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MISC. (D.V.) CASE NO: 14 OF 2015
SAMPRITY SAIKIA –Vs- ABINASH DUTTA & ORS.
TYPED BY ME
SDJM(S), GOLAGHAT
DISTRICT: GOLAGHAT
IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE (S),
GOLAGHAT
MISC. (D.V.) CASE NO: 14/2015
UNDER SECTIONS 12, PROTECTION OF WOMEN
FROM DOMESTIC VIOLENCE ACT,2005
SAMPRITY SAIKIA
-VERSUS-
ABINASH DUTTA
BINA DUTTA
AMITABH DUTTA
ARUNABH KUMAR DUTTA
PRESENT: B. DUTTA, SUB DIVISIONAL JUDICIAL MAGISTRATE (S),
GOLAGHAT
ADVOCATE FOR THE AGGRIEVED PERSON: SRI J.K.GOSWAMI
ADVOCATE FOR THE RESPONDENT: SRI N. DUTTA
EVIDENCE RECORDED ON: 31/10/15, 03/12/15, 05/12/15, 19/03/16
ARGUMENT HEARD ON: 11/04/2016
JUDGMENT DELIVERED ON: 25/04/2016
FINAL ORDER
1) The allegedly aggrieved person Smti Samprity Saikia (in short
aggrived person or petitioner) has preferred this petition under
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SDJM(S), GOLAGHAT
Section 12 Protection of Women from Domestic Violence Act, 2005 (in
short D.V.Act) .
2) The factual matrix that led to institution of the instant
proceedings, as alleged by the aggrieved person, is that she is legally
married wife of respondent Abinash Dutta. On 07/06/2014 they
eloped and after three days on 10/06/2014 Abinash Dutta put
vermilion on her forehead in presence of his family members. On the
same day, both of them went to parental home of the aggrieved
woman, offered their regards to her parents and had dinner there.
After about one week Abinash Dutta began to quarrelwith her
over minor matters, he demanded Rs. 10,00,000/- and dowry
articles. He threatened to kill her otherwise. Aggrieved woman
informed her parents about it. Then her parents brought her and her
husband to various furniture shops, clothes stores, utensil shops of
Golaghat and bought dowry articles for them. Cash memo, etc. were
given to respondent Abinash Dutta in his name. „Mitir Chinaki‟ function
was celebrated where family members of the respondents came to
parental home of the aggrieved woman.
After some days Abinash Dutta began to come drunk at night,
quarrel with the aggrieved woman by demanding ten lacs rupees. He
used to beat her. On 02/12/14 his torture exceeded limits. As such,
she informed parents, who came on 04/12/14 to the house of
respondent Abinash Dutta. But respondent did not come home and as
such father of the aggrieved woman went away, her mother stayed
with her for some days. Even in presence of her mother, Abinash
Dutta chased him holding a „dao‟. Aggrieved woman‟s father informed
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SAMPRITY SAIKIA –Vs- ABINASH DUTTA & ORS.
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SDJM(S), GOLAGHAT
at Golaghat police station verbally. Then Abinash Dutta was brought
to police station. But he gave verbal undertaking not to torture the
aggrieved woman in future.
After about 1, 1½ months of the incident Abinash Dutta told
the aggrieved woman to bring Rs.20,000/- from parental home. On
21/02/2015 the aggrieved woman went to parental home to celebrate
birthday of her nephew. She told her father about demand for twenty
thousand rupees. On next day her father gave her Rs.10000/-. While
she arrived at the respondent‟s house he rebuked her using obscene
words and threw away her bag. On that day he did not allow her to
enter into his room. She slept in another room. She gave Rs.10,000/-
to her mother-in-law. On next day she came to parental home. Since
then she has been there. Abinash Dutta has made no correspondence
with her.
After that she asked for return of dowry articles; but the
respondents denied giving. She then filed a case under Section
406/498A, IPC in which her prayer for search warrant was allowed.
Accordingly on 24/04/2015 she went to bring articles with the help of
police. But all the respondents locked some articles inside a room. So,
she did not get back all her articles. While she had gone to bring
those articles she, alongwith her parents, were rebuked.
Aggrieved woman stated that she has no income source.
Respondent Abinash Dutta is a businessman. He has a shop named
„Friends‟ corner‟. He has an RCC house bearing two stories. 2 rooms of
the first floor are given on rent. He has an Alto car which is used for
rental purpose. He has contractual work also. He has a tea garden as
well. He earns about Rs.70,000/- per month.
