Sunday, 7 March 2021

Whether denial of maintenance amount to wife amounts to economic abuse as per the domestic violence Act?

 In this case, the wife who filed the

application under Section 12 of the DV Act in the trial

court is obviously an aggrieved person within the

meaning of the Act because she made allegations of

domestic violence against her husband and the fact that

she was in a domestic relationship with the husband as

his wife has been admitted by her respondent husband.

Now the question is whether the wife proved

commission of domestic violence against her husband

at the trial court and become entitled to a relief under

Section 12 of the DV Act.


[31] Apparently, domestic violence has been

defined under Section 3 of the Act in a very wider term

and with regard to proof of domestic violence,

explanation II to said Section 3 provides that for

determining whether any act, an omission, commission

or conduct of the respondent constitutes “domestic

violence” under the said Section, the overall facts and

circumstances of the case, shall be taken into

consideration.


[33] In gist, the Additional Sessions Judge upheld

the direction of the trial court prohibiting the husband

from committing any kind of domestic violence or

aiding or abetting in the commission of any act of

domestic violence upon the wife and by means of

monetary relief as under Section 20 of the Act, the

order for payment of ₹15,000/- to the wife was also

upheld.

[34] In the instant case, during his crossexamination

before the trial court the husband had

categorically admitted that his monthly salary was

₹49,000/- excluding all deductions. He also admitted

that he gave nothing towards maintenance of his wife

from 13.12.2015. His statement is reproduced as

under:

“At present my gross salary is 49,000/-

excluding deductions. It is true that I have not given

any maintenance to my wife since 13.12.2015.”


[36] Under Section 3 of the DV Act which defines

domestic violence, ‘economic abuse’ is a form of

domestic violence. Clause (iv) of explanation I of

Section 3 relates to ‘economic abuse’ which includes

deprivation of all or any economic financial resources to

which the aggrieved person is entitled under any law or

custom whether payable under an order of a court or

otherwise. 

[37] In the present case, obviously the wife is

legally entitled to maintenance allowance from her

husband who is a salaried government employee. She

has made out a good case justifying her separate living.

Admittedly, she is a housewife and she has no source of

earning whereas the husband draws a monthly salary of

₹49,000/- excluding all deductions. In these

circumstances, denial of maintenance allowance to the

wife obviously causes ‘economic abuse’ to her within

the meaning of domestic violence as under Section 3 of

the DV Act. There is, therefore, no infirmity in the

impugned judgment.

HIGH COURT OF TRIPURA

AGARTALA

Crl.Rev.P.No.36 of 2020

Ramendra Kishore Bhattacharjee Vs Smt.Madhurima Bhattacharjee

Dated: 10.02.2021

B E F O R E

HON’BLE MR.JSUTICE S.G.CHATTOPADHYAY


[1] This criminal revision petition has been filed

under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973(Cr.P.C. hereunder) against

the judgment and order dated 18.07.2020 delivered in

Criminal Appeal No. 16 of 2018 by the Additional

Sessions Judge (Court No.4) West Tripura, Agartala

partly allowing the appeal against the judgment and

order dated 23.08.2018 passed by the Judicial

Magistrate, First class (Court No.8) Agartala in case No.

CR 54 of 2016 under the Protection of Women from

Domestic Violence Act, 2005 (‘the DV Act’ in short).

[2] Brief facts of the case are as under:

The wife presented an application under

Section 12 of the DV Act in the court of the Judicial

Magistrate of the First class (court No.8) at Agartala on

22.01.2016 seeking various reliefs under the DV Act

wherein she referred to several incidents of domestic

violence against her husband. It was stated by her that

after solemnization of their marriage a son was born to

them on 28.05.2001. Their relationship was normal for

a period of 01 year only. Thereafter, her husband

subjected her to harassment and torture for dowry and

since she was unable to meet his demand, she was

physically assaulted by her husband on various dates.

Gradually he developed an extramarital affair. When

the wife raised protest against his conduct he assaulted

her. As a result of continuous assault on 16.12.2015

and 17.12.2015 she became ill and received treatment

in IGM Hospital at Agartala. Unable to bear his torture,

the wife parted with his company on 17.12.2015. In

this factual background, she claimed the following

reliefs in the trial court under the DV Act:

(i) A protection order under Section 18 of

the DV Act restraining her husband

from committing acts of domestic

violence to her.

(ii) Residence order under Section 19 of

the DV Act restraining the husband

from dispossessing her from the

shared household.

(iii) Monetary relief under Section 20 of

the DV Act @Rs.15,000/- per month

along with one time medical expenses

of Rs.1 lakh.

