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 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

Rajasthan High Court

Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017
1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

ORDER

S. B. CRIMINAL REVISION PETITION No.895/2012.

1. Santosh Sharma S/o Shri Kanhaiya lal Sharma, R/o B/77 Alakapuri, Ratlam
(M.P.).

2. Kanhaiya Lal Sharma S/o Shri Chhote Lal Sharma, R/o B/77, Alkapuri,
Ratlam (M.P.).
3. Anurag Sharma S/o Shri Kanhaiya Lal Sharma, R/o B/77, Alkapuri, Ratlam
(M.P.).
Versus

1. State of Rajasthan through P.P.

2. Smt. Anjali @ Poonam D/o Shri Ravi Prakash Sharma, R/o 84, Gali No.7,
Bhartendra Nagar, Khatipura Road, Jaipur.

Date of Order : : 04.01.2017

HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL

Mr. S. R. Surana, Sr. Advocate with Mr. Sanjay Yadav, for the petitioner.
Ms. Meenakshi Pareek, P. P. for the State.
Mr. C. P. Sharma, for the complainant-respondent.

BY THE COURT

Heard learned counsel for the parties.

The petitioners have filed this criminal revision petition under Section 397 read with Section 401
Cr.P.C. against the judgment and order dated 13.7.2012 passed by the Additional Sessions Judge
(Fast Track) No.3, Jaipur Metropolitan, Jaipur in Criminal Appeal No.90/2012 whereby the learned
Appellate Court by dismissing the appeal filed by the petitioners under Section 29 of the Protection
of Women from Domestic Violence Act, 2005 (for short the 'Act') affirmed and upheld the order
dated 16.4.2012 passed by the Metropolitan Magistrate No.14, Jaipur Metropolitan, Jaipur in
Complaint Case No.1242/2009 whereby the learned trial Court partly allowed the application under
Section 12 of the Act filed by the respondent No.2-Smt. Anjali and directed the petitioners not to
commit domestic violence in any manner upon the respondent and also directed petitioner Shri
Santosh Sharma to pay Rs.8,000/- per month to the respondent as maintenance. It was further
directed that the aforesaid amount would be payable from the date of the order. It is to be noted that
 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

presently the petitioners are agrieved mainly with that part of the order whereby the aforesaid
amount was awarded to the respondent as maintenance.

It was submitted by the learned senior counsel for the petitioners that there is no evidence available
on record to show even prima facie that petitioners or any other their family member harassed or ill-
treated the respondent-complainant during the short period of less than thirty days in which she
lived in her matrimonial home after the marriage or demand of dowry was made from her or from
her parents but she left her matrimonial home at her own volition as she wanted to pursue her
professional career as a Nurse and she joined on the post of GNM in the year 2009 before present
application under Section 12 of the Act was filed and this material fact was not disclosed in it and
this fact alone disentitles her to claim maintenance from her husband. It was further submitted that
from the evidence made available on record, it is clear that respondent has her own independent
and separate income sufficient to maintain her in a proper way and, therefore, she is not entitled to
claim maintenance from her husband more particularly in absence of evidence about definite
income of the husband. It was also submitted that there is no provision in the Act providing that
maintenance is to be awarded to the wife even if she is having her own independent and separate
income sufficient to maintain her. In the present case, the complainant-wife demanded Rs.15,000/-
per month as maintenance and the Court has awarded Rs.8,000/- per month whereas she is getting
salary of more than Rs.14,000/- per month which is far more than the amount of maintenance
awarded by the Courts below.

In support of his submissions, learned counsel for the petitioners relied upon the case of Biswajit
Murmu & another Vs. State of West Bengal and another reported in 2015 Cr.L.J.4792 (Calcatta High
Court).

On the other hand, learned counsel for the respondent-wife submitted that there is concurrent
finding of the Courts below that respondent was compelled by her in-laws to leave matrimonial
home within a short period after marriage as their demand for dowry could not be fulfilled and there
is no reason to interfere in this finding. It was further submitted that there is no evidence on record
showing that respondent was pursuing her career as a Nurse before marriage and, therefore, she had
no option but to join on the post of GNM on temporary basis when she was forced by the petitioners
to leave her matrimonial home so as to maintain herself till she gets maintenance from her husband
and for that reason only she cannot be deprived of her right to claim maintenance from her husband
who belongs to an affluent business family having joint family business of chemical products and
several immovable properties at various places. It was also submitted that maintenance can be
granted even if wife is earning and has her own independent and separate income.

