2014 ALL MR (Cri) JOURNAL 273
(GAUHATI HIGH COURT)
A.K. GOSWAMI, J.
Md. Rajab Ali & Ors. Vs. Mustt. Manjula Khatoon
Criminal Revision Petition No.423 of 2012
14th March, 2014
Petitioner Counsel: Mr. B. CHAKRABORTY, Mr. T.R. SARMA, Mr. L. GOGOI
Respondent Counsel: Mr. S. CHOUHAN
(A) Protection of Women from Domestic Violence Act (2005), Ss.20, 2(9), 2(f) - Monetary relief and compensation - Grant of - Is permissible against male members of husband's family who had committed domestic violence.
Having regard to the definition of respondent and domestic relationship, there is no merit in the contention that direction for monetary relief and compensation can be made only against the husband and not against the male family members of the husband. 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 the D.V. Act. The proviso to section 2(q) makes the position further clear 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. Complaint is defined in Rule 2(b) of the D.V. Rules to mean any allegation made orally or in writing by any person to the Protection Officer and section 12 of the D.V. Act provides that a Protection Officer may also present an application on behalf of the aggrieved person to the Magistrate seeking reliefs under the D.V. Act. As such, under the D.V. Act, it is permissible to grant monetary relief and compensation against male persons who had committed domestic violence. [Para 25]
(B) Protection of Women from Domestic Violence Act (2005), S.19 - Claim for alternative accommodation - Can only be made against husband and not against in-laws or other relatives.
2007 ALL MR (Cri) 3589 (S.C.) Rel. on. (Para 25)
JUDGMENT :- This revision application is filed against the Judgment and Order dated 16.06.2012, passed by the learned Court of Additional Session Judge (F.T.C.), Sankardev Nagar, Hojai in Criminal Appeal No. 14(N)/2011, rejecting the appeal filed by the petitioners and affirming the Judgment and Order dated 03.02.2011, passed by the learned Judicial Magistrate, 1st Class, Sankardev Nagar, Hojai in Misc Case No. 07/2009, arising out of a petition under section 12 of the Protection of Women from Domestic Violence Act, 2005, for short, D.V. Act, filed by the opposite party.
2. The present petition is filed by 3 petitioners, who are, father-in-law and brothers-in-law of the opposite party, respectively. The case of the opposite party, in a nut-shell, as set out in the application under section 12 of D.V. Act, inter-alia, is that the opposite party was married to Md. Nurul Islam on 27.04.2008 by execution of a registered Kabinnama fixing Mahr of Rs.39,000/- and at the time of marriage, valuable articles including gold ornaments in the form of stridhan was given to the opposite party, which, she handed over to the respondents to the said application numbering 6, which included the present petitioners, her husband Md. Nurul Islam, her mother-in-law and wife of present petitioner No. 2 herein. The said respondents, after few days of marriage, started torture upon the opposite party and pressurized her to bring cash amount of Rs.50,000/-. As she and her family were unable to fulfill the demand, she was, on 30.11.2008, driven out from her matrimonial house. It was also stated that the opposite party was, at the time of marriage, studying in TDC 1st year and she had resumed her education. It is further stated that no maintenance whatsoever was granted to her and that her husband has sources of earning from Agar business, agricultural etc. and that he earns about Rs. 30,000/- to Rs. 40,000/- per month. The Respondents are owners of land and residential house and she had resided in the residence of the respondents alongwith her husband. On the aforesaid basis, she prayed for relief under sections 18/19/20/21/22 of the D.V. Act.
3. Except the husband, all other respondents in the said application under section 12 of the D.V. Act, submitted written statement stating that husband of the applicant had left the house without their knowledge and his whereabouts is not known. It was pleaded that the couple was living separately in a separate establishment and they generally denied the allegations made in the application.
