Sunday, 19 March 2017

Whether proceeding under domestic violence Act can be conducted by brother of aggrieved woman?

 Under Section 12 of the D.V. Act, an aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved person has
been given a right to file an application to the Magistrate seeking various
reliefs permissible under the Act.   The conditions necessary for preferring
such an application are that the application must be filed by an aggrieved
person or any other person on behalf of the aggrieved person and that the
aggrieved person must be a woman, who is or who has been in domestic
relationship with the respondent and who is subjected to any act of domestic
violence by the respondent.  In the present case, the application has been filed
on behalf of the respondent by her brother.   The reason being that, at the
time of filing of the application, the respondent was doing her fellowship in
medicine at Bangalore.  The brother of an aggrieved person would certainly
fall within the meaning of the expression “any other person on behalf of the
aggrieved person”, used in Section 12 of the D.V. Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.656 OF 2015
Dr. Akshay s/o Navalkishor Lakhotiya,

­­ V
   Dr. Arti w/o Akshay Lakhotiya,

  CORAM   :  S. B. SHUKRE, J.

Dated :   15th DECEMBER, 2016.
Citation: 2017(2) MHLJ 235 Bom

Rule. Rule made returnable forthwith.  Heard finally by consent
of the learned Counsel for the parties.

02] Both these writ petitions are being disposed of by this common
judgment as they challenge different orders passed in one and the same
proceedings.
03] By Criminal Writ Petition No.656/2015, the following prayers
have been made :
(a) Set aside the entire proceedings of the domestic violence case
initiated under Section  12 of  the Protection  of Women from
Domestic Violence Act, 2005 ('the D.V. Act' for short) being Misc.
Criminal   Case   No.1004/2014   pending   on   the   file   of   Judicial
Magistrate First Class, Court No.4, Akola.
(b) Quash and set aside the order dated 15/12/2014 passed below
application   vide   Exh.10   granting   interim   maintenance   under
Section  23   of  the  D.V.  Act  to  the  respondent  at  the rate   of
Rs.5,000/­ per month.
(c) Quash   and   set   aside   the   order   passed   on   07/03/2015   on
application   vide   Exh.25   thereby   rejecting   the   prayer   of   the
appellant   to   merge   the   interim   maintenance   amount   in   the
interim maintenance granted to the respondent at the rate of

Rs.10,000/­   per   month   on   21/11/2014   in   H.M.P.   No.
A­108/2014.
(d)Quash and set aside the judgment dated 27/07/2015 rendered
by the Sessions Judge, Akola in Criminal Appeal No.53/2015
thereby confirming the order dated 07/03/2015 passed below
the application at Exh.25.
04] By Criminal Writ Petition No.915/2015, the following relief is
sought.
Quash and set aside the judgment dated 23/10/2015 delivered
by   the   Sessions   Judge,   Akola   in   Criminal   Appeal   No.2/2015
thereby   modifying   the   order   of   interim   maintenance   dated
15/12/2014 and granting enhanced interim maintenance to the
respondent at the rate of Rs.15,000/­ per month.
05] In both the petitions, the petitioner No.1 and the first respondent
are the husband and wife, whose marriage was solemnized on 01/02/2013 at
Akola.   In both these petitions, petitioner Nos.2 and 3 are respectively the
father and the mother of petitioner No.1.  After the marriage, respondent­wife
started   cohabiting   with   petitioner   No.1   in   his   house   at   Akola,   where,   it
appears, petitioner Nos.2 and 3 were also joint in residence. Soon after the

marriage,   some   differences   arose   between   the   petitioner   No.1   and   the
respondent­wife, which eventually assumed the form of a full fledged dispute
between the petitioners on the one hand and the respondent­wife on the
other, wherein the rival sides traded serious allegations against each other.
The result was estrangement of the respondent­wife from the petitioners, in
particular, the petitioner No.1, and the respondent­wife, according to her
case, was compelled to reside under the shed and shelter of her parents.  It is
not in dispute that the petitioner No.1 and respondent­wife both are Doctors
by profession, who had achieved excellence in academics and who have to
their respective credits several laurels.  It appears that brilliance in academics
has done no good to the matrimonial relations between the husband and
wife.  The bitterness between the two ultimately resulted in the respondent
filing a police complaint as well as complaint under Section 12 of the D.V. Act
and the appellant filing a case for annulment of marriage under Section 12 of
the Hindu Marriage Act.  
06] In   the   present   case,   we   are   concerned   with   the   proceedings
initiated under Section 12 of the D.V. Act being M.C.A. No.1004/2014 before
the Court of the Judicial Magistrate First Class, Court No.4, Akola, the orders
passed therein on 15/12/2014 and 07/03/2015 below applications at Exh.10
and Exh.25 respectively by the learned Magistrate and the judgment of the
learned   Sessions   Judge   dated   23/10/2015   passed   in   Criminal   Appeal

