THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA
RAO
CRIMINAL PETITION No.8942 OF 2013
AND
CRIMINAL REVISION CASE No.1608 of 2014
COMMON
JUDGMENT
As both the
cases (petition and revision) arise out of same case DVC No.135 of 2013, they have
taken up to decide together.
Crl.P.No.8942
of 2013
2. This Criminal
Petition is filed by the DVC respondents 1 and 2 under Section 482 of Cr.P.C.
seeking to quash the proceedings in DVC No.135 of 2013(filed by their married daughter
who is no other than 2nd respondent herein) under the Protection of
Women from Domestic Violence Act, 2005 (for short, ‘the DVC Act’) on the file
of the Court of the IV Metropolitan Magistrate, Hyderabad since the DVC 3rd
respondent’s(another sister of DVC petitioner) name is deleted by order dated
05.03.2013 by the learned Magistrate. The DVC claim filed was under Section 12
of the DVC Act, read with Section 190 and 200 of Cr.P.C. Originally the DVC is
filed in the Court of the III Metropolitan Magistrate, Erramanzil at Hyderabad
and the same was numbered as DVC No.59 of 2013 and subsequently, the same was
transferred to the Court of IV Metropolitan Magistrate, Hyderabad and
renumbered as DVC No.135 of 2013.
3. The brief
facts of the DVC case are that her parents along with her elder sister by name
Dr.Christina Zothanpari Chawngthu, who
is an IAS Officer working as District Collector, Nizamabad presently and used
to involve in their family affairs, harassing
DVC petitioner both mentally and physically since 1990. Her brothers and
sisters, instead of helping her, were colluded with them and did not provide
proper education to the DVC petitioner like other brothers and sisters. Her parents performed her marriage with a
railway employee against her wish and spread rumour that she is mentally sick
and she needs psychiatric treatment. The
DVC petitioner is residing separately in a flat in Gaganmahal, Domalguda and
the her mother-DVC 2nd respondent advised her landlord to evict DVC
petitioner and a s such her landlord filed two civil suits for eviction against
her on the file of the Court of the V Senior Civil Judge, City Civil Court,
Hyderabad. It is alleged that the DVC
petitioner obtained divorce from her husband from the Family Court, Mysore and as such she is
seeking maintenance of Rs.75,000/- p.m. from her parents, Rs.5,00,000/- towards
medical expense and Rs.10,00,000/- towards compensation and damages for mental
torture, agony caused by the acts of domestic violence committed by her
parents.
4. The contentions in the present quash
proceedings filed by the DVC respondents(parents of the DVC petitioner) are
that learned Magistrate initially passed an order setting the petitioners-DVC
respondents ex parte on 22.03.2013
and on a petition filed by them, the learned Magistrate set aside the said
order in Crl.M.P.No.1109 of 2013,dated 24.0.2013, that the 2nd respondent
is a divorcee and she is getting maintenance from her divorced husband at the
rate of Rs.11,000/- p.m. and as such the claim made against the petitioners-DVC
respondents in the DVC is not maintainable, that the learned Magistrate ought
not to have taken cognizance of the case against the petitioners herein, who
are parents of the DVC petitioner, that the 2nd respondent is living
separately since 5 years and does not even talk to any of the family members
and she is not entitled to seek redressal of her grievance by invoking the
jurisdiction, that the petitioners-DVC respondents are retired employees and
suffering from old age ailments and receiving meagre amount as their pension,
as such, the DVC claim is misconceived and not maintainable. They further
submit that the petitioners submit that out of love and affection towards their
daughter(DVC petitioner), the DVC 1st respondent(father of DVC petitioner) is
paying rent for her accommodation but the same was suppressed, that DVC
petitioner is a qualified dental doctor and as such she is not entitled to seek
maintenance by invoking the provisions of the DVC Act, that the scope and ambit
of Section 12 of the DVC Act, was misconstrued by the learned Magistrate and
without applying his mind taken cognizance of the case against the DVC
respondents 1 and 2, that the DVC 1st respondent-1st petitioner
herein is a retired IPS Officer of A.P. State Cadre and he was superannuated on
31.08.2005 as Director General, Drugs and Narcotic Control Administration,
Andhra Pradesh at Hyderabad and after his retirement he lived along with his
wife in Hyderabad and they have one son and three daughters and all of them are
marred and the DVC petitioner is their 2nd daughter who was married
to Mr. Thimoti Gonmel, an officer belonging to Indian Railway Personnel Service
(IRPS), and their marriage was solemnized on 11.10.2006, that the DVC
respondents live one part of the year at Hyderabad mostly during the winter
season and the other part of the year at Aizawl, Mizoram State in summer season,
however, they have permanently shifted
to Aizawl in January, 2013, that the DVC petitioner broke her marriage and took
divorce from her husband and getting maintenance from him, that with a view to
take vengeance against them, she filed the preset case, which is not at all
maintainable under law, that the DVC respondents are facing much hardship in
attending the Court in Hyderabad from Aizawl, Mizoram state, which is situated
on the north-east corner of the country, that the learned Magistrate has been
posting the DVC case on every week after week and the same is causing hardship
to them, that there is no truth in the allegations made against them in the DVC
case and as such the continuation of the proceedings in the said case against
them is an abuse of the process of Court and hence to call for the records
relating to the case in DVC No.135 of2013 on the file of the Court of the IV
Metropolitan Magistrate(Traffic Mobile
Court),Hyderabad and quash the proceedings. The learned counsel for the
petitioners herein reiterated said contentions.
