Home > DV Judgements > Heavy misuse of DV Act, wife obtains monetary relief of 5000/- from her in laws, husband died in 1992 :(

Heavy misuse of DV Act, wife obtains monetary relief of 5000/- from her in laws, husband died in 1992 :(

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1111 OF 2009

Smt.Banu Hashim Warunkar,

Age 35 years, Occ.: Household,

Residing at:- School Mohalla,

Mahabaleshwar, Taluka : Mahabaleshwar,

District: Satara …Applicant

(Original Applicant)

vs.

1) Abdul Rahiman Amin Warunkar,

Age 65 years, Occ.: Business,

2) Mrs.Mumtaj Abdul Rahiman Warunkar,

Age 60 years, Occ.: Household

and Business,

3) Shri Alimoon Abdul Rahiman Warunkar,

Age 30 years, Occ.: Business,

All residing at: 196B, School Mohalla,

Mahabaleshwar, Tal.: Mahabaleshwar,

District : Satara,

4) The State of Maharashtra …Respondents

(Original Opponents)

Mr.A.V. Anturkar i/b. Mr.Sugandh B. Deshmuch for the

Applicant.

Mr.A.V. Sakhare with Mr.Siddharth Karpe i/b.

M/s.Y.K.S. Legal for Respondent Nos.1 to 3.

Smt.V.R. Bhosale, APP for Respondent No.4-State.

2

 

CORAM : J.H. BHATIA, J.

DATED : AUGUST 17, 2010

ORAL JUDGMENT :-

1 Heard the learned Counsel for the parties.

2 Deceased Hashim, husband of the present

applicant, was son of respondent nos.1 and 2 and

elder brother of respondent no.3. According to the

applicant, she was married to Hashim on 28th March,

1989 and after the marriage, she was living with him

along with respondent nos.1, 2 and 3 in the same

house. On 3rd September, 1992, her husband died in a

motor accident. According to her, since 1985 her

husband was carrying on business of hotel at Mahatma

Gandhi Mini Market at Mahabaleshwar. He had obtained

licence in respect of gala/shop no.2 in the said

Mahatma Gandhi Mini Market from Municipal Council in

the name of the present applicant. After the death

3

 

of her husband, the applicant was carrying on the

business of hotel from gala no.2. Gala no.5 was

taken by Viren Veera on licence from the Municipal

Council. In the year 2006, father of the applicant

secured the said shop no.5 from Viren Veera in the

name of Aawez Hashim Warunkar, the son of the

applicant for which amount of Rs.1,27,000/- was paid

to said Viren Veera and thus, shop no.5 also came

in possession of the applicant and she was carrying

on business from shop no.5 also since 24th May, 2006.

According to her, respondent no.3 was not doing any

business or work and she was maintaining the whole

family including the respondents. From 14th March,

2007, respondent nos.1 to 3 began to sit in the

galas no.2 and 5. She objected the same. On 26th

March, 2007, when she was going to open the shop,

respondent no.3 abused and assaulted her for which

she lodged a report at the police station. On that

day, the respondent no.3 also took forcible

possession of galas no.2 and 5 and tried to remove

4

 

her from the room in which she was living.

3 In view of this circumstance, she filed

Application No.4 of 2007 on 23rd April, 2007 before

the Judicial Magistrate, First Class, Wai, under

Section 12 of The Protection of Women from Domestic

Violence Act, 2005 (_ Domestic Violence Act_ in

brief) in respect of Shop No.2 and on 27th April,

2007, she filed Application No.5 of 2007 under

Section 12 of the Domestic Violence Act before the

JMFC, Wai in respect of shop no.5. The learned

Magistrate called the report from the Protection

Officer under the provisions of the Act. The

evidence was led by both the parties. On the basis

of the material placed before him, the learned

Magistrate passed a common order in Application Nos.

4/2007 and 5/2007 on 23rd September, 2008 and

directed the respondent nos.1, 2 and 3 to handover

possession of the galas no.2 and 5 to the applicant.

However, the learned Magistrate rejected the prayer

5

 

of the applicant for compensation.

4 Being aggrieved by the said order, the

respondents filed Criminal Appeal Nos.138/2008 and

139/2008 while the applicant filed Criminal Appeal

Nos.145/2008 and 146/2008. The appeals filed by the

applicant came to be dismissed. The appeals filed by

the respondent nos.1 to 3 were allowed and the order

passed by the Magistrate directing the respondents

to hand over possession of galas no.2 and 5 to the

applicant was set aside. The learned Sessions Judge

held that the applicant had failed to prove that she

was running the hotel from galas no.2 and 5 and that

she was treated with violence and was dispossessed

causing monetary loss to her and her children. She

also noted that the applicant had nowhere claimed

any specific maintenance nor she had disclosed since

when she was living separately from the respondents.

The said order is challenged in the present

application under Section 482 of the Cr.P.C.

6

 

5 On perusal of the record, it appears that

there were in all three galas. Gala no.3 stands in

the name of respondent no.3. Gala no.2 stands in the

name of applicant and gala no.5 stands in the name

of her son. The learned Magistrate had appointed

Tahasildar as Protection Officer, as per the

provisions of Section 8, to make inquiry about these

galas and to submit a report. Accordingly, the

protection officer submitted the report. The report

was also sought from the Municipal Council,

Mahabaleshwar, by the Protection Officer about gala

no.2 as per his letter dated 29th July, 2007, Exhibit

75. The Municipal Council by letter dated 30th July,

2007 informed that shop no.2 had been given to the

applicant as a licensee. The receipts Exhibit 76 to

88 go to show that on 26th March, 2007, she was in

possession of Shop no.2. Similarly, the Protection

Officer_ s report also reveals that she is in

possession of Shop Nos.2 and 5 but now the

7

 

respondents are carrying on business at the same

place. The record also reveals that one Bharat Virji

Shah had transferred the said gala no.5 in the name

of Aawez. In view of the material on record, the

trial court came to the conclusion that the

applicant was in possession of gala nos.2 and 5 till

26th March, 2007 when she was driven out from the

same and at present, respondent nos.1, 2 and 3 are

carrying on the business at the same place. After

going through the oral and documentary evidence as

well as the protection officer_ s report, I find that

the findings of the trial court in this respect were

correct and the applicant was in possession of gala

nos.2 and 5 and she was dispossessed from the same.

