Bench: A
B Chaudhari
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
CRIMINAL
WRIT PETITION NO.37/2008
PETITIONER:- Kishor s/o
Shrirampant Kale,
age about 50 years, r/o Chimote
Layout,
Dastur Nagar,
…VERSUS…
RESPONDENTS:- 1. Sou.
Shalini w/o Kishor Kale,
age
about 42 years.
2. Master
Shantnu s/o Kishor Kale,
age about 15 years,
(Minor through
guardian,
Respondent No.1).
Both
resident of c/o Sahebrao Gadhawe
Kolha
Kakda, Tq. Achalpur, Dist.
3.
State of
Through
P.S.O.
Rajapeth
Police Station,
————————————————————————————————— [Shri P.P.
Mahalle, Adv. for petitioner]
[Ms T.H. Udeshi, Adv. for respdt. Nos.1 &
2]
[A.P.P. for respdt. No.3]
————————————————————————————————— CORAM:-
A.B. CHAUDHARI, J.
Date of reserving the judgment :- 17.02.2010
Date of pronouncing the judgment :- 30.03.2010 JUDGMENT
1. In the present
writ petition, the petitioner husband has put to challenge the proceedings in
Misc. Criminal Complaint Case wp37.08.odt 2/22 No.314/2007, filed by respondent
Nos.1 and 2 in the Court of Chief Judicial Magistrate, Amravati under Section
12 r/w Section 19 an 20 of the Protection of Women from Domestic Violence Act,
2005 as not maintainable and also the orders dated 31.10.2007 and 11.12.2007,
made by the Courts below in the said proceedings. FACTS
2. Respondent No.1
is the wife of petitioner and respondent No.2 is the son of the petitioner.
They filed complaint under Section 12 r/w 19 and 20 of the Protection of Women
from Domestic Violence Act, 2005 (For short, hereinafter referred to as ‘the
Act of 2005′) in the Court of Chief Judicial Magistrate,
3. Based on these
facts, reliefs were claimed or directions to the petitioner to pay Rs.7,000/- per
month to each for maintenance from the date of application and to allow the
respondents to reside in the house of the petitioner or to pay rent for other
accommodation. wp37.08.odt 4/22 The petitioner appeared before the trial Court
and filed application for dismissal of the complaint and also raised objection
about maintainability of the complaint. Judicial Magistrate First Class, Court
No.5, Amravati rejected the application (Exh.12) for dismissal of complaint by
his order dated 31.10.2007 and by order dated 31.12.2007 allowed application
(Exh.5) in the complaint by directing the petitioner to pay maintenance @
Rs.2,000/- per month to respondent No.1 and Rs.1,000/- per month to respondent
No.2 by way of interim maintenance and Rs.1200/- per month by way of rent of
house. Appeal that was filed by the petitioner was dismissed by the appellate
Court by order dated 11.12.2007. Hence, this petition under Article 227 of the
Constitution of India.
SUBMISSIONS :
4. Learned Counsel
for the petitioner in support of the writ petition vehemently argued that the
complaint that was filed under the Act of 2005 was itself not maintainable and
the trial Court ought to have allowed application (Eh.12) for dismissal of
complaint. The complaint was not filed in Format-II and Sections 5 and 7 of the
Act of 2005 provide for mandatory forms.
5. Learned Counsel
for the petitioner invited my attention to Format-II under Rule 6 (1) of the
Protection of Women From Domestic Violence Rules, 2006 and the various items
mentioned in the said format, which provide for giving information as mentioned
therein and according to him, in this case there is failure on the part of the
respondents in giving the material details, required as per the said format
with a view to suppress the material facts. Learned Counsel repeatedly argued
that the details required by the said format were not furnished by the
respondents in order that the facts if brought before the Court as per the said
information required would have entailed dismissal of the complaint itself.
