dv (ghvhb) 21 May 2013
ajay sethi (lawyer) 21 May 2013
2010(3) Bom.C.R.(Cri.) 939
(AURANGABAD BENCH)
Before :
Kingaonkar V.R., J.
Jayesh Uttamrao Khairnar & ors. ... Petitioners.
Versus
State of Maharashtra & ors. ... Respondents.
Criminal Writ Petition No. 259 of 2009, decided on 7-9-2009.
Protection of Women From Domestic Violence Act, 2005, Secs. 12, 16, 20 & 22 - Respondent 2 filed application under sections 12, 16, 20 and 22 of Act - Asserted, she was allegedly driven out of matrimonial home by petitioners - Further petitioners were demanding Rs. 1 lac for car - Further filed complaint under section 498-A read with 34 and 504, 506 of I.P.C. - She also filed separate application for recovery of maintenance - Petitioners filed copy of judgment, which granted divorce - Complaint proceedings filed by respondent 2, after divorce decree - Further submitted, respondent 2 not preferred appeal against same - Held, in view of absence of domestic relationship of respondent 2 as on date of filing of complaint, proceedings are not maintainable and have filed with mala fide intention to harass husband and relatives. Continuance of such proceedings would amount to abuse of process of law. Petition allowed. Proceedings initiated by respondent 2 are quashed. (Para 7)
dv (ghvhb) 21 May 2013
P Tiwari (na) 23 May 2013
Adv Archana Deshmukh (Practicing Advocate) 23 May 2013
@ P. Tiwari
Here is the judgment...
Mrs. Jovita Olga Ignesia
Versus
1. Mr. Rajan Maria Coutinho,
1
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 30 OF 2010
Mrs. Jovita Olga Ignesia
Mascarenhas e Coutinho,
major, r/o Opp. Assumpta
Convent High School,
Sarzora, Salcete, Goa. ... Petitioner
versus
1. Mr. Rajan Maria Coutinho,
Major, r/o House No.678,
Dandeawaddo, Chinchinim,
Salcete Goa.
2. State of Goa,
through Chief Secretary,
Porvorim Goa. ... Respondents
Mrs. A. A. Agni, Advocate for the Petitioner.
Shri V. Menezes, Advocate for Respondent No.1.
Shri C. A. Ferreira, Public Prosecutor for Respondent No.2.
CORAM : N. A. BRITTO, J.
DATE : 24TH AUGUST, 2010.
JUDGMENT
Heard.2
2. This petition can be considered under Section 482 of the Code
(Code of Criminal Procedure, 1973).
3. This petition is directed against Judgment/Order dated 3-3-2010
of the learned Additional Sessions Judge, Margao, by which the learned
Additional Sessions Judge has upheld the dismissal of the Petitioner's
application filed under Section 12 of the Protection of Women from Domestic
Violence Act, 2005 (Act, for short) by the learned J.M.F.C. (Magistrate, for
short) by Judgment/Order dated 7-10-2009.
4. The Petitioner and the Respondent were married on 10-4-2005.
They lived together till 18-4-2006. Their marriage has now been annulled by
the Patriarchal Tribunal for the Archidiocese of Goa and Daman by Judgment
dated 17-1-2009, and the registration of their marriage has been cancelled.
Their differences now appear to become irreconcilable as efforts to reconcile
their differences have failed.
5. The Petitioner had filed a report and an application in the
prescribed forms, Forms I and II under Section 12 of the Act on or about
11-12-2007. In the said application, the Petitioner had alleged physical
violence on the part of the Respondent of assaulting her on several occasions
in the matrimonial house. The Petitioner had sought a Protection Order 3
prohibiting the Respondent in terms of Section 18, clause (b) (i.e. aiding or
abetting in the commission of acts of domestic violence); clause (d) (i.e.
attempting to communicate in any form, whatsoever, with her including
personal, oral or written or electronic or telephonic contact) and clause (e) (i.e.
