KAUSHAL ARVIND THAKKER vs. JYOTI KAUSHAL THAKKER AND ANR.

2024:BHC-AS:14279
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIM. REVISION APPLICATION NO. 234 OF 2023
Kaushal Arvind Thakker, ]
Citizen of USA, residing at ]
2215 Cedar Springs, #1411, ]
Dallas, Texas 75201-1860, USA. ] ...Applicant.
Versus
1. Jyoti Kaushal Thakker of ]
Mumbai Indian Inhabitant residing at ]
1 Siddhi Vinayak CHS 569, ]
Khushaldas Parekh Marg, ]
Matunga (East), Mumbai – 400 019. ]
]
2. The State of Maharashtra ]
Through Public Prosecutor ]
High Court, Bombay. ] ...Respondents.
——————
Mr. Vikramaditya Deshmukh and Ms. Sapana Rachure for the applicant.
Mr. Ashutosh M. Kulkarni, Amicus Curiae.
Ms. Jyoti K. Thakker, respondent no. 1 in-peron.
——————
Coram : Sharmila U. Deshmukh, J.
Reserved on : February 12, 2024.
Pronounced on : March 22, 2024.
JUDGMENT :
1. Rule. Rule made returnable forthwith with consent of parties
and taken up for final hearing. The Respondent No 1 appears in
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person. Vide order dated 14 December 2023, this Court had
appointed Advocate Ashutosh Kulkarni as Amicus Curiae to assist the
Court.
2. The revisional jurisdiction of this Court under section 397 of the
Code of Criminal Procedure, 1973 (Cr.P.C) has been invoked by the
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revision applicant challenging the final judgment and order dated 14
July 2023 passed by the Sessions Court in Criminal Appeal No. 94 of
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2023 arising out of the final judgment and order dated 6 January
2023 passed by the metropolitan magistrate in Case No.172/DV of
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2027. By the judgment dated 14 July 2023 the Sessions Court has
dismissed the appeal declining to interfere with the judgment of the
metropolitan magistrate passed in the application filed under section
12 of the provisions of Protection of Women from Domestic Violence
Act 2005 [for short “the DV Act”].
FACTUAL MATRIX:
3. The Applicant and the Respondent no.1 are the citizens of USA.
The applicant is currently residing in USA whereas respondent no.1 is
currently residing in Mumbai. The marriage of the parties was
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solemnized on 3 January 1994 in Mumbai and subsequently the
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marriage ceremony was also performed in USA on 25 November
1994. In the year 2005-2006 the Applicant and Respondent no.1 came
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back to India and started residing at Meru Heights, Matunga which
property stood in the joint names of parties. After coming back to
India, the Respondent no.1 started working with “Capgemini”
company at Vikhroli and is employed till date. In the month of May
2008 Respondent no.1 left the matrimonial house at Meru Heights
Matunga and started residing with her mother where she is still
residing. In the year 2014-15 the Applicant moved back to USA. In the
year 2017, the Applicant filed proceedings seeking Divorce in the USA
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Court and the summons was received by the Respondent No 1 on 15
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May, 2017. On 7 July 2017 an application under Sections 12, 17, 18,
19, 20 and 22 of the DV Act was filed by the Respondent No 1 in the
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Court of Metropolitan Magistrate, 61 Court, Kurla being Application
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No. 175/DV of 2017. On 3 January, 2018 the USA Court granted
Decree of Divorce dissolving the marriage between the Applicant and
Respondent No 1.
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4. On 17 October 2018 the interim application of respondent
no.1 under section 23 of the DV Act seeking interim relief of
maintenance, possession of flat at Meru Heights, restraining orders
against the transfer of flat and alternate accommodation and
compensation came to be rejected by the Metropolitan magistrate.
PLEADINGS IN THE D.V. APPLICATION:
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5. The case of the Respondent No.1 is that the parties were
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married on 3 January 1994 and during their honeymoon in Nepal the
applicant abused the Respondent no.1 by calling her as second hand
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as her earlier engagement had broken. On 4 February 1994 the
applicant and respondent no.1 went to USA where respondent no.1
was subject to physical and emotional abuse. The applicant cast
aspersions on the character of respondent no.1 and levelled
allegations of having illicit relationship with other men even with her
own brothers. The applicant used to assault respondent no.1 and not
let her sleep at night till she confessed to having illicit and adulterous
relationship. In November 1999 the applicant picked up a violent fight
and assaulted respondent no.1 on her face and hearing the noise,
neighbours called the local police and the applicant came to be
arrested for domestic violence. The respondent no.1 did not complain
to the police however the police noticed scar on her face and suo
moto took cognizance of the acts of the Applicant and arrested the
applicant who was thereafter released on bail by respondent’s
brother. The Court in Texas granted conditional dismissal with
condition to undergo batterer’s intervention counselling. In July 2000
when the parents of respondent no.1 were visiting USA where her
father suffered a heart attack and had to be hospitalised however the
applicant did not permit respondent no.1 to be with her father. In
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2005, a flat was purchased in the joint names of the Applicant and
Respondent No 1 in Meru Heights at Matunga, India where parties
were residing together and the applicant continued levelling
allegations against respondent no.1 of having illicit relationship with
other men which stretched to even milkmen or vegetable vendors
who would come for delivering goods. The Respondent No 1 took the
applicant to a leading psychiatrist Dr. Vihang Vahia who diagnosed the
applicant as delusional, however, the applicant refused to take
treatment and stormed out of the clinic. In May 2008, a major incident
of assault took place at the house at Meru Heights Matunga where
the applicant tried to suffocate respondent no.1 with the pillow after
which incident respondent no.1 called her mother and went to reside
with her mother where she is residing till date. It is pleaded that
subsequently there were meetings held between the parties,
however, the same did not fructify as the applicant was not willing to
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provide anything for respondent no.1. On 21 , 24 and 27 June
2017 respondent no.1 had gone to their matrimonial house at Meru
Heights, Matunga when she found that locks of the house were
changed.
6. Initially the application did not include any pleading about
stridhan nor sought relief of return of stridhan. By way of an
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amendment in the year 2019, a prayer was incorporated in the
application for return of her streedhan as enumerated in the
schedule annexed to the application for amendment. In addition, the
relief of appointment of protection officer to act as a Court Receiver
and to hold the assets in his custody was also prayed.
RESPONSE OF THE APPLICANT:
7. The Applicant filed his response to the application. However, for
our purpose, the same cannot be considered as the Metropolitan
Magistrate discarded the evidence of the Applicant for the reason
that he did not make himself available for cross examination, which
order attained finality.
EVIDENCE :
EVIDENCE ON BEHALF OF THE RESPONDENT NO 1:
8. The Respondent no.1 through her Affidavit in lieu of evidence
has deposed in detail about the various incidents of physical and
verbal abuse which had taken place during her stay in USA as well as
her stay in India. In paragraph 2, she has deposed about the abuse
faced during her honeymoon at Nepal. In paragraphs 3 to 9 she has
given detailed deposition about the verbal and physical abuse faced
by her in USA. In paragraph 10 she has deposed about the incident of
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physical violence which had occurred in November 1999 leading to the
arrest of applicant by the Texas police, USA. In paragraph 11 to 13 she
has deposed in about the verbal abuse in USA. In paragraphs 14 to 19
of her deposition she has deposed about the continued verbal and
emotional abuse faced by her while residing with the Applicant at
Meru Heights in India. In paragraph 20 she has deposed about the
incident of being suffocated by pillow by the Applicant after being
physically assaulted by the Applicant in May, 2008. In paragraph 21
she has deposed about the meetings which had taken place in the
parties. In paragraphs 23 and 24 she has deposed about being
dispossessed from the matrimonial house Meru Heights Matunga by
changing of locks.
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9. By way of an additional affidavit of evidence on 7 May 2019,
respondent no. 1 has deposed that at the time of filing of the
application under the DV Act she was not aware that she was entitled
to the recovery of her streedhan and after consultation with the
lawyers she realised that she is entitled to jewellery which was gifted
to her by her in laws. In paragraph 4 she has deposed that after her
marriage, all the jewellery gifted to her by her in laws were taken back
by the Applicant’s mother and the same is lying with her.
10. The documentary evidence produced by the Respondent No 1
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included the Court proceedings in support of the incident of domestic
violence which occurred in USA in the year 1999, the income tax
returns and the agreement of sale of Meru Heights flat.
11. In the cross examination the respondent no.1 has admitted that
she is a USA citizen. She has also admitted that she has certain bank
accounts and FD receipts as well as investments. She has admitted
that she has no documentary evidence to support the incident which
has taken place in Nepal. She has further admitted that she has no
police record or medical report to support the incident narrated in
paragraph 3 of her affidavit of evidence. She has further admitted
that she has not filed any police complaint in USA about the incident
and she has no medical certificate or injury certificate of the said
violence in USA. She has further admitted that she has no police
complaint or medical certificate pertaining to her deposition in
paragraphs 6, 7 and 8 of affidavit of evidence. She has further
admitted that the Texas Court, USA where the divorce proceedings
are filed had jurisdiction. She has further admitted that she has
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received the copy of divorce decree on 15 January 2018 from the
lawyer of applicant and that her application for special appearance
has been rejected by the Texas Court. She has further admitted the
retirement savings statement which is marked as exhibit 61. She has
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further admitted that for the period 2008 to 2017 she did not reside
in the flat at Meru Heights Matunga.
MOTHER OF RESPONDENT NO.1:
12. The mother of respondent no.1 has deposed that respondent
no.1 had confided in her as regards the emotional and physical abuse
that she faced in USA. She has further deposed that her son was
residing in USA and had bailed the applicant out of jail after the
incident of the year 1999. She has further deposed that in India she
was called by respondent no.1 to Meru Heights flat where she saw
blood on the bed sheet and that she took respondent no.1 with her
from Meru Heights to allow sometime to go by. She has further
deposed that the meetings have taken place between the parties
however the applicant was not agreeable to provide anything for
respondent no.1. In the cross examination she has admitted that the
incidents happened in USA were informed to her by respondent no. 1
and that she has never seen the applicant physically or verbally
abusing respondent no.1.
