Jammu & Kashmir High Court
Renu Bhasin vs Nisha Rani And Anr. on 28 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No.507/2015, MP No.1/2015 c/w
561-A Cr.P.C. No.555/2015, MP No.1/2015
Date of decision:-28.10.2017
Renu Bhasin V. Nisha Rani & anr.
Vaishno Devi & ors. V. Nisha Rani & anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s): Mr. Aseem Sawhney, Advocate
For the respondent(s) Mr. Pawan Kr. Kundal, Advocate
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. In these petitions preferred under Section 561-A of the J&K Criminal
Procedure Code read with Section 104 of the State Constitution seeking to
quash the application/complaint titled "Nisha Rani vs Rajeshwar Basil &
others" filed by the respondents under Section 12 of the J&K Protection of
Women from Domestic Violence Act 2010 qua the petitioners in both the
petitions, pending before the Court of 2nd Additional Munsiff Jammu and
the order of cognizance thereupon qua the petitioner(s). Since common
questions of law and facts arise for consideration in these petitions, they
were heard analogously and are being decided by this common order.
2. In 561-A Cr.P.C. No.507/2015, it is stated that the petitioner is married
from the last several years and is living with her family at Trikuta Nagar,
Jammu, while as the respondent No.1 has filed a false complaint under the
provisions of the J&K Protection of Women From Domestic violence Act
2010 (for short the "Act 2010") against the brother of the petitioner
(respondent No.1's husband), parents of the petitioner (respondent No.1's
parents in law) and the petitioner, while as the fact is that the petitioner is
561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 1 of 13
neither living in that house nor sharing any domestic relationship or shared
household as envisaged under the Act 2010.
3. In 561-A Cr.P.C. No.555/2015, it is stated that petitioner Nos.1 & 2 are
father in law and mother in law of respondent No.1 who has filed a false
complaint/application under the of the J&K Protection of Women From
Domestic violence Act 2010 (for short the "Act 2010") against the son
(petitioner No.3) of petitioner Nos.1&2, while as the fact is that petitioner
Nos.1&2 are not "respondents" as defined in the Act 2010 and are
practically not sharing any domestic relationship or shared household as
envisaged under the Act 2010, so much so that after respondent No.1 has
left the house of the petitioners.
4. The definition of domestic violence under the of the J&K Protection of
Women from Domestic violence Act 2010 is as follows:
"......3. Definition of domestic violence-For the purposes of this Act, any
act, omission or commission or conduct of the respondent shall
constitute domestic violence in case it-
(a) Harms or injuries or endangers the health, safety, life,
limb or well being, whether mental or physical, of the aggrieved
person lor tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse;
or
(b) Harasses, harms, injures or endangers the aggrieved
person with a view to coerce her or any person related to her to
meet any unlawful demand for any dowry or other property or
valuable security; or
(c) Has the effect of threatening the aggrieved person or any
person related to her by any conduct mentioned in clause (a) or
clause (b); or
(d) Otherwise injures or causes harm, whether physical or
mental, to the aggrieved person....."
Therefore, it is the "respondent" whose conduct has to be scanned to
determine the "domestic violence" upon "aggrieved person" and the
definitions of "aggrieved person", "domestic relationship" and
"respondent" as per the Act are:
561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 2 of 13
(a) Aggrieved person means any woman who is in a domestic
relationship with respondent and who alleges to have been subjected to
any act of domestic violence by the respondent;
...............
(f) Domestic relationship means a relationship between to persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, adoption or are family members living together as a joint family. .................
(q)"respondent" means any adult made person who is in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act...
