Partly allowed

Raj Kumar v. Sita Devi

Himachal Pradesh HC10 Oct 2017CRMMO/243/2011

Case brief

AI extract

What is this about?

The High Court examined an appeal related to maintenance and property restrictions under the Domestic Violence Act. It set aside maintenance awards for minor children and the respondent as they attained majority and possession, upholding the property restraint order.

What did the court decide?

Maintenance to minor children and respondent set aside; order restraining petitioner from alienating property and committing domestic violence allowed.

Raj Kumar Vs Sita Devi — Domestic Violence | Himachal Pradesh HC (2017)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

Cr.MMO No. 243 of 2011.

¶3

Date of decision: 10.10.2017.

¶4

Raj Kumar …..Petitioner.

¶5

Versus

¶6

Sita Devi ….. Respondent.

¶7

Coram

¶8

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No

¶9

For the Petitioner : Mr. Suneet Goel, Advocate.

¶10

For the Respondent : Ms. Leena Guleria, Advocate.

¶11

Tarlok Singh Chauhan, Judge (Oral).

¶12

There is no dispute that the parties herein are husband and wife, who have been married more than 25 years back and out of their wedlock, two children have been born.

¶13

The respondent-wife filed a petition under the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’) seeking maintenance against the petitioner-husband.

¶14

The parties were put to trial and the trial Court allowed the petition in the following terms:

¶15

“1. The respondent is prohibited by a residence order from alienating or disposing off the shared house-hold situated in Village Mandiani.

¶16

The respondent is further prohibited from committing domestic violence by using any physical force or mental torture by removing the crops sown by the aggrieved person in the land recorded in the name of

¶17

Whether thereportersof thelocal papers may beallowedtoseetheJudgment?Yes

¶18

¶19

the respondent and further prohibited from alienating the assets now onward the landed property to the extent more than 1/4 share either in Village Mandiani or Dhanoa as reflected in Ext. C-1 to Ext.C-4, which slall form the part of the order except with the leave of the Magistrate. The order shall not effect the alienation already made. It is however, made clear that if the applicant/aggrieved person or her children have any other independent right to challenge that alienation, this order will not come in their way.

¶20

The applicant/aggrieved person is further allowed the maintenance of Rs.1000/- per month and Rs.500/- per month each to the minor children who are residing with applicant/aggrieved person from the date of the petition i.e. Rs.2000/- per month onward.”

¶21

The order passed by the trial Court was assailed in appeal before the Court of learned Sessions Judge, Hamirpur, H.P., who vide impugned judgment dated 16.7.2011 dismissed the same, constraining the petitioner to invoke the jurisdiction of this Court by filing a petition under Section 482 of the Code of Criminal Procedure.

¶22

I have heard learned counsel for the parties and have gone through the material placed on record.

¶23

Before adverting to the relative merits of the case, it would be necessary to notice some of the statutory provisions of the Act as are relevant for the adjudication of this case.

¶24

Section 2(a) of the Domestic Violence Act, 2005 defines "aggrieved person" as follows:

¶25

“ 2 .(a) ‘ aggrieved person’ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;”

¶26

¶27

Therefore, it is clear that apart from the woman who is in a domestic relationship, any woman who has been, in a domestic relationship with the respondent, if alleges to have been subjected to act of domestic violence by the respondent comes within the meaning of "aggrieved person".

¶28

¶29

Definition of “domestic relationship” reads as follows:

¶30

“ 2. (f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”

¶31

From the aforesaid provision we find that a person aggrieved (wife herein), who at any point of time has lived together with husband (first respondent) in a shared household, is also covered by the meaning of "domestic relationship".

¶32

¶33

Section 2(s) defines "shared household":

¶34

“2.(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, 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;”

¶35

Therefore, if the “person aggrieved” (wife herein) at any stage has lived in a domestic relationship with the respondent (husband herein) in a house, the person aggrieved can claim a "shared household".

¶36

¶37

9. Definition of " domestic violence" as assigned in Section 3

¶38

reads:

¶39

“ 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 –

¶40

(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

¶41

(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

¶42

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

¶43

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

¶44

Explanation I.-- For the purposes of this section -

¶45

(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;

¶46

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

¶47

(iii) ‘ verbal and emotional abuse’ includes -

¶48

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

¶49

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

¶50

(iv) ‘ economic abuse’ includes --

¶51

¶52

(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, household 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 household and maintenance;

¶53

(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

¶54

(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.

¶55

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.”

¶56

Therefore, apart from “physical abuse” and “sexual abuse”, “verbal and emotional abuse” and “economic abuse” also constitute “domestic violence”.

¶57

¶58

Chapter IV of the Domestic Violence Act, 2005 deals with "Procedure for obtaining the orders of reliefs". Section 12 relates to the application to Magistrate, which reads as follows:

¶59

12. 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:

¶60

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.

¶61

(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:

¶62

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.

¶63

(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.

¶64

(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.

¶65

(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.”

¶66

¶67

As per proviso to Sub-section (1) of Section 12, the Magistrate before passing any order Under Section12 is required to take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

¶68

The reliefs which can be granted by the Magistrate under the Domestic Violence Act, 2005 are as follows:

¶69

(i) Right to reside in a shared household-Section 17;

¶70

(ii) Protection orders-Section 18;

¶71

(iii) Residence orders-Section19;

¶72

(iv) Monetary relief-Section 20;

¶73

(v) Custody orders-Section 21;

¶74

(vi) Compensation orders-Section 22 and

¶75

(vii Interim and ex parte orders-Section 23.”

¶76

Notably, certain developments have admittedly taken place during the pendency of the petition which have definite bearing on the orders passed by the learned Courts below. The children, who are minors at the time of passing of the orders have attained majority, the daughter of the parties has got married and is residing with her in-laws, whereas the son is gainfully employed at Chandigarh and, therefore, the order of maintenance awarded in their favour at the rate of `500/per month is not sustainable and is accordingly set-aside.

¶77

Further the parties are ad idem that it is the respondent, who at present is in possession of the entire property of the petitioner including the house thereupon and domestic animals including milching cow and obviously, therefore, the order of maintenance of `1000/- per month in her favour cannot also be sustained and is accordingly setaside.

¶78

Now, the only question which remains for consideration is with respect to the order of the trial Court restraining the petitioner from

¶79

¶80

alienating or disposing of his property and further prohibiting him from committing domestic violence by using physical force or mental torture. Obviously, no exception can be taken to the said order, more particularly, when it is the legal obligation of the petitioner to maintain his wife and that apart to ensure that the wife has sufficient means to maintain herself and is not driven to a life of vagrancy.

¶81

In view of the aforesaid discussion, the petition is partly allowed in the aforesaid terms, leaving the parties to bear their own costs.

¶82

October 10, 2017. (Tarlok Singh Chauhan), (G R) Judge

Raj Kumar v. Sita Devi

Case brief

What is this about?

What did the court decide?

Raj Kumar v. Sita Devi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shriram General Insurance Company Limited Vs Radha Devi

Sunil Kumar and Others Vs H.P Wakf Board and Others

Dhani Ram Vs Jeet Ram and Others

Raksha Gupta Vs State

Ramesh Chand and Others Vs Mamta Devi

State of Hp Vs Kamal Thakur