UNCLE OF RESPONDENT NO.1:
13. The uncle of respondent no.1 has deposed that he has been
informed by the father of respondent no.1 that respondent no.1 was
being subject to physical and mental abuse at the hands of the
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Applicant. He has further deposed that after coming back to India
respondent no.1 had confided in him that the applicant was not
allowing her to step out of the house alone and was assassinating her
character. He has further deposed that respondent no.1’s mother
informed him of the incident of violence at Meru Heights of May,
2008.. In the cross examination he has admitted that he was not
present during the incidents which has taken place in USA. The
witness has deposed voluntarily that he had gone to pick up
respondent no.1 and had seen that she was badly beaten. He has
further deposed that he has seen the anger tantrums of respondent
no.1.
BROTHER OF RESPONDENT NO.1:
14. The brother of respondent no.1 has deposed that in 1999 he
was informed about the assault upon the Respondent No 1 and the
arrest of the Applicant by local police. He has deposed that he had
taken steps to bail the applicant out of jail. He has deposed about
seeing that the respondent no.1 was brutally beaten up and her face
and eyes were bruised black and blue. He has further deposed that
when his father had suffered major heart attack, respondent no.1 was
not allowed by her husband to stay at hospital. He has further
deposed that there were meetings in India after he had come to
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Mumbai to amicably settle the matter however the applicant refused
to provide anything for respondent no.1. In the cross-examination, he
has voluntarily stated that he has seen the anger tantrums of
applicant.
EVIDENCE ON BEHALF OF THE APPLICANT:
15. The affidavit of evidence filed by applicant was discarded by the
Metropolitan Magistrate as the Applicant had not made himself
available for the cross examination. However in his deposition
Applicant has deposed as under:
“I say that the applicant learnt of Doctor Vihang Vahia. and
informed me that it would help to discuss marital issue with
him. I protested that we should see Doctor Vahia as a couple
and not alone. Consequently, the applicant complained about
me to Doctor Vahia and single handedly fed him a barrage of
false and alarming symptoms. Contrary to established
psychiatric procedure relying only on verbal protest from the
applicant, the so called doctor was quick to pronounce an
incorrect diagnosed based on a single visit. The applicant
violated my rights, made copies of the diagnosis and claimed
victory in society of having secured proof of my alleged
illness.”
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16. Although the evidence of applicant has been discarded by the
magistrate, the said deposition is being reproduced for the reasons to
be discussed later.
MOTHER OF APPLICANT:
17. The mother of applicant has deposed that respondent no.1
neglected her own household to settle her brother comfortably. She
has further deposed that respondent no.1 pressurised the Applicant
to demand money from his father causing the couple to be at odds.
She has further deposed that USA Court has already granted divorce
to the parties. In cross examination she has deposed that she is giving
evidence in a case for divorce. She has further admitted about the
meetings of settlement which had taken place between the parties.
She has admitted that she is staying in Meru Heights, Matunga since
12 -18 months and the applicant is in USA. She has admitted that she
has no personal knowledge about what has happened between the
applicant and respondent no.1. She has further admitted that she is
not aware as to who prepared the affidavits. She has identified the
photographs shown to her and has identified respondent no.1
wearing the diamond set in photograph no.1, respondent no.1
wearing red and green meenakari work gold set in photograph no 2
and photograph no. 3 in which her brother in law was gifting the
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diamond set which respondent no.1 was wearing in photograph no.1.
She has identified the ornaments gifted to respondent no.1 during her
marriage. She has further admitted that these ornaments are kept in
locker as she had advised the applicant and respondent no.1 that it is
not safe to carry them with them to USA.
BROTHER OF APPLICANT:
18. The brother of applicant has deposed that the ornaments which
were claimed by respondent no.1 were loaned to her for wearing in
the wedding rituals as per tradition. He has produced the
photographs of his wife as well as his younger sister in law during
their respective weddings wearing the same jewellery. He has further
deposed that during his mother’s deposition which was through video
conferencing he has heard his mother depose in her local language
Kutchi that she had given the jewellery only to wear in the wedding
and the same has been translated wrongly to read that the jewellery
was gifted to her. In the cross examination he has admitted that he
has never visited the applicant and respondent no.1 in USA. He has
further admitted that his younger brother was married after a period
of 4 years of the marriage of applicant and respondent no.1 and the
younger sister in law was not present in the marriage of applicant and
respondent no.1.
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SISTER IN LAW OF APPLICANT :
19. She has deposed that she was given the same jewellery to wear
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during her wedding on 3 December 1999 which showed that
respondent no.1 had returned the jewellery as agreed. She has further
deposed that it is the custom in community of the family that the
brides are given jewellery along with their bridal attire by their in laws
and the jewellery has to be returned back to them. In the cross
examination she has deposed that she is not possessing any jewellery
claimed by the applicant and the jewellery is in possession of the
mother of applicant.
UNCLE OF APPLICANT:
20. He has deposed that the jewellery was not a gift from the
mother of applicant to respondent no.1. He has deposed that it was
agreed that the jewellery will be returned to the mother of applicant
after the wedding ceremony is over. In the cross examination he has
admitted that he has no document to show that the jewellery was
loaned and that the jewellery is in his position and the applicant’s
mother is the owner of the jewellery.
BROTHER OF APPLICANT:
He has deposed that the incident of the year 1999 appears to be
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fictitious and fabricated and the applicant’s signature appears to be
forged. He has further deposed that the jewellery was not gifted to
respondent no.1 but was loaned to be worn during the wedding
ceremony and as per the understanding between respondent no.1
and his mother the jewellery was to be returned to his mother after
the ceremony, which respondent no.1 did. He has further deposed
that the same jewellery was worn by his wife as also the younger
sister in law. In the cross examination he has admitted that his mother
is in possession of the jewellery.
JUDGMENT OF THE TRIAL COURT:
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22. The trial Court by the judgment dated 6 January 2023 granted
the following reliefs :
“1. Application Case No. 172/DV/2017 is partly allowed.
2. It is held that the applicant/aggrieved person was
subjected to domestic violence at the hands of
respondent.
3. The respondent is hereby prohibited from
committing any act of domestic violence. Aiding or
abetting in the act of commission of domestic
violence against the applicant/aggrieved person.
4. The prayers of the applicant/aggrieved person to
restore possession of the flat located at Meru
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Heights, 208, Telang road, Matunga, Mumbai and
permission to stay therein are hereby rejected.
5. The respondent is directed to provide a suitable
accommodation i.e. one residential flat of at least
1000 square feet carpet area to the
applicant/aggrieved person at Matunga./Dadar in
Mumbai within a period of two months from the
date of this order. Alternatively, he is directed to pay
amount of Rs. 75,000/- (Rupees Seventy Five
Thousand only) per month to the
applicant/aggrieved person towards house rent to
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be paid on or before 5 date of each month from
the next month i.e. February 2023.
6. Respondent is directed to return all jewelry
(stridhan) and other belongings (as per list attached
with the application) to the applicant /aggrieved
person within a period of two months from the date
of this order.
7. The respondent is directed to pay amount of Rs.
1,50,000/- (Rupees one lakh fifty thousand) per
month to the applicant / aggrieved person towards
maintenance from the date of filing this application
i.e. from 07.07.2017.
8. The respondent is directed to pay amount of Rs.
3,00,000,00/- (Rupees Three Crores only) to the
applicant / aggrieved person towards compensation
within a period of two months from the date of this
order.
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9. The respondent is further directed pay cost of Rs.
50,000/- to the applicant/aggrieved person within a
period of two months from the date of this order.”
23. The trial Court has summarised the incidents of domestic
violence as stated in the application as under:
“a) During their honeymoon, respondent called her
as “ Second Hand” as her engagement with other
person was broken.
b) In the U.S.A continuous acts of domestic violence
such as suspicion on her character and making
false allegations of illicit relationship with other
man. Beating her till she confessed for the same.
c) He used to make fights and abused her.
d) Picked up quarrels on trifle counts. Toppled down
dining table. He threw flower pot towards her
and as such she sustained injury on her head.
e) In the year 1999, made huge noise in house.
Neighbors called police. He was arrested by USA
police and released from jail conditionally to
complete course on domestic violence.
f) In the year 2020, her father visited U.S.A and
stayed at her brother’s house. Respondent did
not allow to visit her father.
g) After arrival in India in the year-2006, respondent
continuously harassed her mentally, physical and
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emotionally.
h) In the month of May 2008, respondent tried to
suffocate her by covering her face.
i) Respondent left for U.S.A permanently without
providing for her maintenance in the year 2014.
j) Prior to that changed the lock of their flat and on
21.06.2017 prevented applicant from entering in
the house.
k) Respondent filed divorce petition in U.S. Court.
Her appearance was denied. Said petition was
allowed ex-parte in the year 2018.
l) Performed marriage with another lady namely
Kiran during the subsistence of their marriage.”
24. The Trial Court noted the evidence of the Respondent No 1 as
regards incidents of domestic violence which were corroborated by
her mother, brother and uncle. The Trial Court held that it has been
admitted that the incidents were told by respondent no.1 to them and
the same are hearsay, however, as they are family members of
respondent no.1 their testimonies are relevant to some extent. As
regards the witnesses of applicant, the trial Court noticed that the
applicants evidence has been discarded and the witnesses examined
by him have not witnessed any incident and their testimonies are
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hearsay. The trial Court dealt with the objection raised by the
applicant as regards the jurisdiction and after considering section 27
of the DV Act, held that the Court has the jurisdiction. As regards the
objection of limitation, the Trial Court relying upon the decision of the
Apex Court in the case of Prabha Tyagi v. Kamlesh Devi [(2022) 8 SCC
90] held that the application was filed within limitation. Trial Court
also dealt with the submission as regards the decree of divorce
granted by the Court in USA and held that respondent no.1 was not
allowed to appear in those proceedings and as such the principles of
natural justice were not followed. The trial Court noted the deposition
of respondent no.1 as regards the incident of domestic violence.