In support of his submissions, learned counsel for the respondent relied upon the cases of Vipul
Lakhanpal Vs. Pooja Sharma reported in 2015 Cr.L.J. 3451 (HP High Court) and Anup Avinash
Varadpande Vs. Anusha Anup Varadpandey reported in 2010 (3) Maharashtra L.J. 777 (Bombay
High Court).

I have considered the submissions made on behalf of the respective parties and the material made
available on record as well as the relevant legal provisions and the case law relied on behalf of the
 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

parties.

From the pleadings of the parties and the evidence made available on record during trial of
application under Section 12 of the Act as well as the additional documentary evidence filed on
behalf of the petitioner during the course of hearing of this petition, this Court reaches to the
following conclusions :

(i) Marriage between petitioner-Shri Santosh Sharma and respondent-complainant-Smt. Anjali

Sharma took place on 16.11.2007 and complainant remained at her matrimonial home for less then
30 days from the date of marriage and since then she is residing with her parents at Jaipur.

(ii) No definite evidence is available on record to hold that the complainant was harassed or
otherwise cruelty was committed upon her in any manner or demand of dowry was made by the
petitioners or any other member of their family from the complainant or from her parents during
the period in which she was at her matrimonial home. Finding of the trial Court as affirmed by the
Appellate court in this regard is not acceptable in absence of any reliable and definite evidence.

(iii) It is an admitted fact that the complainant is a qualified Nurse and she joined on the post of
GNM on contract basis before filing of the complaint and she was getting Rs.6700/- per month as
salary after statutory deduction, but this material fact was not disclosed in the complaint which was
filed on 7.9.2009. As per the letter dated 23.9.2013 issued by the Office of Divisional Chief Medical
Officer under the provisions of the Right to Information Act, copy of which has been placed on
record in the present revision petition, complainant was working on the post of GNM since 8.6.2009
with a honorarium of Rs.9000/- per month and after deductions she was getting Rs.8100/- per
month. The aforesaid fact has not been denied by the complainant.

(iv) Although petitioner-husband was residing with her father and brother Shri Anurag Sharma in a
joint family in the same house at Ratlam, but there is no reliable evidence available on record to
show that petitioner-husband- Shri Santosh Sharma had also share in the chemical factory being
run in the name of M/s Santosh Enterprises. Merely because the chemical factory was being run in
the name of M/s Santosh Enterprises, it cannot be presumed and held that it is in the sole or joint
ownership of petitioner-husband and he got some earnings from this business. In absence of reliable
evidence on record, findings of both the Courts below in this regard are also not acceptable.

(v) No evidence is available on record to show that any immovable property is situated at any place
which stands in the ownership of petitioner- husband and he has some earnings from these
properties. Finding of Courts below in this regard is also not acceptable.

(vi) No reliable and definite evidence is available on record about actual monthly income of the
petitioner-husband.

(vii) As the complainant-respondent was a qualified nurse before the marriage, it cannot be said that
she unwillingly and temporarily joined as GNM on contract basis while residing at her parental
home so as to maintain herself till she gets maintenance from her husband. In the facts and
 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

circumstances of the case, it cannot be said that the complainant took the aforesaid job out of
constaint to earn her living.

(viii) As per the order dated 10.2.2016 issued by the Directorate, Medical & Health Services
Rajasthan Jaipur, complainant was selected on regular basis and appointed on the post of Nurse
Grade-II in the Pay band @ Rs.9300- 34800 Grade Pay of Rs.4200/- and during the period of
probation of two years, she will get Rs.14,660/- per month as remuneration. It is also clear from the
aforesaid letter that complainant has joined Government Hospital, Vaishali Nagar on the aforesaid
post on 4.3.2016. The complainant has not disputed this fact also.

In the light of aforesaid facts, it is to be decided by this Court whether the impugned orders are
liable to be quashed and set aside or not ?

Sub-section (1) of Section 20 of the Act is as follows:-

" While disposing of an application under sub-section (1) of section 12, the Magistrate
may direct the respondent to pay monetary relief to meet the eXpenses incurred and
losses suffered by the aggrieved person and any child of the aggrieved person as a
result of the domestic violence and such relief may include but is not limited to-

(a) the loss of earnings;

(b) the medical eXpenses;

(c) the loss caused due to the destruction, damage or removal of any property from
the control of the aggrieved person; and

d) 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 (2 of 1974) or any other law for the time being in
force."

Thus, according to this provision all eXpenses incurred by an aggrieved person as a result of the
domestic violence can be awarded to the aggrieved person from the respondent but such e Xpenses
must be incurred by the aggrieved persons as a result of domestic violence committed by the
respondent. It is also clear from this provision that maintenance for the aggrieved person is also one
of the monetary relief which the Magistrate may award to her if it is found that she has suffered
domestic violence at the hand of the respondent. Such maintenance can be an order under Section
125 Cr.P.C. or in addition to such an order or under any other law for the time being in force. As per
sub-section (2) of Section 20 of the Act, such maintenance must be adequate, fair and reasonable
and consistent with the standard of living to which the aggrieved person is accustomed.

