Jammu & Kashmir High Court
Gurvinder Singh vs Ikpal Kour And Anr. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561- A Cr.P.C. No.533/2015 & MP No. 01/2015
Date of decision:12.10.2017
Gurvinder Singh Vs. Ikpal Kour and Anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. Charanjeev Singh, Advocate.
For the Respondents(s) : Mr. Dewakar Sharma, Advocate.
__________________________________________________________________________________________ i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes/No Digest/Journal
1. In this petition, the petitioner has assailed the validity of order dated 11th February, 2015 passed by the Court of learned Sub-Judge, Judicial Magistrate 1st Class, Udhampur in case File No. 07/Misc, Complaint titled, "Ikpal Kour Vs. Gurvinder Singh and Others", pursuant to which, taking cognizance for offences under Section 12 read with Sections 17, 18, 19, 20 and 22 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (in brevity, the Domestic Violence Act), the Court has directed issuance of notice to the applicant. The petitioner seeks quashment of the Complaint and the above stated order of taking cognizance and issuance of notice.
2. The facts giving rise to the filing of the instant petition briefly stated are that, the non-applicant No.1, namely, Ikpal Kour, proceeding on false, frivolous and baseless assumptions, both in law as well as on the facts, has filed a Complaint under Section 12 of the Domestic Violence Act against the applicant and non-applicant No. 2, wherein the Court of Sub- Judge, JMIC, Udhampur (hereinafter referred to as the "Trial Court) 561-A Cr.P.C. No.533/2015 Page 1 of 11 2 vide its order dated11th February, 2015 while taking cognizance for offence under Section 12 read with Sections 17, 18, 19, 20 and 22 of the Domestic Violence Act has directed issuance of notice against the applicant and non-applicant No. 2.
3. The non-applicant No. 1 proceeded to file the alleged Complaint on the premises that the marriage of the non-applicant No. 1 was solemnized with the applicant on 20th November, 2011 at Govardhan Palace, opposite GREF, Dhar Road, Udhampur and that the applicant and non-applicant No. 1 were living in domestic relationship as husband and wife for few days at Jammu and then at Faridabad, Haryana from December, 2011 to 25th July, 2012. It is alleged that the applicant and non-applicant No. 1 are now living separately for last two and half years. Further as per the Complaint at Faridabad, the applicant started enquiring about her bank savings, which she earned before the marriage as Teacher at APS, Udhampur and also started demanding an amount of Rs. 5.00 lacs for booking flat at Faridabad and also demanded car from her. It has further been alleged in the Complaint that thereafter, the applicant assaulted many times upon non-applicant No. 1 on various issues of domestic life and whenever non-applicant No. 1 tried to disclose the aforesaid fact to her mother-in-law, i.e., non-applicant No. 2 herein used to take it otherwise and said that her son was/is having the right and free to decide his matrimonial life.
4. It has further been alleged in the Complaint that respondent No. 1 was victimized by the applicant at Faridabad by different means and on 24 th July, 2012, the non-applicant suffered deep injury on her head when non- applicant No. 2 caught hold of her neck and hit her head with some blunt object, regarding which she went to the Police Post of Sector 15 at Faridabad and then, she was brought to B.K. Hospital for treatment. As per the Complaint, the non-applicant No. 1 on 25th July, 2012 made the 561-A Cr.P.C. No.533/2015 Page 2 of 11 3 Complaint of domestic violence to the Protection Officer at Faridabad, but he refused to pursue the case under the provisions of Protection of Women against domestic violence Act. 2005 at Faridabad. Thereafter, she took some clothes with her and came to the house of her parents at Udhampur, where she also filed an application against the applicant at Police Station, Women Cell at Udhampur, but no single action had been taken by the police against them and as per Complaint of the non- applicant No. 1, since 25th July, 2012, she has been residing at Udhampur and the applicant at Faridabad.
