CRM No. M-33595 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-33595 of 2011 (O&M) Date of decision: 07.11.2011 Surinder Pal Chander ....Petitioner Versus Jasbir Kaur ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. D.K. Bhatti, Advocate, for the petitioner. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Petitioner has invoked the jurisdiction of this Court under Section 482 Cr.P.C. assailing order dated 13.8.2010 passed by learned Judicial Magistrate Ist Class, Jalandhar, whereby learned Magistrate has directed the petitioner to pay monthly maintenance at the rate of ` 4,000/- per month to his divorcee wife (respondent) and ` 2,000/- per month as a rent of the alternate accommodation total amount of ` 6,000/- per month under Section 20 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Act 2005') as well as order dated 12.10.2011 passed by Additional Sessions Judge, Jalandhar, thereby dismissing the appeal confirming the judgment passed by learned Judicial Magistrate Ist Class. Brief facts of the present case are that parties to this petition got married in the year, 1992 and their marriage was duly registered on CRM No. M-33595 of 2011 (O&M) -2- 30.5.1992. This is the second marriage between the parties after the death of their respective spouses. Petitioner has obtained divorce under Section 13 of the Hindu Marriage Act vide ex parte judgment and decree dated 3.2.1997 from the respondent herein. Application for setting aside the ex parte judgment and decree of dissolution of marriage was dismissed by the Additional District Judge, Jalandhar on 9.9.2000 as not pressed. Respondent herein moved an application under Section 12 of the Act 2005 against the petitioner herein on various grounds seeking three reliefs as under: - a) Pass protection order under Section 18 of the Act 2005; b) Pass residence order under Section 19 of the Act 2005; c) Direct the respondent (husband) to pay monetary relief to the wife under Section 20 of the Act 2005. The main ground taken in the application under Section 12 of the Act 2005 is that petitioner herein is retired from the post of Assistant Engineer and is receiving handsome pension and is an agriculturist and having total income of approximately ` 70,000-80,000/- per month while wife (respondent herein) is unemployed and has no source of income and she is staying with her sister. Learned Magistrate vide order dated 13.8.2010 has held that parties have been living together as husband and wife, therefore, existence of the relationship for the purpose of deciding the present application between the parties cannot be denied; marriage of the parties stood dissolved vide divorce decree mark R1; wife is having no income; husband must be earning ` 12,000/- to 15,000/- per month from the pension as well as the agriculture income and wife is residing temporarily with her sister and has no residence, CRM No. M-33595 of 2011 (O&M) -3- therefore, she is entitled for maintenance of ` 4,000/- per month from the date of application as well as the rent of the alternate accommodation at the rate of ` 2,000/- per month and passed an order accordingly for the monetary relief as observed hereinabove, however, dismissed the application for other reliefs sought in the application. Order of the learned Magistrate was duly affirmed by learned Additional District Judge vide judgment dated 12.10.2011. Feeling aggrieved, petitioner/husband has approached this Court by way of present petition. I have heard learned counsel for the petitioner and have perused the material part of the record. Mr. D.K. Bhatti, learned counsel for the petitioner, has vehemently argued that since marriage of the parties stood dissolved way back on 3.2.1997 and application for setting aside ex parte decree was dismissed way back on 9.9.2000, prior to the enforcement of the Act 2005, therefore, respondent/wife is not entitled for any monetary relief under Section 20 of the Act 2005. He has further argued that respondent/wife cannot be said to be aggrieved person and parties were not in domestic relationship on the date of presentation of the application dated 7.7.2008 under Section 12 of the Act 2005, therefore, orders passed thereon by both the Courts below are without jurisdiction and deserve to be set aside. Learned counsel has placed reliance on the judgment of the Hon'ble Apex Court in the case of Inderjit Singh Grewal Vs. State of Punjab and another, 2011(4) RCR (Criminal) 1 as well as the judgment of the Single Judge of Rajasthan High Court in the case of Smt. Hema alias Hemlata & Anr. Vs. Jitendra & Anr., 2010(3) RCR (Criminal) 305. He has further argued that while not pressing the CRM No. M-33595 of 2011 (O&M) -4- application for setting aside the ex parte decree of divorce respondent herein had obtain six marlas of land from