(iv) Compensation order under Section 22

of the DV Act against the husband for

payment of compensation and

damages of an amount of Rs.3 lakhs

for the injuries including mental

torture and emotional distress caused

to her by her husband by his acts of

domestic violence.

[3] Her application was registered in the trial

court as case no. CR 54 of 2016 and notice was issued

to the husband.

[4] The husband filed written objection against

the complaint of his wife. In his written objection he

stated that his wife filed a false and frivolous complaint

against him. According to him, she was very arrogant

and torturous right from the beginning of their

marriage. But he condoned her conduct and wanted to

continue the relationship. He noticed no change in her

behavior even after the birth of their son. After he was

transferred to the court of District and Sessions Judge

at Kailashahar, he had taken his wife and child to there

from where the wife used to visit her parents at

Agartala frequently without taking any care of his

convenience. Having noticed growth of abnormalities in

her conduct day by day, the husband with the consent

of her parents had taken her to various psychiatrists.

He had also taken her to Bangalore for treatment in the

National Institute of Mental Health And Neuro Science

(NIMHANS) in 2012 which brought no change in her.

The husband then approached the State Commission

for Women for reconciliation. He also approached the

State Legal Services Authority for a settlement. His

efforts yielded no result. Ultimately, his wife filed an

FIR against him and his old parents on 18.12.2015.

Since then, the husband has been living separately

along with his son who is studying in school. Having

denied the allegations of his wife, he claimed that his

wife was solely responsible for their matrimonial discord

and as such she was not entitled to any relief under the

DV Act.

[5] During the trial of the case, the wife

examined herself as PW-1, her elder brother Tapan

Bhattacharjee as PW-2 and her neighbor Ranajoyti

Bhattacharjee as PW-3.

[6] The husband on the other hand examined

himself as DW-1, his neighbor Priya Bhusan Deb as

DW-2 and Smt. Rekha Roy as DW-3.

[7] The learned trial court on appreciation of

evidence granted reliefs to the wife vide paragraph 12

of his judgment dated 23.08.2018 which is as under:

“ORDER

(12) In the result, the application filed by the aggrieved

petitioner U.S. 12 of the Act is partly allowed and the aggrieved

petitioner is found entitled to protection order, residence order

and monetary relief. The respondents are prohibited from

committing any act of domestic violence or aiding or abetting in

the commission of acts of domestic violence upon the aggrieved

petitioner. The Respondent No.1 is further directed as part of

residence order to make payment of Rs.2000/- per month as

rent for accommodation to the aggrieved petitioner. He is further

directed to make payment of Rs.15,000/- per month as

monetary relief in the form of maintenance to the aggrieved

petitioner. The payment of Rs.2000/- per month as residence

order and Rs.15,000/- per month as maintenance is to be

deposited within the 10th day of every month in the Bank account

of the aggrieved petitioner.

Supply a copy of this judgment and order free of

cost to both the parties and to the C.D.P.S’s of their respective

jurisdiction of address for doing the needful. This Judgment is

passed on this 23rd day of August, 2018 under the seal and

signature of this Court.

Thus, the case is disposed off on contest. Make

entry in the concerned T.R. The record shall be consigned to

Record Room after due compliance of all legal formalities.”

[8] The husband and his mother, brother and

sister being appellants challenged the said judgment of

the learned trial court in criminal appeal no.16 of 2018

before the learned Additional Sessions Judge [Court

no.4] at Agartala in West Tripura and the leaned

Additional Sessions Judge by the impugned judgment

partly allowed the appeal vide paragraph 8 of the

impugned judgment and directed as under:

“8. In view of the discussion made above, the

present criminal appeal partly succeeds and the

judgment and order dated 23.8.2018 passed by the

Ld. Trial Court in C.R. 54 of 2016 is partly upheld

and interfered with as stated herein below : -

(a) The husband-appellant No.1 is solely

proved to have committed and liable for the

acts of Domestic Violence upon his

aggrieved wife and all other appellant Nos.2,

3 and 4 are hereby discharged from the

liabilities.

(b) The protection order passed by the Ld.

Trial Court under Section 18 of the PWDV

Act is upheld with a direction that the

husband-appellant No.1 strictly adhered the

same.

(c) The order of monetary relief passed in

the form of maintenance under Section

20(1)(d) of the PWDV Act for an amount of

Rs.15,000/- per month is hereby upheld,

and

(d) The order of relief passed under Section

19(f) of the PWDV Act is hereby set aside.”


