-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 44 OF 2009 Ann Menezes, w/o. Shahajahan Mohammad, r/o. H. No. 55, Katem Baina, Vasco da Gama. …... Petitioner V e r s u s Shahajan Mohammad, r/o. FMC/23, Housing Board Colony, Baina, Vasco da Gama, Goa. (Registered Address) .….. Respondent Mr. A. D. Bhobe, Advocate for the Petitioner. None present for the Respondent. CORAM: R. M. SAVANT, J. DATE : 4 th March, 2010. ORAL JUDGMENT The above Petition takes exception to the Order dated 09.06.2008, passed by the learned Addl. Sessions Judge-3, South Goa, Margao, by which Order, the Appeal filed by the Respondent herein came to be allowed and the Order dated 05.11.2007, passed by the learned J.M.F.C., in so far as directing/ordering the Respondent herein to secure an alternate accommodation to the Petitioner and granting Rs.10,000/- towards loss of earnings, was quashed and set aside. However, the rest of the reliefs granted by the learned J.M.F.C., were maintained. -2- 2. The facts in brief can be stated thus : The Petitioner, herein, and the Respondent were married in the year 1995. The Petitioner converted herself to Islam. The registration of the marriage was done on 22.06.1994. Out of the said marriage, a boy child was born on 06.12.1994. After marriage, the Petitioner and the Respondent firstly stayed at Bogda, then in the MPT Colony in the accommodation of the Petitioner's father. Till 1996, the relations between the Petitioner and the Respondent were normal. However, thereafter, the Respondent subjected the Petitioner to domestic violence. It is alleged by the Petitioner against the Respondent that the Respondent had extra marital affairs with one Babita and had a child from the said Babita. It was also alleged by her, that the Respondent had also another extra marital affair with one Hasina, whom he married and out of which wedlock, one child Furqan Mohammed was born. It was alleged that the Respondent was staying with the said Hasina after he left the Petitioner. It was also alleged that the Respondent used to abuse her emotionally and verbally by casting aspersion/accusation on her conduct and character and used to insult her for not bringing dowry and used to make demeaning, humiliating remarks. It was also alleged that the Respondent failed to provide money for maintaining her and her child and also failed to provide food, clothes, medicines, etc. It was also alleged that he did not allow her to take up employment, nor paid rent, electricity and water bills, etc. It was further alleged that the Respondent, by retaining the amount of Rs.1,50,000/- borrowed from the father of the Petitioner, demanded dowry by seeking to appropriate the said amount of Rs.1,50,000/- towards the same. On the -3- aforesaid allegations, the Petitioner herein filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005, (the said Act, for short). The said application came to be numbered as Maintenance Appln. no. 3/M/2007/D. The said application was filed through the Protection Officer, one Shekhar Prabhudessai, with request to take cognizance of the domestic incident report. The Petitioner in the said application sought Protection under Order 18 of the said Act, a Residence Order under Section 19 of the Act by seeking directions against the Respondent to secure the same level of alternate accommodation and pay rent for the same. The Petitioner sought Monetary Relief under Section 20 of the Act as follows : (i) Medical expenses : Rs. 5,000/- (ii) Loss of Earnings : Rs. 36,000/-, (iii) Seeking direction against the respondent to pay the expenses of food, clothes and other basic necessities, an amount of Rs.6000/- per month (iv) Household expenses, an amount of Rs.1000/- per month (v) School fees and related expenses of her son, an amount of Rs.1000/- per month. 4. In support of her case, the Petitioner examined three witnesses i.e. she herself as Pw.1, her sister Shenaz as Pw.2 and her son Sohail as Pw.3. The Respondent-husband, in support of his defence also examined two witnesses i.e. himself as Dw.1 and one Chintamani as Dw.2. The learned -4- J.M.F.C., on a consideration of the evidence on record, recorded a finding that the Petitioner has proved that the Respondent had extra marital affairs with Hasina and Babita, from whom he had also begotten children. The learned J.M.F.C., therefore, held that the Petitioner must have undergone mental and emotional trauma on account of the said extra marital affairs of the Respondent during the subsistence of the marriage with the Petitioner and the said mental