Golaghat in the Court of the Chief Judicial Magistrate, Golaghat

DISTRICT :: GOLAGHAT IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, GOLAGHAT

Misc. (DV) Case No. 61/2018

Smti Bimala Thapa ……………………………Petitioner Vs. 1. Md. Arifur Rahman 2. Zahida Begum And 3. Md. Moti Rahman …………………………Respondents

PRESENT: Sri Kiran Lal Baishnab, AJS Chief Judicial Magistrate, Golaghat.

For the Petitioner :: Mr. J.K. Goswami and Smti S. Boruah, Advocates For the Respondents :: Md. I. Hussain, Advocate

Evidence Recorded on : 29.12.2018, 21.01.2019, 21.06.2019, 11.07.2019, 14.08.2019, 19.09.2019, 29.11.2019 and 19.12.2019 Date of Argument : 29.01.2021 Date of Judgment : 12.02.2021

JUDGMENT 1. The case of the petitioner Smti Bimala Thapa is that she was married to the Respondent No.1 Md. Arifur Rahman at Guwahati after eloping with him on 14/01/2018 as they had love affairs. It is averred by the petitioner that after their marriage the Respondent No.1 took her to his house at Jurbari, Dergaon and resided there with

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him as husband and wife and just after 4 days of her return to her parental house the Respondent No.1 and Respondent No.2 started torturing her physically and mentally for not bringing article on dowry and that in the said act of the Respondent No.1 and Respondent No.2; the Respondent No.3 had given instigation and the Respondent No.2 Miss Zahida Begum even slapped the victim for not bringing any article from her paternal house. She further averred that the Respondent No.2 not only assaulted her with hand but even harassed her emotionally by abusing her stating that she being a girl of beggars family she did not bring anything and the Respondents even force her to eat beef and when she vomited upon forceful eating of beef the Respondent No.1 and Respondent No.2 assaulted her. It is further averred that on 14/06/2018 as she was missing her parents, the opposite party assaulted her and driven her out of her matrimonial house when she took shelter in the house of one Ajay Thapa and informed her paternal house over phone and thereafter went back to her paternal house filling a case U/S-498A of the Indian Penal Code against the Respondent No.1 in Dergaon PS. It is also averred that the Respondent No.1 is a healthy person working as a tailor and take contracts of stitching police uniform and also has agricultural land from where he earns about Rs.40,000/- per month and thus, she claims monitory relief of Rs.20,000/- per month U/S-20(1)(d) of the Protection of Woman from Domestic Violence as for compensation of Rs.3,00,000/- U/S-22 of said Act. 2. The Respondents appeared on getting the notice and filed their replies to the allegations labeled by the petitioner wherein they simply denied the allegation labeled in the petition and prayed that the present petition needs to be dismissed. 3. In proof of her case the petitioner, Smti. Bimala Thapa examined herself as P.W.1, her brother Sri Nandalal Thapa as P.W.2, her mother Smti. Sunti Thapa as P.W.3 and one Rita Thapa as P.W.4 and failed to adduce any documentary evidence. 4. This is a proceeding initiated from an application under Section-12 of the Protection of Women from Domestic Violence Act, 2005 and hence, the proceeding is quasi criminal in nature and the

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extent of proof required is not of 'proof beyond reasonable doubt' but the parties are required to prove their respective cases by 'preponderance of probabilities'. 5. In respect of the extent of proof required in matrimonial disputes including a proceeding under the Protection of Women from Domestic Violence Act, we can refer to the judgment of Hon’ble Supreme Court of India rendered in the case of Smt. Mayadeve Vs. Jagdish Prasad reported in AIR 2007 SC 1426 wherein the Hon’ble Apex Court had held that “The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife.” 6. In order to establish that the petitioner is entitled to monetary reliefs and compensation u/s 20(1)(d) and 22 of the Protection of Women from Domestic Violence Act respectively, the petitioner has to establish the following ingredients: a. That there was a Domestic Relationship between the Petitioner and the Respondents at any point of time; b. That the petitioner was subjected to Domestic Violence by the Respondents or his relatives; And c. Whether the petitioner is entitled to the reliefs, as prayed for by her?

