Delhi District Court
Sanjay Bhatia vs Samakshi Bhatia on 5 February, 2024
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDITIONAL SESSIONS JUDGE-02,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
Criminal Appeal No. 106/2023
PS- New Friends Colony
U/Sec. 29 PWDV Act
1. Sanjay Bhatia
S/o Late Sh. K.L. Bhatia
R/o A-155, New Friends Colony
New Delhi- 110025
2. Manju Bhatia
W/o Sh. Sanjay Bhatia
R/o A-155, New Friends Colony
New Delhi- 110025
3. Saket Bhatia
S/o Sh. Sanjay Bhatia
R/o A-155, New Friends Colony
New Delhi- 110025
.... Appellant
VERSUS
Samakshi Bhatia
Widow of Late Sh. Atit Bhatia
Presently residing at ;
A-14/4, Ground Floor
Vasant Vihar, New Delhi.
.... Respondent
Date of institution : 29.03.2023
Date of reserve for order : 25.01.2024
Date of Decision : 05.02.2024
Decision : Appeal Dismissed.
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JUDGMENT
1. This is a criminal appeal U/Sec. 29 of the Protection Protection of Woman from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act') against the order dated 24.02.2023 (hereinafter referred to as 'impugned order') passed by the Ld. Metropolitan Magistrate (hereinafter referred to as Ld. M.M.) in CT No. 8976/2019 titled as "Samakshi Bhatia Vs. Sanjay Bhatia & Ors" whereby Ld. MM dismissed the application of the applicants u/o 7 rule 11 CPC for rejection of the petition U/Sec. 12 of the DV Act.
2. In order to avoid any confusion, both the parties shall be referred with the same nomenclature with which they were referred before the Ld. Trial Court, in my subsequent paragraphs.
3. The brief facts necessary for disposal of present appeal as mentioned in appeal are, as follows :-
i) It is stated that the respondent no. 1 and 2 are the father-in-law and mother-in-law respectively of the complainant. Respondent no. 3 and 4 are the brother-in-law (Jeth) and sister-in-law (Jethani) respectively of the complainant. The complainant and the husband of the complainant no. 1 lived CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 2 of 26 together as a unit in a joint Hindu family with common kitchen and pooling of financial resources with the respondents of which the respondent no. 1 is the Karta/ Head of the family.
ii) It is further stated that complaint explains the plight of a widow with a small child living in the home that she lived in with her husband. She continues to have a right to residence. The respondents however are collectively conspiring to throw her out/ exclude her from the shared household.
iii) It is further stated that complainant and her late husband Mr. Atit Bhatia got married as per Hindu rites and ceremonies on 29.04.2013 at The Grand, Vasant Kunj, New Delhi with full pomp and show. All the expenses of marriage function were entirely taken care of by the complainant no. 1 parents. From the wedlock, a son namely Samarveer was born on 14.12.2015. After the marriage, complainant preceded to live with her in-laws at A-155, New Friends Colony, New Delhi as a joint Hindu family in a six CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 3 of 26 bedroom house. The said house is her matrimonial home and a shared household and she continues to live there along-with her minor son Samarveer. The complainant adjusted very well with the family members as her late husband was very supportive. She could also see an effort on the part of her husband's family to incorporate her into their lives.
iv) On 26.02.2017, complainant and her late husband went to Dubai for a friends' wedding and returned to New Delhi on 05.03.2017. After they got back, the complainant's late husband started feeling under the weather, however thinking that it's just the flu, he ignored it for a few days.
Thereafter, his condition worsened and by the end of the week on 13.03.2017, when he informed his mother i.e. respondent no. 2 about his condition, respondent no. 2 took it lightly and infact insisted that he got to a Holi party on the same day.
v) Thereafter, the condition of the complainant's husband further deteriorated and was admitted to National Heart Institute, East of Kailash on 14.03.2017 and was again CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 4 of 26 shifted to Max Super Specialty Hospital, Saket, in a critical condition on 15.03.2017, where he remained in ICU for 14 days and on 28.03.2017 at about 2 pm, he went through a multi organ failure and suffered a heart attack which led to his unfortunate death.
vi) On the day of death of complainant's husband i.e. 28.03.2017, a transaction was made to his bank account by his father. It is further stated that even the cremation of Atit had not taken place, respondent no. 1 asked the complainant to give him the mobile phone of her husband. The complainant had handed over the said mobile phone to respondent no. 1.
vii) On 14.04.2017, after all the posthumous ceremonies were completed, complainant on her parents' insistence went to Amritsar, her hometown. On 23.04.2017, the respondent no. 1 and 2 came to her parental home in Amritsar where, in a separate room, respondent no. 1 forced complainant to sign four blank cheques and some papers.