5. From bare perusal of the contents of the Complaint, as alleged by the non-applicant No. 1, it gets demonstrated in clear terms that few days after their marriage, the applicant and non-applicant No. 1 went to Faridabad and as per the Complaint, all the alleged acts had taken place at Faridabad, Haryana, the place where she resided with applicant after marriage till 25th July, 2012 and since then, she has been residing with her parents at Udhampur. As no part of the cause of action as arisen in the State of Jammu and Kashmir, therefore, the Trial Court at Udhampur had no jurisdiction to deal with the said Complaint or to entertain the same and pass any order. Section 177 of the Code of Criminal Proceedings Svt. 1989 refers to ordinary place of enquiry and trial of any offence in the following manner:-
"Section 177. Ordinary Place of Inquiry and Trial:-
Every offence shall ordinarily be enquired into and tried by the Court within the local limits of whose jurisdiction, it was committed."
6. Even otherwise, the aforesaid Domestic Violence Act has no application for the alleged acts of domestic violence committed outside the State of Jammu and Kashmir, as it has applicability only within the State of Jammu and Kashmir and does not cover any alleged acts of domestic 561-A Cr.P.C. No.533/2015 Page 3 of 11 4 violence committed outside the State of Jammu and Kashmir, as alleged in the Complaint by non-applicant No. 1. Therefore, the Trial Court lacks jurisdictional competence in entertaining the said Complaint, that too by invoking provisions under the Domestic Violence Act or otherwise.
7. The Trial Court in a slipshod manner has proceeded with the said Complaint and in doing so has been overlooked the mandatory provisions of law, governing filing of the Complaint under the Domestic Violence Act and has ventured to issue notice against the applicant on the basis of imaginary, false, frivolous and baseless allegations leveled against the applicant by the non-applicant No. 1 in the Complaint, that too filed two and half years after she willfully left the home of applicant at Faridabad and started living at her parental home at Udhampur. The non-applicant No. 1 in filing the said Complaint has narrated, manipulated and concocted assertions, which are false to the core and are vehemently denied by the applicant. The applicant never ever treated the non- applicant No. 1 with cruelty muchless in the manner, as alleged in the Complaint and rather, it was the non-applicant No. 1, whose conduct was unbecoming of a prudent wife and she without any rhyme and reason of her own violation left the company of the applicant, who had been residing after separation from his family at Faridabad alongwith non-
applicant No. 18. In the backdrop of the aforesaid, not only very tenability of the Complaint becomes questionable, but exercise jurisdiction by the Court below also becomes a question mark, warranting consideration of this Hon'ble Court in its inherent jurisdiction.
9. The petitioner is aggrieved of the proceedings contemplated in the above stated Complaint and in turn of the order dated 11 th February, 2015 of the Trial Court, whereby notice has been issued against the applicant, he as such seeks to challenge the same inter alia on the following grounds:-
561-A Cr.P.C. No.533/2015 Page 4 of 11 5(a) The Complaint filed by the non-applicant No. 1 is based on the allegations, which are totally imaginary, false, frivolous, vague and baseless, that too has been filed two and half years after she willfully, of her own violation left the home of the applicant at Faridabad and started living at her parental home at Udhampur and the filing of the said Complaint is sheer abuse of the process of the Court actuated with malafide, so the same requires to be quashed.
(b) The Trial Court acting in a casual manner while taking cognizance in the matter has miserably failed to take into consideration the aspect as whether the Court has jurisdiction under the provisions of the Domestic Violence Act to take cognizance in the matter and to issue notice to the applicant, as in order impugned, that too disregarding the fact that on the basis of alleged factual scenario disclosed by the non-applicant No. 1 in the Complaint, all the alleged acts have shown to have taken place at Faridabad and no part of cause of action has arisen in Jammu.
(c) The Trial Court has committed a grave error in law in assuming unto itself the jurisdiction to entertain the Complaint and pass the order impugned and in doing so has overlooked the mandatory provisions of law, governing filing of the Complaint under the Domestic Violence Act and also under the Jammu and Kashmir Code of Criminal Proceedings Svt. 1989.
(d) Even otherwise, the Trial Court in derogation to the mandatory provisions of the Domestic Violence Act has ventured to proceed against the applicant without calling and taking into consideration the domestic incident/report of the Protection Officer or a service provider in the matter, which is sine-quo-non for a Magistrate before passing any order in the Complaint. So, the order impugned being passed in violation of the mandatory provisions stated above is bad in law and the same deserves to be quashed.
