CRLRC/2428/2018 of Sri B. Vinod Vs The State of Andhra Pradesh on 31 December 2019

ORDER:

The challenge in this Criminal Revision Case at the instance of the respondent in DVC No.68 of 2012 is to the order dated 20.07.2018 in Crl.A.No.7 of 2016 passed by the learned VII Additional Sessions Judge, West Godavari Division, Eluru dismissing the Criminal Appeal filed by the respondent in DVC No.68 of 2012 and confirming the order passed in DVC No.68 of 2012 by the learned Judicial First Class Magistrate (Special Mobile Court), Eluru.

2. In DVC No.68 of 2012 the learned Judicial First Class Magistrate (Special Mobile Court), Eluru granted monthly maintenance of Rs.10,000/- to the complainant from the date of order and Rs.25.00 lakhs as compensation to the complainant therein. Aggrieved by the said order 1[st] respondent in DVC No.68 of 2012 filed Crl.A.No.7 of 2016. The complainant also filed Crl.A.No.296 of 2016 challenging the quantum of maintenance awarded in her favour and sought for enhancement of maintenance from Rs.10,000/- to Rs.30,000/- and compensation to Rs.50.00 lakhs. Both the appeals were heard by the learned VII Additional Sessions Judge, West Godavari Division, Eluru and by a common judgment dated 20.07.2018 both the appeals were dismissed.

3. Hence, this criminal revision case at the instance of 1[st]respondent in DVC No.68 of 2012 against the judgment in Crl.A.No.7 of 2016.

4. The parties in this Criminal Revision Case are referred to as they were arrayed in DVC No.68 of 2012.

5. The case of the complainant in DVC No.68 of 2012, briefly, is that her marriage was solemnized with 1[st] respondent on 17.11.2014 and she joined 1[st] respondent at Madras, where he was employed as an engineer in a software company and their marital life went on for one year and the 1[st] respondent did not allow her to apply for any job and he used to maintain silence with a view to harass her mentally and he also used to chide and assault her on the pretext of her not preparing dishes as to his taste and even though she became pregnant, all the respondents continued their attitude towards her and on 09.03.2009. 1[st] respondent got issued a legal notice to her calling upon her to join him though in fact he had no intention to take her back. Even though the 1[st] respondent was profitably employed, he was negligent towards her and therefore, she was entitled to claim all the reliefs sought in the complaint.

6. Denying the averments made in the complaint, 1[st] respondent filed counter adopted by respondents 2 and 3, interalia contending that the Court has no jurisdiction to entertain the application and the complainant is permanent resident of Pedaparapudi, Gudiwada and she has been residing there without any valid reason and even though he got issued two legal notices to the complainant to come and join him, she did not turn up and thus, she cannot claim any maintenance and she never used to interact with him and with his parents and after she conceived pregnancy himself and his parents ensured that she does not feel fatigue and better medical facilities are made available and he got issued a legal notice with a noble intention of getting her back to the matrimony but due to over powering influence of her parents, she did not turn up, which led to the present state of affairs and due to the mental trauma, he was not able to concentrate on his profession and he strongly believes that the complainant is under the custody of her brother-in-law by name Undavalli Rama Rao and she acts according to his direction and he lost his job and he has no avocation and therefore, the complaint is liable to be dismissed.

7. Heard Smt.T.V.Sridevi, learned counsel for petitioner and Sri Nimmagadda Satyanarayana, learned counsel for respondent.

8. The main plank of argument of counsel for the petitioner is that the Courts below have awarded compensation of huge amount of Rs.25.00 lakhs to the respondent even without there being any earnest prayer made by the respondent in the application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short “DV Act”). She would argue that awarding a relief without prayer is unwarranted besides being legally unsustainable. In this regard, learned counsel placed reliance on the judgment of Allahabad High Court in Sanjeev Kumar Agarwal Vs. Rashmi Agarwal[1].

9. Secondly, it is argued, while granting a huge amount of Rs.25.00 lakhs towards compensation, the Courts below have not devoted even a single sentence as to how the respondent was legally entitled to such an exorbitant amount and how the Courts were legally justified in granting the said amount. In expatiation, learned counsel would strenuously argue that there was no discussion regarding the alleged injury including, mental torture and emotional distress said to be caused by the petitioner to the respondent herein and then making an objective assessment of the quantum of monetary compensation awardable on account of the aforesaid mental and emotional abuse. Learned counsel would lament that the compensation awarded was not just fair and adequate one, but an extortionate one.

