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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Tuesday, June 30, 2015

Section 17 of the Act has conferred a right to reside in a shared household to every woman in a domestic relationship and Section 19 is an enabling provision empowering the Magistrate for passing an appropriate order for residence of the parties. While Section 20 of the Act talks of the monetary relief which can be granted to a party under this Act, clause (d) of sub-section (1) of Section 20 of the Act makes it very clear that 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, or any other law for the time being in force can be granted by the learned Magistrate. Therefore, the fact that the second respondent or respondents 2 and 3 have already approached the Family Court by instituting O.P.Nos.564 of 2007 and 565 of 2007 for restitution of conjugal rights and for securing maintenance respectively, would not come in the way of the Magistrate to exercise the power available under Section 20 of the Act and award appropriate monetary relief, should he consider that grant of Rs.3,000/- as monthly maintenance to the respondents 2 and 3 is hopelessly inadequate for one to lead a life of dignity in a city like Visakhapatnam. I am, therefore, of the opinion that the grounds urged by the petitioner for quashing D.V.C.No.5 of 2012 are not available and since the Domestic Violence Case has made out a prima facie case requiring prompt and immediate attention for securing the reliefs under Section 17 and Section 20 of the Act, it is only appropriate that the stay order passed by this Court on 03.01.2013 be vacated. Accordingly, this Criminal Petition stands dismissed. D.V.C.No.5 of 2012 shall be disposed of as expeditiously as possible within a maximum period of two months from the date of receipt of a copy of this order. Miscellaneous petitions, if any, pending shall stand dismissed.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CRIMINAL PETITION NO.23 OF 2013    

17-06-2015

1.Bheri Veera Vara Ravindra Prasad, S/o.Laxmi Narayana.2.Bheri Lakshmi
Narayana, S/o.Late Chellarao. ...PETITIONERS

1.State of A.P., Represented by Public Prosecutor, High Court of A.P.,
Hyderabad, and two others....RESPONDENTS    


Counsel for Petitioners: Sri V.Hari Haran

Counsel for Respondent No.1:  Public Prosecutor (AP)
 Counsel for Respondent Nos.2 and 3:   Sri P.Veerraju

<GIST:

>HEAD NOTE:  

? Cases referred

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            
CRIMINAL PETITION NO.23 OF 2013    
ORDER:
      This petition has been preferred for quashing D.V.C.No.5 of 2012
on the file of the IV Additional Chief Metropolitan Magistrate,
Visakhapatnam.
      Respondents 2 and 3 are the petitioners in the said D.V.C. and
the petitioners herein are the respondents in that case.  The first
petitioner in D.V.C is the legally wedded wife of the first respondent
therein and the first petitioner herein.  The second petitioner in D.V.C.
is the daughter of the first respondent/first petitioner herein.
      It is set out that the marriage between the first petitioner herein
and the second respondent took place on 23.02.2003 and at the time
of the marriage, the first petitioner was working with Hindustan
Petroleum Corporation Limited at Visakhapatnam drawing fairly a
handsome salary.  It is alleged against the petitioners herein that cash
in a sum of Rs.6,00,000/- was paid as dowry for the marriage, 50 tulas
of gold, 150 tulas of silver and cash of Rs.2,00,000/- towards other
formalities have all been paid.  But, however, it is alleged that the
second respondent herein has not been properly treated by the first
petitioner-husband and his family members.  The third respondent-
daughter was born on 12.07.2004.  It is asserted that the first
petitioner herein was transferred from Visakhapatnam to Ananthapur in
August 2005.  Therefore, the first petitioner and respondents 2 and 3
moved to Ananthapur, but, however, the first petitioner has sent away
respondents 2 and 3 on 18.12.2005 to Visakhapatnam on some pretext  
and when respondents 2 and 3 were getting ready to return
Ananthapur, the petitioner has got issued a telegram on 14.01.2006
asking respondents 2 and 3 not to return to Ananthapur, as he has
vacated the flat which he had hired at Ananthapur for certain reasons.
However, it is the case of respondent Nos.2 and 3 that the first
petitioner has not made any attempt to take them back to Ananthapur
even after seven (7) months time elapsed.  The place of residence of
the first petitioner, according to the complaint, has become difficult to
be traced.  In the meantime, the second respondent appears to have
lodged a complaint with the police for the alleged offence under
Section 498-A of the Indian Penal Code, 1860, read with Sections 3, 4
and 5 of the Dowry Prohibition Act, 1961.  That was registered as
Crime No.906 of 2006 and ultimately, the I Additional Chief
Metropolitan Magistrate at Visakhapatnam, in C.C.No.1131 of 2007,
acquitted the accused persons setting forth in judgment the principal
reason for such acquittal as under:
       Therefore, in the absence of any evidence from
independent witnesses, it is not safe to base conviction basing
upon the above material.  Hence, under the above facts and
circumstances, the prosecution failed to establish the guilt of
any of the accused beyond reasonable doubt and they are
entitled for acquittal

