Punjab-Haryana High Court
Poonam Bassi vs Sudhakar Bassi And Anrs on 4 December, 2017
Author: Jaishree Thakur
Bench: Jaishree Thakur
1
CRM-M-6519-2014 (O&M)
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M- 6519-2014 (O&M)
Date of decision: 04.12.2017
Poonam Bassi ...Petitioner
Versus
Sudhakar Bassi & another ...respondents
Present: Mr. Akshay Kumar Goel, Advocate
for the petitioner.
Mr. Abhinav Sood, Advocate
for the respondents.
JAISHREE THAKUR, J.
1. The instant petition has been filed under Section 482 Cr.P.C. praying for enhancement of maintenance awarded to the petitioner and her minor son by the Additional Sessions Judge, Patiala under Section 12 of The Protection of Women From Domestic Violence Act, 2005.
2. In brief, the petitioner married respondent No. 1 as per Hindu rites and ceremonies on 30.9.1999 at Patiala. After their marriage, they resided at Rewari where respondent No. 1 was posted with Bharat Petroleum. A baby boy was born on 04.11.2000. On account of ill-treatment meted out to her at the hands of respondent No. 1 and respondent No. 2, the petitioner filed a complaint under Section 12 of the Protection of Women From Domestic Violence Act, 2005 ('DV Act' for short) and examined herself, her brother and other witnesses to prove her case. The trial Court by order dated 22.08.2012 held that the petitioner had suffered domestic violence at the hands of respondents and assessed amount of maintenance 1 of 8 ::: Downloaded on - 23-12-2017 22:22:24 ::: 2 CRM-M-6519-2014 (O&M) @ Rs.12,000/- per month for her and the minor son. Aggrieved against the said judgment, both parties filed an appeal under Section 29 of the DV Act. The appeal of the petitioner was allowed by order dated 11.11.2013 and the maintenance amount was enhanced to Rs. 20,000/- per month of which Rs. 15,000/- was granted to the petitioner and Rs. 5,000/- was granted to the minor son from the date of the order passed by the trial Court that is 22.08.2012. The appeal filed by the respondent-husband was dismissed. Aggrieved against the said enhancement, being inadequate, the instant petition has been preferred, while the respondent has not challenged the dismissal order.
3. Mr. A. K. Goel, learned counsel appearing on behalf of the petitioner contends that the amount of maintenance as assessed at Rs. 20,000/- per month is inadequate, while pointing out that respondent No. 1 herein is earning a gross salary of about Rs. 1,50,000/- per month. It is argued that as per Exhibit CW5/B which is Form 16, the gross salary of the respondent-husband has been shown to be Rs. 11,50,036.49/- for the financial year 2008-2009, while also submitting that the respondent no. 1 had admitted to earning a gross salary of Rs. 1,30,000/- per month in proceedings which had been filed before the High Court seeking divorce. It is argued that respondent No. 1 has no liability other than the moral obligation of maintaining the petitioner and the minor child. It is argued that respondent No. 2, father-in-law of the petitioner, has an independent source of income in the form of his pension. It is submitted that the minor son is getting good education and a sum of Rs. 5,000/- per month towards his education as monthly expenditure is wholly inadequate.
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4. Per contra, Mr. Avhinav Sood, learned counsel appearing on behalf of the respondents, argues that the petitioner herein is not entitled to any maintenance under the DV Act as the petitioner voluntarily left the matrimonial home without any cause and has filed the instant proceedings under the DV Act only to harass and extract funds. It is also argued the petitioner had got an FIR registered under Sections 406/498-A IPC in which proceedings he had been acquitted and, therefore, the charge of any domestic violence/cruelty would not arise.
5. I have heard learned counsel for the parties and with their able assistance have gone through the pleadings of the case.
6. Admittedly, a marriage was solemnized between petitioner and respondent No. 1, out of which wedlock, a son was born on 04.11.2000. On account of the differences that arose between the parties, they separated and the petitioner filed a petition under the DV Act seeking the relief of residence and maintenance. The JMIC allowed the petition to the extent of granting maintenance but disallowed the relief of residence, against which order both parties filed an appeal. The appeal filed by the respondent No. 1 was dismissed and maintenance amount was enhanced on the appeal filed by the petitioner.
7. An argument has been raised by learned counsel for the respondents that question of paying maintenance under the DV Act would not arise since he had been acquitted under sections 406/498-A IPC. It is argued that the petitioner herein had registered an FIR under Sections 406/498-A of the IPC in which the respondent had been convicted under Section 498-A IPC, however, was acquitted of the charge framed against 3 of 8 ::: Downloaded on - 23-12-2017 22:22:25 ::: 4 CRM-M-6519-2014 (O&M) him under Section 406 IPC. In an appeal filed, he was also acquitted of the charge framed against him under Section 498-A IPC as well by the Additional Sessions Judge, Patiala. It was argued that the Additional Sessions Judge held that the prosecution failed to bring even a single instance of cruelty against the complainant and came to the conclusion that the petitioner-complainant had voluntarily left the matrimonial home. Learned counsel for the respondents relies upon judgments rendered in Santosh Sharma Vs. State of Rajasthan, 2017 (3) RCR (Criminal) 254, Swapnil Kohle Vs Kirti Kohle 2014 (4) RCR (Criminal) 232 to support his argument.
