Ramesh Kumar v. Smt. Madhu Bala

are ; (i) whether the learned trial court as well as the lower appellate court have exceeded their jurisdiction, while awarding the maintenance to the respondents-wives ; (ii) what is the object and scope of Section 12 of the Act ? Facts first. Marriage between the parties took place on

23.2.2006 as per the Hindu rites, ceremonies and customs of the parties. Crl. Rev. No.77 of 2011 3 After their marriage, the parties had been living together at the parental house of the petitioner at Village Naurangpur, Distt. Gurgaon. It has been alleged by the respondent-wife that although at the time of her marriage with the petitioner, her parents gave sufficient dowry articles, details whereof has been provided in para 4 of the judgment of trial court, yet her husband and in-laws were not happy with the dowry articles. They demanded motor cycle, sister-in-law started demanding ear-rings, mother-in-law taunted her that she has not brought quality clothes in dowry. Likewise, father-in-law raised a demand of Rs.1.00 lac on the pretext that he was unemployed. A daughter namely; Suman and son namely; Priyanshu were born out of this wedlock. The incident that took place on 5.4.2009 was that the petitioner, her daughter Suman and her sister Madhu Bala were thrown out of matrimonial home.

It is also stated by the respondent wife that she was pregnant at that time. It is also alleged that marriage of Madhu Bala, her sister was solemnised with the brother of the petitioner. Consequently, respondent-wife, her daughter Suman and her sister Madhu Bala came at their parental Village Mohammadpur Rohi and the petitioner as well as his family members refused to return the dowry articles. It is the further allegation of respondent-wife that a Crl. Rev. No.77 of 2011 4 Panchayat was also convened but the petitioner and his family members did not relent. It has further been alleged that petitioner and his family members had 3 acres of land and they had been residing in a big house constructed on the said land. The house was double storeyed having 10 rooms. The next allegation levelled by the respondent-wife was that her younger brother-in- law Shanker was married with Promila of Village Kamiri, Distt.

Hisar, but said Promila was divorced after paying a sum of Rs.4.00 lacs and thereafter, the petitioner and his family members were looking for similar opportunity to get rid of her and also of her sister Madhu Bala. She also alleged that her husband was an Electrical Engineer in a private company earning @ Rs.35000/- per month. Thus, she prayed that a direction be issued to pay her money for maintenance, food, clothes, medicines and separate accommodation in the shared house. Thus, she filed an application under Section 12 of the Act. The petitioner and his other family members put appearance and filed their replies. Petitioner-husband alleged that the application was without any merit . He further alleged that FIR No.96 of 2010 dated 10.3.2010 had been registered against him and his family members under Sections 498-A, 406, 323/34 IPC. He and his family Crl. Rev. No.77 of 2011 5 members were arrested and were sent to judicial custody in that case.

Thereafter, they were released on bail. Other objections were also taken like the application was time barred, the court at Fatehabad was not having jurisdiction and that the application was not in prescribed proforma. However, the factum of marriage and their residential house in Village Naraungpur, Distt. Gurgaon were not disputed. It was also denied that any demand for dowry was raised. Thus, the petitioner-husband concluded by saying that the application was without any merit and was liable to be dismissed. After hearing the learned counsel for the parties and going through the record of the case, the learned trial court arrived at the conclusion that the respondent-wife and her children were entitled for maintenance @ Rs.6000/- per month, whereas Rs.5,000/- per month was granted for suitable accommodation. It was so held by the learned Additional Chief Judicial Magistrate, Fatehabad, vide his judgement dated 11.6.2010.

Likewise, in the second case, filed by Madhu Bala against Dinesh Kumar and others, the learned trial court granted her maintenance @ Rs.2000/- p.m. in addition to Rs.2,000/- p.m. as charges for rented accommodation, vide judgement dated 11.6.2010. Crl. Rev. No.77 of 2011 6 Dissatisfied with the above said judgement, petitioner- husband filed his appeal before the learned Additional Sessions Judge, Fatehabad, who vide impugned judgement dated 13.11.2010 dismissed the appeal of the petitioner, thereby upholding the judgement dated 11.6.2010 passed by the learned Additional Chief Judicial Magistrate, Fatehabad. Feeling aggrieved against the judgement dated 13.11.2010 passed by the learned Additional Sessions Judge, Fatehabad and also the judgment dated 11.6.2010 passed by the learned Additional Chief Judicial Magistrate, Fatehabad, the petitioner has approached this court by way of instant criminal revision petition.