No.2/2015 thereby enhancing the interim maintenance and the judgment
dated   27/07/2015   delivered   by   the   learned   Sessions   Judge   in   Criminal
Appeal No.53/2015 thereby confirming the order of the learned Magistrate
dated 07/03/2015.
07] According   to   the   learned   Counsel   for   the   petitioners,   the
proceedings initiated under Section 12 of the D.V. Act are not maintainable
inasmuch as the orders dated 15/12/2014 and 07/03/2015 are illegal and
could not have been passed by the learned Magistrate, as there is sufficient
evidence available on record showing that respondent­wife is equally well
qualified and equally well equipped with necessary skills to earn her own
living of the same standard as the petitioner No.1.  He also maintains that in
spite of the capacity of the respondent­wife to earn her own living, she has
been granted interim maintenance amount of Rs.10,000/­ per month in the
Hindu Marriage Petition filed against her by the petitioner No.1.  Therefore,
he submits that both these orders deserve to be quashed and set aside and so
the judgment dated 23/10/2015  rendered in Criminal  Appeal No.2/2015
enhancing  the interim  maintenance and  the  judgment  dated 27/07/2015
confirming   the   order   dated   07/03/2015   rendered   in   Criminal   Appeal
No.53/2015 confirming the order dated 07/03/2015 by the learned Sessions
Judge.

08] The learned Counsel for the respondent, however, submits that
the   judgments   of   the   learned   Sessions   Judge   dated   23/10/2015   and
27/07/2015 take into consideration the fact situation of the instant case and
the law applicable to it in a proper manner and, therefore, both these writ
petitions deserve to be dismissed.
09] Upon going through the impugned orders and the judgments as
well as the paper­book of these writ petitions with  the assistance of the
learned Counsel for the petitioners and the respondent, I am of the view that
so far as concerned the argument relating to the non­maintainability of the
proceedings of the domestic violence case being M.C.A. No.1004/2014 and
the illegal nature of the order dated 07/03/2015 passed below application at
Exh.25 by the learned Magistrate and also the incorrectness of the judgment
dated 27/07/2015 passed by the learned Sessions Judge, Akola in Criminal
Appeal No.53/2015 thereby confirming the order dated 07/03/2015, I am of
the view that there is no merit in the same.  However, this is not so for the
submissions relating to the judgment dated 23/10/2015 rendered in Criminal
Appeal No.2/2015  by the learned Sessions Judge, thereby  enhancing  the
amount of interim maintenance to Rs.15,000/­ per month.  Reasons for these
conclusions are given in the foregoing paragraphs.  

10] Under Section 12 of the D.V. Act, an aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved person has
been given a right to file an application to the Magistrate seeking various
reliefs permissible under the Act.   The conditions necessary for preferring
such an application are that the application must be filed by an aggrieved
person or any other person on behalf of the aggrieved person and that the
aggrieved person must be a woman, who is or who has been in domestic
relationship with the respondent and who is subjected to any act of domestic
violence by the respondent.  In the present case, the application has been filed
on behalf of the respondent by her brother.   The reason being that, at the
time of filing of the application, the respondent was doing her fellowship in
medicine at Bangalore.  The brother of an aggrieved person would certainly
fall within the meaning of the expression “any other person on behalf of the
aggrieved person”, used in Section 12 of the D.V. Act. There is no dispute
about the fact that the petitioner No.1 and the respondent were in a domestic
relationship and that the remaining petitioners were residing in the same
house as family members living together as a joint family.   Various acts of
violence of varying degree endangering the mental and physical health of the
respondent are alleged in the application.  All these facts would only show
that the conditions necessary for filing of an application under Section 12 of
the D.V. Act are sufficiently fulfilled in a  prima facie  manner in the instant