6. On consideration of the materials available on record, the learned Magistrate recorded a finding that act of domestic violence was committed against the applicant/aggrieved person and accordingly, passed the following order:
In view of the above:
(1) U/S. 18 of the Act, the respondents are prohibited form alienating the 'stridhan' of the aggrieved person; and
(2) Directed the respondents not to commit any act of domestic violence.
(3) U/s. 19 of the Act, the respondents are directed to pay a rent of Rs. 1,000/- (Rupees one thousand) per month to the aggrieved person within the first fortnight of each English Calendar Month of the year from the date of this order. Further, the respondents are directed to return the stridhan, if any, to the aggrieved person.
(4) U/S. 20 of the Act, the respondents namely,
1. Md Nurul Islam,
2. Md. Rajab Ali,
3. Md. Baharul Islam, and
4. Md. Sahidul Islam
are directed to pay a lump sum of Rs. 50,000/- (Rupees fifty thousand) to the aggrieved person within three months from the date of this order.
(5) U/S. 22 of the Act, the respondents namely,
1. Md Nurul Islam,
2. Md. Rajab Ali,
3. Md. Baharul Islam, and
4. Md. Sahidul Islam
are directed to pay Rs. 50,000/- (Rupees fifty thousand) as compensation and damages for the injuries, including mental torture and emotional distress caused by the acts of domestic violence against the aggrieved person by the respondents. Further, considering the compensation amount to be huge, the respondents are directed to pay the amount within three (3) months from the date of the order."
8. Mr. B. Chakraborty, learned counsel for the petitioners submit that whereabouts of the husband of the opposite is not known and that the opposite party is not entitled to any monetary relief against the petitioners even if it is held that a case of domestic violence was made out. He submits that only the husband is liable for payment by way of monetary relief. It has also been contended by him that the opposite party, according to her own version, was staying in the house of the petitioner No. 1, being the father-in-law, and therefore, the learned Courts below acted illegally in directing payment of rent of Rs. 1,000/- per month to the opposite party. In substance, submission of the learned counsel for the petitioners is that directions as contained in the order of the learned Courts below against the petitioners under sections 19/20/22 of the D.V. Act are not sustainable. In support of his submission, the learned counsel relies on a judgment of the Apex Court in the case of S.B. Batra & Anr. Vs. Taruna Batra (Smt), reported in (2007) 3 SCC 169 : [2007 ALL MR (Cri) 3589 (S.C.)].
9. Mr. S. Chouhan, learned counsel for the opposite party, on the other hand, supports the impugned judgments and submits that evidence on record having clearly demonstrated that the opposite party was subjected to domestic violence by the petitioners and the husband in her matrimonial house, the learned Courts below committed no illegality in passing the impugned judgments.
11. The opposite party had examined herself as PW 1. She had stated in her evidence that the accused persons had assaulted her in various manner for which she had also to take medical treatment. She was married on 27.08.2008 and she was driven out on 30.11.2008. She also deposed regarding demand of dowry. In cross-examination, she had stated that she and her husband were residing in the house of the petitioner No. 1 and they had never lived separately. The petitioner No. 1 has two houses and the house that she was staying had 4 rooms, where, in one of the rooms, her father-in-law also lived. She further deposed that the husband had continued to live in the house of her father-in-law.
13. Before I proceed further, it will be relevant to take note of the definition of "domestic relationship", "respondent" and "shared household", as they have a bearing in this case. Domestic violence is defined in section 3 and it will also be appropriate to take note of the definition of domestic violence. The definitions are reproduced herein below:
"2(f). "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."
"2(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".
"2(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 or 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."
"3. Definition of domestic violence - For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person."
14. The Explanation 1 to section 3 is not reproduced hereinabove as the same is not relevant for the purpose of this case. Explanation 1 defines physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse, which expressions find place in section 3(a). Explanation 2 of section 3 provides that to determine whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under section 3, the overall facts and circumstances shall be taken into consideration.