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viii) It is further stated that after the death of complainant's husband, her expenses for travel, shopping, driver, maid and other expenses, have been drastically curtailed and her credit cards facilities have been withdrawn. Further, the privileges and facilities that she was accustomed to during her husband's lifetime, have been withdrawn from her by the respondents with the sole intent to push her out of her matrimonial home. Respondent no. 1 has categorically refused to pay the school fees of the minor child Samarveer.
ix) It is further stated that respondents came from a very wealthy and elite family of India. Respondent no. 1 is a Director in a number of companies. Currently, he is a special invitee on the task force set up by the Commission on Centre-State relations, headed by Justice M.M. Punchhi (Retd), primarily to contribute on the structure of GST. He is a Managing Director of Hindustan Tin Works Ltd., Director in Hi- Tech Surfactants Ltd. and Director and shareholder in Innopac Containers Ltd. and CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 6 of 26 Petainer Containers Ltd. all the respondents are shareholders in Hindustan Tin Works Ltd and have various properties in India.
Respondent no. 1 has many businesses run huge profits to the tune of crores and are having multiple luxury cars.
x) Further, it is stated that all the businesses run by respondent no. 1, are family businesses and the respondent no. 1 is the Karta. All the assets owned by respondents are the properties held jointly by the family which include the complainant, her late husband and their son.
xi) It is further stated that complainant prior to the marriage, as a hobby used to make candle and incense sticks for gifting purposes which she continued after marriage, which is any case was never for the purpose of living or profit. Currently, complainant has no income on her own.
xii) It is further stated that Family Constitution was drafted by one Mr. Anl Sehnani (Consultant) who had one on one sessions with each of the family members and came to the conclusion that it would be material for everybody's peace of mind if CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 7 of 26 either the complainant and her husband or respondent no. 3 and 4 out as there was friction between the brothers even before the marriage. It was decided that the complainant and her husband would look for a place in New Friends Colony itself and move out in March 2017, however, due to demise of her husband, complainant was unable to do so.
4. Appellant has taken following grounds to challenge impugned order/judgment dated 24.02.2023 passed by Ld. Trial Court :-
a) That the impugned order is bad in law and wrong on facts and the order suffers from surmises and conjectures.
b) That Ld. Trial Court has overlooked the findings of the Hon'ble High Court of Chhattisgarh, given in its judgment titled as Nand Kishore Lal Vs. Shrimati Chanchala Lal, 2022 SCC Online Chh 1280.
c) That Ld. Metropolitan Magistrate failed to appreciate that the responded has not even pleaded that she had approached either of her parents for maintenance (including residence), let alone being unable CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 8 of 26 to obtain maintenance (including residence) from them in terms of Sec. 19 of the Hindu Adoption and Maintenance Act (HAMA).
Rather, her stand in her reply to the application of the appellants is that her parents are not liable to maintain her.
d) That Ld. Metropolitan Magistrate failed to appreciate that the liability of father-in-law is limited by Sec. 19 of the HAMA and can arise only after the widowed daughter-in-law has exhausted all the sources to obtain maintenance (including parents) and that too, only from coparcenary property in possession of the father-in-law out of which she has not obtained a share. Reliance has been placed upon case law titled as (1) Balwant Kaur Vs. Channan Singh, AIR 2000 SC 1908, (2) Radhika Narang Vs. Karun Raj Narang, 115 (2004) DLT 440, (3) Parwati Vs. Danpatra Singh, AIR 2020 Chh 202 and (4) Raj Kishore Mishra Vs. Meena Mishra AIR 1995 Allahabad 70.
