How civil, prprty disputes are becoming DV !! Man dead. His wife claims shop 'gala' UNDER DV act !!. Story of how property disputes , civil disputes ares taking DV route in all sections of society . also as this is a muslim family the woman may have to follow sharia IF she fought this as a maintenance / civil case. so she may have smartly come under DV
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Cri.Appln.No.1111/2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1111 OF 2009
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Smt.Banu Hashim Warunkar,
Age 35 years, Occ.: Household,
Residing at:- School Mohalla,
Mahabaleshwar, Taluka : Mahabaleshwar,
District: Satara ...Applicant (Original Applicant)
vs.
1) Abdul Rahiman Amin Warunkar,
Age 65 years, Occ.: Business,
2) Mrs.Mumtaj Abdul Rahiman Warunkar,
Age 60 years, Occ.: Household
and Business,
3) Shri Alimoon Abdul Rahiman Warunkar,
Age 30 years, Occ.: Business,
All residing at: 196B, School Mohalla,
Mahabaleshwar, Tal.: Mahabaleshwar,
District : Satara,
4) The State of Maharashtra ...Respondents (Original Opponents)
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Mr.A.V. Anturkar i/b. Mr.Sugandh B. Deshmuch for the Applicant.
Mr.A.V. Sakhare with Mr.Siddharth Karpe i/b.
M/s.Y.K.S. Legal for Respondent Nos.1 to 3.
Smt.V.R. Bhosale, APP for Respondent No.4-State.2
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Cri.Appln.No.1111/2009
CORAM : J.H. BHATIA, J.
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DATED : AUGUST 17, 2010
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ORAL JUDGMENT :-
1 Heard the learned Counsel for the parties.
2 Deceased Hashim, husband of the present applicant, was son of respondent nos.1 and 2 and elder brother of respondent no.3. According to the applicant, she was married to Hashim on 28th March, 1989 and after the marriage, she was living with him along with respondent nos.1, 2 and 3 in the same house. On 3rd September, 1992, her husband died in a motor accident. According to her, since 1985 her husband was carrying on business of hotel at Mahatma Gandhi Mini Market at Mahabaleshwar. He had obtained licence in respect of gala/shop no.2 in the said Mahatma Gandhi Mini Market from Municipal Council in the name of the present applicant. After the death of her husband, the applicant was carrying on the business of hotel from gala no.2. Gala no.5 was taken by Viren Veera on licence from the Municipal Council. In the year 2006, father of the applicant secured the said shop no.5 from Viren Veera in the name of Aawez Hashim Warunkar, the son of the applicant for which amount of Rs.1,27,000/- was paid to said Viren Veera and thus, shop no.5 also came in possession of the applicant and she was carrying on business from shop no.5 also since 24th May, 2006. According to her, respondent no.3 was not doing any business or work and she was maintaining the whole family including the respondents. From 14th March, 2007, respondent nos.1 to 3 began to sit in the galas no.2 and 5. She objected the same. On 26th March, 2007, when she was going to open the shop, respondent no.3 abused and assaulted her for which she lodged a report at the police station. On that day, the respondent no.3 also took forcible possession of galas no.2 and 5 and tried to remove her from the room in which she was living.
3 In view of this circumstance, she filed Application No.4 of 2007 on 23rd April, 2007 before the Judicial Magistrate, First Class, Wai, under Section 12 of The Protection of Women from Domestic Violence Act, 2005 ( Domestic Violence Act in brief) in respect of Shop No.2 and on 27th April, 2007, she filed Application No.5 of 2007 under Section 12 of the Domestic Violence Act before the JMFC, Wai in respect of shop no.5. The learned Magistrate called the report from the Protection Officer under the provisions of the Act. The evidence was led by both the parties. On the basis of the material placed before him, the learned Magistrate passed a common order in Application Nos. 4/2007 and 5/2007 on 23rd September, 2008 and directed the respondent nos.1, 2 and 3 to handover possession of the galas no.2 and 5 to the applicant. However, the learned Magistrate rejected the prayer of the applicant for compensation.
4 Being aggrieved by the said order, the respondents filed Criminal Appeal Nos.138/2008 and 139/2008 while the applicant filed Criminal Appeal Nos.145/2008 and 146/2008. The appeals filed by the applicant came to be dismissed. The appeals filed by the respondent nos.1 to 3 were allowed and the order passed by the Magistrate directing the respondents to hand over possession of galas no.2 and 5 to the applicant was set aside. The learned Sessions Judge held that the applicant had failed to prove that she was running the hotel from galas no.2 and 5 and that she was treated with violence and was dispossessed causing monetary loss to her and her children. She also noted that the applicant had nowhere claimed any specific maintenance nor she had disclosed since when she was living separately from the respondents. The said order is challenged in the present application under Section 482 of the Cr.P.C.