Learned Senior counsel for the petitioner vehemently contended that the learned courts below have exceeded their jurisdiction, while granting the maintenance to the respondents on much higher side. Similarly, the amount awarded for accommodation was also wholly unjustified being on higher side. Learned Senior counsel further contended that the learned courts below have proceeded on surmises and conjectures, while passing the impugned judgements, in as much as the income of the petitioner has been assessed by the learned courts below without any basis. Learned Senior counsel further contended that the income of the petitioner Crl. Rev. No.77 of 2011 7 was only Rs.3,000/- per month and the rented accommodation in Village would be easily available @ Rs.1000-2000 per month, whereas the learned courts below have granted Rs.5000/- per month, which is again on higher side. Learned Senior counsel concluded by submitting that the maintenance under Section 12 of the Act can not, under any circumstances, be more than the amount under Section 125 Cr.P.C. Since the learned courts below have failed to apply their judicious mind, while passing the impugned judgments, the same were liable to be set aside, allowing the instant revision petitions.

The learned Senior counsel also relied upon the judgements of the Hon'ble Supreme Court in Dev Narayan Halder Vs. Anushiri Halder, 2003 Crl. Law Journal, 4470 and S.R. Batra and another Vs. Smt. Taruna Batra, AIR 2007 S.C. 1118. Per contra, learned counsel for the respondents-wives submitted that the respondents in both the cases were ready and willing to go and stay with the petitioners-husbands in their matrimonial home without putting any pre-condition. He further submitted that in case the petitioners- husbands are ready to allow the respondents-wives to stay in their matrimonial home, they are ready to withdraw this litigation initiated at their instance. When this proposal was put to the learned Senior counsel for the Crl. Rev. No.77 of 2011 8 husbands-petitioners, he submitted that the petitioners were not ready to accept this offer, however, no reason is forthcoming. Faced with the above said non-cooperative attitude of the petitioners-husbands, learned counsel for the respondents-wives gave an alternative offer to the effect that in case the petitioners-husbands may give even one room out of their residential house having 10 rooms, as noted above, for both the . respondents-wives and two children, all the four would be staying only in one room.

However, even this offer is not acceptable to the petitioners-husbands. The third offer made on behalf of the respondents- wives was that if the petitioners-husbands may provide them shared household in lieu of the amount of rent granted by the courts below, the respondents-wives were ready to relinquish their claim in that regard, but it is also not acceptable to the petitioners-husbands. Learned counsel for the respondents-wives then contended that the petitioners-husbands have since not paid the maintenance amount in meticulous compliance of the judgements passed by the learned courts below, they were not entitled to be heard on merits of the case. Learned Senior counsel, on instructions from father of the petitioners-husbands, present in court, submits that petitioners-husbands had Crl. Rev. No.77 of 2011 9 been paying @ Rs.4000/- per month proceeding on this expectation that this court would reduce the amount @ Rs.4000/- month.

However, learned counsel for the respondents-wives submitted that the petitioners-husbands had never been paying the awarded amount of maintenance regularly and the amount @ Rs.4000/- has also been paid only for the last six months. Be that as it may, it is an admitted position on record that the petitioners-husbands had not been paying the amount of maintenance regularly and they are in arrears thereof. Besides, the petitioners-husbands are not ready to accept any of the abovesaid three offers made on behalf of the respondents-wives. I have heard the learned counsel for the parties and with their able assistance have gone through the record of the case. After giving my thoughtful consideration to the rival contentions raised and keeping in view the peculiar facts and circumstances of the present case, including the conduct of the parties, this court is of the considered opinion that both these Criminal Revision Petitions are without any merit and are liable to be dismissed for more than one reasons, to be recorded hereinafter.

