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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 438 of 2018
Shivesh Kumar Jha
…… Petitioner
Versus 1. The State of Jharkhand 2. Meenu Jha @ Golden
…… Opp. Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mrs. J. Mazumdar, Advocate
Mr. Ayush Deo, Advocate
For the State
: A. P. P.
For the O. P. No. 2 : Mr. P. K. Mukhopadhyay, Advocate
Mr. Wazid Ali, Advocate
Mr. Sheyakur Rahman, Advocate
Mr. R. K. Verma, Advocate
17/05.03.2024 This Criminal Revision Application has been filed on behalf of the petitioner challenging the judgement dated 05.02.2018 passed by the learned Additional Sessions Judge-III Dhanbad in Cr. Appeal No. 74/2017 confirming the order passed in C.P. Case No. 960 of 2012 the Court of Sri Tabinda Khan, the Judicial Magistrate 1st Class Dhanbad on 29.04.2017 whereby and whereunder the learned Court below has directed the petitioner as follows:-
(i) Petitioner (Shivesh Jha) is hereby prohibited from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact. (Order under Section 18),
(ii) Petitioner (Shivesh Jha) is hereby directed to pay Rs. 5,000/- (Five thousand) per month to the applicant. (Order under Section 19(f) from the date of order),
(iii) Petitioner (Shivesh Jha) is hereby directed to pay Rs. 30,000/- (thirty thousand) to the applicant as medical expenses (Order under Section 20 (1) (b)),
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(iv) Petitioner (Shivesh Jha) is hereby directed to pay Rs. 20,000/- (twenty thousand) to the applicant as compensation for mental torture and emotional distress, caused by the acts of domestic violence committed by the petitioner. (Order under Section 22).
The case of the applicant i.e. the opposite party no. 2, in brief, is that her marriage was solemnized with Shivesh Kumar Jha i.e. the petitioner on 11.02.2008 and demand of cash, gold ornaments and Maruti car with other household articles was made. However they managed to give three (3) lacs cash, 10 bhar gold ornaments as dowry in the hands of the mother-in-law of the complainant. Martu Alto car was handed over to petitioner. However, unfortunately, father-in-law of the complainant died just two days after marriage, for which she was humiliated by calling "dayan" again, although Rupees One Lakh was given to the petitioner as dowry. It is alleged that after the chturthi, the complainant went to her matrimonial home at Etwari Nagar with her husband and during her stay in the matrimonial home from 05.03.2008 to 04.08.2008 she was subjected to torture on account of further demand of dowry. She conceived during her stay in the matrimonial home and the petitioner became curious to know whether she has conceived a male or female child and the petitioner-Shivesh Jha wanted her to get an ultrasound but she did not agree. It is alleged that on 08.07.2008, she was assaulted and a medicine, to abort the child, was forcefully given to her and due to which a disabled child was born on 13.01.2009 at Dhanbad Nursing Home, Dhanbad and the child was later on referred to Vellore for better treatment. However, none from the side of the petitioner came to even see the baby. However, the child died on 26.08.2009. After the death of the father of the petitioner, he was appointed as a Teacher on compassionate ground and the
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petitioner started demanding Rupees Three (3) Lakh instead of Rupees One (1) Lakh. When the complainant refused then she was locked in the room without providing meals or water due to which she suffered a lot of physical and mental agony. Ultimately she was thrown out of the matrimonial house on 04.08.2008 and the petitioner threatened to divorce her and said that he would marry again by taking dowry of Rs. Ten (10) lacs. Thereafter, a petition under Section 9 of the Hindu Marriage Act was filed which was later withdrawn on 10.07.2009 and even entire Stridhan of the complainant of Rs. Five (5) Lacs is with the petitioner and even the Maruti car was not transferred in the name of the petitioner and it was left by the petitioner in front of the house of the complainant's parental house at Mohan Bazar prior to withdrawal of divorce suit, which was filed by the petitioner on 05.06.2009 as T M (S) No. 228/2009 before the Principal Judge wherein a pendent lite maintenance u/s 24 was allowed which the petitioner is avoiding.
The petitioner has appeared and filed show-cause on 22.09.2012. In the show-cause petitioner denied the allegation levelled against them. It was stated that the complainant had filed the present case after a long delay of about 4 years without any explanation of delay. The complainant-O. P. No. 2 has not furnished para- 4 of Form II which requires the complainant to disclose details of previous litigation as the complainant wanted to conceal the fact which will go against her. The complainant- O.P.No. 2 has not mentioned that she has earlier filed a complaint case against the petitioner and three others having C.P. No. 1229/2009 on 04.07.2009 which is presently pending bearing S.T. No. 327/2010 under Section 498-A, 315/511 I.P.C and Section 4 of the D.P. Act. Then, she has also filed a petition u/s 125 Cr. P.C before the Family Judge, Dhanbad, bearing M.P. Case no.
