Jayasankar S.S. v. State of Kerala and Ashna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **FRIDAY, THE 22[ND] DAY OF APRIL 2022 / 2ND VAISAKHA, 1944** **CRL.REV.PET NO. 1305 OF 2017 AGAINST THE JUDGMENT IN CRA 200/2015 OF II ADDITIONAL** **SESSIONS COURT,KOLLAM** **MC 22/2013 OF CHIEF JUDICIAL MAGISTRATE ,KOLLAM** ## **REVISION PETITIONERSS/APPELLANTS/RESPONDENTS:** - 1 JAYASANKAR S.S, AGED 37 YEARS, S/O. SUDHAKARAN, 'SUDHAKAR'E-33,TC7/1336,ARCHANA NAGAR,PONGUMMOODU, MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM - 2 SUDEVI, AGED 64 YEARS,W/O. SUDHAKARAN,'SUDHAKAR'E33,TC7/1336,ARCHANA NAGAR,PONGUMMOODU, MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM BY ADV MAJIDA.S ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** - 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031 - 2 ASHNA,AGED 33 YEARS,D/O. RAJEEV, BIRTHDAY HOUSE, UDAYAMARTHANDAPURAM, MUNDAKKAL, KOLLAM-686574 BY ADV SRI.M.R.SUDHEENDRAN SRI.SANGEETHA RAJ, PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 7.04.2022, THE COURT ON 22.04.2022 DELIVERED THE FOLLOWING: Crl.R.P.No.1305/2017 -:2:- O R D E R Dated this the 22[nd ] day of April, 2022 The husband and his mother in a proceeding initiated by the wife under the Protection of Women from Domestic Violence Act, 2005 (for short, the DV Act) are the revision petitioners. 2. The wife who is the 2[nd] respondent herein filed a petition at the Chief Judicial Magistrate Court, Kollam (for short, the trial court) as MC No.22/2013 invoking S.12(1) of the DV Act claiming various reliefs under Sections 18, 19, 20 and 22 against the husband and his mother who are the revision petitioners. The trial court as per the order dated 22[nd] May 2015 allowed the petition in part u/s 20(g) of the DV Act and the husband was directed to pay monthly maintenance of `15,000/- to the wife. The claims made under Sections 18, 19 and 22 were disallowed. Both the husband and wife preferred appeals challenging the said order at the II[nd ] Additional Sessions Court, Kollam (for short, the appellate court) as Crl.Appeal Nos.200/15 and 201/2015. The appellate court dismissed both the appeals as per common Crl.R.P.No.1305/2017 ## -:3:- judgment dated 9[th] March 2017. Aggrieved by the verdict of the trial court as well as the appellate court, the husband and his mother have preferred this revision petition. 3. I have heard Sri.S.Majida, the learned counsel for the revision petitioners and Sri.M.R.Sudheendran, the learned counsel for the 2[nd] respondent. 4. Even though the wife has alleged various acts of domestic violence against the husband and his mother such as physical abuse, mental abuse, misappropriation of gold ornaments and money, ousting her from the shared household etc., the trial court found that she failed to substantiate those allegations. The trial court specifically found that since the wife has failed to prove that the husband and his mother committed any domestic violence, she is not entitled to any order under Sections 18, 19 and 22 of the DV Act. However, the trial court found that the husband despite his sufficient means failed to maintain the wife and accordingly maintenance was granted u/s 20(g) of the DV Act. The appeals preferred by both of them were dismissed. 5. Assailing the impugned judgment, the learned counsel Crl.R.P.No.1305/2017 -:4:- for the petitioners Smt. S. Majida mainly raised three points: (i) The wife cannot be termed as an ‘aggrieved person’ as defined u/s 2(a) of the DV Act inasmuch as the courts below found that she was not subjected to any act of domestic violence by the husband. (ii) The wife was employed and earning income at the time of filing the petition and as such, she cannot legally claim maintenance. (iii) The quantum of maintenance awarded by the courts below is excessive and without taking into consideration the means of the husband. The learned counsel also relied on the decision of the Rajasthan High Court in _**Geeta Singh v. State of Rajasthan and Others**_ (MANU/RH/1057/2016) in support of her arguments. 6. As per Section 20 of the DV Act, the Magistrate is empowered to grant monetary relief to the aggrieved person which includes the maintenance for her as well as her children, if any, including an order under or in addition to an order of maintenance u/s 125 of Cr.P.C or any other law for the time being in force. As per clause (a) of S.2 of the DV Act, ‘aggrieved person’ means any person who is in a domestic relationship with the respondent and who alleges to have been subjected to any act of Crl.R.P.No.1305/2017 -:5:- domestic violence by the respondent. Thus, to be an ‘aggrieved person’ for the purpose of the act, the following two conditions are required to be satisfied. - (i) The woman must have a domestic relationship with the respondent. (ii) She must be subjected to any act of domestic violence. 