Taking note of the incident of domestic violence which had taken
place in the year 1999 the trial Court noted that the applicant had
completed his course as per the directions of the Court in USA. The
trial Court held that the police complaint was filed as regards the
change of locks of Meru Heights flat at Matunga. Noting that there
was no provision for maintenance made, the Trial Court held that the
respondent no. 1 was subject to economic abuse as also domestic
violence. The Trial Court declined to grant relief of possession of flat
at Meru Heights, Matunga and directed payment of Rs 75,000/ per
month towards separate alternate accommodation. After comparing
the income of the parties, a sum of ₹1,50,000/- was directed to be
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paid towards the maintenance. As regards the jewellery, the trial
Court considered admissions in the evidence of the mother of
applicant as well as the photographs which have come on record
which showed that respondent no.1 was gifted the said jewellery
which was kept in Mumbai in bank locker and as such held that
respondent no.1 is entitled to the same. On the issue of quantum of
compensation the trial Court considered the documentary evidence
which has come on record regarding the income of applicant and
directed the appellant to pay compensation of ₹3,00,00,000/- [Rupees
Three Crore only] to respondent no.1.
FINDINGS OF THE APPELLATE COURT :
25. The appellate Court considered the objection as regards the
applicability of DV Act to the parties as they are the citizens of USA.
The appellate Court relied upon the decision in the case of Sumeet
Ninave v. Himani Sumeet Ninave [2023 ALL MR (Cri) 2198] holding
that the consequence of the trauma suffering and distress carried by
the complainant to her parental home is sufficient to file application
under the provisions of DV Act in view of section 1 of the DV Act. The
appellate Court noted that there are allegations against the applicant
of causing domestic violence in India during their stay in 2006 to 2008
and dismissed the objection on the point of jurisdiction and
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applicability. As regards the objection of absence of subsisting
domestic relationship between the parties as the divorce decree has
been granted by the American Court, the appellate Court held that
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the application under the provisions of DV Act was filed on 7 July
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2017 and the decree of American Court is passed on 3 January 2018
and at the time of application, there was subsisting domestic
relationship. On the issue of inordinate delay, the appellate Court
relied upon the decision of the apex Court in the case of Kamatchi v.
Lakshmi Narayanan [2022 SCC OnLine SC 446] that there is no
limitation for filing of an application under the provisions of the DV
Act. As regards the incidents of domestic violence which have been
pleaded by respondent no.1, the appellate Court noted the evidence
that applicant was diagnosed as schizophrenic patient and he used to
assault her in USA as well as in India. The appellate Court noted that
there was no challenge to the evidence adduced by respondent no.1
about the domestic violence as the evidence of applicant had been
discarded. The appellate Court held that there is sufficient evidence
on record to prove the domestic violence. On the issue of
maintenance the appellate Court considered the comparative incomes
and considering that at the age of 55 years respondent no.1 has lost
her matrimonial relationship and there is no further prospects and
held that considering the income and assets of the applicant it cannot
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be said that the amount of maintenance, rent or compensation is
excessive. Upholding the findings of the Metropolitan Magistrate, the
appellate Court dismissed the Appeal.
SUBMISSIONS OF MR. DESHMUKH, LEARNED COUNSEL FOR THE
APPLICANT:
26. Mr. Deshmukh learned counsel for the applicant would submit
that the DV proceedings were filed only as a counter blast to the
divorce proceedings which is evident from the fact that it has been
filed after receipt of summons from USA Court. According to him, the
prayers in the DV application are primarily for restoration of
possession of “Meru Heights” flat. Interpreting Section 2(f) of DV Act,
he would submit that definition of domestic relationship has to be
interpreted in a meaningful manner and should have a reasonable
nexus with the cause of action and filing of the DV application and as
in the present case the parties are separated since, 2008, there was no
subsisting domestic relationship.
27. Distinguishing the judgments relied upon by the Respondent
no.1 who appears in person as well as learned Amicus Curiae , he
submits that in the factual scenario in those cases, there was
existence of domestic relationship as the applications were filed in
close proximity to the separation. He would contend that in view of
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section 1(2) of the DV Act, the Act does not have territorial jurisdiction
over the acts alleged to have been committed in USA. He
distinguishes the decision of Sumeet Ninave (supra) by contending
that the decision in turn relies upon the decision in the case of Rupali
Devi (supra) which was concerned with the provisions of section 498A
of the IPC and does not deal with section 1(2) of the DV Act at all and
the decision in the case of Mohammad Zuber Farooqi (supra)
wherein it is expressly stated that the observations are prima facie in
nature and confined to the adjudication of the said decision and the
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3 judgment is the case of Hima Chugh (supra), which according to
the learned counsel for the applicant is per incuriam as it does not
notice the provisions of section 1(2) of the DV Act.
28. As regards the reliance placed by Mr. Kulkarni learned Amicus
Curiae on the decision in the case of Abhishek Jain v. Ruchi Jain
[2023 SCC OnLine Bom 1257] , he submits that the same is authored
by the same judge who authored the decision in the case of Sumeet
Ninave (supra) . He further distinguishes the decision of Robarto
Nieddu v. State of Rajasthan [2021 SCC Online Raj 4345] by pointing
out that the single act of domestic violence has taken place in
Jodhapur and there was no incidence of domestic violence overseas in
that case. As regards the decision in the case of Gajanan Parashram
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Rathod v. Surekha Gajanan Rathod [This Court in Crim. Revision
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Appl. (Aurangabad) No. 290 of 2018, decided on 24 January 2023]
he would contend that in that case there was specific report of the
protection officer which held that the domestic violence which was
committed. He also distinguished the judgment of the Apex Court in
Juveria Abdul Majid Patni v. Atif Iqbal Mansoori [(2014) 10 SCC 736]
and would contend that the facts of the case are clearly
distinguishable in as much as in that case the Apex Court has held that
since there was no divorce between the parties the domestic
relationship subsists and the wife was entitled to claim relief. He
submits that the discussion in the case of Juveria Abdul Majid Patni
(supra) from paragraph 18 onwards did not arise for consideration as
a reading of the opening words of paragraph 18 would indicate that
the same deals with a hypothetical case. He submits that to determine
as to whether the observations from paragraph no. 18 would
constitute ratio decidendi, inversion test as held in the case of State
of Gujarat v. Utility Users Welfare Association [(2018) 6 SCC 21] will
have to be applied and by applying this test, the observations of the
Apex Court in Juveria Abdul Majid Patni (supra) are obiter which is
not binding on this Court. He would further submit that the decision in
the case of Krishna Bhattacharjee v. Sarathi Choudhury [(2016) 2
SCC 705] specifically holds that the status of the parties is different
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after the decree of divorce is passed and the wife no longer remains
an aggrieved person. He would also distinguish the decision in the
case of Prabha Tyagi (supra) as the facts were completely different.
29. On the merits of the matter he would submit that respondent
no.1 has failed to prove the acts of domestic violence in USA. Pointing
out to the admissions given in the cross examination by respondent
no.1 he would contend that there are no Police Complaints nor
medical reports produced to show that she was assaulted by the
applicant in USA. He would further point out the admission given by
respondent no.1 that the allegations made in paragraph 6 to 8 in her
affidavit of evidence there is no police complaint or medical
certificate to support the allegations.
30. As far as the acts of domestic violence alleged in India, he would
submit that as regards being diagnosed delusional, the same is not
established as Doctor Vahia has not been examined as witness and
this aspect has not been corroborated by any other witness examined
on behalf of respondent no.1. He submits that the sole basis for
making allegation is the OPD receipt in respect of the consultation in
the year 2007 and there is no medical report produced to support the
case of the applicant being delusional. He submits that despite the
absence of documentary evidence corroborating the allegations of
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respondent no.1, the Sessions judge has accepted the same as a
proven fact. He would further submit that there is no admission by
the Applicant in his affidavit of evidence and in fact it is the specific
deposition that he was not diagnosed as per the medical protocol nor
was he asked to go for any treatment.
31. He would further submit that in respect of the other incident is
as regards the suffocation by pillow in May 2008 there is an admission
by respondent no.1 that she has neither filed any police complaint nor
produced any medical report in support of her contention. As regards
the change of locks he submits that the same cannot constitute an act
of domestic violence in view of the admission of respondent no.1 that
she visited the said flat for the first time after 2008 only in 2017. He
would submit that based on the same cause of action respondent no.1
has filed a partition suit which is pending in which the Court receiver
has been appointed and there is an order of injunction against the
applicant. He submits that the incident in question is purely civil in
nature for which respondent no.1 has exercised her civil rights.
32. On the issue of compensation of ₹3,00,00,000/- [Rupees Three
Crore only] granted, he would submit that there was no prayer for
award of compensation. Pointing out to section 22 of the DV Act,
governing the grant of compensation, he submits that there has to be
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a specific finding as regards the injuries, mental torture and emotional
distress which are caused by the acts of domestic violence committed
by the applicant. He would contend that the only finding on the
domestic violence is the change of locks for which awarding of
compensation of Rs.3,00,00,000/- is excessive. He submits that the
findings of appellate Court in paragraph 57 are not supported by any
material as to which were the acts of domestic violence continuously
from the year 1994 to 2017 when admittedly the parties have not
lived together since 2008.
On the issue of return of streedhan, he would contend that it is
33.
the own case of respondent no.1 that her streedhan is with the
mother of the applicant and the mother of applicant not being made a
party, no relief of return of streedhan can be granted qua the
applicant.