5. It is further stated that, in fact, the complaint/application under domestic violence can be filed only by a aggrieved person, who has to be a woman; but in the present case the complaint on the fact of it is filed by respondent No.1 being a woman and respondent No.2 (in 561-A 507/2015) being a child which is impermissible and the cognizance so taken is bad, therefore, be set aside and quashed, as the very format of the complaint/application as prescribed under the domestic violence Act is incorrect and against the law. It is further contended that respondent No.1 (in 561-A 507/2015) has roped in the entire family, her husband, her in-laws and the petitioner being her estranged husband's sister. The fact of the matter is that neither the petitioner is a "respondent" as required under the domestic violence Act nor is sharing any household or domestic relationship with her therefore, just to rope in the petitioner for harassing the family is sheer abuse of the process of law. There are virtually no allegations against the petitioner except for passing reference those too are false and concocted, and the instant complaint/application is totally false and just aimed to harass the petitioner. It is further contended that the petitioner is a working woman and is running a pre-nursery school in Trikuta Nagar, Jammu where she has to attend the very young kids and to face the rigmarole of law and fact the entire trial would be very harsh and unjustified. The petitioner is a wife of senior Police Officer and as held Hon'ble Supreme Court that right to reputation is a fundamental right; therefore, such a trial just to harass and 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 3 of 13 settle scores by abuse of the process of law violates the right to reputation of the petitioner and her family also. Otherwise also respondent No.1 is seeking main reliefs against her husband and none of the reliefs are against the petitioner, therefore, also the complaint/proceedings qua the petitioner may kindly be quashed. Respondent No.1 has neither approached the Protection Officer or any Service Provider and there is no Domestic incident report in the matter therefore, the learned trial Court has taken cognizance of the complaint/application without consider the domestic incident report which is a sine qua non before taking cognizance/passing order in the application. The Domestic Incident Report, as per section 2(e) means a report made in the prescribed form on the receipt of the complaint of domestic violence from an aggrieved person and under section 9 of the Act it is the duty of the Protection Officer to make a domestic incident report to the Magistrate besides other functions. That apt to submit here that a domestic violence application under Section 12 has to be in consonance with Rule 6 of the Rules 2011, which inter alia provide that every application of the aggrieved person under Section 12 of the Act shall be in Form II or as nearly as possible thereto? Form II prescribed that the application has to be accompanied with a Domestic Incident Report as per its column 1. Therefore, in the absence of the DIR (Domestic Incident Report ) the complaint cannot be filed and would be a breach of the Rules. It is further stated that from last about several months the respondent is residing with her parents, she had applied for maintenance under Section 488 CrPC and also moved an application for fee etc for the child who was to be admitted to school in the ensuing Navratras and on the consent of the parties i.e petitioner's brother the issue was resolved amicably and the fee etc was paid by the brother of the petitioner and the child was admitted in a pre-nursery school. Therefore, once the issue of maintenance has been raked up and a challan under section 498-A RPC also filed against the husband and others, then to resort to this petition also is sheer abuse of the 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 4 of 13 process of law. It is further contended that the brief factual matrix of the case is that the petitioner's brother and respondent No.1 are husband and wife and due to grave matrimonial disputes and are locked in number of litigations. Therefore, the petitioner seeks quashing of the application mainly and precisely on the ground that the allegations are totally imaginary, false, frivolous and baseless.
6. This Court while issuing notice to the other side, stayed the proceedings in the complaint case qua the petitioners herein.
7. Heard learned counsel for the parties and perused the record file.
8. Learned counsel for the petitioners has argued at length and reiterated all grounds taken the memo of petition. Whereas counsel for respondent has supported the order of court below and cognizance taken by Magistrate.
9. I have given thoughtful consideration to whole aspects of the matter and gone through the contents of complaint and other evidence on record.
10. The Jammu and Kashmir Protection of Women from Domestic Violence Act 2010 has been legislated for more effective protection of the rights of women guaranteed under Constitution, who are victims 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 order can be passed/ granted by Magistrate after hearing and finally deciding the application under sections of Act. However, in terms of 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 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 5 of 13 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.
11. 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. 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.
