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The Protection of Women from Domestic Violence Act, 2005 = whether acts committed prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 and which fall within the definition of the term ‘Domestic Violence’ as informed in the Act could form the basis of an action.” = SARASWATHY …. APPELLANT VERSUS BABU ….RESPONDENT = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40988

whether

 

Grandville : Cent Proverbes

Grandville : Cent Proverbes (Photo credit: Wikipedia)

 

    acts committed prior to the coming  into force  of  the  Protection  of

 

    Women from Domestic Violence  Act,  2005  and  which  fall  within  the

 

    definition of the term ‘Domestic Violence’ as informed in the Act could

 

    form the basis of an action.” =

 

 

 

 

 

  whether the conduct of the parties even prior  to

 

the commencement of the PWD Act, 2005  could  be  taken  into  consideration

 

while passing an order under Sections 18, 19 and 20 fell  for  consideration

 

before this Court in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.  In  the

 

said case, this Court held as follows:

 

    “12. We agree with the view expressed by the High Court that in looking

 

    into a complaint under Section 12 of the PWD Act, 2005, the conduct  of

 

    the parties even prior to the coming into force of the PWD  Act,  could

 

    be taken into consideration while passing an order under Section 18, 19

 

    and 20 thereof.  In our view, the Delhi High  Court  has  also  rightly

 

    held that even if a wife, who had shared a household in the  past,  but

 

    was no longer doing so when the Act came into  force,  would  still  be

 

    entitled to the protection of the PWD Act, 2005,”

 

 

 

15.   We are of the view that the act  of  the  respondent-husband  squarely

 

comes within the ambit of Section 3 of the  PWD  Act,  2005,  which  defines

 

“domestic violence” in wide term.  

 

The High Court made an apparent error  in

 

holding that the conduct of the parties prior to the coming into  force  PWD

 

Act, 2005 cannot be taken into consideration while passing an  order.   This

 

is a case where the respondent-husband has not complied with the  order  and

 

direction passed by the  Trial  Court  and  the  Appellate  Court.  He  also

 

misleads the Court by giving wrong statement before the High  Court  in  the

 

contempt petition filed by the  appellant-wife.  The  appellant-wife  having

 

being harassed since 2000 is entitled for protection  orders  and  residence

 

orders under Section 18 and  19  of  the  PWD,  Act,  2005  along  with  the

 

maintenance as allowed by the Trial Court under Section 20 (d) of  the  PWD,

 

Act, 2005.  Apart from these reliefs, she is also entitled for  compensation

 

and damages  for  the  injuries,  including  mental  torture  and  emotional

 

distress,  caused  by  the  acts  of  domestic  violence  committed  by  the

 

respondent-husband.  Therefore, in addition to the reliefs  granted  by  the

 

courts below,  we  are  of  the  view  that  the  appellant-wife  should  be

 

compensated by the  respondent-husband.  Hence,  the  respondent  is  hereby

 

directed to pay compensation and damages to the extent of  Rs.5,00,000/-  in

 

favour of the appellant-wife.

 

16.   The order passed by the High Court is set aside with  a  direction  to

 

the respondent-husband to comply with the orders and  directions  passed  by

 

the courts below with regard  to  residence  and  maintenance  within  three

 

months.  The  respondent-husband  is  further  directed  to  pay  a  sum  of

 

Rs.5,00,000/- in favour of the appellant-wife within  six  months  from  the

 

date of this order.  The appeal is allowed with aforesaid  observations  and

 

directions.  However, there shall be no separate order as to costs.

 

REPORTABLE

 

 

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1999 OF 2013
(arising out of SLP(Crl.)No.2190 of 2012)

 

 

 
SARASWATHY …. APPELLANT

 
VERSUS

 
BABU ….RESPONDENT

 

 

 

J U D G M E N T

 
SUDHANSU JYOTI MUKHOPADHAYA, J.

