Criminal Appeal No. 30 of 2020 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.181 of 2023 Lipika Swain @ Patra …. Petitioner Mr. B.K. Routray, Advocate -Versus- State of Odisha & others Opposite Parties Mr. H.K. Panigrahi, ASC (O.P.No.1) Mr. U.C. Dora, Advocate (O.P.Nos.2 to 5) …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:02.09.2024 1. Instant revision petition under Sections 397 and 401 Cr.P.C. is at the behest of the petitioner assailing the impugned judgment dated 14th February, 2023 passed in Criminal Appeal No.30 of 2020 by learned 3rd Additional Sessions Judge, Cuttack, whereby, the decision of the learned J.M.F.C.(R), Cuttack dated 26th February, 2020 in connection with Crl. Misc. Case No.93 of 2016 stood modified allowing Rs.4000/- each towards house rent and maintenance and a sum of Rs.50,000/- (Rupees Fifty Thousand) payable to her as compensation under Section 22 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the D.V. Act’) thereby enhancing the said amounts from Rs.2000/- and Rs.3000/- respectively on the grounds inter alia that the same is not to be legally tenable and hence, liable to be interfered with and set aside with consequential orders. Page 1 of 16 2. As informed, petitioner No.3 has expired in the meantime and hence, the relief and direction sought for by the petitioner is now directed against opposite party Nos.2, 4 and 5 only. 3. According to the petitioner, the impugned judgment as at Annexure-1 is illegal, perverse and unjustified, hence, to be
Legal Reasoning
modified or quashed as deemed necessary. The contention of the petitioner is that the learned Appellate Court failed to consider the material evidence with a plea that the relief was confined to the quantum of maintenance on the basis of a concession of the learned counsel engaged by the petitioner. It is pleaded that the learned Appellate Court, instead of appreciating the unrebutted oral evidence of the witnesses overwhelming and conclusive in nature to prove the financial status of the opposite parties, ignored the same, hence, has led to allowing meagre amount of maintenance and on other heads and instead, it was swayed away considering the disability of opposite party No.2, namely, husband of the petitioner. It is further pleaded that there is no justifiable reason to not direct opposite party Nos.2 to 5 to return the cash of Rs.70,000/- (Rupees Seventy Thousand) with gold ornaments and other articles, which belong to the petitioner exclusively and therefore, the impugned decision in appeal is liable to be set aside with fresh directions issued. 4. Heard Mr. Routray, learned counsel for the petitioner; Mr. Panigrahi, learned ASC for the State and Mr. Dora, learned counsel for opposite party Nos.2, 4 & 5. 5. Mr. Routray, learned counsel for the petitioner reiterated the facts described herein above and contended that the petitioner is substantially prejudiced in view of the impugned decision under Annexure-1, which has arrived following the order dated 15th December, 2022 in CRLREV No.407 of 2022, by which, the Page 2 of 16 matter was remanded back for a fresh decision by the learned Appellate Court, which while entertaining Criminal Appeal No.30 of 2020, dismissed the same as against the order of maintenance and other relief(s) allowed by the Court of 1st instance. The contention of Mr. Routray, learned counsel for the petitioner is that not only the house rent and maintenance allowed under Sections 19 and 20 of the D.V. Act to be inadequate, learned Appellate Court was required to consider a reasonable sum for compensation instead fixed at Rs.50,000/- (Rupees Fifty Thousand) only. According to Mr. Routray, learned counsel, learned Appellate Court issued no direction with regard to return of cash, gold ornaments and other items against opposite party Nos.2 to 5 in spite of relief sought for in that regard. It is further contended that a case of domestic violence is prima facie made out against the in-laws of the petitioner including her husband, namely, opposite party No.2 and the petitioner having no source of independent income, whereas, opposite party No.2 husband is a Pathology Technician earning not less than Rs.45,000/- (Rupees Forty-Five Thousand) per month and brother-in-law being a Software Engineer earns more than Rs.1,00,000/- (Rupees One Lakh) a month, hence, befitting her living standard and status, learned Courts below and in particular, learned Appellate Court ought to have considered the same and all such other issues involved but unfortunately, there has been a lip service only with paltry amounts allowed towards house rent and maintenance at Rs.4000/- each and compensation with a sum of Rs.50,000/-. 6. Noted down the submission of Mr. Panigrahi, learned counsel for the State. 7. Mr. Dora, learned counsel appearing for opposite party Nos.2, 4 & 5 submits that learned Appellate Court enhanced the Page 3 of 16 maintenance amount so also the sum towards house rent and further allowed a compensation of Rs.50,000/- (Fifty Thousand) and in so far as opposite party No.2 is concerned, he is a person with disability, the fact which is borne out of the record after having been taken judicial notice of by the Court in appeal. In so far as allegations against the private opposite parties are concerned, according to Mr. Dora, learned counsel, the same are false, fabricated and concocted one, therefore, in absence of any such clear and positive evidence with regard to any domestic violence, any such directions issued by the learned Courts below are unjustified, inasmuch as, no further relief in favour of the petitioner could be granted considering any such plea as presently put forth. 