Allahabad High Court
Pramod Kumar Singh And Another vs State Of U.P. And Another on 23 July, 2019
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 82
Case :- CRIMINAL REVISION No. - 2457 of 2017
Revisionist :- Pramod Kumar Singh And Another
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Sudhanshu Pandey
Counsel for Opposite Party :- G.A.,Bipin Kumar Tripathi
Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Shri Sudhanshu Pandey, learned counsel for the revisionist, Shri V.K. Twivedi, Advocate holding breif of Shri Bipin Kumar Tripathi, learned counsel for the opposite party no. 2 and Shri M.P. Singh Gaur, learned AGA for the State.
2. This revision has been filed against the impugned judgment and order dated 07.07.2017 passed by the learned Additional District & Sessions Judge, Court no. 1, Gorakhpur in Criminal Appeal No. 226 of 2016 (Pramod Kumar Singh vs. State of U.P.) and order dated 03.11.2016 passed by the Additional Chief Judicial Magistrate-I, Gorakhpur in Misc. Case No. 8829 of 2014 (Pramod Kumar Singh Vs. Pratima Singh), P.S. Kaptanganj, District Gorakhpur by which the learned court below has rejected the application of the husband to set aside the judgment and order dated 31.5.2014 by which application of wife was allowed under section 12 Domestic Violence Act.
3. The impugned orders have been challenged on the ground that the impugned orders are based on misreading of record, non- appreciation of fact/evidence and illegal application of law. Learned Additional Judicial Magistrate, Gorakhpur disposed of the application of opposite party no. 2 under Domestic Violence Act on 31.05.2014 and the order was passed ex-parte against the revisionist. A recall application to recall the order dated 31.05.2014 was given by the applicant-revisionist and the same was rejected by the Additional Chief Judicial Magistrate-I, Gorakhpur by impugned order dated 03.11.2016 and the Appellate Court has committed grave error in dismissing the appeal filed by the appellant-revisionist. The impugned order is based on surmises and conjecture. Service of notice on revisionists is not in accordance with law and the learned Magistrate has not complied with Rule 12 of the Protection of Women from Domestic Violence Rules, 2006. The revisionist no. 1 was not made party in the application filed under section 12 of the Act and no notice was served upon him, but the learned court below passed order against him, which is totally illegal and even then the recall application has been rejected. From perusal of the order dated 31.05.2014, it is evident that the learned court below proceeded in the matter ex-parte against the revisionists and their family members on the basis of presumption of service of notice which is illegal and the same is vitiated under law, as no opportunity of hearing is provided to the revisionist. Revisionist no. 2 is already regularly paying Rs. 3000/- to the respondent no. 2 under an order dated 01.08.2013 passed by the Principle Judge, Family Court, Gorakhpur in case no. 659 of 2012 filed by respondent nos. 2 and 3, under section 125 Cr.P.C. The impugned orders of the courts below is contrary to record and the same is liable to be set aside.
4. The brief facts of the case is that the opposite party nos. 2 and 3 gave an application before the court of Judicial Magistrate-II, Gorakhpur under section 12 Domestic Violence Act for providing protection order and maintenance stating that she was married with opposite party no. 1 on 20.04.2006 according to Hindu rituals. Some times after marriage the opposite parties started mentally and physically harassing her, demanding Rs. 2 lakhs and a house in the name of opposite party no. 1, situated in Bharwaliya Bujurg. On 31.03.2009 son Arsh Kumar was born and after some time she was sent to her parents house and while going back, the opposite party (husband) repeated his demand of Rs. 2 lakhs. On being refused, he slapped her and twisted her hand due to which her bangles were broken and her hand started bleeding. The wife after some time came back to her matrimonial house and again opposite party started harassing her for dowry. On 20.04.2009, she and her son were forced to leave matrimonial house and her stri dhan was also taken by them. In the last week of April, 2012, opposite party (husband) came to her parents house and started talking with her younger sister Nidhi @ Smriti Singh and on 30.04.2012, he enticed her to run away with him and at present he is living with her in a rented room after marrying her in Gorakhpur. Against it, a case was registered as Case Crime no. 22 of 2012, under section 498A, 323, 504, 506, 406, 363, 366, 494 IPC and section 3/4 Dowry Prohibition Act. The wife is living a dejected life and she has no means to maintain herself. Opposite party (husband) is Head Constable, working as Radio Operator in BSF and at present working on deputation in National Security Guard, Maneshar Hariyana and he is getting Rs. 40,000/- as monthly pay. On that basis she claimed Rs. 25,000/- as monthly maintenance for herself and her son.
