Bangalore District Court
Sheetal Phulwani D/O. Late Suresh Kalra vs Manish Phulwani on 7 July, 2022
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
TRAFFIC COURT - IV, AT BENGALURU
DATED THIS 7TH DAY OF JULY 2022.
PRESENT : Sri Gagan M.R,
M.M.T.CIV, Bengaluru.
Crl.Misc.No.26/2020
PETITIONER Sheetal Phulwani D/o. Late suresh Kalra,
W/o. Manish Phulwani, Age: 34 years,
R/at No.205, 1st floor, 'C' Block,
sangeetha apartments, 5th cross,
Malleshwaram, Bangalore
V/s
RESPONDENTS 1. Manish Phulwani, S/o. Late Thaku
Phulwani, Aged: 38 years, Presently
residing at No.16, Sterling Estates,
walkers road George Town Grand
Caymen Island KY11001.
2. Neetu Phulwani, W/o. Late Thaku
Phulwani, aged: 58 years,
Both permanent resident of No.201,
2nd floor, Rekha Apartments,
Ulhasnagar, Maharashtra 421001
Crl.Misc.No.26/2020
2
JUDGMENT
This petition is filed by the petitioner under Sec.12 of the Protection of Women from Domestic Violence Act, 2005, seeking reliefs under Sec.19(1)(f), 20 and 22 of the said Act.
2. The brief facts of the case of petitioner is as follows:
The marriage between the petitioner and respondent No.1 was solemnized on 15082010 at Monica Hall, Ulhasnagar, Thane District, Maharashtra and the marriage was performed as per Hindu rites and customs. The said marriage was an arranged marriage. The petitioner contended that at the time of marriage the respondent No.1 is working as salesman in Lakme Fashions at Dubai and he was drawing the salary of DHS 2500, equivalent to Indian rupees of Rs 67,500/. Petitioner was assured she will join respondent no 1 in Dubai after marriage and asked to quit the job.
It was alleged that the petitioners parents given gold jewellery's weighing around 225 gms to respondents as dowry,the petitioner joined respondents in the matrimonial home at thane during that period she was subjected to verbal abuse by respondent no 2, later after two months respondent no 1 alone traveled to Dubai leaving Crl.Misc.No.26/2020 3 petitioner with respondent no 1 at Thane, during her stay she has faced mental cruelty in the hands of respondent no 1, the petitioner was facing humiliation insults on her physical looks, since she was deprived of any income she was forced to go to job to meet her basic necessities even at that time she was burdened to do household work in morning and gone to job in night shifts this has impacted on her psychologically. But the respondent no 1 has not shown any interest to make arrangements for her travel to Dubai as per the promise, frustrated by this attitude she arranged Visa and flight tickets on her own and traveled to Dubai in the month of June 2011. Even in Dubai she was not treated well and she was forced to search for Job in Dubai as well and in the mean time in the guise of Surgery to his father the respondent no 1 demanded amount of Rs 2,50,000/ and in order to meet the said demand the respondent no 1 has sold gold bangles in Dubai. It was alleged she was subjected to mental cruelty in Dubai by respondent no 1.
It is alleged that the petitioner was subjected to verbal abuse again by respondents on account of not conceiving , finally in may 2014 when petitioner became pregnant she was sent to India , on her arrival at thane she was not provided proper care by respondent no.2, in August 2014 the petitioner gave birth to a female child , she was Crl.Misc.No.26/2020 4 not provided pre natal care as well though her delivery was through C section and she was force to go to Dubai and do job there leaving one month Baby, after one year the respondents did not even arrange for flight tickets of the daughter later with the help of mother petitioner taken her daughter to Dubai , where also she was subjected to physical and mental cruelty in the hands of respondent and she was thrown out of matrimonial home and she was neglected totally which constrained to take shelter in their parents home at Bangalore and later she has instituted criminal complaint and instant petition for residential accommodation under section 19, monetary reliefs under section 20 and compensation under section 22 of PWDV act.
3. After the registration of petition, notice has been issued to the respondents. Since at that time the corona pandemic is in its peak and international flights were cancelled to avoid spread of pandemic the notice was served on email and whats app as per the orders of court and notice were served on other respondent. One advocate has undertaken to file vakalat for respondents but he later did not turn up and hence court placed them exparte and proceeded further .
Crl.Misc.No.26/2020 5
4. In order to prove her case the petitioner has examined herself as PW.1 and got marked 9 documents as Ex.P.1 to 9. heard the counsel for petitioner.
5. The following points that arises for my consideration are as under;
1. Whether the Petitionerproves that she has been in domestic relationship with the respondent No.1?
2. Whether the Petitioner proves that she was in a shared household along with the respondents and she has been subjected to Domestic Violence and neglected by the respondents?
3. Whether the petitioner is entitled for the reliefs as sought in the petition?
4. What order?
6. On perusal of materials before this court, my findings on the above points are as follows;
Point No.1 : In the affirmative.
Point No.2 : In the affirmative.