CRIMINAL REVISION CASE No.1608 of 2014
5.This
Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C by the DVC
respondents(who are the petitioners in Criminal Petition No.8942 of 2013 to
uash the DVC proceedings as stated
supra), having been aggrieved by the order, dated 09.07.2014 in Crl.A.No.751 of
2013 passed by the V Additional Metropolitan Sessions Judge, Hyderabad which is
preferred by the DVC petitioner against the orders dated 01.08.2013 in
Crl.M.P.No.1110 of 2013 in DVC No.135 of 2013,
with the contentions in the grounds of revision that both the Courts
erred in directing the DVC respondents to pay alternative accommodation charges
to DVC petitioner under the Domestic Violence Act, though she is major and
married having been judiciary separated and getting maintenance also from her
husband for a sum of Rs.11,000/- p.m., and also she is a qualified dental
surgeon(BDS) and earning therefrom, that though the DVC respondents are senior
citizens, her claiming the residential charges from them is misusing of the Act
and nothing but harassing them, that both the Courts failed to observe that DVC
respondents discharged their duty towards their daughter-DVC petitioner by
brought up her and provided excellent education and performed her marriage with
a qualified person, that the lower appellate Court erred in enhancing the
rental accommodation charges from Rs.6,000/- to Rs.10,000/- per month from the
date of his order dated 09.07.2014 and by further directing the DVC respondents
to deposit the arrears amount within one month from the date of said order when
there is admission of the DVC 1st respondent- father of DVC
petitioner to undertake to pay only for a period of three months vide docket
orders dated 01.08.2013 in DVC No.135 of 2013 but hastily passed the present
order which is most unreasonable, when the docket order clearly shows only for
three months, that the lower appellate Court would have dismissed the appeal,
that the order of the lower appellate Court enhancing the accommodation charges from
Rs.6,000/- to Rs.10,000/- to the DVC petitioner by saying on the DVC
respondents getting sufficient pension and the amount so granted by the trial
Court is very much meagre and the rental charges in Hyderabad City is costly, is
a most unreasonable order and thus sought to suspend the operative part of the
judgment in Crl.A.No.751 of 2013, dated 09.07.2014 and also execution petition
filed by the DVC petitioner. The learned counsel for the Revision petitioners
reiterated the said contentions during course of hearing.
6. Whereas, it
is the contention of the DVC petitioner as 2nd respondent to the
revision as well as the quash petition that when she is unable to maintain and
when her parents are affluent and what
the maintenance paying by her husband is not sufficient to survive and when she
has no practice or earnings and the provisions of the DVC Act, enables her to
seek from her parents also the reliefs for the domestic violence she was
subjected in the hands of her parents, the DVC claim is legally sustainable, so
also the quantum awarded by the lower appellate Court towards interim reliefs
pending final disposal of DVC claim against her parents, and thus for this
Court there is nothing to interfere by sitting in revision or to quash the
pending DVC proceedings and thus sought for dismissal of both the revision case
and quash petition.
7. Heard both sides in both the cases and
perused the material on record. The parties hereinafter referred as they are
arrayed in DVC case for the sake of convenience.
8. Now the common points that arise for
consideration are:
1. Whether
the proceedings in DVC case impugned in the Criminal Petition herein are liable
to be quashed and the order, dated 09.07.2014 in Crl.A.No.751 of 2013 passed by
the V Additional Metropolitan Sessions Judge, Hyderabad preferred against the
orders dated 01.08.2013 in Crl.M.P.No.1110 of 2013 in DVC No.135 of 2013 on the
file of the IV Metropolitan Magistrate, Hyderabad is unsustainable and requires
interference by this Court while sitting in revision, if so, with what
observations?