8. Various provisions have been made to try and stop the menace of harassment to women either in the form of amendments to the Indian Penal Code, 1860 or by enacting the Protection of Women from Domestic Violence Act, 2005. The need of the hour in 1980's was to stop the incidences of 'dowry deaths' that were steadily rising in India, on account of the fact that a bride/married woman was unable to fulfill the coercive demands for money, articles or property, categorized as dowry by her husband/in-laws. Legislation was required to protect women against the demand of dowry, which led to the enactment of Section 498-A IPC which reads as under:
" 498-A. Husband or relative of husband of a woman subjecting her to cruelty-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 4 of 8 ::: Downloaded on - 23-12-2017 22:22:25 ::: 5 CRM-M-6519-2014 (O&M) injury or danger to life, limb or health (whether mental or physical) of woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
In the 'Statement of Objects and Reasons' of the Protection Of Women From Domestic Violence Act, 2005, it is noticed that situations where a woman subjected to cruelty by her husband or his relatives was originally to be dealt with by the addition of Section 498-A in the Indian Penal Code, however, this law did not cover the entire spectrum of the violence, maltreatment etc. meted out to a woman. It was in this background that the aforesaid Act of 2005 came into existence. The Act of 2005 proposes to cover and provide protection to those women who are or have been in a relationship with the abuser, where both the parties have lived together in a "shared household" and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption or are family members living together as a joint family. Those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection. Section 2(a) defines as to who would be an "aggrieved person"
under the Act while defining "domestic relationship" under Section 2(f). The terms "respondent" and "shared household" have been defined under Section 2(q) and 2(s), respectively, while Section 2(g) defines "domestic violence". Domestic violence has been defined to be amongst others as, any act, omission or commission or conduct of the respondent which a) harms or injures or endangers the health, safety, life, limb or well-being, whether 5 of 8 ::: Downloaded on - 23-12-2017 22:22:25 ::: 6 CRM-M-6519-2014 (O&M) 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 (emphasis supplied). The considerations in the prosecution under Section 498-A of the Indian Penal Code are different from the considerations while dealing with an application under Section 12 of the Domestic Violence Act, 2005.
9. The protection allowed to a women under section 498-A IPC is against the demand of dowry and harassment/cruelty on that account. It cannot be equated with economic abuse as meted out to a woman in the domestic relationship. Apart from protection given under the provision of 498-A IPC, additional protection is also allowed to a woman within a shared household from abuse be it physical, mental emotional or economic.
10. A conjoint reading of the definition of the term 'aggrieved person', 'domestic violence' and 'domestic relation' under the DV Act, 2005 would lead one to the conclusion that if a woman is in a domestic relationship with the respondent and subjected to some kind of domestic violence, be it physical, mental, sexual or economic abuse she would be entitled to claim relief against the respondent under Section 20 of the Act. The term 'economic abuse' has been defined and according to Sub Clause (A) of Clause (iv) to Explanation 1 appended to Section 3 of the Act, economic abuse is 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 of which the aggrieved person requires out of necessity. Section 125 Cr.P.C. provides that a person being married woman/child is entitled to seek maintenance against 6 of 8 ::: Downloaded on - 23-12-2017 22:22:25 ::: 7 CRM-M-6519-2014 (O&M) husband/father in case he fails to maintain them. The exception being that the wife would not be entitled to receive an allowance from her husband if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Similarly, on the same basis a woman who is in a domestic relationship with the 'respondent' would also be entitled to claim maintenance under the Domestic Violence Act of 2005 if she can prove that that she has been subjected to domestic violence within the shared household. In the opinion of this Court, the term economic abuse can be read as pari materia to the term maintenance under Section 125 Cr.P.C. IPC. There is no dispute with the judgment relied upon by the counsel for the respondents.
11. There is no dispute that the petitioner and respondent No. 1 are husband and wife out of which wedlock a child has been born. In normal circumstances, in case the husband had been able to prove that the wife had left the matrimonial home of her own accord or there was no domestic violence, the wife, not being an aggrieved party, would not have been entitled to claim maintenance or a right to residence as has been held in Santosh Sharma's case (supra) and Swapnil Kohle case (supra). However in the instant case, the said judgments would not be of much help to the respondent No. 1 since he had filed an appeal against the order passed by the JMIC under Section 12 of the DV Act and on dismissal of the appeal he did not challenge it further. The orders have thus attained finality qua the respondent, to the effect that there has been domestic violence within the shared household between the petitioner and the respondent No. 1. Any 7 of 8 ::: Downloaded on - 23-12-2017 22:22:25 ::: 8 CRM-M-6519-2014 (O&M) reference to the acquittal under Section 498-A IPC will have no bearing in the instant case.
12. The question that needs to be decided is regarding the quantum of maintenance to be awarded to the petitioner herein. A sum of Rs. 20,000/- has been awarded which is on the lower side. As per the salary statement that has been filed on the record for the month of March 2015, the basic pay of the respondent is Rs. 62,000/- and DA is Rs. 60,822/- . The total salary payable to the petitioner inclusive of all allowances like house rent, travel, house maintenance etc. is Rs. 1,49,580.97/-, out of which tax is to be paid as well. The responsibility of the petitioner and the child to be maintained has been established by two Courts (and accepted by the respondent). In the day of rising prices and higher cost of living, while keeping in mind that the minor child has to be educated, this Court deems it appropriate to enhance the maintenance as payable to the petitioner to Rs. 45,000/- per month out of which Rs. 15,000/- is towards the son. The amount so assessed will be payable from the date of this order.
13. Petition stands allowed accordingly.
(JAISHREE THAKUR)
04.12.2017 JUDGE
Waseem Ansari
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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