Ku. Shakuntala Guha & Ors vs Jasmit Kaur Narula & Ors

These criminal revisions Under Section 397/401 of Cr.P.C. have been filed against the orders passed by First Additional Sessions Judge, Shujalpur District Shajapur in Criminal Appeal Nos.71/2014 and 72/2014 on 19/02/2016, whereby dismissed the appeal of the applicant; whereas, partly allowed the non-applicant''s appeal.

Brief facts of this case are that applicant''s marriage was performed with the non-applicant in the year 1979. Out of their wedlock, one son was borne. On 14/11/2011, non- applicant/wife filed an application under Section 12 of Protection of Woman from Domestic Violence Act, 2005 (in short ''PWD Act'') before Additional Chief Judicial Magistrate, Shujalpur. The applicant resisted the application on various grounds, however, learned ACJM, Shujalpur vide order dated 31/12/2013, allowed the application and directed the applicant/husband to pay Rs.1,000/- per month as monetary relief to the non-applicant/wife in addition to the maintenance awarded under Section 125 of Cr.P.C. Being aggrieved, the applicant has filed Criminal Appeal No.71/2014; whereas, non-applicant/wife has filed Criminal Appeal No.72/2014 for enhancement of the amount. Learned First ASJ dismissed the applicant''s appeal; whereas, allowed the non-applicant''s appeal and enhanced the monetary relief from Rs.1,000/- to Rs.2,500/- per month in addition to the maintenance awarded under Section 125 of Cr.P.C. Being aggrieved, the applicant/husband filed these two revisions.

Learned counsel for the applicant submits that prior to commencement of the PWD Act, the applicant and the non- applicant were living separately and the PWD Act has no retrospective effect. Hence, the application under PWD Act is not maintainable. For this purpose, placed reliance on the judgment of this Court in the case of Ramlal vs. Rekha 2010 (II) MP Weekly Note 5.. It is also submitted that the ACJM has no territorial jurisdiction to decide the application as the application under Section 125 of Cr.P.C. has been decided by Judicial Magistrate First Class, Shajapur. Courts below have failed to appreciate these objections.

It is further submitted that non-applicant/wife has suppressed the material facts in application under Section 12 of PWD Act that she is getting maintenance under Section 125 of Cr.P.C. Learned ASJ without any basis, enhanced the monetary relief from Rs.1,000/- to Rs.2,500/- per month. Thus, the orders passed by the Courts below are bad in law and are liable to be set-aside.

On the other hand, learned counsel for the non- applicant/wife supports the impugned orders and submits that domestic violence started prior to enactment of the PWD Act and continued even thereafter. In such a situation, the wife is entitled for protection under the PWD Act, as held by Hon''ble Apex Court in the case of Saraswathy vs. Babu (2013) Supreme (SC) 1067.. Application under Section 12 of PWD Act can be filed in addition to other criminal and civil proceedings, as held by Hon''ble Gauhati High Court in the case of Bimal Mitra vs. Ashalata Mitra 2013 Cri. L.J. 4110.. So far as the objection in regard to territorial jurisdiction is concerned, non-applicant/wife filed the application before ACJM, Shujalpur, as she is living at Akodiamandi, which is in the jurisdiction of ACJM, Shujalpur. The Courts below after discussing the evidence, gave a finding in favour of the non-applicant/wife, hence, this objection can not be considered while exercising the revisional jurisdiction.

Learned counsel for the non-applicant/wife further submitted that she has not suppressed the fact that she is getting maintenance under Section 125 of Cr.P.C. Thus, there is no illegality in the orders passed by the Courts below, hence, the revisions be dismissed.

After hearing learned counsel for the parties, perused the record.

The question for consideration before this Court is whether the application under Section 12 of the PWD Act is maintainable.

For deciding aforesaid question, I have to consider whether the domestic violence has been committed by the applicant prior to commencement of the Act and continued after the commencement of the Act. Non-applicant/wife filed an application MJC No.252/2002 under Section 125 of Cr.P.C. On 17/01/2003, the applicant was directed to pay Rs.500/- per month maintenance to non-applicant/wife. Thereafter, on 26/04/2005, the non-applicant filed an application MJC No.22/2005 under Section 127 of Cr.P.C. for enhancement of maintenance. Learned Magistrate vide order dated 18/03/2011, allowed the application and directed the applicant/husband to pay Rs.1,500/- per month from the date of order. Thereafter, on 14/11/2011, non-applicant/wife filed an application under Section 12 of PWD Act. The allegations made in the application reads as under :- "VERNACULR MATTER OMITTED"

A There is vague allegations and no specific role attributed to the applicant/husband in the application. There is no pleading to the effect that applicant/husband committed domestic violence, as defined in Section 3 of PWD Act, prior to commencement of the PWD Act and continued after commencement of the PWD Act. Before filing of this application in the year 2002, non-applicant/wife filed the application for maintenance under Section 125 of Cr.P.C., which was allowed and it was directed to pay maintenance to the non-applicant/wife @ Rs.500/- per month. Thereafter, she filed an application under Section 127 of Cr.P.C., which was allowed vide order dated 18/03/2011 and directed to pay maintenance Rs.1,500/- per mo nth from the date of order.

Thus, it is apparent that non-applicant/wife was living separately from his husband/applicant since the year 2002 i.e. much prior to commencement of PWD Act as the PWD Act commenced on 26/10/2006. In the application, it is alleged that on 27/10/2011, non-applicant/wife along with her son went to the applicant''s house, then the applicant abused and threatened to kill her and thrown her out from the house. It seems that these allegations have been made deliberately to demonstrate that the applicant committed domestic violence after commencement of the PWD Act. However, the applicant has specifically denied such allegations in his deposition and the non-applicant/wife failed to prove this such allegation. Therefore, the alleged incident dated 27/10/2011, is not proved.

From the facts it is proved that non-applicant/wife is living separately from her husband/applicant much prior to commencement of the PWD Act and there is no pleading that the applicant committed domestic violence as defined under Section 3 of PWD Act. Thus, it is not proved that the domestic violence started prior to enactment of PWD Act and continued thereafter.

With the aforesaid, I am of the view that Courts below committed illegality in allowing the application under PWD Act and directed the applicant to pay monetary relief @ Rs.2,500/- per month in addition to the maintenance awarded under Section 125 of Cr.P.C., which is enhanced Rs.1,500/- per month on 18/03/2011. Hence, the revisions are allowed and the orders passed by the Courts below are hereby set- aside.