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Golaghat in the Court of the Chief Judicial Magistrate, Golaghat

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Golaghat in the Court of the Chief Judicial Magistrate, Golaghat 1 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 Page 1 of 14 2 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 Page 2 of 14 3 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: Page 3 of 14 4 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 Page 4 of 14 5 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 Page 5 of 14 6 parental house and dragged her catching her hair and driven her out of their house.
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