5. Opposite party Chhail Bihari Singh (father of revisionists) filed his written objection/written statement in which marriage between revisionist no. 2 and opposite party no.1 and birth of a son has been admitted and remaining pleadings has been denied. Opposite party no. 3 died during the course of proceedings and the case was abated in respect of her. Against the revisionists (husband and his brother), ex-parte proceedings took place, opposite party nos. 2 and 3 filed their written statement. The wife examined herself as PW-1. Opposite party Chhail Bihari examined himself as DW-1 and DW-2 Rama Shankar Singh and DW-3 Durg Vijay Singh have also been examined in support. Thereafter, the learned court below allowed the application by order dated 31.05.2014 awarding protection against domestic violence, order for alternative residence or shared house, monetary relief to the tune of Rs. 5000/- for the wife and Rs. 2000/- for the son.
6. Thereafter the husband and his brother gave an application for recall of the said order, stating that the order was ex-parte. On that application, he was heard and by order dated 03.11.2016 the recall application was rejected. An appeal was filed against this rejection order and the Appellate Court by order dated 07.07.2017 dismissed the appeal.
7. The submission of the learned counsel is that the case was proceeded against him ex-parte and his simple request was that the ex-parte judgment should be recalled and he should be given an opportunity of hearing. The application for recall is at page 63 and it has been stated in that application that no summon was issued nor was served on him and the whole proceeding was ex-parte. The impugned ex-parte order was obtained secretly and the recall application is well within time and therefore, the same should be recalled. Similarly when the application was rejected an appeal was also filed in which briefly almost the same facts were repeated.
8. In Indra Sarma Vs V.K. Sarma, AIR 2014 SC 309, the supreme court said that 'Domestic Violence' is undoubtedly a human rights issue, which was not properly taken care of in our country despite various International Conventions and Declarations acknowleded that domestic violence was undoubtedly a human rights issue and the member countries should take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498-A, IPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the Domestic Violence Act.
9. The Domestic Violence Act provides various measures for protection of a woman who is facing domestic violence of different forms. It incorporates remedies in terms of residence order (section 19), protection order to stop violence (section 18), monetary relief like maintainence (section 20), custody order (section 21) and compensation order (section 22). Section 12 provides:
"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 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."
10. Section 17 of the Act provides for right to reside in a shared household. It reads:
"(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
11. Section 18 speaks of protection orders to be issued by the Magistrate in favour of the aggrieved person and prohibit the respondent from committing any act of domestic violence. Section 19 authorizes the magistrate, on being satisfied that domestic violence has taken place, pass a residence order restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household. Section 20 provides for Monetary reliefs to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence. Section 22 authorizes the Magistrate to pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed against her.
12. Section 23 confers power on magistrate to grant interim and ex parte orders in any proceeding before him under this Act as he deems just and proper. Such power is exercised by the Magistrate on satisfaction that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit of the aggrieved person under section 18, section 19, section 20, section 21 or section 22 of the Act.
13. Section 25 lays down as follows:
"Duration and alteration of orders.-(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."
14. For achieving the ends of justice and statutory objective, section 28 gives power to the court to evolve own procedure. Even a mixed process and procedure as provided in civil and criminal law may be adopted simultaneously to meet the ends of justice.
15. From perusal of both the impugned order, it appears that initially the Magistrate took note of the fact that the case was contested by the father of the revisionist and elder father and maternal uncle of the husband. On the point of having knowledge of the case, the learned Magistrate has mentioned that before the court below, father of the husband has been examined along with uncle and maternal uncle, therefore, the court concluded that where so closely related persons like father were contesting the case, it cannot be believed that the husband was not having any information. The leaned Magistrate has also noted that even though the father of the husband was contesting before the court, the husband did not turn up, untill the ex-parte judgment was passed.
16. So far as the revisionist no. 1 is concerned, the learned Magistrate has pointed out that a very simple order against him was passed that he will not commit any Domestic Violence against the wife. Therefore, the learned Magistrate concluded that there is no use in recalling the impugned judgment. From perusal of the order of the Appellate Court, it appears that the learned Appellate Court upheld the order of the learned Magistrate on the basis that the father of the husband was contesting the matter and he had stated in his evidence that he informed about the case to his son, therefore, it was concluded that just to delay the whole case the husband waited till the disposal of the case ex-parte and thereafter, as a second inning, he started giving application for recall etc. On this basis and other grounds also mentioned in the impugned judgment, the Appellate Court affirmed the view taken by the learned Magistrate.
17. Clearly, the view adopted by both the court below appears to be in consonance with the sublime object of the Domestic Violence Act which provides for speedy disposal of application under section 12 by curtailing unnecessary delay so that the wife might not be deprived of the relief provided under the Act, so necessary for her and her son's survival. The Act prescribes a time frame of 60 days for disposal of application. In this case the application under section 12 has been given by wife in September, 2012 and has been decided in May, 2014, whereas, it should have been decided within 60 days. Therefore, recall thereof, if permitted, it will cause great hardship to the wife and son who have been forced to leave the matrimonial house. It should also be noted that the application of the wife has been allowed for a total amount of Rs. 5000/- for her and Rs. 2000/- for the son, even though she has claimed maintenance of Rs. 25,000/-. Both the court below adopted a logical approach in awarding the said amount.