(e) The Trial Court while entertaining the Complaint and issuing notice to the applicant has miserably failed to notice that the same has not been filed in Form-II, as prescribed under Rule 6 (1) of the Jammu and Kashmir Protection of Women from Domestic Violence Rules, 2011 has neither been verified by the non-applicant No. 1 in prescribed manner nor the same contains all the requisite information, as contemplated in Form-II, the same being filed in utter violation of the mandatory provisions deserves to be quashed by this Hon'ble Court.
The Complaint in question and the proceedings initiated therein are abuse of the process of the Court and have cause miscarriage of justice. Respecting the subject matter, the applicant has not filed/taken out any proceedings of any nature before any other Court, Forum in and outside the State.
10. I have considered the arguments of counsel for the parties. I have also gone through the law on the subject and have also gone through the contents of the complaint filed by respondent no.1 before court below. The relevant paras of complaint read as under:-
"That the complainant / aggrieved person is wife of the respondent No. 1 married on 20th of November 2011 with respondent No. 1 at Goverdhan 561-A Cr.P.C. No.533/2015 Page 5 of 11 6 Palace, Opp. Gref, Dhar Road, Udhampur. The petitioner and respondents were living in a domestic relationship after marriage at Jammu for few days and then at Faridabad, Haryana from December, 2011 to 25.07.2012. The respondent No. 1 was/is working as a Assistant Manager Sales (north Zone) in a IPG Photonics (India) Pvt. Ltd 94/15 Faridabad (Haryana). The petitioner and respondent No. 1 are now living separately for the last two and half years. The petitioner is now living in a rented accommodation near her father's house at Udhampur.
That the act of the greediness and illegal demand of dowry was evident when the complainant got engaged 17th July of 2011 with the respondent No. 1 and the sister in law demanded the costly outfit of WILLS for bride and other family members (A Branded company for clothing) but the complainant take it otherwise and gifted the costly outfit comprised of pent coat. That after the solemnization of marriage and on the day first at the house of respondents, the sister in law and respondents demanded the entire money amount of Rs. 11,000/- from the complainant which was given by the relatives of the complainant as Shagun. The sister in law clearly told the complainant that she has no right on that money. The incident makes the complainant embarrassed and leads her in a depressed state of mind. But again she tolerates it on one pretext or the other and handed over the money to her sister in law. That the respondent No. 1 and 2 paid no heed to the above mentioned fact instead they supported the sister in law. Respondent No. 1 went to Faridabad in the First week of December, 2011 without caring the complainant and instructed the complainant to bring an amount of Rs. 5,00,000/- and the entire bank saving if she is interested to live with him. The mother in law i.e. respondent No. 2 of the complainant enquired about the dowry and bank account saving her and always compared the relatives for having everything in dowry from the marriages of their son. The complainant started feeling herself to be a victim of mental pain and agony which was the beginning of the domestic violence towards the complainant.
That the complainant and respondent No. 3 went to the respondent No. 1 at Faridabad in third week of December, 2011 and immediately on the second day at Faridabad, the respondent No. 1 started enquired about the bank saving which she earned before marriage as she worked as private teacher at APS, Udhampur. The respondents demanded an amount of Rupees five lac (Rs. 5,00,000/-) for the booking of the flat at Faridabad. Moreover, the respondents demanded the car from the complainant. The complainant was harassed for the dowry and respondents usually threatened the complainant that she will face the dire consequences if she will not fulfil the illegal demand of dowry of the respondent. The complainant was assaulted many times by the respondent No. 1 on various issues of domestic life. The complainant was subjected to physical, verbal, economical and emotional social violence which she tolerates on the one pretext or the other. She was under the impression that one day the good sense will prevail upon the respondents and thereafter never disclose this fact to her parents at the initial. When she tried to disclose the abovementioned fact to her mother in law who is respondent No. 2, she takes it otherwise and asks that her son was/is having the right and free to decide his matrimonial life. That the mother in law of the complainant assist, support and encourage the respondent No. 1 in the domestic violence towards the complainant so that she may get pressurized to fulfil the illegal demand of money and dowry of the respondents.561-A Cr.P.C. No.533/2015 Page 6 of 11 7
That the respondents victimized the complainant for getting the illegal demand of dowry and money. Even the complainant gave an amount of Rs. 50,000/- to the respondent No. 1 for the purchase of household items at Faridabad like Double bed, sofa etc. The demand of dowry never ends here as both the respondents demanded an amount of Rs. Five lac for the booking of flat at Faridabad. They subjected her to continuous victimization of physical, verbal, emotional and economical violence. The complainant narrated the whole events of domestic violence to the parents in the month of April, 2012 on telephone. But they believed and ensured her that everything will be all right one day and choose to remain silent.