5 On perusal of the record, it appears that there were in all three galas. Gala no.3 stands in the name of respondent no.3. Gala no.2 stands in the name of applicant and gala no.5 stands in the name of her son. The learned Magistrate had appointed Tahasildar as Protection Officer, as per the provisions of Section 8, to make inquiry about these galas and to submit a report. Accordingly, the protection officer submitted the report. The report was also sought from the Municipal Council, Mahabaleshwar, by the Protection Officer about gala no.2 as per his letter dated 29th July, 2007, Exhibit 75. The Municipal Council by letter dated 30th July, 2007 informed that shop no.2 had been given to the applicant as a licensee. The receipts Exhibit 76 to 88 go to show that on 26th March, 2007, she was in possession of Shop no.2. Similarly, the Protection Officer s report also reveals that she is in possession of Shop Nos.2 and 5 but now the respondents are carrying on business at the same place. The record also reveals that one Bharat Virji Shah had transferred the said gala no.5 in the name of Aawez. In view of the material on record, the trial court came to the conclusion that the applicant was in possession of gala nos.2 and 5 till 26th March, 2007 when she was driven out from the same and at present, respondent nos.1, 2 and 3 are carrying on the business at the same place. After going through the oral and documentary evidence as well as the protection officer s report, I find that the findings of the trial court in this respect were correct and the applicant was in possession of gala nos.2 and 5 and she was dispossessed from the same.
6 The learned Sessions Judge observed that the applicant had not established till what date she was living together with the respondents, however, if her applications are seen carefully, she has clearly stated that from the time of death of her husband in 2002, she was living jointly with the respondents till 26th March, 2007 when she was driven out from the shops and attempt was made to remove her from the room, where she was living. In view of the definition given in Section 2(f), Domestic Relationship means a relationship between two persons who live or have at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The applicant is related to the respondent nos.1 to 3 due to her marriage with son of respondent nos.1 and 2 and as per her evidence, she was living with her husband since the date of marriage on 28/3/1989 and though her husband died in 2002, she continued to live with the respondents till 26th March, 2007. Section 3 defines domestic violence and it provides that any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. The economic abuse is further explained in Explanation I (iv) as follows :-
(iv) economic abuse includes-(a) 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, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effect, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
7 In the present case, the applicant was deprived of the possession of the shops/galas no.2 and 5 and thus, she was deprived of the income and financial resources which were necessary for maintenance of herself and her children and therefore, the act and conduct of the respondent no. 3 in ousting her from gala nos.2 and 5 amounts to economic abuse and therefore, it amounts to domestic violence.
8 Section 18 of the Act provides for certain11 Cri.Appln.No.1111/2009 protection orders to prohibit the respondent from committing the domestic violence, etc. Thus, Section 18 makes a provision for prohibitory orders. Section 19 provides that while disposing of application under Section 12(1), the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order to restrain the respondent from dispossessing the aggrieved person from the possession of the shared household and also to secure the aggrieved party same level of alternate accommodation as enjoyed by her in the shared household or to pay rent for the same. Section 19 does not make any provision for granting injunction or any order for possession of any commercial premises in favour of the aggrieved party.
9 Section 20(1) provides that the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any children of the aggrieved person as a result of the domestic violence and it includes the loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of the aggrieved person, etc. The applicant was deprived of her possession over the gala nos.2 and 5, thus, loss of income has been caused to her. Therefore, under Section 20(1)(a), the Magistrate could pass an order to provide monetary relief or compensation to her but there is no provision in the Act under which the Magistrate could have passed an order directing the respondents to give possession of the commercial premises to the applicant.
10 In view of the legal position, the learned Magistrate was wrong in directing the respondents to hand over possession of the galas no.2 and 5. The Sessions Court was right in setting aside the order about possession but the Sessions Judge also committed error in not passing any order granting any monetary relief in respect of the deprivation of the applicant from the possession of gala nos.2 and 5, which were source of income and the source of maintenance for herself and her children. Therefore, in my considered opinion, in the given circumstances, certain monetary reliefs could have been granted to the applicant. As far as the title and possession of gala nos.2 and 5 are concerned, that could not be decided under the provisions of the Domestic Violence Act and the parties could be relegated the remedy before the civil court.
11 At the time of hearing, Mr.Sakhare, learned Counsel for the respondents, after taking instructions made an offer to pay Rs.4000/- per month as monetary relief to the applicant till her title and right over the said shop is established by appropriate civil court. However, Mr.Anturkar, learned Counsel for the applicant contended that by running business in the said shop, she could have earned about Rs.10,000/- and therefore, monetary relief of Rs.10,000/- per month should be awarded. For this, the applicant would be required to work for the whole day in the shops and after the hard work, she could earn something. Besides this, during the monsoon season, there may not be much business at Mahalabeshwar and therefore, it be possible that she could not earn anything during that period. Taking into consideration all the facts and circumstances, it would meet the ends of justice if the respondents are directed to pay Rs.5000/- per month as monetary relief to the applicant.
12 For the aforesaid reasons, the application is allowed partly. While the order passed by the Sessions Court setting the order passed by the Magistrate is hereby maintained, the order passed by the Sessions Court stands modified and the respondents are hereby directed to pay monetary relief at the rate of Rs.5000/- per month from May 2007. The arrears shall be paid by the respondents within three months from this day and the monetary relief in future shall be paid regularly upto 10th day of the following month.
13 The applicant shall be at liberty to file suit before the civil court to establish her title and to secure possession of the gala nos.2 and 5. In case, such a suit is filed, the trial court shall expedite and dispose of the same, as early as possible, on its own merits without being influenced by any observation made in this judgment or by any observations made by the courts below.
(J.H. BHATIA, J.)
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