Sunday, 8 December 2019

Calcutta HC: Mother is entitled to claim relief under domestic violence Act against son

In the present case, the petitioner and the opposite party are related
with each other i.e. the relationship of son and mother. They have been in a
relationship with each other where both the parties lived together in a
residence.
The Learned Courts below after considering the evidence adduced by the
parties and the materials placed on record came to the concurrent findings
that the present opposite party was entitled to get a protection order under
Section 18 of the Act of 2005, monetary relief including medical expenses @
rate of Rs.8,000/- per month from the date of the order and also entitled to get
Rs.50,000/- as damages for mental torture and emotional distress.
Both the Learned Courts elaborately analyzed the evidence on record,
the relationship between the parties, their economic condition and the income
of the other two sons of the present opposite party/mother. Thereafter came to
the conclusion that the aggrieved party/mother was entitled to get the reliefs
under the Act of 2005. The conclusion drawn by the Learned Courts below is
based on facts and law.
It is a settled principle of law that in exercise of its power under Section
482 of the Code of Criminal Procedure, the High Court should not, in the
absence of perversity, upset concurrent factual findings of the Trial Court and
Appellate Court. Moreso, the High Court in exercise of its inherent power
should not reanalyze and re-assess the materials particularly the evidence on
record.
On perusal of the entire materials on record, it cannot be held that the
Learned Courts below committed an error in holding that the present opposite
party/mother is entitled to get the reliefs under the Protection of Women from
Domestic Violence Act.

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction

C.R.R. 2126 of 2015

Goutam Chanda Vs  Gouri Rani Chandan 
Judgment on : 02.12.2019
Present:
The Hon’ble Justice Madhumati Mitra