10. Learned counsel finally argued that the trial Court took cognizance of the application without supported by domestic incident report and therefore, the very institution of the application and its cognizance suffer statutory lacunae.

11. Per contra, learned counsel for respondent / complainant argued that the complainant has pellucidly mentioned in Para-6 of Form-1 that she may be granted protection, residence, monetary relief and compensation under Sections 18, 19, 20 and 22 respectively and therefore, it is preposterous for the petitioner herein to contend that there was no prayer for compensation. Nextly, he would argue that the trial Court as well as the appellate Court have vividly discussed that due to scandalous, scurrilous and unproved allegations levelled by the petitioner against the chastity of the respondent herein, she suffered untold pain and distress for which, she deserved to be compensated. The Courts below also observed that due to such baseless aspersions, her future connubial prospects became bleak, as the divorce was granted pending the DVC case and accordingly, granted compensation of Rs.25.00 lakhs which in fact will not commensurate with the mental torture and marred future suffered by her. Therefore, he would argue, the petitioner cannot question the quantum of compensation. Finally, he argued that domestic incident report has been submitted by the Protection Officer in this case and even otherwise, it is not a must in every case for entertaining the application under Section 12 of the DV Act.

12. The points for consideration are:

i)Whether the respondent herein did not make a prayer for awarding compensation besides other reliefs and if so, whether the Courts below have had no jurisdiction to award compensation? awarding compensation besides other reliefs and if so, whether the Courts below have had no jurisdiction to award compensation?

ii)Whether the compensation awarded is factually and legally sustainable? sustainable?

iii)Whether the trial Court entertained the application under Section 12 of DV Act without domestic incident report being enclosed to it and if so, whether the application suffers legal infirmity? Section 12 of DV Act without domestic incident report being enclosed to it and if so, whether the application suffers legal infirmity?

13. POINTS 1 AND 2:

The first and foremost argument of the revision petitioner is that the respondent has not made a specific prayer in her application for grant of compensation and therefore, the Courts below have no jurisdiction to award compensation. In Sanjeev Kumar Agarwalreferred supra, a learned Judge of Allahabad High Court having found that in an application moved under Section 12 of DV Act, the petitioner therein while seeking several reliefs, did not specifically seek for compensation but only mentioned “any other relief as the Court may deem fit”, after referring several decisions has held thus:

22. All the aforesaid views have been strengthen recently by Constitution Bench judgment of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others etc., in which it has been observed as under :- “The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause........under the garb of interpreting the provision the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation.”

23. From the pleadings of the parties, it is clearly evident that the wife had not moved any application under section 22 of the Act. She has not even claimed for compensation in the relief column of her application filed under Section 12 of the Act. In these circumstances, there was no occasion for the learned A.C.J.M. to award Rs.75,000/- as compensation to the wife. Learned Appellate Court has also failed to realise this aspect while confirming the order passed by learned A.C.J.M.

24. For the aforesaid reasons and in wake of the legal position, well settled by Hon'ble Apex Court in a plethora of judgments cited above, both the impugned orders are liable to be quashed and the revision deserved to be allowed. Accordingly, the revision is allowed. The order dated 2.5.2012 passed by Addl. Sessions Judge/Special Judge, (E.C. Act), Rampur and the order dated 7.10.2011 passed by A.C.J.M. Court No.1, Rampur are hereby quashed.

14. The petitioner for not having claimed compensation in the application under Sections 22 and 12 of DV Act, learned Judge has

held that the omnibus prayer for any other relief cannot be interpreted for the prayer of compensation. It can thus be understood that there shall be a specific prayer for compensation. The question therefore is, whether the respondent herein has made such a prayer or not. Learned counsel for respondent produced copy of Form-1 [vide Rules-5 (1) (2), 17 (3)] under which the domestic incident report prepared by the Protection Officer was enclosed to the application filed under Section 12 of DV Act. In column 6 of the said report, several reliefs sought for by the respondent / applicant and recommended by the Protection Officer are succinctly narrated in tabular form. The reliefs sought for are: Protection under Section 18; Residence Order under Section 19; Monetary Reliefs under Section 20 and Compensation under Section 22 (emphasis supplied). Besides, in the application under Section 12 of DV Act submitted by the respondent, Para No.VI with the heading “compensation order under Section 22” was tick marked ( ). Thus, unlike in Sanjeev Kumar Agarwal referred supra, in the instant case the respondent has, indeed prayed for compensation though the amount is not specified. Hence, the argument of the petitioner cannot be countenanced.

