provisions of the D.V. Act, the wife is not expected to show
that just before the filing of the proceeding she was
subjected to domestic violence. This Court has observed in
the case cited supra that proceeding needs to be filed
within reasonable time from the cause of action but in
view of the other reliefs which are made available and the
observations made by the Apex Court particularly with
regard to economic abuse which finds mention in section
3, the definition of "domestic violence", it can be said
that the original applicant from the present proceeding
has made out her case. She has turned old, she has no
source of income but the husband is avoiding to provide
anything for her maintenance and he is having sufficient
property. It appears that he was Sarpanch of the village
also.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.804 of 2014
Vrushiket S/o Sadashiv Shinde,
Versus
Pamabai W/o Vrushiket Shinde,
CORAM: T.V. NALAWADE, J.
DATE : 17th JUNE 2015
Citation; 2015 ALLMR(cri) 4555
1) The petition is filed to challenge the judgment
and order of Criminal Appeal No.55 of 2013 which was
pending in the Court of the Sessions Judge Osmanabad
and also the decision of Criminal Misc. Application
No.429/2010 which was challenged in Criminal Appeal
No.55/2013. The learned Chief Judicial Magistrate has
granted relief like payment of maintenance of Rs.800/- per
month, compensation of Rs.5000/- and Rs.400/- per month
towards rent in favour of the present respondent No.1 and
this order is confirmed in the appeal. Both the sides are
heard.
2) It is the case of the original applicant Smt.
Pamabai that her marriage with respondent Vrushiket
took place 49 years prior to the date of filing the
proceeding. It is her case that for about one year there
was no dispute but after that respondent No.1 started
harassing her on petty counts and she was virtually
starved and he was not providing the necessary items and
articles to her. It is contended that after one year of the
marriage she was driven out of the house and she was
staying with her mother for some time. It is contended
that her parents are residents of the same village. It is
contended that the matter was reconciled and then she
gave birth to a daughter after 4 years of the marriage.
3) It is the case of the original applicant that after
birth of the daughter, respondent No.1 married second
wife. Respondent No.2 is the second wife of respondent
No.1 and respondent Nos.3 and 4 are the sons born to
respondent No.2 from respondent No.1. It is her case that
after the second marriage more ill-treatment was given to
her and ultimately she was again driven out of
matrimonial house. It is her case that she then started
living in a dilapidated room which was owned by
respondent No.1 and his brother. It is her case that she
some-how managed to solemnize marriage of her
daughter.
4) It is the case of the original applicant that for
more than 22 years the husband has not provided
anything for her maintenance. It is her case that she had
filed Criminal Misc. Application No.132/2001 under
section 125 of the Code of Criminal Procedure for
maintenance and the Judicial Magistrate had granted
maintenance at the rate of Rs.1000/- per month. It is her
case that when she filed proceeding for recovery of
arrears of amount, force was used and fraud was played to
compromise the case.
5) It is the case of the original applicant that she
has filed a suit also for getting share in the property as
nothing is provided to her by the husband for her
maintenance. It is her case that she some how is pulling
herself and she is living at the mercy of others. It is her
case that respondent No.1 is still harassing her and he
visits her house and gives beating to her. It is her case
that the second wife and the issues from the second wife
are also harassing her. It is her case that she has become
old and she is not able to do any work and she is not able
to maintain herself.
6) It is the case of the original applicant that
respondents own 37 acres of agricultural land and they
are taking crops like sugarcane, Jowar, Toor, wheat and
their annual income is more than Rs. 7 lakh. In the
proceeding file under the provisions of sections 18, 19, 20
and 22 of the Protection of Women from Domestic
Violence Act, 2005 (for short "the D.V. Act") she had
prayed for aforesaid reliefs and the reliefs to the extent
mentioned are granted. Both of them challenged the
decision of the Judicial Magistrate but both the appeals
came to be dismissed. The original applicant has not
challenged the decision of the Sessions Court on the point
of quantum but the original respondents, husband and his
two sons have challenged the decision of the Sessions
Court.
