Date of Judgement:
9th July 2019
Coram/judge:
The Hon’ble Justice Madhumati Mitra
Parties to the Case:
Petitioner- Smt. Haimanti Mal
Respondents- The State of West Bengal
Legal Provisions
- Section 401 of the Code of Criminal Procedure, 1973- deals with High Court’s power of revision of orders passed by subordinate Courts in its jurisdiction.
- Section 482 of the Code of Criminal Procedure, 1973 - Section 482 of the Code of Criminal Procedure, 1973- lays down inherent powers of the High Court to prevent irregularities in of the process of any court or to secure justice.
- Section 12 of Protection of Women from Domestic Violence Act, 2005- lays down procedure for application to Magistrate.
- Section 18 of Protection of Women from Domestic Violence Act, 2005- which lays down the provisions to pass specific order for protection from any act which amounts to domestic violence.
- Section 19 of Protection of Women from Domestic Violence Act, 2005 – empowers to court to pass orders regarding residence of parties in a case under the Act.
- Section 20 of Protection of Women from Domestic Violence Act, 2005- deals with grant of monetary reliefs to the aggrieved party to meet the expenses incurred and losses suffered
- Section 22 of Protection of Women from Domestic Violence Act, 2005- empowers the Court to pass compensation orders for the injuries, including mental torture and emotional distress, caused by the act of domestic violence.
Overview
- The parties were validly married since 2001and resided together in a rented house.Petitioner had filed an application under Sections 18,19,20 and 22 of the Protection of Women from Domestic Violence Act, 2005 before the Court of the Learned Chief Judicial Magistrate, Birbhum, Suri, against the opposite party no.2. Learned Magistrate allowed the said application partly and directed the opposite party no.2 to pay Rs.4,000/- per month to each of the two minor children as monetary relief and rejected plea of monetary relief of the wife.
- Opposite party no.2 was directed to pay Rs.4,000/- per month to the petitioner as a rent for accommodation of the petitioner and her children. He was to return all stridhan articles & pay Rs.3,00,000/- to the petitioner as compensation.
- Opposite party no.2 filed an appeal challenging such order. The appeal was allowed partly by the Learned Additional District and Sessions Judge, Fast Track Court. The order of payment of compensation of Rs.3 Lakhs to the wife was set aside by the Learned Judge.
Arguments Advanced by The Petitioner
- Learned Counsel for the petitioner submitted that Learned Appellate Court had committed an error in setting aside the awarded compensation. Learned Judge who adjudicated the appeal came to awrong conclusion that petitioner was not entitled to get compensation.
- It was further submitted that there were contradictions in the observations made in the judgment and conclusion arrived at by the Learned Judge regarding refusal of compensation. Learned Magistrate had rightly awarded the compensation.
Arguments Advanced by The Opposite Party
- Learned Advocate for the opposite party contended that in absence of any separate application under Section 22 of the Act, the Magistrate could not direct the opposite party/husband to pay compensation. In order to get a relief of compensation, the aggrieved person had to make a separate application under Section 22. The petitioner did not put forward any such application. So, the grant of such compensation by the Learned Magistrate was not justified.
Issue
Whether the Judicial magistrate’s decision of awarding compensation under section 22 of the Act, without any separate application for the same, was tenable?
Judgement Analysis
- The Court observed that the petitioner had filed a supplementary affidavit in the prescribed form. From the contents of the copy of said Form, it appears that the petitioner sought for reliefs under Section 18,19,20 and 22 of the Act. Form-II under Rule 6 of the Rules made under the Act prescribed form to pray for reliefs under the provisions of the Act.
- In light of Sub- Section 1 and 3 of Section 12 and Section 22 of the Act, it would be clear that prescribed Form-II, under Rule 6 of the Rules made under the Act was an application seeking reliefs under the Act before a Magistrate.
- Learned Judge did not find any merit in the submission made by the Learned counsel for the opposite party. It could not be contended that the petitioner did not file application for compensation. Section 22 deals with application, but nowhere it had been stated that a separate application would be required to get the relief of compensation.
- The rationale behind compensation of Rs.3,00,000/- was not stated in the order by Learned Magistrate. Compensation means the award for the loss or injury suffered by the person due to the act of the opposite party.
- The determination of compensation should be rationally done by a judicious approach. It should not be an outcome of guesses on arbitrariness. In absence of any evidence or materials on record the grant of compensation cannot be justified. Compensation for mental or physical shock, pain, stress, etc. can be given if there was sufficient evidence on record in this regard.
- In the present case, the wife had stated that she was physically assaulted, but she could not produce any medical paper for her treatment for the injuries suffered by her. She had been residing separately. Order of maintenance to the children and rent for alternative accommodation had been granted although the wife worked as a teacher and had a source of income.
- The Court held that some reasonable amount should be awarded as just and proper compensation for the mental pain and agony of the wife. It was tough to assess the actual compensation. Considering all aspects, a lump sum of Rs.1,00,000/- was held to be sufficient.
- Thus, the petition was disposed of and the order passed by the Learned Additional District and Sessions Judge was modified.
Conclusion
The Honourable High Court construed the provisions related to process for claim of compensation under section 22 of Protection of Women from Domestic Violence Act, 2005. While modifying the order, Learned Judge reiterated importance of just and fair compensation. The Court disposed of the petition and allowed a just & fair amount of compensation for the petitioner.
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