 
Leave granted. This appeal has been preferred by the appellant-wife
against the judgment and order dated 13th December, 2011 passed by the High
Court of Judicature at Madras. By the impugned judgment, the High Court
dismissed the criminal revision case filed by the appellant and thus
affirmed the order of First Appellate Court.
2. The pertinent facts of the case are as follows:
The parties to the present dispute are married to each other and the
said marriage was solemnized on 17th February, 2000. According to the
appellant, she brought 50 sovereign gold ornaments and 1 kg silver articles
as stridhan also Rs.10,000/- was given to the respondent. After marriage
the appellant lived in her matrimonial house at Padi, Chennai. After four
months of the marriage, the respondent-husband and his family demanded more
dowry in the form of cash and jewels. The appellant was not able to satisfy
the said demand. Therefore, she was thrown out of her matrimonial house by
the respondent and her in-laws. Another allegation of the appellant is
that after sending out the appellant from her matrimonial house, the
respondent-husband intended to marry again. On hearing such rumour, the
appellant filed petition under Section 9 of the Hindu Marriage Act, 1955
(hereinafter referred to as, “the HM Act, 1955”) bearing no. H.M.O.P. No.
216 of 2001 before the Principal Subordinate Judge, Chengalpattu, Tamil
Nadu for restitution of conjugal rights.
The respondent-husband on the other hand filed H.M.O.P. No. 123 of
2002 under Section 13(1) (ia) and (iv) of the HMA Act, 1955 before the
Principal Subordinate Judge, Chengalpattu, Tamil Nadu for dissolution of
marriage between the appellant and the respondent .
On 5th April, 2006, the learned Principal Subordinate Judge,
Chengalpattu, Tamil Nadu dismissed the petition for dissolution of marriage
filed by the respondent-husband and allowed the petition for restitution of
conjugal rights filed by the appellant-wife with the condition that the
appellant should not insist for setting up of a separate residence by
leaving the matrimonial home of the respondent.
In the year 2008, the appellant filed Crl. M.P. No. 2421 of 2008
before learned XIII Metropolitan Magistrate, Egmore, Chennai against the
respondent seeking relief under Section 19, 20 and 22 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as, “the
PWD Act, 2005”). The learned XIII Metropolitan Magistrate, Egmore, Chennai
partly allowed the same and directed the respondent to give maintenance of
Rs.2,000/- per month to the appellant to meet out her medical expenses,
food, shelter and clothing expenses. The Magistrate Court’s held that the
appellant is in domestic relationship with the respondent and the appellant
being the wife of the respondent has a right to reside in the shared
household. The officer in charge of the nearest Police Station was
directed to give protection to the appellant for implementation of the
residence orders and was also directed to assist in the implementation of
the protection order.
The respondent-husband being aggrieved preferred Criminal Appeal No.
339 of 2008 before the Sessions Court (Vth Additional Judge) at Chennai.
In the meantime, as per the order passed by the XIII Metropolitan
Magistrate, Egmore, Chennai the appellant-wife went to her matrimonial
house for staying with the respondent-husband house along with Protection
Officer. However, the respondent did not obey the order of the Court and
refused to allow the appellant-wife to enter the house and locked the door
from outside and went out.
On 22nd December, 2008, the appellant filed a complaint against the
respondent for not obeying the order of the learned XIII Metropolitan
Magistrate, Egmore, Chennai and the same was registered in Ambatur T3
Korattur Police Station as FIR No. 947 of 2008 under Section 31,32 and 74
of the PWD Act, 2005. The case was committed to the learned XIII
Metropolitan Magistrate, Egmore, Chennai and registered as Criminal
Miscellaneous Petition No. 636 of 2011.
In the meantime, the Criminal Appeal No. 339 of 2008 filed by the
respondent-husband was partly allowed by the Sessions Court (Vth Addl.
Judge) at Chennai on 21st October, 2010. Sessions Courts by the said order
set aside the order prohibiting the respondent-husband from committing acts
of domestic violence as against the appellant-wife by not allowing her to
live in the shared household and the order directing the respondent to
reside in the house owned by respondent’s mother and upheld the order
granting maintenance of Rs.2,000/- per month in favour of the appellant-
wife by the respondent-husband.
3. Aggrieved by the aforesaid order, the appellant-wife filed Crl. R.C.
No. 1321 of 2010 before the High Court. A criminal miscellaneous petition
no.1 of 2010 was also filed in the said revision application. On 23rd
December, 2010, the High Court granted an interim stay to the above order
passed by the learned Sessions Court (Vth Addl. Judge) at Chennai.
4. In the meantime, while the matter was pending before the High Court,
the learned XIII Metropolitan Magistrate, Egmore, Chennai passed an order
on 24th February, 2011 in Crl. Misc. Petition No. 636 of 2011 (arising out
of FIR No. 947 of 2008) and directed the SHO, Ambatur T3 Korattur Police
Station to break the door of the respondent’s house in the presence of the
Revenue Inspector and make accommodation for the appellant with further
direction to the SHO to inquire about the belongings in the respondent’s
house in presence of the family members of the respondent with further
direction to submit the report to the respondent as well as the Protection
Officer. The respondent-husband thereafter filed a petition for vacating
the order of stay dated 23rd December, 2010 and vide order dated 9th March,
2011 the High Court vacated the order of stay and made it clear that
appellant-wife can go and reside with her husband in his rental residence
at Guduvancherry. As the order aforesaid was not complied with by the
respondent-husband the appellant-wife filed Contempt Petition No. 958 of
2011 against the respondent-husband for wantonly disobeying the order
dated 9th March, 2011 passed by the High Court.
5. The High Court closed the contempt petition vide order dated 21st
July, 2011 with following observation:
“In view of the categorical submission made by the Ld. Counsel for the
respondent as well as the statement made by the respondent herein by
appearing before this court and stating that the respondent undertakes
not to prevent the contempt petitioner from entering inside the
premises at Door No. 80, Karpagambal Nagar, Nadivaram, Guduvancherry,
Chennai and the contempt petitioner also agreed to occupy and stay in
the above said premises from 01.08.2011, the contempt petition is
hereby closed.”