As per clause (a) of Section 2 of the Act, 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
 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

domestic violence by the respondent.

Thus, to be an aggrieved person for the purpose of the Act following conditions are required to be
fulfilled:-

(1) The woman must have a domestic relationship with the respondent, and (2) She must be
subjected to some kind of domestic violence by the respondent.

As per clause (f) of Section 2, 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.

In the present case, it cannot be denied that complainant-Smt. Anjali has domestic relationship with
petitioner-Shri Santosh Sharma her husband but only by that reason she cannot claim to be an
aggrieved person unless it is further found that she was subjected to some kind of domestic violence
by the petitioner. Clause (g) of Section 2 of the Act provides that domestic violence has the same
meaning as assigned to it in Section 3. What is domestic violence has been provided in Section 3 of
the Act which is as follows:-

"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;
 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

(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 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. E Xplanation 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."

For the purpose of present controversy between the parties, "economic abuse" is relevant and is
required to be seen and considered. According to sub- clause (a) of clause (iv) to EXplanation-I
appended to Section 3 of the Act, 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 and also maintenance. The
question in the present case is whether refusal by the petitioner to provide maintenance to his wife
can be said to be commission of economic abuse. The Act does not provide anywhere that even if
wife is capable to maintain herself out of her own earnings, even then she is entitled to get
maintenance from her husband. The only criteria which has been provided under sub-section (2) of
Section 20 is that the monetary relief must be adequate, fair and reasonable and consistent with the
 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

standard of living to which the aggrieved person is accustomed. No new criteria has been provided
under this provision by the legislature as Hon'ble Supreme Court in many cases has consistently laid
down the same criteria before it was incorporated in this provision and therefore, criteria provided
under other law is to be looked into before maintenance is awarded to an aggrieved person under
the Act. Section 125 of Cr.P.C. provides for maintenance to such wife, by her husband, who is unable
to maintain herself. It further provides that husband must have sufficient means and it must be
proved that he has neglected or refused to maintain her wife. It is well settled that object and
purpose of award of maintenance to wife or other person is to save them from destitution and
vagrancy. It is well settled legal position under Section 125 Cr.P.C. if that the wife is earning income
of her own sufficient to maintain herself properly, she is not entitled to claim maintenance from her
husband even if he has sufficient means and has neglected or refused to maintain her. As per Section
18 of the Hindu & Adoption and Maintenance Act, 1956, wife living separately without any cause as
provided in the provision, cannot claim maintenance from her husband. In the opinion of this Court
different criteria cannot be adopted for awarding maintenance to a wife under the provisions of the
Act. In the present case it has been found by this Court that petitioners or any of them did not
compel the respondent to leave her matrimonial home within less than thirty days of marriage and
live with her parents at Jaipur. The legal position about income of the wife as contemplated in any
provision for grant of maintenance is that if the wife of her own volition and upon her educational or
professional qualification pursues a settled career either by way of service or profession or business
in which she derives her own independent and separate income or otherwise by way of investments,
rents, profits or the like from any settled source of income, the sufficiency or otherwise of such
income is required to be seen and calculated to grant or reject her claim of maintenance. Although,
in a case if it is found by the Court that the wife was constrained to earn in a service taken up by her
to make ends meet or to survive with dignity pending actual receipt of maintenance from her
husband, Court may refuse to take into consideration her such income while awarding maintenance
to her from husband but in the present case, it cannot be said that respondent-wife was constrained
to join on the post of GNM only to maintain her as she was a qualfied Nurse before marriage and
joined on that post on 8.6.2009 before application under Section 12 of the Act was filed.

In the present case, no evidence is available on record to show what was the standard of living to
which the respondent-wife was accustomed during the period in which she lived her husband and in
absence thereof it cannot be said that the salary which the respondent is getting is not sufficient for
her proper maintenance.

As already said, the Courts below have awarded an amount of Rs.8,000/- per month as maintenance
to the respondent whereas from the documentary evidence available on record it is clear that she
presently is getting more than Rs.14,000/- per month as salary.

Consequently, the revision petition is allowed and both the impugned orders are set aside and the
application/complaint filed by the respondent under Section 12 of the Act to the e Xtent of claim of
maintenance is dismissed. The stay application also stands disposed of.

(PRASHANT KUMAR AGARWAL),J.

 Santosh Sharma And Ors vs State Of Rajasthan And Anr on 4 January, 2017

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