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Judgment
Heard Mr. R Datta, learned counsel appearing for the petitioner as well as Ms. S Deb, learned counsel appearing for the respondent No.1 and Mr. S Ghosh, learned Addl. PP appearing for the respondent No.2. It is to be noted that the respondent No.2 is a mere formal party who does not have any stake in the controversy.
This petition has been filed under Section 397 read with Section 401 Cr.P.C against the judgment and order dated 27.08.2019 delivered in Criminal Appeal No. 09 of 2019 by the Sessions Judge, Gomati District, Udaipur. By the said judgment and order dated 27.08.2019, the appellate court affirmed the judgment and order dated 09.01.2019 delivered in CR(DV) 17/2017 by the Chief Judicial Magistrate.
The facts which are essential and relevant for dealing with the challenge projected in this petition may briefly be noted at the outset. The respondent No.1 filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 [in short, DV Act] seeking reliefs under Section 18, 19(1)(f), 19(5), 19(6), 19(8), 20 and 22 of the DV Act against the petitioners herein.
It has been alleged in the said application that the widowed mother of the petitioner had been annoying the respondent No.1 on various pretexts and on actual demand of bringing money from the respondent No.1‟s parental home. It is not in dispute that on 22.04.2016, the marriage between the petitioner and the respondent No.1 was solemnized as per rites and customs of Hindu marriage.
It appears that even before one year of the marriage was successfully and happily completed, the respondent No.1 unleashed the proceeding under Section 12 of the DV Act. It has been also alleged in the said petition that the widowed mother of the respondent No.1 had created pressure on the respondent No.1 for bring one Car and diamond ring for the petitioner No.1. Even the maternal uncles and aunts of the petitioner No.1 joined in the campaign to pressurize the respondent No.1 to bring or to satisfy the unlawful demands. It is also not in dispute that the respondent No.1 was prosecuting her B. (Mus) degree in the Government Music College at Agartala. But the widowed mother did not allow her to go to the College or to attend the Private Instructors.
The gravest allegation, according to the court, that has been made against the petitioner No.1 is that the petitioner No.1 was maintaining an illicit relation with "other women". On many occasions she found "bad SMS" in the mobile of the petitioner sent by his friends‟ wives. It thus surfaced that there was a marital strife. According to the respondent No.1, when she raised protest, she was beaten and finally driven out of the matrimonial home. The widowed mother of the petitioner No.1 even asked the petitioner to separate the mess and relieve them of anxiety.
In the first week of February, 2017, the widowed mother left the house without informing the respondent No.1 and on 14.02.2017 at midnight the petitioner No.1 left the house without telling anything to the respondent No.1. When the petitioners did not return home, the respondent No.1 started searching for him and as Ms S Deb, learned counsel for the respondent No.1 has submitted, even a writ petition was filed in this court.
On 09.05.2017, the petitioner No.1 returned home and on 10.05.2017 when the respondent No.1 entered in her matrimonial home, the petitioner No.1 restrained her and pushed her out. She was denied her basic requisites. The petitioner No.1 had threatened to sell out the gold ornaments belonging to the respondent No.1. Out of scare, the respondent No.1 informed the development to the local police station. The magistrate, having taken cognizance of the said application, carried out the inquiry and on the basis of the evidence led by the parties has observed in his judgment dated 09.01.2019 that the allegation as made in the application under Section 12 of the DV Act adequately fell within the purview of Section 3 of the DV Act, in respect of the commission of the domestic violence inasmuch as those were in the nature of physical, verbal, emotional and economic abuse. Having appreciated the evidence, it has been further held that in the meanwhile, the petitioner No.1 herein had filed the divorce suit being TS(DIV) 145 of 2017 in the court of the Judge, Family Court, Agartala.
With due regards to all aspects of the matter, by the said judgment and order, the petitioner No.1 has been directed to secure the right of the respondent No.1 to stay in the share household, her matrimonial home. Further, the petitioner and his widowed mother were restrained from dispossessing or disturbing the possession of the respondent No.1 in the share household (the matrimonial home). The petitioner has been directed to pay an amount of Rs.10,000/- per month to the "aggrieved person‟ as monthly maintenance from the date of the said order, i.e. 09.01.2019 and the amount shall be payable within first week of every English calendar month. The petitioner No.1 has been further directed to return Stridhan within a week from the date of this order. To secure the compliance, RK Pur police station has been directed to assist the respondent No.1 for enforcement of the order.
Being aggrieved, the petitioners filed an appeal in the court of the Sessions Judge, Gomati District, Udaipur under Section 29 of the DV Act being Crl. Appeal 09/2019. After having heard the counsel for the parties the Sessions Judge declined to interfere with the judgment and order dated 09.01.2019 in any manner.