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136/2009. The petitioner denied that they have taken any dowry or demanded any dowry and they accepted that the father of petitioner had expired. The petitioner denied living under the same roof with the complainant-O. P. No. 2 as she never came to the matrimonial house. However, the date of birth and date of death of the disabled child was accepted. He further admitted about date of filling and withdrawal of suit, but he denied the allegation that the petitioner is not complying with the order dated 04.10.2010 passed in T.M. (S) No. 228/2009. The fact of marriage is accepted. It was denied that the complainant stayed in the matrimonial house and it was alleged that on 08.07.2008 she came to the matrimonial home along with her brother, father and 5- 6others and assaulted the widow mother-in-law namely, Sujan Devi and other family members and also threatened to implicate them in dowry and other criminal cases. Thereafter the petitioner had filed a written report on 08.07.2008 in Dhanbad P.S and to Superintendent of Police on 12.07.2008 but no action was taken and photocopy of the written report dated 12.07.2008 was attached as Annexure. Even an information petition was filed on 15.07.2008 by the petitioner before the Learned C.J.M., Dhanbad having Misc. Case No. 1846/2008. It was further stated that the father of the petitioner- Shivesh Jha was a Teacher in a State Government School and after his death they got death benefits and the complainant and her family members started eyeing them due to which the differences arose. The petitioner withdrew the suit for restitution of conjugal rights having T. M. (S). No. 375/2008 as he felt living with the complainant will be harmful for him. When the Learned Family Judge was trying to settle the dispute complainant-O.P.No. 2 addressed the petitioner (Respondent in the complainant case) with a Word "Kamina" in the open court. On 01.08.2008 the father of the complainant threatened the mother of the petitioner by
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telephone and written report of the same filed in Dhanbad P.S and S.P Dhanbad Photocopy of the written report duly received dated 01.08.2008 and received by the office of D.C. on 07.08.2008. However, being aggrieved by the activities of the complainant, the petitioner had filed a petition under Section 13 (1) (i-a) of Hindu Marriage Act, 1955 on 05.06.2009 having T.M. (S) No. 228/2009 and a petition under Section 125 Cr.P.C. is filed by the complainant on very date, having M.P. Case no. 136/2009.
Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for the O. P. No. 2.
It is submitted by the learned Counsel for the petitioner that the impugned judgement dated 05.02.2018 passed by the learned Additional Sessions Judge-III Dhanbad in Cr. Appeal No. 74/2017 and the order dated 29.04.2017 passed in C.P. Case No. 960 of 2012 by Sri Tabinda Khan, the Judicial Magistrate 1st Class Dhanbad are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the complainant-opposite party no.2 has suppressed the several facts before filing of a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It is submitted that the petitioner had always remained outside Dhanbad for Education and Job and never tortured and harassed the complainant –opposite party no. 2 with regard to demand of dowry and he had never lived in domestic relationship in the meaning of Section 2 of the Protection of Women from Domestic Violence Act, 2005 and the complainant-opposite party no.2 does not live with this petitioner and has never lived with the family members of the petitioner and hence claim of the complainant – opposite party no. 2 to live in her matrimonial home under Section 19 of the Protection of Women from Domestic Violence Act, 2005 is not maintainable. It is submitted that the order of residence can be filed only against the husband by wife, but not against the
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relative of the husband and house of the mother in-law i.e. the mother of the petitioner cannot be shared household of the complainant. It is submitted that the complainant is daughter of Mritunjay Kumar Jha, who is an Advocate of Civil Court, Dhanbad and as such, the learned Courts below have favoured the complainant-opposite party no. 2. It is submitted that even medical bills, prescriptions of the Doctors have not been proved by the competent persons and no Doctors were examined as the witnesses. It is submitted that the case under Section Domestic Violence Act is barred by limitation as the present case has been filed after delay of four years of the alleged occurrence without giving any explanation. It is submitted that the complainant is getting monthly maintenance from the petitioner and the petitioner has been appointed in service on compassionate ground and he is bound to look after his other family members also. It is submitted that Trial Court and the Appellate Court below have not considered the defence of the petitioner and hence, the impugned judgments may be set aside.
Learned counsel for the State has submitted that the impugned judgments passed by the learned Court below do not require any interference. It is submitted that the learned Appellate Court below and the learned Trial Court have committed no illegality while passing the impugned judgments. It is submitted that the petitioner is paying Rs. 1,500/- in divorce case bearing TMS No. 228 of 2009 filed under Section 13 (1) (a) of the Hindu Marriage Act as interim maintenance in M. P. Case No. 136 of 2009. It is submitted that the petitioner has bought house and other landed property and is a Government Servant is earning sufficiently and opposite party no. 2 has rightly been directed to pay Rs. 5,000/- to the complainant-opposite party no. 2 under Section 19 (f) of the D. V. Act. It is submitted that expense of
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Rs. 30,000/- was incurred towards the medical expenses and the same was rightly ordered under Section 20 (1) (b) of the Domestic Violence Act and the learned Court below has also rightly directed to pay Rs. 20,000/- under Section 22 of the Domestic Violence Act to the complainant-opposite party no. 2 as compensation and hence there are concurrent findings of fact and as such, this Criminal Revision Application may be dismissed.