According to him, it is for this reason this format II will have to be held to
be mandatory requirement and upon failure thereof the consequence ought to be
the dismissal of such application for non-compliance of mandatory provisions of
law. Learned Counsel then argued that it is an admitted fact that since
7.11.1992 i.e. almost 15 years before filing of this complaint, the respondents
have been living separate from the petitioner and it is not even the case of
respondent Nos.1 and 2 that during this period of 15 years the respondents had
seen each other even eye to eye much less had any contact of any nature
whatsoever. Learned Counsel then argued inviting my attention to Section 3 of
the Act of 2005, which wp37.08.odt 6/22 defines domestic violence and the
complaint filed by the respondents does not at all disclose any domestic
violence within the meaning of said Section 3 of the Act of 2005. The domestic
violence according to him has to be shown to have occurred in the near or
recent past and since in the instant case from 1992 onwards admittedly there
had been no contact, communication or relationship whatsoever the existence of
domestic violence cannot be presumed even on the contents or averments in the
complaint taken to be true at their face value.
6. Inviting my
attention to paragraph regarding cause of action, learned Counsel for the
petitioner argued that it is the case of the respondents that cause of action
is of the year 1992 and therefore various prayers made in the complaint on the
basis of the averments in the complaint were untenable. According to learned
Counsel for the petitioner, unless it is shown that there has been domestic
violence in the recent past before filing the complaint, the Court cannot
entertain the complaint in respect of the cause of action, which according to
the respondents arose firstly in the year 1992. According to learned Counsel
for the petitioner the complaint nowhere shows single allegation about any
restriction or prohibition or the deprivation of any act on his part at a
particular time or date or period reasonably recent in point of time before
filing of the complaint and therefore, no wp37.08.odt 7/22 domestic violence
can be said to have been constituted and consequently the complaint could not
have been entertained and was liable to be dismissed by the trial Court.
According to him, it is not the case of the respondents that after 1992,
respondents had any access to facilities or accommodation etc. or that there
was any deprivation thereof by the petitioner. Since the averments in the
complaint do not disclose any cause of action and since according to learned
Counsel for the petitioner filing of the complaint clearly amounts to abuse of
process of the Court, this Court acting in its supervisory jurisdiction may
dismiss the complaint as not maintainable as the trial Court did not have
jurisdiction to entertain the complaint itself under the Act of 2005. No act of
violence was at all alleged against the petitioner in the complaint right after
1992. Respondent No.2 cannot become aggrieved person, he being a minor child on
the date of application and thus his complaint was also not maintainable.
7. Per contra,
learned Counsel for respondent Nos.1 and 2 vehemently opposed the petition and
argued that both the respondents became aggrieved persons in the light of
definition under Section 2(a) and 2(b) of the Act of 2005. According to her,
there is no dispute that the legal status of marriage between the petitioner
and respondent No.1 and paternity of respondent No.2 is also not in dispute
wp37.08.odt 8/22 and consequently respondent No.1 is the legally married wife
and respondent No.2 is the child born out of the wedlock between petitioner and
respondent No.1 and therefore as per Section 2 (f) of the Act of 2005 there is
domestic relationship by marriage. According to her, domestic violence as
defined in Section 3 of the Act of 2005 is not to be understood with the
literal meaning of the word violence as sought to be canvassed by learned
Counsel for the petitioner and in terms of Section 3 of the Act of 2005
amplitude thereof is very wide and the Act of 2005 being beneficial piece of
legislation settled interpretation in relation thereto will have to be applied
while interpreting the provisions of Act of 2005. It is not necessary for
constituting the domestic violence the party should come in contact or physical
contact as is clear from the explanation (iii) of verbal and emotional abuse
and explanation (iv) economic abuse. She further submitted that economic abuse,
refusal to provide maintenance, house accommodation or financial resources or
such other facilities as the respondents are entitled to from the
petitioner/husband without there being any actual violence amounts to domestic
violence since the said definition of domestic violence under Section (3) of
the Act of 2005 is inclusive in nature. These are ultimately the matters which
are required to be decided on evidence and the question can be raised by
wp37.08.odt 9/22 the petitioner in the trial Court where the trial is on. The
extraordinary jurisdiction under Article 227 of the Constitution of India
cannot be exercised in the present matter and it is for the trial Court to
determine upon recording evidence etc. answers to the questions raised in the
present writ petition. The son of the petitioner and respondent No.1 i.e.
respondent No.2 has grown up and is taking education in engineering and both
the respondents who are living together want to live in Amravati for his
education and consequently they require more amount towards maintenance and
they also require accommodation at Amravati, which the petitioner is obliged to
provide and that is why grant of house rent allowance @ 1200/- per month has
been made by the Courts below. There is averment in the complaint about
disposal of the ancestral house property of the petitioner and his mother and
the said act on their part would fall within the meaning of economic abuse. It
is not necessary that there would be no domestic violence as defined under the
Act merely because of the separation from the year 1992. Learned Counsel for
respondents, therefore, prayed for dismissal of writ petition.
