Nirmalendu Das vs State Of West Bengal & Ors

Shivakant Prasad, J

In this revisional application the petitioner has assailed the Judgment and Order dated 13.09.2017 passed by the learned Additional District and

Sessions Judge, Sealdah, South 24 Parganas in Criminal Appeal being No. 24 of 2017 affirming the order dated 25.05.2017 passed by learned Judicial

Magistrate, Sealdah in complaint case no. 812 of 2010 under the Protection Women From Domestic Violence Act, 2005.

Pith and marrow of the case is that the opposite party no. 2 as an applicant filed application under Sections 12 and 23(2) of The Protection of Women

from Domestic Violence Act, 2005 (in short D.V. Act, 2005) before the Court of learned Additional Chief Judicial Magistrate, Sealdah which was

registered as Complaint Case No. 812 of 2010 against the petitioner and one Gouri Das nee Giri.

The application under Section 23(2) of D.V Act, 2005 was allowed by order dated 27.07.2011 granting interim monetary relief to the opposite party @

Rs. 2000/per month.

On 23.12.2016 the opposite party no. 2 adduced her evidence and exhibited a marriage certificate dated 21.09.1992 as Exhibit 1, RTI information

received from Public Information Officer, Secretary of Government of West Bengal as Exhibit 2, a letter from Public Information Officer, PVD as

Exhibit 3, counterpart of the pay-in slip of Mugberia Central Co-operative Bank, Bhagwanpur Branch as Exhibit 4 and information received from

Chandipur Assembly Constituency as Exhibit 5.

Mr. Mukherjee submitted that the petitioner herein filed a Mat. Suit No. 33/2011 for declaration of marriage a nullity in which learned 9th Additional

District Judge, Alipore granted an injunction in favour of the petitioner vide order dated 05.05.2015 despite that, the recording of deposition was

allowed by the learned 6th Judicial Magistrate, Sealdah.

It is also submitted that in her cross-examination on 12.01.2017 the opposite party no. 2 failed to prove her marriage either through deposition of the

person conducting the marriage or the person registering the marriage and admitted about the said declaratory suit in Matrimonial Suit No. 33 of 2011

which suit is being contested by the opposite party no. 2 pending in the Court of learned 9th Additional District Judge, Alipore and in presence of the

parties, the learned Judge was pleased to pass an order dated 05.05.2015 restraining the opposite party no. 2 from using the name of the petitioner as

her husband.

It is urged that at the time when the opposite party no. 2 met the petitioner, she knew about the marriage of the petitioner with his wife which fact is

evident from her deposition. It is abundantly clear that she had been to the Palm Avenue residence of the petitioner much before 1988, the year when

she claimed to have married the petitioner and as such had full knowledge about the petitioner’s wife and his children.

In her cross examination on 14.02.2017, the opposite party stated that the address of the respondent no. 1 mentioned in her application under Section

12 of the D.V. Act, 2005, is his permanent address and he has another residential address at 19/1C Gobindo Khatik Road, Kolkata 700046. She also

stated that the respondent no. 1 once came to the address at Gobindo Khatik Road. In her cross examination on 06.03.2017, the opposite party

deposed that the Respondent No. 1 and 2 never resided with her at Gobindo Khatik Road.

Mr. Mukherjee further contended that in Section 2(f) of the D.V. Act, 2005 defines ‘domestic relationship’ which lays emphasis on ‘live

together in a shared household.’ In the cause title of the complaint under the D.V. Act, 2005, the opposite party has mentioned the address of the

petitioner as “38/E Palm Avenue, P.S. Karaya, Kolkata 700019 and his residence at village Benudia, P.O. and P.S. Bhagwanpur Dist. Purba

(East) Midnapur Pin Code 721601.†Moreover, nowhere in her petition of complaint she has ever pleaded the fact that she and the petitioner have

lived together at 19/1C Gobindo Khatik Road Kolkata 700046.

Section 2(s) of the said Act, 2005 defines ‘shared household’ which defines, ‘where the person aggrieved lives or at any stage has lived in a

domestic relationship’, but the opposite party in her petition of complaint has not specified any such incident.

Ms. Jharna Biswas for the opposite party submitted that the present petitioner used to send Rupees Five Thousand (Rs.5000) per month through his

driver which he has stopped and further invited my attention to the deposition dated 06.03.2017 of P.W. 1 the aggrieved party to substantiate her

argument that the present petitioner used to send Rs. 5000/- to her through his driver to show that there was domestic relationship with the respondent

no.1 the present petitioner.

