Dismissed

Samiran Nessa v. Aynal Hoque

Gauhati HC9 Nov 2021Crl.Rev.P./163/2020

Case brief

AI extract

What is this about?

In this revision, the High Court upheld the dismissal of the appellate court's order allowing the wife's appeal. The court held the appellant failed to prove domestic violence as her evidence was unreliable and unsubstantiated, while the defense successfully disproved the allegations.

What did the court decide?

The revision petition is dismissed. Letters Committed to Record are to be returned forthwith.

Samiran Nessa Vs Aynal Hoque — Domestic Violence | Gauhati HC (2021)

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GAHC010106842020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./163/2020

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SAMIRAN NESSA

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W/O AYNAL HOQUE, D/O SANGSHER ALI, VILL. RAKHAYASINI PT. I, P.O. RAKHAYASINI, P.S MORNOI, DIST. GOALPARA, PIN-783101

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VERSUS

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AYNAL HOQUE

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S/O LT. JULUM UDDIN, VILL. NEPALI KHUTI, BELTOLA, PATHARPARA, P.O. MORNOI, P.S MORNOI, DIST. GOALPARA, PIN-783101

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Advocate for the Petitioner : MR. A ROSHID

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Advocate for the Respondent : MR. M A SHEIKH

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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Date of hearing & judgment: 09.11.2021.

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JUDGEMENT AND ORDER (ORAL)

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The case of the petitioner is that she is married wife of the respondent. The marriage between the parties solemnized on 20.05.2016, as per the Muslim Shariyat and thereafter

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they started their conjugal life. However, after 6/7 months of their marriage, the respondent/husband, by demanding Rs.50,000/- from her parents, started to harass the petitioner and as the parents of the petitioner was poor, they failed to fulfill his demand. Accordingly, the husband of the petitioner inflicted both physical and mental torture upon her and lastly on 31.07.2017, at about 8 P.M., she was assaulted by her husband with a bamboo stick, resulting severe injuries on her body, at the instigation of other family members and she was driven out from their house. Since thereafter, she is in her parental house and she filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short ‘the D.V. Act’), praying different sort of reliefs such as maintenance, compensation, etc.

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The respondent contested the case by filing written statement contending, inter alia that he married the petitioner with the understanding that she will take care of his two children from his first wife (since deceased) and his old aged mother. But after few months of the marriage, she showed apathy towards the family liability towards the children and the old aged mother and left his house at her own volition. He denied any sort of torture, domestic violence or dowry demand, as alleged by the petitioner and prayed to dismiss the petition.

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The learned trial Court, after examining the witnesses of both sides, by its order dated 25.04.2019, directed the respondent from committing any domestic violence by the petitioner and also directed to pay a sum of Rs.1500/- per month to the petitioner towards the rent from the date of order. Additionally the respondent was directed to pay Rs.2,000/- per month as maintenance and to pay another sum of Rs.50,000/- as compensation, in PWDV Case No.47/2017. On appeal, so preferred by the respondent, it was held by the appellate Court that the respondent /petitioner is not entitled to get any relief and the appeal was allowed on

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contest vide order dated 30.06.2020, in Criminal Appeal No.11/2019.

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Challenging the findings of the appellate Court, the petitioner has preferred the present revision petition by contending that the learned Appellate Court has passed the order without application of mind, whereas the petitioner has proved her case against the respondent but the learned Appellate Court, by relying upon the evidence of DW.1 to DW.3, who are interested witnesses of the respondent, allowed the appeal, which has been passed illegally and arbitrarily and the same is liable to be quashed and set aside.

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Heard the submission of Mr. A. Roshid, learned counsel for the revision petitioner/wife. Also heard Mr. M.A. Sheikh, learned counsel appearing for and on behalf of the respondent/husband. Also gone through the impugned orders as well as the evidence adduced by both sides.

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PLEADINGS AND EVIDENCE ON RECORD

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I have carefully examined the pleadings between the parties before the learned trial Court, which is very much necessary to decide the fate of the present petition. The foundation of the case always lied upon the pleadings on record.

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The petitioner in her application under Section 12 of the D.V. Act, filed before the learned trial Court has contended that after few months of the marriage, by demanding Rs.50,000/-, by her husband at the instigation of other family members, she was firstly tortured and thereafter she was ousted from his house by assaulting her by the bamboo stick. But at the time of evidence, she developed her case to a great extent that due to such demand by her husband, her father paid Rs.40,000/- to him, which was never pleaded in the

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petition.

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On the next, during trial she has stated that she was ousted by the accused person by snatching her gold and silver ornaments from her, as a result of which she sustained severe injuries, which is again not pleaded in her petition. In support of the contention regarding his such dowry demand and torture and that an amount of Rs.40,000/- was paid against such demand, her parents as well as other members of the family has not been examined to substantiate the same.

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That apart, there is no injury report that she was brutally assaulted on the day, while she was ousted from her matrimonial house. Save and except few lines statement that she was tortured in her matrimonial house, she has not narrated any of the incident, date and time and manner as to how she was treated in her matrimonial house, which tantamount to cruelty or domestic violence in the eye of law. Further the PW.2 is a person who resides 4/5 miles away from her matrimonial house and he has no personal knowledge about the occurrence nor he is an eye witness to any of the incident. The PW.2 also stated that he has no knowledge about the payment of money made by the parents of the informant to the respondent/ husband.