CONSIDERATION :
8. I have heard
learned Counsel for the rival parties at length on some dates. I have gone
through the copy of the complaint under wp37.08.odt 10/22 Section 12 r/w
Sections 19 and 20 of the Act of 2005 carefully. Following facts are not in
dispute.
The petitioner and
respondent No.1 were married on 8.5.1990 and respondent No.2 was born on
24.2.1991. Thereafter on 7.11.1992 respondent No.1 went to her father with her
son at his village and started living with her father and thereafter brother
since the year 1992. Litigation between the parties thus started after 1992 and
award of maintenance to both respondent Nos.1 and 2 was made by the Court and
the amount of monthly maintenance is being paid to respondent Nos.1 and 2 in
those proceedings under Section 125 of the Code of Criminal Procedure. A decree
of divorce was passed on 2.10.2008 and in the appeal the said order has been
stayed, in the result the legal status of respondent No.1 as a married wife of
petitioner continues. On the date of filing of the application, respondent No.2
son was admittedly minor but immediately after few months of the filing thereof
he became major i.e above 18 years. Respondent No.2 is taking education and as
per submission made by respondent No.1 he is now taking education in
9. Reading of the
entire complaint to my mind it would be pertinent to note that the complaint
does not contain a single averment that before filing the complaint, the
petitioner had committed any act of omission or commission or shown any such
conduct by which he wanted to deprive any of the respondents from enjoyment of
shared household and maintenance or the petitioner had at any point of time
prohibited or restrained or restricted any alleged continued access to the
resources or facilities which the respondents could be said to have been
entitled to use or enjoy by virtue of their domestic relationship. To put it in
other words, there is no assertion anywhere in the complaint that the
respondents had made any such demand for accommodation for any reason
whatsoever with the petitioner and the petitioner had denied to provide the same
or had omitted to do so even by conduct of any nature whatsoever. It is in the
light of these averments in the complaint the fate of the present matter will
have to be decided. The law is well settled that the averments in the complaint
even if taken to be true at their face value if no offence is made out ; and in
the instant case offence of domestic wp37.08.odt 13/22 violence, the complaint
is liable to be thrown out as the Court does not get jurisdiction to entertain
the same in the absence of any such offence having been made out. It is with
this legal position the present case will have to be carefully examined in the
light of the various provisions of the Act of 2005.
10. In the instant
case, peculiar facts are that admittedly the petitioner and respondents have
not been in contact with each other physically or otherwise for the last 15
years before filing of the complaint against him. In other words, suddenly
after a big gap of 15 years the Act of 2005 having been brought into force,
respondent Nos.1 and 2 approached the Court with the grievance that they want
higher amount of maintenance and rental in lieu of accommodation as there is
domestic violence on the part of the petitioner, which constitutes economic
abuse and since the economic abuse is included in the domestic violence under
Section 3 of the Act of 2005, offence of domestic violence is made out. The
moot question, therefore, in the light of these admitted facts is whether the
complaint could be said to be maintainable. In so far as the averments
regarding showing name of respondent No.1 as nominee in the service book or she
being shown as dead are vague. In so far as averments regarding disposal of
ancestral house at Kishor Nagar by petitioner and his mother are as wp37.08.odt
14/22 vague as could be and it is not possible to hold that on such vague
averments the complaint should be entertained on the ground that the averments
could be proved in the evidence. That is not enough. The Act of 2005 opens with
the preamble as under :
“An Act to provide
for more effective protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind occurring within the
family and for matters connected therewith or incidental thereto.”
