1. Heard Sri Shobh Nath Pandey, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and Sri Durga Prasad, learned counsel appearing on behalf of opposite party no. 2.
2. By means of present application the applicant has assailed the order dated 11.06.2014, passed by the Additional Sessions Judge, Court No. 1, Faizabad in Criminal Appeal No. 26 of 2014 - Ram Anugrah Tiwari Vs. Seema Mishra. The Court below has partly allowed the appeal u/s 12 of the Domestic Violence Act, filed by the applicant, and reduced the maintenance from Rs.2,000/- to Rs.1,000/-. Further prayer has been made to quash the order dated 16.01.2014, passed by the Judicial Magistrate-III, Faizabad.
3. It has been submitted by learned counsel for the applicant that marriage of the applicant with opposite party no. 2 was solemnized in the year 1993 according to Hindu rites and rituals and after marriage opposite party no. 2 stayed in her matrimonial home for 20 days. Subsequently, opposite party no. 2 filed a complaint under the Domestic Violence Act, 2005, stating that after marriage she was severely beaten up, assaulted and abused by the applicant due to which she left her matrimonial home. In the complaint opposite party no. 2 has stated that the applicant did not gave any financial support to her. Even on 20.09.2009, the parents of opposite party no. 2 has pleaded the applicant for compromise but he refused. In these circumstances, she moved an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act, 2005") to claim maintenance of Rs.5,000/- per month and Rs.2000/- towards cost of litigation. She has further stated that she has no source of income.
4. The Magistrate disposed of the application under Section 12 of the Act, 2005 by means of order dated 06.01.2014, taking into consideration the stand taken by the complainant and also recorded that an application u/s 125 Cr.P.C. has been moved by opposite party no. 2 wherein an amount of Rs.7,000/- per month has been awarded in favour of opposite party no. 2.
5. Considering the aforesaid circumstances, the application u/s 12 of Act, 2005 was allowed and maintenance of Rs.2000/- per month was awarded as well as Rs.1000/- under Section 19 as also been awarded apart from Rs.10,000/- under Section 12 of the Act, 2005.
6. An appeal was filed against the aforesaid order dated 06.01.2014 which was partly allowed by means of order dated 16.06.2014, which has been impugned in the present application.
7. In the order passed in appeal it was recorded that the applicant had married again and a finding was recorded by the appellate Court with regard to the conduct of opposite party no. 2 who was infact victim of Domestic Violence and she has been assaulted and physically abused by the applicant. Before the appellate Court the applicant had stated that he is earning Rs.9,500/- per month and after considering the entire case, the appellate Court had reduced the amount of maintenance to Rs.1000/- per month and awarded Rs.10,000/- under Section 20 of the Act, 2005 and for the amount of Rs.10,000/- was reduced to Rs.5000/- and same was to be deposited in two instalments.
8. It has been vehemently urged by learned counsel for the applicant that the Act, 2005 has been promulgated in the 2005 and after 1993, opposite party no. 2 has never lived in her matrimonial home and therefore she cannot be benefited under the provisions of Act, 2005. He further submits that the said Act is not retrospective and therefore no relief can be granted to opposite party no. 2 under Sections 18, 19 and 20 of the Act, 2005.
9. It has been further contended by counsel for the applicant that the applicant has moved an application u/s 127 Cr.P.C. before the concerned Magistrate for modification of the order passed under Section 125 Cr.P.C., therefore no orders should have been passed under the Act, 2005.
10. Learned Additional Government Advocate on the other hand has opposed the application and submits that perusal of the definition of the 'person aggrieved' as given in the Act, 2005 in Section 2(a), would indicate that opposite party no. 2 would be covered by the said definition and therefore opposite party no. 2 has rightly invoked the provisions of Act, 2005. He further submits that even in case order under Section 125 Cr.P.C. is passed, it shall not bar the Court from proceedings under the Act, 2005 and has placed reliance on the proviso of sub clause II of Section 12 of the Act, 2005.
11. Heard learned counsel for the parties and perused the record.
12. At the first instance the applicant and opposite party no. 2 were married in the year 1993 and barely 20 day's after marriage, opposite party no. 2 was thrown out of her matrimonial house and since then she has lived alone. Applicant has not given any maintenance to opposite party no. 2. In the circumstances, the opposite party no. 2 has not been provided even basic maintenance for nearly one and a half decade.
13. The application under Section 12 of the Act, 2005 clearly indicates that physical and mental abuse caused to opposite party no. 2 by living separately from her husband who has failed to maintain her.
14. The Act, 2005 covers those women who are or have been in relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Further, definition of 'aggrieved person' as given in Section 2(a) of the Act, 2005 says that any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
15. What is 'domestic violence' has been described in Section 3 of Act, 2005, according to which :
"3. Definition of domestic violence.- For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-
(a) 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; or
(b) harasses, harms, injures or endangers the aggrieved person which a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person."
16. The Hon'ble Apex Court in the case of V.D. Bhanot Vs. Savita Bhanot, (2012) 2 SCC 183, regarding determination as to whether petition under the Act, 2005 was maintainable prior to coming into force of the Act, 2005 on 26.10.2006, the Court has observed as under :
"8.After considering the constitutional safeguards under Article 21 of the Constitution vis--vis the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the Statement of Objects and Reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force."
17. Considering the complaint made by opposite party no. 2, it is clear that she is aggrieved person and she was subjected to domestic violence as per definition of 'domestic violence' given in the Act, 2005.
18. In the aforesaid circumstances, the Trial Court has passed an order after hearing the application under Sections 18, 19 and 20 of the Act, 2005. The appellate Court has partly allowed the appeal and has reduced the amount of maintenance granted to opposite party no. 2 and granting benefit of instalments to the applicant with regard to amount granted under Section 20 of the Act, 2005.
19. It has further been stated that in the appellate order that during currency of the marriage with opposite party no. 2 the applicant has married again. The learned counsel for opposite party no. 2 has stated that applicant is a Hindu and without divorcing opposite party no. 2, who is his legally wedded wife, he could not marry again. The applicant has failed to maintain his first wife and further demanded huge amount of dowry, he has physically thrown out his first wife from his house. The complainant has approached the Court by filing an application under the Act, 2005. It has correctly been taken into account by the appellate Court that the applicant has not taken back opposite party no. 2 and further, married again, would in itself constitute physical and mental abuse.
20. In the view of the discussion made above, I do not find any infirmity in the findings arrived at by the Courts below. The complaint was fully maintainable under the provisions of Act, 2005.
21. The amount of maintenance awarded to opposite party no. 2 is just, fair and reasonable, looking into the circumstances stated in the complaint as well as taking into consideration the act of the applicant, I do not find any valid ground for interfering in the matter.
22. The application lacks merit and is accordingly rejected.
Order Date :- 11.1.2021 A. Verma (Alok Mathur, J.)