Delhi District Court
Shubha Rana vs . Priyanka Dhankar on 25 January, 2019
CA No.72/17
Shubha Rana Vs. Priyanka Dhankar
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No. 72/17
ID No. 333/17
CNR No. DLSW010120672017
In the matter of :
Smt.Shubha Rana
D/o Sh.I.P.Singh
W/o Sh.Rahul Rana
R/o WZ1232, Flat No. 302
Sector7, Palam Extn.Dwarka
New Delhi110075. ... Appellant
Versus
1. Smt.Priyanka Dhankar
W/o Col.Manu Dhankar
42 Armed Regiment, I Armed Brigade
I Armed Division
Cantonment Area, Nabha Cantt.
Distt.Patiala
Punjab. ... Respondent
Page: 1/22
CA No.72/17
Shubha Rana Vs. Priyanka Dhankar
Date of institution of appeal :07.10.2017
Date on which judgment reserved:15.01.2019
Date on which judgment
pronounced :25.01.2019
JUDGMENT
1. The appellant/complainant has filed the present appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the PWDV Act) vide which respondent was deleted from the array of the parties.
2. The brief facts which are relevant for deciding the present appeal are that appellant/complainant had filed an application under Section 12 of the PWDV Act against respondent and other persons, who are her husband, her mother in law and father in law.
3. In the said complaint, it was averred that Page: 2/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar appellant had got married with brother of respondent on 09.11.2008 and out of the said wedlock, one male child was born in 2010. It was averred that father of appellant had spent a huge amount in the marriage. It was alleged that husband of appellant was in extra marital relationship and, accordingly had gone to Maldives in November, 2008 to meet his girl friend.
4. It was also alleged that when husband of appellant returned from Maldives in the month of February, 2009, during that period, husband of appellant had beaten her up.
5. It was alleged that other family members of the husband of appellant also used to torture the appellant for bringing dowry. It was also alleged that even the stridhan articles of appellant were not returned by the husband and mother in law of appellant.
6. It was also alleged that even the salary of the appellant was being taken away.
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7. It was alleged that her husband is not providing her any kind of maintenance. Accordingly, in the application, various reliefs were sought in the form of Protection Order under Section 18, Residence Order under Section 19, Maintenance Order under Section 20 and Compensation Order under Section 22 of the PWDV Act.
8. The Ld.Trial Court had sought a Domestic Incident Report (DIR) from the Protection Officer and thereafter, respondent and other family members of the respondent were summoned.
9. The respondent on being served had filed an application for deletion of her name from the array of the parties on the ground that she got married to an Army Officer on 23.06.2004 i.e. much prior to the marriage of appellant and since the day of her marriage, respondent was staying with her husband except during the field posting. It was submitted that even during the course of field Page: 4/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar posting of her husband, respondent was staying at her matrimonial home in Gurugram.
10. Respondent had also filed a certificate issued by 42 Armoured Regiment showing posting of her husband since April, 2003.
11. On the said application, detailed reply was filed by appellant. Thereafter, Ld.Trial Court, after hearing the arguments, had vide the impugned order, ordered for deletion of respondent from the array of parties on the ground that there was no domestic relationship between appellant and respondent and she was not a respondent within the meaning of Section 2 (q) of the PWDV Act.
12. Aggrieved by the impugned order of the Ld.Trial Court, appellant has approached this court.
13. Notice of the appeal was issued to respondent, who on being served chose not to file any reply.
14. I have heard Sh. Sukhbir Singh, Ld.counsel Page: 5/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar for appellant and Sh.Devender Singh, Ld.counsel for respondent. I have also summoned the trial court record and have carefully perused the same.
15. It was submitted by Ld.counsel for appellant that impugned order suffers from grave illegality as the same has been passed in contravention of the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.).
16. It was submitted that once the respondent was summoned in the present case, then there was no provision in the Cr.P.C. whereby Ld.Magistrate could have reviewed his order of summoning and the only remedy available with the respondent was to challenge the impugned order before the Higher Forum.
17. In support of his submission, Ld.counsel for appellant has relied upon the judgment of the Hon'ble Supreme Court of India delivered in Adalat Prasad Vs. Rooplal Jindal and Ors., Appeal (Crl.) 91 of 2002 decided on 25.08.2004.
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18. It was further submitted that even on merits, the impugned order is not sustainable in the eyes of law as there are specific allegations made in the complaint against respondent which shows that she was in domestic relationship with the appellant.
19. It was further submitted that there are specific allegations of respondent committing the acts of domestic violence against appellant by demanding dowry and by threatening the appellant not to allow her to reside in the matrimonial home. Therefore, respondent was wrongly deleted from the array of parties. Accordingly, a prayer was made to set aside the impugned order.
20. On the other hand, Ld.counsel for respondent has submitted that at the stage of summoning of respondents, Cr.P.C. is not applicable as proceedings are of civil nature.
