golaghatjudiciary.gov.ingolaghatjudiciary.gov.in/jmnt/2016/sept/sdjm/MISC... · RACHNA AGARWALLA –Vs- RITEISH CHOUDHURY & ORS. TYPED BY ME SDJM(S), GOLAGHAT was born at Golaghat

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MISC. (D.V.) CASE NO: 44 OF 2015

RACHNA AGARWALLA –Vs- RITEISH CHOUDHURY & 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: 44/ 2015

UNDER SECTION 12, PROTECTION OF WOMEN

FROM DOMESTIC VIOLENCE ACT,2005

RACHNA AGARWALLA

-VERSUS-

RITESH CHOUDHURY

RAMESH CHOUDHURY

RATANLAL CHOUDHURY

PRESENT : B. DUTTA, SUB DIVISIONAL JUDICIAL MAGISTRATE (S),

GOLAGHAT

ADVOCATE FOR THE AGGRIEVED PERSON: MD. TAHIR ALI,

SRI RAJIB AHMED,

SMTI NITA DEY

ADVOCATE FOR THE RESPONDENT: SRI J. BHUYAN,

SRI J. NATH,

SMTI K. BORDOLOI

EVIDENCE RECORDED ON: 31/03/16, 30/04/16, 13/06/16, 27/06/16

ARGUMENT HEARD ON: 30/07/16, 08/09/16

JUDGMENT DELIVERED ON: 20/09/2016

FINAL ORDER

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1) The allegedly aggrieved person Smti Rachna Agarwalla (in

short aggrived person or petitioner) has preferred this petition under

Section 12 Protection of Women from Domestic Violence Act, 2005 (in

short D.V.Act) claiming reliefs for herself and her minor daughter from

respondents Riteish Choudhury [husband], Ramesh Choudhury

[brother-in-law], Ratanlal Choudhury [father-in-law].

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 Riteish Choudhury. She gave birth to a

daughter [Tamanna Agarwalla] on 14/11/2012.

At the time of marriage she took several articles with herself.,

including cash and gold ornaments.

After about two months of marriage, respondents started

torture upon her demanding dowry. They told her to bring ten lacs

rupees in cash from parental home. They tortured her mercilessly and

threatened her to kill due to inability to bring money. During her

pregnancy they did not provide proper medical care and continued

with their atrocities.

On 19/04/2012 at about 8 AM the respondents demanded ten

lacs rupees from her. On her refusal to bring they started abusing her

by using filthy language and assaulting her physically. Her husband

dragged her out of matrimonial home. Finding no other alternative

she had to come to parental home at Merapani in the interest of well-

being of herself and her unborn child. On that day she lodged an

ejahar at All Women Police Station, Panbazar, Guwahati under Section

498A, IPC. Since then she has been at parental home. Her daughter

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was born at Golaghat on 14/11/2012. Even after being informed, her

husband did not bother to come to see the child. He has not

contacted her during her stay at parental home. Her family members

tried to persuade the respondents to desist from torture; but in futile.

She hoped that she would be able to resume her conjugal life. But

whenever she had tried to contact them, they just demanded money.

When all hopes for resuming married life had shattered she contacted

respondents for return of her articles; but they refused to return the

same.

Aggrieved person stated that she has no source of income.

The respondents are well-established businessmen of Chatribari,

Guwahati. Her husband owns a well-stocked grocery/cosmetic shop

there. Respondents have total four numbers of business

establishments in Guwahati. They earn monthly more than Rs.

5,00,000/- [five lacs rupees].

So, the aggrieved person made a prayer for following reliefs-

(a) To direct the respondents to pay monthly maintenance of Rs. 20,000/-

(twenty thousand rupees) each to the aggrieved woman and her

daughter i.e. Rs. 40,000/- [forty thousand rupees] in total,

(b) To direct respondents to pay compensation of an amount of Rs.

20,00,000/- (twenty lacs rupees) to the aggrieved woman,

(c) To pass order for recovery of her articles and cash amount from the

respondents.

3) The respondents appeared and filed written statement. They admitted

that the aggrieved woman is legally married wife of respondent

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Riteish Choudhury, that she lived at matrimonial home till 19/04/2012.

They denied all the allegations of torture.

Respondents contended that the aggrieved woman came to

their house by wearing some golden and imitated articles. It is

unbelievable that she brought a huge amount of money at the time of

marriage. She has exaggerated their income also. When the daughter

was born is best known to the aggrieved woman only as she has been

away from the respondents since 19/04/2012.

