Smt. Santosh Kunwar vs Yogendra and Another

M.C. Garg, J.—This petition u/s 397 of Cr. PC is by the petitioner being aggrieved by the order passed in MJC No. 231 of 2008 by the Judicial Magistrate First Class, Mandsaur whereby, her application filed u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity ''the Act'') was dismissed on the ground that there was no evidence led on her behalf to show that she was the legally wedded wife of late Shailendra Singh son of non-applicant No. 1-Gopal Singh. The Appellate Court while affirming the findings recorded by the Trial Court observed that no evidence was led on behalf of the applicant to prove domestic violence, which is required to be proved for the purpose of seeking any relief u/s 12 of the Act. Reference was made to Sections 19 and 20 of the Act in Paragraphs 13 to 16 of the impugned order, which reads thus :--

Dealing with the submissions on behalf of the applicant that the non-applicants ill treated her and forcibly thrown her out from her matrimonial home and were trying to exclude her from the property left by her husband Shailendra Singh she argued that Ratandeep Singh -- the so called son, was never adopted by late Shailendra Singh and non-applicants do not want to give her share in the joint property by trying to establish that Ratandeep Singh was the adopted son of Shailendra Singh and his first wife, it was observed by the Trial Court, that to prove the allegations, it was for the petitioner to lead evidence on record but, she failed to load any evidence entitling her the benefit of provisions contained u/s 12 of the Act. Section 18 and Section 19 of the Act reads thus :--

Section 18. Protection orders. The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from :--

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other properly held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

Section 19, Residence orders.--(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances se require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

In the revision petition filed by the petitioner it has been argued that the impugned order was not sustainable for the reasons that merely because the petitioner had been living separately for four years after the death of her husband -Shailendra Singh and was not residing in the matrimonial home, was not a valid ground to dismiss her application because she was forcibly thrown out by the non-applicants from her matrimonial home. She further submitted that sty; was not having any source of income in fact wanted a sum of Rs. 5,000/- p.m. for her maintenance. It was also urged that false allegations are made by the respondents that petitioner was not married to Shailendra Singh. It was also pleaded that evidence led on behalf of the petitioner both oral as well as in the form of documentary evidence to prove that she was subject to domestic violence, but were not considered by the Trial Court.

On behalf of the respondents, the submissions made on behalf of the petitioner were denied. It was submitted, that in the evidence led by the petitioner, nothing has been brought on record to establish that any domestic violence was inflicted upon the petitioner.

I have gone through the evidence of petitioner Santosh Kunwar (P.W.1) and also the evidence led by petitioner''s sister-in-law Smt. Sampat Kunwar (P.W.2) as well as the evidence led by respondent, i.e., Yogendra Singh as N.A. 1 (elder brother of late Shailendra Singh), Surendra Singh Chouhan (N.A. 2) and Ratandeep Singh Rathore (N.A. 3).

In so far as the statement made by the petitioner is concerned, in her statement there was contradiction with regard to the date of her marriage us in the petition she pleaded that her marriage took place 11 years back whereas in the statement she stated that her marriage took place 5-6 years back. She also staled in her statement that after her marriage she stayed in her matrimonial home at Sarvan, in addition to that she only deposed that the respondent Gopal Singh, who is father-in-law of the petitioner was not giving her husband''s share in the joint family property and that of after the death of her husband she was also beaten and ill-treated by them and forcibly thrown out from her matrimonial home, but even with respect to the aforesaid allegations she has not been able to lead any evidence.

She also stated that her jewellery was with the respondents, but to prove this that her jewellery was in possession of the respondent nothing has been led on behalf of the petitioner. In the cross-examination she also stated that before her. Shailendra Singh was married with some other lady who was not alive but she denied the adoption of Ratandeep Singh by late Shailendra Singh and his first wife, but no evidence has been led that Ratandeep Singh was not adopted by them. She was also unable to place on record any document which may go to support her contentions. She also admitted that she never reported to Police or any one else about ill treating her by her in-laws. She denied that the last riles of Shailendra Singh was done by Ratandeep Singh but, simply brushed aside the photographs shown to her.

The second witness examined by her namely-- Smt. Sampat Kunwar has not given any proof about the harassment with the petitioner by respondent. She is a married woman and sister-in-law of the petitioner, but it has not made clear as to how she was aware of the alleged cruelty caused to the petitioner and that when she was thrown out from the matrimonial house after the death of her husband Shailendra Singh.

On the other hand, the evidence led by the respondents is consistent. The said evidence goes to prove that Shailendra Singh was earlier married with another lady and Ratandeep Singh was the adopted son of late Shailendra Singh and his first wife.

In these circumstances, in the absence of any evidence led on behalf of the petitioner in support of her case and cruelties made by her in-laws, the petitioner was not entitled to any benefit that also after four years of the death of Shailendra Singh in which period she was living separately.

As such, there is no infirmity in the orders passed by the Courts below, which calls for interference by this Court. Consequently, the petition fails and is hereby dismissed.