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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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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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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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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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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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(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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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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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



TYPED BY ME

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



TYPED BY ME

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



TYPED BY ME

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

golaghatjudiciary.gov.ingolaghatjudiciary.gov.in/jmnt/2016/april/sdjm/misc (d.v.) 14 of... ·...

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