7. In this case, it cannot be disputed that the second respondent being the wife of the first revision petitioner has domestic relationship with him. The argument canvassed by the learned counsel for the petitioners is that since no domestic violence has been proved, the second condition has not been satisfied, and hence, the second respondent cannot be termed as an aggrieved person. 8. The DV Act has been enacted to accord protection to women/victims of domestic violence. Chapter IV S.12 of the Act refers to filing an application before the Magistrate for reliefs referred to under the Act which include residence orders, monetary reliefs, protection orders, custody orders and compensation orders. These reliefs cannot be claimed by a woman unless she establishes the occurrence of domestic Crl.R.P.No.1305/2017 -:6:- violence. The statutory scheme confers the power on the Magistrate to grant such relief if the woman can establish domestic violence. In other words, the predicate acts of domestic violence are _sine qua non_ for granting any reliefs as referrable under the DV Act. [See _**Mahinkutty and Others v. Anshida**_ (2021 (3) KHC 97 DB)]. It is true, that no relief under the DV Act is maintainable unless the predicate act of domestic violence is established as rightly argued by the learned Counsel for the petitioners. 9. The term ‘domestic violence’ has been defined u/s 3 of the DV Act. It includes physical abuse as well as verbal and emotional abuse and economic abuse. It does not mean any physical harassment alone. The term ‘economic abuse’ has been defined u/s 3(iv). It includes deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of Crl.R.P.No.1305/2017 ## -:7:- rental related to the shared household and maintenance. Thus, the non-payment of maintenance entitled by the aggrieved person under any law or custom would constitute domestic violence. Both courts below concurrently found that the husband has despite his sufficient means failed to maintain the wife. His said act alone would constitute domestic violence. 10. Relying on the decision of the Rajasthan High Court in _**Geeta Singh**_ (supra), the learned Counsel for the petitioners submitted that the second respondent cannot claim monetary relief for pursuing her further study without the consent of the first petitioner and non-payment of the same would not amount to not providing maintenance to attract economic abuse within the meaning of the DV Act. In the Rajasthan case, the prayer was to award educational expenditure to study abroad. Here, maintenance was sought for the living expenditure of the second respondent. Hence, the said dictum would not apply to the facts of the case. For the reasons stated above, I have no hesitation to hold that the second respondent herein satisfies both the ingredients of the definition of the term “aggrieved person”. 11. It has come out in evidence that at the time of filing Crl.R.P.No.1305/2017 -:8:- the petition, the wife was working as an Assistant Professor at Sree Buddha College of Engineering. According to the husband, she was earning `30,000/- per month. The wife in the evidence stated that she resigned from the said job and joined her PhD at IIT, Madras. She further admitted that she was getting `18,000/as a stipend. Highlighting this evidence, the learned counsel for the petitioners contended that the wife is not a person unable to maintain herself. 12. There is no evidence to show that the wife was having a permanent job or steady income. All that has come out in evidence is that she was getting `18,000/- as a stipend. The stipend is basically to meet the educational expenses. Hence it cannot be said that the wife has sufficient income to support her life. Admittedly the husband is a practising lawyer. It has come out in evidence that at the time of filing the petition, he was put in only three years of practice. The learned counsel for the wife fairly conceded that the wife has completed PhD and since 2019, November, she is doing her post-doctoral research in Canada, and she is paid substantially. The counsel submitted that the wife does not need any maintenance after 2019. Crl.R.P.No.1305/2017 -:9:- 13. The court below did not give any reason while fixing `15,000/- as maintenance. The income of the husband was not considered. As stated already, at the time of filing the petition, the husband was put in only three years of practice. At the same time, it has come out in evidence that at that time wife was employed and earning `30,000/- per month, but she opted to quit the said job and joined for PhD. Still, she was getting `18,000/- as a stipend. Now admittedly she is well placed. Considering all these factors, I am of the view that `15,000/- monthly maintenance awarded by the court below was on the higher side and it can be reduced to `10,000/- per month. In the light of the above findings, the maintenance awarded to the second respondent is modified and reduced to `10,000/per month. The first revision petitioner needs to pay the same until November, 2019. The criminal revision petition is allowed in part as above. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**