e) That Ld. Metropolitan Magistrate failed to appreciate that even if it assumed that respondent has no earning or property of herself and that she has nothing to fall back CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 9 of 26 for maintenance upon the estate of her deceased husband, even then the question does not arise of fastening any liability of appellant no.1 father-in-law when the responded admittedly does not take recourse against her own parents, and that too, in the absence of any coparcenary property in the hands of appellant no. 1.
f) That Ld. Metropolitan Magistrate failed to appreciate that the requirements of Sec. 19 of the HAMA is the existence of coparcenary property and not joint assets.
g) That Ld. Metropolitan Magistrate failed to appreciate that there is no liability of father-in-law as Karta to maintain the widowed daughter-in-law as held by Hon'ble High Court of Delhi in its decision titled as Radhika Narang Vs. Karun Raj Narang, 115(2004) DLT 440.
h) That Ld. Metropolitan Magistrate
failed to appreciate that specific and
categorical averments with respect to
existence, creation and continuation of coparcenary property (or even HUF Property) are lacking in the complaint and there are simply no actionable pleadings in CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 10 of 26 the complaint qua the requirements of Sec. 19 of the HAMA.
i) That Ld. Metropolitan Magistrate failed to appreciate the settled law that if a litigant has not pleaded a fact, she/he cannot be allowed to lead any evidence thereon. No amount of evidence can be looked at concerning a plea never made. Reliance in this regard is placed upon case law titled as Biraji Vs. Surya Pratap, AIR 2020 SC 5483.
j) That Ld. Metropolitan Magistrate erred in relying in the impugned order on the decision in Prabha Tyagi Vs. Kamlesh Devi, AIR 2022 SC 2331, since the said case did not deal with the question of whether a widowed daughter-in-law can seek maintenance without fulfilling the statutory conditions exhaustively enumerated in Sec. 19 of HAMA and as such, is inapplicable to the issues that arise for consideration in the application of the appellants for rejection of the complaint.
k) That Ld. Metropolitan Magistrate failed to appreciate that respondent wish to make a grievance of any joint assets, it is open for her to avail legal remedies in that CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 11 of 26 regard. A complaint u/sec. 12 of the PWDV Act does not even otherwise lie at the instance of the widowed daughter-in-law for joint assets, if any.
l) That Ld. Metropolitan Magistrate failed to appreciate that in view of the non- satisfaction of the condition precedents set out in Sec. 19 of the HAMA and the absence of even the requisite pleadings in the complaint itself, the appellant no. 1, cannot be fastened with any liability to provide maintenance in terms of the said statutory provision and consequently the PWDV Act.
m) That Ld. Metropolitan Magistrate having observed that the appellant no. 2 and 3 cannot be made to maintain the widowed respondent, ought to have held that the reliefs sought qua to them, are barred by law particularly when the complaint is substantially hit by Sec. 19 of the HAMA.
n) That Ld. Metropolitan Magistrate failed to appreciate that the purpose of PWDV Act is to give remedy to the aggrieved persons against domestic violence. The existence of the domestic relationship in the shared household is irrelevant, unless CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 12 of 26 there are acts that constitute domestic violence in law. That impugned order is vitiated by fatal infirmities.
5. Ld. Counsel for the appellants has argued that respondent is the widowed daughter-in-law of the appellant no. 1 and 2 being married to their deceased son namely Late Atit Bhatia. He has submitted that present proceedings under the PWDV Act are the criminal proceedings in the light of the decision of Hon'ble Supreme Court in the case titled as Satish Chander Ahuja Vs. Sneha Ahuja, 2020 SCC Online SC 841. He has further submitted that complaint filed by the respondent essentially pertains to her supposedly suffering domestic violence due to the supposed failure of the appellants to provide maintenance to the respondent. The complaint is liable to be rejected on the ground that appellants no.2 and 3 are not liable to maintain the respondent at all. He has argued that PWDV Act does not create any additional right in favour of a widow regarding maintenance, including residence. It only enables the Magistrate to pass a maintenance order as per the rights available under the law. He has further submitted that widowed daughter-in-law can seek maintenance only from the father-in-law and only from the coparcenary property in his possession out of which she has not obtained a share, provided and to the extent that she is unable to maintain herself out of her own earnings or other property or where she has no property of her own, she is unable to obtain maintenance from (i) the estate of her husband or (ii) her parents CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 13 of 26
(iii) from her child or his/ her state. Further, it is argued that proviso U/Sec. 19(1) of the HAMA has been held to mean that apart from the right which is a widowed daughter-in-law has against the estate of her husband, she has an independent and personal right against her own father and mother during their lifetime to maintenance her.