Mr. R Datta, learned counsel appearing for the petitioner (the respondent No.1 in the proceeding being CR(DV) 17/2017) has submitted that there was no prayer for securing household or to possess the share household with the petitioner No.1 or with his widowed mother in the entire application filed under Section 12 of the DV Act. Despite that, such relief has been granted. Mr. Datta, learned counsel has submitted that the Family Court in the said divorce proceeding had given a maintenance pendentilite to the extent of Rs.4,000/- per month. But the Magistrate in the said proceeding being CR(DV)17 of 2017 has directed the petitioner No.1 to pay Rs.10,000/- per month as maintenance to the respondent No.1. The anxiety of the petitioner No.1 is that for existence of both the orders he might have to pay Rs.14,000/- in a month which will create serious financial difficulty for the petitioner No.1 in leading a normal economic life. That apart, Mr. Datta, learned counsel has submitted that at no point of time, the petitioner or his widowed mother had created any problem in living with the shared house. It is the respondent No.1 who left the matrimonial home on her own accord on levelling some unfounded allegations against the petitioners. The petitioner No.1 being persuaded by those insurmountable circumstances in his marital life, filed the divorce suit.
In ancillary to the major objections as stated above, Mr. Datta, learned counsel has raised another objection to the effect that the application filed under Section 12 of the DV Act cannot be held to be maintainable inasmuch as the same has been filed in complete deviation from Form II emanating from the Rule 6(1) of the Protection of Women from Domestic Violence Rules, 2016, the DV Rules in short. Filing of the application under Section 12 of the DV Act, in such form is the mandate of the statute and as such unless Form II as stated above is conformed to, the application cannot be allowed by any magistrate, but in this case the magistrate has condoned such breach without giving any reason in the entire judgment and order or any order passed before the said order.
On the other side, Ms S Deb, learned counsel appearing for the respondent No.1 has submitted that whether it is Rs.10,000/- or Rs. 4,000/- or Rs. 14,000/- altogether, it stands out from the records that the petitioner has not paid anything to the respondent No.1 as yet, despite existence of two orders passed by two different individual fora. According to her, both the fora were not in a position to appreciate each other‟s order. First, the order of granting maintenance to the extent of Rs.10,000/- was passed by the Magistrate and later on, without reference to the said order passed by the Magistrate, the Family Court has passed penditilite maintenance to the extent of Rs.4,000/- per month. According to Ms Deb, the respondent No.1 would have no objection if only the order of maintenance passed by the Magistrate is maintained by the Court by clarification. To this proposal, Mr. Datta, learned counsel has agreed to, but with a rider that it would be subject to the final outcome of the divorce proceeding.
Having appreciated the submission of the learned counsel, this Court finds that the application that was filed by the respondent No.1 under Section 12 of the DV Act to urge the relief/s under Section 19(1)(f) of the DV Act which provides that the magistrate while disposing of the application under Section
12 of the DV Act may direct the respondent (the petitioner No.1 herein) to secure same level of alternative accommodation for the aggrieved person (the respondent No.1) as enjoyed by her in the share household or to pay rent for the same, if the circumstances so required. Therefore, the contention of Mr. Datta, learned counsel that as in the petition no relief for the shared household or for the alternative accommodation in the same level was made, the order in that regard cannot be sustained, in untenable and accordingly discarded.
However, this Court is inclined to clarify that the direction in terms of Section 19(1)(f) of the DV Act only would come into force, if the respondent No.1 is refused to share the household. Otherwise, the order will not have any force whatsoever.
So far the relief relating to stridhan is concerned, this Court is of the view that since Mr. Datta, learned counsel has, in the course of his submission, fairly submitted that the petitioner will return all the stridhan within a fortnight from today and this court keeps solemn trust on the statement made by the counsel in that regard before this Court. The counsel for the parties will interact to arrange smooth delivery of stridhan without disorder.
So far the maintenance is concerned, this Court finds sufficient force in the submission of Mr. Datta, learned counsel for the petitioners. Having considered the financial status of the petitioner (the respondent No.1 in the proceeding before the court of the magistrate) this Court is of the view that the amount of the maintenance as has been determined as the pendentilite maintenance by the Family Court, West Tripura, Agartala shall be read within the amount of Rs.10,000/-. Aggregation could not happen for not apprising the concerned court which passed the order subsequent to the order passed by the court of the magistrate. It is the duty of the subsequent court to take into consideration the amount of maintenance that has been granted by the other court prior to passing of the order. Therefore, the petitioner shall pay Rs.10,000/- per month to the respondent No.1 within seventh day of every English calendar month w.e.f. 09.01.2019. The arrears be paid within the same time until any further order is passed by the Family Court. For this observation, it is made abundantly clear that the family court will not execute its order for payment of Rs.4,000/-per month, as the pendentilite maintenance if the petitioner can produce record that he has paid maintenance @ Rs.10,000/-w.e.f. 09.01.2019. The petitioner shall pay the arrear of maintenance allowance by four equal instalments, the first one has to be paid by 07.04.2020, the second by 07.05.2020, the third by 07.06.2020 and the final instalment has to be paid by 07.07.2020. It is made further clear that the petitioner has to continue the payment of maintenance allowance @ Rs.10,000/-per month within the seventh day of every English calendar month and there shall be no breach of this direction.
In terms of the above, this petition stands partly allowed. There shall be no order as to costs having regard to the circumstances of the case.
Pending applications, if any, stand disposed of.