11. Following
definitions of the Act of 2005 are relevant. “2 (a) “aggrieved person” means
any woman who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of domestic violence by the
respondent;
(b) “child” means
any person below the age
of eighteen years
and includes any adopted, step or foster child.
(f) “domestic
relationship” means a relationship between two persons who live or have, at any
point of time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family.
wp37.08.odt 15/22
(s) “shared household” means a household where the person aggrieved lives or at
any stage has lived in a domestic relationship either singly or alongwith the
respondent and includes such a
household where
owned or tenanted either jointly by the aggrieved person and the respondent, or
owned or tenanted by either of them in respect of which either the aggrieved
person or the respondent or both jointly or singly have any right, title,
interest or equity and includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or interest in the
shared household.”
12. Definition of
‘domestic violence’ is to be found in Section 3 of the Act of 2005, which reads
thus.
“Section 3 (a)
harms or injuries or endangers the health, safety, life limp or well being,
whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or
(b) ……………….
(c) ……………….
(d) ………………
Explanation I For
the purposes of this section, – (i) …
wp37.08.odt 16/22
(ii) .
(iii)
(a) ………
(b) ….
(iv) “economic
abuse” includes
(a) deprivation of
all or any economic or
financial
resources to which the aggrieved person in entitled under any law or custom
whether payable under an order of a Court or otherwise or which the aggrieved
person requires out of necessity including, but not limited to, household
necessities for the aggrieved person and her children, if any, stridhan,
property, jointly or separately owned by the aggrieved person, payment of
rental related to the shared
household and
maintenance.
(b) disposal of
household effects, any
alienation of
assets whether movable or immovable, valuables, shares, securities, bonds and
the like or other property in which the aggrieved person has an interest or is
entitled to use by virtue of the domestic
relationship or
which may be reasonably required by the aggrieved person or her children or her
stridhan or any other property jointly or separately held by the aggrieved
person; and
(c) prohibition or
restriction to continued
access to
resources or facilities which the aggrieved person is entitled to use or enjoy
by virtue of the domestic relationship including access to the shared
wp37.08.odt 17/22 household.
Explanation II For
the purpose of determining whether any act, omission, commission or conduct of
the
respondent
constitutes “domestic violence” under this section, the overall facts and
circumstances of the case shall be taken into consideration.”
13. Perusal of the
definition of ‘aggrieved person’ shows that respondent No.1 being married wife
of petitioner, respondent No.2 being son of petitioner and minor till he
attains majority would be aggrieved persons. Therefore, reading definition of
‘aggrieved person’ with the definition of ‘domestic relationship’ there is no
manner of doubt that the application at the instance of respondent No.1 as a
wife and at the instance of respondent No.2 till he attains the age of
majority, is maintainable. The Court is, however, entitled to decipher the
period of minority and majority of respondent No.2. The expression ‘has been’
and harms, injures or endangers’ occurring in the definition of aggrieved
person and elsewhere will have to be interpreted keeping in mind the opinion
expressed by the Apex Court in the case of The Secretary, Regional Transport
Authority, Bangalore and another…Versus…D.P Sharma and another, reported in
1989 .
Supreme Court 509,
in particular paragraph No.15, which reads thus. . …..In our opinion, whether
the expression ‘has been’ occurring in a provision of a statute denotes
transaction prior to the enactment of the statute in question or a transaction
after the coming into force of the statute will depend upon the intention of
the Legislature to be gathered from the provision in which the said expression
occurs or from the other provisions of the statute.”
Now Explanation –
II clearly provides that ‘overall facts and circumstances of the case shall be
taken into consideration’. In the case at hand, the respondents have abruptly
after a long gap of 15 years alleged domestic violence against the petitioner.
There is no proximity shown anywhere nearer to the date of filing the complaint
or any deprivation, prohibition or restriction upon demand being made before
filing the complaint.
14. Looking to the
definition of ‘shared household’ it can be seen that the words used are ‘at any
stage has lived in a domestic relationship or has right in such household’.
Definition of ‘domestic violence’ in Explanation – I (iv) to Section 3 shows
that economic abuse has been by inclusion defined as ‘domestic violence’.