On the other hand, learned counsel for the opposite party no. 2, after adopting the submission of the learned counsel for the State, has submitted that this Criminal Revision Application is devoid of merit. It is submitted that the petitioner has thoroughly neglected his wife and child, who had later on died due to the act of the petitioner. It is submitted that the complainant-opposite party no. 2 has incurred Rs. 30,000/- as medical expenses towards her operation at the time of birth of her child and she has suffered mental torture and agony due to the act of the petitioner, hence, the compensation of Rs. 30,000/- has rightly been directed to be paid. It is submitted that there is no illegality by the learned Court below by directing the petitioner to pay Rs. 5,000/- per month under Section 19 (f) of the Domestic Violence Act. It is submitted that the complainant was examined as CW-2 and she has fully supported her case. It is submitted that CW-1, Mrintunjay Kumar Jha and CW-3, Madan Prasad Sharma have fully supported the case of the complainant-opposite party no. 2. It is submitted that evidence of P.W.-1, Santosh Kumar Mishra is not reliable as he is an interested witness and friend of the petitioner. It is submitted that complainant has suffered Domestic Violence at the hands of the petitioner and she was taunted as ‘Dian’ after the death of her father in-law within two days and she was sent back to her parental home on 05.03.2008 and after ceremony of Chaturthi taking place on 25.02.2008. It is submitted that considering the
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fact that the petitioner got job on compassionate ground in Government Service, then he demanded Rs. 3,00,000/- instead of Rs. 1,00,000/-. It is submitted that Divorce Suit bearing TMS No. 375 of 2008 is still pending. It is submitted that CDPO has also submitted her report in support of the case of the petitioner, which shows that the husband is not willing to keep the complainant under any circumstances and hence, this Criminal Revision Application may be dismissed.
Perused the Lower Court Records and considered the submissions of both the sides.
It appears that the marriage between the petitioner and the complainant-opposite party no. 2 is admitted and relationship of the husband and wife is also admitted.
It transpires that the marriage between the petitioner and the complainant-opposite party no. 2 was solemnized on 11.02.2008. However, the father of the petitioner, who was father in-law of the opposite party no. 2, had died within two days of their marriage. It is alleged that after Chaturthi, the opposite party no. 2 had only lived in her matrimonial home from 05.04.2008 to 04.08.2008 and she was subjected to torture on account of non- fulfillment of dowry demand.
It is also alleged that even the medicine was administered her forcibly in order to abort to her child, which was in her womb on 08.07.2008 and ultimately she has given birth to a disabled child on 13.01.2009 at Dhanbad Nursing Home and the said child was referred to Vellore for better treatment, but the said child had died on 26.08.2009, but in the meantime, the petitioner was appointed as a Teacher on compassionate ground after the death of his father. However, the petitioner is alleged to have demanded dowry of Rs. 3,00,000/- and locked the complainant-O.P. No. 2 in a room without providing her meal and water on 12.07.2008 and
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she was thrown on 04.08.2008. Thereafter the petitioner had filed a petition under Section 9 of the Hindu Marriage Act, which was withdrawn on 10.07.2009.
It further transpires that the petitioner had filed Divorce Suit bearing TMS No. 228 of 2009 before the learned Principal Judge, Family Court, Dhanbad on 05.06.2009 and in which a petition under Section 24 of the Hindu Marriage Act was filed for grant of pendente lite maintenance.
It further reveals from the order passed by the learned Court below that in the meantime, the petitioner was directed to pay Rs. 4,000/- per month in M. P. Case No. 136 of 2009 to the complainant-O. P. No. 2.
It further reveals that thereafter the complainant-O. P. No. 2 has filed complaint case bearing C. P. Case No. 1229 of 2009 before the learned Chief Judicial Magistrate, Dhanbad after filing of the divorce case. However, the petitioner and others were granted Anticipatory Bail by the High Court of Jharkhand and thereafter, further proceeding of C. P. Case No. 1229 of 2009 was also stayed by the High Court of Jharkhand vide order dated 01.04.2011 passed in Cr. M. P. No. 237/2010.
It transpires that the complainant-opposite party no. 2 got examined, who are as follows:- (i) CW-1 is Mirtunjay Kumar Jha, father of the complainant,
(ii) CW-2 is Meenu Jha, the complainant herself and
(iii) CW-3 is Madan Prasad Sharma.