18. Learned counsel to the revisionist has submitted that he is already paying Rs. 3000/- to the wife according to the order of the Family Court passed in the Case No. 659 of 2012 under section 125 Cr.P.C. and this fact has not been considered by the court below. It is pertinent to mention that the wife along with her son had claimed Rs. 25,000/- and there is no denial of the fact that the husband is getting the salary of Rs. 40,000/- per month, therefore, awarding only Rs. 7,000/- for both wife and son is not excessive any way and even if Rs. 3000/- awarded for maintenance under section 125 Cr.P.C. is added the whole amount will come to Rs. 10,000/- which is much less than what was claimed by the wife and it goes to 1/4th of the pay of the husband.
19. It has been further submitted by the learned counsel to the revisionist that the wife is running a coaching center and is working as lecturer of Zoology in Dr. Ram Manohar Lohiya Girls Inter College and she is earning about Rs. 30,000/- per month. Learned counsel for the opposite party nos. 2 and 3 has mentioned that this fact has never been alleged by the husband neither before the learned Magistrate nor before the Appellate Court, there is no proof at all of this income and therefore, it has been submitted that this cannot be believed. Even if it is believed, section 25 (2) of the Act provides for modification of order in case of change in the circumstances and it provides that If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
20. Therefore, if considered from that angle also, this fact may be brought before the learned court below by the husband by filing a further application showing this fact and claiming for reduction of the amount. This is permissible within the scheme of Domestic Violence Act. But as a note of caution, it is made clear that unless a conclusion is arrived at by the learned Magistrate on this point, he (revisionist) will continue making payment of maintenance awarded to the wife and will not in any way flout the order of Magistrate giving other protections to the wife. If it is not done by the revisionists or his relatives, the learned Magistrate can out rightly reject such application given under section 25(2) of the Act and proceed further. It is also made clear that the violation of the protection order is crime and if the protection orders are violated, a criminal proceeding may be drawn according to the Domestic Violence act.
21. There is one more argument advanced by the learned counsel to the revisionists that the learned magistrate has allowed the application of the wife against Anita singh who is a woman, whereas, woman has been excluded from the definition of 'Respondent' by section 2(q) of the Act.
Section 2(q) of the Domestic Violence Act is as follows:
" 'respondent' means any adult person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner."
22. The controversy in this regard has been set at rest by the supreme court in Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade, 2011 Cri LJ 1687(SC) where it has been held that the Act is gender neutral and is not restricted to husband, male partner or their male relatives and a complaint can be validly filed against female relatives also. In Hiralal P. Harsora vs Kusum Narottamdas Harsora, 2017 Cri LJ 509(SC), the court went a step further and held that the use of expression 'adult male person' in section 2(q) of the Act is contrary to object of affording protection to women who suffered from domestic violence of any kind and is violative of Article 14 of the Constitution. Therefore, the court struck down the words 'adult male' occurring in section 2(q) of the Act. In view of the aforesaid judgments, I find no force in this argument of the learned counsel and hold that a complaint can be filed and relief can be granted under the Act against the female relatives of the husband also.
23. The Domestic Violence Act is a special legislation which has adopted progressive approach of protecting the wife who is victim and who is suffering or has suffered domestic violence of any kind as defined under the Act, by providing shelter, freedom from fear, economic support, medical relief and legal help to overcome the problem and to survive and live with dignity. The reliefs provided under the Act are urgent in nature and law requires that such applications should be disposed of without delay and efforts should be made by magistrate to dispose the same in 60 days. Domestic violence is a crime against women which is linked to their deprived and disadvantageous position in the society and it refers to violence which takes place in matrimonial home. In order to address this problem, beneficial provisions have been enacted and the magistrate has been conferred authority to adopt stringent procedure by recourse to civil or criminal law or to evolve a procedure to ensure expeditious and meaningful response against a mischievous husband and his relatives. It includes curtailment and situational alteration in procedure applied for disposal of application. The Act is a reminder that the Constitution of our country promises justice, equal opportunity and status to all women and they cannot be left to bear the burnt of discrimination, disparity and injustice in family as well as public life.
24. On the basis of above discussion, I do not find any material irregularity or illegality or jurisdictional error in the impugned order and the revision has got no force.
25. The revision is dismissed.
Order Date :- 23.7.2019 Bhanu (Hon'ble Pradeep Kumar Srivastava, J.)