alienating any assets, operating bank lockers or bank accounts ... etc.). The
Petitioner had also sought a Residence Order and that should have been under
Section 19(1)(a) and not under Section 19(8). She also sought an order under
Section 19(8) (i.e. a direction for return of her stridhan or any other property
or valuable security to which she was entitled to). The Petitioner had also
sought a Maintenance Order under Section 20(3) (i.e. an Order to pay
appropriate lump sum payment or monthly payments of maintenance, as the
nature and circumstances of the case may require). In fact, the Petitioner had
sought maintenance of Rs.12,000/- per month as well as compensation for acts
of domestic violence committed under Section 22 of the Act. These reliefs
sought by the Petitioner can be seen from a combined reading of pages 10 of
Form I and 1 and 2 of Form II. In other words, the Petitioner had sought from
the Magistrate six reliefs. It is conceded that the Petitioner's personal
belongings have been returned and therefore no direction need be issued under
Section 19(8) of the Act.
6. There is no dispute nor any dispute can be raised that both the
Courts below have not at all dealt with the aspect of maintenance claimed by
the Petitioner of a sum of Rs.12,000/- per month in terms of Section 20(3) of 4
the Act and therefore a remand is inevitable. Whether the Petitioner would not
be entitled to the said amount of Rs.12,000/- per month because of the
anullment of the marriage or otherwise was a matter which was required to be
decided by the learned Magistrate, and in fact has not been decided by both the
Courts below and to that extent remanding of the case to the Magistrate has
become inevitable so that the relief claimed by the Petitioner on that score can
be considered by the learned Magistrate.
7. As regards the domestic violence or for that matter physical
abuse is concerned, the learned Magistrate is totally silent about it but the
matter has been considered by the learned Additional Sessions Judge in the
Judgment dated 3-3-2010 observing that the Petitioner had failed to prove any
acts of domestic violence against her, had in fact taken place, when she resided
alongwith the Respondent in the matrimonial house at Chinchinim. The said
attempt appears to be not very satisfactory either, as the learned Additional
Sessions Judge has misunderstood the concept of domestic violence. In fact, it
appears that another Additional Sessions Judge in Criminal Appeal
No.30/2008, between the same parties, had in fact noted in his Order dated
1-8-2008, and in my view rightly, that domestic violence includes “physical
abuse”, “s*xual abuse”, “verbal and emotional abuse”. The learned Additional
Sessions Judge had also observed that to consider the application(under
Section 12 of the Act) it is not necessary to consider other forms of abuses 5
except the economic abuse, since the Complainant had averred that she was
living without any monetary support, had no means to support her and that the
Respondent had deliberately kept the passbook and the FDR in his custody in
order to cause hardship to her.
8. The expression “domestic violence” has a very wide amplitude,
as defined under Section 3 of the Act, and it includes, as already stated
physical abuse, s*xual abuse, verbal and emotional abuse, economic abuse
which in turn, inter alia, includes 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, the property jointly or separately owned by the aggrieved person,
payment of rental related to the shared household and maintenance.
9. As already stated, the Petitioner had also sought a Residence
Order under Section 19 and whether the Petitioner was entitled to the same or
not, as the house did not belong to the couple as defined under Clause 2(s) of
the Act or because it belonged to the parents of the couple, was again a matter
which was required to be decided by the Magistrate and which admittedly has
not been decided.6
10. Smt. Agni, learned Counsel on behalf of the Petitioner has
submitted that the only relief which does not survive is the relief sought by the
Petitioner in column no.5 of the application i.e. for return of the personal
belongings of the Petitioner and no other relief as sought for have been
considered bythe learned Magistrate.
