Shobhana Sarda vs Chaganlal Sarda and Others

Sunil Kumar Sinha, C.J.

The petitioner is wife of late Suresh Sarda, who was respondent No. 7 in Cri. Misc. Case No. 249 of 2007, in the Court of Judicial Magistrate, First Class, East Sikkim at Gangtok, under S. 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ''the DV Act, 2005'' or ''the Act, 2005''). He died during the pendency of the said case, on 7-4-2009. Present respondents are brothers and nephews of the said respondent No. 7. Chaganlal Sarda, eldest brother of respondent No. 7, has also died and his name has been deleted from the cause title of this petition. The petitioner was married to respondent No. 7 on 27-2-1990. After her marriage, she started living with her husband and other respondents in a joint family at M.G Marg, Gangtok. She has two children, namely, Master Puneet, aged about 13 years and Master Lokesh, aged about 7 years. According to the petitioner, her husband was a drug and liquor addict. He was having affair with another woman. The petitioner made allegations that she was ill-treated by the respondents, who used to misbehave and torture her and abuse her by using filthy language and they also used to assault her. She claimed reliefs under Ss. 18 , 19 , 20 , 22 and 23 of the said Act, 2005.

Respondents 1 to 6 filed their reply claiming all the allegations to be false and baselsss. They very specifically pleaded that they never assaulted or abused the petitioner; she was always treated well and was taken care by them.

Respondent No. 7 (husband of the petitioner), who died during the pendency of the case, also filed a separate reply denying all the allegations and pleaded that he took partition from the joint family on 7-5-2001, in which he received certain specific share in the joint family properties, and since then he along with his family members, which include his wife (petitioner) and two sons, was residing separately as a single entity in the 5th floor flat of the RCC building situated on the back-side of the Life Line Medicos at M.G Marg, Gangtok, Sikkim. He also mentioned the details of the properties received through above partition vide paragraph ii as under:--

"ii. That at the time of separation the answering respondent No. 7, his wife i.e., the complainant and his two sons were given the following cash and properties as their share which was accepted by the answering respondent No. 7 and the complainant.

(a) Rs. 13 lakhs in cash out of which the joint family has already paid Rs. 8 lakhs and the balance amount of Rs. 5 lakhs has been held by joint family on the request of respondent No. 7 that he would take the same as and when the same is required.

(b) a shop space measuring 9x10'' facing old children park on the fourth floor of the RCC building which is situated on the back side of Life Line Medicos at Gangtok, East Sikkim.

(c) a residential flat measuring appx. 1000 sq. ft. consisting of 1 Hall, 2 bedrooms, 1 kitchen, 2 Nos. Bathroom-cum-toilet situated on the 5th floor of the RCC Building situated on the back side of the Life Line Medicos, M.G. Marg, Gangtok, East Sikkim.

(d) 1/7 portion of khet measuring around 10 bighas situated at Kallana Dist-Hanumangarh, Tehsil, Bhadra, Rajasthan.

(e) 1/2 portion of our Ancestral Haveli situated at Kallana Dist-Hanumangarh, Tehsil, Bhadra, Rajasthan the other half belongs to our Uncle Prayag Chand Sharda."

During the pendency of the said case, the Magistrate passed an interim order on 29-9-2007 and issued several directions to the respondents including a direction to pay monthly maintenance of Rs. 3,000/- to the petitioner. The Magistrate, after taking evidence of the parties, recorded the finding that the petitioner was subjected to domestic violence by the respondents. Her petition, therefore, was allowed and following directions were issued against them:--

"1) the respondents are restrained from committing any act of Domestic violence whatsoever against the aggrieved person;

2) the respondents are restrained from disturbing the aggrieved person and her family and they are also restrained from disturbing the aggrieved person from carrying on her business in the premises situated at Old Children Park, Gangtok or in any other such premises;

3) the respondents are also restrained from dispossessing the aggrieved person from the shared household where she is presently residing;

4) The respondent No. 1 is also directed to pay a sum of Rs. 6000/- to the aggrieved person as monthly maintenance."