      It appears, the second respondent has filed O.P.No.564 of 2007
on the file of the Family Court, Visakhapatnam, seeking restitution of
her conjugal rights.  She has also filed O.P.No.565 of 2007 along with
her daughter, the third respondent herein, seeking maintenance from
the first petitioner herein.  O.P.No.564 of 2007 was decreed and
O.P.No.565 of 2007 was ordered on 23.06.2009 for payment of
monthly maintenance of Rs.2,000/- to the second respondent and
Rs.1,000/- to the third respondent-daughter.  The first petitioner-
husband has filed O.P.No.621 of 2007 seeking dissolution of marriage.
O.P.No.621 of 2007 was dismissed by the Family Court.  Against the
decree of restitution of conjugal rights passed in O.P.No.564 of 2007,
the first petitioner has preferred F.C.A.No.244 of 2009 before this Court
and this Court passed interlocutory order on 05.10.2009 suspending
the restitution of conjugal rights.  He has also preferred an appeal in
F.C.A.No.257 of 2009 against the dismissal of divorce O.P.No.621 of
2007, which is also pending.
      The main grounds of attack against D.V.C.No.5 of 2012 has
been orchestrated by Sri V.Hari Haran, learned counsel for the
petitioners as under:
      Respondents 2 and 3 lodged the complaint only on 13.03.2012,
i.e., more than 7  years after the alleged desertion of respondents 2
and 3.  This apart, for the very same allegations, prosecution was
already launched against the petitioners herein in C.C.No.1131 of 2007
and the learned I Additional Chief Metropolitan Magistrate at
Visakhapatnam has acquitted the petitioners herein by his judgment
dated 15.04.2015 and hence, question of drawing the very same
allegations all over again in the above D.V.C. is impermissible.  This
apart, O.P.No.565 of 2007 is already filed by respondents 2 and 3 and
that was ordered and the first petitioner herein has been complying
with the order passed therein by tendering the monthly maintenance as
ordered by the Court by depositing the same before the Court.  Hence,
question of reconsideration of the entire issue once again would not
arise.
      Per contra, learned counsel Sri P.Veerraju, who appeared today
in the matter, would submit that the present application is moved
under Sections 17, 19 and 20 of the Protection of Women from
Domestic Violence Act, 2005 (henceforth referred to for short as the
Act) and hence, question of quashing the present D.V.C. against the
petitioners herein would not arise.
      The Parliament has noticed that effective measures are
essentially required for protection of the rights of women guaranteed
under the Constitution, who are getting victimised due to violence
occurring within the family and hence, for putting in place preventive
measures and with a view to protect the rights of women, enacted the
Act.  Therefore, the Act itself has been ushered in for achieving greater
social objectives.  Above all, the Parliament wanted to announce in
clear terms that in this country, the guaranteed rights of women are
not merely confined to the statute book but they are taken adequate
care of.  With a view to give protection to the women essentially from
violence within the family, the present special piece of Legislation has
been brought forth.
      Section 3 of the Act has attempted in very broad and wide
terms, as to what constitutes domestic violence and hence, tried to
cover the various acts, omissions or commissions or even conduct of a
particular person to constitute domestic violence and hence, couched
the language in far and wide terms.  The expression physical abuse is
explained under Section 3 of the Act as to mean 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.  Similarly, the expression verbal and emotional
abuse is sought to be explained in inclusive terms as insult, ridicule,
humiliation, name calling etc.  I am, therefore, of the opinion that if an
act of a particular person is likely to impair the health or development
of a particular person or if a person is openly put to humiliation, the