[9] Aggrieved with the impugned judgment of

the learned Additional Sessions Judge, the husband has

challenged the said judgment in this criminal revision

petition.

[10] Heard Mr. B.Deb, learned counsel appearing

for the husband as well as Mr. Raju Datta, learned

counsel appearing for the wife.

[11] The grounds of challenge to the impugned

judgment of the appellate court are as under:

i) The learned courts below have not

property appreciated the evidence and

materials on record and as such their

judgments are erroneous and liable to be set

aside.

ii) The learned courts below have failed to

appreciate the fact that the wife has left the

son in the custody of her husband.

Thereafter, the husband alone has been

shouldering all expenses of the son including

his educational expenses. The learned courts

below without taking into consideration the

expenses borne by the husband directed him

to provide monetary relief to the wife

@₹15,000/- per month.


iii) While providing the monetary relief to the

wife under Section 18 of the DV Act, the

courts below did not also take into

consideration personal expenses of the

husband and expenses borne by him for

maintaining his old and ailing mother.

Moreover, the learned courts below did not

also consider his permanent disability and

the recurring medical expenses for his

treatment. While determining the amount of

monetary relief the courts below did not also

take into consideration the order of the

Family Court, Agartala passed in Misc. Case

No.463 of 2017 whereby the husband was

directed to pay ₹ 6000/- to his wife in a

proceeding under Section 125 Cr.P.C.

iv) The trial court as well as the appellate

court issued the protection order against the

husband without any proof of commission of

domestic violence. According to the husband,

evidence adduced by him was not

appreciated by the trial court as well as the

appellate court while issuing such protection

order.

[12] Besides projecting the grounds stated

above, Mr.B.Deb, learned counsel appearing for the

husband has also contended that where there is no


evidence of domestic violence, the wife is not entitled

to any relief under the DV Act. In this regard Mr.Deb,

learned counsel has relied on order dated 28.01.2019

of the Apex Court passed in Sangita Saha vs. Abhijit Saha

And Others. [In Petition(s) for Special Leave to

Appeal(Crl.) No(s). 2600-2601 /2016] wherein the Apex

Court has held that petitioner is entitled to relief under

the DV Act only in case she establishes domestic

violence. Mr. Deb, learned counsel has also contended

that in absence of the proof of the ingredients of

domestic violence, the wife is not entitled to

relief/relieves provided under the DV Act. In support of

his contention, Mr. Deb, learned counsel has placed

reliance on the order dated 04.10.2019 of the Apex

Court in Kamlesh Devi vs. Joypal And Others.[Special

Leave Petition (Criminal) …………Diary No.(s) 34053

/2019] wherein the Apex Court has held that relief

under DV Act can be declined where ingredients of

domestic violence are wholly absent. Further

submission on behalf of the husband is that the learned

trial court as well as the appellate court should not

have ignored the maintenance awarded to the wife in a


proceeding under Section 125 Cr.P.C while determining

the amount of monetary relief to the wife under Section

20 of the DV Act. In support of his contention, Mr.Deb

learned counsel has referred to the decision of the Apex

Court in Rajnesh vs. Neha and Another reported in

2020 SCC Online SC 903 wherein the Apex Court has

directed as under:

“Directions on overlapping

jurisdictions

It is well settled that a wife can make a

claim for maintenance under different

statutes. For instance, there is no bar to

seek maintenance both under the D.V.

Act and Section 125 of the Cr.P.C., or

under H.M.A. It would, however, be

inequitable to direct the husband to pay

maintenance under each of the

proceedings, independent of the relief

granted in a previous proceeding. If

maintenance is awarded to the wife in a

previously instituted proceeding, she is

under a legal obligation to disclose the

same in a subsequent proceeding for

maintenance, which may be filed under

another enactment. While deciding the

quantum of maintenance in the

subsequent proceeding, the civil

court/family court shall take into account

the maintenance awarded in any

previously instituted proceeding, and

determine the maintenance payable to the

claimant. To overcome the issue of

overlapping jurisdiction, and avoid

conflicting orders being passed in

different proceedings, we direct that in a

subsequent maintenance proceeding, the

applicant shall disclose the previous

maintenance proceeding, and the orders

passed therein, so that the Court would

take into consideration the maintenance

already awarded in the previous

proceeding, and grant an adjustment or

set-off of the said amount. If the order

passed in the previous proceeding

requires any modification or variation, the

party would be required to move the

concerned court in the previous

proceeding.”

[13] Mr.Deb, learned counsel appearing for the

husband has finally argued that since there is no proof

of domestic violence, the impugned judgment is liable

to be set aside.