6 The learned Sessions Judge observed that

the applicant had not established till what date she

was living together with the respondents, however,

if her applications are seen carefully, she has

clearly stated that from the time of death of her

8

 

husband in 2002, she was living jointly with the

respondents till 26th March, 2007 when she was driven

out from the shops and attempt was made to remove

her from the room, where she was living. In view of

the definition given in Section 2(f), _ 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._ The applicant is related to the respondent

nos.1 to 3 due to her marriage with son of

respondent nos.1 and 2 and as per her evidence, she

was living with her husband since the date of

marriage on 28/3/1989 and though her husband died in

2002, she continued to live with the respondents

till 26th March, 2007. Section 3 defines domestic

violence and it provides that any act, omission or

commission or conduct of the respondent shall

9

 

constitute domestic violence in case it 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. The _ economic

abuse_ is further explained in Explanation I (iv) as

follows :-

_ (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, household 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 household and maintenance;

(b) disposal of household effect,

any alienation of assets whether

movable or immovable, valuables,

shares, securities, bonds and the

like or other property in which the

10

 

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._

7 In the present case, the applicant was

deprived of the possession of the shops/galas no.2

and 5 and thus, she was deprived of the income and

financial resources which were necessary for

maintenance of herself and her children and

therefore, the act and conduct of the respondent no.

3 in ousting her from gala nos.2 and 5 amounts to

economic abuse and therefore, it amounts to domestic

violence.

8 Section 18 of the Act provides for certain

11

 

protection orders to prohibit the respondent from

committing the domestic violence, etc. Thus,

Section 18 makes a provision for prohibitory orders.

Section 19 provides that while disposing of

application under Section 12(1), the Magistrate may,

on being satisfied that domestic violence has taken

place, pass a residence order to restrain the

respondent from dispossessing the aggrieved person

from the possession of the shared household and also

to secure the aggrieved party same level of

alternate accommodation as enjoyed by her in the

shared household or to pay rent for the same.

Section 19 does not make any provision for granting

injunction or any order for possession of any

commercial premises in favour of the aggrieved

party.

9 Section 20(1) provides that the Magistrate

may direct the respondent to pay monetary relief to

meet the expenses incurred and losses suffered by

12

 

the aggrieved person and any children of the

aggrieved person as a result of the domestic

violence and it includes the loss of earning,

medical expenses, loss caused due to destruction,

damage or removal of any property from the control

of the aggrieved person, etc. The applicant was

deprived of her possession over the gala nos.2 and

5, thus, loss of income has been caused to her.

Therefore, under Section 20(1)(a), the Magistrate

could pass an order to provide monetary relief or

compensation to her but there is no provision in the

Act under which the Magistrate could have passed an

order directing the respondents to give possession

of the commercial premises to the applicant.

10 In view of the legal position, the learned

Magistrate was wrong in directing the respondents to

hand over possession of the galas no.2 and 5. The

Sessions Court was right in setting aside the order

about possession but the Sessions Judge also

13

 

committed error in not passing any order granting

any monetary relief in respect of the deprivation of

the applicant from the possession of gala nos.2 and

5, which were source of income and the source of

maintenance for herself and her children. Therefore,

in my considered opinion, in the given

circumstances, certain monetary reliefs could have

been granted to the applicant. As far as the title

and possession of gala nos.2 and 5 are concerned,

that could not be decided under the provisions of

the Domestic Violence Act and the parties could be

relegated the remedy before the civil court.

11 At the time of hearing, Mr.Sakhare, learned

Counsel for the respondents, after taking

instructions made an offer to pay Rs.4000/- per

month as monetary relief to the applicant till her

title and right over the said shop is established by

appropriate civil court. However, Mr.Anturkar,

learned Counsel for the applicant contended that by

14

 

running business in the said shop, she could have

earned about Rs.10,000/- and therefore, monetary

relief of Rs.10,000/- per month should be awarded.

For this, the applicant would be required to work

for the whole day in the shops and after the hard

work, she could earn something. Besides this, during

the monsoon season, there may not be much business

at Mahalabeshwar and therefore, it be possible that

she could not earn anything during that period.

Taking into consideration all the facts and

circumstances, it would meet the ends of justice if

the respondents are directed to pay Rs.5000/- per

month as monetary relief to the applicant.

12 For the aforesaid reasons, the application

is allowed partly. While the order passed by the

Sessions Court setting the order passed by the

Magistrate is hereby maintained, the order passed by

the Sessions Court stands modified and the

respondents are hereby directed to pay monetary

15

 

relief at the rate of Rs.5000/- per month from May

2007. The arrears shall be paid by the respondents

within three months from this day and the monetary

relief in future shall be paid regularly upto 10th

day of the following month.

13 The applicant shall be at liberty to file

suit before the civil court to establish her title

and to secure possession of the gala nos.2 and 5. In

case, such a suit is filed, the trial court shall

expedite and dispose of the same, as early as

possible, on its own merits without being influenced

by any observation made in this judgment or by any

observations made by the courts below.

(J.H. BHATIA, J.)

http://bombayhighcourt.nic.in/data/judgements/2010/CRAPPLN111109.pdf

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