Law is very clear on this point. Section 19 of the DV Act clearly provides that the Magistrate while disposing of an application under Section 12(1) of the DV Act can pass an order under Sub Section (1) of Section 19 or any other order under Sub Section (2) to Sub Section (8) of Section 19 of the Act. this was held in Sri Dipak Biswas and Ors v. Smt. Aditi Kar (Biswas) and Ors [MAC App. No. 55 of 2019] in the High Court of Tripura by the single bench consisting of MR. JUSTICE S.G. CHATTOPADHYAY.
Facts are Respondent-wife had filed an application under Section 12 of the D.V. Act, a complaint under Section 498A IPC and also maintenance petition U/S 125 Cr. P.C. She claimed in a petition for return of her stridhan and a direction to her husband prohibiting him from committing any act of domestic violence on her. The Court passed an order in favor of the wife. Aggrieved by the order the husband filed an appeal in the Court of the Sessions Judge who affirmed the trial court order. Thus present petition has been filed to challenge the order passed by the Sessions Judge.
The counsel for the petitioner that an order U/S.19(8) of the DV Act directing the husband to return Stridhan can be passed only when it is proved that domestic violence has taken place, of which there is no proof. The petitioner had already taken away by her stridhan while she left her matrimonial home.
The counsel appearing for the respondent submitted that the trial Court had called for a domestic violence report from the Protection Officer and such report along with the evidence adduced by the wife clearly proved that the wife was subjected to domestic violence and her stridhan was retained by her husband in the matrimonial home. Thus there is no reason to interfere with the order of the court.
The Court made reference to judgment of Apex court in Krishna Bhattacharjee Vrs. Sarathi Choudhury and another, wherein the following observations were made, “a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife, and if he diverts the entrusted property elsewhere or for different purposes, he takes a clear risk of prosecution under Section 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.”
The Court also made reference to judgment of Apex court in Reshmi Kumar(Smt) V. Mahesh Kumar Bhada, wherein the following observations were made, “It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless, he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof.”
Considering the precedents and the facts of the case the court held that, the respondent-wife had given consistent evidence at the trial Court in support of her allegation that she was persistently abused by her husband which included physical abuse as well as emotional abuse. The allegation that the petitioner had committed domestic violence U/S.3 of the DV Act had been proved and the Court’s order was correct and the direction to return Stridhan was as well. Thus the court dismissed the petition.