34. Without prejudice he submits that the deposition of the mother
of appellant will have to be appreciated against the factual
background of the mother being 79 years of age, not in a position to
understand the questions put to her. He submits that stridhan has
been awarded on the basis of solitary statements in the cross
examination of mother of the Applicant where the mother has said
that she identifies ornaments gifted to Jyoti during the marriage. He
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would further submit that the impugned order has not appreciated
the evidence adduced on behalf of the Applicant, i.e., the brother, the
uncle and the sister in law. Pointing out to the evidence adduced by
the applicant he would submit that the evidence of the sister in law
and uncle as well as the photographs which are produced on record
would show that the same jewellery is worn by other daughters in law
and thus the jewellery cannot be claimed as streedhan by respondent
no.1.
On the issue of maintenance he would submit that respondent
35.
no.1 is earning Rs 1,31,861/ per month apart from other benefits. To
substantiate that the Respondent No 1 is not required to be granted
monthly rentals, he would contend that the parties had jointly
purchased a flat at Gurgaon. Pointing out to the statements of
earnings and savings with AA Credit Union Exhibit-“61”, he would
st
contend that as on 31 December 2008 there was balance of
$159,943 of which the Respondent No 1 is a joint owner and the
retirement savings statement has come on record as Exhibit 31 which
shows the respondent no.1’s savings at $143,630 which is equivalent
to Rs 1.20 crores on which respondent no.1 is earning interest.
36. Relying upon the decision in the case of Rajnesh v. Neha
[(2021) 2 SCC 324] he would submit that there is no reason given as to
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what are other expenses incurred by respondent no.1 or loss suffered
by her as a result of the domestic violence and as there are no reasons
given as to any loss suffered due to destruction, damage or removal of
the property from the control of respondent no.1. Pointing out to the
decision of Rajnesh V Neha (supra) in paragraph no. 78, he submits
that the finding supports the case of applicant. In support he relies
upon the following decisions:
[a] Rupali Devi v. State of U.P. [(2019) 5 SCC 384];
[b] Mohammad Zuber Farooqi v. State of Maharashtra [2019
All MR (Cri) 4315];
[c] Juveria Abdul Majid Patni v. Atif Iqbal Mansoori [(2014)
10 SCC 736];
[d] Prabha Tyagi v. Kamlesh Devi [(2022) 8 SCC 90];
[e] Harbans Lal Malik v. Payal Malik [2010 (118) DRJ 582];
[f] Hima Chugh v. Pritam Ashok Sadaphule [2013 SCC OnLine
Del 1408];
[g] Harish Loyalka v. Dilip Nevatia [2014 SCC OnLine Bom
1640];
[h] Rajnesh v. Neha [(2021) 2 SCC 324];
[i] Arun Kumar Aggarwal v. State of M.P. [(2014) 13 SCC
707];
[j] State of Orissa v. MD. Illiyas [(2006) 1 SCC 275];
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[k] Divisional Controller KSRTC v. Mahadeva Shetty [(2003) 7
SCC 197];
[l] State of Gujarat v. Utility Users Welfare Association
[(2018) 6 SCC 21];
[m] Sumeet Ninave v. Himani Sumeet Ninave [2023 ALL MR
(Cri) 2198]
SUBMISSIONS OF MR. ASHUTOSH M. KULKARNI, LEARNED
AMICUS CURIAE :
37. Learned Amicus Curiae would submit that the object of DV Act
will have to be taken into consideration which is a beneficial
legislation. He would submit that section 2(a) and 2(f) of the DV Act
deals with the definition of aggrieved person and domestic
relationship which indicates that the requirement is that the parties
were living or had lived at any point of time together in a domestic
relationship which is satisfied in the present case as admittedly the
parties had resided together in a domestic relationship. Pointing out
to the definition of monetary relief in section 2(k) he would submit
that definition of monetary relief is linked to compensation under
section 22 of the DV Act. He would submit that there is no fixed strait
jacket formula to determine the amount of compensation which is to
paid and it is a recompense for the injuries caused by the acts of
domestic violence including mental torture and emotional distress. He
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would further summit that submissions of the learned counself
appearing for the revisional applicant would entail re-appreciation of
the evidence which is not permissible in revisional jurisdiction under
Section 397 of the CrP.C. Pointing out to the findings of trial Court
and appellate Court he would submit that there are concurrent
findings that case of domestic violence is being made out which is a
sine qua non for grant of relief. He submits that the applicant’s
evidence has been discarded and as such there is no challenge to the
evidence of respondent no.1-wife. He submits that in the cross
examination there is no specific suggestion given and there are only
general denials. He points out to the affidavit of evidence and submits
that oral deposition of respondent no.1 constitutes evidence and it is
not necessary that the same has to be corroborated with the
documentary evidence particularly in case of domestic violence. He
submits that the time gap between 2008 and 2017 has been
sufficiently explained by respondent no.1 as it is that the meetings
were held between the parties.He submits that the quantum of
compensation cannot be interfered in revisional jurisdiction.
38. He would contend that in the case of Prabha Tyagi (supra) the
Apex Court has gone one step further and has also considered the
past acts of domestic violence. He submits that there is subsisting
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domestic relationship as on the date of filing of the application and
rd
the decree of divorce was passed only on 3 January 2018. He submits
that from the year 2008 there is deprivation and as such the same was
taken into consideration while determining the quantum of
maintenance. He submits that there is no warrant to interfere with
the quantum of maintenance as the comparative incomes would
indicate the huge disparity and the respondent no.1 is entitled to the
same standard of living as that of the applicant.
On the issue as to the return of streedhan, learned Amicus
39.
Curiae would submit that the mother is not a stranger to the family
and although she is not made party to the proceedings, a direction can
be given to her to return the streedhan and it is the question of
execution which cannot be interfered with in the revisional
jurisdiction. On the issue of jurisdiction, learned Amicus Curiae points
out the provisions of section 27(2) of the DV Act which provides that
any order shall be enforceable throughout India. He submits that
section 1(2) read with section 27(2) would indicate the applicability of
the DV Act.
40. In support he relies upon the following decision:
Abhishek Jain v. Ruchi Jain [2023 SCC Online Bom 1257]
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SUBMISSION OF RESPONDENT NO.1-PARTY IN PERSON:
41. Respondent No.1 would submit that there is no illegality or
irregularity pointed out in the concurrent findings of fact. She
submits that it is necessary that on the date of filing of application,
the parties are required to be in domestic relationship as held by the
Apex Court in the case of Prabha Tyagi (supra) . She submits that the
Applicant has admitted that there was domestic relationship between
the parties from 1994 to 2008 and the time gap between 2008 to
2017 has been explained by reason of the meetings held to resolve
the issue. She submits that the trial Court and the Appellate Court has
dealt with the objections of maintainability, limitation and jurisdiction
and have negated the same. Pointing out to the order of trial Court,
she would submit that the Metropolitan Magistrate has merely
summarised the incidents. She submits that the Affidavit of Evidence
has set out in detail each and every incident which had taken place in
USA as well as India. She has taken this Court in detail through the
application under the DV act as well as the affidavit of evidence filed.
She submits that it is not a case of solitary incident of abuse but the
verbal emotional and physical abuse has continued throughout the
marriage. She would further submit that she was dispossessed from
the joint property of Meru Heights in the year 2017 subsequent to
which the case of domestic violence was filed. She submits that the
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applicant has remarried in the year 2019 in USA and as such there is
apprehension that the joint assets will be alienated.
42. She submits that the acts of domestic violence on foreign soil
has been dealt with by the learned single judge of this Court in the
case of Sumeet Ninave (supra) which has not been yet set aside and
the same constitutes law which is binding on this Court. As regards
the applicability of DV Act to the foreign citizens, she submits that in
case of Robarto Nieddu v. State of Rajasthan (supra) the parties
were Canadian nationals. She would further submit that the Courts in
Texas have not decided the issue of domestic violence as the
complaint was filed by the State of Texas and not by respondent no.1
and thus there was no adjudication.
43. On the issue of foreign decree of divorce being binding,
respondent no.1 submits that it is not necessary to go into the
conclusiveness of a foreign judgment, for the reason that the
th
application has been filed on 7 July 2017 and the decree of divorce
rd
has been granted on 3 January 2018.
44. On the aspect of stridhan , respondent no.1 has taken this Court
through the evidence of mother of applicant admitting that the
jewellery was gifted to the Applicant during her marriage and the
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jewellery is in possession of the Applicant’s mother. Pointing out to
the applicant’s case in the written statement and affidavit of evidence
that respondent no.1 has taken away all the stridhan at the time of
leaving her matrimonial house, she submits that it is the moral and
legal responsibility of revisional applicant to return her stridhan even
if the mother is not a party to the proceedings. She submits that no
such submission was raised before the trial Court or the appellate
Court and the same is being raised before this Court for the first time.
She submits that the mother of applicant had moved into Meru
45.
Heights flat about 20 months after the proceedings under the DV Act
was filed, only to deprive respondent no.1 of her rights in the said flat.
She submits that the refusal of financial support and changing the
locks of jointly owned property amounts to economic abuse. As
regards the contention that the applicant is being wrongly diagnosed
as delusional on the basis of single report, respondent no. 1 points out
the affidavit of evidence of the applicant in which there are
admissions as regards visit of the parties to Dr. Vihang Vahia and the
Applicant being diagnosed as delusional. Relying upon the decision of
this Court in the case of Banganga CHS Ltd v. Vasanti Gajanan
Nerurkar [2015 (4) ABR 639], respondent no. 1 submits that even if
the affidavit is discarded, the admissions made in the said affidavit can
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be used.