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So, the aggrieved person made a prayer for following reliefs-
(a) To direct the respondents to give her monthly maintenance of Rs.
10,000/- [ten thousand rupees];
(b) To direct the respondents to return her „stridhan‟ articles, as
mentioned in the list, appended to her petition;
(c) To direct the respondents to pay compensation of an amount of Rs.
2,00,000/- (two lacs rupees) to her.
3) The respondents appeared and filed written statement. They denied
that the aggrieved woman is married wife of respondent Abinash
Dutta. Abinash Dutta and the aggrieved woman had no love affair.
They denied all allegations of torture and also that parents of the
aggrieved woman gave dowry articles to respondent Abinash Dutta.
Respondents contended that the aggrieved woman is a
student of B.A. Respondent Abinash Dutta had two rented rooms.
There was a computer institute in one room. Aggrieved woman‟s
mother Dipanjali Saikia took that room on rent for the purpose of
study of the aggrieved woman from 01/06/2014. From 07/06/2014
the aggrieved woman with her mother began to stay at that room on
rent. After some days mother went home. She used to come
sometimes.
Aggrieved woman was simply tenant of respondent Abinash
Dutta. At one point of time they developed physical relationship.
Respondents further stated that on shifting of the abovesaid
computer institute to another place, mother of the aggrieved woman
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SDJM(S), GOLAGHAT
took on rent the other room also. Then the aggrieved woman brought
some articles and kept at that room.
On 21/02/2015 the aggrieved woman went home; but did not
return.
Later respondent Abinash Dutta came to know that the father
of the aggrieved woman filed a case against him at Golaghat police
station claiming that the aggrieved woman is his wife and she had
subjected her to torture.
Respondents contended that after having physical relationship
with Abinash Dutta, the aggrieved woman forced him to marry her.
Her mother also pressurized him. He denied. So, the cases were filed
by the aggrieved woman. They further contended that on the strength
of search warrant the aggrieved woman recovered all her articles. No
article of the aggrieved woman is at his house now.
Respondents denied that Abinash Dutta earns about
Rs.70,000/- per month. They admitted that he has a Photostat shop.
The alto car was bought by his mother, which is used at home. At the
ground floor of their house respondents Bina Dutta, Arunabh Dutta
and Amitabh Dutta stay together. Abinash Dutta stays at the first
floor. He has two rooms for rent.
Respondents prayed to dismiss the petition of the aggrieved
woman.
4) The aggrieved person in support of her case examined as
many as three witnesses, including herself. The respondents
examined one witness.
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SAMPRITY SAIKIA –Vs- ABINASH DUTTA & ORS.
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5) I have heard the argument, put forwarded by learned counsel
for both the parties.
6) FACTS ADMITTED BY THE RESPONDENTS
(i) That respondent Abinash Dutta had physical relationship with the
petitioner,
(ii) That respondent Abinash Dutta have two rooms for rent, one
Photostat shop,
(iii) That the aggrieved woman is at parental home now.
POINTS FOR DETERMINATION
7) The following points for determination arose before this court
for a fair disposal of this case after consideration of contentions and
counter-contentions of the parties-
(i) Whether the aggrieved woman is wife of respondent Abinash Dutta or
whether they were in a relationship in the nature of marriage? And if
so,
(ii) Whether the respondents used to live together with the aggrieved
woman at a shared household? And if so,
(iii) Whether the respondents subjected the aggrieved person to any act
of „domestic violence‟?
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SAMPRITY SAIKIA –Vs- ABINASH DUTTA & ORS.
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SDJM(S), GOLAGHAT
(iv) Whether the aggrieved person is entitled to reliefs, as prayed for?
On these points, the decision of this Court and reasons
thereof are discussed below-
DISCUSSION,DECISION AND REASONS THEREOF
(8) Point (i) Whether the aggrieved woman is wife of
respondent Abinash Dutta or whether they were in a
relationship in the nature of marriage? And if so,
Point (ii) Whether the respondents used to live together
with the aggrieved woman at a ‘shared household’? And if
so,
Point (iii) Whether the respondents subjected the
aggrieved person to any act of ‘domestic violence’?
(8.1) PW1 is aggrieved woman Samprity Saikia, PW2 is her father
Liladhar Saikia, PW3 is Dimbeswar Saikia, DW1 is respondent Abinash
Dutta.
