Madhya Pradesh High Court
Jyoti vs Smt.Suman on 28 September, 2015
M.Cr.C.No.5635/2015
28.09.2015
Parties through their counsel.
The present petition has been filed under Section 482
of the Code of Criminal Procedure for quashment of M.Cr.C.
No. 307/2014 pending before the Additional Chief Judicial
Magistrate, Dewas.
The facts of the case reveal that the respondent-wife
has filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act 2005 against the husband and against her in-laws.
It has been argued before this court that the marriage took place on 06/05/2009 and a child was born on 06/02/2011. Thereafter, the wife is not residing with the husband and therefore, an application was preferred under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The same was allowed. A judgment and decree was passed on 30/11/2012. Inspite of the aforesaid judgment and decree, as the wife was not residing with the husband, a divorce petition was filed under Section 13 of the Hindu Marriage Act, however, the same was dismissed on 13/01/2014. FIR was also lodged on 17/10/2011 for offences punishable under Section 498A and 506 of I.P.C and the present petitioners came up before this court by filing a petition under Section 482 of Code of Criminal Procedure and this court by an order dated 24/07/2014 passed in M.Cr.C. No. 715/2013 has quashed the FIR and subsequent proceedings. The present complaint has been filed on 23/12/2014, meaning thereby after the FIR was quashed by this court in respect of offences punishable under Section 498A and 506 of the IPC. It has also been brought to the notice of this court that a petition was also preferred under Section 125 of the Code of Criminal Procedure and the court has granted maintenance to the tune of Rs. 4000/- per month by an order dated 22/08/2014.
Learned counsel for the petitioners has vehemently argued before this court that the respondent-wife is residing separately and she is filing a frivolous cases against her husband and the present complaint under Section 12 under the Act 2005 has been filed only because this court has quashed the FIR and the subsequent proceedings for alleged offences punishable under Section 498A and 506 of IPC. This court has quashed the proceedings for offences under Section 498A and 506 of IPC against the in-laws, however the proceedings are very much pending against the husband. He has also placed reliance upon a judgment delivered by this court in the case of Sundar Babu vs. State of Tamil Nadu reported in 2009 SC 2087.
On the other hand learned counsel appearing for the respondents has argued before this court that the wife is always willing to live with the husband. No execution case was filed after a decree was passed on an application preferred under Section 9 of the Hindu Marriage Act. He has also argued before this court that the proceedings are very much pending against the husband for offences under Section 498A and 506 of the IPC.
He has placed reliance upon a judgment delivered in the case of Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori reported in 2015(1)SCC(Crl)241. He has also placed reliance upon a judgment delivered in the case of Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors reported in Criminal Appeal No. 271/2011 decided on 31/01/2011. A reliance has also been placed upon a judgment delivered in the case of Bhaskar Mishra Vs. Smt. Shailaja Mishra reported in M.Cr.C.No.6199/2013 by the High Court of Madhya Pradesh decided on 04/10/2013.
Heard learned counsel for the parties and perused the record.
In the present case it is true that a decree for restitution of conjugal rights has been passed on 30/11/2012 and the husband and wife are not residing together. It is also true that against petitioner No. 2 & 3, FIR which was lodged for offences under Section 498A and 506 of the IPC has been quashed. But the fact remains that there are allegations in the complaint against all the three petitioners for committing domestic violence as defined under Protection of Women from Domestic Violence Act 2005, whether the petitioners have committed the offence or not is certainly a subject matter of trial and it has to be decided after appreciation of evidence.
This court in absence of statement of witnesses and in absence of any material before this court can not safely gather a conclusion that no domestic violence was committed upon the respondent.
In the case of Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors,the apex court in Paragraph 9 to 14 has held as under:-
9. Questioning the said judgment and order of the Nagpur Bench of the Bombay High Court, Mr. Garvesh Kabra, learned Advocate appearing for the Appellant, submitted that the High Court had erred in confirming the order of the learned Sessions Judge in regard to deletion of names of the Respondent Nos.2 and 3 from the proceedings, upon confirmation of the finding of the Sessions Judge that no female could be made a party to a petition under the Domestic Violence Act, 2005, since the expression "female"
had not been included in the definition of "respondent" in the said Act. Mr. Kabra submitted that it would be evident from a plain reading of the proviso to Section 2(q) of the Domestic Violence Act, 2005, that a wife or a female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term "relative" not having been defined in the Act, it could not be said that it excluded females from its operation.
10. Mr. Satyajit A. Desai, learned Advocate appearing for the Respondents, on the other hand, defended the orders passed by the Sessions Judge and the High Court and urged that the term "relative" must be deemed to include within its ambit only male members of the husband's family or the family of the male partner. Learned counsel submitted that when the expression "female" had not been specifically included within the definition of "respondent" in Section 2(q) of the Domestic Violence Act, 2005, it has to be held that it was the intention of the legislature to exclude female members from the ambit thereof.
11. Having carefully considered the submissions made on behalf of the respective parties, we are unable to sustain the decisions, both of the learned Sessions Judge as also the High Court, in relation to the interpretation of the expression "respondent" in Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference, Section 2(q) of the above-said Act is extracted hereinbelow :-
"2(q). "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner."
12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.
13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.
14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.