7) The submissions made and the record show
that relationship is not disputed by respondent No.1
Vrushiket. It was submitted that after so many years,
more than 22 years, the wife started claiming
maintenance and as for such long period they were living
separate it cannot be said that there were any domestic
relations as required by the provisions of the D.V. Act. It
appears that there is not much dispute over the quantum
as meagre amount of Rs.800/- per month is granted and
also meagre amount is granted towards rent. It is also
not disputed that the original applicant has no source of
income and she has become old.
8) Learned counsel for the petitioner placed
reliance on a reported case 2014 All MR (Cri) 636
Bombay High Court (Sejal Dharmesh Ved v. the State of
Maharashtra). In this case this Court refused similar
reliefs to a lady who was living in most of the time in
United States when she had married with the opponent
in 1999 and she had come just one year prior to the date
of proceeding to India, in 2009. In view of the facts of that
case, this Court held that there was no physical
relationship, which had come to an end long back and as
the proceeding was not filed within reasonable time to
show that the relations would give her the cause of action
to file proceeding under the D.V. Act, the relief was
refused.
9) As against this reported case, learned counsel
for the original applicant placed reliance on a case
reported as (2014) 3 SCC 712 (Saraswathy v. Babu).
The Apex Court has discussed the relevant terms and
requirements for taking benefit of the provisions of the
D.V. Act at paragraph 12 to 14. The observations are as
under :-
"12. Section 2(g) of PWD Act, 2005 states that
"domestic violence" has the same meaning a
assigned to it in Section 3 of PWD Act, 2005.
Section 3 is the definition of domestic violence.
Clause (iv) of Section 3 relates to "economic abuse"
which includes 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 as evident from clause (c)
of Section 3 (iv).
13. In the present case, in view of the fact that
even after the order passed by the Subordinate
Judge the respondent-husband has not allowed the
appellant-wife to reside in the shared household
matrimonial house, we hold that there is a
continuance of domestic violence committed by the
respondent-husband against the appellant-wife. In
view of the such continued domestic violence, it is
not necessary for the courts below to decide
whether the domestic violence is committed prior
to the coming into force of the Protection of Women
from Domestic Violence Act, 2005 and whether
such act falls within the definition of the term
Domestic Violence as defined under Section 3 of
the PWD Act, 2005.
14. The other issue that whether the conduct of
the parties even prior to the commencement of the
PWD Act, 2005 could be taken into consideration
while passing an order under Sections 18, 19 and
20 fell for consideration before this Court in V.D.
Bhanot v. Savita Bhanot (2012) 3 SCC 183. In the
said case, this Court held as follows :
"12. We agree with the view expressed by the
High Court that in looking into a complaint
under Section 12 of the PWD Act, 2005, the
conduct of the parties even prior to the coming
into force of the PWD Act, could be taken into
consideration while passing an order under
Sections 18, 19 and 20 thereof. In our view, the
Delhi High Court has also rightly held that even
if a wife, who had shared a household in the
past, but was no longer doing so when the Act
came into force, would still be entitled to the
protection of the PWD Act, 2005.".
10) It cannot be disputed that in view of the
provisions of the D.V. Act, the wife is not expected to show
that just before the filing of the proceeding she was
subjected to domestic violence. This Court has observed in
the case cited supra that proceeding needs to be filed
within reasonable time from the cause of action but in
view of the other reliefs which are made available and the
observations made by the Apex Court particularly with
regard to economic abuse which finds mention in section
3, the definition of "domestic violence", it can be said
that the original applicant from the present proceeding
has made out her case. She has turned old, she has no
source of income but the husband is avoiding to provide
anything for her maintenance and he is having sufficient
property. It appears that he was Sarpanch of the village
also.
11) One more argument was advanced by the
learned counsel for the petitioner that the matter was
compromised in the past and right of maintenance was
given up by the original applicant. This submission is not
acceptable as the said so called compromise was
challenged by filing suit and relief of declaration is given
in respect of that so called compromise by the Civil Court.
In any case, the original applicant of the present case
needs support at this stage. The respondents, husband
and the issues of the husband are having property but
they are not giving support of any kind and they have
subjected the original applicant to economic abuse. In
view of these circumstances this Court holds that it is not
possible to interfere in the orders and the decision given
by the Judicial Magistrate and the Sessions Court.
12) In the result, the petition stands dismissed.
Rule is discharged with no order as to costs.
Sd/-
(T.V. NALAWADE, J. )
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