Court: Allahabad High Court
Bench: JUSTICE Vijay Lakshmi
Sanjeev Kumar Agarwal Vs. Rashmi Agarwal & Anr. On 9 May 2014
Law Point:
Protection of Women from Domestic Violence Act, 2005 — Sections 12, 22 — Criminal Procedure Code, 1973 — Section 125 — Domestic Violence — Compensation orders — Justification — Wife had not moved application under Section 22 of Act or claimed compensation — No occasion for ACJM to award Rs. 75,000 as compensation to wife — Impugned orders set aside.
JUDGEMENT
By means of this revision, the revisionist has questioned the legality of the order dated 2.5.2012 passed by Additional Sessions Judge/Special Judge, (E.C. Act), Rampur whereby the learned Additional Sessions Judge/Special Judge partly allowed and partly dismissed the appeal No. 76 of 2011, Sanjeev Kumar Agarwal v. Rashmi Agarwal, arising out of judgment and order dated 7.10.2011 passed by A.C.J.M., Court No. 1, Rampur in Case No. 224 of 2008, Smt Rashmi Agarwal v. Sanjeev Kumar Agarwal, under Section 12 of Domestic Violence Act, 2005.
2. I have heard Mr. I.M. Khan, learned Counsel for revisionist and learned Counsel for opposite parties.
The brief facts relevant for disposal of this revision are that the revisionist and respondent No. 1 are husband and wife, who were married on 14.5.2003, according to Hindu rites. Gradually the relations between the two got strained and the wife had to leave her matrimonial home. The wife feeling neglected, filed two cases against her husband, one under Section 125, Cr.P.C. and the other under Section 12 of Domestic Violence Act. In the complaint case filed under Section 12 of Domestic Violence Act, 2005 before the Court of Chief Judicial Magistrate, Rampur, the wife alleged that her husband was neglecting her. He and his family members were harassing her on account of insufficient dowry. In June 2004, she was forced to leave her matrimonial home despite the fact that she was pregnant at that time. On 4.10.2004, she delivered a child and after delivery, she became very weak but neither her husband nor any of his relatives came to her parental house to see her or to make any arrangement for her treatment, medicines or nutrition. Her mother-in-law expired on 25.1.2005. Hearing the news of her death, she went to her matrimonial house, but she was treated badly. She was not welcomed there and on 14.6.2006, under compelling circumstances, she had to leave her matrimonial home once again. Since then she is living with her father. Her husband/revisionist instead of providing her maintenance forced her to sign a decree of divorce with mutual consent. He threatened her that if she would not sign the application for divorce with mutual consent, she would have to face serious consequences. It was alleged by the wife that despite being a rich person and also an Advocate having sufficient means to pay maintenance to her, he is not providing any maintenance.
3. Mentioning all the aforesaid grounds she sought the following reliefs in the application moved under Section 12 of Domestic Violence Act.
(i) The respondent-husband be directed to restrain from doing any correspondence by letters, etc. with her.
(ii) The respondent be directed to arrange for some residence for her according to his status.
(iii) The respondent be directed to return ‘Streedhan’ to her.
(iv) The respondent be directed to pay Rs. 20,000 p.m. to her as maintenance.
(v) Any other relief as the Court may deem fit.
4. The respondent/husband appeared and filed objections denying all the allegations. He alleged that wife herself is not discharging her duties, she out of her own free will has preferred to live with her parents and without any reasonable cause and even without his consent has left her matrimonial home. Neither he nor any of his relatives had ever demanded any dowry from her. It was further alleged by the husband that he had met with a road accident in March 2004, but despite sending information, neither his wife nor any member of her parental side family came to see him. He has always paid money to his wife and his daughter. On the death of his mother, his wife had come to visit her matrimonial house only for one day and despite repeated phone calls, she never came back to live with him.
5. Learned Additional Chief Judicial Magistrate after hearing both the parties and after appreciating the evidence available on record partly allowed the application of wife by the judgment and order dated 7.10.2011. Learned Magistrate after observing that the applicant/wife was residing in her father’s house, denied the relief regarding arrangement of some separate residence for her by her husband. Learned Magistrate also denied the first relief claimed by wife by observing that there being no divorce and the marital relationship being subsisting, the husband cannot be prohibited to have correspondence with his wife.
6. However learned Magistrate granted 3rd and 4th reliefs by directing the husband to return the ‘Streedhan’ of wife and to pay Rs. 1,500 p.m. as maintenance to her.
In addition to the aforesaid reliefs, learned Magistrate suo motu granted two more reliefs to wife by awarding Rs. 20,000 as medical expenses and Rs. 75,000 as compensation for physical and mental atrocities, the wife had to bear in the circumstances mentioned earlier.