[14] Mr.Raju Datta, learned counsel appearing for

the wife on the other hand contends that admittedly the

husband is a government employee having a monthly

salary of not less than ₹50,000/- who is quite able to

maintain his wife. Further contention of Mr.Datta,

learned counsel, is that the wife by producing cogent

and coherent evidence proved that she was subjected

to domestic violence by her husband and the courts

below on appreciation of her evidence and the entire

facts and circumstances of the case granted the reliefs

to her under the DV Act. It is therefore, submitted by

Mr.Datta that there is no reason to interfere with the

findings of the courts below. According to Mr.Datta,

learned counsel, the wife is entitled to the same

standard of living as she would have lived in the house

of her husband and therefore, the trial court rightly

granted ₹15,000/- per month as monetary relief to her

which was also upheld by the appellate court. In

support of his contention, Mr.Datta has referred to the

decision of the Apex Court in Reema Salkan vs. Sumer

Singh Salkan reported in (2019) 12 SCC 303 wherein

the Apex Court succinctly held that while determining

the maintenance allowance for the wife, regards must

be had to the living standard of his husband and his

family.

[15] With regard to the determinants of the

maintenance allowance, Mr.Datta, learned counsel

appearing for the wife has also placed reliance on the

decision of Delhi High Court in Babita Bisht vs.

Dharmender Singh Bisht reported in (2019) SCC

Online Del 8775 wherein Delhi High Court has held as

follows:

“16. The Supreme Court in Reema

Salkan vs. Sumer Singh Salkan in

Crl.A.No.1220/2018 in judgment dated

25.09.2018 relying on the earlier

judgment of the Supreme Court in Bhuwan

Mohan Singh vs. Meena: (2015) 6 SCC 353

held that "the concept of sustenance does

not necessarily mean to lead the life of an

animal, feel like an unperson to be thrown

away from grace and roam for her basic

maintenance somewhere else. She is

entitled in law to lead a life in the similar

manner as she would have lived in the

house of her husband. That is where the

status and strata come into play, and that

is where the obligations of the husband, in

case of a wife, become a prominent one.

In a proceeding of this nature, the

husband cannot take subterfuges to

deprive her of the benefit of living with

dignity. Regard being had to the solemn

pledge at the time of marriage and also in

consonance with the statutory law that

governs the field, it is the obligation of the

husband to see that the wife does not

become a destitute, a beggar. A situation

is not to be maladroitly created where

under she is compelled to resign to her

fate and think of life "dust unto dust". It

is totally impermissible. In fact, it is the

sacrosanct duty to render the financial

support even if the husband is required to

earn money with physical labour, if he is

able-bodied. There is no escape route

unless there is an order from the court

that the wife is not entitled to get

maintenance from the husband on any

legally permissible grounds."”

[16] Mr.Datta, learned counsel appearing for the

wife has further argued that monetary relief

contemplated under Section 20 of the DV Act is

different from maintenance which can be in addition to

an order of maintenance granted under Section 125

Cr.P.C. or any other law. In support of his contention

Mr. Datta, learned counsel has referred to the decision

of the Apex Court in Juveria Abdul Majid Patni vs. Atif

Iqbal Mansoori And Another reported in (2014)10 SCC

736 wherein the Apex Court has held as under:

“23. In the instant case, the appellant sought relief

under Sections 18 to 23 of the Domestic Violence

Act, 2005. It includes Protection order under Section

18, Monetary relief under Section20, Custody orders

under Section 21, Compensation under Section 22

and interim relief under Section 23. Relevant

provisions read as follows:

“Monetary reliefs.—(1) While disposing of an

application under sub-section (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.

(2) The monetary relief granted under this

section shall be adequate, fair and

reasonable and consistent with the standard

of living to which the aggrieved person is

accustomed.

(3) The Magistrate shall have the power to

order an appropriate lump sum payment or

monthly payments of maintenance, as the

nature and circumstances of the case may

require.

(4) The Magistrate shall send a copy of the

order for monetary relief made under subsection

(1) to the parties to the application

and to the in-charge of the police station

within the local limits of whose jurisdiction

the respondent resides.

(5) The respondent shall pay the monetary

relief granted to the aggrieved person within

the period specified in the order under subsection

(1).

(6) Upon the failure on the part of the

respondent to make payment in terms of the

order under sub-section (1), the Magistrate

may direct the employer or a debtor of the

respondent, to directly pay to the aggrieved

person or to deposit with the court a portion

of the wages or salaries or debt due to or

accrued to the credit of the respondent,

which amount may be adjusted towards the

monetary relief payable by the respondent."

