Tuesday, June 11, 2013

498A by wife, compromise done, separate residence provided, STILL after some time wife files DV gets Rs 14000p.m., as maint from MM court, Husband appeals and both Sessions Court & HC say go pay!! Unfortunate case where all the pleadings by the husband that the 498A is compromised, that there was NO proof of domestic violence , the acts alleged are prior to 2005 etc etc fall on deaf ears ! Many times the lower courts issue residence orders and maintenance without proper inquiry and MEN run around rest of the lives, with accumulating maintenance!!

498A by wife, compromise done, separate residence provided, STILL after some time wife files DV gets Rs 14000p.m., as maint from MM court, Husband appeals and both Sessions Court & HC say go pay!!

Unfortunate case where all the pleadings by the husband that the 498A is compromised, that there was NO proof of domestic violence , the acts alleged are prior to 2005 etc etc fall on deaf ears !

Many times the lower courts issue residence orders and maintenance without proper inquiry and MEN run around rest of the lives, with accumulating maintenance!!

 

 

 

Notes / thoughts non recourse

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- wife files 498A

- compromise done

- C report filed by police

- Seperate residence provided

- still after some time wife goes on to file DV

- MM court decrees Rs 14000 p.m. as maintenance

- Husband appeals to sessions court

- Husband says there is NO DOMESTIC VIOLENCE and so no maintenance should be granted, Husband also says all incidents of DV are prior to 2005

- Sessions court dismisses husband's appeal

- Husband appeals to HC

- HC says provisions of Act could be applicable for prior acts as well

- HC refers to its own decision on "... Misc.Application No. 9938 of 2009"", "... and if the harassment, ill-treatment and violence is alleged to have been continued subsequently and/or even for the incidents prior to the Act, provisions of the Domestic Violence Act, 2005 would be applicable and the concerned victim shall be entitled to the reliefs under the Domestic Violence Act, 2005 ...."

- Husband has to GO FORTH and PAY

 

 ************** judgement from Honb'le Gujarat High Court ****************

 

 

Gujarat High Court

 

Harish vs State on 27 January, 2012

 

Bench: M.R. Shah

 

 

SCR.A/171/2011

 

 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

SPECIAL CRIMINAL APPLICATION No. 171 of 2011

 

For

 

Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH

 

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

 

2 To be referred to the Reporter or not ?

 

3 Whether their Lordships wish to see the fair copy of the judgment ?

 

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

 

5 Whether it is to be circulated to the civil judge ?

 

***********************************************

 

HARISH SHANKERLAL CHANDEL - Applicant(s)

 

Versus

 

STATE OF GUJARAT & 1 - Respondent(s)

 

=========================================================

 

Appearance : MR NK MAJMUDAR for Applicant(s) : 1,

 

MR P B KHAMBHOLJA for Applicant(s) : 1,

 

PUBLIC PROSECUTOR for Respondent(s) : 1,

 

RULE SERVED BY DS for Respondent(s) : 2,

 

MR SAMIR KHAN FOR M/S S G ASSOCIATES for Respondent(s) : 2,

 

***********************************************

 

CORAM : HONOURABLE MR.JUSTICE M.R. SHAH

 

Date : 27/01/2012

 

ORAL JUDGMENT

 

1. Present petition under Article 227 of the Constitution of India has been preferred by the petitioner - husband to quash and set aside the impugned order dtd. 27/9/2010 passed by the learned Metropolitan Magistrate, Court No.20, Ahmedabad by which the learned Magistrate has directed the petitioner to pay total sum of Rs.14,000/- per month (Rs.10,000 to the wife and Rs.4,000/- to the minor daughter) towards financial assistance under the provisions of the Domestic Violence Act, 2005 as well as the impugned Judgement and Order passed by the learned City Sessions Court, Ahmedabad in Criminal Appeal No.386 of 2010.

 

2. That the respondent No.2 herein - wife initiated proceedings for getting relief under the provisions of the Domestic Violence Act, 2005 ("hereinafter referred to as "the Act" for short) inclusive for getting financial assistance under section 20 of the Act. The said application was sought to be opposed by the petitioner - husband by submitting that there is no violence by the petitioner and in fact the wife left matrimonial house with his minor daughter. It was also further submitted that even earlier one complaint was filed by the wife against the petitioner under section 498 of the Code of Criminal Procedure and in the said complaint, investigating officer submitted C-Summary Report which was accepted by the learned Magistrate and therefore, the respondent No.2 is not entitled to any relief under the provisions of the Act. That the learned Metropolitan Magistrate, Court No.20, Ahmedabad partly allowed the said application directing the petitioner to pay a sum of Rs.14,000/- per month towards financial assistance to the wife and minor daughter. Being aggrieved by and dissatisfied with the order passed by the learned Metropolitan Magistrate, Court No.20, Ahmedabad petitioner preferred Criminal Appeal No.386 of 2010 in the City Sessions Court at Ahmedabad which has been dismissed by the learned Principal Judge, City Sessions Court, Ahmedabad by the impugned Judgement and Order dtd.14/12/2010, confirming the order passed by the learned Magistrate awarding financial assistance to the respondent No.2 wife for herself as well as minor daughter. Being aggrieved by and dissatisfied with the impugned orders passed by both the courts below in awarding the financial assistance to the respondent No.2 for herself and minor daughter, petitioner - husband has preferred the present petition under Article 227 of the Constitution of India.