46. She submits that along with Exhibit 61, which is the statement,
a list has been tendered which has been referred to in the order of
magistrate and the same is not admitted in the evidence. On the issue
of compensation of ₹3,00,00,000/-. respondent no.1 submits that for
the period between 1994 to 2008 there has been a constant mental,
physical and emotional abuse; she has been abandoned without any
support and she has been residing with her mother since the year
2008. She submits that as there was no provision made by the
applicant for her maintenance and for her accommodation, there has
been an economic deprivation for a period of almost 15 years and, as
such, the compensation of ₹3,00,00,000/- has been rightly granted.
She summits that compensation can be linked to the income of
applicant.
47. In support of her submissions, she relies upon the following
decisions:
[a] Robarto Nieddu v. State of Rajasthan [ 2021 SCC OnLine
Raj 4345];
[b] Gajanan Parashram Rathod v. Surekha Gajanan Rathod
[2023 ALL MR (Cri) 1369];
[c] Banganga CHS Ltd v. Vasanti Gajanan Nerurkar [2015 (4)
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ABR 639];
[d] Shalini v. Kishor [AIR 2015 SC 2605];
[e] Saraswathy v. Babu [AIR 2014 SC 857];
[f] Sri. B. Vinod v. State of AP [Decision of AP High Court in
st
Crim. Rev. Case No. 2428 of 2018 dtd 31 December 2019];
[g] J. Karthikeyan v. R. Preethi [Decision of Madras High
th
Court in Cri. R.C. No. 675 of 2012, dtd. 19 June 2019];
[h] Sau. Aruna Omprakash Shukla v. Omprakash D. Shukla
[2021(3) Bom CR (Cri) 247].
SUR-REJOINDER BY MR. DESHMUKH
48. In sur-rejoinder Mr. Deshmukh would contend that it is not
necessary for a specific case to be put up to respondent no.1 in the
cross examination. He distinguishes the decision in the case of
Gajanan Parashram Rathod v. Surekha Gajanan Rathod (supra) as
the same is on a misreading of the decision of the Apex Court of
Prabha Tyagi (supra) . He submits that even if it is held that the
admissions in the discarded evidence can be considered there is no
admission on the part of applicant. Distinguishing the decision in the
case of Shalini vs Kishor (supra) he submits that in that case there
was no divorce and no argument of subsisting domestic relationship.
He submits that the acts committed overseas cannot be looked as the
applicability of DV Act is restricted to India. He submits that there is
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already a partition suit filed by respondent no.1 and the respondent
no. 1 has not been left remedy-less.
ANALYSIS AND REASONS:
49. I have considered the rival submissions and have minutely
perused the record.
50. The revisional jurisdiction of this Court has been invoked under
Section 397 of the Code of Criminal Procedure, 1973, which reads as
under :
“(1) The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself; to the correctness, legality
or propriety of any finding, sentence or order, recorded or
passed, and as to the regularity of any proceedings of such
inferior Court, and may, when calling, for such record, direct that
the execution of any sentence or order be suspended, and if the
accused is in confinement that he be released on bail or on his
own bond pending the examination of the record.
Explanation .---All Magistrates, whether Executive or Judicial, and
whether exercising original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge for the purposes of
this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not
be exercised in relation to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by
the other of them.”
51. The contours of the revisional jurisdiction under Section 397 of
Cr.P.C has been enunciated by the Apex Court in case of Sanjaysinh
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Ramrao Chavan vs Dattatray Gulabrao Phalke (2015) 3 SCC 123
where the Apex Court has held as under:
“ Unless the order passed by the Magistrate is perverse or the
view taken by the court is wholly unreasonable or there is
non- consideration of any relevant material or there is
palpable misreading of records, the revisional court is not
justified in setting aside the order, merely because another
view is possible. The revisional court is not meant to act as
an appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do justice
in accordance with the principles of criminal jurisprudence.
Revisional power of the court under Sections 397 to 401 of
Cr.PC is not to be equated with that of an appeal. Unless the
finding of the court, whose decision is sought to be revised, is
shown to be perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or where the decision is
based on no material or where the material facts are wholly
ignored or where the judicial discretion is exercised
arbitrarily or capriciously, the courts may not interfere with
decision in exercise of their revisional jurisdiction”
52. It is clear that the powers of revision are not meant to be
exercised as an appellate power unless the findings are so perverse or
untenable in law that the Court is bound to step in and exercise the
revisional jurisdiction to do substantive justice. Before proceeding to
deal with the submissions of the parties, it will be profitable to
examine the legislative intent behind enactment of the DV Act. The
Statement of Objects and Reasons describes that domestic violence is
undoubtedly a human rights issue and serious deterrent to
development. The phenomenon of domestic violence is widely
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prevalent but has remained largely invisible in the public domain. The
law was enacted to protect the constitutional rights of women and to
provide remedy under civil law which is intended to protect the
women from being victims of domestic violence and to prevent the
occurrence of domestic violence in the Society.
53. For the first time, a beneficial legislation has recognised and
defined “Domestic Violence” , a violence which usually occurs within
the four walls of the house and rarely finds a voice or is addressed. To
use the metaphorical idiom, the elephant in the room has been
addressed by this legislation. It is well known that acts of domestic
violence transcends all strata’s of society. The DV Act provides for
civil remedies of residence orders, protection orders, compensation,
monetary relief etc to the aggrieved person. The Act provides for
appointment of protection officers and registration of non
governmental organisations as service providers for providing
assistance to the aggrieved person. An expansive definition is given
under Section 3 of DV Act to “domestic violence” to encompass not
only physical abuse but also sexual abuse, verbal and emotional abuse
and economic abuse. The definition of domestic relationship takes
within its fold even a relationship between two persons in nature of
marriage. While interpreting the provisions of the DV Act, considering
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the beneficial nature of legislation an interpretation which will further
the object of the DV Act will have to adopted.
54. With this background, the submissions of the parties will have
to be appreciated. Mr. Deshmukh, learned counsel for the revisional
applicant has advanced submissions on law as well as on facts. I shall
firstly deal with the legal submissions raised in the case as the same
pertains to the jurisdiction of the Court to entertain the DV
application in the first place. The conspectus of the legal submissions
advanced by Mr. Deshmukh can be broadly stated as under:
(A) There is no subsisting domestic relationship for the
reason that the parties were residing separately since the year
2008.
rd
(B) By reason of passing of decree of divorce on 3 January,
2018 by the USA Court, as on the date of passing of the
impugned judgment by the Magistrate there was no domestic
relationship.
(C) In view of section 1(2) of the DV Act which extends the
applicability of the Act to the whole of India except the State
of Jammu and Kashmir read with section 27 of the DV Act
which gives the jurisdiction to the magistrate, the Act does not
have extra-territorial jurisdiction and the acts of domestic
violence committed on foreign soil, cannot be taken into
consideration while adjudicating the DV application.
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55. The other submissions of Mr. Deshmukh, would be subsumed in
the above broadly summarised submissions.

The first submission is that by reason of long standing
56.
separation since the year 2008, there is no subsisting domestic
relationship. It will be relevant to have a look at the definition of
domestic relationship as defined under section 2(f) of DV Act, which
reads thus :
(f) "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;
57. Thus, domestic relationship is defined to mean 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 marriage.
The words “ or have lived at any point of time together ” assumes
considerable significance as the residence together is not required to
be in praesenti but extends to past residence. The contention of Mr.
Deshmukh is that the words have to be interpreted in a meaningful
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manner to have a reasonable nexus with cause of action and
consequent filing of DV Application. To put it simply, Mr. Deshmukh
interprets the words “ or have lived at any point of time together” to be
referable to a point of time in close proximity to the filing of
application under the DV Act.
58. This issue came up for consideration of the Apex Court in the
case of Shalini vs. Kishor (supra). In the facts of that case, the
complaint was made 15 years after the couple had started residing
separately. The parties were married in the year 1990 and the wife
was driven out of the matrimonial house in the year 1992. In the year
1994 an application for maintenance was made and after coming into
force of the DV Act, the application under section 1(2) of the DV Act
was made in the year 2007. An identical contention was raised on
behalf of the husband that parties were admittedly not living
together for a period of 15 years and there is no question of shared
household in case where parties are residing separately for a long
time. The Apex Court considered various provisions of the DV Act and
noted its earlier decision in V D Bhanot vs. Savita Bhanot [2012(3)
SCC 965 ] as well as the decision in the case of Saraswathy vs. Babu
[(2014) 3 SCC 712] where the wife was driven out of the matrimonial
house about 14 years before the complaint was filed and it was held
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that the conduct of the parties prior to the coming into force of DV
Act can be taken into consideration while passing the order. When the
dictum of the Apex Court is that even acts of domestic violence
committed prior to the coming into force of DV Act can be taken into
consideration, the submission of Mr. Deshmukh that separation of
period of 9 years would end the domestic relationship is liable to be
rejected. The judicial pronouncement is also in consonance with the
legislative intent manifested in the provisions of DV Act which
empowers grant of monetary reliefs, compensation and damages for
the injuries including mental torture and emotional distress caused by
acts of domestic violence committed by the Respondent. As there is
an element of recompense for the mental torture and emotional
distress, the period of long separation cannot enure to the benefit of
the Respondent alleged to have committed the acts of domestic
violence. I am therefore not inclined to accept the submission of Mr.
Deshmukh that there has to be reasonable nexus referable to the
time period between the acts of domestic violence and the relief
granted.
59. Distinguishing the judgment in Shalini (supra) Mr. Deshmukh
would contend that in that case the divorce was stayed by the
appellate Court. The matter is of no relevance in as much as in the
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present case before the decree of divorce could have been granted
the application under the DV Act was filed and on the date of filing of
application under the provisions of DV Act the parties were in a
domestic relationship.
60. Mr. Deshmukh would attempt to distinguish the decision in the
case of V D Bhanot (supra) as in that case the parties were living
together till the year 2005 when the DV Act came into force in the
year 2006 and the DV application was filed in November 2006.