The Monetary relief as stipulated under Section 20

is different from maintenance, which can be in

addition to an order of maintenance under Section

125 of the Cr.P.C. or any other law. Such monetary

relief can be granted to meet the expenses incurred

and losses suffered by the aggrieved person and

child of the aggrieved person as a result of the

domestic violence, which is not dependent on the

question whether the aggrieved person, on the date

of filing of the application under Section 12 is in a

domestic relationship with the respondent.”

[17] Mr. Datta, learned counsel has also placed

reliance on a decision of the Delhi High Court in Shome

Nikhil Danani vs. Tanya Benon Danani reported in

(2019) 54 Online Del 8016 wherein the Delhi High

Court has held as follows:

“17. Cleary the scope of Section

20 of the DV Act is much wider than that

of Section 125 Cr.P.C. While Section 125

Cr.P.C. talks only of maintenance, Section

20 DV Act stipulates payment of monetary

relief to meet the expenses incurred and

losses suffered as a result of the domestic

violence including but not limited to loss

of earning, medical expenses, loss caused

due to destruction, damage or removal of

any property from the control of aggrieved

person. Further, Section 20(1)(d) of the

DV Act clearly provides that "In

proceedings under the DV Act, the

magistrate may direct the Respondent to

pay the maintenance to 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 Cr.P.C. or any other law for the time

being in force."

18. This clearly shows that an order

under Section 20 DV Act is not restricted

by an order under section 125 Cr.P.C. The

Trial Court clearly erred in not

appreciating the distinction between the

two provisions and the reasoning is

clouded by an impression that the

respondent-wife in the application

under section 23 was only seeking an

order of maintenance, which is not the

case. In her application under section

23 of the DV Act, the respondent wife has

inter-alia sought residence rights

under Section 19 and protection

under Section 18 apart from the monetary

relief under Section 20.

19. Reference may also be had to the

Judgment of a coordinate bench of this

court in Karamchand & Ors Vs State NCT

of Delhi & Anr (2011) 181 DLT 494 and of

the Supreme Court of India in Juveria

Abdul Majid Khan Patni Vs Atif Iqbal

Mansoori (2014) 10 SCC 736, wherein the

Supreme Court has held that monetary

relief as stipulated under Section 20 is

different from maintenance, which can be

in addition to an order of maintenance

under Section 125 Cr.P.C. or any other

law.

20. Further, it may be seen that

proceeding under the DV Act and

under section 125 Cr.P.C are independent

of each other and have different scope,

though there is an overlap. In so far as

the overlap is concerned, law has catered

for that eventuality and laid down that at

the time of consideration of an application

for grant of maintenance under DV Act,

maintenance fixed under section 125

Cr.P.C shall be taken into account.

21. The Judgment in the case of Rachna

Katuria Versus Ramesh Kathuria (supra)

relied upon by learned Senior Counsel for

the Petitioner to contend that DV Act does

not create any additional right to claim

maintenance on the part of the aggrieved

person and if a woman had already filed a

suit claiming maintenance and after

adjudication maintenance has been

determined, she does not have a right to

claim additional maintenance under

the DV Act is per in curium as it does not

notice the very provisions of Section

20 and 23 of DV Act. Further now the

Supreme Court of India in Juveria Abdul

Majid Khan Patni Vs Atif Iqbal Mansoori

(supra) has held that monetary relief

under Section 20 DV Act is in addition to

maintenance under section 125 Cr.P.C.”

[18] Learned counsel, therefore, contends that

the judgment of the appellate court does not call for

any interference in this criminal revision petition.

[19] As discussed, the wife in support of her case

submitted her examination in chief on affidavit and got

her subjected to cross examination before the trial

court as PW-1. In her examination-in-chief she had

repeated the incidents of torture and harassment

mated out to her by her husband and reiterated that

her husband had compelled her to leave her

matrimonial home by committing physical torture on

her at 8 O’clock in the morning on 17.12.2015. She

also stated that as a result of his torture, she received

treatment from IGM Hospital, Agartala as an outdoor

patient on 18.12.2015. She further stated that after the

said incidences, she filed FIR to the Officer-in-charge of

Amtali Police Station which was registered as Amtali

P.S.Case No.2015 AMT 178 dated 17.12.2015 under

Sections 498A and 325 IPC and investigation of the

case was also taken up by police. During the

proceeding under the DV Act at the trial court, this FIR

lodged by her was taken into evidence and marked as

Exhibit-1. She also submitted the photocopy of doctor’s

prescription to prove that she attended IGM Hospital at

Agartala on 18.12.2015 in the Out Patient Department

after she was assaulted by her husband on the previous

day. In her cross examination she denied that her

husband had taken her to NIMHANS in Bengaluru for

neurological treatment. She also denied that she was

advised to visit NIMHANS at the interval of every 6

months. She denied that she made false allegations of

domestic violence against her husband because of the

only reason that she suspected that her husband was

having extramarital affair.