 
6. Thereafter the appellant made representation before Sub Inspector of
Police, Guduvancherry and stated that the respondent-husband has given
false address and in order to comply with the court’s order, the appellant
went to the address and on enquiry came to know that the address was a
bogus one. The appellant thereby submitted a complaint and requested the
police to enquire from the respondent to ascertain the real facts so as to
ensure that the court’s order is executed in its letter and spirit.
7. When the matter was pending before the Police, the High Court decided
the criminal miscellaneous case filed by the appellant and held that
although the offending acts of the respondent could be construed as
offences under other enactments it could not be construed as acts of
domestic violence under the PWD Act, 2005 until the Act came into force.
The High Court dismissed the revisional application.
8. From the bare perusal of the impugned judgment passed by the High
Court, we find that the High Court framed the following question:
“4. The primary question that arises for consideration is whether
acts committed prior to the coming into force of the Protection of
Women from Domestic Violence Act, 2005 and which fall within the
definition of the term ‘Domestic Violence’ as informed in the Act could
form the basis of an action.”

 

9. The High Court after taking into consideration the stand taken by the
parties held as follows:
“5. This court would first concern itself with whether acts which now
constitute domestic violence but committed prior to the coming into
force of the Act would form a basis of an action thereunder. With due
respect to the authorities above cited, this court would inform that
the fundamental issue stands unaddressed. The Act cam into force on
2005. It cannot be disputed that several wrongful actions which might
have amounted to offences such as cruelty and demand for dowry cannot
have taken the description of “Domestic violence” till such time the
act came into force. In other words the offending acts could have been
construed as offences under other enactments but could not have been
construed as acts of ‘Domestic Violence’ until the act came into force.
Therefore, what was not ‘Domestic violence’ as defined in the Act till
the Act came into force could not have formed the basis of an action.
Ignorance of law is no excuse but the application of this maxim on any
date prior to the coming into force of the Act could only have imputed
knowledge of offence as subsisted prior to coming into force of the
Act. It is true that it is only violation of orders passed under the
Act which are made punishable. But those very orders could be passed
only in the face of acts of domestic violence. What constituted
domestic violence was not known until the passage of the act and could
not have formed the basis of a complaint of commission of ‘Domestic
violence’.”

 
10. From the judgment passed by the Trial Court (XIII Metropolitan
Magistrate, Egmore, Chennai dated 5th December, 2008) we find that the
appellant filed petition against her husband Babu seeking relief under
Sections 18, 19, 20 and 22 under the PWD Act, 2005. Sections 18, 19, 20
and 22 read as follows:
“18. Protection orders.-The Magistrate may, after giving the
aggrieved person and the respondent an opportunity of being heard and
on being prima facie satisfied that domestic violence has taken place
or is likely to take place, pass a protection order in favour of the
aggrieved person and prohibit the respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented
by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the
aggrieved person, including personal, oral or written or electronic or
telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used
or held or enjoyed by both the parties, jointly by the aggrieved person
and the respondent or singly by the respondent, including her stridhan
or any other property held either jointly by the parties or separately
by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person
who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.

 

19. Residence orders.-(1) While disposing of an application under sub-
section (1) of section 12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence order –

 
a) restraining the respondent from dispossessing or in any other manner
disturbing the possession of the aggrieved person from the shared
household, whether or not the respondent has a legal or equitable
interest in the shared household;

 

b) directing the respondent to remove himself from the shared
household;

 
c) restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person
resides;

 
d) restraining the respondent from alienating or disposing off the
shared household or encumbering the same;

 
e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or

 
f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in the
shared household or to pay rent for the same, if the circumstances
so require:

 
Provided that no order under clause (b) shall be passed against any
person who is a woman.

 
(2) The Magistrate may impose any additional conditions or pass any
other direction which he may deem reasonably necessary to protect or to
provide for the safety of the aggrieved person or any child of such
aggrieved person.

 
(3) The Magistrate may require from the respondent to execute a bond,
with or without sureties, for preventing the commission of domestic
violence.

 

(4) An order under sub-section (3) shall be deemed to be an order under
Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and
shall be dealt with accordingly.

 

(5) While passing an order under sub-section (1), sub-section (2) or
sub-section (3), the court may also pass an order directing the officer
in charge of the nearest police station to give protection to the
aggrieved person or to assist her or the person making an application
on her behalf in the implementation of the order.