6. Ld. Counsel for appellants has further argued that it is a settled law that a coparcenary is a much narrower concept than the HUF/Hindu Joint Family, and includes only those persons who acquire a birth interest in the ancestral property or property acquired with the aid of ancestral property. Reliance in this regard is placed upon Sathyaprema Manjunatha Vs. The Controller of Estate Duty, 1997 10 SCC 684. He has further argued that respondent is not entitled to maintenance qua the appellants in the light of Sec. 19 r/w Sec. 3(b) of the HAMA, the respondent is not entitled in law to the residence orders sought by her u/sec. 19 of the monetary claim u/sec. 20 of the PWDV Act.
7. Ld. Counsel for appellants has further argued that since appellants are justified by law to decline to provide the respondent any maintenance including residence in the light of Sec. 19 of HAMA, the allegations of complaint pertaining to the alleged financial control, economic abuse, humiliation, emotional harm, etc, due to denial of maintenance, cannot, in law, constitute domestic violence in terms of the PWDV Act in view of Sec. 79 IPC.
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8. It is argued by Ld. Counsel for appellants that impugned order is vitiated by fatal infirmities. Present complaint is not maintainable under the PWDV Act and liable to the rejected.
9. Ld. Counsel for appellant has relied upon the case laws titled as (1) Deepak Gaba & Ors. Vs. State of UP & Ors. AIR 2023 SC 228; (2) Nand Kishore Lal Vs. Shrimati Chanchala Lal 2022 SCC Online Chh 1280; (3) Sanjay Bhardwaj & Ors. Vs. State & Anr. 171 (2010) DLT 644; (4) Balwant kaur Vs. Channan Singh, AIR 2000 SC 1908; (5) Sathaprema Manjunatha Vs. The Controller of Estate Duty (1997) 10 SCC 684; (6) Radhika Narang Vs. Karun Raj Narang 1115 (2004) DLT 440; (7) Parwati Vs. Danpatra Singh AIR 2020 Chh 202; (8) Raj Kishore Mishra Vs. Meena Mishra AIR 1995 Allahabad 70; (9) Surender Kumar Vs. Dhani AIR 2016 Delhi 120 (10) Surender Kumar Khurana Vs. Tilak Raj Khurana & Ors., MANU/DE/0135/2016; (11) Sagar Gambhir Vs. Sukhdev Singh Gambhir, (MANU/DE/0541/2017); (12) Biraji Vs. Surya Pratap, AIR 2020 SC 5483; (13) Geeta Nainy @ Kanta Vs. B.B. Nainy 27 (1985) DLT 292; (14) Vimalben Ajitbhai Patel Vs. Vatsalaben Ashokbai Patel, AIR 2008 SC 2675; (15) Laxmi Vs. Shyam Pratap (MANU/DE/1621/2022); (16) Vijay Verma Vs. State (2011) ILR 1 Delhi 36; (17) Satish Chander Ahuja Vs. Sneha Ahuja 2020 SCC Online SC 841 (18) Prabha Tyagi Vs. Kamlesh Devi AIR 2022 SC 2331 and (19) State of Orissa Vs. Md. Illiyas, AIR 2006 SC 258.
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10. Ld. Counsel for respondent has argued that Sec. 17 of the DV Act provides a right to the aggrieved person to reside in the shared household. The fact that the respondent is in legal possession and occupation of her matrimonial home is an admitted position. Moreover, the fact that they are trying to exclude the respondent from the home, is in clear violation of the Act. She has further argued that Sec. 19 of the PWDV Act gives power to the court to pass residence orders including restraint order from dispossession in which the aggrieved person resides and pass such orders required in the circumstances of the case and Sec. 20 of the said Act gives power to provide monetary reliefs. She has argued that the issues raised are all a matter of trial and moreover have already been dealt with and dismissed by Ld. Family Court vide its order dated 20.03.2019. It is further argued that respondent and her late husband, during the lifetime of husband, resided in the property bearing no. A-155, New Friends Colony, New Delhi, jointly with the appellants. Thus, making the said property a shared household.