2. To what relief?
Point No.1:
9. The questions
involved to decide are one is on maintainability and the other is on the
quantum. It is important to consider in
the impugning on maintainability as to whether the DVC petitioner is and cannot
be called as aggrieved person against the DVC respondents within the definition
of Section 2(a) of the DVC Act and as to whether there is any domestic
relationship as defined under Section 2(f) of the DVC Act much less any
domestic violence under Section 2(g) of the DVC Act for grant of any of the reliefs
envisaged either monetary relief or residence order respectively against the
DVC respondents no other than her parents. As per Section 2(b) of the DVC Act
it reads “child”
means any person below the age of eighteen years and includes any adopted, step
or foster child’. As per the Section 2(a) of the DVC Act, “aggrieved
person” means any women 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’.
As per Section 2(g) of the DVC Act “domestic violence” has the same meaning
as assigned to it in Section (3)’.
Before coming to Section 3 of the DVC Act, it is to mention the Section 2(f) of
the DVC Act which reads “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, the marriage or through a relationship
in the nature of marriage, adoption or are family members living together as a
joint family’. The ‘word’
consanguinity though not defined in the Act, one must be guided by the general
Dictionary as per which it means relationship by blood between the common
ancestor and descent within the kinship.
From that no doubt the DVC petitioner is no other than one of the two
daughters and one son of the DVC respondents within the kinship of
consanguinity supra. Then comes to meanings of
domestic violence, the same is defined in Section 3 of the Act that reads
as;
For the purposes of this Act, any act,
omission or commission or conduct of the respondent shall continue 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;
(b) harasses, harms, injures or
endangers the aggrieved person with 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.
10. It is not a
case under Section 3(b). It is to be seen whether comes either under Section
3(a) or 3(d) of either emotional abuse or injury or harm even mentally. Undisputedly, the DVC petitioner is major,
married and a qualified dental bachelor degreeholder and undisputedly she is married
and her husband is alive and earning though there is divorce between them.
Undisputedly, there is a claim against her husband for maintenance and she is getting
Rs.11,000/- p.m. though earlier it was Rs.9,000/- p.m. and the lis between them
after divorce regarding the said claim if at all pending in any Court of law on
the quantum that is not of much relevancy here.
Under the above facts and circumstances, the DVC petitioner’s
entitlement to maintenance against the DVC respondents-parents of her since
retired and pensioners is in grave doubt.
In considering further on this scope, it is also in requirement to refer
Section 125 of CrPC. Once under Section
125 of Cr.P.C. she is not entitled to the claim of maintenance against her
parents being married, major and educated and her husband is alive though divorced
and further once she is entitled to claim maintenance from her husband, the
residential accommodation or shared residential claim is not against any others
but against her husband, if not at best in the joint family to which her
husband is a member for the claim of shared household. Even the claim won’t
come under the DVC claim against her husband once maintainable for all such
claims for maintenance under Section 125 of Cr.P.C. she cannot claim amount
much less under the DVC claim against her aged and retired parents. It is the
contention no doubt of the learned counsel for the DVC respondents that the
word consanguinity used in Section 2(f)
represents only the minors and unmarried or physically or mentally challenged
and widow or destitute daughter or the like not like DVC petitioner herein who
is a qualified, bachelor of dental surgery and capable of earning and that too
her husband is alive, a railway employee from whom she can claim maintenance
and already she claimed and getting maintenance and there is no any domestic
relationship between them and domestic violence for not even she is staying
with her parents much less got any right of shared household or residence claim
against them apart from not within the definition of Section 2 of the DVC Act,
2005 as aggrieved. In fact, when the consanguinity is not extend as per the
emotions and objects of the Act major and married daughter besides qualified
and capable of earning and also her husband alive having sufficient means to
maintain and she is getting maintenance,
to claim again and further against her
aged parents. Thus, the DVC petitioner
cannot make any claim against the DVC respondents within the so called domestic
relationship from the use of the word related by consanguinity, that too, when
the DVC respondents are the pensioners and DVC petitioner is not even residing
with them by the time of the DVC claim made and there is nothing specific to
say how there is domestic violence against her within the meaning of Section 3 of
the DVC Act against the DVC respondents, the aged parents and pensioners who
are even residing in far off place but
for now and then staying at Hyderabad by coming and going to the native place
again at Mizoram. Even under Hindu Succession Act for the properties of her
parents she got at best as class –I heir right of succession after her parents
and even not in their lifetime as it is not even her case of there is any
ancestral property to which she is entitled to claim any share or any of her
property is in the possession of her parents. Even such is the case, her claim
is otherwise to maintain suit for recovery of share by partition or the like. Even
coming to any right to claim maintenance including for residence under Hindu
Adoptions and Maintenance Act, what Section 20 of the Hindu Adoptions and Maintenance Act,
1956(for short, ‘the HAAM Act’) speaks is as:
Maintenance of children and aged parents.—
(1) Subject
to the provisions of this section a Hindu is bound, during his or her lifetime,
to maintain his or her legitimate or illegitimate children and his or her aged
or infirm parents.