Mr. Mukherjee submitted in rebuttal that the complaint case was filed in 2010. So such pleadings and evidence deposed are vague and frivolous story

as portrayed by the opposite party as the pleading lacked specific mode of payment, time of payment and upto which date the last payment was made.

The facts were not also substantiated either by way of marking of documents or deposition of independent witnesses.

Ms. Biswas further pointed out that in Para 15 of the application, she has stated that the petitioner herein deposited Rupees Five Lacs (Rs. 5,00,000)

in Mugbedia Central Co-operative Bank, Bhagwanpur branch in her name which he withdrew on 05.01.2002 after obtaining signature of the present

opposite party by fraudulent representation that he was in urgent need of cash for his labour payments, which amount, if was not withdrawn at that

time, would have become Rs. 10,00,000 (Rs. 10 Lacs) as matured value by 2006. To substantiate the same, the opposite party filed counterpart of the

pay-in slip of Mugbedia Central Co-operative Bank and deposed in her chief thus “My husband deposited Rs. 5,80,000 in the A/C 1373/0102 in

favour of Nirmalendu Das and Geeta Das. My husband filled the deposit slip. This is the handwriting of my husband. I know his handwriting. My

husband gave the slip to me.†Further in her cross examination dated 06.03.2017, the opposite party says “I have mentioned about the fixed

deposit at Mugbedia Central Co-operative Bank in my complaint. The Respondent No. 1 may have A/C in this bank, but I have no A/C in this bank.

On 05.01.2002, the Respondent No.1 took loan.â€​

Accordingly, it is contended on behalf of the present petitioner that the learned Court has failed to realize that opposite party had averred claiming to

have married the present petitioner in her application under Section 12 of the D.V. Act, 2005, but the learned Judge passed the impugned order

admitting the dispute in marriage, but based on a relationship in the nature of marriage inasmuch as there is no averment in the petition of complaint, or

in the evidence to establish the fact of ‘domestic relationship’ with the petitioner. So, the opposite party could not substantiate through her

pleadings or her evidence the fact that the petitioner is her legally married husband with whom she cohabited at any point of time in a ‘shared

household’.

Mr. Mukherjee submitted that the depiction of facts in the Domestic Incident Report is missing completely in the petition of complainant and hence the

impugned order passed ignoring the same makes the order wholly motivated and illegal and adverted my attention to the letter dated 13/01/1998

Exhibit 8 to argue that the learned Judge failed to decipher the contents and true meaning as depicted in the letter and erroneously passed the

judgment because the pleadings of the opposite party are incoherent with her deposition.

The bare reading of the said letter Exhibit 8 admitted on evidence as produced by the opposite party speaks a volume about the conduct and attitude of

the opposite party and the learned Judge deliberately ignored the fact that an order of injunction was passed in the said matrimonial suit against the

opposite party by a higher civil Court on the issue of alleged marriage as a nullity.

It is further argued that petitioner in his written objection to the complaint has specifically averred that the petitioner got married with one Malabika

Das daughter of Late Rebati Raman Manna of 29/5 Ramkumar Ganguly Lane, P.S. Shibpur Howrah 3 and out of the said bed lock two sons were

born on 12th February, 1977 and 18th November 1978. Therefore, the question of marriage in the year 1988 does not arise at all and such objection

putforth by the petitioner has not been appraised in its right perspective and even failed to appreciate contradictory versions of the opposite party in

regard to payment of money by the present petitioner, Domestic Incident Report and her deposition and about the particular amount awarded by the

trial Court to the opposite party as monthly maintenance with respect to the income of the petitioner.

Mr. Mukherjee further invites my attention to the form of the application under Section 12 of the D.V. Act, 2005 to argue that the application is not

maintainable on the threshold. To fortify his stand referred to the provision of Section 12 which provides for obtaining orders of relief. Section 12 (3)

provides that every application under Sub Section 1 which may be presented before the Magistrate for obtaining orders of relief under the said Act

2005 shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto and takes me to Form II of Domestic

Violence Rule 2006 which prescribes for application under Section 12 of the Act to be presented before the Magistrate. For application for interim

maintenance under Section 23(2) of the Act 2005 as provided in Rule 6 (4) mandates that such an application has to be submitted in Form III

supported by an affidavit.