That respondent No. 1 also told the complainant that he married with her only to get the monetary gain by demanding the money and other dowry items. The respondent No. 1 usually assaulted the complainant and on one day he hold both the hands of complainant and took her to the electric heater to give her electric shock but she all of sudden resist and left the kitchen. On this, mother in law just laugh and take it otherwise. On many occasion the respondent No. 1 threw away plates of meals forcefully in the dustbin. The respondent even not allows to use the cloths or general items of the house during the domestic relationship. The respondent thus develops a constant fear of economic, physical, emotional violence in the complainant.
That the respondent was adamant person and again asked the complainant to pay the rent of share household and bring the ration items of the kitchen from the meagre bank balance. Though she was having no source of employment, she assured that if she will get the job she will help them. But the respondents made an accusation on her character and never allowed her to join the job. The respondents even completely deny to provide the basic amenities of life i.e. medicines, clothes to the complainant. That offence of domestic violence reached at the peak level, when the complainant got a job in a private school as a Physical Education Teacher on 9th July, 2012 in a reputed school namely Vidhya Mandir School, Faridabad and complainant requested to purchase the sports shoes. The respondent No. 1 was all prepared as he usually remains prepared to assault and to kill the complainant. The respondent started abusing and assaulted her by fists and blows and tried to kill her by holding forcefully from the neck and by sitting on her legs. The complainant manages to escape from the clutches of the respondent No. 1 and then started shouting, on which the respondent No. 1 left the house. The respondent No. 1 threatened her that if she demanded any things from her, he will kill her.
That in the month of July, 2012, the respondent again assaulted the complainant and on 24th July, 2012 at 5.45 PM, he again started abusing on the repeated issues of purchasing of shoes on whose objection the respondent No. 1 caught hold of her neck and hit her head with some blunt object by virtue of which she got a deep injury on her head and started bleeding and then respondent No. 1 left the room. The complainant immediately call to her mother in law on telephone but she again shield her son by a comment that these things are common and happened in every home and suggested not to report the police. The respondent no. 1 again threatened that he will kill her. The complainant informed the incident to her parents on telephone and they advice her to report the concerned police.
That the complainant protected herself and went to police post of Sector 15 at Faridabad almost at 6 PM and then the complainant brought to the B.K Hospital at 6.45 PM for treatment where the doctors keeping in view the 561-A Cr.P.C. No.533/2015 Page 7 of 11 8 serious head injury and started her treatment and prepared the medico legal report. The complainant was admitted at the B.K Hospital for a night. The respondent No. 1 on 25.07.2012 came to the hospital and forcefully removed the jewelry i.e. gold chain with locket, two gold bangles, gold ear rings (Toppas) from the complainant and again threatened that police could not do anything for her and now he will definitely kill her. The complainant made the statement of domestic violence to the protection officer on same day but refused to pursue the case under the provision of Protection of Women again Domestic Violence, 2005 at Faridabad because she was having every apprehension that she would be killed by the respondent No. 1. She was discharged on 25.07.2012. The complainant with the help of protection officer takes some clothes and came to the house of her parents at Udhampur. That the complainant moved an application against the respondents at Women Cell, Police Station, Udhampur, but no single action has been taken by the police against the respondents as they are strong headed person and influenced the other by imposing the political pressure. That despite of all the incident of physical, verbal, emotional and economic violence conclusively amounts to the cruelty and domestic violence, the family of the complainant tried their best to settle the dispute in the mid of year 2013 but all was the futile exercise as the respondent and his family members are adamant on their old pretext of illegal demands.