In the aforesaid case, it has been held that females are certainly not at all executed under the Provisions of Protection of Women from Domestic Violence Act 2005 in the case of Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori in paragraph 24,30,31 & 32 the Hon'ble Supreme Court has held as under:-
24. In the instant case, the appellant sought relief under Sections 18 to 23 of the Domestic Violence Act, 2005.
It includes protection order under Section 18, Monetary relief under Section 20, custody orders under Section 21, compensation under Section 22 and Interim relief under Section 23. Relevant provisions read as follows:
"Section 20. Monetary reliefs. (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to
a) the loss of earnings.
b) the medical expenses;
c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
2) The monetary relief granted under the section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
The Monetary relief as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under Section 125 of the Cr.P.C. Or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application under Section 12 is in a domestic relationship with the respondent.
30. In the present case, the alleged domestic violence took place between January, 2006 and 6 th September, 2007 when FIR No. 224 of 2007 was lodged by the appellant under Section 498A and 406 IPC against the 1st respondent and his relatives. In a writ petition filed by 1st respondent the High Court refused to quash the said FIR against him observing that prima facie case under Section 498A was made out against him. Even if it is accepted that the appellant during the pendency of the SLP before this court has obtained ex-parte Khula (divorce) under the Muslim personal Law from the Mufti on 9th May, 2008, the petition under Section 12 of the Domestic Violence Act, 2005 is maintainable.
31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, Child custody under Section 21, compensation under Section 22 and Interim Or ex parte order under Section 23 of the Domestic Violence Act, 2005.
32. Both the Sessions Judge and the High Court failed to notice the aforesaid provision of the Act and the fact that the FIR was lodged much prior to the alleged divorce between the parties and erred in holding that the petition under Section 12 was not maintainable.
Keeping in view the aforesaid judgment as there are serious allegations in the complaint against husband and in- laws, the complaint cannot be quashed at this stage. Another judgment over which a reliance has been placed upon, i.e., in the case of Bhaskar Mishra vs. Smt. Shailja Mishra. In paragraph 6 to 9 this court has held as under:-
6. On the other hand, the learned counsel for the respondent has submitted that interpretation done M.Cr.C. No.6199 of 2013 by the learned counsel for the applicants to the provisions of Section 2(q) of the Special Act is not correct.
The female members may also be prosecuted by that provision. In support of his contention, he has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of "Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhare and others" [(2011) 3 SCC 650]. It is also submitted that scope of Section 12 of the Special Act is more wide and the respondent can proceed for shelter and other facilities, which are not covered under Section 125 of Cr.P.C., and therefore if the applicant No.1 is depositing the maintenance amount, then the right of the respondent is still exists for other facilities. Similarly, no divorce took place between the parties, and therefore the applicant No.1 and his family members are not taking the respondent to their house, hence the domestic violence is continued. Therefore, if the applicants are acquitted in the case of Section 498- A of IPC, then it cannot be said that the proceedings are initiated only to harass the applicants. Under such circumstances, it is prayed that the present petition filed by the applicants under Section 482 of Cr.P.C. may be dismissed.
7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent from the judgment passed by Hon'ble the Apex Court in the case of Sandhya Manoj (supra) the Hon'ble Supreme Court has emphasized the words "may also file a complaint against the relatives of the husband or male partner" and in those words female relatives were not excluded, therefore the respondent can be a female member also. In the light of the aforesaid judgment, it appears that the order passed by the Single Bench of this Court in the case of Ajay Kant Sharma (supra) is per inqurium, and therefore it cannot be applied at this stage. Hence, the contention of the learned counsel for the applicants cannot be accepted that the application filed under Section 12 of the Special Act cannot be prosecuted against the applicants No.2 & 3.
8. Similarly, it is apparent that the respondent is still wife of the applicant No.1 and the remaining applicants are family members of the applicant No.1. Though maintenance is granted to the respondent, however, if she is not taken to the house of the applicant No.1, then domestic violence is in continuation against the respondent, and therefore prima facie it cannot be said that an application under M.Cr.C. No.6199 of 2013 Section 12 of the Special Act is not maintainable. The entire allegations made by the respondent against the applicants shall be considered by the trial Court after taking evidence of the parties, and therefore at this stage it cannot be said that the application filed under Section 12 of the Special Act is not maintainable.
9. The learned counsel for the applicants has placed his reliance upon the various judgments and orders of Hon'ble the Apex Court and the Single Benches of this Court, however those are related for the offence punishable under Section 498- A of IPC and other offences, but the proceedings under Section 12 of the Special Act are different. There is a scope that a report of the Protection Officer may be obtained in favour of the applicants and thereafter proceedings may be dropped, but in that Special Act where no limitation is fixed for filing of the application, no shelter can be given to the applicants at this stage though they were acquitted from the charge of offence under Section 498-A of IPC.
Keeping in view the aforesaid judgment and keeping in view the averments made in the complaint, this court is of the considered opinion that no case for interference is made out in the matter. Whether the accused persons have committed any offence or not has to be adjudicated based upon the statement of the witnesses given before the trial court. This court does not find any reason to interfere with the proceedings initiated on an application preferred by the wife under Section 12 of the Act of 2005.
With the aforesaid the petition is dismissed. Certified copy as per rules.
(S.C. Sharma) Judge Karuna