Being aggrieved with the aforesaid order dated 26-11-2010 passed by the Magistrate, the respondents filed a Criminal Appeal (No. 02 of 2011) before the Sessions Judge, Special Division-I, Sikkim at Gangtok, which was allowed and the order dated 26-11-2010 passed by the Magistrate was set aside. The petitioner men filed SLP (Criminal) No. 22439/2013 before Hon''ble Supreme Court, which was withdrawn on 13-12-2013, with liberty to re-file an appropriate petition before me High Court. The petitioner, then has filed this criminal revision before this Court.

Dr. Doma T. Bhutia, learned counsel for the petitioner, has argued that the instances of domestic violence were proved on record. The appellate Court erred in law in reversing the findings of domestic violence. She mainly argued that in the prevailing facts and circumstances, the amount of monthly maintenance granted in favour of the petitioner should have been continued by the appellate Court.

On me other hand, Mr. N. Rai, learned Senior Counsel appearing on behalf of the respondents, has argued that the petitioner is residing separately on the 5th floor of the house of the respondents, which was jointly held by them prior to the alleged partition on 7-5-2001. The respondents have never treated the petitioner with cruelty. There was no such instance of domestic violence as alleged by the petitioner. The respondents are not interested in dispossessing the petitioner from the said portion of the residential accommodation. Quoting various facts, he vehemently argued that the petitioner was not entitled to get monthly maintenance.

I have heard counsel for both the parties.

Admittedly, the petitioner is residing separately in a 2 BHK flat on me 5th floor of the RCC building situated on me back side of the Life Line Medicos, M.G. Marg, Gangtok. This building was a joint family property and as claimed by me respondents, it was given to the husband of the petitioner in partition on 17-5-2001. Be that as it may, but the fact remains that the petitioner is residing separately on the 5th floor of the said house. Learned counsel for the respondents stated that the respondents have no reason to dispossess the petitioner because it is their own case that the said property was given to the husband of the petitioner in partition in his absolute rights which was succeeded by the petitioner and her sons after his death. Thus, the three reliefs granted by the Magistrate were already satisfied, as admitted by both the counsel and the parties present before this Court. The only question now remains about the grant of monthly maintenance vide relief No. 4, by the Magistrate on which the parties are in contest.

So far as the findings relating to domestic violence are concerned, it appears to be erroneous. The material evidence in relation to domestic violence have been overlooked by the Appellate Court. The Appellate Court did not take into consideration that it was proved by the evidence of the petitioner (P.W. 1) that her husband (respondent No. 7 before the Magistrate) was a drug and liquor addict and was having an affair with someone else. The petitioner clearly stated that her husband used to take certain drugs in the night and whenever he used to go to the shop at M.G Marg, Gangtok at night, he used to get extra drugs for consumption. She has also stated that respondent No. 3 used to abuse her with unparliamentary and filthy languages. She has also stated about the incident of rubbing chilly on the lips of her infant and has further stated that when her elder son was of 2 years age, Anand (respondent No. 5) tied him with a sari and hanged him with the balcony facing towards M.G. Marg. Some of the family members had also witnessed it, but none came forward to stop Anand. When it was opposed, she was assaulted by Anand. For all these reasons, she used to tell her husband that when she was not being treated well and was not giving respect in the joint family, why she should stay there.

Learned Sessions Judge did not accept the above evidence regarding the conduct and attitude of the husband of the petitioner, on one line in her cross-examination in which the petitioner admitted that "I am not aware if my late husband used to get extra drugs for consumption at night from the shop." How this small portion, which only relates to bringing extra drugs, would demolish the entire evidence regarding the conduct of her husband. So far as evidence relating to assault made by Anand (respondent No. 5) is concerned, the Sessions Judge has clearly held vide paragraph 19 of the judgment that it was not demolished in cross-examination. But, as the petitioner did not lodge FIR before the Police, the above allegations were held as not proved.

