TARUN KUMAR GUPTA :-

This revisional application is directed against the judgment and order dated 31st May, 2011 passed by the learned Additional Sessions Judge, Andaman & Nicobar Islands, in Criminal Appeal No. 05 of 2010 affirming the judgment and order dated 28th October, 2010 passed by the learned Judicial Magistrate, First Class - II, Port Blair in C.R. Case No. 173 of 2009. The facts of the case may be summarized as follows :-

O.P. wife filed one complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act of 2005) praying for an order for grant of Rs. 5,000/- per month for her own maintenance along with protection order under Section 18 of the Act and also for monitory relief under Section 20 of the Act along with further order for providing residential accommodation, against her husband being the present petitioner. It was further case of the complainant - wife that after marriage with O.P. husband she came to reside at Port Blair and that marriage was consummated and that she gave birth to three children through the said wedlock. In 1981, on account of abandonment by her husband she along with her children was compelled to return to Andhra Pradesh, her father's place for shelter and that after a gap of about ten years after much persuasion her husband took her back along with her children to his place of residence at Port Blair. The O.P. husband subjected the complainant wife to continuous torture both physical and mental. In the meantime, her son became married, but one of the daughters namely Dhanalaxmi had to come back to the complainant with her two children as her husband deserted her. As OP husband stopped providing food and shelter the complainant wife somehow managing to the charity of neighbours as well as the income of Dhanalakshmi who was working as a maid servant. The husband has sufficient financial capacity and being a serviceman he is able to provide the amount as claimed by the complainant wife.

Present petitioner being O.P. husband contested the case by filing a written objection. Denying material allegations of the petition it was contended inter alia that complainant wife deserted him in 1974 and started to live in her father's place and that in spite of repeated requests by husband she declined to return to Port Blair. The husband spent huge sum towards marriage of their two daughters as well as one son. As wife did not stay with the husband there was no question of torture and her case was liable to be dismissed with costs.

Both the parties adduced evidence in support of their respective claims. After contested hearing learned trial court allowed the petition directing the husband to pay a sum of Rs. 3,000/- per month to the petitioner's wife towards maintenance and a further sum of Rs. 2,000/- per month towards provision for residential accommodation for the petitioner from the date of order.

Present petitioner husband preferred an appeal but the same was also dismissed on contest by the order impugned.

Mr. Roshan George, learned advocate for the petitioner husband has assailed the judgments of lower courts on the following grounds :-

(i) The wife deserted her husband in 1981 and went to mainland. As such, the OP wife cannot be said to be an "aggrieved person" within the meaning of Section 2(a) of the said Act of 2005 as there was no domestic relationship between the parties since then.

(ii) Secondly, there was no question of having domestic relationship between the parties in the shared household within the meaning of Section 2(f) and Section 2(s) of the said Act of 2005 as wife deserted her husband in 1981 and there was no cohabitation.

(iii) As the parties did not live together since long there was no question of domestic violence within the meaning of Section 3 of the said Act of 2005.

(iv) The application made by the wife was not in the form as prescribed under Rule 6(i) of the Protection of Women from Domestic Violence Rules