Praveen Kumar and Anr. Vs Nardei

The present petition arises out of judgment, dated 29.07.2022, as passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, whereby appeal filed the present petitioners under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for brevity, “the D.V. Act”), has been dismissed and the order dated 13.06.2018, as passed by the learned Chief Judicial Magistrate, Bilaspur, allowing the petition filed by the present respondent under Section 12 of the Act, has been affirmed.

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1Whether reporters of the local papers may be allowed to see the judgment? Yes.

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2 Brief facts of the case are that the present respondent, who is wife of present petitioner No.1 and daughter-in-law of petitioner No.2, preferred an application under Section 12 of the D.V. Act against the petitioners in the Court of learned Chief Judicial Magistrate, Bilaspur, on 27.05.2014, wherein it was averred that the respondent got married to petitioner No.1 on 11.10.2013 as per Hindu rites and ceremonies. After solemnization of marriage, the parties (petitioner No.1 and respondent) lived as husband and wife for five days. Thereafter, petitioner No.1 started harassing and taunting the respondent and even gave beatings to her for not bringing dowry, such as golden chain, bracelet etc. The conduct of the petitioner No.1 was brought to notice of petitioner No.2, however instead of redressing grievance of the respondent, petitioner No.2 stated that whatever is being done by the petitioner No.1 is correct as her father has not given anything in the marriage to either petitioner No.1 or his parents. They used to torture her till the time she brings money from her father. When this fact was brought to the notice of father of petitioner No.1, he stated that he would solemnize marriage of his son with some other girl and she will have to tolerate all these things without any protest.

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3 It was further averred that when the respondent used to return from the school, her husband, petitioner No.1, used to snatch her purse and threaten her that in case anything is brought to the notice of her parents in that event she would be killed. After prolonged illness, when her father-inlaw died, her mother-in-law, petitioner No.2, started taunting the respondent that he has expired on account of giving poison by her and even stated that the respondent has got nothing in her matrimonial home. When the respondent totally broke down on account of physical and mental harassment being meted out to her at the hands of the petitioners, she made a complaint to SHO on 3.4.2014 on the basis of which, case under the provisions of D.V. Act was instituted.

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4 It is the case of the respondent that the petitioner No.1 is MBA and is working in a company, where he is getting salary more than Rs. 20,000/-. Since she has no independent source of income therefore, at least 10,000/- per month maintenance was sought to be granted to her along with room and her personal belongings.

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5 The petition, as filed by the respondent, was contested by the present petitioners, wherein various grounds with regard to maintainability, cause of action, jurisdiction were raised. On merits, all allegations, as made in the petition, were

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refuted and denied. It was stated that the respondent is well qualified lady with M.A. B.Ed. degree. She is doing private job and earning good salary. As per petitioner No.1, he is an unemployed and thus, he prayed for dismissal of the petition, as filed by the respondent.

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6 The learned trial Court on 11.11.2014 framed the issues in the following manner:-

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Whether the aggrieved person is entitled for an order of maintenance and monetary relief? OPP

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Whether the aggrieved person is entitled for residence order? OPP

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Whether the aggrieved person is also entitled for protection order? OPP

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Whether the petition is not maintainable? OPR

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Whether this Court has no jurisdiction to hear and decide the petition? OPR

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Final order.

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7 The learned trial Court directed the parties to

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adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial Court allowed the petition under Section 12 of the D.V. Act vide its order dated 13.06.2018, relevant portion whereof reads as under:-

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The respondents are restrained from beating, abusing or committing any sort of domestic violence against the petitioner.

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Petitioner is held entitled for maintenance @ Rs.2500/- per month from respondent No.1 from the date of order of the petition.

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Petitioner is held entitled for residence i.e. a separate room, kitchen and toilet in her shared household, in case respondent No.1 is not able to provide the same in the shared household , he is directed to pay rent of similar accommodation in the vicinity of his house.

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8 Feeling dissatisfied, the petitioners preferred an appeal under Section 29 of the D.V. Act before the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, on 24.04.2019, who, vide judgment dated 29.07.2022 dismissed the aforesaid appeal and affirmed the order dated 13.06.2018, as passed by the learned trial Court.

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9 Still being aggrieved by the order dated 13.06.2018 and judgment dated 29.07.2022, the petitioners have approached this Court by filing the instant petition.

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10 It is contended by Mr. Varun Chandel, learned counsel for the petitioners that the impugned order and judgment, as passed by the learned Courts below, are erroneous and liable to be quashed and set aside. He has

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submitted that the petition filed by the respondent under Section 12 of the D.V. Act deserves to be dismissed and no relief ought to have been granted to her by the learned Courts below.

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11 On the other hand, Mr. Tejasvi Sharma, learned counsel for the respondent, has defended the aforesaid impugned order and judgment. He has submitted that the respondent is running from pillar to post for the last more than 12 years, however till date not even a single penny has been paid to her by petitioner No.1. He has further submitted that though the maintenance amount of Rs.2500/- per month, as granted to the respondent, is on the lower side, even then the petitioner No.1 has failed to pay the same to her. Therefore, he has prayed for dismissal of the instant petition being devoid of any merit.