[20] Elder brother of the wife was examined as

PW-2. In his examination-in-chief submitted on

affidavit, he supported the case of his sister with regard

to her allegations of domestic violence against her

husband. The PW stated at the trial that her husband

used to assault his sister almost on every day to meet

his demand of dowry. His sister complained to him that

her husband had developed extramarital affair. It was

further stated by the PW that his sister was physically

assaulted by her husband on 16.12.2015 and

17.12.2015 for which she left her matrimonial home. In

his cross examination the PW asserted that he met the

husband of his sister and his relatives several times for

mitigation of the discord and differences between the

spouses. But his efforts did not work.

[21] PW-3 Ranajyoti Bhattacharjee in his

examination in chief on affidavit supported the case of

the wife with regard to her allegations of violence and

atrocities against her husband. The PW also stated that

the wife told him that her husband developed an

extramarital relationship. But the PW was not produced

in court for cross examination.


Learned counsel appearing for the husband

agitated on this point. According to him the courts

below should not have taken his examination in chief

into consideration because this PW was not produced in

court for cross examination by the husband.

[22] DW-1, Ramendra Kishore Bhattacharjee, the

husband repeated the same story which was projected

by him in his written objection against the petition of

his wife. He reiterated that he never committed any

sort of domestic violence on his wife. Rather, he left no

stone unturned for her well being. But there was no

change in her conduct despite his efforts. Rather, she

became more violent and abusive to the husband.

According to the PW, his wife was always suspicious

and only for this reason she brought all these false

allegations against him. In his cross examination, the

husband admitted that he was drawing a monthly

salary of ₹49,000/-(Forty-nine thousand) and he also

admitted that he gave no maintenance allowance to his

wife after she parted with his company.

[23] DW-2 Priya Bhusan Deb is the neighbor of

the husband. Priya Bhusan stated at the trial that when

he was secretary of Nabajagaran Sangha, a meeting

was held in the house of the husband at the instance of

the club for settlement of the disputes between them.

During such meeting it came to light that the main

reason of grievance of the wife against her husband

was her suspicion that her husband had an extramarital

affair. They tried to restore their relationship but their

efforts did not work.

[24] DW-3, Smt. Rekha Roy, another neighbor of

the husband has also given similar evidence. She also

supported the fact that a meeting was held in the house

of the husband at the instance of local club where

efforts were taken to solve the differences between the

spouses. But the efforts failed since the wife had

suspected her husband to have extramarital affair.

[25] The core issue which has been agitated by

learned counsel appearing for the husband is that relief

under the DV Act has been provided to the wife in

absence of any proof of domestic violence.

[26] Under Section 12 of the DV Act only the

aggrieved person or a protection officer appointed

under the DV Act or any other person on behalf the

aggrieved person may present an application to the

magistrate seeking one or more reliefs under this Act.

It would be apposite to reproduce Section 12 of the DV

Act at this juncture which is as under:

“12. Application to Magistrate.—(1) An

aggrieved person or a Protection Officer or any other

person on behalf of the aggrieved person may present an

application to the Magistrate seeking one or more reliefs

under this Act:

Provided that before passing any order on such

application, the Magistrate shall take into consideration

any domestic incident report received by him from the

Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may

include a relief for issuance of an order for payment of

compensation or damages without prejudice to the right

of such person to institute a suit for compensation or

damages for the injuries caused by the acts of domestic

violence committed by the respondent:

Provided that where a decree for any amount as

compensation or damages has been passed by any court

in favour of the aggrieved person, the amount, if any,

paid or payable in pursuance of the order made by the

Magistrate under this Act shall be set off against the

amount payable under such decree and the decree shall,

notwithstanding anything contained in the Code of Civil

Procedure, 1908 (5 of 1908), or any other law for the

time being in force, be executable for the balance

amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in

such form and contain such particulars as may be

prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing,

which shall not ordinarily be beyond three days from the

date of receipt of the application by the court.

(5) The Magistrate shall Endeavour to dispose of every

application made under sub-section (1) within a period of

sixty days from the date of its first hearing.”

[27] Aggrieved person has been defined under

Section 2(a) of the DV Act which reads as under:


“2. Definitions.—In this Act, unless the

context otherwise requires,—

(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;

(b) .............................................................