emotional trauma, therefore, fell within the sweep of domestic violence as envisaged in Section 3 of the said Act. In so far as economic abuse is concerned, the learned Magistrate on the basis of oral evidence on record, has recorded a finding that the Respondent has deprived the Petitioner and her son from basic economic needs as the Respondent stopped providing her with money, for clothing and food from 1998 and that she had to manage the family with the assistance of her father. The learned J.M.F.C. also recorded a finding on the basis of the evidence especially the evidence of Dw.1, i.e. the Respondent, that she had been stopped from giving tuitions which she was giving in her house on the pretext that the Respondent is paying rent and he does not want any outsider in his house. The learned J.M.F.C. also on the basis of the evidence which amply demonstrated the insulting and humiliating treatment which was meted out to the Petitioner as also taking into consideration the evidence as regards the Respondent asking the Petitioner to abort at the time of the second pregnancy on the threat of being physically abused, reached a conclusion that the Petitioner was subjected to cruelty. The Trial Court on the basis of the fact that the Respondent wanted to appropriate the sum of Rs.1,50,000/-, which -5- was advanced by the father of the Petitioner to the Respondent towards buying a vehicle towards dowry, concluded that the said amounted to a demand of dowry by the Respondent on the Petitioner and her father. The Trial Court, was therefore, of the view that the same would also be a component or an ingredient of cruelty and, therefore, amounted to the Petitioner being subjected to domestic violence. The learned J.M.F.C. rejected the case of the Respondent that the Applicant is earning enough as Nursery School teacher by observing that merely because the Petitioner is earning some amount to keep body and soul together, would not absolve the Respondent from the legal and moral obligation to maintain the Petitioner and her son. The learned J.M.F.C., therefore, considering the ingredients of domestic violence as postulated in Section 3 of The Protection of Women from Domestic Violence Act, reached a conclusion that, in the instance case, all the ingredients of domestic violence were proved. The learned J.M.F.C., therefore, passed a Protection Order under Section 18 of the said Act, thereby restraining and injuncting the Respondent from repeating any act of domestic violence against the Petitioner, prohibiting the Respondent from entering school, college, work place of the Petitioner and her son and directing the Respondent to stay away from the Petitioner and her relatives and the son. The learned J.M.F.C., also passed a Residence Order directing the Respondent to secure an alternate accommodation to the Petitioner and her son having suitable conforts and pay rent for the same. The learned J.M.F.C., also granted Monetary relief to the following extent : Respondent was directed to pay medical expenses of Rs.3,000/- and -6- loss of earning Rs.10,000/- to the Petitioner. The Respondent was directed to pay a sum of Rs.1,000/- per month to the Petitioner for food, clothes, medication and other basis needs. The Respondent was directed to pay school fees and related expenses of the Petitioner's son in the sum of Rs.1,000/- per month and was also directed to pay a sum of Rs.500/- as household expenses to the Petitioner. 5. The Officer in charge of Vasco Police Station was directed to give protection to the aggrieved person. 6. Being aggrieved by the Order passed by the learned J.M.F.C., dated 05.11.2007, the Respondent herein, filed a Criminal Appeal no. 62/2007, challenging the said Order. The said Appeal was tried by the learned Addl. Sessions Judge, South Goa, Margao. It would be pertinent to note that the findings as regards the extra marital affairs of the Respondent, the cruelty meted out to the Petitioner, the economic abuse and the demand for dowry of the learned J.M.F.C., were all confirmed by the lower Appellate Court. The Judgment and Order of the learned J.M.F.C., was set aside only to the extent of the direction ordering the Respondent to secure alternate accommodation to the Petitioner and the payment of Rs.10,000/- to the Petitioner as loss of earnings. 