Respondents further stated that after marriage the aggrieved

woman began nagging her husband to live separately from other

family members. He refused to do so. Then she started quarrelling

with him over small matters. She started disobeying father-in-law and

mother-in-law. She gradually became violent and did not hesitate to

use filthy language.

Respondents further stated that on 29/10/11 she quarreled

with her husband without any cause. Then she got irritated and

threatened her mother-in-law saying that if she is not allowed to live

separatey with her husband she would commit suicide. That shocked

family members of the respondents. On 31/10/11 the mother-in-law

went to All women Police station to file an intimation. But the said

police station refused to render any relief to her. Then the mother-in-

law approached Assam State Commission for Women.

On 19/04/2012 the aggrieved woman quarreled with the

family members of the respondents, rebuked her mother-in-law using

obscene words and rushed to beat her. She threatened to cut tongue

away of the mother-in-law and to kill her. Then on her own volition

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she left matrimonial home by motor bike of some unknown persons.

Then her mother-in-law lodged ejahar at Bhangagarh police station.

Respondents contended that respondents are very poor having

lots of liabilities and problems. Riteish Choudhury is dependent upon

grace of his parents. On the other hand, the aggrieved woman is

involved in various businesses.

Respondents prayed to dismiss this case.

4) The aggrieved person in support of her case examined as

many as three witnesses, including her. The respondents examined

five witnesses.

5) I have heard the argument, put forwarded by learned counsel

for both the parties.

6) FACTS ADMITTED BY THE RESPONDENTS:-

(i) That the petitioner is wife of respondent Riteish Choudhury,

(ii) That the petitioner left matrimonial home on 19/04/2012,

(iii) That she is now at parental home,

(iv) That she has a daughter out of wedlock.

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 respondents subjected the aggrieved person to any act

of ‘domestic violence’?

(ii) Whether the aggrieved person is entitled to reliefs, as prayed for?

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(iii) Whether the minor daughter i.e. Tamanna Agarwalla is entitled to

reliefs, as prayed for by the aggrieved person?

On these points, the decision of this Court and reasons

thereof are discussed below-

DISCUSSION,DECISION AND REASONS THEREOF

8) Point (i) Whether the respondents subjected the

aggrieved person to any act of ‘domestic violence’?

For purpose of convenience these two points are discussed

together.

(8.1) 1st party stated that the respondents used to demand Rs.

10,00,000/- [ten lacs rupees] from her and tortured her. They used to

beat her, threatened to burn her by pouring kerosene; they did not

feed her, did not give her medicines. While she was 3 months’

pregnant, they drove her out saying that they would burn her. After

that she came to parental home. There she gave birth to her

daughter. While respondents were informed about it they told that

they would come only if money is given. Evidence of PW2 and PW3 is

not direct regarding alleged atrocities upon the aggrieved woman.

PW2 stated that the respondents demanded 10 lacs rupees from him

also. But that was not a part of pleadings of the aggrieved woman.

Aggrieved woman stated about demand for money, being beaten up

and threatening to kill by pouring kerosene. But PW2 stated certain

other things like not allowing her to talk to her mother, not allowing

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her to talk to guests. The aggrieved woman has not been able to

specify the role, played by each of the respondents in the alleged

atrocities upon her. Except the incident dated 19/04/2012 she made

general allegations.

(8.2) So far as incident dated 19/04/2012 is concerned, the

contention of the aggrieved woman is that she was dragged out of

home by the respondents while she was pregnant. Respondents’

contention is that she came out on her own after quarrelling at home.

Surprisingly, in written statement they stated that she came out by

motor bike of an unknown person. But DW1 Riteish Choudhury

specifically stated that she came out with her cousin brother. She

called him and said that she was at the house of the cousin brother. It

is admitted by the respondents that at that time the aggrieved woman

was pregnant, and that after that incident she came home. It was

duty of respondent Riteish Choudhury to take care of his pregnant

wife and to make effort to bring her back to his company from the

house of the cousin brother, especially while she had informed him

about it. Respondents have not stated about any such effort by him.

Another surprising aspect is that in written statement the respondents

stated that it is best known to the aggrieved woman when she gave

birth to the female child whom she named Tamanna Agarwalla. They

made no contention in the written statement that respondent Riteish

Agarwalla has made any effort to maintain the daughter. But during

cross-examination DW1 admitted that he got information of the birth

of the daughter. He also stated that they sent gifts on her 2nd

birthday. He admitted that he has not paid expenses of the daughter.

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DW4 specifically admitted that they have not paid any expenses to the

aggrieved woman after her leaving matrimonial home.