11. Ld. Counsel for respondent has further argued that appellants in their suit bearing no. 264/2019 have admitted that the respondent started residing with her late husband Atit alongwith the appellants at the New Friends Colony property, thus establishing that it is the matrimonial home and shared household of the respondent. The said fact was reaffirmed by the Hon'ble High Court in its order dated 05.11.2019 passed in the CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 16 of 26 aforesaid suit. She has further argued that main complaint is not barred by the Sec. 4, 19 and 22 of HAMA, as the widow has a right to reside in her matrimonial home and entitled to maintenance and other benefits as per Sec. 17 to 21 of DV Act. Further, the complaint is maintainable since it is a claim on Joint Hindu Family properties of which Atit's estate is a part. Further, the respondent is also seeking her share from Atit's estate which is in complete control of appellants. Appellant no. 1 has admitted to the existence of Sanjay Bhatia HUF which clearly would include a defined and delineated right of the complainant and her son from Atit's estate.
12. It is further argued that strict interpretation of Order VII Rule 11 CPC, is not applicable to the present case since proceedings under the PWDV Act are quasi criminal in nature. Even otherwise, the respondent has specifically pleaded the cause of action in the main complaint. Further, in case of Raptakos Brett & Co. Ltd. Vs. Ganesh Property, (1998) 7 SCC 184, Hon'ble Supreme Court observed that the averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7, was applicable. In the present case, the appellants cannot pick and choose pleadings as per their convenience in order to defeat the rights of the widow.
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13. It is further argued that appellant no. 1 has not paid any maintenance to the respondent for household or personal expenses since November 2018 and further refused to pay the school fee of her son since April 2019. In the case titled as Hari Ram Hans Vs. Deepali & Ors, has held that the word 'widow' in the Hindu Adoptions and Maintenance Act, would also include the children of the mother who are staying with her. Ld. Counsel has further placed reliance on the judgment in the case of Balbir Kaur Vs. Harinder Kaur 2002 SCC Online P&H 824, wherein it has been held that ;-
12. The right of maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife. The right in case of a widow is a pre-existing right, which existed under the Shastric Hindu law long before the passing of the Hindu Women's Rights to Property Act, 1937 or the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1946 or the Hindu Adoptions and Maintenance Act, 1956. These Acts merely recognised the position as was existing under the Shastric Hindu law and gave it a statutory backing. The right of maintenance and residence of a widowed daughter-in-law against her father-in-law also existed under the Shastric Hindu law and the same has been recognised by various judicial pronouncements and the statute i.e. Hindu Adoptions and Maintenance Act. In Gopal Chandra Pal v. Kadambini Dasi and Ors. A.I.R. 1924 Calcutta 364, a Division Bench of the Calcutta High Court held that though a widowed daughter-in-law has no legal right to maintenance as against the self-acquired property of her father-in-law but if her husband died during the life time of her father-in- law then the father-in-law is under moral obligation to maintain his widowed daughter-in-;law, even though he has no ancestral assets in his hands. The CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 18 of 26 position of the heirs, who took the estate of the father-in-law by inheritance is different. What is a moral obligation in respect of the father ripens into a legal obligation when the estate passes into the hands of his heirs. This principle is applicable even when the father-in-law has made a testamentary disposition of his property or has during his life time made a gift of his property. In that case, even the donee or alienee are legally bound to maintain the widowed daughter-in-law. This principle was also adopted by the Allahabad High Court in Jeot Ram Chaudhari v. Mt. Lauji and another, A.I.R. 1929 Allahabad 751, wherein it was held that father-in- law is under a moral obligation to maintain a widow of a pre-deceased son and this moral liability becomes a legal obligation in the hands of his surviving sons who inherit father's estate and no distinction should be drawn in this respect between property which is inherited from the father-in-law and property which is gifted by him. Thus, if father- in-law gifts a portion of self acquired property to one of his sons, daughter-in-law is entitled to maintenance out of such property. In Ambu Bai v. Soni Bai, A.I.R. 1940 Madras 804, the Full Bench of the Madras High Court observed as under :-
"The doctrine that a moral obligation becomes a legal obligation when the estate of a person on whom the moral obligation lay comes into the possession of his heirs may be open to criticism but it is too late in the day to indulge in it and the court must confine itself to the question whether the principle should extend beyond the case of widowed daughter-in-law."