Similarly, Mr. Deshmukh would distinguish the decision in the case of
Saraswathy (supra) that in the facts of that case the petition for
restitution of conjugal rights was filed by wife in the year 2001
signifying her intention to continue to be in domestic relationship
with her husband and as there was a breach of maintenance and
residence order, the Apex Court has held that there was continuation
of domestic violence. He would further contend that the Apex Court
did not decide the question whether the incident of domestic violence
prior to the coming into force of DV Act could be considered. I am
unable to read the decisions of Apex Court as desired by Mr.
Deshmukh. In the case of Saraswathy (supra) the primary question
which was for consideration before the High Court was whether the
acts committed prior to the coming into force of the DV Act could
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form the basis of an action. The High Court held that what constituted
domestic violence was not known until the passage of the Act and
could not have formed the basis of complaint of commission of
domestic violence. The Apex Court held in paragraph 13 that there
was continued domestic violence and it is therefore not necessary for
the Courts below to decide the issue whether the acts of domestic
violence committed prior to the enactment of DV Act falls within the
definition of domestic violence. Pertinently the Apex Court noted the
decision of V.D. Bhanot (supra) and held in paragraph 15 that the
High Court made an apparent error in holding that the conduct of the
parties prior to the coming into force of PWD Act, 2005 cannot be
taken into consideration while passing an order.
61. The Apex Court in the case of Krishna Bhattacharjee (supra)
has held that upon decree of divorce being passed, there is severance
of status. The fact remains that in the present case at the time of
filing of the application by the Respondent No 1 the decree of divorce
had not been granted. If the contention of Mr. Deshmukh is accepted
that the domestic relationship should continue till the passing of the
judgment, there is possibility of unscrupulous litigant delaying the DV
proceedings and in the interregnum seeking decree of divorce
frustrating the DV proceedings. Interpreting the definition as desired
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by Mr. Deshmukh would defeat the legislative intent.
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62. The admitted factual position is that on 7 July 2017 the DV
application was filed by the respondent no.1 on which date the
marriage was subsisting although the application for divorce was
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filed. The decree of divorce was granted subsequently on 3 January
2018. The submission that the trigger for DV proceedings was the
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receipt of summons by respondent no.1 on 15 May 2017 from the
USA Court is of no consequence as on the date when the application
under DV Act is filed there was a subsisting domestic relationship. It is
not necessary that the domestic relationship should continue till the
judgment in DV proceedings is delivered. As such it is not necessary
to go into the issue whether the decree of divorce was validly granted
by the USA Court and would have any relevance in view of section 41
of the Indian Evidence Act.
63. Coming to the submission that the DV Act does not have an
extra territorial jurisdiction / operation in view of section 1(2) of DV
Act, the provisions of section 1(2) of DV Act extends the applicability
of DV Act to the whole of India except the State of Jammu and
Kashmir. Section 1(2) of DV Act has to be read along with section 27
of DV Act which gives jurisdiction to the magistrate to grant orders
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under the DV Act and to try the offences under the DV Act within his
local limits when :
[A] the person aggrieved permanently or temporarily
resides or carries on business or is employed; or
[B] Respondent resides or carries on business or is
employed; or
[C] the cause of action has arisen.
64. The said provisions were interpreted by the Learned Single
Judge of this Court in Sumeet Ninave (supra) . An identical contention
was raised as regards the applicability of DV Act in view of section 1(2)
and section 27 of the DV Act considering that the acts of domestic
violence were alleged on foreign soil, in that case in Germany. In that
case, the aggrieved person had thereafter left Germany and was
residing at Nagpur where the application under Section 12 of DV Act
was filed. The Learned Single Judge held in paragraph 9 as under :
“In order to appreciate the rival submissions, I have gone
through the record and proceedings. I have also gone through
the judgments relied upon by both the parties. It is true that
as per Section 1 of the D.V. Act, the D.V. Act extends to the
whole of India except the State of Jammu and Kashmir. It does
not extend beyond the limits of India. The question therefore,
is whether for the domestic violence caused to the aggrieved
person on the foreign soil can be taken cognizance of by the
Court of Magistrate in India at any of the places provided in
clause (a) to (c) of Section 27. It is to be noted that subsection
1 and Section 27 of the D.V. Act will have to be harmoniously
construed. The DV Act is a social beneficial legislation. The
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object and intention of the legislature behind this enactment is
writ large from the statement of the object and reasons of the
Act. Section 27 of the Act provides for the jurisdiction of a
Court of Magistrate of First Class or Metropolitan Magistrate
to entertain the application under this Act. The provisions of
Section 27(1)(a) and (b) are applicable irrespective of the place
of cause of action. It is to be noted that clause (a) and (b) of
Section 27(1) of the D. V. Act has, therefore, no direct nexus or
co-relation with the place where the domestic violence was
actually caused. In my view, these two clauses namely (a) and
(b) of sub section (1) of Section 27 have to be harmoniously
construed with sub section 1 of Section 27 of the Act. If it is so
done then it would show that the law makers were mindful of
such a situation and therefore, Section 27 have been worded in
this form. It therefore goes without saying that though
the Domestic Violence Act extend to the whole of India as
provided under Section 1 of the D.V. Act, the domestic violence
caused on the foreign soil could also be taken cognizance by
invoking Section 27 (1) (a) and (b).”
65. After interpreting section 1(2) read with section 27 of the DV
Act, the Learned Single Judge considered the decisions in the case of
Rupali Devi (supra), Mohammad Farooqi (supra) and Hima Chugh
(supra) in support of the view taken by the Learned Single Judge. The
judgment in the case of Sumeet Ninave (supra) is sought to be
distinguished by Mr. Deshmukh by contending that the decision of
Sumeet Ninave (supra) had based its conclusion on above referred 3
decisions which in fact have no application as in the case of Rupali
Devi (supra) the provisions of section 498A of the IPC were
considered; in the case of Mohammad Farooqi (supra) , it was
expressly stated to be prima facie in nature and confined to the
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adjudication of said writ petition; and the decision in Hima Chugh
(supra) was per incuriam since it did not notice the provisions of
section 1(2) of DV Act. The reading of the decision in Sumeet Ninave
(supra) would indicate that the Learned Single Judge has interpreted
the provisions of DV Act and held that though the DV Act extends to
the whole of India the domestic violence caused on foreign soil could
also be taken into consideration by invoking section 27(a) and (b) of
the DV Act. Evidently, the Learned Single Judge has not merely
followed the above referred 3 decisions without any findings of its
own, but, after interpreting the provisions of DV Act has noted the
above referred 3 decisions. The Learned Single Judge has drawn an
analogy from the observations in those 3 decisions and held that the
consequence of trauma, suffering and distress carried by the
complainant to her parental home would be sufficient to reject the
submissions advanced by relying upon section 1 of the DV Act. The
Learned Single Judge had further answered the issue of jurisdiction in
favour of the aggrieved person. In my view, the interpretation which
has been placed by the Learned Single Judge is in tune with the
advancement of the stated object of DV Act. Considering that the
decision of this court in Sumeet Ninave (supra) is of coordinate bench
of equal strength, I am respectfully bound by the said decision. There
are no submissions advanced so as to impress this court to take a
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different view from what has been held by the Learned Single Judge
in Sumeet Ninave (supra) . Judicial discipline demands that law laid
down by the bench of equal strength should be followed by the latter
bench. As such the submission that the DV Act does not have the
extraterritorial jurisdiction as some of the incidents of domestic
violence had taken place on foreign soil cannot be countenanced.
66. In support of the submission that there was subsisting domestic
relationship, judgment of the Apex Court in the case of Juveria Abdul
Majid Patni (supra) relied upon by the trial Court and the appellate
Court was sought to be distinguished by Mr. Deshmukh. In the case of
Juveria Abdul Majid Patni (supra) the Apex Court has held that the
act of domestic violence once committed, subsequent decree of
divorce will not absolve the liability of husband from the offence
committed or to deny the benefit to which the aggrieved person is
entitled under the DV Act. In the facts of that case the aggrieved
person had alleged domestic violence between the year 2006 and
2007 and had lodged FIR under section 498A of the Indian Penal Code.
The wife claimed that she had obtained ex-parte Khula under the
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Muslim Personal Law on 9 May 2008 which was challenged by the
husband before the family Court and in response the husband had
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also filed a petition for restitution of conjugal rights. On 29
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September 2009, the DV application was filed by the wife. In that case
the Apex Court had gone into the validity of Khula and had held that
in the absence of pleadings, evidence and findings, it cannot be said
that the divorce had taken place. Proceeding further, the Apex Court
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has presumed that even if the divorce was obtained on 9 May 2008,
the issue was considered whether the erstwhile wife can claim one or
the other reliefs under the DV Act if the domestic violence had taken
place when the wife lived together in shared household with the
husband through the relationship in the nature of marriage. Mr.
Deshmukh would contend that observations from paragraph 18 of
said judgment cannot be considered as ratio decidendi by applying the
inversion test which doctrine provides that if the text is removed from
the judgment the discussion would not make any difference to the
ratio in decision in Juveria Abdul Majid Patni (supra) . He would
therefore submit that paragraphs are merely obiter which are not
binding on this Court.
67. In that case the aggrieved person claimed to have obtained ex
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parte “ khula ” from the Mufti under the Muslim personal law on 9
May, 2008 and had thereafter filed the petition under Section 12 of
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DV Act on 29 September, 2009. Considering the facts of the present
case, the issue as to whether after the grant of decree of divorce the
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erstwhile wife can claim relief does not arise for consideration for the
simple reason that the application under DV Act was filed prior to the
decree of divorce being granted. These facts would make all the
difference as on the date of filing of application under DV Act there
was subsisting domestic relationship and no authority has been shown
to support the proposition that the domestic relationship should
continue till the adjudication of proceedings under the DV Act.