12. The terms aggrieved person has been defined as under:-
"Aggrieved person means any woman who is in a domestic relationship with respondent and who alleges to have been subjected to any act of domestic violence by the respondent"
13. So admittedly, a child does not fall in the definition of aggrieved person so cannot file a petition u/s 12 of Act. So petition filed by Reyanash, aged 1 year, as petitioner no.2, is quashed; he may be entitled to monetary relief u/s 20 of Act.
14. Respondent has been defined as under:-
561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 6 of 13(q)"respondent" means any adult made person who is in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act...
15. Bare perusal of this definition, it is evident that any person/s whether male or female who is/was in domestic relationship with aggrieved person. Domestic relationship has been defined as under;-
"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, adoption or are family members living together as a joint family".
16. Bare perusal of this definition, and aims and objects of Act, it is evident that the application under Domestic Violence Act could be filed when the marriage union subsisted. Domestic violation has been defined as under:-
"3. Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -
(a) harms or injures or endangers the health, safety, life, limb 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) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes-
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 7 of 13
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) "economic abuse" includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is 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 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."
17. Bare perusal of this definition, it is evident that it is exhaustive and has covered all types of acts and omissions of respondents. Domestic Violence is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 8 of 13 who are victims of violence of any kind occurring in the family, enacted the DV Act.
18. Magistrate while dealing with application under section 12 of Act has to be very cautious in taking cognizance against the relatives of husbands. Because petitions are always drafted by legal practitioner and in order to put undue pressure on husband they try to draft the petition cleverly thereby creating illusion that all the relatives are involved in domestics violence against the wife. Now question arises as to how magistrate should come to know about truth fullness of allegations levelled in plaint especially when it has been cleverly drafted. I think one of best mode which a magistrate has to adopt is to call the petitioner separately in camera for a while and should try to know true facts after going through the written allegations made in petition.
19. Now coming to facts of present case, the petitioner-Renu Bhasin is sister in law of aggrieved lady -Nisha Rani . The allegations in petition against her is that, " in December 2012 , the petitioner was pregnant, but respondent did not care and started beating her in presence of his family members with kicks by throwing her on the ground, mother in law also slapped her and father in law given blow of plastic chair; the petitioner told her mother and respondent no.4 ( Renu Bhasin) and went her home but she advised the petitioner for giving her full salary to the respondent"; another allegation is that "her husband is SP and so nobody can register case against the respondents".
20. These are only allegations against petitioner-Renu Bhasin. These allegations even if are taken as it is, do not constitute any essential elements of Domestic Violence of any types mentioned above. The petitioner-Renu Bhasin is living separately at Satyam Road Near Khuranam Marbles as admitted by aggrieved person also. She is, thus, not sharing any domestic relationship or shared household with aggrieved person; she is a working 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 9 of 13 woman and is running a pre-nursery school in Trikuta Nagar, Jammu where she has to attend the very young kids. Further, she is a wife of senior Police Officer.
21. In view of above, I do not find any substantial material in petition filed by respondents under 12 of D.V. Act against petitioner in petition u/s 561-A Cr.P.C. 507/2015. This petition is allowed; petition /complaint filed u/s 12 of D.V Act in so far against petitioner-Renu Bhasin is concerned that is quashed.
22. Now coming to petition u/s 561-A Cr. P.C. No. 555/15 filed by parents-
in-law and husband is concerned, respondent no.1 has preferred petition under Section 12 of the DV Act before the court below seeking the following reliefs:
"Under section 18
1. Pass a Protection Order under Section 18 of the DV Act prohibiting the respondents/ petitioners herein from committing any act of domestic violence against the her and repetition of any acts mentioned in section 4 (a -g).
2. Prohibiting them from entering into school /college /work place; from going to place of employment; Prohibiting them from entering into school of child.
3. Prohibiting them from alienation of assets.
Residence order under section 19, thereby restraining the respondents/petitioner from dispossessing/throwing her out from shared house; entering into portion of shared house etc. Monterey relief under section 20 of Act- Rs.1 Lakh on account of medical expenses; 20 lakh on account of loss due to destruction/damage and removal of property; Rs.5 lakh on account of physical and mental injury; Rs 10,000/- pm for basic necessities; Rs.5000/-pm as school fee; Rs.10,000/- as household expenses and Rs.3000/- for maid.