7. The Respondents examined the respondent No.1 Md. Arifur Rahman himself as D.W.1, one Wahida Begum as D.W.2 and one Aisa Begum as D.W.3 but failed to adduce any documentary evidence in support of their case. 8. My issue wise findings are as below:-

A. That there was a Domestic Relationship between the Petitioner and the Respondents at any point of time:

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A.1 In respect of the domestic relationship between the petitioner and the Respondents, the petitioner duly supported her averments made in the petition through her deposition as P.W.1 whereby she stated on oath that on 14th January, 2018 she had eloped with the Respondent No.1 Arifur Rahman out of love affairs and resided with him as his wife initially in Bokakhat for 4-5 days and thereafter in Golaghat for about 3 days and after that they had gone to Guwahati and enter into social marriage. The fact that the petitioner was married to the Respondent No.1 is also deposed by other witnesses and they also stated that she resided with the Respondent No.1 after marriage. The fact that the Respondent No.1 had married the Petitioner and that they had resided as husband and wife in his house are admitted by the defence too. A.2 Hence, considering the averments made by the petitioner and the same being dully testified in her evidence dully corroborated by other witnesses and also considering the fact that the defence also admits the existence of marriage between the Respondent No.1 and the petitioner, I am of the considered opinion that there is no reason to doubt the existence of Domestic Relationship between the Respondent No.1 and the Petitioner. A.3 The term “Domestic Relationship” is defined u/s-2(f) of the Protection of women from Domestic Violence Act, 2005 as “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” and Section-2(s) of the said act defines the term “Shared Household” as “a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondents and includes such a household whether owned or tenanted either jointly by the aggrieved person and the Respondents, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondents or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the

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Respondents is a member, irrespective of whether the Respondents or the aggrieved person has any right, title or interest in the shared household.” A.4 Hence, considering the above provision of law and the materials on record and also the admitted position of the defence, I am of the considered opinion that the petitioner could prove on the preponderance of probability that there was a Domestic Relationship between the petitioner and the respondents and hence, the present issue is decided in favour of the petitioner. B. That the petitioner was subjected to Domestic Violence by the Respondents or their relatives:

B.1 The next thing necessary to be proved in the present case is the act of “Domestic Violence” which would entitle the petitioner to the claims made by her. B.2 Now, P.W.1, Smti. Bimala Thapa, the petitioner herself deposed that after residing for about 4 days in the house of the respondents, the Respondent No.1 and Respondent No.2 started torturing her physically and mentally for not bringing dowry with her and Respondent No.3 used to instigate them in this respect. She also deposed that the Respondent No.1 used to slap her and dragged her hair stating that why did not she bring anything from her paternal house and also abused her stating that she did not bring anything being a girl of beggars family and even assaulted her with stick. She also stated that the respondents even looked her badly and used to state that after coming to their house it was destroyed and that she brought bad luck with her and also deposed that they did not give her proper food and even given her a broken cot for sleeping. She further deposed that the respondents forced her to eat beef and when she vomited after forceful eating of beef they assaulted her. She also deposed i.e. on 14/06/2018 when she was crying as she missed her paternal family, the Respondent No.1 and Respondent No.2 asked her as to why she was crying and when she replied that she was missing the members of her paternal house they asked her to go to her

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parental house and dragged her catching her hair and driven her out of their house. B.3 The evidence as well as the pleadings of the Respondents clearly shows that they had denied any sort of assault or tortur upon the petitioner and even adduced evidence in this respect. The fact of torture of the petitioner in the house of the respondents is dully corroborated by all the other witnesses of the petitioner. Though the witnesses of the petitioner are not direct witness, the matter being reported to them by the petitioner and the petitioner stating the said fact on oath in her evidence totally corroborating one another, makes all the evidences reliable. B.4 On the other hand the witnesses of the defence though stated that they never heard of any quarrel between the respondent and the petitioner, it is seen that during cross-examination, the DWs admitted that there may be quarrel inside the house of the respondents and in this respect they cannot say anything. B.5 The defence argued that the petitioner herself stated in her cross-examination that the respondents and the petitioner had good relationship till 13/06/2018 and thus, there was no act of Domestic Violence admittedly upon the petitioner by the respondents. This submission of the Learned Advocate for the defence is not acceptable in my view considering the evidence all the witnesses of the petitioner. Moreover, the act of Domestic Violence as defined under the Protection of Woman from Domestic Violence Act does not only includes physical assault but even includes emotional, verbal and financial abuse as Domestic Violence. B.6 In this respect we can have a look into the definition of “Domestic Violence” as provided under Section-3(a) of the Protection of Women from Domestic Violence Act, 2005 whereby “Domestic Violence” is defined as “harms or injuries 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” meaning thereby that the domestic violence would not only means physical violence but even economic abuse and the term

