Criminal Writ Petition No.494 of 2009,Criminal Revision Application No.41 of 2009

3rd September, 2012

Respondent Counsel: Mr. S.R. PAGE, Mrs. U.V. KEJRIWAL

Cases Cited:
Kishor Shrirampant Kale Vs. Sou. Shalini w/o Kishor Kale and ors., 2010 ALL MR (Cri) 1386 [Para 8]

JUDGMENT

JUDGMENT :- None appears for the petitioner in WP No.494 of 2009. Even on the previous date of hearing, petitioner was not present. The petition is dismissed for want of prosecution .

2. Criminal Revision Application No.41 of 2009 by husband directed against the order passed by the learned Additional Sessions Judge being dismissing the applicant's appeal bearing No.281 of 2008, questioning the order passed by the learned Judicial Magistrate First Class, Cantonment Court, Pune, directing the husband to pay interim maintenance at the rate of '.1,500/- per month and also to make arrangement for residence of the wife in Hadapsar area.

3. The facts arising for deciding this revision are as under:

4. The parties were married about 31 years ago on 1.4.1981 and have been residing separately since April, 1983, when the wife had filed Miscellaneous Application No.13/83 under Section 125 of Code of Criminal Procedure, in the Court of Judicial Magistrate First Class at Amravati for grant of maintenance. The husband filed petition for divorce under Section 13(i)(b) of Hindu Marriage Act bearing No.66 of 2001, in the Court of Civil Judge S. D. Amravati. The wife had been granted maintenance @ '.1,500/- per month. In the proceeding before Civil Judge Senior Division, a sum of '.3,000/- per month was granted under Section 24 of the Hindu Marriage Act as interim alimony including an amount of '.1,500/- already granted by the Magistrate under Section 125 of the Code.

5. The wife alleged that for the purpose of facilitating decree in the divorce petition, the husband had caused wife to come to stay with him in row house in Hadapsar from where she was dis-housed and therefore, filed complaint under Section 12 read with section 3 of the Protection of Woman against Domestic Violence Act, 2005. In the said complaint, she filed Application at Exh.5 seeking maintenance @ '.15,000/- per month, custody of her articles, restraining respondent from keeping relations with Ms. Rekha Deshbhratar, directing husband to reside with the applicant and to provide for residential premises to her. The husband contested this application. After hearing the parties, the learned Magistrate passed impugned order directing husband to pay maintenance @ '.1,500/- per month and also to provide for accommodation in Hadapsar Area.

6. Both parties appealed before sessions Court, which Court by impugned order dismissed both the appeals. Aggrieved thereby the husband has preferred this Revision and wife had filed Writ Petition No.494 of 2009 which has been dismissed for want of prosecution today.

7. I have heard learned counsel for the applicant husband and could not get advantage of hearing wife's side since none appeared for her. In this case, since wife filed maintenance application in the year 1983 which has been granted by the learned Magistrate, Amrvati, it is clear that the husband and wife have not been stayed together for all these years. It is to be noted that the learned Additional Sessions Judge has observed that the wife did not reside in row-house. Therefore, the row house could not become a shared household. She seems to have preferred Writ Petition bearing No.1174 of 2007 in which it was categorically held that for the last 23 years wife was residing separately from the husband and at no time she was residing with the husband in the row house where husband was residing. Therefore, now the rowhouse could not be called as her matrimonial house. In the context of these facts it has to be found out whether the learned Magistrate was justified in passing the order or the learned Additional Sessions Judge was justified in upholding that order.

8. Learned counsel for the applicant placed reliance on the judgment of this Court in case of Kishor Shrirampant Kale -vs- Sou. Shalini w/o Kishor Kale and ors, reported in 2010 ALL MR (Cri). 1386. I have gone through the observations therein. For a Magistrate to be able to invoke jurisdiction to pass any order under Section 3 of the Protection of Women from Domestic Violence Act, 2005, it would have to be prima facie shown that the husband has committed act of domestic violence. A reference to the definition of 'domestic violence' under the Act, would show that domestic violences are of various types. As far as clause (b) to (d)are concerned, since the parties were residing separately there was no question of any such violence being committed by the husband against wife. Violence referred to in clause (a) is about harm or injury or endangering the health, safety, life, limb or well being, whether mental or physical of the aggrieved person and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. As far as physical, sexual and verbal and emotional abuse is concerned, the probability of husband having inflicted such abuses is ruled out because the parties were residing separately for the last 23 years. This leaves only economic abuse which has been explained in explanation (iv) of the Section as under:-

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and\

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

9. It would be necessary for the wife to show that she has been subjected to such economic abuse. Now there is no evidence to show before filing of the application wife was entitled to any economic or financial resources which she was deprived of giving her the cause of action to approach the learned Magistrate invoking provisions of Domestic Violence Act. It had been categorically held in the proceeding before the Family Court bearing No. 23 of 2006, maintained in Writ Petition No.1174 of 2007, in para 38 of the judgment in writ petition that the wife was at no point of time residing in the row house and that house, therefore, could not be called her matrimonial home. Therefore, there is no question of husband having deprived the victim wife of economic or financial resources. As far as maintenance is concerned, she was already getting maintenance under the orders of J. M. F. C. Amravati as also the Civil Judge Senior Division, Amravati, it could not be said that she was entitled to anything more which she was deprived by the husband in order to enable the Magistrate to assume jurisdiction at the interim stage of the proceeding . Therefore, prima facie there was nothing to show that wife was entitled to an order pending hearing of her case of domestic violence against husband. Therefore, in my view the learned Magistrate was not justified in passing the impugned order and the learned Additional Sessions Judge too was not justified in maintaining that order upon appeal.

10. Revision application is, therefore allowed. The impugned order dated 16.6.2008, passed by the learned Judicial Magistrate, First Class, Cantonment Court, Pune, maintained in appeal by the learned Sessions Judge is quashed and set aside.

Revision application allowed.