 

3. Mr.Majmudar, learned advocate appearing on behalf of the petitioner husband has vehemently submitted that both the courts below have materially erred in awarding financial assistance to the respondent for herself and minor daughter, under section 20 of the Act. It is submitted that unless and until domestic violence is proved, respondent No.2 is not entitled to any relief under the provisions of the Domestic Violence Act, 2005. It is submitted that in the present case, earlier respondent No.2 filed complaint under section 498 of the Indian Penal Code and in the said complaint investigating officer submitted C-Summary Report, which came to be accepted by the learned Magistrate. It is submitted that when the complaint for the offence under section 498-A of Indian Penal Code came to be dismissed, there is no question of any domestic violence to the respondent No.2 and therefore, both the courts below have materially erred in awarding financial assistance to the respondent NO.2 under section 20 of the Domestic Violence Act, 2005. It is further submitted that both the courts below have materially erred in not appreciating the fact that the alleged incidents of violence are prior to the date of coming into force the Domestic Violence Act, 2005 and therefore, Domestic Violence Act, 2005 cannot be made applicable retrospectively. It is submitted that even otherwise on merits also on question of quantum both the courts below have materially erred in awarding financial assistance of Rs.14,000 to per month to the respondent No.2. By making above submissions it is requested to allow the present petition.

 

4. Present petition is opposed by Mr.Samir Khan, learned advocate appearing for M/s.S.G. Associates - learned advocate appearing on behalf of the respondent No.2. It is submitted that there are concurrent findings of facts given by both the courts below in awarding financial assistance to the respondent No.2 for herself and minor daughter, which are on appreciation of evidence and therefore, the same are not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India.

 

5. Mr.Samir Khan, learned advocate appearing on behalf of the respondent No.2 has further submitted that earlier complaint filed by the respondent No.2 - wife against the petitioner - husband under section 498A of the Indian Penal Code and submission of the C-Summary Report was in view of the settlement between the parties and it was not on merits. It is submitted that earlier there was no decision on merits that there was no ill-treatment by the petitioner and his family members and therefore, it is submitted that on account of submission of C-Summary Report earlier there would not be any bar to get relief under the provisions of the Domestic Violence Act, 2005 more particularly when there is no decision on merits that there was no ill-treatment and/or harassment to the respondent wife. It is submitted that even otherwise, the financial assistance is awarded to the respondent No.2 for herself and minor daughter who is studying in the school and considering the same and considering the price rise and expenditure to be incurred by the respondent No.2 for the maintenance of her daughter, it cannot be said that both the courts below have committed any error and/or illegality in awarding financial assistance under section 20 of the Domestic Violence Act, 2005. It is submitted that on appreciation of evidence and considering the status of the petitioner husband and surrounding circumstances, both the courts below have not committed any error in awarding financial assistance of Rs.14,000 per month respondent No.2 wife for herself and minor daughter. Submitting accordingly it is requested to dismiss the present petition.

 

7. Mr.Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.

 

8. Heard the learned advocates appearing on behalf of the respective parties at length.

 

9. At the outset, it is required to be noted that there are concurrent finding of facts given by both the courts below in awarding financial assistance of Rs.14,000/- per month to the respondent No.2 wife for herself and minor daughter. It is the contention on behalf of the respondent - wife that the said or is passed on appreciation of evidence on record and the same is confirmed by the learned appellate court and therefore, the said concurrent findings of fact is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. It is the contention on behalf of the petitioner - husband that domestic violence is not proved and therefore, the respondent is not entitled to any relief under the provisions of the Domestic Violence Act, 2005. The aforesaid submissions is made on the ground that earlier respondent wife had filed complaint under section 498A of the Indian Penal Code in which the investigating officer submitted C-Summary Report and the learned Magistrate accepted the same and therefore, the wife is not entitled to financial assistance under the provisions of the Domestic Violence Act, 2005. However, it is required to be noted that in the earlier complaint filed under section 498A of the Indian Penal Code there was settlement and a separate residence was provided and for sometime the petitioner husband and respondent wife resided together and thereafter again dispute arose. Therefore, Submission of the C-Summary by the investigating officer and acceptance of the said C-Summary by the learned Magistrate was on settlement and the same was not on merits. Under the circumstances the submission of C-Summary Report by the investigating officer and acceptance of said C-Summary Report by the learned Magistrate shall not come in the way of the respondent wife in getting relief, more particularly financial assistance under the provisions of the Domestic Violence Act, 2005.

 

10. Now so far as the contention on behalf of the petitioner with respect to the retrospective applicability of provisions of Domestic Violence Act, 2005 is concerned, in view of the decision of this Court rendered in Criminal Misc.Application No. 9938 of 2009, the Domestic Violence Act, 2005 being benevolence Act and if the harassment, ill-treatment and violence is alleged to have been continued subsequently and/or even for the incidents prior to the Act, provisions of the Domestic Violence Act, 2005 would be applicable and the concerned victim shall be entitled to the reliefs under the Domestic Violence Act, 2005 and therefore, on the aforesaid ground the impugned orders are not required to be quashed and set aside.

 

11. Now so far as the quantum aspect is concerned, considering the price rise, decrease in the value of rupee and even the expenditure to be incurred by the respondent No.2 wife for maintenance of herself and for minor daughter and towards the education of the minor daughter, in the facts and circumstances of the case, it cannot be said that both the courts below have committed any error and/or illegality in awarding financial assistance of Rs.14,000 per month. The learned Magistrate has considered the income as well as status of the petitioner husband while awarding financial assistance and the same is awarded on appreciation of evidence and therefore, the said concurrent findings of facts is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India.

 

12. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier, if any, stands vacated forthwith.

 

[M.R. SHAH, J.]

 

rafik