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As against the case of the petitioner, the respondent/husband pleaded that the petitioner married him despite knowing his marital status that he has two children out his first wife (since deceased) and his old aged mother to maintain. But after the marriage, she refused to discharge her obligation and responsibility to his children and old aged mother and she herself left his house to avoid the responsibility and ultimately has filed the case on the false pretext. The respondent also pleaded that he went to bring back the petitioner along

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with some witnesses but she refused to return back.

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In support of his plea, the respondent/husband has adduced witnesses including himself to prove that he went to bring back the petitioner from his house after she left the matrimonial house but she denied to return. The other two witnesses who were examined, have supported the contention of the respondent/husband that the petitioner/wife being annoyed with the responsibilities of looking after the children and to escape the liability to look after old aged mother of the respondent, she returned to her parental house and refused to return back, evenafter their approach. The petitioner side has failed to rebut the evidence adduced by her husband.

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THE FINDINGS OF THE TRIAL COURT

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The learned trial Court, accepted the evidence of the petitioner and her other witnesses in toto and held that mere denial on the part of the husband does not disprove the allegation brought by the aggrieved woman. Relying upon the evidence of the petitioner/wife, the learned trial Court held that she was subjected to domestic violence and is entitled for relief, as sought for and provided various reliefs including prohibiting the respondents from committing any domestic violence upon the petitioner and directed him to pay a sum of Rs.1500/- per month to the petitioner towards the rental accommodation, to pay another sum of Rs.50,000/- as compensation and to pay Rs.2,000/- per month as maintenance. There appears no proper appreciation of evidence and failed to take note of material omission, on the part of the petitioner.

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ORDER OF THE APPELLATE COURT

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The learned appellate Court has appreciated the evidence that have been adduced by

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both the parties and noted the aspect that the petitioner/wife could not specify the time and manner etc., while demanding Rs.50,000/- or about the payment of Rs.40,000/- by her father. It also observed that the income of the respondent/husband could not be asserted by the wife nor the same was appreciated by the learned trial Court. Further it was held that the evidence of PW.2 is no way helpful to the petitioner, as he merely a hearsay witness and has no personal knowledge about the occurrence. The learned appellate Court also of the view that mere lodging of complaint cannot ipso facto treated as cruelty or to denote domestic violence and has held that the learned trial Court has failed to appreciate the discrepancies of the prosecution case and discarded the petitioner’s evidence that has been adduced. Further it has been held that in absence of any cogent material on record that the aggrieved person was subjected to domestic violence and other necessary evidence, the petitioner has failed to prove her case and there is nothing to discard the evidence of defence witnesses.

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The relevant portion of findings of the appellate Court is quoted below for ready reference:

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“18. As we all know the standard of proof under the Domestic Violence Act is not proof beyond reasonable doubt but is preponderance of probability. Even though the standard of proof in a DV Act case is that of preponderance of probability, such preponderance must be based on more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. As we all know proof on balance of probabilities on the other hand, admits of the possibility of contradictory versions being true but favours the version which has more weight than the other. To prove a fact by balance of probabilities is to prove one’s version better, even slightly, than the version of the other party. All the Court needs to be convinced of is that though both the versions of fact are possible, one version is more likely than the other to be true. In this case the version of the Appellant that the Aggrieved on his refusal to live

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separately from his mother and children had left the matrimonial home appears to be more probable”.

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FINDINGS OF THIS COURT

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This revisional Court has a limited scope to interfere into the findings of the appellate Court, as the appellate Court has the power and scope to re-appreciate the entire evidence, while coming to the conclusion. This Court can only appreciate as to whether there is any perversity in the findings of the appellate Court and/or any relevant piece of evidence has been ignored to interfere into such finding. As has been discussed above, no cogent and convincing evidence to prove the torture or domestic violence has been proved by the petitioner, whereas the defence side has substantiated their plea. The petitioner has failed to prove the necessary ingredients of domestic violence within the purview of Section 3 of the D.V. Act.

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Section 3 of the D.V. Act reads as follows:

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“3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it —

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(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

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(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

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(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

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(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

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Explanation I.—For the purposes of this section,—

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(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

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(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

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(iii) “verbal and emotional abuse” includes—

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(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

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(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;

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(iv) “economic abuse” includes—

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(a) 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 or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;

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(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

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(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

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Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration”.

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The material discrepancy in evidence of petitioner contradicting her own case, with

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exaggeration and decoration, has destroyed the credibility of evidence of the petitioner. Mere bold statement of a witness is not enough, unless the same is substantiated by legal evidence. As noticed above, the petitioner’s evidence is found wholly unreliable but the learned trial Court has accepted the same. On the other hand, the learned appellate Court has assigned good reasons, for rejection of such evidence, as discussed above.

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There being no any perversity in the findings of the appellate Court, no interference is called for in the present revision petition. Accordingly the same is dismissed.

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Return back the LCRs forthwith.

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JUDGE

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Comparing Assistant

Samiran Nessa v. Aynal Hoque

Case brief

What is this about?

What did the court decide?

Samiran Nessa v. Aynal Hoque

Case brief

What is this about?

What did the court decide?

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