Sunday, 3 February 2019

Whether wife is entitled to get residence order even if she fails to prove that domestic violence was committed against her?


The High Court set aside the
order passed by the learned District Judge in the appeal
by observing that the petitioner was unable to establish
any incident of torture or demand of money or physical
violence. In that view of the matter, the High Court
was of the opinion that the petitioner was not entitled
to any order in her favour. It is pertinent to state
that the High Court held that the petitioner was
entitled to claim residence in the shared household.
But that entitlement is only in case she establishes
domestic violence, which she did not.
The learned counsel appearing for the petitioner
submitted that the High Court fell in error in adding
that the petitioner could not produce any evidence in
support of her claim. According to him, the evidence of
the petitioner was sufficient to conclude that she was
subjected to domestic violence. He also submitted that
in any event, the child is entitled for maintenance.
We are in agreement with the finding recorded by
the High Court that there is absolutely no evidence to

prove domestic violence. 
S U P R E M E C O U R T O F I N D I A

Petition(s) for Special Leave to Appeal (Crl.) No(s).2600-2601/2016

SANGITA SAHA Vs ABHIJIT SAHA 

Dated:28-1-2019
CORAM :
 MR. JUSTICE L. NAGESWARA RAO
 MR. JUSTICE M.R. SHAH



The petitioner is the wife of the respondent
No.1. The respondent Nos.2 and 3 are the Father-in-law
and Mother-in-law. Respondent No.4 is the Sister-in-law,
who is married. The petitioner filed a case under the
Protection of Women from Domestic Violence Act, 2005
seeking right of residence in the share household and
for maintenance to herself and her daughter. The

Magistrate dismissed the case filed by the petitioner
dated 18.5.2013. The appeal filed by the petitioner was
allowed by the District Judge on 23.6.2014 by holding
that the petitioner has a right to accommodation in the
share household and maintenance of Rs.2,500/- for
herself and Rs.4,000/- for the child.
The respondent filed a revision before the High
Court, which was allowed. The High Court set aside the
order passed by the learned District Judge in the appeal
by observing that the petitioner was unable to establish
any incident of torture or demand of money or physical
violence. In that view of the matter, the High Court
was of the opinion that the petitioner was not entitled
to any order in her favour. It is pertinent to state
that the High Court held that the petitioner was
entitled to claim residence in the shared household.
But that entitlement is only in case she establishes
domestic violence, which she did not.
The learned counsel appearing for the petitioner
submitted that the High Court fell in error in adding
that the petitioner could not produce any evidence in
support of her claim. According to him, the evidence of
the petitioner was sufficient to conclude that she was
subjected to domestic violence. He also submitted that
in any event, the child is entitled for maintenance.
We are in agreement with the finding recorded by
the High Court that there is absolutely no evidence to

prove domestic violence. However, we are of the
considered opinion that the child has to be paid
maintenance at the rate of Rs.4,000/- as was determined
by the learned District Judge. The learned counsel for
the respondent fairly acceded to the same.
For the aforementioned reasons, we dismiss the
Special Leave Petition.
The respondent No.1 is also directed to pay Rs.
4,000/- p.m. as maintenance to the child w.e.f. May,
2013.
Pending application(s), if any, stand disposed
of.
(B.Parvathi) (Kailash Chander)
Court Master Assistant Registrar
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