The complainant-opposite party no. 2 has got marked the following Exhibits:-
(i) Ext.-1 is the complaint petition,
(ii) Ext.-1/1 to Ext.-1/7 are the signature of the complainant on complaint petition,
(iii) Ext.-2 is Discharge Slip by Dr. Seema Sahu,
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(iv) Ext.-3 is Prescription by Dr. Arbind Jha,
(v) Ext. -4 is Discharge Slip by Dr. S. C. Munshi, (vi) Ext. -5 is Death Certificate dated 26.08.2009, (vii) Ext. -6 is Letter Dated 10.07.2008 by Meenu Jha and (viii) Ext. -6/1 is Letter Dated 13.07.2008 (all without objection) (ix) Ext.-A is Certified Copy of petition in Cr. Revision No. 430 of 2012.
On the other hand, the petitioner –husband has examined one (1) witness in support of his case, which is as follows:-
(i) D.W.-1, Santosh Kumar Mishra
The husband-petitioner has got marked the following documents as the Exhibits:-
(i) Ext.-A is the certified copy of order dated 04.10.10. passed in TMS No. 228 of 2009,
(ii) Ext.-B is the certified copy of the order dated 18.05.2012 passed in M. P. Case No. 136 of 2009 (with objection), (iii) Ext.-C is the certified copy of deposition of Meenu Jha @ golden in TMS No. 228 of 2009, (iv) Ext. –D is Original permission acceptance letter issued by MADA on 26.05.2000 (with objection) and (v) Ext. –E is the original Rent Receipt No. A000903 dated 03.07.2014 (with objection) 18. Apart from this one Archana Singh CDPO, Dhanbad is examined as a Court witness in the present case.
Thereafter, the learned Court below has passed the impugned order dated 29.04.2017 by directing the petitioner to pay Rs. 5,000/- per month to the complainant –O. P. No. 2 from the date of passing of the order in light of the provisions of Section 19
(f) of the D. V. Act. The petitioner has further been directed to pay Rs. 30,000/- to the complainant –O. P. No. 2 as medical expenses under Section 20 (1) (b) of the D. V. Act and further directed to
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pay Rs. 20,000/- to the complainant –O. P. No. 2 as compensation for mental torture and emotional distress under Section 22 of the D. V. Act.
Learned Court below has further referred the report of CDPO, Dhanbad and has observed that CDPO, Dhanbad report states that the aggrieved the complainant –O. P. No. 2 is still willing to stay with her husband-petitioner in her matrimonial home, but he i.e. the husband –petitioner is not willing to keep her wife i.e. the complainant –O. P. No. 2 due to which she has suffered social stigma.
It appears that learned Trial Court i.e. Judicial Magistrate, 1st Class, Dhanbad has merely referred the report of the CDPO, Dhanbad, but has not referred the cross-examination made before the learned Court below. However, the said aspect has been considered by the learned Appellate Court below.
It transpires from the judgement of the learned Appellate Court below that CDPO, Dhanbad, during her cross-examination has stated that the first pages of the report written in her writing and the pages were not signed by her in the first report on 25.07.2012.
It further transpires that CDPO, Dhanbad has submitted 2nd reported dated 22.09.2012, which was in three pages and all the pages were signed by her and had stated that she has received the complaint that the first report was tampered and hence, she has sent a second report, even the last page of the 2nd report dated 25.07.2012 2nd reported dated 22.09.2012 were written by one Ramji Kishore, but the CDPO was not aware that as to how the report was dispatched. She admitted that she had not visited the house of the complainant where violence has occurred.
Therefore, it is evident that during neither denying preparation of the 1st report nor the 2nd report, the CDPO had
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visited the house of the petitioner. The petitioner has asserted that the house stands in the name of his mother and the CDPO has not submitted her report on this aspect and she has merely submitted the report of torture and domestic violence against the petitioner and thus the report of CDPO remains inconclusive and cannot be properly relied upon as it was incumbent upon the CDPO to prepare the report only after visiting the matrimonial home or the resident where the complainant was firstly residing. Both the learned Courts have quoted the provisions of Section 3 of the Domestic Violence Act and as such, the same is not being repeated here. However, it is evident that CDPO has not verified the fact that the house actually stands in the name of the petitioner or his mother.
It has been held in the case of S. R. Batra Versus Tarun Batra reported in AIR 2007 SC 1118, at para-27 as follows:- “ Para-27:- Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19 (1) (f) of the Act and claimed that she should be given any alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives.”