(8.2) PW1 [aggrieved woman] has stated that at first she eloped with
respondent Abinash Dutta. On 10/06/2014 he put vermilion on her
forehead in front of people. After about one week he began to
demand dowry, ten lacs rupees from her. Her parents bought for
them furniture, utensils and other articles, necessary to run a family.
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SAMPRITY SAIKIA –Vs- ABINASH DUTTA & ORS.
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SDJM(S), GOLAGHAT
Cash memos were given in the name of Abinash Dutta. On
13/07/2014 family members of the respondents came to their house
and „mitir chinaki‟ ceremony was performed. Again after some days
Abinash Dutta demanded ten lacs rupees from her. He tortured her at
night being drunken. Once he told that he would burn her by pouring
petrol. On 04/12/2014 a case was filed at police station. Same was
compromised. After compromise she went to parental home and then
returned to matrimonial home. For some days everything went well.
Abinash Dutta again told about ten lacs rupees and burning her by
pouring kerosene. Twice he strangulated her. On 22/02/14 she went
to parental home for birthday celebration of her nephew. Abinash
demanded twenty lacs rupees on that day. She brought ten lacs
rupees. As he created chaos being drunk she stayed with his mother
for the night. Before that he dashed her away from steps, threw away
her bag to other‟s boundary. She gave his mother ten thousand
rupees. She informed her mother about the incident. Her parents
lodged ejahar. She went to parental home on next day. Since then
she has been at parental home. She filed a case to get back her
articles. But respondents gave her only some of her articles.
During cross-examination, PW1 denied that actually no case was
compromised at police station. She denied that she was at the rented
room of Abinash Dutta for her studies.
(8.3) PW2 Liladhar Saikia stated that on 07/06/14 Samprity eloped
with Abinash. After 3 days he put vermilion on her forehead in
presence of his family members. He accepted Samprity as his wife. On
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SAMPRITY SAIKIA –Vs- ABINASH DUTTA & ORS.
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SDJM(S), GOLAGHAT
13/07/14 both the families became a part of „Mitir Chinaki‟ ceremony.
After some days Abinash tortured Samprity by demanding ten lacs
rupees, dowry articles. Dowry articles were bought and given. Twice
Abinash strangulated Samprity. Once at the time of such quarrel PW2
came with his wife. Abinash was not found at home. PW2 went back.
Then brother of Abinash i.e. Amitabh Dutta informed him over phone
that Abinash would stab Samprity. While PW2 arrived Abinash was
holding „dao‟. Amitabh told PW2 to inform police. He informed police
verbally. Police took away Abinash. He gave written undertaking at
police station not to torture in future. On 22/02/2015 PW2 celebrated
birthday of his grand-son at his home. Samprity also went there.
Samprity asked for twenty thousand rupees. PW2 gave her ten
thousand rupees. On her arrival he threw away her bag to neighbor‟s
boundary. Abinash locked the door of his room and did not open it.
So, the aggrieved woman stayed with her mother-in-law at night. She
gave ten thousand rupees to the mother-in-law. PW2 informed police
on 23rd. since then Samprity has been at his house.
During cross-examination, PW2 stated that while Abinash Dutta put
vermilion on the forehead of Samprity he was present. They do not
have any grievance against Arunabh Dutta, Amitabh Dutta and Bina
Dutta. On 22/02/15 Samprity went alone to his house. At about 7 PM
she went to matrimonial home with her mother. He denied that
Abinash did not give any written undertaking at police station.
(8.4) PW3 Dimbeswar Saikia stated that Aggrieved woman and
Abinash Dutta are husband and wife. Abinash used to drive an Alto. In
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an evening he saw Abinash bringing the petitioner in his car. Both
eloped. Later both the families became „mitir‟ at Samprity‟s house.
Both families were present there. PW3 cooked feast there. As per his
information Abinash used to torture Samprity. She had to return to
parental home. Now she is at parental home.
During cross-examination, PW3 stated that the distance of his house
from the parental home of the aggrieved woman is about 1 K.M. he
remains at work from 9 AM to about 3/4 PM.