the petitioner as a permanent alimony, therefore, there is no question of granting monetary relief to the respondent. To appreciate the arguments advanced by learned counsel for the petitioner, few facts are relevant to mention hereinafter. After the death of respective spouses, both the parties remarried and their marriage was registered on 30.5.1992. Both of them started living as husband and wife in the matrimonial house of the petitioner. Their marriage stood dissolved vide judgment dated 3.2.1997 ex parte. Application seeking setting aside of the ex parte decree was dismissed as not pressed on 9.9.2000. Wife/respondent has moved an application under Section 12 of the Act 2005 on 7.7.2008 contending therein that she is unemployed and is having no source of income and is temporarily residing with her sister, therefore, she needs maintenance. To appreciate the arguments advanced by learned counsel for the petitioner, few relevant provisions are required to be discussed. “Aggrieved person” is defined under Section 2(a) of the Act 2005 and “domestic relationship” is defined under Section 2(f) of the Act 2005 while “domestic violence” is defined under Section 2(g) read with Section 3 of the Act 2005. Section 2(a) (f) (g) as well as Section 3 of the Act 2005 are reproduced 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 CRM No. M-33595 of 2011 (O&M) -5- by the respondent; (b) x x x x x (c) x x x x x (d) x x x x x (e) x x x x x (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; (g) "domestic violence" has the same meaning as assigned to it in section 3;” “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 CRM No. M-33595 of 2011 (O&M) -6- 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 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.” From the perusal of Section 2(a) read with Section 2(f) of the Act 2005, it can very well be said that “aggrieved person” would be a 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. "Domestic relationship" would mean a relationship between two persons who live or have lived together in a shared household at any point of time through a relationship in the nature of marriage. Petitioner can be said having committed domestic violence if his conduct amounts to economic abuse. “Economic abuse”, as per Section 3 Explanation I(iv) would mean deprivation of all or any economic or financial resources to which the aggrieved person is CRM No. M-33595 of 2011 (O&M) -7- entitled under any law or custom. In the present case, petitioner could not prove that six marlas of land was even given to the respondent in lieu of permanent alimony. Moreover, it is not proved on the record that respondent/wife is having sufficient means to maintain herself. Remarriage of the wife with third party after the divorce decree obtained by the petitioner is also neither alleged nor proved. Moreover, as per Section 125 Cr.P.C., a person having sufficient means, if neglects or refuses to maintain his wife, may be directed by the Magistrate to make a monthly allowance for the maintenance of his wife and as per explanation (b) of Section 125 Cr.P.C., “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. As per Section 18 of the Hindu Adoptions and Maintenance Act, 1956, a wife shall be entitled to be maintained by her husband during her lifetime. Therefore, from the combined reading of Section 18 of the Hindu Adoptions and Maintenance Act and Section 125 Cr.P.C., it can safely be said that to have maintenance from the husband is a legal right of the wife even after divorce till she remarries, if she has no means to maintain herself, therefore, depriving of the wife from the maintenance would amount to economic abuse and shall result in domestic violence as per Section 3(a) read with Explanation I (iv) of the Act 2005. In the opinion of this Court, in the present case respondent/wife is being deprived of her right of maintenance, therefore, it would amount to domestic violence in the nature of economic abuse and both the parties had been residing as husband and wife during the continuation of their marriage and, therefore, were in domestic CRM No. M-33595 of 2011 (O&M) -8- relationship. Respondent/wife is being deprived of her legal right of maintenance shall be an aggrieved person under Section 2(a) of the Act 2005, therefore, application was very well maintainable before the Magistrate under Section 12 of the Act 2005. In the matter of Inderjit Singh Grewal (supra), Hon'ble Apex Court has dismissed the application filed by the wife against the husband on the ground of limitation since relief claimed in the case before the Hon'ble Apex Court was for the custody of the minor son; right of residence; and restoration of dowry articles on the ground of challenge of the divorce decree said to be obtained by playing