It has been held in the case of Rina Mukherjee Versus State of West Bengal reported in AIR 2009 (NOC) 2841 (Cal), at para-8 as follows:-
“Para-8:- Mr. Bhattacharya takes the second point against the maintainability of the proceeding on the ground that application under Section 18/19 of the Act has not been made in Form No.11 as appended to the Rules, 2006. Rule 6 provides that every application of the aggrieved person under Section 12 shall be in Form No.II or as nearly as possible thereto. I have been taken to interpretation of statute by D.P. Mittal wherein there are
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references to a number of decisions of various High Courts and of the Supreme Courts and of the House of Lords. But those decisions do not appear to be of any help because the decisions so cited herein by the learned author relates to the question whether a particular provision is a mandatory or directory. Regarding application for refund of Income Tax Act paid it was held in a decision that when the statute provides a particular form wherein refund is to be claimed that form shall be used. I do not think that the said decision as referred to by the learned author should have any bearing in the instant case where the rule provides that it is not strictly mandatory but directory because the expression or \"as nearly as possible\" does not command that in case application is not made in Form No.II it deserves outright rejection by the Magistrate.”
The Delhi High Court has passed the judgment in the case of Neetu Mittal Versus Kanta Mittal and Ors. reported in AIR 2009 Delhi 72 by following the judgment rendered in the case of S. R. Batra Versus Tarun Batra reported in AIR 2007 SC 1118.
From perusal of the Lower Court Records, it appears that C.W.-1 is Mirtunjay Kumar Jha, father of the complainant and an Advocate and he has supported the case of the complainant- opposite party no. 2 and has stated that he has tried to understand the petitioner, but he did not pay respect to his words and due to forcible administration of medicine, his daughter had given a disabled daughter, who ultimately died on 26.08.2009. However, he stated in para-7 of his evidence that the petitioner is living in a pucca house at Hirapur, Dhanbad, which was purchased by his late father in the name of his wife. He has also stated that his daughter wants to live with her husband and he has pointed out that petitioner during his show cause has mentioned in the case of D. V. Act that his wife was not living from 05.03.2008 to 04.08.2008 in her matrimonial home, but in Criminal Revision No. 430 of
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2012 filed before this Court, the petitioner has admitted that his wife i.e. the complainant has voluntarily left her matrimonial home and he had filed a case under Section 9 of the Hindu Marriage Act for bringing her back.
Thus, the assertion of the petitioner is false as he had filed case under Section 9 of the Hindu Marriage Act only to escape from payment the maintenance.
During cross-examination, he has stated that he has not filed any case for torturing his daughter (i.e. by the petitioner) before any police officer. He also admitted that he has not complained before any Administrative Officer for keeping the complainant hungry and locking her in matrimonial home on 12.07.2008. He admitted that his daughter is getting Rs. 4,000/- per month as maintenance in M. P. Case No. 136 of 2009 vide order dated 18.05.2012. He also admitted that the petitioner has been appointed on compassionate ground on account of death of his father.
Thus, the evidence of C.W.-1, Mirtunjay Kumar Jha cannot be rejected merely on the ground that he is an Advocate in Civil Court, Dhanbad. It is evident that CW-1 is natural witness and he is the father of the complainant-O. P. No. 2 and he has fairly admitted for grant of maintenance amount of Rs. 4,000/- per month in M. P. Case No. 136 of 2009 and Rs. 1500/- per month in TMS No. 228 of 2009.
Thus, CW-1 has fully supported the case.
CW-2 is Meenu Jha i.e. the complainant herself and she has fully supported her case during her evidence, which has been discussed as stated by CW-1. She was married with the petitioner on 11.02.2008 and at the time of marriage one Alto Car and Rs. 5,00,000/- cash was demanded. However, her father has given Rs. 3,00,000/- cash and one Alto Car and ten (10) Bhar Jewellery
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and household articles worth of Rs.50,000/- including TV, Fridge etc. However, two days after their marriage, her father in-law died and thereafter her husband and his younger Devar Mihir Kumar Jha and others abused her and called her Dain and she returned to her Maike alongwith his brother and her husband remained there for cremation and Shradha Karm of his father and even during Shradha Karm of her father in-law, her father has given Rs. 1,00,000/- to them. Thereafter on 25.02.2008, the date of Chaturthi felt and on 05.03.2008, her husband brought her to her matrimonial home and she was pressurized to give further Rs. 3,00,000/-, which was refused by her father and as a result of which, the petitioner started torturing her. On 26.03.2008, they got prepared family list, but her name was not included and also demanded Rs. 3,00,000/- otherwise, she will not be allowed to live in her matrimonial home and her husband got performed her Ultrasound as they learnt that applicant-O. P. No. 2 is pregnant and on 08.07.2008, they got administered her a medicine for abortion and also on 12.07.2008, she was confined in a room without food and water. Further on 08.08.2008, they wanted to kill her by burning.