(8.5) DW1 Abinash Dutta stated that in may, 2014 Dipanjali Saikia
asked him for a room on rent for the purpose of study of Samprity
Saikia at D.R. college. He gave her one room. On 7th June Dipanjali
Saikia kept articles in the room. After about 2/3 days Samprity began
to go to college. In July, 2014 he gave Dipanjali Saikia the other
rented room also on her request. Rent of both the rooms was fixed as
Rs.1500/-. Dipanjali Saikia brought some other articles also. In
August, 2014 he was watching a movie at his room. Then Samprity
entered into his room. She insisted to watch the movie with him. At
first he resisted. But later both of them watched the movie. After that
she became friendly with him and subsequently both developed a love
affair. One day Samprity remained in his room for long time. Then
Dipanjali Saikia came and found Samprity having physical relationship
with him at his room. Then Dipanjali Saikia and Samprity went away.
On next day Dipanjali Saikia told him to marry Samprity. That was in
November,2014. He did not say anything. In December, 2014
Samprity and Dipanjali Saikia stayed at home. Samprity began to
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threaten him over phone saying that in the event of his not marrying
her she would file case against him. In January, 2015 Dipanjali saikia
came to his house and again told him to marry Samprity. He said that
he would not be able to marry until being settled. She told that if he
did not marry Samprity he father would file case. Once Samprity came
to his house with police. Then he came to know about filing case by
her. She unlocked her room and brought away her articles. DW1
stated that they have a double storied house. At the ground floor
families of his brothers, his mother and himself stay. However, his
mother shares kitchen with him. His brothers cook separately.
During cross-examination, DW1 denied that the aggrieved woman is
his married wife.
(8.6) Respondents argued that the marriage between the aggrieved
woman and Abinash Dutta was not proved. Even living together as
husband and wife was not proved. It was not proved that they shared
a common kitchen. On the other hand the aggrieved woman
submitted that it is admitted by the respondents that their house is a
joint family property. For proceedings under D.V. Act or proceedings
under Section 125,CrPC strict proof of marriage not required as these
provisions are for upliftment of destitute sections of the society. In
this regard aggrieved woman relied upon judgments of Hon‟ble
Supreme Court in „CHANMUNIYA –VS- VIRENDRA KUMAR SINGH
KUSHWAHA & ANR.‟ [(2011) 1 SCC 141] And „BADSHAH –VS- SOU.
URMILA BADSHAH & ANR.‟ [AIR 2014 SC 869]. In the later case
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reference was made to the former case. In „Chanmuniya‟ case while
dealing with provisions of Section 125,CrPC it was observed-
“45.We, therefore, request the Hon'ble Chief Justice to refer the following,
amongst other, questions to be decided by a larger Bench. According to us, the
questions are:
1. Whether the living together of a man and woman as husband and wife for a
considerable period of time would raise the presumption of a valid marriage
between them and whether such a presumption would entitle the woman to
maintenance under Section 125 Cr.P.C?
2. Whether strict proof of marriage is essential for a claim of maintenance
under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence
Act, 2005?
3. Whether a marriage performed according to customary rites and ceremonies,
without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act,
1955, or any other personal law would entitle the woman to maintenance
under Section 125 Cr.P.C.?
46.We are of the opinion that a broad and expansive interpretation should be
given to the term `wife' to include even those cases where a man and woman
have been living together as husband and wife for a reasonably long period of
time, and strict proof of marriage should not be a pre-condition for maintenance
under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the
beneficial provision of maintenance under Section 125.
47.We also believe that such an interpretation would be a just application of the
principles enshrined in the Preamble to our Constitution, namely, social justice
and upholding the dignity of the individual.”
In „Badshah‟ case Hon‟ble Supreme Court dealt with a matter
where marriage between the parties was proved. However, Hon‟ble
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Supreme Court by putting emphasis on proper interpretation of „social
justice adjudication‟ observed -
“18. Of late, in this very direction, it is emphasized that the Courts have to adopt
different approaches in “social justice adjudication”, which is also known as “social
context adjudication” as mere “adversarial approach” may not be very
appropriate. There are number of social justice legislations giving special
protection and benefits to vulnerable groups in the society. Prof. Madhava Menon
describes it eloquently:
“It is, therefore, respectfully submitted that “social context judging” is essentially
the application of equality jurisprudence as evolved by Parliament and the
Supreme Court in myriad situations presented before courts where unequal parties
are pitted in adversarial proceedings and where courts are called upon to dispense
equal justice. Apart from the social- economic inequalities accentuating the
disabilities of the poor in an unequal fight, the adversarial process itself operates
to the disadvantage of the weaker party. In such a situation, the judge has to be
not only sensitive to the inequalities of parties involved but also positively inclined
to the weaker party if the imbalance were not to result in miscarriage of justice.