Firstly, considering the arguments raised by the learned Crl. Rev. No.77 of 2011 10 Senior counsel separately as well as collectively, the same have been found without any substance. It is the settled proposition of law that the rules of procedure are handmaids of justice and are meant to be followed for advancing the cause of justice. It is also the settled principle of law that revisional jurisdiction of this court is limited one, which can be exercised only when a patent illegality or perversity is pointed out in the judgements under challenge. Even after critically analysing the impugned judgements, neither this court has found any manifest illegality in the impugned judgements nor any has been pointed out by the learned Senior counsel. True import and interpretation of the relevant provisions of law apart, which would be dealt with in later part of the judgement, the conduct of the parties, in the case like the present one, is also one of the relevant factors, for arriving at the just decision.

In the present case, as noted above, obstinate, arrogant and incorrigible conduct of the petitioners-husbands speaks volume about it, particularly when it is tested in the context that out of the three reasonable offers made by none else but their own wives, who alongwith children have been compelled to stay away from their matrimonial home because of the unbecoming behaviour of the petitioners-husbands, none of the offer was acceptable to them. Crl. Rev. No.77 of 2011 11 The scope of Section 12 of the Act is very wide, as the bare reading thereof suggests. Section 12 of the Act reads as under :- “Application to Magistrate – (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act : Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent : Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or Crl. Rev. No.77 of 2011 12 payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.” A bare reading of the provisions of law, reproduced above, would make it clear that the legislative intent behind it is to achieve the Crl. Rev. No.77 of 2011 13 laudable object, which cannot be allowed to be circumvented allowing the technicalities to play a destructive role. When the tenor of the impugned judgements is tested on the touch stone of the object of the Act and the scope of Section 12 thereof, this court has no hesitation to hold that the learned courts below have come to the judicious conclusion, while rendering the impugned judgements. I say so because in the given fact situation of the present case, while considering the arguments raised by the learned Senior counsel on the basis of the pleadings of the parties, it does not appeal to reason that the stand taken by the petitioners-husbands was justified in any manner and at any stage of this wholly unwarranted litigation.

So far as the judgements cited by the learned Senior counsel are concerned, there is no dispute regarding the law laid down therein. However, the judgements are clearly distinguishable on facts and are of no help to the petitioners. The view taken by this court finds support from the recent judgement of the Hon'ble Supreme Court in V.D.Bhanot Vs. Savita Bhanot, (2012) 3 SCC 183. The relevant observations made by the Hon'ble Supreme Court, which can be gainfully followed in the present case read as under :- “The attitude displayed by the petitioner has once Crl. Rev. No.77 of 2011 14 again thrown open the decision of the High Court for consideration. 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. On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the petitioner at Mathura, being his official residence, while in service. After more Crl. Rev. No.77 of 2011 15 than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum of Rs.6,000/- which the petitioner was directed by the Magistrate by order dated 8th December, 2006, to give to the respondent each month.

By a subsequent order dated 17th February, 2007, the Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the respondent wife to reside in her matrimonial home in Mathura. Thereafter, on the petitioner's retirement from service, the respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the petitioner to let the respondent live on the Ist Floor of House No.D-279, Nirman Vihar, New Delhi, and if that Crl. Rev. No.77 of 2011 16 was not possible, to provide a sum of Rs.10,000/- per month to the respondent towards rental charges for acquiring an accommodation of her choice. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005, which defines “domestic violence” in wide terms, and accordingly, no interference is called for with the impugned order of the High Court.

However, considering the fact that the couple is childless and the respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified. We, therefore, modify the Crl. Rev. No.77 of 2011 17 order passed by the High Court and direct that the respondent be provided with a right of residence where the petitioner is residing, by way of relief under Section 19 of the PWD Act and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate and in terms of the said order, the respondent is receiving a sum of Rs.6000/- per month towards her expenses.” Learned counsel for the respondents has pointed out that in compliance of the order dated 13.1.2011 passed by this court, an amount of Rs.5000/- in each of these petitions have been deposited, which was meant to be paid to the respondents-wives as litigation expenses for these petitions.