Whether court can grant maintenance to children if Domestic violence is not established against mother?

In   my   considered   opinion,   the   learned   Magistrate   had 
committed an error in granting monetary relief to  respondent Nos. 2 and 3 
despite the fact that domestic violence could not be established.  Though it is 
possible to say that the maintenance was permissible for respondent Nos. 2 
and 3 (minor children) under Section 125 of the Code of Criminal Procedure, 
the monetary reliefs could not have been given to them under Section 20 of 
the Protection of Women from Domestic Violence Act, 2005.  The view taken 
by   the   learned   Magistrate   and   the   appellate   Court,   in  my   opinion,   is   not 
correct.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
  
               
CRIMINAL WRIT PETITION NO. 32 OF 2014

Koushik S/o. Anil Gharami,


 //  VERSUS //
1.  Sau. Sangeeta Koushik Gharami,
aged about 36, Occu. Service,
2. Ku. Gayatri Sangeeta Gharami,
3. Ku. Astha Sangeeta Gharami,
Age about 6 years, 
Respondent No.2 and 3 being minors are 
represented by their ad­litum mother the

                             CORAM : M.L. TAHALIYANI, J.
                              DATED   : MAY 05, 2014.



3. A short question that arises for determination in present writ 
2. 
petition  is,  as  to   whether   the   minor   children  of   the  aggrieved   person  are 
entitled for maintenance under Section 20 of the Protection of Women from 
Domestic Violence Act, 2005 if the trial Magistrate has come to a conclusion 
Admittedly, the petitioner is husband of respondent No.1 and 
4.

that the domestic violence has not been proved.  
father   of   respondent   Nos.2   and   3.     Respondent   Nos.1,   2   and   3   filed   an 
application under Section 12 of the Domestic Violence Act, 2005 in the Court 
of Judicial Magistrate First Class, Aheri.  The said application was heard on 
merits   and   following   points   were   framed   by   the   Magistrate   for 
determination:  
1. Does Applicant No.1 prove that she was subjected to Domestic 
Violence by Non­applicant No.1 as alleged in the application ?
2. Do the applicants are entitled for relief claimed in their claim 
clause
3. What order ?
The learned Magistrate had answered point No.1 in negative 
and point No.2 was answered partly in affirmative.  The learned Magistrate 
had   come   to   a   conclusion   that   respondent   No.1   had   not   been   able   to 

establish that she was subject to domestic violence by the petitioner.   The 
learned Magistrate has also come to a conclusion that respondent No.1 was 
not entitled for any monetary relief.  However, monetary relief was granted 
to respondent Nos. 2 and 3.  The final order of the learned Magistrate runs as 
under :

    “1. The application is partly allowed.
2. Non­Applicant   No.1   shall   pay   Rs.2000/­   per  
month   to  Applicant   No.2   and   3   each,   for   their  
education, from the date of application.
3. Non­Applicant   No.1   shall   pay   Rs.1000/­   per  
month   to   applicant   no.2   and   3   each,   for   their  
maintenance   (monitory  relief)  from  the   date   of  
application.
4. parties to bear their own cost. 
5. The  amount received by Applicant No. 2 and 3 
under interim order, Exh.No.18, be set off against  
the amount as mentioned above.”
5.
The petitioner had filed a criminal appeal against the said order 
of the learned Magistrate.  The said Criminal Appeal was also dismissed on 
9th December, 2013.  
6.
As already stated, the question that arises, whether respondent 
Nos.2   and   3   could   be   granted   any   monetary   relief   despite   the   fact   that 
domestic violence could not be proved by respondent No.1.   In this regard, 
one will have to refer to certain provisions of the Protection of Women from 
Domestic Violence Act.  ‘Aggrieved Person’ has been defined in Section 2(a) 
of the Protection of Women from Domestic Violence Act, 2005 :

7.
“2(a) “aggrieved person” means 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;”
Chapter IV deals with ‘Procedure for obtaining orders of reliefs’. 
Section  12   lays  down  the   procedure   for   presenting  application  before   the 

concerned Magistrate.   Sections 18 and 19 of the Act deal with ‘Protection 
Orders’   and   ‘Residence   Orders’,   respectively.     Section   20   deals   with 
‘Monetary Relief’.  
In the present petition, this Court is concerned as to whether 
8.
any   monetary   relief   could   have   been   given   to   respondent   Nos.   2   and   3. 
Section 20 of the Protection of Women from Domestic Violence Act, 2005 
lays down :
  “20.  Monetary   reliefs.­   (1)   While   disposing   of   an 
application   under   sub­section   (1)   of   Section   12,   the  
Magistrate may direct the respondent to pay monetary  
relief to meet the expenses incurred and losses suffered  
by the aggrieved person and any child of the aggrieved 
person as a result of the domestic violence and such relief  
may include, but is not limited to ­
(a) the loss of earnings;
(b) the medical expenses;
(c)   the   loss   caused   due   to   the   destruction,   damage   or  
removal   of   any   property   from   the   control   of   the  
aggrieved person; and 
(d) the maintenance for the aggrieved person as well as  
her   children,   if   any,   including   an   order   under   or   in 
addition to an order of maintenance under section 125  
of the Code of Criminal Procedure, 1973(2 of 1974) or  
any other law for the time being in force.”

It   is   thus,   clear   that   the   monetary   relief   is   available   for   the 
9.
         
children of the aggrieved person if the monetary relief is required to meet the 
expenses incurred by the aggrieved person as a result of domestic violence. 
The   monetary   relief   is   also   permissible   in   case   losses   are   suffered   by   the 
aggrieved person as a result of the domestic violence.  The monetary relief is 
available to children of the aggrieved person under Section 20 of the Act. 

However, the aggrieved person is under obligation to establish that she had 
to meet the expenses incurred and losses suffered due to domestic violence 
on   the   part   of   the   respondent.     In   the   present   case,   since   the   learned 
Magistrate has come to a conclusion that the domestic violence could not be 
proved   and   since   that   finding   of   the   learned   Magistrate   has   not   been 
challenged by the aggrieved person, it follows that no relief could have been 
given to respondent Nos. 2 and 3 also.  
10.
In   my   considered   opinion,   the   learned   Magistrate   had 
committed an error in granting monetary relief to  respondent Nos. 2 and 3 
despite the fact that domestic violence could not be established.  Though it is 
possible to say that the maintenance was permissible for respondent Nos. 2 
and 3 (minor children) under Section 125 of the Code of Criminal Procedure, 
the monetary reliefs could not have been given to them under Section 20 of 
the Protection of Women from Domestic Violence Act, 2005.  The view taken 
by   the   learned   Magistrate   and   the   appellate   Court,   in  my   opinion,   is   not 
correct and hence, I pass the following order. 

i. The writ petition is allowed.
               
ii. The order passed by learned Magistrate in Misc. Criminal Case No. 27 
of  2011   on  12th  March,  2013   and   the   order   passed   by  the   learned 
Sessions Judge, Gadchiroli in Criminal Appeal No. 14 of 2013 on 9th 
December, 2013 are set aside.  

iii. The amount of Rs.Twenty Five Thousand, deposited by the petitioner 
in this Court shall be refunded to him immediately.   
The petition stands disposed of accordingly. 

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