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“Economic Abuse” is again defined by said act under Section-3(iv)(a) as “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.7 Here, as we discussed above, it is proved by the corroborative evidence of the petitioner and the defence failed to rebut the same through their evidence that the petitioner was abused verbally and it was stated in one line by all the witnesses of the petitioner that the petitioner was forced to take beef which amounts to an emotional abuse giving within the purview of the Domestic Violence as defined under the Protection of Woman from Domestic Violence Act and thus, considering the fact that the petitioner is residing in her parental house till date and the conduct of the respondents forcing her to leave her matrimonial home, I am of the considered opinion that the petitioner was subjected to not only emotional abuse but also economic abuse by the respondents and thus, alternatively we can say that she was subjected to Domestic Violence in the form of emotional as well as economic abuse and hence, the present issue is also decided in favour of the petitioner.

C. Whether the petitioner is entitled to the reliefs, as prayed for by her? C.1 Now, as to the entitlement of the reliefs as prayed by the petitioner I am of the considered opinion that it being proved that she was in domestic relationship with the Respondents and that she was subjected to domestic violence by them, she is entitled to monetary relief as provided u/s 20(1)(d) of the Protection of women from Domestic Violence Act for her maintenance as providing maintenance is not a favour from the husband but is a human right of

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the petitioner and obligation of the husband so that, the deserted wife can be saved from vagrancy. C.2 Here, I find it pertinent to mention a few judgment of the Hon’ble Supreme Court of India relating to the law of maintenance, as Section-20(1)(d) of the Protection of Women from Domestic Violence Act provides that the Magistrate may pass an order of “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” and the object of the said provision is also to provide recourse to the dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy, which is the object all the maintenance laws in force. C.3 As to the object of maintenance laws Hon’ble Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v Mrs. Veena Kaushal & Ors. (1978) 4 SCC 70 held that the object of maintenance laws is:- “9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause — the cause of the derelicts.” C.4 Thus, the plea of the Respondents that he does not have the capacity to maintain the petitioner could not be accepted and it is his bounden duty to provide food, clothing and shelter to his wife and in this respect we can place reliance upon the judgment of Hon’ble Supreme Court of India in the case of Bhuwan Mohan Singh v Meena & Ors. (2015) 6 SCC 353 wherein the Hon’ble Apex Court had held that “Section 125 of the Cr.P.C. was conceived to ameliorate

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the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.” C.5 As to compensation, I am of the considered opinion that the petitioner failed to place anything on record showing which could entitle her to be with a compensated huge amount to the tune of Rs.3,00,000/-. The evidences on record clearly shows that inspite of being in Domestic Relationship with the respondents she was thrown out of her matrimonial home for which she has moved many forum against the respondents including the criminal court for alleged offence of assault U/S-498A of the Indian Penal Code. Now, as to the emotional abuse done on her as found prove in the foregoing issue, I am of the considered opinion that the petitioner had undergone mental stress in this respect and the said mental trauma can be compensated in view of the present status of both the parties with an amount of Rs.1,00,000/-. Hence, considering the above discussions, I am of the considered opinion that the petitioner is entitled to Rs.1,00,000/- as compensation U/S-22 of the Protection of Woman from Domestic Violence Act as prayed for by her. C.6 As to the monetary relief, Section 20(2) of The Protection of Women from Domestic Violence Act, 2005 provides that “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” and as such, to fix the quantum of maintenance what we need to see is the status of both the parties as well as sources of their income. C.7 It is deposed by the P.W.1, the petitioner, Smti. Bimala Thapa herself and her witnesses that the Respondent No.1 is a tailor and stitches police uniform on contract and also earns from agricultural