(c) .............................................................

:

:

:

:

[28] A conjoined reading of Section 12 and

Section 2(a) makes it abundantly clear that relief under

the DV Act can be granted only to an aggrieved person

defined under the DV Act and an aggrieved person has

been defined as a woman who is or has been in a

domestic relationship with the respondent who alleges

to have been subjected to any act of domestic violence

by the respondent. Therefore, allegation of domestic

violence is a sine qua non for pursuing a petition under

the DV Act.

[29] In this case, the wife who filed the

application under Section 12 of the DV Act in the trial

court is obviously an aggrieved person within the

meaning of the Act because she made allegations of

domestic violence against her husband and the fact that

she was in a domestic relationship with the husband as

his wife has been admitted by her respondent husband.

Now the question is whether the wife proved

commission of domestic violence against her husband

at the trial court and become entitled to a relief under

Section 12 of the DV Act.

[30] In the definition clause of the DV Act i.e.

Section 2 under clause (g) states that domestic

violence has the same meaning as assigned to it in

Section 3 of the DV Act. Section 3 of the DV Act defines

domestic violence as under:

“3. Definition of domestic violence.—For the

purposes of this Act, any act, omission or commission or

conduct of the respondent shall constitute domestic

violence in case it—

(a) harms or injures or endangers the health, safety, life,

limb or well-being, whether mental or physical, of the

aggrieved person or tends to do so and includes

causing physical abuse, sexual abuse, verbal and

emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved

person with a view to coerce her or any other person

related to her to meet any unlawful demand for any

dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or

any person related to her by any conduct mentioned

in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or

mental, to the aggrieved person.

Explanation I.—For the purposes of this section,—

(i) “physical abuse” means any act or conduct which is of

such a nature as to cause bodily pain, harm, or

danger to life, limb, or health or impair the health or


development of the aggrieved person and includes

assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature

that abuses, humiliates, degrades or otherwise

violates the dignity of woman;

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name calling and insults

or ridicule specially with regard to not having a child

or a male child; and

(b) repeated threats to cause physical pain to any person

in whom the aggrieved person is interested;

(iv) “economic abuse” includes—

(a) deprivation of all or any economic or financial

resources to which the aggrieved person is

entitled under any law or custom whether payable

under an order of a court or otherwise or which

the aggrieved person requires out of necessity

including, but not limited to, house hold

necessities for the aggrieved person and her

children, if any, stridhan, property, jointly or

separately owned by the aggrieved person,

payment of rental related to the shared house

hold and maintenance;

(b) disposal of household effects, any alienation of

assets whether movable or immovable, valuables,

shares, securities, bonds and the like or other

property in which the aggrieved person has an

interest or is entitled to use by virtue of the

domestic relationship or which may be reasonably

required by the aggrieved person or her children

or her stridhan or any other property jointly or

separately held by the aggrieved person; and

(c) 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.

Explanation II.—For the purpose of determining whether

any act, omission, commission or conduct of the

respondent constitutes “domestic violence” under this

section, the overall facts and circumstances of the

case shall be taken into consideration.”


[31] Apparently, domestic violence has been

defined under Section 3 of the Act in a very wider term

and with regard to proof of domestic violence,

explanation II to said Section 3 provides that for

determining whether any act, an omission, commission

or conduct of the respondent constitutes “domestic

violence” under the said Section, the overall facts and

circumstances of the case, shall be taken into

consideration.

[32] It may be recalled that in the present case,

the spouses have brought allegations and counter

allegations against each other and the learned

additional sessions Judge after examining these

allegations and the materials placed before the court by

the contesting spouses set aside the protection order as

against the mother, brother and the sister of the

husband. While affirming the protection order as well as

the monetary relief against the husband, the residence

order for payment of house rent @Rs.2000/- per month

to the wife under Section 19(f) was also set aside by

the learned Additional Sessions Judge by the impugned

judgment.


[33] In gist, the Additional Sessions Judge upheld

the direction of the trial court prohibiting the husband

from committing any kind of domestic violence or

aiding or abetting in the commission of any act of

domestic violence upon the wife and by means of

monetary relief as under Section 20 of the Act, the

order for payment of ₹15,000/- to the wife was also

upheld.

[34] In the instant case, during his crossexamination

before the trial court the husband had

categorically admitted that his monthly salary was

₹49,000/- excluding all deductions. He also admitted

that he gave nothing towards maintenance of his wife

from 13.12.2015. His statement is reproduced as

under:

“At present my gross salary is 49,000/-

excluding deductions. It is true that I have not given

any maintenance to my wife since 13.12.2015.”