Point No.3 : partly in the affirmative. Point No.4 : As per final order for the following;
Crl.Misc.No.26/2020 6 REASONS
7. POINT No.1 : In domestic violence case the petitioner has to prove the domestic relationship between the parties, she was residing with the respondents in a shared household, the domestic violence was caused by the respondents upon the petitioner. The respondents neglected the petitioner without any reasonable cause and the respondent No.1 is capable to maintain the petitioner.
8. In order to prove the aspect of her domestic relationship with respondents in her exparte evidence filed on affidavit reiterated whatever she stated in her complaint and affirmed that she was married to respondent no 1 socially and as per Hindu rites and rituals at ullasnagar Thane on 15/08/2010 and from that period she has narrated that she has domestic relationship continuously till she she was forced to go out of matrimonial house, the petitioner has narrated that initially she set up her matrimonial home at ullasnagar later moved to Dubai and came back to India when she became pregnant and after birth she once again moved to Dubai to join the respondent no 1 and later return to India. During that time she was having continuous domestic relationship as narrated by her with respondents. The Respondent did not appear to rebut the evidence of the aggrieved person. Thus from the unrebutted evidence of aggrieved person I Crl.Misc.No.26/2020 7 hold that the aggrieved petitioner and the Respondent had lived together in a shared household. Thus their relationship comes within the purview of domestic relationship as defined under the Act. Accordingly, this court answered point No.1 in the affirmative.
9. POINT No.2: The petitioner claims that during her her stay period in matrimonial homes at Dubai and ullasnagar she was living in the shared household and subject to domestic violence in various forms. Before proceeding further it is essential to know what is meaning of shared household and domestic violence as per the PWDV act.
Section 2 (s) defines shared household as follows;
(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, Crl.Misc.No.26/2020 8 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;
10. In the similar manner Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines domestic violence as follows:
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 Crl.Misc.No.26/2020 9
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
11. On the point whether the petitioner lived in shared household, as per her evidence on Oath she joined the respondents in their home at ullasnagar which is their own property and later even in Dubai she lived in the house which the respondent no 1 has taken for the purpose of living since here there is no case of denial hence it can be concluded that the parties to the petition are resided in shared household, the next point is whether the Respondents committed domestic violence on the aggrieved woman, PW1 in her evidenceonaffidavit reiterated whatever she stated in her complaint and stated that she was married with the Respondent no 1 namely in the year 2015 according to Hindu rites and rituals and led the conjugal life with him. Out of their wedlock she became mother of a female child who is presently six years old. It is stated that after consummation of marriage the respondent no 1 started to torture her verbally and mentally due to her physical appearance, later she was subjected to economic abuse but the petitioner continued to live in the conjugal life amid all adversities. It is stated that when petitioner moved to Dubai respondent no 1 continued his acts of violence in one or other form and she was not provided proper care, even during her pregnancy and post pregnancy period she has to face violation, the acts of the Crl.Misc.No.26/2020 10 respondents increased upon her day by day and ultimately driven out from the matrimonial home along with her minor child . Under such compelling circumstances she earns her livelihood by working as clerk on meager salary. Since last two years of her staying at paternal home, the respondent willfully neglected to maintain her and her minor child in spite of having sufficient means. She has no income of her own and it is very difficult for her to maintain herself and her school going minor daughter. The respondent is sales executive by profession and having landed properties. From all sources he is earning at least Rs. 80,000/ per month.
12. Since the respondents has not made any attempts to deny the case of petitioner by contesting the case the court has to rely on available materials on record. From the above evidence on record in respect of point (II), it appears that the evidence of atrocities and physical assaults upon the aggrieved woman by the respondent side is reliable and believable. From the evidence of the aggrieved woman it appears that there were incidents of violence on the aggrieved woman by the respondents. Since the respondent has not been able to prove that no form of violence was committed by him against the aggrieved woman. relying on the evidence of the aggrieved woman , I hold that the aggrieved person was subjected to domestic violence in the form of physical, mental and economic Crl.Misc.No.26/2020 11 abuse by the Respondent. In view of the above, it is seen that the aggrieved woman is succeeded to prove her case against the respondent. It is seen that the respondent side inflicted both physical and mental torture upon the aggrieved woman and she was driven away from her matrimonial home along with her minor child. Hence, the point for determination is answered in the affirmative.
13. POINT No.3: In the instant case, the petitioner/aggrieved has sought the following reliefs: I) Residence order U/s. 19 of the said Act, like an order directing the respondent to secure same level of alternate accommodation for the aggrieved person as she enjoyed in the shared house or pay rent for the same;
II) Monetary reliefs U/s. 20 of the said Act for maintenance amount of Rs. 1,00,000/ per month.
III) Compensation order U/s. 22 of the said Act in terms of monetary benefit amounting to Rs. 1,00,00,000/.