It would appear that the application was filed by the opposite party before the Magistrate without supporting an affidavit, ergo, it is not possible to

ascertain the status of the opposite party whether at all she lived in the alleged shared house with the present petitioner as live in together in the nature

of marriage as observed in the judgment dated 25th May, 2017 passed by the learned Judicial Magistrate, to that effect that the petitioner cannot be

termed as legally married wife of the respondent, but it is the demand of the present lis to introspect whether the alleged relationship can be

categorized as relationship in the ‘nature of marriage’, coming within the ambit of domestic relationship. In this case the dimension of

“domestic relationship†expanded by the phraseology “relationship in the nature of marriage†is germane for consideration and as mentioned

above it would not be apposite to take a dogmatic approach. At this stage advantageous to refer the epoch making judgment of the Hon’ble

Supreme court in Indra Sarma Vs. V.K. V. Sarma (SC) 2013 (15) SCC 75.5 In the said decision the Hon’ble Supreme Court explained what is

meant by the phrase “relationship in the nature of marriageâ€​ and marital relationship.

Truly, the said principle has been enunciated by the Hon’ble Apex Court, nevertheless, the applicant is required to aver in her application under

Section 12 of D.V. Act, 2005 with the specific case that she lived with the respondent and her relationship is in the nature of marriage. It would be apt

to take note of the definition of Section 2(a) and (f) reproduced thus-

“Section 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.â€​

“Section 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.

†Relying on the letter Exhibit 8 the learned Magistrate rightly held that the present petitioner and the opposite party having relationship even prior to

1988 have stayed together for a considerable period of time and depiction from the letter aforesaid is that both were in relationship since 1977

accordingly it was concluded by the Magistrate that both of them had shared households for a reasonable point of time and the relationship between

them were live in relationship in the nature of marriage. But bestowing upon the submission advanced in the application on behalf of the petitioner, the

averments made under Section 12 of the Act 2005, the opposite party has claimed herself to be the legally married wife but such averments since the

application do not find support on the basis of an affidavit with due verification of the facts averred in the application. Therefore, the application would

not be maintainable without adhering to the law which demands that such an application should be supported by an affidavit.

Insofar as the allegation of domestic violence allegedly committed by the present petitioner on the opposite party, the learned Magistrate concluded

that respondent in his written objection and in his evidence was persuasive to deny his relationship with the aggrieved person. If this Act on the part of

the respondent is not neglect and mental torture, then what else could be the scope of Section 3 of the Act 2005 which is so wide that this deliberate

act of deprivation comes within the ambit of domestic violence. Domestic violence is defined in Section 2(g) which as the same meaning as assigned

to it in Section 3. Section 3 provides for inclusive definition of domestic violence inter alia economic abuse which includes (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.

The opposite party in her application under Section 12 has alleged domestic violence on 12.8.2010 and September, 2010 but the Act 2005 came to be

in force with effect from October, 2006 accordingly it is submitted on behalf of the petitioner that the application under Section 12 of the Act 2005 is

not maintainable. To hold that there has been domestic violence, the learned Magistrate has failed to appreciate the letter Exhibit 8 which clearly

exhibits the sentimental and emotional blow which the petitioner has expressed in his letter communicated to the opposite party but the latter did not

even care to reply to his letter and kept mum for a longer period of time and the opposite party woke up only in 2010 to present the application under

Section 12 of the Act 2005.

Observation of the learned Magistrate that the opposite party was in live in relationship in the nature of marriage with the respondent in absence of

any averment to the contrary in her application, appears to me to be a wishful thinking on the part of the learned Magistrate because the specific case

made out in the petition by the opposite party/ alleged aggrieved person is that she was married to the respondent in the year 1992 but such averments

do not find support on affidavit as required under the Rule of the Act, 2005. This fact cannot be lost sight of that both petitioners are lawyers by

profession.

In the context of what has been discussed herein above, the judgment and order impugned dated 13.09.2017 affirming the order of monetary relief

granted by the learned Magistrate, by the Appellate Court below is hereby set aside, however, with liberty to the opposite party to present the

application afresh with supporting affidavit before the learned Magistrate concerning so advised.

Let a copy of this judgment together with the LCR be sent to the learned Court below for their information and necessary note in the Trial Register

and Appeal Register.

Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.