21. It was submitted that only when any Page: 7/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar protection order issued by the Ld.Magistrate under the PWDV Act is violated by respondent, then only the offence is committed and for trial of offences, provisions of Cr.P.C. are applicable.
22. It was further submitted that when notice is issued of the application under Section 12 of the PWDV Act, Ld.Magistrate does not take cognizance of any offence and merely notice is issued to the respondent seeking his response to the allegations made in the application of domestic violence. Therefore, Ld.Magistrate is well within his power to delete respondent from the array of parties if the material available on record justifies the deletion.
23. In support of his submission, Ld.counsel for respondent has relied upon the judgment of the Delhi High Court delivered in Ms.Nidhi Kaushik Vs. Union of India and Ors., LPA 736/2013 decided on 26.05.2014, another judgment of the Hon'ble High Court of Delhi delivered in Swati Page: 8/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar Mishra Vs. Leena Gupta and Another, Crl.Rev.P.553/2015 decided on 03.12.2015 and another judgment of the Hon'ble Kerala High Court delivered in Lekha Sreekumar Vs. Aswathi Raj and another, Crl.MC.No. 4031 of 2011 decided on 12.11.2012.
24. On merits, it was submitted that there is no illegality or infirmity in the impugned order of the Ld.Trial Court.
25. It was submitted that respondent was married prior to marriage of appellant in 2004 and since then, she is residing with her husband, who is an Army Officer, at the place where he is posted.
26. It was further submitted that during the course of field posting of husband of respondent, respondent used to reside at her matrimonial home in Gurugram and very rarely, she used to visit her parental home in Bijwasan, where appellant was residing.
27. It was further submitted that the fact of Page: 9/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar marriage of respondent with an Army Officer in 2004 has not been disputed by the appellant in her reply.
28. It was further submitted that respondent has also filed on record a certificate issued by 42, Armoured Regiment showing posting of husband of respondent at various places and it is not believable that respondent will leave the company of her husband and come to reside with appellant at her parental home in Bijwasan just to cause domestic violence to appellant.
29. It was further submitted that there is a propensity of victims of domestic violence to rope in all family members of husband just to put pressure upon the husband's family to settle the case. Therefore, respondent has been falsely implicated in the present Domestic Violence's case, even when appellant knows that there is no domestic relationship between appellant and respondent. Accordingly, a prayer was made to Page: 10/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar dismiss the appeal.
30. I have considered the rival submissions of the respective parties and have carefully perused the material available on record.
31. First of all, I shall deal with the contention of Ld.counsel for appellant that Ld.Magistrate had no power to review its own summoning order of respondent dated 28.05.2014.
32. Although it is true that the Hon'ble Supreme Court of India in the matter of Adalat Prasad's case (supra) had held as follows: It is true that if a Magistrate takes cognizance of an offence, issue process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not Page: 11/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.
33. However, in the opinion of this court, the bar to review summoning order applies only when Ld.Magistrate take cognizance of the offence and issue summons to accused persons.
34. In the present case, Ld.Magistrate had not taken cognizance of any offence vide summoning order dated 28.05.2014.
35. Further, proceedings under the PWDV Act are civil in nature and Ld.Trial Court dealing with the proceedings under Section 12, 18 to 23 of PWDV Act can formulate its own procedure under Section 28(2) of PWDV Act and any deviation from the provisions of Cr.P.C. does not vitiates the proceedings initiated under Section 12 of the PWDV Act.
36. I am fortified in my reasoning by the Page: 12/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar judgment of the Delhi High Court delivered in Ms.Nidhi Kaushik's case (supra) relied upon by the respondent. The relevant paras of the said judgment are being reproduced herein below: 19.3. The proceedings under Sections 12 and18 to 23 of DV Act are purely civil in nature. The reliefs under Sections 18 to 22 of the DV Act can be sought in the Civil Court, Family Court or Criminal Court as they are civil in nature and have nothing to do with the conviction for any offence as provided in Section 26(1) of DV Act.
19.4. The Court dealing with proceedings under Sections 12,18 to 23 can formulate its own procedure under Section 28(2) of the DV Act. Thus, any departure from the provisions of Code of Criminal Procedure does not vitiate the proceedings initiated under Section 12.
19.5. There is no reference to the expression ―offence , ―crime or the like in DV Act except Sections Page: 13/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar 5, 31, 32 and 34 of the DV Act.
Section 28 uses the word ―offence only in respect of Section 31 and the word ―the proceedings in respect of Sections 12 and 18 to 23 of the DV Act.
19.6. The opposite party in the proceedings under Section 12 of the DV Act is specifically named as respondent and not an accused. The respondent has been defined in Section 2(q) of the DV Act.
19.7. ―Domestic violence defined in Section 3 of the DV Act is per se not an offence under the Act and no punishment has been provided for the same.
19.9. Section 31 of the Act provides for punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence Page: 14/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the reach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.