(8.3) As such, it is found that so far as allegations of torture against

Ratanlal Choudhury and Ramesh Choudhury is concerned, the

aggrieved woman has not been able to render specific evidence or

any reliable corroborative evidence. Her evidence is not found to be

sufficient enough to satisfy this court that dowry was demanded from

her or she was subjected to physical torture for dowry. But regarding

incident dated 19/04/2012 and circumstances after that the evidence

on record clearly shows that respondent Riteish Choudhury has

miserably failed in shouldering his responsibilities as a husband and

father, and has neglected his wife and daughter. His behavior towards

his daughter is very indifferent and his specific statement in the

written statement that he does not know as to when the daughter

was born, is very surprising. By such attitude he has been subjecting

the aggrieved woman to ‘economic’ as well as ‘emotional’ abuse. So,

it is found that so far as allegations of torture as against Ratanlal

Choudhury and Ramesh Choudhury is concerned, preponderance of

probability lies in favor of the respondents. But regarding allegations

of torture by Riteish Choudhury, preponderance of probability lies in

favor of the aggrieved woman. Respondents exhibited two documents

i.e. copy of ejahar dated 19/04/12, lodged by Indu Devi Agarwalla at

Bhagagarh police station [Ext.A] and copy of complaint, filed by her at

Assam State Commission for Women [Ext. B]. The aggrieved woman

raised objection to these documents on ground that these are public

documents, and certified copies should have been submitted. They do

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not have admissibility as evidence. Respondents argued that the seal

of the concerned authority thereon is original and as such admissible

as evidence. In view of provisions of Sections 65(e), 65(f) and 77 of

Indian Evidence Act, argument by the aggrieved woman is found to

be tenable one.

Decision:- Point (i) is decided partly in affirmative, partly in negative.

(9) Point (ii) Whether the aggrieved person is entitled to

reliefs, as prayed for?

Point (iii) Whether the minor daughter i.e Tamanna Agarwalla

is entitled to reliefs, as prayed for by the aggrieved person?

(9.1) Respondents contended in written statement that the

aggrieved woman is involved in various businesses. But during

adducing evidence they have not stated so. PW1 Rachna Agarwalla

stated that respondent Riteish Choudhury has wholesale shop of

cosmetics at Chatribari, Guwahati. He earns about Rs. 5,00,000/- per

month. Other respondents have separate income. PW2 also stated

that respondent Riteish Agarwalla, his father and two brothers have

separate shops in Guwahati. DW1 stated that they have a grocery-

cosmetics shop at Chatribari, Guwahati; but that is in the name of his

mother. He works there part-time. He has not specified his income.

Respondents have not been able to rebut that they have separate

business establishments of their own. Although respondent Riteish

Choudhury stated that the shop at Chatribari is in the name of his

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mother, he has not been able to prove that by any documentary

evidence. There is no contention that he is not able bodied person.

So, evidence on record clearly proves that he has a handsome earning

and he has all the abilities to earn a good amount of money being an

able bodied person. Being husband of Rachna Agarwalla and father of

Tamanna Agarwalla he has definite liability to maintain them.

Respondents have not been able to prove that they have huge

financial liabilities, which was a contention at the written statement.

PW1 stated that the daughter is 3 years old now and has got admitted

in school. Keeping in view standard of living of the parties, present

age of inflation, expenses of education of the daughter, medical and

other expenses of the aggrieved woman and the daughter, etc. this

court is of considered view that at this stage a maintenance amount

of Rs. 10,000/- [ten thousand rupees] to the aggrieved woman and

Rs. 5,000/- [five thousand rupees] to the minor daughter shall serve

the purpose.

(9.2) Respondent Riteish Choudhury has not only deprived the

aggrieved woman of his care during her pregnancy and thereafter,

but has also neglected to take care of his daughter and even to make

minimum correspondence with her. As such, it is found that some

compensation should be paid to the aggrieved woman in this case.

This court is of considered view that a compensation amount of Rs.

3,00,000/- [three lacs rupees] shall serve the purpose keeping in view

entire facts and circumstances of the case.

(9.3) Aggrieved woman made a prayer to return her ‘stridhan’ articles

and cash amount of Rs. 1,51,000/-. She stated in her petition that the

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said cash was brought as ‘stridhan’. In evidence also she stated that

she was given Rs. 1,51,000/- and several articles from her parental

home at the time of marriage. PW2 also stated that. Obviously that

amount was given for her own use. None of the PW.s stated that the

said amount was snatched away by the respondents. The aggrieved

woman stayed at matrimonial home for about one year. So, her

demand for the entire amount of money is exorbitant. Since adequate

compensation has been granted to her, prayer for return of that

amount is not found to be necessarily considerable at this stage.