15. Now coming to the argument that there was no proper assessment of quantum of compensation is concerned, the trial Court in Point No.3 had dealt with this aspect. It observed that the petitioner herein made unbridled imputations against her chastity without there being a shred of proof and thus, not only tarnished her dignity and self respect but also caused her mental agony and above all, since the marriage was irretrievably broken down and culminated in divorce, her future connubial prospects were badly marred on account of his casting aspersions on her character. Taking these aspects into consideration, the trial Court awarded Rs.25.00 lakhs towards compensation and the same was approved by the lower appellate Court.

16. I have given my anxious consideration to the argument of the petitioner that the compensation awarded is highly extortionate and bereft of reasons. It must be said this argument is not formidable enough warranting interference. As rightly observed by the Courts below, the petitioner has caused verbal and emotional abuse to respondent by making scurrilous aspersions on her fidelity. Vide Ex.P-9, which is the counter filed by him in M.C.No.2 of 2010, he not only made remarks that there was suspicious circumstances beset with the birth of his child and he reserves right to take out all sorts of medical examination at appropriate time and unless and until all the suspicious circumstances with regard to the birth of the child are cleared, the petitioner is not entitled to claim relief. Subsequently, it appears, he did not take any positive steps for subjecting the child to paternity test. Thus, the allegation remained unestablished but the agony it caused to her heart and the scar it left behind on her character are indelible. No woman can bear the brunt of the scandal against her chastity, that too an irresponsible and unproved one, particularly when

it is floated by her husband himself without there being any iota of truth in it. As such, Section 22 of DV Act quantifies the mental torture and emotional distress suffered by the aggrieved person and grants compensation. Having regard to the fact that the petitioner is financially sound inasmuch as he is a software engineer and as per Ex.P-12, his salary during 2014-2015 was Rs.2,17,924.41p per month and he was owning a flat in Kothaguda, Hyderabad on which he was getting rent of Rs.16,000/- per month and also having regard to the fact that the future of the respondent became bleak, in my considered view, the Courts below have rightly awarded Rs.25.00 lakhs as compensation. For the same reason, the maintenance of Rs.10,000/- per month awarded by the Courts below cannot be said to be exorbitant. It is pertinent to mention here that the respondent as well as her tender aged daughter B.Nishitha have to survive with the aforesaid amount. These points are accordingly answered against the revision petitioner.

17. POINT No.3:

In the points 1 and 2 supra, it was already observed that the application filed under Section 12 of DV Act was enclosed with domestic incident report submitted by the Protection Officer. In that view, the counter argument of the petitioner cannot be accepted. Even otherwise, non-enclosure of domestic incident report will not render the application otiose.

18. In A.Vidya Sagar Vs. State of A.P[2], it was held thus:

26. The learned counsel for the petitioner submitted that a Magistrate is entitled to proceed with under Section 12 of the D.V. Act on the basis of Domestic Incident Report given under Section 9(1)(b) of the D.V. Act by the Protection Officer and that the cognizance of the case cannot be taken otherwise. He submitted that Section 9(1)(b) of the D.V. Act shall be read with the proviso to Section 12(1) of the D.V. Act .

27. Even a reading of the two provisions leads to an inescapable conclusion that in the event there is any Domestic Incident Report, the Magistrate shall take into consideration such report. Section 12(1) of the D.V. Act does not prohibit a Magistrate from proceeding with the case unless there is a Domestic Incident Report. The words used in proviso to Section 12(1) of the D.V. Act are any Domestic Incident Report and not the Domestic Incident Report. Thus, the proviso to Section 12(1) of the D.V. Act contemplates that in the event there is a Domestic Incident Report, the Magistrate shall take it into consideration. If there is no Domestic Incident Report, the question of the Magistrate considering the same does not arise. Needless to state that Section 12 of the D.V. Act does not contemplate that the petition under Section 12 of the D.V. Act would not lie without any Domestic Incident Report. I do not agree with the contention of the learned counsel for the petitioner that a Domestic Violence Case can be instituted and taken cognizance of on the basis of the Domestic Incident Report only and not otherwise. Such a contention is not sustainable and is accordingly rejected.

19. Hence, the argument of the petitioner has no factual or legal basis. This point is also answered against the revision petitioner.

20. In the result, I find no merits in this criminal revision petition and accordingly, the criminal revision petition is dismissed. No costs.

As a sequel, Interlocutory Applications pending if any, shall stand closed.

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U. DURGA PRASAD RAO

31[st] December, 2019

pvd

2MANU/AP/1379/2014