She further stated that she was in her matrimonial home, then her husband was filed a case of Bidai (Restitution of Conjugal Right) on 14.07.2008 and which was admitted on 16.07.2008, but notice was not sent so long as she remained there. Her father came and took her to Maike and since then, she is in her Maike and she has informed about the above fact to the Family Court on 06.09.2008.
She has stated that a Mediation was held between her and her husband and 23 days after her delivery, she went to the Court and stated that she wanted to live with her husband and even her husband stated in Mediation Centre that he is ready to take her, but later on her husband did not take her back to her matrimonial
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home and filed a Suit for divorce. Her father also informed her husband about delivery of his girl child, but due to delivery of girl child, they became angry and further demanded Rs. 3,00,000/- cash and they do not want to see them. As she was dependent upon her husband and hence, she has field the maintenance case and even after the order, it was not complied with by her husband. Even in divorce case, there was order of litigation cost, but till date she was paid only twice to the extent of Rs. 1500/- only. Later on he stopped making any payment. She has been threatened by her husband by telephone and her husband also threatened her father and brother and for which she has filed a written application before the Mahila P. S. and her husband give handwriting before the Mahila P. S. that he will not do anything and later on, he threatened her brother by telephone.
Hence, she has demanded protection, residence, sitri dhan, ten (10) bhar gold, silver and Rs. Four Lakh cash and compensation of Rs. One Crore from the Court. She has proved the Complaint Petition as Ext. –I and further proved her signature on the Complaint Petition of seven (7) pages as Ext. -1/1 to 1/7 respectively.
During her cross-examination, she has stated that Alto Car was taken in the name of her mother. She has stated that no paper of purchased gold and silver. She also admitted for not instituting any case after 04.08.2008. She learnt about the abortion through medicine from the letter written by one Indu Devi, who was living beside her matrimonial home and the said letter was received by her father. She admitted that her husband has filed TMS No. 228 of 2009 for grant of divorce against her. She also admitted that her husband is a Teacher and has appointed on compassionate ground on account of death of his father and on the date of deposition dated 20.03.2013 before the Judicial Magistrate, her husband was
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earning Rs. 12,000/- per month.
Thus, CW.-2 has fully supported her case.
CW-3 is Madan Prasad Sharma, who is a businessman and acquainted with the petitioner and the opposite party no. 2 and has proved the discharge slip of Dhanbad Nursing Home issued by the Dr. Seema Sahu, which was marked as Ext.-2, (with objection). He further proved the prescription of Child Specialist Dr. Arvind Jha as Ext.-3 (marked with objection). He further proved the prescription of Dr. S.C. Munshi of Muskan Hospital, Chas in the name of the complainant, which was marked Ext.-4 (with objection). He further proved the death certificate of the child marked as Ext.-5 (with objection). He further proved the Letter dated 10.07.2008 and 13.07.2008 in the writing of Meenu Jha @ Golden i.e. O.P.No. 2 marked as Ext.-6 and 6/1 respectively.
During cross-examination, he admitted that he is neighbor and acquainted with the complainant and her father. He also admitted that Neither he is friend of the Doctors, who were issued the certificates nor their Compounder.
Thus, CW-3 is a formal witness.
Although, CW-3 has proved certain documents marked as the Ext. -2 to Ext. -5 (with objection), but the same ought to have been marked as the documents in evidence by some competent witness.
CW-1 is Archna Singh, who was examined as Court witness and she has stated for submitting her two reports, which is in the handwriting of the same person namely Ramji Kishore. She admitted that 2nd report dated 27.09.2012 is in writing and signature, but the 2nd report was written only after knowledge of tampering. However, she could not say the name of the person, who had made complaint to her before tampering the report. She
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could not explain as to how, the last page of the 1st report and the report dated 27.09.2012 written by Ramji Kishore, was dispatched. She has also admitted not having visited the house of the complainant where the violence was done.
D.W.-1 is Santosh Kumar Mishra, who has supported the case of the petitioner and refuted the charges of the complainant and has admitted that the petitioner, Shivesh Kumar Jha, is his neighbour.
During cross-examination, he has stated that house of Shivesh Kumar Jha was constructed 10-12 years ago and he had attended the marriage of Shivesh Kumar Jha i.e. the petitioner. 38. Therefore, considering the evidence of both the sides, it is evident that the learned Trial Court, i.e. Sri Tabinda Khan, Judicial Magistrate, 1st Class, Dhanbad without going through the income of the petitioner has fixed the maintenance amount of Rs. 5,000/- per month and the same appears to be some excessive.
It is well settled that the husband cannot be coerced to pay the maintenance amount beyond his capacity.
It is further evident that the petitioner is paying Rs. 4,000/- per month as maintenance to the opposite party no. 2 in M.P. Case No. 136 of 2009 and Rs. 1500/- per month in the light of the order passed in T. M. (S) No. 228 of 2009.