8. Undisputed facts are briefly stated herein below. 9. As revealed from the record, the petitioner filed an application under Section 12 of the D.V. Act before the Court of learned J.M.F.C.(R), Cuttack registered as Crl. Misc. Case No.93 of 2016 being the aggrieved person seeking the Court’s indulgence to pass necessary orders of restraint under Section 18 of the D.V. Act with the alternative accommodation as per Section 19 besides monetary relief sought for in terms of Section 20 thereof including compensation. In the said proceeding, the petitioner examined herself and another witness and proved a copy of the FIR, whereas, none of the private opposite parties adduced any evidence. Considering the pleadings of both sides, learned J.M.F.C.(R), Cuttack proceeded to examine the evidence led from the side of the petitioner and being satisfied that she is married to opposite party No.2 and since has been subjected to mental torture and hence, domestic violence having been committed during the existence of such marital relationship and that the Page 4 of 16 parties do fall within the purview of domestic relationship sharing a household as defined in Sections 2(f)&(s) of the D.V. Act held and concluded that the private opposite parties have to be restrained from committing any such domestic violence and directed payment of a sum of Rs.2000/- towards alternative accommodation in case the restraint order fails and also maintenance at Rs.3000/- per month as per Section 20 of the D.V. Act. As mentioned before, CRLREV No.407 of 2022 was
Decision
disposed of on 15th December, 2022 followed by a remand since the appeal was dismissed being oblivious of the fact that learned J.M.F.C.(R), Cuttack did allow maintenance and granted such other relief(s), which was not challenged thereafter. On remand of the matter by this Court with the disposal of CRLREV No.407 of 2022, the learned Appellate Court after a fresh hearing passed the judgment under Annexure-1. Being further aggrieved, the petitioner knocked the portals of this Court with the present revision seeking enhancement of maintenance, sum towards rental accommodation with such other expenses payable at every month from the date of the application under Section 12 of the D.V. Act filed. The compensation amount is also sought to be enhanced with a specific direction to opposite party Nos.2,4 & 5 to return Rs.70,000/- (Rupees Seventy Thousand), gold ornaments and other valuable articles received by them, as the same are exclusively belonging to the petitioner. 10. The question is, whether, the decision in Criminal Appeal No.30 of 2020 vide Annexure-1 is liable to be quashed or is required to be modified? 11. As earlier stated, the petitioner adduced oral evidence by claiming that opposite party No.2 is a Pathology Technician earning not less than Rs.45,000/-. It was also pleaded by the Page 5 of 16 petitioner before the Court of learned J.M.F.C.(R), Cuttack that opposite party No.3, namely, deceased father-in-law being a retired employee was then receiving a sum of Rs.20,000/- per month towards pension and brother-in-law, namely, opposite party No.5, a Software Engineer having handsome salary of more than Rs.1,00,000/-. With respect to such claim, save and except, the oral testimony with affidavits filed, the petitioner submitted no any documentary evidence. Admittedly, none of the respondents, against whom the relief(s) have been sought for, contested such plea and ever adduced any rebuttal evidence. Considering the materials available on record, the learned J.M.F.C.(R), Cuttack passed the order dated 26th February, 2020, while disposing of the application filed under Section 12 of the D.V. Act. 12. In fact, the Apex Court in Rajnesh Vrs. Neha & Another (2021) 2 SCC 324, while dealing with a domestic dispute, elaborately considering the issues involved with overlapping jurisdictions, issued series of directions to be carried out by the parties involved by filing affidavits disclosing their assets and liabilities for determination of the quantum of maintenance payable to the aggrieved person taking into account the criteria enumerated therein. In the case at hand, though the decision in Rajnesh (supra) has been referred to by the learned Appellate Court, at no point of time, the parties have ever been directed to file affidavits as per the mandate. The decision in Rajnesh (supra) arrived later to the final order of the learned J.M.F.C.(R), Cuttack disposed of in the month of February, 2020. But such a direction could have been issued by the learned Appellate Court being a Court of facts and law as the private opposite parties contested the appeal even though did not participate earlier in the DV proceeding. In other words, in adherence to the directions issued in Rajnesh (supra), Page 6 of 16 the learned Appellate Court ought to have directed the private opposite parties including the petitioner to file affidavits disclosing individual rights and liabilities with respect to the assets possessed by them for a decision on such monetary and other relief(s), however, no such exercise has indeed taken place. 