Recently, the Full Bench of Andhra Pradesh High Court in T.A. Lakshmi Narasamba v. T. Sundaramma and Ors., A.I.R. 1981 Andhra Pradesh 88, while dis-agreeing with the view of the Bombay High Court has held as under: -
CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 19 of 26 "We are unable to agree with the reasoning of the Bombay High Court. The Bombay High Court mainly proceeded on the ground that the father-in- law has absolute power over his self-acquired property to deal with the same. He has a power to exercise will or gift and deprive the daughter-in-law of her maintenance. When the absolute owner has exercised that power and transferred the property under gift or will, the question of enforcing her right against the transferees would not arise at all. The Bombay High Court put it on the ground that the property acquired by valid testamentary disposition is not governed by the rules of the Hindu Law of inheritance and when the power of making such disposition is unrestricted, it -is difficult to conceive any consistent ground on which the devisee could be held bound by an obligation from which the testator had power to relieve him and by the bequest had actually relieved him. With great respect, we are not able to agree with this view. The leaned Judges there have not taken into consideration the duty of the Hindu heirs to provide for her bodily, and mental or spiritual needs of their immediate and nearer ancestors, and also the fact that there was no rigid distinction between the moral duty and legal duty as there is in the modem society. They have also not considered the concept of 'duty' to be performed by the head of the family and that if he died without performing that duty he had committed sin and that the sons have to discharge that obligation to relieve him from that sin. The Madras High Court in Sankaramurthy Vs. Subbamma (A.I.R. 1933 Madras 914) followed the view of the Bombay High Court expressed in Yamunabai v. Manubai, (1899) I.L.R. 23 Bombay 608; Bhagirathibai v. Thakur Mal, (A.I.R. 1926 Lah. 193), but with great respect we are not in agreement with this view.
In the result, we are in agreement with the view expressed in Rangammal v. Echammal, (1899) I.L.R. 22 Mad. 305; Gopal Chandrapal v. Kadimbini Das, (A.I.R.) 1924 Cal 364) and Foolcomari Dasi Debendra Nath, (A.I.R. 1942 Cal.
474) wherein in it was held that the legal liability upon a Hindu heir to provide maintenance to CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 20 of 26 daughter-in-law exists irrespective of the fact whether the heir takes the property by intestacy or under a will or gift."
14. It is further argued the appellants blamed the respondent for the death of their son Atit Bhatia and that is the reason that they are excluding her from the shared household and well as Atit's estate in the joint family business. Such arguments deserve to be censured to ensure the dignity of the respondent. It is prayed that the present appeal must be dismissed.
15. I have heard arguments addressed by respective counsels of the parties and carefully perused the record including Trial Court Record.
16. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Where a woman is subjected to cruelty by her husband or her relatives for demand of dowry, it is an offence u/sec. 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety. It was therefore, proposed to enact a law keeping in view of the rights guaranteed under Article 14, 15 & 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevalent the occurrence of the domestic violence in the society. Keeping these objects and reasons in mind to provide for more effective protection of the rights of the woman CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 21 of 26 guaranteed under Constitution who are victims of violence of any kind occurring within the family and for matter connected therewith or incidental thereto, the Bill was presented and the Protection of Woman From Domestic Violence Act, 2005 was passed by the Parliament. Thus, it cannot be lost sight of, that the Act has been passed keeping in view the provision under the Constitution and to provide a remedy under the civil law which is intended to protect the woman from domestic violence in the society. Under the PWDV Act 2005, under section 27 & 28, a Magistrate has empowered to grant a protection order and other orders and to try the offence under the Act. Vide Sec. 28 of the Act, it is mentioned that save as otherwise provided in this Act, all proceedings u/sec. 12, 18, 19, 20, 21, 22 and 23 and the offences u/sec. 31 shall be governed by the provisions of CrPC. Further, vide sub section 3 and 4 of sec. 19, it is also provided that a Magistrate may require from the respondent to execute a bond with or without sureties. Sec. 31 of the Act provides penalty for breach of protection order passed by the Magistrate which is punishable as an offence. We may also see that where an alternative constructions are possible, the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility. CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 22 of 26 Therefore, the contentions raised on behalf of Ld. Counsel for the appellant that the PWDV Act being only criminal in nature, is primarily guided by the Criminal Procedure Code, is not sustainable and therefore, the Act being a civil remedy cannot be overlooked.