It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-56, 59, 60 and 61 which are as follows:- “Para-56:-Similarly, in Tanushree & Ors. v A.S.Moorthy, the Delhi High Court was considering a case where the Magistrate’s Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that while considering an application u/S. 12 of the D.V. Act, the Court
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would take into account an order of maintenance passed under Section 125 Cr.P.C., or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate under Section 125, Cr.P.C. and the D.V. Act. With respect to the overlap in both statutes, the Court held : (SCC Online Del para 5) “5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent of each other and have different scope, though there is an overlap. Insofar as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section 125 Cr.P.C. shall be taken into account.”
(emphasis supplied) Para-59:- In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C., and under HMA. In the Section 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial proceedings under HMA, and was not to be given over and above the same.
Directions on overlapping jurisdictions Para-60:- It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted
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proceeding, and determine the maintenance payable to the claimant. Para-61:- To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.” 42. It has been held in the case of Prabha Tyagi Versus Kamesh Devi reported in 2022 (8) SCC 90 at Para-50, 54, 55, 57.2, 58, 65, 70, 71, 75, 75.1, 75.2 and 75.3 which are as follows:- “Para-50:- In our view, the D.V. Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. Therefore, the expression ‘joint family’ cannot mean as understood in Hindu Law. Thus, the expression “family members living together as a joint family”, means the members living jointly as a family. In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right under Sub-Section (1) of Section 17 of the D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Sub- Section (2) of Section 17 comes into play. Para-54:- Bearing in mind the aforesaid discussion, question no. 2, namely, “whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled”is accordingly answered. It is held that it is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have
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been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act. Para-55:- Hence, the appellant herein had the right to live in a shared household i.e., her matrimonial home and being a victim of domestic violence could enforce her right to live or reside in the shared household under the provisions of the D.V. Act and to seek any other appropriate relief provided under the D.V. Act. This is irrespective of whether she actually lived in the shared household. Para-57:-It would be useful to refer to the following judgments of this Court which have been taken into consideration relationship in the nature of marriage : Para-57.1:- In D. Velu Samy v. D. Patchaiammal, this Court discussed the concept of “relationship in the nature of marriage” in the context of the DV Act, and it was held to be akin to a common law marriage. It was held that the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the DV Act. It was opined that not all live-in relationships would amount to a relationship in the nature of marriage to get the benefit of D.V. Act, but only to such relationships, which qualify as common law marriages. The requirements prescribed under law in order for a relationship to be recognized as a common law marriage were adumbrated as follows: (i) The couple must hold themselves out to society as being akin to spouses; (ii) They must be of legal age to marry; (iii) They must be otherwise qualified to enter into a legal marriage; (iv) They must have voluntarily cohabited and held themselves
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out to the world as being akin to spouses for a significant period of time. Para-57.2:- In Indra Sarma v. V.K.V. Sarma, the question as to whether disruption of a live-in relationship by failure to maintain a woman involved in such a relationship amounted to “domestic violence” within the meaning of Section 3 of the D.V. Act, was considered. It was held that entering into a marriage either under the Hindu Marriage Act or Special Marriage Act or any other personal law applicable to the parties, is entering into a relationship of public significance, since marriage, being a social institution, many rights and liabilities flow out of that relationship. Thus, the concept of marriage gives rise to civil rights. This Court referred to the following guidelines, which would determine whether a relationship between persons was in the nature of marriage, to ultimately hold that the DV Act had been enacted to cover a couple who had a relationship in the nature of marriage, so as to provide a remedy in Civil Law for protection of women in relationships, which are in the nature of marriage as per paragraph 56 which is extracted as under: (SCC pp 785-86) “56. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the D.V. Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationship : 56.1. Duration of period of relationship. – Section 2(f) of the D.V. Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation. 56.2. Shared household.- The expression has been defined under Section 2(s) of the D.V. Act and, hence, needs no further elaboration. 56.3. Pooling of resources and financial arrangements.-
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Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor. 56.4. Domestic arrangements.- Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc., is an indication of a relationship in the nature of marriage. 56.5. Sexual relationship.- Marriage-like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc. 56.6. Children.- Having children is a strong indication of a relationship in the nature of marriage. The parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication. 56.7. Socialisation in public.- Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. 56.8. Intention and conduct of the parties.- Common intention of the parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.” Para-58:- Further, the expression ‘family members living together as a joint family’ is not relatable only to relationship through consanguinity, marriage or adoption. As observed above, the expression ‘joint family’ does not mean a joint family as understood in Hindu Law. It would mean persons living together jointly as a family. It would include not only family members living together when they are related by