7. Against the order of learned Additional Chief Judicial Magistrate, the respondent/husband filed Criminal Appeal No. 76 of 2011 in the Court of Sessions. The learned Appellate Court partly allowed the appeal setting aside the order of learned Additional Chief Judicial Magistrate in respect of payment of Rs. 20,000 for medical expenses and Rs. 1,500 p.m. as maintenance, but confirmed the order of learned Additional Chief Judicial Magistrate with regard to paying Rs. 75,000 as compensation to the wife and also regarding return of ‘Streedhan.’
8. Aggrieved by the aforesaid order dated 2.5.2012 passed by lower Appellate Court, the husband has filed the present revision questioning the legality of the impugned order mainly on the following ground:
That the orders passed by the learned Trial Court as well as the lower Appellate Court, so far as it relates to the payment of compensation is wholly illegal and without jurisdiction. Both the Courts below have completely ignored the fact that respondent No. 1 has nowhere asked for any compensation for physical and mental agony. Hence, the order passed suo motu by the Courts below regarding payment of compensation is wholly illegal and without jurisdiction.
9. In this regard, learned Counsel for revisionist has drawn the attention of this Court to Section 22 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Act”) which provides for payment of compensation and which is quoted below:
“22. Compensation orders—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.”
Learned Counsel for the revisionist has vehemently argued that Section 22 of the Act clearly provides that the Magistrate may pass an order directing the respondent to pay compensation “on an application being made by the aggrieved person.”
10. Learned Counsel for revisionist has argued that if there is specific and clear provision in the Act itself, providing for the procedure, the Court has no junsdiction to read between the lines and to pass any order suo motu regarding payment of compensation without any application or without even any prayer for that. Learned Counsel for the petitioner has contended that the application moved by wife under Section 12 of Domestic Violence Act which is annexed with the counter-affidavit filed by her against the instant revision clearly shows that wife has not claimed any such relief, hence, the order passed regarding award of compensation by both the Courts below is without jurisdiction.
11. Per contra, learned Counsel for respondent-wife has argued that learned Magistrate after taking into account the entire facts, has ordered for compensation for physical and mental torture, the wife had to bear because of neglectful behaviour and maltreatment by her husband. The Magistrate is empowered to grant any other relief while disposing the application under Section 12 of the Act and the wife had claimed “any other relief as Court may deems fit” in her application.
12. After having heard learned Counsel appearing from both the sides, and after a careful perusal of the impugned judgments, it appears that the only legal issue involved in this revision is that whether both the Courts below have committed any illegality or irregularity by passing an order granting suo motu of Rs. 75,000 to the respondent-wife as compensation, that too without any application under Section 22 of the Act as Section 22 of the Act specifically and clearly provides that the Court may grant compensation “on an application” moved by the aggrieved person.
13. To arrive at a correct decision on this issue, the rules of interpretation of statutes must be looked into. In this regard the rules of interpretation are based on three ‘Legal Maxims’:
(1) “Expresso Unius Est Exclusio Alterius”—which means
Express mention of one thing implies the exclusion of another.
(2) “Expressum Facit Cessare Tacitum”—which means
Expression precludes implication.
(3) “A Verbis Legis Non Est Recedendum”—which means
From the words of law, there must be no departure.
14. The Hon’ble Supreme Court, in the case of A.R. Antulay v. Ramdas Sriviwas Nayak, (1984) 2 SCC 500; has held “Express enactment shuts the door to further implication” which means “Where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Where a statute prescribes a procedure for doing a thing, it must be done accordingly unless there is any contrary indication.”
15. In the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655; the Hon’ble Apex Court has observed that:
“Court can supply or supplement the deficiency in the statute but it cannot introduce into it an entirely new provision”.
16. The Hon’ble Apex Court in the case of New Piece Goods Bazar Co. Ltd. v. C.I.T., AIR 1950 SC 165, has held as under:
“it is the primary duty of a Court to give effect to the intention of the Legislature as expressed in the words used by it, and no outside consideration can be called in aid to find that intention”.
17. In another case of Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1070, the Apex Court has held:
“No canon of construction can be said to be more fairly established than this that the Legislature uses appropriate language to manifest its intention.”
The intention of the Legislature must be gathered from the words used in the section itself, and the Courts cannot on the possibility of abuse, give the provision a different construction when the grammatical construction undoubtedly achieves the object as indicated in the proviso.”
18. In the case of Communist Party of India, Nagpur v. State of Maharastra, AIR 1989 Bom. 29 at 48, it has been held hereunder:
“Intention of the Legislature must be gathered from the words of the statute and not from what the Government professes it to be when it has translated intention into a statute of a rule.”
19. All the aforesaid views have been strengthen recently by Constitution Bench judgment of Hon’ble Supreme Court in the case of Hardeep Singh v. State of Punjab, I (2014) SLT 465=II (2014) DLT (CRL.) 6 (SC)=2014 (1) JIC 539 (SC), 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.”
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.
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 Additional 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.
However, the respondent-wife is at liberty to move fresh application under Section 22 of the Act.
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