11. Although, the learned Magistrate took note in the first para of the
Judgment, of some of the reliefs claimed by the Petitioner, the learned
Magistrate has not at all stated in the impugned Order as to why the Petitioner
was not entitled to any of the reliefs claimed by the Petitioner. The learned
Additional Sessions Judge framed three points for determination and as
regards the first point, relying on Dr. Prakash v. Joshi(unreported Judgment
of this Court dated 18-7-2009) held that an application under Section 12 of the
Act was maintainable in relation to the cause of action which took place prior
to 26-10-2006 i.e. the date on which the Act of 2005 came to force. Regarding
the second point, the learned Additional Sessions Judge completely missed the
bus by confusing the concept of physical abuse with the concept of domestic
violence and without considering at all whether the Petitioner was entitled to
the reliefs claimed by her. Regarding the third point, the learned Additional
Sessions Judge held that the Petitioner was entitled to the amount in FDR
No.05140. What follows from the above discussion is that both the Courts
below were not at all alive to the reliefs claimed by the Petitioner. No reasons 7
have been assigned why the Petitioner was not entitled to one or the other
reliefs. The Act, cannot be termed as new legislation. It is in force for almost
five years now. The Magistrates will do well in case they try to understand
what is the concept of domestic violence as defined under Section 3 of the Act
rather than go by the ordinary concept of violence. The procedure to be
followed by the Magistrate, in terms of Section 28 of the Act is that which is
prescribed in the Code of Criminal Procedure. Sub-section (2) of Section 28 of
the Act provides that nothing contained in sub-section (1) shall prevent the
Court from laying down its own procedure for disposal of an application under
Section 12 of the Act.
12. Although the Magistrate is required to follow the procedure as
governed by the Code of Criminal Procedure or its own procedure, the nature
of proceedings like those under Section 125 of the Code, would be civil. (See
P.S.Thube, 1999 Cri.L.J. 2919). Magistrates will do well, after a reply is filed
by the Respondent, to find out from the parties or their pleaders what are the
reliefs an applicant is seeking in terms of the provisions of the Act and frame
issues on the basis of the same. Such a step will not be opposed to any
procedural law and that apart it will enable the parties to know each others
case and also facilitate a decision thereon.8
13. In civil proceedings after perusing the claim and the reply or
written statement, issues are framed. Issues are framed when a material
proposition of fact or law is affirmed by one party and denied by the other. The
object of framing issues plays a distinguished role in a civil proceeding and the
whole object is to direct the attention of the parties to the principal questions
on which they are at variance and they are required to be framed for the
purpose of having the material points in controversy rightly decided, and to
bring a finality in the litigation. Unless proper issues are framed, a party who
suffers a Judgment on the basis of findings not based on proper issues may
have a legitimate grievance to contend that because of such non framing of
issues he has been denied the opportunity of leading proper evidence for
rebutting relevant facts. Issues can be of fact or of law and the duty is that of
the Court to frame the issues. An issue can also be framed on the basis of the
reliefs. Although in cases of this nature where there are no pleadings as such
and the applications are filed in the prescribed form by ticking the reliefs
sought, it would be desirable that the Court after hearing both the parties
frames issues on the basis of the reliefs sought by the Petitioner so that each
can meet the case of the other and avoid such orders of remand. If this
procedure is followed there is no question of any of the reliefs going unnoticed
and undecided, like the case at hand. This can also reduce the controversy
between the parties, in case the columns in the application, were ticked earlier
without much application of mind.9
14. The Petitioner had sought Protection Order under Section 18,
Residence Order under Section 19, Maintenance Order under Section 20, and
Compensation Order under Section 22, etc. Both the Courts below ought to
have marshalled the evidence led by the parties on each of the reliefs and
given a decision thereon. That has not been done.
15. In the circumstances, therefore, I have no other option but to set
aside both the Orders of the Courts below and direct the learned Magistrate to
frame the issues regarding the reliefs claimed, after hearing the parties and
then consider the evidence produced by the parties and the law applicable and
give a decision on each of the reliefs sought by the Petitioner. Consequently,
this petition succeeds. The Orders of both the Courts below are hereby set
aside and the learned Magistrate is hereby directed to decide the application
afresh in the light of observations made.
16. Parties to appear before the learned Magistrate on 5-9-2010 at
10.00 a.m. and the learned Magistrate is directed to decide the application
within a period of four weeks, and in case a revision or an appeal is filed
therefrom, the same may be decided by the Court of Sessions within a further
period of six weeks.10
17. Petition disposed of accordingly with no order as to costs.
N. A. BRITTO, J.
RD
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