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12 I have heard the learned counsel for the parties and have also gone through the case file.

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13 It is not in dispute that the parties got married on 11.10.2013 as per Hindu rites and ceremonies and after solemnization of marriage, they lived together for only few days. It is the case of the respondent that after few days of marriage, the petitioners started harassing her and they used

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to taunt her for bringing insufficient dowry by saying that

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neither golden chain nor bracelet has been given by her father. They used to say that her father has not given anything in the marriage either to them or their son. Her father-in-law used to say that he would re-marry petitioner No.1 with some other girl. Even death of her father-in-law, due to prolonged illness, was attributed to her by saying that she had given poison to him. Thereafter, she was turned out from the matrimonial house.

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14 In order to substantiate her claim, the respondent entered into the witness box as AW-1 and tendered in evidence her affidavit, Ext. AW1/A, wherein she reiterated all the averments, as made in the petition under Section 12 of the D.V. Act. In her cross-examination, she admitted that after solemnization of the marriage, she remained in her matrimonial house only for three days. Though she admitted that at that time she had no physical relation with her husband, however she again stated that at that time, she had physical relation with her husband. She returned to her matrimonial house in the month of November and thereafter she returned back to her parental house. She admitted that prior to her marriage, she was working as a Teacher in a school at Chharol, which was situated at a distance of about 3 kms from her parental house. She stated that she used to come to her matrimonial house

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once in a week. On account of dispute, President of Gram Panchayat reconciled the matter between the parties. After death of father-in-law, she returned soon on duty. She specifically denied that she filed the petition in order to harass the petitioners. She admitted that she is working as a receptionist in TATA Motors Agency at Bilaspur for the last about 3-4 months. She denied that her monthly salary is about Rs.20,000/-.

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15 In order to support case of the respondent, her father, Jodha Ram, entered the witness box as AW2 and tendered in evidence his affidavit, Ext. AW2/A, wherein he stated that the parties got married on 11.10.2013 as per Hindu rites. After marriage, they lived together hardly for five days, thereafter, differences arose between them and the petitioners ousted his daughter from their house, as a result of which, she started residing in her parental house. He further stated that the petitioners used to give beatings and torture her. Though request was made to the petitioners not to do so, however, all in vain. The petitioners used to say that he (AW2) did not give golden bracelet to petitioner No1. He stated that he gave sufficient dowry in the marriage and since he has become old, he could not tolerate harassment at the hands of the

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petitioners. His daughter has no independent source of income, therefore, the Court may grant maintenance to her.

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16 In his cross-examination, he stated that he is a retired Driver from HRTC. He admitted that after few days of marriage, his daughter returned to her parental house. He also admitted that after marriage, when he visited the house of the petitioners, it was not in a good condition, thus, he suggested them to construct a good house. He denied that it was precondition for the marriage between the parties. He admitted that though the Pradhan of the Gram Panchayat tried to reconcile the dispute between the parties, however no concrete solution could be arrived at. He stated that he has heard from the people that petitioner No.1 is working in a company and earning a handsome salary.

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17 In order to rebut the case of the respondent, petitioner No.1, while appearing as RW3, has tendered in evidence his affidavit, Ext. RW3/A. In his deposition, he denied all the averments as made in the petition filed by the respondent under Section 12 of the D.V. Act and stated that the respondent resided in the matrimonial house only for few days. He stated that after the marriage, the respondent told him that she does not like him and she wanted to marry some other person as he is not person of her choice. He stated that after

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marriage, they had no physical relation between them. The respondent left the company of the petitioner without any rhyme and reason and started living in her parental house.

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18 RW1, Pritam Singh, deposed that he is Pradhan, Gram Panchayat Bakroa since 2011. He stated that the petitioners are residents of his village and the distance of their house from his house is about 100 mts. He stated that after solemnization of the marriage, the respondent resided only for few days in the house of the petitioners. The petitioner No.1 is an unemployed person, however the respondent is working as a Teacher in the school. He stated that no complaint was filed by the respondent with respect to giving beating or harassment at the hands of the petitioners.

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19 In cross-examination, he stated that there are two rooms in the house of the petitioners. One room is on the lower side and other room is on the upper side. The house is kachha and in the family, mother of petitioner No.1, brother, sister-in-law and their children are residing. He stated that the respondent used to work in a school, which was situated at about 40 kms away from her matrimonial house. He feigned ignorance that after marriage, the petitioners and their family members started harassing the respondent physically and mentally and even gave beatings to her for want of dowry.

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20 RW2 Dropati Devi, deposed that she remained as Member of Ward No.2 from 2011 to 2015. She stated that respondent never made any complaint against the petitioners on account of any harassment or for want of dowry.