fraud. In the present case, both the Courts below have not granted any other relief to the respondent/wife rather have confined to the monetary relief, which otherwise wife is entitled for under Section 125 Cr.P.C. read with Section 18 of the Hindu Adoptions and Maintenance Act. Moreover, there is no limitation provided either under Act 2005 or Rules framed thereunder or under any provisions of Cr.P.C. to claim maintenance from the spouse. Secondly, right of maintenance is recurring right whenever wife feels necessity to claim maintenance she is at liberty to approach the competent Court for the relief of maintenance/alimony. Therefore, facts and ratio of Inderjit Singh Grewal's case (supra) are distinguishable. Learned Single Judge of Rajasthan High Court in the case of Smt. Hema (supra) in paragraph No.5 has observed as under: - “Admittedly, marriage between the petitioner No.1 and non- petitioner was dissolved by a consent divorce on September 3, 2003 and thereafter both of them are residing separately. Provisions of Protection of Women from Domestic Violence Act, 2005 came into force on October 17, 2006 and after CRM No. M-33595 of 2011 (O&M) -9- enforcement of the Act the petitioners were not residing with the respondent and they were not subjected to any domestic violence by the respondent. There is no provisions in the Act having a retrospective effect. Special Judge (SC & ST Case) Alwar by a detailed order held that there is no question of any violence by the respondent with the petitioner No.1 after dissolution of marriage and there is no question of petitioners being aggrieved person as defined in Section 2A of the Act. It was specifically mentioned by the special Judge in the impugned order that on a bare perusal of Section 12(1) of the Act specifically provided that before passing the order as per the provisions of the Act, the Magistrate has to look into the report of domestic violence. In the instant case, there is no question of any report of domestic violence as is clear from the facts that the divorce between the parties took place in September, 2003 and after coming into force of the provisions of the Act the parties cannot be termed as aggrieved person.” With respect, I am not in agreement with the observation made by learned Single Judge of Rajasthan High Court in the case of Smt. Hema (supra) for the simple reason that even after passing of the Act 2005 respondent being divorced wife has not remarried and has no sufficient means to maintain herself, therefore, respondent is legally entitled for the maintenance from her husband/petitioner in view of Section 125 Cr.P.C. as well as Section 18 of the Hindu Adoptions and Maintenance Act, therefore, not providing maintenance to wife would amount to domestic violence in view of Section 3(a) read with Explanation I (iv) of the Act 2005. Since act of the petitioner/husband depriving the wife/respondent from alimony is a domestic violence, therefore, respondent/wife would be aggrieved person because admittedly they had been living together as husband and wife under the valid marriage even prior to the enforcement of Act 2005. In the opinion of this Court, word “have lived together” as mentioned in Section 2(a)(f) of Act 2005 should be given wide interpretation and should not be restricted that they should be living CRM No. M-33595 of 2011 (O&M) -10- together after passing of Act 2005. In the opinion of this Court, if parties had been living together under the valid marriage even prior to the enforcement of Act 2005 and if after the enforcement of Act 2005 conduct of the husband amounts to domestic violence for non-payment of alimony to the wife, Magistrate shall be within its jurisdiction to entertain the petition. Moreover, Sections 26 and 36 of the Act 2005 read as under: - “26. Relief in other suits and legal proceedings.-(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 36. Act not in derogation of any other law.-The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.” As per Section 36 of the Act, provisions of Act 2005 are in addition to and not in derogation of the provisions of other laws i.e. Section 125 Cr.P.C. and Section 18 of the Hindu Adoptions and Maintenance Act. In view of Section 26 of the Act 2005 if any relief can be sought in any other Civil, Criminal or Family Court, same can also be sought and granted in a proceeding under the Act 2005. Since respondent, being divorced wife, can seek and awarded maintenance under Section 125 Cr.P.C. or under Section 18 of the Hindu Adoptions and Maintenance Act, therefore, grant of same relief by the impugned judgments cannot be said to be without jurisdiction. CRM No. M-33595 of 2011 (O&M) -11- Therefore, no ground to interfere with the impugned order is made out. Dismissed. (Alok Singh) Judge November 07, 2011 R.S.