19.10. The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of any offence under IPC because the proceedings under Section 12 of the D.V. Act are civil in naturetriable by a Civil Court, Criminal Court or Family Court. However, in the event of breach of a protection order, a fresh criminal case has to be instituted against the accused (either by an FIR or by a criminal complaint Page: 15/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar before the Court) and in that criminal case, at the stage of framing the charge, the Court is empowered to frame a charge under IPC or any other law if the facts disclose the commission of such offence. This fresh case under Section 31 would be a criminal case as the respondent would be accused of an offence under Section 31 of the DV Act and it would be tried by the Magistrate. This is clear from the reading of Section 31(2) and (3) of D.V. Act.
37. Further, in the another matter of Swati Mishra's case (supra), the Hon'ble Delhi High Court had upheld the order of the Ld.Magistrate deleting the name of respondent from the array of parties, in a matter under PWDV Act.
38. Therefore, in the light of aforesaid discussion, there is no merit in the submission made by Ld.counsel for appellant that Ld.Trial Court had committed grave illegality by deleting Page: 16/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar the name of respondent from the array of parties in contravention of the provisions of Code of Criminal Procedure, 1973 or in violation of judgment of the Hon'ble Supreme Court of India delivered in Adalat Prasad's case (supra).
39. Now, coming to the merits of the present appeal, I have gone through the application of respondent filed by her seeking deletion of her name from the array of the parties.
40. In the said application, respondent has averred that she got married to her husband on 23.06.2004 i.e. much prior to the marriage of the appellant on 09.11.2008.
41. Further, respondent has given the details of posting of her husband at various places like Jasai, Ahmednagar, Hatigor, Amritsar, Naugam and Nabha.
42. Respondent also averred that during the field posting of her husband, she used to reside at her matrimonial home in Jalvayu Vihar, Gurugram Page: 17/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar alongwith her parents in law and even her son is a regular student of Ryan International School, Gurugram. Accordingly, it was averred that since respondent never stayed with appellant in the domestic relationship, therefore, she could not be arrayed as a respondent in the present case and accordingly, had sought deletion.
43. Alongwith the application, details of posting of husband of respondent issued by 42 Armoured Regiment was filed on record.
44. In the reply filed by appellant, appellant did not dispute the marriage of respondent in the year 2014 to an Army Officer or she having her matrimonial home in Gurugram. However, it was asserted that respondent stayed with appellant at Bijwasan, New Delhi in a domestic relationship and did cause cruelty and violence against appellant.
45. I have also carefully perused the allegations against respondent in application under Section 12 Page: 18/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar of the PWDV Act.
46. Specific allegations have been leveled against respondent in para 18 wherein it is specifically alleged that on 21.11.2009, respondent came to stay with them and demanded Rs.5 Lacs from the appellant and in paras 42 and 43, allegation of respondent removing kitchen articles has been leveled during the period from 30.03.2014 to 01.04.2014 and it was further alleged that on 25.04.2014, respondent had threatened the appellant not to allow her to reside in the matrimonial home.
47. The allegations of November, 2009 against respondent do not show that respondent was in domestic relationship with appellant as in 2009, husband of respondent was posted at Amritsar, which was a peace posting meaning thereby that respondent would have stayed with her husband. Further, it is also certified by 42, Armoured Regiment that during the course of peace posting Page: 19/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar of husband of respondent, she had been living with him.
48. Further, the allegations of 2014 also do not show that respondent was in domestic relationship with appellant as in 2014, the husband of respondent was posted at Nabha which again was a peace posting.
49. Further, it is not believable that during the course of peace posting of husband of respondent, respondent will leave the company of her husband just to come at the matrimonial home of appellant and cause domestic violence with her. Respondent would have gained nothing by committing the alleged acts of domestic violence.
50. Further, the matrimonial home of respondent was in Gurugram. This fact is established on record not only from the application of respondent but also by the Domestic Incident Report (DIR) filed by the Protection Officer wherein also it is stated that Page: 20/22 CA No.72/17 Shubha Rana Vs. Priyanka Dhankar respondent was having her matrimonial home at Jalvayu Vihar, Gurugram.
51. Further, in the entire prayer under Section 12 of the PWDV Act, no relief has been sought by the appellant against respondent. Therefore, no purpose would have been served in continuation of respondent as a party in proceedings under Section 12 of PWDV Act.
52. In the opinion of this court, Ld.Trial Court had rightly deleted the respondent from the array of parties and I do not find any illegality or infirmity in the impugned order of the Ld.Trial Court. Accordingly, the appeal is dismissed.
53. Appellant to appear before the Ld.Trial Court on the date already fixed.
54. Trial Court record be sent back to the Ld.Trial Court alongwith a copy of judgment.
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55. Appeal file be consigned to record room.
Digitally signed by VIKAS VIKAS DHULL
DHULL Date:
2019.01.25
16:44:14 +0530
Announced in the open court (Vikas Dhull )
Dated : 25.01.2019 Spl. Judge (PC Act) CBI03
Dwarka/New Delhi
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