This result is achieved by what we call social context judging or social justice
adjudication.”[5]
19. Provision of maintenance would definitely fall in this category which aims at
empowering the destitute and achieving social justice or equality and dignity of the
individual. While dealing with cases under this provision, drift in the approach from
“adversarial” litigation to social context adjudication is the need of the hour.
20. The law regulates relationships between people. It prescribes patterns of
behavior. It reflects the values of society. The role of the Court is to understand the
purpose of law in society and to help the law achieve its purpose. But the law of a
society is a living organism. It is based on a given factual and social reality that is
constantly changing. Sometimes change in law precedes societal change and is
even intended to stimulate it. In most cases, however, a change in law is the result
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of a change in social reality. Indeed, when social reality changes, the law must
change too. Just as change in social reality is the law of life, responsiveness to
change in social reality is the life of the law. It can be said that the history of law is
the history of adapting the law to society’s changing needs. In both Constitutional
and statutory interpretation, the Court is supposed to exercise direction in
determining the proper relationship between the subjective and objective purpose
of the law.
21. Cardozo acknowledges in his classic[6] “….no system of jus scriptum has been
able to escape the need of it”, and he elaborates: “It is true that Codes and
Statutes do not render the Judge superfluous, nor his work perfunctory and
mechanical. There are gaps to be filled. There are hardships and wrongs to be
mitigated if not avoided. Interpretation is often spoken of as if it were nothing but
the search and the discovery of a meaning which, however, obscure and latent,
had none the less a real and ascertainable pre- existence in the legislator’s mind.
The process is, indeed, that at times, but it is often something more. The
ascertainment of intention may be the least of a judge’s troubles in ascribing
meaning to a stature.” Says Gray in his lecture[7] “The fact is that the difficulties of
so-called interpretation arise when the legislature has had no meaning at all; when
the question which is raised on the statute never occurred to it; when what the
judges have to do is, not to determine that the legislature did mean on a point
which was present to its mind, but to guess what is would have intended on a
point not present to its mind, if the point had been present.”
22. The Court as the interpreter of law is supposed to supply omissions, correct
uncertainties, and harmonize results with justice through a method of free
decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the
opinion that there is a non-rebuttable presumption that the Legislature while
making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good
faith, had always intended to give relief to the woman becoming “wife” under such
circumstances.
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23. This approach is particularly needed while deciding the issues relating to
gender justice. We already have examples of exemplary efforts in this regard.
Journey from Shah Bano[8] to Shabana Bano[9] guaranteeing maintenance rights
to Muslim women is a classical example.”
(8.7) Above judgments, relied upon by the aggrieved woman, shows
that recent trend of the Hon‟ble Supreme Court of India is to render
a liberal interpretation to „social justice legislations‟ in favor of the
aggrieved persons. The parameter of proving marriage under
Domestic Violence Act cannot be as strict as that of Section 494, IPC
proceedings. Further it is pertinent to mention that these
proceedings are quasi-civil in nature. So, here the requirement of
proof is „preponderance of probability‟; not „beyond reasonable
doubt‟ like that of criminal proceedings.
(8.8) In the instant case PW3 is an independent witness.
Respondent has not been able to impeach his credit. He
corroborated PW1 and PW2 regarding the „Mitir Chinaki‟ ceremony.
Aggrieved woman argued that she is not denying that in her case
regular ceremonies of marriage were not performed; but after
eloping with respondent Abinash Dutta both the families got tied by
„Mitir Chinaki‟ ceremony, which gave a social recognition to their
relationship. Evidence of PW3 signifies that social recognition.
Respondents have not been able to bring any corroborative evidence
to prove their contention that the aggrieved woman was actually a
tenant of respondent Abinash Dutta, not his wife. So, it can be said
that the aggrieved woman has been able to prove that she was with
Abinash Dutta in a „relationship in the nature of marriage‟.