In the instant case the petitioners are claiming only monetary reliefs from the respondent ,they have filed assets and liability statement and shown that she is earning Rs.28,000/ per month Crl.Misc.No.26/2020 12 and in their affidavit they stated opponent is sales executive and earns around 80,000/ per month and posses one house property worth 30,00,00/ in ullasnagar ,they themselves stated that respondent is residing in their sister house at caymen islands, the petitioners did not furnish salary details of either Dubai or caymen island and did not furnish property records of house situated at Thane,without supporting documents courts cannot rely on averments of petition to come into calculation of income of spouse.
14. Honourable apex court in Rajnesh Vs neha has laid down certain guidelines to be followed while calculating the quantum of maintenance as follows;
III Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and Crl.Misc.No.26/2020 13 dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage;
whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a nonworking wife.33 In Manish Jain v Akanksha Jain 34 this Court held that the financial position of the parents of the applicantwife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations;
the Court should mould the claim for
Crl.Misc.No.26/2020
14
maintenance based on various factors
brought before it.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112. (2017) 15 SCC 801. be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.35
(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.36 The maintenance amount awarded Crl.Misc.No.26/2020 15 must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Subsection (2) of Section 23 of HAMA provides the following factors which may be taken into consideration :
(i) position and status of the parties,
(ii) reasonable wants of the claimant,
(iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
Crl.Misc.No.26/2020 16
15. If the above laid down guidelines are taken into consideration the court must be conscious while awarding maintenance to aggrieved that it it should not burden the opponent as well , the court has to consider the dependents on respondent as well , in the case on hand respondent no 2 appears to be dependent on respondent no 1 , as per their pleadings the respondent qualification is 10th standard and his income is maximum 80,000/ but petitioner claims Rs 1,00,000/ per month maintainence how come its possible is best known to petitioner herself. However, considering all aspects and the circumstances of the case, the petitioner/aggrieved is entitled to the following reliefs, to the extent allowed:
16. Residence Order U/s. 19 of the said Act: .From the evidence on record it is evident that the respondents caused various modes of abuse on petitioner hence in such circumstances to let the aggrieved to reside in the shared house along with the respondent would not be safe for her, therefore the respondent is directed to secure the same level of alternate accommodation as the aggrieved enjoyed in the shared household or pay an allowance of Rs 6000 per month to the aggrieved as house rent.
Crl.Misc.No.26/2020 17
17. Monetary Reliefs U/s. 20 of the said Act: .Now, from the record it is apparent that the aggrieved have no financial strength to provide for herself and her children. The aggrieved had stated that respondent is sales executive in foreign country and his monthly income is around Rs.65,000/ but no documentary evidence was brought on record to prove the same. Having said that, it cannot be ignored that during her entire married life the petitioner was tortured by her husband and ultimately she was driven out of her home and was compelled to live in another town and fend for herself. This Act being an beneficial legislation arms the aggrieved with an unquestionable right of maintenance as against the respondent, if she was/is a victim of domestic violence which can no way be defeated if she fails to precisely prove the monthly income of the respondent. Therefore the respondent is directed to pay a monthly maintenance of Rs 9000/ to the aggrieved.
18. Compensation Order U/s. 22 of the said Act: Now, the mental agony or suffering felt by the petitioner after being driven out of home in demand of dowry cannot be described in words. Therefore considering the facts of the case, the petitioner is entitled to one time additional compensation and damages Crl.Misc.No.26/2020 18 of Rs.1,00,000/ for the mental torture, emotional distress and physical harassment caused to her due to acts of domestic violence of the respondent. Hence, I answer Point No.3 partly in the affirmative.
19. POINT No.4: In view of the materials placed before this court, pleadings, deposition and documentary evidence this court proceeds to pass the following:
ORDER The petition filed by the petitioner under Sec.12 of The Protection of Women from Domestic Violence Act, 2005 is allowed in part.
The respondent is directed to pay an amount of Rs.15,000/p.m.(Rupees Fifteen thousand only)(Rs 6000/towards rent and Rs 9000/ towards maintenance) to the petitioner t from the date of petition till her life time or till she gets remarried whichever is earlier.
Crl.Misc.No.26/2020 19 The respondent is further directed to pay an amount of Rs.1,00,000/ (Rupees one lakhs only) as compensation to the petitioner.
Office is directed to furnish a copy of this order free of cost to the petitioner. (Dictated to the stenographer directly on computer, typed by her, corrected by me and order pronounced in the open court this the 7th day of July 2022) (GAGAN M.R.) MMTCIV, BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PETITIONER:
PW.1 Sheetal Phulwani DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P.1 & 2: Marriage photographs Ex.P.3 Marriage invitation card Ex.P.4 Doctor prescription Ex.P.5 Copy of Immigration law work permit renewal Ex.P.6 Sindhi High School fee receipts Ex.P.7 Copy of order sheet PCR No.1599/2020 Ex.P.8 Copy of charge sheet Ex.P.9 Copy of complaint WITNESSES EXAMINED FOR THE RESPONDENT :
NIL Crl.Misc.No.26/2020 20 DOCUMENTS EXHIBITED FOR THE RESPONDENT :
NIL (GAGAN M.R.) MMTCIV, BENGALURU.