13. In the considered view of this Court, the law enunciated by the Apex Court in the case of Rajnesh (supra) has not been sincerely applied by the learned Appellate Court while disposing of the appeal. In absence of any such affidavits, it is always difficult for a Court to examine and appreciate the claim and defence of both the sides while dealing with matrimonial dispute especially considering monetary relief(s) and therefore, the learned Appellate Court should have directed the parties to file affidavits in accordance with the above decision of the Apex Court. The Court is of the further view that the learned Appellate Court has had an option to direct the learned J.M.F.C.(R), Cuttack to further consider the claim of the petitioner for enhanced maintenance and other relief(s) with a direction to opposite party Nos.2 to 5 to furnish all such materials with affidavits filed in confirmity with the aforesaid decision. Neither the learned Appellate Court did bother to receive any such evidence directing opposite party Nos.2 to 5 or issue any such direction for the learned J.M.F.C.(R), Cuttack to carry out in the light of the settled law decided in Rajnesh (supra). With the evidence on record, as available, the Court is of the conclusion that both the learned Courts below had a guesswork so to say in determining the maintenance amount and granting other monetary relief(s) based on oral evidence of the petitioner. The Court is of the further view that such exercise is really needed and to be worked out at the ground level with a direction to the learned J.M.F.C.(R), Cuttack to reconsider the quantum of Page 7 of 16 maintenance and other relief(s) without disturbing the order in appeal to the extent maintaining the amount of Rs.4000/- each under Sections 19 and 20 of the D.V. Act payable to the petitioner provisionally till a final order is passed at the end. Any such compensation amount as has been challenged by the petitioner to be disproportionate is also to be duly examined besides the plea for return of cash and articles, for which, the proceeding under Section 12 of the D.V. Act is required to be restored to file in the interest of justice. 14. For better appreciation and guidance of the learned J.M.F.C.(R). Cuttack, the relevant directions issued by the Apex Court in Rajnesh (supra) and extracts thereof are reproduced herein below: “In view of the foregoing discussion as contained in Part B–I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India: (a) Issue of overlapping jurisdiction To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that: (i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding; (ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding; (iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding. Page 8 of 16 (b) Payment of Interim Maintenance The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings Court/District before Court/Magistrates Court, as the case may be, throughout the country. concerned Family the (c) Criteria for determining the quantum of maintenance For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B-III of the judgment. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case. (d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B-IV above. (e) Enforcement/Execution of orders of maintenance For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.” 15. At the cost of repetition, it is concluded that the learned J.M.F.C.(R), Cuttack shall have to proceed with the matter in order to determine the quantum of maintenance and other sums payable towards monetary relief in favour of the petitioner regard being had to the above directions and keeping in view the criteria stated therein followed by appropriate orders. In fact, this Court is really handicapped to consider the enhancement of maintenance and other amounts besides compensation, as has Page 9 of 16 been pleaded by the petitioner due to absence of documentary evidence and hence, refrained itself considering same again by resorting to a guesswork. 16. At the same time, while dealing with matrimonial disputes, it is to be kept in mind that any such order towards maintenance and such other relief(s) should not be disproportionate and disadvantageous to the respondents, who must have the means to provide the same befitting the status of aggrieved person in a domestic relationship with them. A balance can be maintained provided all such material evidence is lying at the disposal of the Court dealing with the application under Section 12 of the D.V. Act. It is of course at the liberty of the Court to grant any such relief in favour of the aggrieved person, if in case the respondents do not file any such affidavits needed for the purpose and in such an eventuality, it shall have the powers to grant maintenance and other monetary relief(s) based on the materials made available by the aggrieved person, who may not have all the means and resource to collect information and inputs which always remain within the knowledge of the other side and hence, difficult to be furnished. Since, opposite party No.2 in particular appears to have participated in the appeal and did not challenge the order of maintenance and other reliefs granted, it would, therefore, be proper to direct both the sides to bare it all the rights and liabilities as per the decision in Rajnesh (supra) in order to enable the learned J.M.F.C.