Custody order under section 21.
Compensation order u/s 22 of Rs.50 lac."561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 10 of 13
23. Court below on 1.9.2015 has passed ex-parte order under section 23 of Act, thereby prohibiting the respondents/petitioners from committing domestic violence against the applicant and Rs.2,000/- pm as monetary maintenance was ordered to be paid to the applicant. However, order has been passed subject to objections from other side.
24. Respondents, petitioners herein, have not filed objections to the application.
But instead of filing objections has filed present petition for quashing the petition/complaint under section 12 of D.V. Act on the grounds mentioned in this petition.
25. Shared household expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
26. Learned counsel for petitioners while arguing the matter has stated that two litigations, one criminal challan under section 498-A/109 RPC in FIR no. 29/2015 is sub-judice before JMIC, Jammu. The FIR in the challan has been lodged by filing a written complaint by respondent-Nisha Rani before CJM Jammu, who directed the registration of FIR in terms of section 56(3) Cr.P.C. Another petition u/s 488 Cr.P.C. has also been filed by respondents for maintenance.
27. Learned counsel for petitioners has drawn attention of court by reading contents of complaint filed before CJM by virtue of which FIR no. 29/2015 was registered, petition filed by respondent u/s 488 Cr.P.C. and petition filed under section 12 of D.V. Act. In all these three petition contents are same and stereotypes.
28. In present petition, petitioners have stated that petitioner Nos.1 and 2 are senior citizen and are ailing from various diseases. Petitioner no.2 is neurological patient and has undergone surgery from PGI and still under 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 11 of 13 treatment, petitioner no.2 is suffering from fits and has BP, arthritis and other ailments.
29. The law with regard to quashment of criminal proceeding is now well settled. It can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it.
30. 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 disparity, careful and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made put or not. This is prerogative of trial court where challan is produced. Where petitioner has opportunity to file objections and advance submission before trial court that material on record does not form any case of domestic violence against him, then High court shall not exercise power under section 561-A Cr.P.C.
31. In present case, petitioners have not denied that respondent no.1 is wife of petitioner no.3 and was living with them. As already held that petitioners herein have neither filed objections before court below nor have brought to knowledge of facts mentioned in this petition. All the pleas taken in the petition and those argued may be relevant for dismissal of case against them. It is not case of petitioners that there is an expressed legal bar engrafted in any of the provisions of D.V. Act to the institution and continuance of the proceeding.
561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 12 of 1332. As such, at this stage, this Court cannot simply quash the proceedings under the Protection of Women from Domestic Violence Act on the ground that the petitioners state that the allegations made in the petition u/s 12 of Domestic Violence Act are all false.
33. As alleged petitioner nos. 1 and 2 herein are senior citizen, so Magistrate will apply his mind as to whether the presence of these petitioners is absolutely necessary on a particular date and accordingly direct their counsel to produce them. Whenever any one or more of the respondents seek to get excuse from their absence in the proceedings, they are at liberty to seek exemption from the Magistrate.
34. As already held, this court cannot appreciate the facts mentioned in this petition. Even any order passed under Act is appealable under section 29 of Act. The order of monetary maintenance passed by court below is not final order, because it is subject to objection from other side. So petitioners have right to file objections.
35. The power under section 561-A Cr.P.C. can be exercised only in exceptional cases to prevent abuse of process of law or to otherwise secure the ends of justice. Petitioners are at liberty to take all such pleas before court below in their objections. If any such objections are filed, trial court shall decide it on merit expeditiously.
36. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated.
( Sanjay Kumar Gupta ) Judge Jammu 28.10.2017 Vijay 561-A Cr.P.C. Nos.507/2015 & 555/2015 Page 13 of 13