of Rs. 20,000/- be granted to herself and her minor son for educational expenses of tuition fees, school dress and conveyance charges. 10. In his objection, the revisionist no. 1 has stated that in the case filed by Smt. Bharti Devi under Section 125 Cr.P.C. the trial court had granted maintenance allowance Rs. 5000/- and 4,000/- to the opposite party no. 2 and 3, respectively. The opposite party no. 2 is educated and double MA and is earning about Rs. 10,000 - 15,000/- per month by taking tuition. 11. I have heard learned counsel for the revisionists, learned counsel for the opposite party no. 2 and learned AGA for the State and perused the record including the impugned order. 12. Section 23 of the Act No. 43 of 2005 empowers the Magistrate to pass such interim order as he deems just and proper. Section 23 of the Act No. 43 of 2005 reads as follows: 23. Power to grant interim and ex-parte orders: 1. In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. 2. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. 13. Section 23 read with Section 20 of the Act No. 43 of 2005 empowers the Magistrate to provide 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. 13. Section 23 read with Section 20 of the Act No. 43 of 2005 empowers the Magistrate to provide 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. Section 20 of the Act No. 43 of 2005 empowers the Magistrate to 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. 14. Section 12 read with Sections 20 and 23 of the Act No. 43 of 2005 reveals that in an application under Section 12 of the Act No. 43 of 2005, the Magistrate can provide the interim monetary relief for maintenance allowance granted to an aggrieved person by order passed under Section 125 Cr.P.C. or any other law for the time being in force. 15. In Ajay Kumar vs. Lata alias Sharuti and Others, (2019) 15 SCC 352 , the Apex Court held that considering the facts and circumstances of the case, the Magistrate is competent to provide interim monetary relief to the aggrieved person of domestic violence. The quantum of the interim maintenance allowance shall be taken into consideration while deciding the case. 16. In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Another, (2014) 10 SCC 736 , the Apex Court has propounded the law relating to interim maintenance as provided under Section 23 of the Act No. 43 of 2005. The Apex Court has observed as under: 23. In the instant case, the appellant sought relief under Sections 18 to 23 of the Domestic Violence Act, 2005. It includes protection order under Section 18, monetary relief under Section 20, custody orders under Section 21, compensation under Section 22 and interim relief under Section 23. The relevant provisions read as follows: “20. 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.” The monetary relief as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application under Section 12 is in a domestic relationship with the respondent. 24. “22. 24. “22. Compensation Orders - In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. 23. Power to grant interim and ex-parte orders: (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.” Therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex-parte relief as he deems just and proper, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence. 25. It is not necessary that relief available under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under the Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a civil court and Family Court, apart from the criminal court, affecting the aggrieved person whether such proceeding was initiated before or after the commencement of the Domestic Violence Act. This is apparent from Section 26 of the Domestic Violence Act, 2005 as quoted hereunder: “26. Relief in other suits and legal proceedings: (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. Relief in other suits and legal proceedings: (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.” 26. The appellant has filed an FIR against the first respondent for the offence committed under Section 498-A IPC. The High Court refused to quash the FIR qua first respondent on the ground that prima facie case has been made out. Even before the criminal court where such case under Section 498-A is pending, if allegation is found genuine, it is always open to the appellant to ask for reliefs under Sections 18 to 22 of the Domestic Violence Act and interim relief under Section 23 of the said Act. 27. In V.D. Bhanot vs. Savita Bhanot, (2012) 3 SCC 183 : (2012) 2 SCC (Civ) 53 : (2012) 2 SCC (Cri) 102, this Court held that the conduct of the parties even prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. The wife who had shared a household in the past, but was no longer residing with her husband can file a petition under Section 12 if subjected to any act of domestic violence. In V.D. Bhanot (2012) 3 SCC 183 : (2012) 2 SCC (Civ) 53 : (2012) 2 SCC (Cri) 102, this Court held as follows: (SCC pp. 186-187, Para 12) “12. In V.D. Bhanot (2012) 3 SCC 183 : (2012) 2 SCC (Civ) 53 : (2012) 2 SCC (Cri) 102, this Court held as follows: (SCC pp. 186-187, Para 12) “12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.” 28. In Inderjit Singh Grewal vs. State of Punjab, (2011) 12 SCC 588 : (2012) 2 SCC (Civ) 742 : (2012) 2 SCC (Cri) 614 the appellant Inderjit Singh and Respondent 2 of the said case got married on 23-9-1998. The parties to the marriage could not pull on well together and decided to get divorce and, therefore, filed a case for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. After recording the statement in the said case, the proceedings were adjourned for a period of more than six months to enable them to ponder over the issue. The parties again appeared before the Court on second motion and on the basis of their statement, the District Judge, Ludhiana vide judgment and order dated 20-3-2008 allowed the petition and dissolved their marriage. After dissolution of marriage, the wife filed a complaint before the Senior Superintendent of Police, Ludhiana against Inderjit Singh under the provisions of the Domestic Violence Act alleging that the decree of divorce obtained by them was a sham transaction. It was further alleged that even after getting divorce both of them had been living together as husband and wife. In the said case, the Superintendent