No monetary relief under Section 20 of DV Act (PWDVA) unless domestic violence proved – Mumbai HC

I think this is a very important judgment about grant of any kind of monetary relief including maintenance to wives under Protection of Women from Domestic Violence act.

It says that unless the domestic violence alleged in the complaint is proven, no relief can be granted under Section 20 of the DV Act which grants monetary relief.  So bye bye to those complaints where wife says “I was not given food”, “I was locked in the bathroom” and the standard template of DV allegations.  Let them prove their allegations, or find a real job rather than filing cases on husbands and living life like parasites!

Note that this was on disposal of the main DV petition, so even if interim monetary relief is granted, keep fighting the main petition and get your maintenance amount to zero.

Important excerpt from the judgment below:

10. In my considered opinion, the learned Magistrate had committed an error in granting monetary relief to respondent Nos. 2 and 3 despite the fact that domestic violence could not be established. Though it is possible to say that the maintenance was permissible for respondent Nos. 2 and 3 (minor children) under Section 125 of the Code of Criminal Procedure, the monetary reliefs could not have been given to them under Section 20 of the Protection of Women from Domestic Violence Act, 2005. The view taken by the learned Magistrate and the appellate Court, in my opinion, is not correct and hence, I pass the following order.

Full judgment text below:

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR.

                CRIMINAL WRIT PETITION NO. 32 OF 2014

Koushik S/o. Anil Gharami,
Aged about 40 years, 
R/o House NO.59, Shayamapalli
Khajurikala, Piplani, Bhopal­462022
Tahsil Hujur and District : Bhopal(MP)
                                                   ….   PETITIONER.

                                 //   VERSUS //

1.  Sau. Sangeeta Koushik Gharami,
    aged about 36, Occu. Service,

2. Ku. Gayatri Sangeeta Gharami,

3. Ku. Astha Sangeeta Gharami,
    Age about 6 years,

    Respondent No.2 and 3 being minors are
    represented by their ad­litum mother the
    Respondent Nos. 1 to 3 all are R/o. C/o.
    Thakurdas Mahaldar, Post : Alapalli,
    Tahsil : Aheri, District : Gadchiroli. 
                                                    …. RESPONDENTS.

___________________________________________________________________
Mrs. Sonali Saware, Advocate with Petitioner.
Mr. C.M.Munje,Advocate with the respondent No.1.
___________________________________________________________________

                             CORAM : M.L. TAHALIYANI, J.
                               DATED   : MAY 05, 2014.

ORAL JUDGMENT :

1.            Heard.

2.            ADMIT   .  Heard finally by consent of the parties.

3.            A short question that arises for determination in present writ

petition is, as to whether the minor children of the aggrieved person are

entitled for maintenance under Section 20 of the Protection of Women from

Domestic Violence Act, 2005 if the trial Magistrate has come to a conclusion

that the domestic violence has not been proved. 

4.            Admittedly, the petitioner is husband of respondent No.1 and

father of respondent Nos.2 and 3.  Respondent Nos.1, 2 and 3 filed an

application under Section 12 of the Domestic Violence Act, 2005 in the Court

of Judicial Magistrate First Class, Aheri.  The said application was heard on

merits   and   following   points   were   framed   by   the   Magistrate   for

determination: 

           1. Does Applicant No.1 prove that she was subjected to Domestic

              Violence by Non­applicant No.1 as alleged in the application ?

           2. Do the applicants are entitled for relief claimed in their claim

              clause

           3. What order   ?

              The learned Magistrate had answered point No.1 in negative

and point No.2 was answered partly in affirmative.  The learned Magistrate

had come to a conclusion that respondent No.1 had not been able to

establish that she was subject to domestic violence by the petitioner.  The

learned Magistrate has also come to a conclusion that respondent No.1 was

not entitled for any monetary relief.  However, monetary relief was granted

to respondent Nos. 2 and 3.  The final order of the learned Magistrate runs as

under :

                  “ 1. The application is partly allowed.
                  2. Non­Applicant No.1 shall pay Rs.2000/­ per
                     month to Applicant No.2 and 3 each, for their
                     education, from the date of application.
                  3. Non­Applicant No.1 shall pay Rs.1000/­ per
                     month to applicant no.2 and 3 each, for their
                     maintenance (monitory relief) from the date of
                     application.
                  4. parties to bear their own cost.
                  5.  The amount received by Applicant No. 2 and 3
                     under interim order, Exh.No.18, be set off against
                     the amount as mentioned above    .”

5.            The petitioner had filed a criminal appeal against the said order

of the learned Magistrate.  The said Criminal Appeal was also dismissed on

9  December, 2013. 

6.            As already stated, the question that arises, whether respondent

Nos.2 and 3 could be granted any monetary relief despite the fact that

domestic violence could not be proved by respondent No.1.  In this regard,

one will have to refer to certain provisions of the Protection of Women from

Domestic Violence Act.  ‘Aggrieved Person’ has been defined in Section 2(a)

of the Protection of Women from Domestic Violence Act, 2005 :

              “ 2(a) “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
              domestic violence by the respondent; ”

7.            Chapter IV deals with ‘Procedure for obtaining orders of reliefs’.

Section 12 lays down the procedure for presenting application before the

concerned Magistrate.  Sections 18 and 19 of the Act deal with ‘Protection

Orders’ and ‘Residence Orders’, respectively.   Section 20 deals with

‘ Monetary Relief ’. 

8.            In the present petition, this Court is concerned as to whether

any monetary relief could have been given to respondent Nos. 2 and 3.

Section 20 of the Protection of Women from Domestic Violence Act, 2005

lays down :

                “ 20.   Monetary reliefs .­ (1) While disposing of an
              application under sub­section (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 .”

9.            It is thus, clear that the monetary relief is available for the

children of the aggrieved person if the monetary relief is required to meet the

expenses incurred by the aggrieved person as a result of domestic violence.

The monetary relief is also permissible in case losses are suffered by the

aggrieved person as a result of the domestic violence.  The monetary relief is

available to children of the aggrieved person under Section 20 of the Act.

However, the aggrieved person is under obligation to establish that she had

to meet the expenses incurred and losses suffered due to domestic violence

on the part of the respondent.   In the present case, since the learned

Magistrate has come to a conclusion that the domestic violence could not be

proved and since that finding of the learned Magistrate has not been

challenged by the aggrieved person, it follows that no relief could have been

given to respondent Nos. 2 and 3 also. 

10.           In   my   considered   opinion,   the   learned   Magistrate   had

committed an error in granting monetary relief to  respondent Nos. 2 and 3

despite the fact that domestic violence could not be established.  Though it is

possible to say that the maintenance was permissible for respondent Nos. 2

and 3 (minor children) under Section 125 of the Code of Criminal Procedure,

the monetary reliefs could not have been given to them under Section 20 of

the Protection of Women from Domestic Violence Act, 2005.  The view taken

by the learned Magistrate and the appellate Court, in my opinion, is not

correct and hence, I pass the following order.

    i. The writ petition is allowed.

    ii. The order passed by learned Magistrate in Misc. Criminal Case No. 27

       of 2011 on 12  March, 2013 and the order passed by the learned
       Sessions Judge, Gadchiroli in Criminal Appeal No. 14 of 2013 on 9th

       December, 2013 are set aside. 

    iii. The amount of Rs.Twenty Five Thousand, deposited by the petitioner

       in this Court shall be refunded to him immediately.  

       The petition stands disposed of accordingly.

                                                         JUDGE

RRaut..

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