Whether the inversion test is to be applied to find out the ratio in the
case of Juveria Abdul Majid Patni (supra) is irrelevant as the factual
scenario in the present case is different from what has been
considered by the Apex Court in Juveria Abdul Majid Patni (supra) .
Even dehors the ratio laid down in Juveria Abdul Majid Patni (supra),
in the present case there was a subsisting relationship at the time of
filing of application under the DV Act and the subsequent decree of
divorce would not take away the right of aggrieved person to claim
reliefs under the DV Act.
68. Having answered the legal submissions raised on behalf of the
parties, merits of the matter will have to be looked into to decide the
correctness of findings rendered by the courts below. In the
application filed under DV Act in July 2017 the following reliefs are
sought :
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“a) That this Hon’ble Court be pleased to direct
Respondent to restore possession of aggrieved person and
allow her free ingress and egress in their matrimonial home
at 503 Meru Heights, 208 Telang road, Matunga, Mumbai
400019, and aggrieved person be permitted to stay in the
said flat till the time suitable alternate accommodation is
provided to her;
b) That this Hon’ble Court in the alternative to prayer
clause (a) be pleased to direct Respondent to provide
separate equivalent accommodation equivalent to their
matrimonial home in Matunga, Mumbai with all basic
amenities;
c) That this Hon’ble Court be pleased to restrain the
Respondent from creating third party rights or disposing of
or dealing in any manner with respect to their matrimonial
home i.e. flat at Meru Heights, 268, Telang road, Matunga
Mumbai 400019 during the pendency of this Application;
d) That this Hon’ble Court be pleased to direct the
Respondent to pay the aggrieved person Rs. 2,50,000/- per
month towards the monthly maintenance to enable her to
live in the status and standard commensurate with the
respondent;
e) Ad-interim and interim orders in terms of prayer
clause (a) (b) and (c) above be granted;
f) That this Hon’ble Court be please to direct the
Respondent to pay to the aggrieved person Rs.5,00,00,000/-
(Rupees five cores only) towards compensation and for
reimbursement of her expenses during their separation;
g) That this Hon’ble Court be pleased to direct the
Respondents to pay to the aggrieved person Rs.1,50,000/- as
an by way of litigation and other miscellaneous expenses;
h) Ad-interim and interim orders in terms of prayer
clause (f) & (g) be granted to the aggrieved person;
i) Cost of this application be provided for;
j) Any other further reliefs as this Hon’ble Court deems
fit and proper.”
69. Subsequently, by way of an amendment protection order was
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sought as also the relief of return of stridhan . It was contended by
learned counsel for the Revision Applicant that there is no prayer for
any protection order under Section 18 of DV Act which is sine qua non
for filing any application under DV Act. The submission overlooks the
varied reliefs which can be granted under Section 18 of DV Act.
Protection orders can be sought against committing any act of
domestic violence, which is defined under Section 3 of DV Act to
include a case of economic abuse i.e. alienation of assets in which the
aggrieved person has an interest or is entitled to use by virtue of
domestic relationship. The shared household at Meru Heights is
owned jointly by the Revision Applicant and the Respondent No 1.
Section 18(e) provides for issuance of protection orders prohibiting
the Respondent from alienating any assets and the application in fact
seeks necessary protection orders under Section 18 of DV Act.
ACTS OF DOMESTIC VIOLENCE:
70. The submission advanced is that the Respondent No 1 has not
proved the acts of domestic violence either in USA or in India. As
discussed above, the scope of interference in revision application is
extremely narrow and in revision this Court is required to consider the
record only for satisfying itself about the legality and propriety of the
findings and it is not permissible to substitute its own conclusions. The
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evidence on record is therefore considered only for examining the
legality and propriety of the findings.
71. The pleading allege the domestic violence in USA for the period
from 1994 to 2006 and from 2006 to 2008 in India. The Applicant has
deposed in detail about the physical assault as well as the verbal and
emotional abuse caused by casting aspersions on her character during
their stay in USA which is corroborated by her mother, brother and
Uncle. Learned Counsel for the Applicant has only pointed out the
admission in the cross examination of the Applicant there are no
medical records or police report to show the incidents of domestic
violence. The evidence of the Respondent No.1 has not been shaken
in the cross-examination. Apart from the oral evidence adduced by
the Respondent No 1, the vital piece of evidence is the admitted
position of passing of the conditional dismissal order by State of Texas
as regards incident of assault in the year 1999 in USA. The documents
which are relied upon by the Applicant himself are sufficient to
establish the case of physical assault of such gravity that the
neighbours were prompted to call the police officials and get the
Applicant arrested. Apart from the verbal abuse suffered by the
Respondent No 1, this one incident is sufficient to establish the case
of physical assault.

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72. Now, coming to the acts of domestic violence committed in
India, respondent no.1 has deposed that the verbal abuse as to her
character assassination by the applicant by alleging illicit relationship
with other men which even included the vegetable vendors continued
even in India. She has further deposed about the incident which has
taken place in August-September 2007 where the applicant abused
the respondent no.1 of having illicit relationship with her brother’s
friend. She has also deposed about the emotional abuse she had
faced by reason of not being able to conceive as also the incident
which had taken place In May 2008 where the applicant physically
assaulted her and tried to suffocate her with the pillow. Although as
regards the incident which had taken place in May 2008, respondent
no.1 had not filed any police complaint, there is evidence of the
mother of respondent no.1 who had come to fetch her after the
incident and saw blood on the bedsheet and the state of respondent
no.1. Considering the evidence, trial Court and appellate Court have
rightly held that respondent no.1 was subject to acts of domestic
violence at the hands of the applicant. Respondent no.1 had deposed
that during this period, a psychiatrist was consulted who had
diagnosed the applicant as suffering from delusional disorder. This
aspect is sought to be attacked by Mr. Deshmukh by contending that
there is no material produced on record and neither the concerned
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psychiatrist has been examined as a witness. Respondent no.1 who
appears in person has pointed out the affidavit of evidence tendered
by the applicant which has been discarded in which it has been
admitted by the applicant that he had visited the psychiatrist and
contrary to the established psychiatric procedure, the said doctor had
pronounced the incorrect diagnosis based on a single visit. As such
there is an admission on the part of applicant about the visit to
psychiatrist as well as his diagnosis by the psychiatrist. As held by this
Court in Banganga CHS Ltd (supra) even if the evidence is discarded,
the admissions made in the Affidavit can be used.
73. In the cross examination all that is sought to be brought on
record is that there are no police complaints and no medical record. In
cases of domestic violence, it is not necessary that the acts
complained of are required to be substantiated by documentary
evidence in form of medical records or police reports. It is well known
that as the marriage is subsisting, more often than not there is no
police complaint filed and the physical abuse may not be to such an
extent so as to require hospitalization, in which case the medical
record would substantiate the abuse. It needs to be noted that
although the provisions of Cr.P.C govern the proceedings, the
remedies are civl remedies and the usual standard of proof beyond
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reasonable doubt applicable to criminal offence is not required to be
applied. Considering that even verbal or emotional abuse constitutes
domestic violence, the deposition of respondent no.1 establishes that
apart from the physical abuse there was emotional and verbal abuse
at the hands of the Applicant. It is well known that abuse in a
matrimonial relationship usually occurs within four walls of the house
and is confined to the two parties. It is very rarely that such incidents
occur in presence of eye witnesses and the evidence has to be
accordingly assessed. I do not find any infirmity in the findings of the
Courts which have rightly appreciated the evidence to come to a
finding of domestic violence.
74. Reliance has rightly been placed by the Respondent No 1 in
decision of this Court in Aruna Omprakash Shukla v. Omprakash
Devanand Shukla (2021 SCC Online Bom 1292) , where it was held
that in cases of domestic violence, it is often found that the wife does
not immediately rush to the police when inflicted with physical,
mental, physiological and economic abuse and even if such person
suffers injuries they would not necessarily keep medical records of the
same.
MAINTENANCE:
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75. The contention is that respondent no.1 has adequate funds of
her own and is not entitled to maintenance. The admitted position is
that the evidence of applicant was discarded and only the material
produced by the Respondent No 1 was before the Courts. The trial
Court has considered the monthly income of respondent no.1 which is
about ₹1,31,861/- and has considered the income tax returns of
applicant which disclosed that in the year 2008-2009 the annual
income of applicant was ₹85,00,000/-. The trial Court considered the
Applicants investment statement of AA Credit Union which shows
that the applicant has a considerable investments in shares. After a
comparative analysis, the maintenance of Rs.1,50,000/- per month has
been granted to respondent no.1. The only submission is that
respondent no.1 is having sufficient earnings of her own as
demonstrated from the document at exhibit 61 and therefore she is
not entitled to maintenance. According to Mr. Deshmukh as per the
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statement of savings of respondent no.1 as on 8 November, 2017 the
Respondent’s savings are US$ 143,630/ equivalent to ₹1.20 crore, on
which interest at the rate of 14.8% is being earned by respondent
no.1. The submission overlooks the position that even if the
Respondent No 1 was earning, she is entitled to the same standard of
living as that of the Applicant. In her evidence, the Respondent No 1
has deposed about the estimated salary of the Applicant being at US$
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3,00,000/ annually. Learned Counsel for the Applicant has not pointed
out from the cross examination any challenge to the said deposition
on income.