The above acts of the respondents, besides being physical abuse, were also harmful to the mental health of the petitioner. Dr. Praveen Somani (PW-3) was a Psychiatrist. He was treating the petitioner and he conducted marital therapy for about eight to ten times between the petitioner and respondent No. 7. According to him, the petitioner was suffering from adjustment disorder, which means psychological reaction to stressful events in the family leading to depression and anxiety. He admitted in the cross-examination that when the petitioner first consulted him it was for giddiness. She had complained that her husband had abandoned and left her. According to him the adjustment disorder could occur if one of the spouses gets involved in some extra-marital relationship. These are clear evidence of the mental condition of the petitioner at the relevant time which must have accrued as a result of above conduct of her husband and other respondents. Section 3 , Explanation II of the DV Act, 2005 provides that for the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration. I am of the view that the learned Sessions Judge did not consider the overall facts and circumstances and by not considering material and relevant evidence, has set aside the findings of domestic violence against the petitioner and I hold it accordingly.

The DV Act, 2005 has been enacted, keeping in view the rights guaranteed under Arts. 14 , 15 and 21 of the Constitution, to provide for a speedy remedy which is intended to protect the women from being victims of domestic violence. It has several provisions like provision for passing protection orders, residence orders, monetary reliefs, custody orders and compensation orders. The learned Magistrate after finding it to be a case of domestic violence, has passed the protection order, residence order and has also granted monetary relief in terms of maintenance which earlier was Rs. 3000/- per month by an interim order dated 29-9-2007 and Rs. 6,000/- per month by the final order. Section 20(1)(d) of the DV Act, 2005 empowers the Magistrate to pass an order of maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under S. 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force. Sub-section (2) defines that the monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The conduct of the parties even prior to the commencement of the DV Act, 2005 could be taken into consideration while passing an order under Ss. 18 , 19 and 20 of the Act. (Vide : V.D. Bhanot Vs. Savita Bhanot, and Saraswathy Vs. Babu, .

In Chaturbhuj Vs. Sita Bai, , a case relating to maintenance claimed under S. 125 of the Code of Criminal Procedure, 1973, the Supreme Court held vide paragraph 8 as under:--

"8...........Where the personal income of the wife is insufficient, she can claim maintenance under S. 125 , Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, , it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with the status of a family. The expression ''unable to maintain herself'' does not mean that the wife must be absolutely destitute before she can apply for maintenance under S. 125 , Cr. PC."

Chaturbhuj Vs. Sita Bai, was taken note of in Vinny Parmvir Parmar Vs. Parmvir Parmar, where it was held that while granting permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955, status of spouse seeking maintenance before marriage was relevant and the Courts have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles Courts have to keep in mind while determining maintenance or permanent alimony.

In the instant case as mentioned earlier, the petitioner was subjected to domestic violence since the time of her marriage in the family of the respondents. The petitioner has two sons. They are aged about 13 years and 7 years. One has been admitted in a hostel in Rajasthan. The petitioner and respondents have a good family background. The petitioner for her livelihood is running a small shop in children park area. It does not appear that the amount earned by it would have been sufficient for maintaining the petitioner and her two children with the same standard of living to which they were accustomed. Thus, it appears to be a case in which the petitioner must get monthly maintenance for herself and for her two minor children. I am of the View that the amount of Rs. 6,000/- per month, as granted by the Magistrate, is adequate, fair and reasonable amount for maintenance of the petitioner and her children. For all these reasons, the petition is allowed. The impugned order passed by the Sessions Judge is set aside and the order passed by the Magistrate is restored. The petitioner shall be entitled to get arrears due against the respondents and shall also be entitled to get Rs. 6000/- (Rupees Six Thousand) per month as amount of maintenance under S. 20(1)(d) of the DV Act, 2005.