15. In S.R. Batra, [2007 ALL MR (Cri) 3589 (S.C.)] (supra), the Apex Court had expressed the view that definition of "shared household" in section 2(s) of the D.V. Act is not very happily worded, and that the same was a result of clumsy drafting. It was held that it is not possible to accept the contention that the definition of "shared household" in Section 2(s) includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship and that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household on the ground that if this submission was accepted, then it would mean that wherever the husband and wife lived together in the past, that property becomes a shared household. It was held that such a view would lead to chaos and would be absurd and observed that any interpretation which leads to absurdity should not be accepted. It was further held that the wife is only entitled to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. Accordingly, it was ruled that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives.
16. In the instant case, the evidence is to the effect that the opposite party was residing in a house belonging to the petitioner No. 1, that is, the father-in-law. Apparently, the husband or the opposite party did not have any right, title or interest in the shared household. But fact remains that the husband and the opposite party did not live in the house of the father-in-law on a temporary basis or fleetingly. The evidence on record would demonstrate that the couple lived in the house of the petitioner No. 1 till the opposite party was driven out from the house.
17. It is not uncommon that members of a Mahomedan family live in commensality. However, they do not form a joint family in the sense in which the expression is used in the Hindu Law. There is no provision of Mahomedan Law recognizing a joint family.
18. Therefore, bearing in mind the purpose for which the D.V. Act was enacted, which is, to provide more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind as occurring within the family and for matters connected therewith or incidental thereto, the expression "joint family" occurring in definition of "domestic relationship" and "shared household" has to be given an interpretation which will be consistent with the object of the Act for the purpose of maintainability and obtaining certain reliefs under D.V. Act, and therefore, I am of the opinion that expression "joint family" would mean a household where members of a family live in commensality and not a "joint family" as is understood in Hindu Law. Any other interpretation has the potential to exclude a vast majority of the shared households in the country, which cannot be the intention of the legislature, having regard to the avowed object of the Act.
19. Section 20 which provides for grant of monetary relief lays down that while disposing of an application under Section 12 (1) of the DV Act, 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;
(c) The loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(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.
Sub-Section 2 of the Section 20 provides that 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.
Sub-Section 3 provides that 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.
Sub-Section 6 provides that 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.q
20. Section 22 of the DV Act provides that 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.
21. Rule 6 of the Protection of Women from Domestic Violence Rules, 2006, for short, DV Rules, lays down the procedure for filing of applications to the Magistrate. Rule 6 (5) provides that the application under Section 12 of the DV Act, shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure.
22. Section 126 (2) of the Code of Criminal Procedure provides that all evidence in Section125 Cr.PC proceeding shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases.
23. Proviso 2 of Section 126 (2) provides that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
24. The learned Court below, on the basis of the evidence on record, have recorded a finding that the opposite party was subjected to domestic violence at the hands of the petitioners as well as her husband, against whom the case proceeded ex-parte. Learned counsel for the petitioners is unable to show how the said finding is perverse.
25. Having regard to the definition of respondent and domestic relationship, I am of the considered opinion that there is no merit in the contention of Mr. Chakraborty that direction for monetary relief and compensation can be made only against the husband and not against the male family members of the husband. 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 the D.V. Act. The proviso to section 2(q) makes the position further clear 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. Complaint is defined in Rule 2(b) of the D.V. Rules to mean any allegation made orally or in writing by any person to the Protection Officer and section 12 of the D.V. Act provides that a Protection Officer may also present an application on behalf of the aggrieved person to the Magistrate seeking reliefs under the D.V. Act. As such, under the D.V. Act, it is permissible to grant monetary relief and compensation against male persons who had committed domestic violence. In S.R. Batra, [2007 ALL MR (Cri) 3589 (S.C.)] (Supra), the Apex Court at paragraph 28 had observed that claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives. In that view of the matter, direction to pay rent to the petitioners by the learned Court below is not sustainable in law. Accordingly, the impugned judgments are interfered with only to the extent that the present petitioners will not be liable to pay rent of Rs. 1,000/- per month as directed by the learned Courts below.