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land and accordingly, he earns about Rs.40,000/- per month in total which is denied by the defence. C.8 The D.W.1, Md. Arifur Rahman, the Respondent No.1 himself denies of having such income and had pleaded that he is dependent on his father and sometimes works with his maternal uncle Yusuf Ali thereby earning only about Rs.3,000/- per month but his own witness Aisa Begum deposing as D.W.3 stated during cross-examination that it is true that the respondent Arifur Rahman is a tailor. Thus, corroborating evidence of the PWs which shows that the respondents not only denied this fact but even tried to hide the actual source of income of the respondent. C.9 Hence, I am of the considered opinion that the petitioner could prove on the preponderance of probabilities that the Respondent No.1 Arifur Rahman is a tailor and being a healthy man he has sufficient income and ability to maintain his own wife. C.10 As to the amount of maintenance claimed, I am of the considered opinion that the petitioner in her averments itself stated that Respondent earns about Rs. 40,000/- per month but she failed to prove his sources of income and thus, her claim of Rs.20,000/- per month would be a huge amount of money upon the respondent. C.11 In this respect we can place reliance upon the judgment of Hon’ble Supreme Court of India in the case of Chaturbhuj v Sitabai (2008) 2 SCC 316 that “the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy.” and thus it is not justified to put such burden on a person who admittedly earns Rs.40,000/- (Rupees Forty Thousand) only per month and hence, I am of the considered opinion that in view of the present day price hike and the lifestyle of the parties, an amount of Rs. 4,000/- (Rupees four Thousand) only per month would be sufficient for the petitioner, for her maintenance. 9. ORDER 9.1 On careful Scrutiny of the Case Record and the evidence adduced by the petitioner, I am of the considered opinion that the petitioner successfully proved that she had

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Domestic Relationship with the Respondents and that they had subjected her to Domestic Violence in the form of emotional as well as economic abuse and thus, she is entitled to monetary relief under Section 20(1)(d) of The Protection of Women from Domestic Violence Act, 2005 and also to compensation under Section 22 of The Protection of Women from Domestic Violence Act, 2005 and hence, the petition filed by her stands allowed. 9.2 I find it justified and necessary to mention here that in a recent judgment of the Hon’ble Supreme Court of India dated 04.11.2020, viz. Rajnesh Vs. Neha & Another reported in 2020 SCC OnLine SC 903, the Hon’ble Apex Court has directed that in all cases, the maintenance shall be ordered from the date of application and to mention specifically, it ordered as under:- “VI Final Directions 81. In view of the foregoing discussion as contained in Part B - I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India: (a) XXXXXXXX (b) XXXXXXXX (c) XXXXXXXX (d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above.” 9.3 And in “Part B – IV” the hon’ble Apex Court discussed in detail the rationale and necessity of grant of maintenance from the date of application. Relevant parts of the said discussion is reproduced below for ready reference. “75. Even though a judicial discretion is conferred upon the Court to grant maintenance either

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from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application. 76. XXXXXXXXX “77. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.” 9.4 Hence, considering the income of the RespondentNo.1 and requirements of the petitioner; the Respondent No.1, Md. Arifur Rahman is directed to pay as maintenance a sum of Rs.4,000/- (Rupees Four Thousand) only per month to the petitioner, Smti. Bimala Thapa, from the date of filing the present petition, i.e. 01.08.2018. 9.5 It is further ordered that an amount of Rs.1,00,000/- (rupees one lakh)only be given by the respondents to the petitioner Smti. Bimala Thapa as compensation U/S-22 of the Protection of Woman from Domestic Violence Act.

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10. The Judgment is delivered and operative part of the same is pronounced today, the 12th day of February, 2021 in the open Court, under my hand and the seal of this Court.

Kiran Lal Baishnab Chief Judicial Magistrate, Golaghat.

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ANNEXURE

1. PETITIONER’S WITNESSES:

P.W.1 - Smti Bimala Thapa P.W.2 - Sri Nandalal Thapa P.W.3 – Smti. Sunti Thapa And P.W.4- Rita Thapa 2. RESPONDENTS’S WITNESS: D.W.1 – Md. Arifur Rahman D.W.2 – Wahida Begum And D.W.3 – Aisa Begum

3. EXHIBIT (BY PETITIONER’S SIDE): NIL.

4. EXHIBIT (BY RESPONDENTS’S SIDE) NIL.

(KIRAN LAL BAISHNAB) Chief Judicial Magistrate, Golaghat.

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