of Police, City I conducted the full-fledged inquiry and reported that the parties had been living separately after the dissolution of the marriage. Hence, no case was made out against Inderjit Singh. It was further alleged that even after getting divorce both of them had been living together as husband and wife. In the said case, the Superintendent of Police, City I conducted the full-fledged inquiry and reported that the parties had been living separately after the dissolution of the marriage. Hence, no case was made out against Inderjit Singh. In this context, this Court held that Section 12 “application to Magistrate” under the Domestic Violence Act challenging the said divorce was not maintainable and in the interest of justice and to stop the abuse of process of court, the petition under Section 482 Cr.P.C. was allowed. The law laid down in the said case is not applicable for the purpose of determination of the present case. 29. In the present case, the alleged domestic violence took place between January 2006 and 6-9-2007 when FIR No. 224 of 2007 was lodged by the appellant under Sections 498-A and 406 IPC against the first respondent and his relatives. In a writ petition filed by the first respondent the High Court refused to quash the said FIR against him observing that prima facie case under Section 498-A was made out against him. Even if it is accepted that the appellant during the pendency of the SLP before this Court has obtained ex-parte “khula” (divorce) under the Muslim Personal Law from the Mufti on 9-5-2008, the petition under Section 12 of the Domestic Violence Act, 2005 is maintainable. 30. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, child custody under Section 21, compensation under Section 22 and interim or ex-parte order under Section 23 of the Domestic Violence Act, 2005. 31. Both the Sessions Judge and the High Court failed to notice the aforesaid provisions of the Act and the fact that the FIR was lodged much prior to the alleged divorce between the parties and erred in holding that the petition under Section 12 was not maintainable. 17. The Act No. 43 of 2005 provides monetary interim relief under Section 23 of the Act to aggrieved person including a child who has been subjected to domestic violence. 17. The Act No. 43 of 2005 provides monetary interim relief under Section 23 of the Act to aggrieved person including a child who has been subjected to domestic violence. It is not essential that at the time of claiming relief under Section 12 of the Act, the aggrieved person is in domestic relationship with the opposite party herein revisionist. 18. In Rajat Johar vs. Divya Johar, 2017 SCC Online Del. 11790, Delhi Court has observed as under: 21. Since the respondent and her minor son are to be maintained by the petitioner, in the absence of denial of existence of the marriage and denial of paternity of the minor son, who is stated to be requires constant medical treatment and supervision, the petitioner cannot shy away from his statutory obligation of maintaining his legally wedded wife and his minor son. 22. The monetary relief as provided under the Protection of Women from Domestic Violence Act, 2005 is different from maintenance, which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other law, and can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, and the question whether the aggrieved person, on the date of filing of the application under Section 12 of DV Act was in a domestic relationship with the respondent is irrelevant. 19. Section 2 of the Act No. 43 of 2005 defines “aggrieved person” and “child” as follows: (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. (b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child. 20. In the impugned order, the trial court has considered the fact that the revisionist husband has admitted in his written statement that opposite party no. 2, Smt. Bharti Devi, is his wife and master Harshit is his son from their wedlock and for the last two years, Smt. Bharti Devi is living separately from the revisionist no. 1 at her parental home and their maintenance and educational expenses of child Harshit is borne by her parents. The trial court has also taken into consideration that the revisionist no. 1 at her parental home and their maintenance and educational expenses of child Harshit is borne by her parents. The trial court has also taken into consideration that the revisionist no. 1 is working as field officer in a nationalized bank and has taken into consideration the salary slip, paper no. 12-B filed by the revisionist no. 1, Purshottam Das, according to which, his gross salary is Rs. 97,227.45/- and from that monthly salary, house rent recovery, furniture recovery, housing loan, car loan, income tax, contributory pension fund and income tax is being deducted. 21. It is settled law that only statutory deductions as well as income tax can be taken into consideration while determining the net salary of the revisionist no. 1. The payments made on other heads cannot be deducted from his gross salary. Considering the maintenance of opposite party no. 2, Smt. Bharti Devi and educational expenses of her son, the trial court has fixed Rs. 3,000/- per month to the opposite party no. 2 and Rs. 2,000/- to her minor son as interim maintenance allowance. 22. From the above, the provision for interim maintenance is a social welfare measure. It is provided to protect the minor children and old parents from hunger destitution and vagrancy. 23. From above discussion, I am of the considered view that while granting Rs. 3,000/- to opposite party no. 2, Smt. Bharti Devi and Rs. 2,000/- to her son, Harshit, as maintenance allowance, the trial court has not committed any illegality or irregularity or jurisdictional error. There is no merit in the criminal revision. The criminal revision is dismissed. However, I clarify that the present order as well as orders which have been passed by the appellate court shall not come in the way of a final adjudication on the merits of the complaint by the Magistrate in accordance with law. The interim maintenance allowance shall be paid till 10th of each month. The arrears shall be paid over within a period of four months from today by equal monthly instalments. 24. Let the copy of this order be sent to the trial court/court concerned for communication.