expressions physical abuse and verbal and emotional abuse get
attracted in the above context.
      When the contents of the complaint lodged by the second
respondent herein have been carefully studied, the humiliation heaped
upon her by the petitioners is, prima facie, made out.  After the first
petitioner herein, who is the husband of the second respondent herein
and the father of the third respondent, has been transferred from
Visakhapatnam to Ananthapur where respondents 2 and 3 joined him
but he sends them away on some pretext back home at Vizag and in  
the meantime, abruptly vacates the flat hired by him at Ananthapur so
as to prevent respondents 2 and 3 to come back and join him at
Ananthapur to lead a life of dignity along with him, perhaps, towards
such a conduct various expressions found in the sweep of Section 3 of
the Act get attracted.
      This apart, whatever be the differences and their intensity be
between the first petitioner and the second respondent, the third
respondent herein was born to them on 12.07.2004.  The petitioners
herein being the father and the grand father are liable to ensure that
the third respondent makes a steady progress and development in all
respects.  They are liable to ensure that the personality and intellectual
development of the third respondent should not get impaired in the
process in any manner.  The third respondent is not at fault in any
manner for the unresolved differences between the petitioners on one
hand and the second respondent on the other.  If the third respondent
has been unjustly denied what is legitimately due to her, the paternal
care and guidance, while all other children of her age group who
receive it in abundance and lead a normal course of living, the third
respondent, prima facie, appears to have been put to verbal and
emotional abuse, as she has invidiously been made to suffer
humiliation apart from the expression physical abuse itself getting
attracted in her case.
      This apart, the learned counsel for the second respondent is
right in pointing out that Section 17 of the Act has conferred a right to
reside in a shared household to every woman in a domestic
relationship and Section 19 is an enabling provision empowering the
Magistrate for passing an appropriate order for residence of the parties.
While Section 20 of the Act talks of the monetary relief which can be
granted to a party under this Act, clause (d) of sub-section (1) of
Section 20 of the Act makes it very clear that 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, or any other law for the time
being in force can be granted by the learned Magistrate.  Therefore,
the fact that the second respondent or respondents 2 and 3 have
already approached the Family Court by instituting O.P.Nos.564 of 2007
and 565 of 2007 for restitution of conjugal rights and for securing
maintenance respectively, would not come in the way of the Magistrate
to exercise the power available under Section 20 of the Act and award
appropriate monetary relief, should he consider that grant of Rs.3,000/-
as monthly maintenance to the respondents 2 and 3 is hopelessly
inadequate for one to lead a life of dignity in a city like Visakhapatnam.
      I am, therefore, of the opinion that the grounds urged by the
petitioner for quashing D.V.C.No.5 of 2012 are not available and since
the Domestic Violence Case has made out a prima facie case requiring
prompt and immediate attention for securing the reliefs under Section
17 and Section 20 of the Act, it is only appropriate that the stay order
passed by this Court on 03.01.2013 be vacated.
      Accordingly, this Criminal Petition stands dismissed.  D.V.C.No.5
of 2012 shall be disposed of as expeditiously as possible within a
maximum period of two months from the date of receipt of a copy of
this order.  Miscellaneous petitions, if any, pending shall stand
dismissed.

_________________________  
(NOOTY RAMAMOHANA RAO, J)      
17th June 2015  

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