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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Sheela Devi – Petitioner
Versus
Shivander Pal Singh and others - Respondents
Cr.MMO No. 194 of 2010
Decided on: 18.3.2014
Domestic Violence - Protection of Women from Domestic Violence Act, 2005 - 498-A of the Indian Penal Code - [Section 498-A IPC, Protection of Women from Domestic Violence Act, 2005] - The court discussed the applicability of the Protection of Women from Domestic Violence Act, 2005 to acts of violence occurring prior to its enactment. The court cited judgments to establish that the Act is retrospective in operation and provides remedies to victims of domestic violence. The court also emphasized that the conduct of the parties prior to the Act coming into force could be considered while passing orders under the Act.
Fact of the Case:
The petitioner, a legally wedded wife, filed a complaint against the respondents alleging torture, cruelty, and dowry demands. The Judicial Magistrate allowed the petition, granting compensation and maintenance but denying custody of the child. The petitioner and respondents both filed appeals against the order.
Finding of the Court:
The court found that the petitioner was subjected to domestic violence and upheld the petitioner's entitlement to compensation, maintenance, and remedies under the Protection of Women from Domestic Violence Act, 2005. The court also held that the Act is retrospective in operation and that the conduct of the parties prior to its enactment could be considered in passing orders.
Issues: The issues involved the petitioner's allegations of domestic violence, dowry demands, and custody of the child, as well as the applicability of the Protection of Women from Domestic Violence Act, 2005 to acts of violence occurring prior to its enactment.
Ratio Decidendi: The court's decision was influenced by the interpretation of the Protection of Women from Domestic Violence Act, 2005 as retrospective in operation and the consideration of the parties' conduct prior to its enactment in passing orders under the Act.
Final Decision: The court set aside the judgment of the Additional Sessions Judge and restored the order of the Judicial Magistrate, implementing it within a month.
Rajiv Sharma, Judge:
This petition is instituted against the judgment dated 7.5.2009 rendered by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., in Criminal Appeal No.18-N/10 of 2008.
2. “Key facts” necessary for the adjudication of this petition are that the petitioner, filed a complaint against the respondents in the Court of learned Judicial Magistrate, 1st Class, Court No.2, Paonta Sahib, District Sirmaur. According to the petitioner, she was legally wedded wife of respondent No.1, Shivander Pal,. Three Children, namely, Bhupender alias Vivender, Gogi and Shibu were born out of the wedlock. The children were in her care and custody. She was tortured by the respondents time and again and treated with cruelty. She was unable to fulfill dowry demand of the respondents. She was forced to leave the matrimonial house. She was put on fire. She was not got medically treated by the Respondent No.1 while visiting house of her parents at Rajpur, used to prevail upon to take her back to matrimonial house. Her son Master Bhupender Singh alias Vivender was studying in private school at Rajpur. However, in the month of January 2007, respondent No.1 took forcible custody of her child. It is in these circumstances, she filed petition against the respondents.
3. Notices were issued to the respondents. The petition was contested by the respondents. It is admitted that the petitioner was legally wedded wife of respondent No.1. Three children were born out of the wedlock. They denied that they ever tortured the petitioner on account of dowry and she was forced to live with her parents. It was also denied that the petitioner was not provided basic daily needs etc. She was residing in the house of her parents on her own volition. The allegation of burning the petitioner was denied. It was denied that custody of child was taken forcibly.
4. Learned Judicial Magistrate vide order dated 25.8.2008 allowed the petition. The petitioner was held entitled to receive a sum of Rs.30,000/- as compensation from the respondents and maintenance at the rate of Rs.3000/- per month as expenses for food, clothes, medical and other basic needs from respondent No.1. However, prayer for custody of the child, namely, Bhupinder Singh was denied.
5. Since custody of child, namely, Bhupinder Singh, was not given to the petitioner, she filed an appeal bearing Criminal Appeal No.18-N/10 of 2008 against the order dated 25.8.2008 before the learned Additional Sessions Judge. Respondents also filed an appeal bearing Criminal Appeal No.19-N/10 of 2008 against the order dated 25.8.2008 before the learned Additional Sessions by the petitioner and allowed the appeal filed by the respondents vide common judgment dated 7.5.2009. Hence, the present petition.
6. Ms. Jyotsna Rewal Dua, learned Advocate, has supported the judgment of learned Judicial Magistrate dated 25.8.2008, as stated hereinabove. According to her, the petitioner was maltreated by the respondents. Her client was tortured and treated with cruelty by the respondents. She was forced to leave the matrimonial house. The custody of one of the child was also forcibly taken away by respondent No.1. However, she has not pressed this appeal with regard to custody of Master Bhupender Singh.
7. Mr. Karan Singh Kanwar, learned Advocate, has supported the judgment, dated 7.5.2009.
8. I have heard learned counsel for the parties and have also gone through the record and pleadings carefully.
9. PW1, Sheela Devi, deposed that her marriage was solemnized with respondent No.1 on 18.9.2002. Three children were born out of the wedlock. The respondents started giving beatings to her. She was used to be harassed for bringing insufficient dowry. She was put on fire by the respondents. She received burn injuries on her neck, arms and abdomen. She was not got treated by the respondents. She had to go to her matrimonial house. She was got treated by her father. She also got her son admitted in a private school
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