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(8.9) DW1 stated that their house is double storied. At the ground
floor he stays with his mother and families of two brothers. Only his
mother shares kitchen with him. It is pertinent to mention here that
in written statement it was stated by the respondents that
respondent Abinash Dutta stays at the first floor of their house,
while other respondents stay at the ground floor. However, both
evidence and the written statement shows that the house where
Abinash Dutta stays is the joint family property of him alongwith
other respondents. There is no dispute that respondent Bina Dutta is
his mother, respondents Arunabh Dutta and Amitabh Dutta are his
brothers. Respondents have not stated that the aggrieved woman
stayed at another house; rather their contention is that she used to
stay at that house, but as a tenant. As already discussed,
respondents have not been able to prove that by corroborative
evidence. However, the aggrieved woman has stated at no point
that she used to stay together with respondents Bina Dutta, Arunabh
Dutta and Amitabh Dutta at the house. She stated that she once
stayed with Bina Dutta while Abinash Dutta created unwanted
situation. That is not enough to prove that she stayed together with
her. So, evidence does not prove that the aggrieved woman stayed
at a shared household with respondents Bina Dutta, Amitabh Dutta
and Arunabh Dutta. But her evidence sufficiently proves that she
used to stay with Abinash Dutta at his house.
(8.10) PW2 stated that they do not have grievances against Bina
Dutta, Amitabh Dutta and Arunabh Dutta. PW1 stated that all the
respondents prevented her from getting her articles back at the time
of execution of search warrant. But PW2 has not stated that. He
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simply stated that some articles were kept locked in a room. In this
regard, PW1 was not corroborated by PW2. So, allegations of
torture, leveled against these three respondents, could not be
proved.
(8.11) PW1 has been supported by PW2 regarding demand for
dowry articles, money by respondent Abinash Dutta. But so far as
giving cash memos to Abinash Dutta is concerned, in her petition
she stated that same were given in the hands of Abinash Dutta. But
during cross-examination, she has not stated that on being asked.
She simply stated that cash memos are not kept. Bur regarding
demand for dowry articles and money, and consequent buying of
articles she has been corroborated by PW2. Evidence of PW3 is
hearsay in this regard. Regarding subsequent demand for Rs.
20,000/- also she has been supported by PW2. But regarding date of
bringing ten thousand rupees there are some inconsistencies in
evidence of the P.W.s and the petition, filed by the aggrieved
woman. As per petition she came on the next day, while as per
evidence of PW2 she came on the same day of the birthday of her
nephew with her mother.
(8.12) Aggrieved woman contended that regarding her status in his
life Abinash Dutta made contradictory statements. She further stated
that evidence of PW3 proves that she and Abinash Dutta were
known in the society as husband and wife. Abinash Dutta denied in
his petition even having any love affair with the aggrieved woman.
But subsequently in his evidence he admitted that he developed love
affair with the aggrieved woman. Upon perusal of written statement
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and evidence on record, this contention is found to be a tenable one.
Even after being known in the society as husband and wife, as
proved by PW3, not accepting the woman as wife or partner of a
„relationship in the nature of marriage‟ is in itself enough to injure
mental well-being of a woman.
(8.12) Another allegation of the aggrieved woman is that Abinash
Dutta has not made any correspondence with her since her leaving
his home. There is no contention on part of the respondent that he
paid her any maintenance allowances or made any correspondence
with her since her leaving. He totally denied any relationship of her
with him. So, it is obvious that he has not paid her any maintenance
allowances.
(8.13) There is total denial on the part of the respondents regarding
allegations of torture. DW1 adduced evidence accordingly. But he
has not been able to substantiate that by any corroborative
evidence. So, regarding allegations of „domestic violence‟ by Abinash
Dutta, preponderance of probability lies in favor of the aggrieved
woman.
Decision:- Point (i) is decided in affirmative. Point No. (ii) and point
No. (iii) partly decided in affirmative.
(9) Point (ii) Whether the aggrieved person is entitled to
reliefs, as prayed for?
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(9.1) Aggrieved woman prayed to return her „stridhan‟ articles. She
stated that she filed a case to get back her „stridhan‟ articles. She did
not get back half of her articles. PW2 stated that through search
warrant some of the articles found; not all. DW1 stated that the
aggrieved woman took away all her articles on strength of Search
Warrant. PW1 admitted during cross-examination that she did not
appear in the aforesaid case after recovery of articles, and the case
subsequently got closed. She could have at least produced before this
court the seizure list or zimmanama, executed at the time of
execution of search warrant of the said case to satisfy this court. Her
evidence itself shows that she did not raise the issue of non-recovery
of certain articles in the said case although that case wass filed to
recover her articles. As such, this court is of considered view that here
preponderance of probability lies in favor of the respondents.