7. The above Criminal Writ Petition is, therefore, directed against the said Order of the lower Appellate Court whereby the said benefits were -7- taken away. 8. In so far as the said two aspects are concerned, the lower Appellate Court was of the view that the Trial Court had erred in ordering the Respondent to secure alternate accommodation when there was absolutely no grievance made by the Petitioner in that regard and that the direction to pay an amount of Rs.10,000/- as loss of earnings to the Petitioner was without there being any evidence in that behalf on record. I have heard Shri A. D. Bhobe, the learned Counsel for the Petitioner. None appeared for the Respondent though served. 9. In so far as the first aspect i.e. the direction to seek alternate accommodation is concerned, it is in the evidence of the Petitioner that she is presently residing in a rented premises and paying Rs.1,000/- as rent. The factum of she staying in a rented premises and paying rent also finds corroboration from the evidence of Pw.2/Shehnaz, who has also stated that the Petitioner is staying in a premises on rent. It is undisputed position that the Respondent is not living with the Petitioner but with the said Hasina with whom he had an extra marital affair. The lower Appellate Court, was therefore, right in a way in recording a finding that whether there being any grievance as regards the accommodation which is presently available with her, the learned J.M.F.C., could not have issued direction for securing alternate accommodation. However, the fact cannot be lost sight of that the Petitioner is -8- staying in a rented premises and paying Rs.1,000/- as rent. The lower Appellate Court has also in turn accepted the said position and, therefore, whilst setting aside the direction of securing alternate accommodation, has directed an amount of Rs.500/- as rent to the Petitioner. On what basis the said sum of Rs.500/- has been arrived at is not clear. In my view, considering the evidence on record, where it has come in the evidence of the Petitioner that she is paying rent of Rs.1,000/- which was not controverted and which fact has also been accepted by the lower Appellate Court by awarding the Petitioner a sum of Rs.500/-. In my view, it would be just and proper to award a sum of Rs.1,000/- to the Petitioner towards the payment of rent, whilst confirming the Order of the lower Appellate Court of setting aside the direction of securing alternate accommodation. 10. In so far as the payment of Rs.10,000/- as loss of earnings to the Petitioner is concerned, it is required to be seen that the Petitioner is working as a teacher in a Nursery School since the year 2001 and she was supplementing her income by giving tuition which has come in her evidence. She has deposed that she was earning Rs.500/- per month from the tuitions, which tuitions Respondent stopped her from giving between the period from 2003 to 2005 as he did not want any other person to come in the house. The evidence of the Petitioner has been corroborated by the evidence of Pw.2, her sister, who has also deposed that the Petitioner was giving tuitions and, on account of the estrangement between the Petitioner and the Respondent, she was not permitted to give tuition. The Trial Court, possibly, taking into -9- consideration the fact that the Petitioner was earning Rs.500/- per month and taking into consideration the period of two years between 2003 to 2005, for which period the Petitioner would have earned Rs.12,000/-, probably thought it fit to award a sum of Rs.10,000/-. It, therefore, cannot be said that there was absolutely no material on record to justify the direction of payment of Rs.10,000/- to the Petitioner. It is an undisputed position that the Respondent prevented the Petitioner from giving tuitions on the pretext that he was paying rent for the premises in question and he did not like any other person in the house. In matters of this kind, there cannot be any clinching evidence, conclusion would have to be drawn on the basis of whatever is on record and the circumstances prevailing. In my view, therefore, the lower Appellate Court has erred in setting aside the said direction of payment of Rs.10,000/- to the Respondent for loss of earnings. The said direction of the learned J.M.F.C., is therefore, reinstated. The Petitioner would, therefore, be entitled to the amount of Rs.10,000/- on account of loss of earnings. The impugned Order of the lower Appellate Court to that extent is set aside, the direction of payment of rent to the Petitioner of the lower Appellate Court is also modified to the extent mentioned herein above i.e. at the rate of Rs.1,000/- per month from 1st April 2010. 11. Rule is accordingly made absolute in the aforesaid terms. R. M. SAVANT, J. arp/*