Explanation – I (iv) ‘economic abuse’ has further been elaborated. Following
are the dictionary meanings :
Deprivation denial
of something considered essential. Prohibition action to prevent. Restriction
put a limit on. Perusal thereof particularly in clause (a) and (c) show that
aggrieved person has to be deprived of the economic or financial resources or
maintenance by the petitioner or the aggrieved person requires out of necessity
for herself and children including payment of rental related to accommodation
and maintenance. Now in the instant case, it is not in dispute that both
respondents are getting maintenance as per the orders of the Court passed in
various proceedings way back in the year 1996 and therefore, to say that the
petitioner has committed domestic violence by not paying any maintenance would
be incorrect. What the respondents want is the higher amount of maintenance due
to the higher cost of living but then there is nothing on record to show in the
complaint that any such higher amount of maintenance for any good reasons was
demanded by them from the petitioner and he refused or omitted to accede to
such demand. Similar is the case of the rental. Since it is an admitted fact
that complaint does not show single averment to the effect that accommodation
in the house of the petitioner was demanded by both of them or the petitioner
was doing any such acts resulting into deprivation of the accommodation and/or
entitled to consequent wp37.08.odt 20/22 payment of rental thereof in lieu of
accommodation due to failure to provide one. Looking to Explanation – I (iv)
sub clause (c) to Section 3 of the Act of 2005 the same shows that there has to
be prohibition or restriction to continued access to resources which the
aggrieved person is entitled to use and enjoy. There is neither any prohibition
averred in the complaint anywhere by the petitioner thereof nor any averment
that he had put any restriction or full or part use thereof or that there was
use made by the respondents just before filing of the complaint or recent past
before the complaint and that the continuity thereof was broken by the
petitioner. On the contrary, it is an admitted position that for the last 15
years there has been no contact or relationship between them.
14. Perusal of the
Explanation – II shows that the Court is required to take into consideration
overall facts and circumstances. Explanation II appears to have been inserted
specifically with a view to enable the Court to find out the deserving and
undeserving cases, which will be filed under the provisions of the Act of 2005.
In the instant case the various factual aspects which I have noted above and in
particular regarding the total eclipse for the period of 15 long years and in
the absence of any complaint regarding domestic violence at any point of time
before filing of the complaint in the recent past thereof or within
reasonable period this Court is of the opinion that overall facts and
circumstances of this case clearly show that even if the averments in the
complaint are taken to be true at their face value, no case of domestic
violence can even be inferred by the Court. The respondents could have adopted
their remedy available under the other Laws for enhancement of maintenance or
accommodation or rental or as the case may be, but certainly in the light of
the above discussion the respondents were not entitled to take recourse to the
Act of 2005. Consequently, the Court did not get jurisdiction under Section 27
of the Act of 2005 to entertain the complaint which was not maintainable for
the above reasons. Both respondents, however, were entitled to take recourse to
remedies under other Laws.
15. It is true as
argued by learned Counsel for the respondents that the Act of 2005 is
beneficial piece of legislation, but then the provisions of the Act of 2005 and
in particular Explanation II thereof clearly show that domestic violence cannot
readily be inferred but will have to be found out on the facts and circumstances
of each case. In the instant case according to
me domestic violence having been alleged only after 15 years by the respondents
would constitute an abuse of process of law. Certainly this
beneficial piece of legislation would be available to those who are entitled to
the benefits thereof and in the instant case, I have found that the
respondents are not entitled to at least under the Act of 2005 though they may
be entitled to the reliefs sought by them in the proceedings in some other Law.
16. In the result,
writ petition must succeed. Hence, I make the following order.
ORDER
(i) Rule is,
therefore, made absolute and it is held that Misc. Criminal Complaint Case
No.314/2007 before the Judicial Magistrate First Class, Court No.5, Amravati
under Section 12 r/w Sections 19 and 20 of the Protection of Women from
Domestic Violence Act, 2005 is not maintainable and is thus quashed and
consequently, all the orders passed in the said complaint by the Courts below
are quashed.
No order as to
costs.
JUDGE
SSW
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