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consanguinity, marriage or adoption but also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption. Therefore, when any woman is in a domestic relationship as discussed above, is subjected to any act of domestic violence and becomes an aggrieved person, she is entitled to avail the remedies under the D.V. Act. Para-65:- On a conjoint reading of the aforesaid provisions, it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service provider is not envisaged. Obviously, there would be no Domestic Incident Report received by a Magistrate from the Protection Officer or a service provider. Para-70:-On an analysis of the aforesaid judgments from various High Courts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Jammu & Kashmir, Karnataka, and Madhya Pradesh, are right in holding that if Domestic Incident Report has been received by the Magistrate either from the Protection Officer or the service provider then it becomes obligatory on the part of the Magistrate to take note of the said report before passing an order on the application filed by the aggrieved party, but if no complaint or application of domestic violence is received by the Magistrate from the Protection Officer or the service provider, the question of considering such a report does not arise at all. As already discussed, the D.V. Act does not make it mandatory for
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an aggrieved person to make an application before a Magistrate only through the Protection Officer or a service provider. An aggrieved person can directly make an application to the jurisdictional Magistrate by herself or by engaging the services of an Advocate. In such a case, the filing of a Domestic Incident Report by a Protection Officer or service provider does not arise. Para-71:-In such circumstances, it cannot be held that the Magistrate is not empowered to make any order interim or final, under the provisions of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate can take cognizance of the complaint or application filed by the aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of Domestic Incident Report under Rule 5. Thus, the Magistrate has jurisdiction to take cognizance of the complaint under Section 12 of the D.V. Act in the absence of a Domestic Incident Report under Rule 5 when the complaint is not filed on behalf of the aggrieved person through a Protection Officer or service provider. Such a purposeful interpretation has to be given bearing in mind the fact that the immediate relief would have to be given to an aggrieved person and hence the proviso cannot be interpreted in a manner which would be contrary to the object of the D.V. Act which renders Section 12 bereft of its object and purpose. Para-75:- In view of the above discussion, the three questions raised in this appeal are answered as under: Para-75.1:-“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”
It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a
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Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act. Para-75.2:-“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?”
It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household. Para-75.3:-“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”
It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.”
No doubt, proceeding under the provisions of D V Act is
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maintainable, even during pendency of the maintenance case or after disposal of the maintenance case filed under Section 125 of the CrPC. It is also well settled that both i.e. Maintenance Case filed under Section 125 of the CrPC and maintenance order under Section 12 of the D.V. Act can proceed simultaneously and proceeding under D.V. Act is an addition to be a proceeding of Maintenance Case under Section 125 of the CrPC.
However, it is fact that the husband cannot be saddled with the labilities to pay the demands in all the cases beyond his capacity.
From perusal of the complainant case under Section 12 of the D.V. Act, it would appear that she has not disclosed about the filing of earlier cases between the parties and as such, the Court may not be aware of the pendency of the earlier cases and the passing of any order passed in TMS Case No. 228 of 2009 and M. P. Case No. 136 of 2009.
It is further evident that the learned Court below has failed to bring on record the monthly income of the petitioner and even the report of the CDPO is silent on the point of the income of the petitioner.
Thus, the impugned order by which, petitioner has been directed to pay Rs. 5,000/- per month as maintenance amount, appears to be somewhat excessive.
On the facts and in the circumstances of the case mentioned above, the quantum of maintenance amount by which the husband-petitioner has been directed to pay Rs. 5,000/- per month to his wife i.e. opposite party no. 2 is reduced from Rs. 5,000/- per month to Rs. 3,000/- per month from the date of passing of this order.
Further the order passed by the learned Court below under Section 18 (1) (f) of the D. V. Act, by which the petitioner-Shivesh
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Kumar Jha has been hereby prohibited from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact, is set aside, subject to the condition that the petitioner shall not make any unnecessary communication in any form.
However, the direction of the learned Court below to the petitioner to pay Rs. 30,000/- ( rupees thirty thousand) to the applicant- O. P. No. 2 as medical expenses under Section 20 (1) (b) of the D. V. Act and the order passed by the learned Court below directing the petitioner to pay Rs. 20,000/- (twenty thousand) to the applicant- O. P. No. 2 as compensation for mental torture and emotional distress, caused by the acts of domestic violence committed by the petitioner under Section 22 of the D.V. Act, are affirmed.
The petitioner is directed to pay the arrears of maintenance amount within a period of eight (8) weeks from today, if any, after adjusting the amount deposited by the petitioner.
Accordingly, the judgement dated 05.02.2018 passed by the learned Additional Sessions Judge-III, Dhanbad in Cr. Appeal No. 74/2017 and the order passed in C.P. Case No. 960 of 2012 by the Court of Sri Tabinda Khan, the Judicial Magistrate 1st Class Dhanbad on 29.04.2017 are modified to the extent as indicated above and this Criminal Revision No. 438 of 2018 is allowed in part.
(Sanjay Prasad, J.)
Kamlesh/