Respondents stated in written statement that they are ignorant about

the amount of gold, brought by the aggrieved woman. They saw her

wearing some golden or imitated articles at the time of coming to

their house as bride. But during adducing evidence, DW1 stated that

she came out wearing her gold ornaments. That means he knows that

she has her own gold ornaments. PW1 stated that she came out of

matrimonial home in the dress, that was being worn by her at that

time. She stated the same in her ejahar also, which was lodged at All

Women Police Station [Ext.1]. DW2 admitted that the aggrieved

woman brought clothes, ornaments, etc. at the time of marriage. So,

regarding leaving gold ornaments at the house of the respondents,

preponderance of probability lies in favour of the aggrieved woman.

DW1 admitted that the aggrieved woman’s furniture and clothes are

at his house. But the aggrieved woman herself has not made any

demand for furniture in her petition. Respondents have not stated

anything about the utensils, mentioned in the list of the aggrieved

woman. After considering all these aspects, this court is of considered

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view that the aggrieved woman is entitled to get back the articles,

mentioned in the list of her petition, except the cash amount.

Decision:- Points (ii) and Point (iii) are decided in affirmative.

(10) In view of the above discussion and the decisions, reached in the

points for determination no. (i),(ii),(iii) this court holds –

(a) That respondents Ratanlal Choudhury and Ramesh Choudhury are

not found to be liable for committing acts of ‘domestic violence’

upon the aggrieved woman.

(b) That respondent Ritesh Choudhury is found to be liable for

committing acts of ‘domestic violence’ upon the aggrieved person.

(c) That respondent Ritesh Choudhury shall pay a maintenance of Rs.

10,000/- (ten thousand rupees) only per month for the

maintenance of the aggrieved person. He shall pay a maintenance

of Rs. 5,000/- (five thousand rupees) only per month for

maintenance of daughter Tamanna Agarwalla. That means he has

to pay maintenance amount of Rs. 15,000/- [fifteen thousand

rupees] in total. As the daughter is minor, the maintenance on her

behalf shall be received by the aggrieved woman till the daughter

is legally entitled to get the same.

(d) That respondent Ritesh Choudhury shall pay a compensation of

Rs. 3,00,000/- [three lacs rupees] to the aggrieved woman within a

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period of 4 months of passing this order.

(e) That the respondents shall return articles, mentioned in the list of

the aggrieved woman in her petition, except the amount of money

of Rs. 1,51,000/-, within a period of two months of passing this

order. If necessity arises the aggrieved woman may take the help

of concerned police station to recover her articles.

The order of maintenance is effective from the date of filing

the application by the aggrieved woman.

Order of interim maintenance is vacated hereby. Interim

maintenance, already paid, shall be adjusted with the maintenance

amount, to be paid as per instant order.

Each of the parties is to be provided with a copy of this order

free of cost. Send another copy to the Protection Officer, Golaghat

for information. Send a copy of the order to the O.C., Bhangagarh

police station who shall provide assistance, if required, in

implementing this order.

The case is disposed of on contest without costs.

Given under my hand and the seal of this court on this the 20th

day of September,2016 at Golaghat.

SMTI B. DUTTA

SUB DIVISIONAL JUDICIAL MAGISTRATE(S), GOLAGHAT

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APPENDIX (A)Prosecution Exhibits: (i) Exhibit 1- Certified copy of ejahar dated 19/04/12, lodged by aggrieved woman (B)Defence Exhibits: (i) Exhibit A- Copy of ejahar dated 19/04/12 of Indu Devi Agarwalla (ii) Exhibit B- Copy of complaint of Indu Devi Agarwalla filed at Assam State Commission for Women (C)Prosecution Witnesses: (i) PW1- Rachna Agarwalla (ii) PW2- Bikash Agarwalla (iii) PW3- Sunila Devi (D)Defence witnesses:

(i) DW1- Riteish Choudhury

(ii) DW2- Ramesh Choudhury

(iii) DW3- Ratanlal Choudhury

(iv) DW4- Indu Choudhury

(v) DW5- Mahabir Prasad Jallan

SMTI B. DUTTA

SUB DIVISIONAL JUDICIAL MAGISTRATE(S), GOLAGHAT

Documents

golaghatjudiciary.gov.ingolaghatjudiciary.gov.in/jmnt/2016/sept/sdjm/MISC... · RACHNA AGARWALLA –Vs- RITEISH CHOUDHURY & ORS. TYPED BY ME SDJM(S), GOLAGHAT was born at Golaghat