(R), Cuttack to reconsider every such plea in favour of and against for a final order. 17. In so far as return of the cash and gold ornaments besides other articles as demanded by the petitioner is concerned, the same having been allegedly received by opposite party No.2, being the husband and parents-in-law, namely, opposite party Page 10 of 16 Nos.3 & 4, the same has not been taken into consideration by both the learned Courts below. Mr. Routray, learned counsel for the petitioner refers to list of the gold ornaments with other valuables described by the petitioner and submits that a direction is required to be issued to the opposite parties to return the same. So far as the power of a Magistrate to deal with such articles is concerned, it emanates from Section 19(8) of the D.V. Act which stipulates that the respondents may be directed to deliver back possession of stridhan property or any other property or valuable security to which the aggrieved person is entitled to. At this juncture, it would be profitable to quote a judgment of the Apex Court in Pratibha Rani Vrs. Suraj Kumar and Another AIR 1985 SC 628 and Maya Gopinathan Vrs. Anoop S.B. & Another in SLP(C) No.13398 of 2022 decided on 24th April, 2024, wherein, it has been held that stridhan property does not become a joint property of the wife and in-laws and, as such, the husband has no title or independent domain over the property as owner thereof. In fact, such a view has been expressed with the conclusion as above in Maya Gopinathan (supra), while dealing with a matrimonial appeal against an order of a Family Court. 18. In Pratibha Rani (supra), the Apex Court observed that the stridhan property of a married woman, even if placed in the safekeeping of her husband or in-laws, the latter would be considered to be trustees and therefore, are destined to return the same when commanded by her. Such was the decision in connection with a criminal case, wherein, the husband and in- laws were prosecuted for an offence of criminal breach of trust. 19. As to what rights women do have in respect of any such stridhan and other property while being a domestic relationship has been elaborately discussed by the apex Court in Pratibha Rani Page 11 of 16 (supra). To facilitate the learned J.M.F.C.(R), Cuttack to reach at a proper decision, the Court is inclined to reproduce the relevant extract of the said decision and the same is as follows: “This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are mainly concerned with that part of stridhan which is the absolute property of a married women during coverture. Sir Gooroodas Banerjee in 'Hindu Law of Marriage and Stridhan' while describing the nature of stridhan quoted Katyayana thus: "Neither the husband, nor the son, nor the father, nor the brother, has power to use or to alien the legal property of a woman. And if any of them shall consume such property against her own consent he shall be compelled to pay its value with interest to her, and shall also pay a fine to the king... Whatever she has put amicably into the hands of her husband afflicted by disease, suffering from disease, or sorely pressed by creditors, he should repay that by his own freewill. " At another place while referring to the nature of a husband's rights over stridhan during coverture, the author referring to Manu says thus: "... and by the law as expounded by the commentators of the different schools, the unqualified dominion of the husband is limited to only some descriptions of the wife's property, while as regards the rest he is allowed only a qualified right of use under certain circumstances specifically defined." the nature of stridhan Similarly, while describing generally, which is known as saudayika, the author says thus: "First, take the case of property obtained by gift. Gifts of affectionate kindred, which are known by the name saudayika stridhana, constitute a woman's absolute property, which she has at all times independent power to alienate and over which her husband has only a qualified right, namely, the right of use in times of distress." Page 12 of 16 The entire classical text on the subject has been summarised by N.R. Raghavachariar in 'Hindu Law' (5th Edn) at page 533 (section 487) where the following statement is made: "487. Powers During Coverture. Saudayika, meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will, she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to such rights. Ordinarily, the husband has no manner of right or interest in it. But in times of extreme distress, as in famine, illness or imprisonment, or for the performance of indispensable duty the husband can take and utilise it for his personal purposes, though even then he is morally bound to restore it or its value when able to do so. But this right is purely personal to him and cannot be availed of by a holder of a decree against the husband, and if the husband dies without utilising the property for the liquidation of his debts, his creditors cannot claim to proceed against it in the place of her husband." To the same effect is Maines' treatise on Hindu Law at page 728. The characteristics of Saudayika have also been spelt out by Mulla's Hindu law at page 168 (Section 113) which gives a complete list of the stridhan property of a woman both before and during coverture, which may be extracted thus: "113. Manu enumerates six kinds of stridhan: 1. Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni). 2. Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence her parents of husband (adhyavanhanika) that her to of 3. Gifts made in token of love, that is, says Katyayana, those made through affection by her father-in-law and mother-in-law (pritidatta), and those made at time the of her making obeisance at the feet of elders (padavan danika). Page 13 of 16 4. Gifts made by father. 5. Gifts made by mother. 6. Gifts made by a brother." It is, therefore, manifest that the position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes-she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt.” 20. In view of the above decision, the aggrieved person has a right to receive back her property. As earlier discussed, a Magistrate does have the jurisdiction to ensure it exercising powers under Section 19(8) of the D.V. Act. So, therefore, in the present case, since the petitioner is alleged of a victim of domestic violence, while being in a domestic relationship with opposite party Nos.2 to 5, apart from any such reliefs, monetary as well as ancillary, she is entitled to, receive back all the articles which are exclusively owned by her. The inevitable conclusion is that both the Courts below failed to discharge the statutory obligation in not dealing with the plea for return of stridhan or such other property claimed to have been received by opposite party Nos.2 to 5 at the time of her marriage. It is well settled law that a pure and simple entrustment of stridhan property or such other property to the husband without creating any right in his favour except for its safekeeping do not confer on him, the right to use it to the detriment of the wife, which has been clearly elucidated by Page 14 of 16 the Apex Court in Pratibha Rani (supra). If there was any legal necessity, which may have compelled the husband or in-laws to deal with any such property or cash received at the time of marriage not being detrimental to the interest of the wife, as is also well settled, shall have to be taken judicial notice of by the Courts while dealing with the plea for its return. One is also to bear in mind that the articles received at the time of marriage by the husband and in-laws not for any such exclusive use by the wife shall have to be excluded from the list of items while entertaining the plea for return in any such proceeding while exercising powers under Section 19(8) of the D.V. Act. Having stated so, the Court is of the conclusion that the petitioner since requested both the Courts below to return the articles and to direct the private opposite parties accordingly and the same having not been attended to and addressed, a further direction is necessary in that regard as this Court is unable to undertake such an exercise, which requires due enquiry. It is, hence, to be concluded that the learned J.M.F.C.(R), Cuttack, apart from considering enhancement of maintenance and other sums on monetary relief(s) is needed to exercise jurisdiction under Section 19(8) of the D.V. Act vis-à-vis the return of the articles claimed to have been possessed by the petitioner lying in the custody and enjoyment of opposite party Nos.2, 4 and 5 and if necessary, for the said purpose, to direct enquiry and inventory to be held and carried out, in the manner, it is considered just and expedient. 21. Hence, it is ordered. 22. In the result, the revision petition stands allowed. As a logical sequitur, the impugned judgment dated 14th February, 2023 passed in Criminal Appeal No.30 of 2020 by learned 3rd Additional Sessions Judge, Cuttack and the decision of the learned Page 15 of 16 J.M.F.C.(R), Cuttack dated 26th February, 2020 in connection with Crl. Misc. Case No.93 of 2016 are hereby set aside with a direction to the private opposite parties to continue payment of monthly maintenance @ Rs. 4000/- to the petitioner with similar amount towards alternate rental accommodation during the interregnum till disposal of the proceeding under Section 12 of the D.V. Act, which is, hence, restored for its disposal on merit in the light of the directions issued and settled law discussed herein above. It is further directed that learned J.M.F.C.(R), Cuttack shall ensure such enquiry as has been directed with the necessary evidence received from the both sides for considering the enhancement of monetary relief(s) including compensation and to conclude the aforesaid exercise with the disposal of Crl. Misc. Case No.93 of 2016 as soon as possible preferably within a period of three months from the date of receipt of a copy of this order. 23. In the circumstances, however, there is no order as to costs. Alok (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 03-Sep-2024 10:57:09 Page 16 of 16