(2) A
legitimate or illegitimate child may claim maintenance from his or her father
or mother so long as the child is a minor.
(3) The
obligation of a person to maintain his or her aged or infirm parent or a
daughter who is unmarried extends in so far as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or herself out of
his or her own earnings or other property.
As per Section 20 of the HAAM
Act’, a Hindu in his lifetime bound to
maintain his legitimate or illegitimate children and his or her aged or infirm
parents and so long as the legitimate or illegitimate child is a minor and the
obligation to maintain the aged or infirm parents or the unmarried daughter who
is unable to maintain herself out of her own earnings or other property. Here,
the DVC petitioner is married. Once she is married and her husband is alive and
earning and getting maintenance from him, she is not within the meaning of even
dependant under Sections 21 and 22 of the HAAM Act, which speaks as:
Dependants defined.—For the purposes of this Chapter “dependants”
mean the following relatives of the deceased:—
(i) his
or her father;
(ii) his
or her mother;
(iii) his
widow, so long as she does not re-marry;
(iv) his
or her son or the son of his predeceased son or the son of a predeceased son of
his predeceased son, so long as he is a minor; provided and to the extent that
he is unable to obtain maintenance, in the case of a grandson from his father’s
or mother’s estate, and in the case of a great grand-son, from the estate of
his father or mother or father’s father or father’s mother;
(v) his
or her unmarried daughter, or the unmarried daughter of his predeceased son or
the unmarried daughter of a predeceased son of his predeceased son, so long as
she remains unmarried: provided and to the extent that she is unable to obtain
maintenance, in the case of a grand-daughter from her father’s or mother’s
estate and in the case of a great-grand-daughter from the estate of her father
or mother or father’s father or father’s mother;
(vi) his
widowed daughter: provided and to the extent that she is unable to obtain
maintenance—
(a) from
the estate of her husband, or
(b) from
her son or daughter if any, or his or her estate, or
(c) from
her father-in-law or his father or the estate of either of them;
(vii) any
widow of his son or of a son of his predeceased son, so long as she does not
remarry: provided and to the extent that she is unable to obtain maintenance
from her husband’s estate, or from her son or daughter, if any, or his or her
estate; or in the case of a grandson’s widow, also from her father-in-law’s
estate;
(viii) his
or her minor illegitimate son, so long as he remains a minor;
(ix) his
or her illegitimate daughter, so long as she remains unmarried.
22. Maintenance
of dependants.—
(1) Subject
to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to
maintain the dependants of the deceased out of the estate inherited by them
from the deceased.
(2) Where
a dependant has not obtained, by testamentary or intestate-succession, any
share in the estate of a Hindu dying after the commencement of this Act, the
dependant shall be entitled, subject to the provisions of this Act, to
maintenance from those who take the estate.
(3) The
liability of each of the persons who takes the estate shall be in proportion to
the value of the share or part of the estate taken by him or her.
(4) Notwithstanding
anything contained in sub-section (2) or sub-section (3), no person who is
himself or herself a dependant shall be liable to contribute to the maintenance
of others, if he or she has obtained a share or part, the value of which is, or
would, if the liability to contribute were enforced, become less than what
would be awarded to him or her by way of maintenance under this Act.
Thus, from the above also she cannot claim by relationship by
consanguinity by invoking Section 2(f) of the Act for maintenance or residence
accommodation provision or claim. As such there is no domestic relationship and
no domestic violence or there are no specific acts of domestic violence even
that could be made out to maintain. Having regard to the above and even there
was any order passed by the learned Magistrate pending adjudication of the DVC case
from the admission by the DVC 1st respondent-father of the DVC
petitioner though married she is getting maintenance from her separated husband
by voluntarily coming to provide Rs.5,000/- per month that was so ordered and
that was even maintained pending revision for no basis for the lower appellate
Court to enhance or to award more much less at Rs.10,000/- per month from
09.07.2014. Thus lower appellate Court’s order so far as the revision concerned
is unsustainable but to restore the order in the DVC case, subject to
maintainability of the DVC claim. When
the DVC claim as observed supra is not maintainable besides no specific
allegations not within the domestic relationship but for whatever paid
unrecoverable, from very non-maintainability
of the DVC case, the DVC petitioner is not entitled to maintain the DVC claim
against her aged parents-DVC respondents. However, it is left to the wisdom of
the DVC respondents to pay Rs.5,000/- as promised earlier out of any moral
obligation to the DVC petitioner. Accordingly, Point No.1 is answered.
Point
No.2:
11. In the
result, both the revision and the Criminal Petition are allowed. Miscellaneous petitions, if any, pending in
these Revision and Criminal Petition shall stand closed.
__________________________
Dr.
B.SIVA SANKARA RAO, J
Date:15.12.2014
VVR