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21 In her cross-examination, she stated that she does not know that the respondent had complained against the petitioners on account of harassment.

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22 The evidence, as led by the parties in conjunction with their respective pleadings, reveals that the parties got married as per Hindu rites and ceremonies on 11.10.2013. It is an admitted fact that after the marriage, the respondent lived in the company of the petitioners for a limited period. It is the case of the respondent that after solemnization of the marriage, she was being harassed by the petitioners mentally and physically for bringing insufficient dowry. The petitioners used to taunt her for not giving golden chain and bracelet. Testimony of the respondent has been corroborated by her father, AW2 Jodha Ram.

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23 Petitioner No.1, Praveen Kumar, though has filed his affidavit, Ext. RW3/A, but he failed to enter the witness box for the purpose of cross-examination by the respondent. Since

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he failed to put appearance for the purpose of crossexamination, therefore, the aforesaid affidavit, as filed by him,

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cannot be read in the form of evidence. The testimony of this witness is incomplete and valueless since he failed to appear for cross-examination. The evidentiary value of the same is very low or disregarded entirely, as the opposite party lost the opportunity to challenge the witness’s credibility.

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24 In Gopal Saran vs. Satyanarayan, AIR 9 SCC

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1141 , it was held that if party is not subjecting to crossexamination in spite of order of Court, it is not safe to rely on examination-in-chief. It would be apt to refer to para 5 of the aforesaid judgment, which reads as under:-

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“5. On the basis of the aforesaid, it was contended that it was the definite case of the defendant in Examination-inchief, that the board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross examination in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination- in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross-examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case, before

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the defendant went to the witness box. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-inchief also he did not make out such a case and on the contrary his case was that it was that it was the defendant-appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him. It was, however, submitted on behalf of the appellant that when the shop had been let out to the defendant appellant for carrying on business it was the fight of the defendant appellant to carry on the business. It was legally

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permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession.”

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25 In Vidhyadhar vs. Mankikrao, AIR 1999 SC

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1441 , the Hon’ble Supreme Court has held as under:-

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16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

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26 The only evidence, which has been placed on record, is testimonies of RW1 and RW2, who in their crossexamination, have not denied that after marriage, the respondent was harassed and beaten up by the petitioners for not bringing sufficient dowry. There is no denial by the said witnesses qua mental and physical torture being meted out to the petitioners at the hands of the petitioners. The evidence as placed on record leaves no doubt that the respondent was mentally and physically tortured by the petitioners, as a result whereof, she was compelled to file petition under Section 12 of the D.V. Act against the petitioners.

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27 It has come on record that the petitioner No.1 is an able bodied person and an MBA graduate, Thus, being an able bodied person, it is his responsibility and duty to maintain his wife. Though, it is case of petitioner No.1 that the respondent is working as Receptionist in Tata Motors, Bilaspur and earning handsome salary, however no proof of any kind has been placed on record to substantiate this contention.

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28 The learned courts below, after taking into consideration the oral as well as documentary evidence, vide the impugned order and judgment, have rightly determined point in controversy and concurrently held the respondent to be entitled for maintenance @ Rs.25,00/- per month to be paid by

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petitioner No.1 from the date of the order and for residence i.e. a separate room, kitchen and toilet in her shared household, apart from restraining the petitioners from beating, abusing or committing any sort of domestic violence against the respondent.

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29 The petitioners have approached this court by invoking provisions of article 227 of the Constitution of India. This Court while exercising supervisory jurisdiction cannot act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. This is not to substitute its own decision on facts and conclusion, for that of the inferior court.

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30 The Hon’ble Supreme Court in Sugarbai M. Siddiq

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vs. Ramesh S. Hankare (Dead) by LRs, (2001) , has held as

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under:-

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“6. There can be little doubt that in an application under Article 227 of the Constitution, the High Court has to see whether the lower courts/tribunal has jurisdiction to deal with the matter and if so, whether the impugned order is vitiated by procedural irregularity; in other words, the court is concerned not with decision but with decision making process. On this ground alone the order of the High Court is liable to be set aside.”

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31 In Garment Craft vs. Prakash Chand Goel, 2022

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(4) SCC 181 , the Hon’ble Supreme Court has held as under:-

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“15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

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16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:-

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“6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”

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32 The Hon’ble Supreme Court in Civil Appeal No.

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13801/2025, titled as Shri Digant vs. M/s. P.D.T. Trading

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Co. & ors. , has held as follows:

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“22. The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a three-Judge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors.1 This Court held that judicial orders of civil courts

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are not amenable to a writ of certiorari under Article 226, though they may be questioned in the supervisory jurisdiction of the High Court under Article 227 of the Constitution. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.”

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The maintenance, as has been awarded by the learned Courts below, is very reasonable amount. The learned counsel for the petitioners has not been able to show perversity or illegality, if any, in the impugned judgment and order, concurrently passed by the learned Courts below, which in the instant proceedings, do not call for any interference by

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this Court and are upheld accordingly.

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