Considering that in the year 2008-2009, the applicant was
76.
having an annual income of ₹85,00,000/-, which over a period of time
must have increased in the usual course and in absence of any
evidence brought on record by the applicant to show his present
income, the monthly income of ₹1,31,861/- earned by respondent
no.1 and even the retirement savings investment at Exhibit 61, the
sum of ₹1,50,000/- per month as maintenance cannot be stated to be
excessive. In order to show that the same is excessive it is necessary
for the applicant to demonstrate the comparative incomes and assets
on record. As there was no contemporaneous document of income of
the Applicant on record, an element of guesswork was incorporated
by the Trial Court by considering that the income of applicant in the
year 2008-2009 was about ₹85,00,000 per annum and considering that
by the passage of time it must have definitely increased. The
Respondent No 1 has rightly pointed the assets of the Applicant set
out in the divorce decree which is sufficient indicator of the income of
the Applicant. The thrust of the submission of learned counsel for the
Applicant is to show that the Respondent No 1 is having source of
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income. It is settled that the same does not ipso facto dis-entitle the
Respondent No 1 from grant of maintenance. There is nothing to
demonstrate perversity in the findings of the Trial Court and
Appellate Court on grant of monthly maintenance of Rs 1.50 lakhs.
COMPENSATION:
77. Compensation of Rupees Three Crores (Rs.3,00,00,000/-) has
been granted by the trial Court which has been upheld by the
appellate Court. The provisions of section 22 of the DV Act govern
the grant of compensation which reads thus:
“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.”
The grant of compensation is in addition to the other reliefs
which may be granted. Compensation is to be granted for the injuries
including mental torture and emotional distress caused by the acts of
Respondent. The amount is granted as a recompense not only for the
physical injuries but also for mental torture and emotional distress. So
how does one quantify the compensation to be granted for mental
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torture and emotional distress. For obvious reasons there cannot be a
strait jacket formula applicable to all and the quantum will differ
according to the facts of each case. In my view, while determining the
quantum of compensation, one of the factors which can be considered
is the impact of the acts of domestic violence on the aggrieved
person. Although the abuse will necessarily result in mental torture
and emotional distress for the aggrieved person, the gravity will differ
from person to person. In the present case admittedly both the
parties are well educated and highly placed in their workplace and in
social life. That being the social standing, the acts of domestic
violence would be greater felt by the Respondent No 1 as it would
affect her self worth. This is not to be interpreted to mean that the
aggrieved person from other walks of life will not be impacted by the
domestic violence suffered by them. The cumulative effect in facts of
each case will also have to be taken into consideration. Mr. Deshmukh
is not right in contending that only finding of domestic violence is
change of locks. The finding is that the Respondent No 1 has been
subjected to physical, economic, mental and emotional abuse. That
she has to reside with her mother for 9 years. That the Applicant left
the Respondent No 1 and went to USA without making any provision
for her. In the present case, there is a marriage of the year 1994. The
trial court has rightly held that the Respondent No 1 can be said to be
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left without any future prospects as regards her personal life having
suffered domestic violence since the year 1994 till 2008.
78. The Trial Court has granted the compensation considering the
entire facts and circumstances and has decided the quantum by
considering the status of the parties and income. Learned Amicus
Curiae has interestingly justified the quantum by pointing out that
since 2008, the Respondent No 1 is without any maintenance and even
if the sum of Rs 1,50,000/ per month is considered, the same would
amount to Rs 2,70,00,000/ which is just, fair and reasonable.
Considering the facts of the present case, the justification of the
quantum according to the formula devised by learned Amicus Curiae
cannot be faulted.
79. The Respondent No 1 has rightly placed reliance on decision of
Madras High Court in J.Karthikeyan vs R.Preethi (supra), where the
Madras High Court has considered that the husband therein was
working as software engineer in Singapore in the year 2008 itself and
has not produced any proof to show his monthly income and thus the
Court cannot interfered with the award passed by the Courts below. I
find myself in agreement with the observations of the Madras High
Court.
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80. The submission of Mr. Deshmukh is that in absence of any
prayer under section 18 of the DV Act, the award of compensation is
unjustified. I have already discussed the said aspect hereinbefore. It
is not necessary that the relief in respect of each and every clause of
section 18 clauses (a) to (f) of the DV Act should be sought. As far as
the quantum of compensation is concerned the provisions of DV Act
do not lay down any strait jacket formula for computing the same and
the same has to be ascertained by taking into consideration the entire
facts and circumstances of case. The trial Court on an assessment of
entire facts and circumstances of the case has held that respondent
no.1 was entitled to compensation and has decided it on the basis of
income of applicant which in the year 2008-2009 was about
₹85,00,000/-.
The quantum of compensation has been assailed on the ground
81.
that only finding on the domestic violence is the change of locks. The
submission emanates from misreading of the judgments of trial Court
as well as appellate Court. The trial Court has considered in detail the
acts of domestic violence committed by the applicant and the
evidence which has come on record and on assessment of the entire
facts and circumstances of the case held that the applicant has
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committed the acts of domestic violence continuously from the year
1994 to 2017 and has subjected respondent no.1 to physical,
economic, mental and emotional abuse. It was further held that the
respondent no.1 has to stay with her mother for 9 years and there is
no provision for her maintenance made by the applicant. As such it
cannot be said that finding on the domestic violence is based only on
the allegation of the change of locks. The acts of domestic violence
have been considered cumulatively to arrive at the quantum of
compensation. The finding is clearly supported by the evidence on
record and as such in exercise of revisional jurisdiction , I am not
inclined to interfere with the finding.
RETURN OF STREEDHAN:
82. The submission is that the award of stridhan is only on the basis
of a solitary statement in the cross examination of mother of
applicant that she identifies the ornaments gifted to respondent no.1
during her marriage. This is sought to be nullified by pointing out the
deposition of mother of applicant that she is not aware as to the case
in which she is giving evidence and she is not aware as to on whose
instructions her affidavit was prepared and neither is she aware of the
fact where the jewellery is kept. The applicant had himself examined
his mother in support of his case. It is now too late in the day to
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disown the admissions given by his mother in her evidence. The
applicant’s mother had specifically admitted that jewellery was gifted
to respondent no.1 during her wedding. The other witnesses were
examined on behalf of applicant to salvage this situation by deposing
that the translation was not correct from Kutchi to English and in fact
what the mother meant to say is that jewellery was loaned to
respondent no.1. Admittedly, after the evidence was led no
application has been made to correct the translation of the deposition
of mother of applicant from Kutchi to English and the evidence now
forms part of judicial record which has been transcribed as having
identified the jewellery in the photographs as well as identifies the
same as gifted to respondent no.1.
83. What is next sought to be contended is that stridhan is with the
mother in law and the mother in law not being made party, no
direction could be given to the applicant to return the the stridhan.
The trial Court has considered the evidence of mother in law where
she has given an admission regarding the possession of jewellery and
the same being kept in bank locker at Mumbai. Although the trial
Court has held that the jewellery is in possession of mother of
applicant, it needs to be noted that the same is kept in bank locker in
Mumbai and there is no material to show as to in whose name the
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bank locker is standing. On one hand, one of the witnesses, that is,
the uncle of applicant has stated that jewellery in his possession, on
the other hand the other witnesses are saying that jewellery is in
possession of the mother of applicant. In the cross examination, the
Applicant’s mother has deposed that when she was staying in Breach
Candy, her bank locker was in Breach Candy and she does not
remember the name of bank in Matunga where they have locker. She
has further identified the jewellery as being gifted to respondent no.1
during her marriage and also admitted that the ornaments are kept in
Mumbai in bank locker. The evidence of applicant’s mother assumes
importance as the evidence does not indicate that jewellery is in her
possession but all that she has stated that jewellery is kept in Mumbai
in a bank locker. There is no material produced on record to show the
jewellery is kept in which locker in which bank and in whose
possession. In the absence of any such material being on record, the
trial Court has rightly directed respondent no.1 to return the jewellery
to respondent no.1. It is nobody’s case that there are any strained
relationship between the applicant and his family members and as
such the jewellery is not in his possession but is in possession of his
family members. All that the evidence shows that the jewellery is in
Mumbai in bank locker and as such the direction has been rightly given
to the applicant to return the jewellery.
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84. According to Mr. Deshmukh the dispute is entirely a civil dispute
for which an appropriate step has been taken by respondent no.1 by
filing a partition suit. It needs to be noted that as per the provisions
of section 36 of DV Act, the provisions of DV Act are in addition to and
not in derogation of any other law for the time being in force. The
fact that recourse has been taken by respondent no.1 to other
proceedings would not deviate from the fact that on the basis of
evidence respondent no.1 has established a case of domestic violence.
For the purpose of grant of other reliefs domestic violence is sine qua
non . Once the same has been established by respondent no.1, other
reliefs will follow. In the present case reliefs of maintenance, rent,
compensation and return of stridhan has been granted.
85. As regards the submission that there is no specific finding as to
which are the acts of domestic violence continuously from 1994 to
2017, the evidence on record clearly demonstrate the acts of
domestic violence which are committed in India as well as in USA. The
domestic violence also includes an aspect of economic abuse, which
also takes within its fold the deprivation of stridhan of aggrieved
person. Considering that it has come on record that the stridhan of
respondent no.1 is in bank locker as well as respondent no.1 has been
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Cr Rev 234-23 ( Jud).doc
deprived of the use of shared household and no provision was made
for the maintenance of respondent no.1 till the adjudication of
application, the acts of domestic violence continued from 1994 to
2017. The trial Court has come to a finding based on the discussion
that there were continuous acts of domestic violence from 1994 to
2017, which cannot be faulted with.
86. Having regard to the discussion above, I don’t find any reason in
exercise of revisional jurisdiction of this court, to interfere with the
impugned judgment and order. Revision Application stands
dismissed. Rule is discharged.
87. I must record my appreciation for the invaluable assistance
rendered by Learned Amicus Curiae- Advocate Ashutosh Kulkarni, who
has taken immense efforts to assist this Court.
[Sharmila U. Deshmukh, J.]
88. At this stage, request is made for continuation of interim relief.
Considering that the stay results in staying the order of grant of
maintenance and compensation, I am inclined to extend the interim
relief only for a period of two weeks.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) of 70 70
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 22/03/2024 20:37:48