 
(6) While making an order under sub-section (1), the Magistrate may
impose on the respondent obligations relating to the discharge of rent
and other payments, having regard to the financial needs and resources
of the parties.

 
(7) The Magistrate may direct the officer in-charge of the police
station in whose jurisdiction the Magistrate has been approached to
assist in the implementation of the protection order.

 
(8) The Magistrate may direct the respondent to return to the
possession of the aggrieved person her stridhan or any other property
or valuable security to which she is entitled to.

 

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.

 
22. Compensation orders.-In addition to other reliefs as may be granted
under this Act, the Magistrate may on an application being made by the
aggrieved person, pass an order directing the respondent to pay
compensation and damages for the injuries, including mental torture and
emotional distress, caused by the acts of domestic violence committed
by that respondent.”

 
11. The Trial Court having noticed the provisions of PWD Act, 2005 and
the fact that the appellant-wife was prevented by the respondent-husband to
enter the matrimonial house even after the order passed by the Subordinate
Judge, granted protection under Section 18 with further direction to the
respondent-husband under Section 19 to allow the appellant-wife to enter in
the shared household and not to disturb the possession of the appellant-
wife and to pay maintenance of Rs.2,000/- per month to meet her medical
expenses, food and other expenses. However, no compensation or damages was
granted in favour of the appellant-wife.
Notices were issued on the respondent but inspite of service, no
affidavit has been filed by the respondent denying the averments made in
the petition.
12. Section 2 (g) of PWD Act, 2005 states that “domestic violence” has
the same meaning as assigned to it in Section 3 of PWD Act, 2005. Section
3 is the definition of domestic violence. Clause (iv) of Section 3 relates
to “economic abuse” which includes 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 as evident from clause (c) of Section 3(iv).
13. In the present case, in view of the fact that even after the order
passed by the Subordinate Judge the respondent-husband has not allowed the
appellant-wife to reside in the shared household matrimonial house, we hold
that there is a continuance of domestic violence committed by the
respondent-husband against the appellant-wife. In view of the such
continued domestic violence, it is not necessary for the courts below to
decide whether the domestic violence is committed prior to the coming into
force of the Protection of Women from Domestic Violence Act, 2005 and
whether such act falls within the definition of the term ‘Domestic
Violence’ as defined under Section 3 of the PWD Act, 2005.
14. The other issue that whether the conduct of the parties even prior to
the commencement of the PWD Act, 2005 could be taken into consideration
while passing an order under Sections 18, 19 and 20 fell for consideration
before this Court in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183. In the
said case, this Court held as follows:
“12. We agree with the view expressed by the High Court that in looking
into a complaint under Section 12 of the PWD Act, 2005, the conduct of
the parties even prior to the coming into force of the PWD Act, could
be taken into consideration while passing an order under Section 18, 19
and 20 thereof. In our view, the Delhi High Court has also rightly
held that even if a wife, who had shared a household in the past, but
was no longer doing so when the Act came into force, would still be
entitled to the protection of the PWD Act, 2005,”

 

15. We are of the view that the act of the respondent-husband squarely
comes within the ambit of Section 3 of the PWD Act, 2005, which defines
“domestic violence” in wide term. The High Court made an apparent error in
holding that the conduct of the parties prior to the coming into force PWD
Act, 2005 cannot be taken into consideration while passing an order. This
is a case where the respondent-husband has not complied with the order and
direction passed by the Trial Court and the Appellate Court. He also
misleads the Court by giving wrong statement before the High Court in the
contempt petition filed by the appellant-wife. The appellant-wife having
being harassed since 2000 is entitled for protection orders and residence
orders under Section 18 and 19 of the PWD, Act, 2005 along with the
maintenance as allowed by the Trial Court under Section 20 (d) of the PWD,
Act, 2005. Apart from these reliefs, she is also entitled for compensation
and damages for the injuries, including mental torture and emotional
distress, caused by the acts of domestic violence committed by the
respondent-husband. Therefore, in addition to the reliefs granted by the
courts below, we are of the view that the appellant-wife should be
compensated by the respondent-husband. Hence, the respondent is hereby
directed to pay compensation and damages to the extent of Rs.5,00,000/- in
favour of the appellant-wife.
16. The order passed by the High Court is set aside with a direction to
the respondent-husband to comply with the orders and directions passed by
the courts below with regard to residence and maintenance within three
months. The respondent-husband is further directed to pay a sum of
Rs.5,00,000/- in favour of the appellant-wife within six months from the
date of this order. The appeal is allowed with aforesaid observations and
directions. However, there shall be no separate order as to costs.

 

 

 

………..………………………………………..J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 

 

 

 

 

 

 
………………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI,
NOVEMBER 25, 2013.
———————–
1

 

 

 

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