(9.2) Respondent Abinash Dutta not only subjected the aggrieved
woman to acts of „domestic violence‟, but subsequently totally denied
her existence as a partner of a „relationship in the nature of a
marriage‟. So, it is found to be a fit case to grant compensation to the
aggrieved woman. Due to the nature of her relationship with Abinash
Dutta, she is also entitled to maintenance from him.
(9.3) Abinash Dutta admitted that he has two rented rooms and a
Photostat shop. There is no contention that he is not an able bodied
person. He stated that he gets rent of Rs. 1500/- from the two rooms.
He further stated that he gets fifty rupees to hundred rupees per day
from the Photostat shop. So, as per his calculation his monthly income
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SDJM(S), GOLAGHAT
will come around Rs. 2000/- per month from his shop. Hon‟ble
Supreme Court observed in „SHAMIMA FAROOQUI –VS- SHAHID
KHAN‟ [judgment dated 06/04/15]-
“In this context,we may profitably quote a passage from the
judgment rendered by the High Court of Delhi in Chander Prakash
Bodhraj –vs- Shila Rani Chander Prakash [17]wherein it has been
opined thus:- “An able-bodied young man has to be presumed to be
capable of earning sufficient money so as to be able reasonably to
maintain his wife and child and he cannot be heard to say that he is
not in a position to earn enough to be able to maintain them
according to the family standard. It is for such able-bodied person to
show to the Court cogent grounds for holding that he is unable to
reasons beyond his control, to earn enough to discharge his legal
obligation of maintaining his wife and child. When the husband does
not disclose to the Court the exact amount of his income, the
presumption will be easily permissible against him.”
As an able bodied young person respondent Abinash Dutta
cannot take the plea that he does not earn enough so as to be able to
maintain the aggrieved woman. He himself admitted that his family
has an RCC building at Golaghat town. So, obviously the financial
status of his family is stable. Evidence does not prove that he has any
other liability apart from maintaining his own family.
(9.4) There is no evidence on record that proves that the aggrieved
woman has any source of income. She stated that she is a student of
B.A. Keeping in view all these aspects, this court is of considered view
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SDJM(S), GOLAGHAT
that a maintenance allowance of Rs. 2500/- [two thousand and five
hundred rupees] per month will serve the purpose. On the other
hand, keeping in view age of both the parties and financial status of
respondent Abinash Dutta, compensation amount is fixed at
Rs.50,000/- [fifty thousand rupees].
(9.5) In view of decisions, arrived at in respect of other points for
determination, it is held that the aggrieved woman is not entitled to
reliefs from other respondents.
Decision:- Points (iv) is decided partly in affirmative.
(10) In view of the above discussion and the decisions, reached in the
points for determination no. (i),(ii),(iii) and (iv) this court holds –
(a) That respondents Bina Dutta, Amitabh Dutta and Arunabh Dutta
are not found to be liable for committing acts of „domestic
violence‟ upon the aggrieved woman.
(b) That respondent Abinash Dutta is found to be liable for committing
acts of „domestic violence‟ upon the aggrieved person.
(c) That respondent Abinash Dutta shall pay monthly maintenance at
the rate of Rs.2500/- [two thousand and five hundred rupees] to
the aggrieved woman.
(d) That respondent Abinash Dutta shall pay a compensation of Rs.
50,000/- [fifty thousand rupees] to the aggrieved woman within a
period of 2 months of passing this order.
Each of the parties is to be provided with a copy of this order
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SDJM(S), GOLAGHAT
free of cost. Send another copy to the Protection Officer, Golaghat
for information.
The order of payment of maintenance is to take effect from the
date of filing the instant petition by the aggrieved woman.
The case is disposed of on contest without costs.
Given under my hand and the seal of this court on this the 25th
day of April, 2016 at Golaghat.
SMTI B. DUTTA
SUB DIVISIONAL JUDICIAL MAGISTRATE(S), GOLAGHAT
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SDJM(S), GOLAGHAT
APPENDIX (A)Prosecution Exhibits: Nil (B)Defence Exhibits: Nil (C)Prosecution Witnesses: (i) PW1- Samprity Saikia (ii) PW2- Liladhar Saikia (iii) PW3- Dimbeswar Saikia (D)Defence witnesses:
(i) DW1- Abinash Dutta
SMTI B. DUTTA
SUB DIVISIONAL JUDICIAL MAGISTRATE(S), GOLAGHAT