[35] Section 20 of the DV Act provides for

payment of monetary relief to the aggrieved person

which reads as under:

“20. Monetary reliefs.—(1) While disposing of an

application under sub-section (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 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.

(2) The monetary relief granted under this section shall be

adequate, fair and reasonable and consistent with the

standard of living to which the aggrieved person is

accustomed.

(3) The Magistrate shall have the power to order an

appropriate lump sum payment or monthly payments of

maintenance, as the nature and circumstances of the case

may require.

(4) The Magistrate shall send a copy of the order for

monetary relief made under sub-section (1) to the parties

to the application and to the in charge of the police station

within the local limits of whose jurisdiction the respondent

resides.

(5) The respondent shall pay the monetary relief granted

to the aggrieved person within the period specified in the

order under sub-section (1).

(6) Upon the failure on the part of the respondent to make

payment in terms of the order under sub-section (1), the

Magistrate may direct the employer or a debtor of the

respondent, to directly pay to the aggrieved person or to

deposit with the court a portion of the wages or salaries or

debt due to or accrued to the credit of the respondent,

which amount may be adjusted towards the monetary

relief payable by the respondent.”

[36] Under Section 3 of the DV Act which defines

domestic violence, ‘economic abuse’ is a form of

domestic violence. Clause (iv) of explanation I of

Section 3 relates to ‘economic abuse’ which includes

deprivation of all or any economic financial resources to

which the aggrieved person is entitled under any law or

custom whether payable under an order of a court or

otherwise. The said clause (iv) of the Explanation I of

Section 3 of the DV Act, reads as under:

“(iv) “economic abuse” includes—

(a) deprivation of all or any economic or financial

resources to which the aggrieved person is

entitled under any law or custom whether

payable under an order of a court or otherwise

or which the aggrieved person requires out of

necessity including, but not limited 5 to,

house hold necessities for the aggrieved

person and her children, if any, stridhan,

property, jointly or separately owned by the

aggrieved person, payment of rental related

to the shared house hold and maintenance;

(b) disposal of household effects, any alienation of

assets whether movable or immovable,

valuables, shares, securities, bonds and the

like or other property in which the aggrieved

person has an interest or is entitled to use by

virtue of the domestic relationship or which

may be reasonably required by the aggrieved

person or her children or her stridhan or any

other property jointly or separately held by

the aggrieved person; and

(c) 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.”


[37] In the present case, obviously the wife is

legally entitled to maintenance allowance from her

husband who is a salaried government employee. She

has made out a good case justifying her separate living.

Admittedly, she is a housewife and she has no source of

earning whereas the husband draws a monthly salary of

₹49,000/- excluding all deductions. In these

circumstances, denial of maintenance allowance to the

wife obviously causes ‘economic abuse’ to her within

the meaning of domestic violence as under Section 3 of

the DV Act. There is, therefore, no infirmity in the

impugned judgment.

[38] In so far as the quantum of monetary relief

is concerned, it is asserted by the husband in his memo

of appeal that the Family Court, Agartala in Misc. case

No. 463 of 2017 also directed the husband to pay

monthly maintenance allowance of ₹6,000/- to his wife

and it has been averted by the husband that the

learned trial court as well as the appellate court

committed error in not taking into account this amount

while determining the amount of monetary relief in the

proceeding under the DV Act. The Apex Court in case of

Rajnesh vs. Neha (supra) has held that maintenance

provided in a previously instituted proceeding can be

adjusted or set off in the subsequent proceeding.

Though the husband has not produced any document

with regard to his averment that there is an order

passed by the Family Court for payment of monthly

maintenance allowance of Rs.6000/- to the wife, such

amount, if any, shall be adjusted towards the said

amount of ₹15,000/- in view of the directions issued by

the Apex Court in the case of Rajnesh vs. Neha(supra).

[39] The husband will, therefore, pay ₹15,000/-

to his wife as monetary relief as directed by the

Additional Sessions Judge by the impugned judgment

w.e.f the date of filing of the petition i.e. from

01.10.2018. The said monetary relief shall be paid by

the husband by depositing the same in her savings

bank account. The learned Judge, Family Court Agartala

will determine the mode of payment of the outstanding

arrear till 31.01.2021 after issuing notice to the parties

and hearing them in person. If the husband fails to pay

the arrear, the same shall be deducted from his salary

and paid to the wife.

[40] Resultantly, the petition stands dismissed.


Interim order with regard to monetary relief,

if any, stands vacated.


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