This is an application under Section 401 read with Section 482 of the
Code of Criminal Procedure filed by the petitioner challenging the impugned
order being no.8 dated 5th May, 2015 passed by the Learned Session Judge,
Howrah in Criminal Appeal No.426 of 2014. By the impugned order, the
Learned Session Judge affirmed the judgment and order dated 29th November,
2014 passed by the Learned Judicial Magistrate, 4th Court, Howrah in
Miscellaneous Case No.587/2010 being T.R.No.520/2010.
The facts which are essential for disposal of the present revisional
application may be summarized as under:
Opposite party no.1 is the mother of the present petitioner. The mother
of the petitioner is an old lady and is suffering from various ailments.
Opposite party no.1/mother became the owner of a plot of land measuring
about 5 cottahs, 2 chitaks and 42 sq.ft by way of purchase. She has three
sons, present petitioner is one of the sons of the opposite party no.1. Out of
love and affection, the opposite party/mother transferred a portion of the said
land to the present petitioner by executing a deed in his favour and the
remaining portion of the said plot was gifted by the opposite party no.1 to her
other two sons. It was alleged by the opposite party no.1 in her application
under Section 12 of the Protection of Women from Domestic Violence Act, 2005
that the present petitioner and his father-in-law tried to make permanent
construction on the land of the opposite party and her two other sons.
Opposite party/mother protested the action of the present petitioner. She filed
a civil suit being Title Suit No.179 of 2010 before the Court of Learned Civil
Judge, Junior Division, 5th Court, Howrah. It was alleged by the opposite
party/mother that after receipt of the summons of the said civil suit, the
present petitioner and his wife started abusing the present opposite
party/mother. The present petitioner and his parents in law assaulted the
opposite party/mother and her 2nd son. They were treated at Howrah State
General Hospital for the injuries sustained by them due to assault. The
present opposite party/mother was compelled to lodge a written complaint
before the I/C of Nazirgunj under Police Station Sankrail against the present
petitioner and other. In spite of that the present petitioner along with others
disturbed the present opposite party. The opposite party/mother was
compelled to inform the matter to the District Magistrate, Superintendent of
Police and Additional Superintendent of Police (Rural Howrah). It was the
apprehension of the opposite party that the present petitioner was trying to
grab her property and as such by filing the application under the provisions of
Protection of Women from Domestic Violence Act, the opposite party sought for
various reliefs and the said application was registered as Misc.Case No.587 of
2010.
The present petitioner being the opposite party of the Misc.Case
No.587/2010, contested the said Misc.Case by filing written objection. In his
written objection the present petitioner denied all the allegations levelled
against him by the present opposite party/mother. In his written objection,
the present opposite party admitted that one civil suit was pending relating to
a portion of the disputed plot. It was specifically submitted by the present
petitioner before the Learned Magistrate that his other brothers instigated their
mother against him. The petitioner claimed that he had invested huge amount
for construction of a house at Andul Road and he was being pressurized by his
mother and two brothers to sale the said property. The present petitioner was
not willing to sell that property. On September 28th,2010 at about 7:00 a.m.
the brothers of the present petitioner with the instigation of their mother
threatened to kill the present petitioner and his family members over a dispute
of locking the door of the passage. The present petitioner lodged an F.I.R. with
Sankrail Police Station against the present opposite party and her two sons.
The present petitioner specifically stated that he was medically treated due to
injury sustained by him. He was compelled to file one M.P.Case being No.1332
of 2010 before the Executive Magistrate, 2nd Court, Howrah.
The present petitioner in his written objection also stated that the
opposite party is a pension holder and gets pension of Rs.10,000/- per month.
Apart from, she has fixed deposit of Rs.3 Lakhs and Rs.2 Lakhs. The present
petitioner claimed that his mother earns Rs.7,000/- per month from the
tenant. The present petitioner also claimed that his two other brothers have
sufficient means to their mother.
After giving opportunity of being heard to both the parties, the Learned
Magistrate allowed the prayers of the opposite party under Section 12 of
Protection of Women from Domestic Violence Act in part on 29th November,
2014. By the said order the Learned Magistrate directed the present petitioner
to pay Rs.8,000/- per month as monetary relief including medical expenses to
the present opposite party/mother and also directed him to pay Rs.50,000/-
as damage to his mother for mental torture and emotional distress caused to
her.
Being aggrieved by and dissatisfied with the judgments and order passed
by the Learned Magistrate, the present petitioner preferred a Criminal Appeal
being No.426 of 2014 on 05.05.2015. The Learned Session Judge, Howrah,
dismissed the said Criminal Appeal preferred by the present petitioner and
affirmed the judgment and order passed by the Learned Judicial Magistrate on
29.11.2014 in Misc.Case No.587 of 2010.
During the course of hearing the impugned judgment and order passed
by the Learned Session Judge have been assailed by the Learned Counsel for
the petitioner on the ground that both the Learned Courts below have
committed an error in passing the impugned order in favour of the opposite
party. According to the contention of the Learned Counsel for the petitioner is
that both the Learned Courts below have failed to appreciate the fact that the
opposite party has sufficient means to maintain herself. He has further
submitted that proceedings initiated by the opposite party are not within the
ambit and scope of the provisions of Protection and Women from Domestic
Violence Act. It has been forcefully contended by the Learned Advocate for
petitioner that both the Learned Courts below have failed to take into
consideration that the dispute between the petitioner and his mother cropped
up with regard to some properties and the opposite party mother was
instigated by her two other sons to initiate proceedings against the petitioner.
Learned Counsel has further contended that both the Learned Courts
below have failed to take into consideration that the dispute raised in the
proceedings under Section 12 of the Protection of Women from Domestic
Violence Act is purely a dispute of civil nature between mother and her sons
and the mother cannot be regarded as aggrieved person within the meaning of
the Act. It is the specific contention of the Learned Counsel for the petitioner
that the judgment and order passed by the Learned Session Judge whereby
affirming judgment and order passed by the Learned Magistrate are not
sustainable in law and are liable to be set aside.
Admittedly, the present petitioner is one of the sons of the opposite
party. It is also an admitted fact that the opposite party has three sons. She
gifted her landed property to her sons. Present petitioner is the youngest son
of the opposite party and he is residing in the property gifted to him by his
mother i.e. the present opposite party. Materials placed on record show that
the present petitioner used to reside with his mother and after the death of his
father he left his mother.
In her application, under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 the present opposite party described that she was
subjected to physical and mental torture by the present petitioner. Section
2(a) of the Act of 2005 has defined the term ‘aggrieved person’. ‘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.
Section 2(f) of the Act of 2005 defines ‘domestic relationship’. 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, marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family.
In the present case, the petitioner and the opposite party are related
with each other i.e. the relationship of son and mother. They have been in a
relationship with each other where both the parties lived together in a
residence.
The Learned Courts below after considering the evidence adduced by the
parties and the materials placed on record came to the concurrent findings
that the present opposite party was entitled to get a protection order under
Section 18 of the Act of 2005, monetary relief including medical expenses @
rate of Rs.8,000/- per month from the date of the order and also entitled to get
Rs.50,000/- as damages for mental torture and emotional distress.
Both the Learned Courts elaborately analyzed the evidence on record,
the relationship between the parties, their economic condition and the income
of the other two sons of the present opposite party/mother. Thereafter came to
the conclusion that the aggrieved party/mother was entitled to get the reliefs
under the Act of 2005. The conclusion drawn by the Learned Courts below is
based on facts and law.
It is a settled principle of law that in exercise of its power under Section
482 of the Code of Criminal Procedure, the High Court should not, in the
absence of perversity, upset concurrent factual findings of the Trial Court and
Appellate Court. Moreso, the High Court in exercise of its inherent power
should not reanalyze and re-assess the materials particularly the evidence on
record.
On perusal of the entire materials on record, it cannot be held that the
Learned Courts below committed an error in holding that the present opposite
party/mother is entitled to get the reliefs under the Protection of Women from
Domestic Violence Act.
The above discussion leads me to hold that the Learned Courts below
have rightly come to their conclusion. I do not find any justification to
interfere with the impugned judgment and order.
The present application is devoid of merit and stands dismissed.
Urgent certified photocopy of this judgment and order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Madhumati Mitra, J.)
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