case and, therefore, the argument that the proceedings initiated under this
section are not tenable, cannot be accepted at least at this stage and so it
stands rejected.
11] By the order dated 15/12/2014, the application [Exh.10] filed
for grant of interim maintenance under Section 23 of the D.V. Act has been
partly allowed and the maintenance amount of Rs.5,000/­ per month by way
of an interim order has been directed to be paid by the petitioner No.1 only to
the respondent­wife.  This order was carried in appeal being Criminal Appeal
No.2/2015 by the respondent­wife, as she desired much higher amount of
monthly maintenance to be paid to her by petitioner No.1. By the judgment
rendered   on   23/10/2015,   the   learned   Sessions   Judge   partly   allowed   the
appeal and modifying the order dated 15/12/2014, enhanced the amount of
interim maintenance to Rs.15,000/­ per month.  The order dated 15/12/2014
and the judgment dated 23/10/2015 are the subject matter of challenge in
Writ Petition No.915/2015.  
12] Upon going through the order dated 15/12/2014 and  judgment
dated 23/10/2015, I find that while the learned Magistrate has properly
considered the rival claims and material produced on record by the rival
parties in support of their respective claims, the learned Sessions Judge has
committed an illegality in substituting his own view for reasons not borne out

from   record   of   the   case.   The   learned   Magistrate   has,   it   is   seen,   rightly
concluded   that  even   though   at   the  time  of   deciding  the  application,  the
petitioner No.1 was jobless, the documents placed on record did show that he
was having capacity to earn an amount of Rs.1.00 lakh per month.   The
learned Magistrate also considered the fact and rightly so, that at that time,
the respondent­wife was getting a stipend of Rs.30,000/­ per month.  Thus,
taking a holistic view of the issue in the light of the nature of the proceedings,
status of the parties, and need of the respondent­wife to lead a life of same
standard as that of the petitioner No.1, the learned Magistrate fixed the
quantum of interim maintenance to be at Rs.5,000/­ per month.   I do not
think that the approach so adopted by the learned Magistrate is illegal or
contrary to the facts placed on record or so perverse or illogical as not to arise
at all from the material available on record.   If this is so, the interference
made by the learned Sessions Judge in modifying the said order and granting
enhanced   interim   maintenance   by   his   judgment   dated   23/10/2015   was
incorrect and wholly unnecessary.  In fact, it appears from the observations
made in paragraph 13 of the said judgment that the learned Sessions Judge
also took into account change of circumstances after passing of the order
dated   15/12/2014,   which   was   not   permissible   in   law.     If   change   of
circumstances   was   to   be   considered   for   modifying   the   order   dated
15/12/2014, the proper way to do so for the learned Sessions Judge was to

give liberty to the petitioner No.1 to move an appropriate application under
Section 25 of the D.V. Act and not consider the same while hearing an appeal
under Section 29 of the D.V. Act.  The appeal filed under Section 29 of the
D.V. Act ought to have been considered and decided by him on the basis of
the record already available and which was considered by the trial Court
while passing the impugned order.  Therefore, the judgment of the learned
Sessions   Judge   dated   23/10/2015   passed   in   Criminal   Appeal   No.2/2015
cannot be sustained in law.  It deserves to be quashed and set aside and the
order passed by the learned Magistrate on 15/12/2014 on application at
Exh.10 deserves to be restored and confirmed.
13] As   regards   the   other   impugned   order   and   judgment   dated
07/03/2015 and 27/07/2015 respectively, I would say that, upon carefully
going through the impugned order and judgment, neither any illegality nor
any perversity is seen nor any such illegality or perversity could be shown to
me by the learned Counsel for the petitioners.  It is well settled law that any
relief available under Sections 18, 19, 20, 21 and 22 is in addition to and
along with any other relief that an aggrieved person may be entitled to in any
another proceedings initiated under other applicable law, in view of Section
26(2) of the D.V. Act. Of course, Section 26(2) of the D.V. Act does not make
any reference to the order passed under Section 23 of the said Act.  But any

order passed under Section 23, being an interim order passed with a view to
provide interim relief in terms of Sections 18, 19, 20, 21 and 22 or any of
them, would also be included within the scope of Section 26(2) of the D.V.
Act by necessary implication.  The aforesaid impugned order and impugned
judgment   have   been   passed   keeping   in   view   this   position   of   law   and,
therefore, no interference with the same is warranted.   In the result, Writ
Petition   No.656/2015   deserves   to   be   dismissed   and   Writ   Petition
No.915/2015 deserves to be partly allowed.   Hence, the following order is
passed :
i. Writ Petition No.656/2015 stands dismissed and Writ Petition
No.915/2015 is partly allowed.
ii. The   judgment   dated   23/10/2015   passed   in   Criminal   Appeal
No.2/2015 by the learned Sessions Judge, Akola is quashed and
set aside and the Criminal Appeal No.2/2015 stands dismissed.
iii. The order dated 15/12/2014 passed below application [Exh.10]
in M.C.A. No.1004/2014 is restored and maintained. 
iv. However, the respondent­wife shall have liberty to resort to the
provisions of Section 25 of the D.V. Act, if there is a change in
circumstances.

v. The parties to bear their own costs.
vi. Rule accordingly.

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