That in the year 2014, the one of the relatives continuously remain in contact with the mother of the complainant and till now was giving the false assurance of settlement so that the complainant could not take any action against the respondents. Now it becomes clear from the reliable sources that respondents are avoiding to protect themselves from the offences of domestic violence. The respondent No. 1 is getting the monthly salary of Rs. 25,000/-, but right after the marriage, he had not paid even a single penny to the complainant for the basic and daily needs items till now. She is living with her parents for the last two and half years who arranged the accommodation and other basic necessities of life for her."
11. The court below on 11.2.2015 after going through the complaint has issued notice to petitioner herein for appearance.
12. The Jammu and Kashmir Protection of Women from Domestic Violation Act 2010 has been legislated for more effective protection of the rights of women guaranteed under Constitution, who are victim of violence. Section 12 of Act empowers victim to file a petition before Magistrate regarding domestic violation; section 18 deals with passing of protection order; section 19 deals with passing of residence order; section 20 deals passing of monetary order; section 21 deals with passing of custody order and section 22 deals with compensation order. These types of orders can be passed/ granted by Magistrate after hearing and finally deciding the application under sections of Act. However in terms of 561-A Cr.P.C. No.533/2015 Page 8 of 11 9 section 23 of Protection of Women from Domestic Violence Act, the Magistrate to grant ex-parte interim relief/s as Magistrate deems just and proper during pendency of application under section 12 of Act. Section 23 of Act consists of two parts; section 23(1) empowers Magistrate to pass ex-parte interim order during pendency of main petition under section 12 of Act; section 23 (2) empowers Magistrate to pass ad-interim order during pendency of interim petition under section 23(1) of Act. The purpose of this section is to save the victim from vagrancy, continuous harassment, dispossession of victim from place of residence or share hold, alienation of such place of residence or shared household etc. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be.
13. Section 28 of Act states that all proceedings under section 12, 18, 19, 20, 21, 22, 23 and section 31 of Act shall be governed by provisions of Cr.P.C.; sub section (2) section 28 of Domestic Violence Act gives the power to the trial court to lay down its own procedure for disposal of an application under sections 12 and 23 of Domestic Violence Act.
14. Under section 37 of Act, Government can make rules for carrying and in order to give effects to provisions of Act. Thus Govt. has also framed rules called Protection of Women from Domestic Violence Rules 2011. The Jammu and Kashmir protection of Women from Domestic Violence Act 2010 is complete Act, which deals with Domestic violence against women. Its section 27 deals with jurisdiction, it reads:-
"27. Jurisdiction.--561-A Cr.P.C. No.533/2015 Page 9 of 11 10
(1) The court of Judicial Magistrate of the first class as the case may be, within the local limits of which--
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act."
15. So bare perusal of this section, it is evident that, the JMIC in whose territorial jurisdiction aggrieved person permanently or temporarily resides have jurisdiction to deal the matter. In present case, aggrieved person /respondent has stated in complaint that she is residing on rented accommodation at GTB Nagar Omara Morh Udhampur near to the house of her father. So JMIC Udhampur has is competent court to grant a protection order and other orders under this Act and to try offences under this Act.
16. So ground taken by petitioner for quashing the proceeding that in terms of Section 177 of the Code of Criminal Proceedings Svt. 1989 the offence shall ordinarily be enquired into and tried by the Court within the local limits of whose jurisdiction it has been committed, is not tenable. Further the strict procedure for taking cognizance on complaint as per Cr.P.C. is not applicable, because in terms of section 12 of D.V Act only petition is required to be filed and not a complaint. All others grounds taken in this petition are pertaining to facts, which this court cannot consider in this petition.
17. This Court while exercising the power under section 561-A Cr.P.C. does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, careful and with great caution. These powers cannot be used to stifle the legitimate proceeding. This is discretionary power vested in High Court to do substantial justice. Further court below has only issued notice and has not passed any final order. Petitioner 561-A Cr.P.C. No.533/2015 Page 10 of 11 11 instead of approaching court below has filed this petition. Petitioner has remedy to file objection before court below and he can take all defenses which he taken before this court.
18. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. Copy of order be sent to court below for information.
(Sanjay Kumar Gupta) Judge Jammu, 12.10.2017 Ram Krishan 561-A Cr.P.C. No.533/2015 Page 11 of 11