17. The Act inter-alia provides for more effective protection or the right of woman guaranteed under the constitution who are victims of the domestic violence of any kind occurring within the shared household. According to the Act, any harm, injury to health, safety, life, limb or well being or any other act or threatening or coercion etc. by any adult member of the family, constitutes domestic violence. Further, the act also contemplates that any woman who is or has been in a domestic relationship, if she is subjected to any domestic violence can file a complaint u/sec. 12 of the PWDV Act. This Act also covers those woman who are or have been in relationship with the abuser where both parties have live together in a shared household and a relative by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, the relationship with the family members living together as a joint family are also included. Even those women are sisters, widows, mothers or single woman or living with the abuse, are entitled to legal protection. In the present matter, the complainant herein being a widow or the deceased Atit who is the son of respondent no. 1 and 2, is well within her right to file a complaint under the Act and is entitled CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 23 of 26 for the rights guaranteed under the statute if she is able to substantiate her allegations as per her complaint. Under the Act, the domestic violence includes actual abuse or threat to abuse which can be physical, sexual, verbal, emotional or economic. The Act provides for the rights of the woman to secure housing and also to reside in her matrimonial home or a shared household whether or not she has any title or right in such home or household. Further, in the present matter, the complainant made specific allegations regarding the behaviour of the respondents towards her soon after the demise of her husband and the mental and psychological pressure created upon her which falls under the definition of cruelty as defined under the Act. The question whether the acts complaint by the complainant of cruelty amounts to the cruelty as defined under the Act, is to be determined from the whole facts. The general rule is of a special value where the cruelty consists not a violent act but of injurious reproaches, complaints, accusations or taunts. The court has to decide with a sum total of the conduct of the respondents amounted to the cruelty towards the complainant and the same can only be decided after a fair trial and that depends on whether the cumulative conduct of the respondents was sufficiently serious to say that from a reasonable persons point of view after the consideration of any excuse which the respondent might have in the present circumstances, the conduct is such that the petition ought not to be called upon to endure.
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18. Though, concept of cruelty has vary from time to time, from place to place and from individual to individual and the cruelty alleged may largely depend upon the type of life the parties are accustomed or they economic and social conditions, their culture and human values to which they attach important and judged by the standard of modern civilization in the background of cultural heritage and therefore, the complainant who is young and well educated, is not expected to endure the harassment in domestic life whether mental, physical, intentional or emotional.
19. Therefore, in my considered view the averments made in the complaint fall under the provisions of PWDV Act and therefore, the impugned order of the Trial Court dated 24.02.2023 has carefully dealt with the contentions raised on behalf of both the parties and I find no infirmity in the order of Ld. Trial Court. Further, the contentions raised on behalf of the respondents regarding respondents being not illegally liable to maintain the complainant or provide maintenance to her, cannot be looked at this stage and therefore, the complainant shall be given opportunity to substantiate the same at the time of trial and more so the PWDV Act apart from giving maintenance to the aggrieved also provides other remedies if the woman is subjected to the domestic violence.
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20. Hence, I conclude that Ld. Trial Court had passed the impugned order legally and correctly. It was not perverse in nature. That order passed by Ld. Trial Court needs no interference. Present Appeal, therefore stands dismissed.
21. TCR be sent back along-with copy of this judgment.
File be consigned to Record Room after due compliance.
[Sheetal Chaudhary Pradhan] ASJ-02, South-East/Saket/Delhi 05.02.2024 CA No. 106/23 Sanjay Bhatia Vs. Samakshi Bhatia Page no. 26 of 26