Bombay High Court
Shradha W/O Sumit Fogla vs Narayanprasad S/O Bhagwandas Fogla And ... on 5 April, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
1 CRIWP814.22 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 814 OF 2022
PETITIONER : Sou. Shradha W/o Sumit Fogla,
Aged 39 years, R/o C/o Hanuman Purushottamji
Sigtia, Opp. Gorakshan Sanstha, Gorakshan
Road, Akola, Tah. & Dist. Akola - 444 004.
VERSUS
RESPONDENTS : 1] Narayanprasad S/o Bhagwandas Fogla,
Aged about 69 years, Occu. Retired,
2] Mrs. Sushiladevi W/o Narayanprasad Fogla,
Aged about 67 years, Occu. Housewife.
3] Amit S/o Narayanprasad Fogla,
Aged about 44 years, Occu. Business,
4] Mrs. Bhavana W/o Amit Fogla,
Aged about 43 years, Occu. Housewife,
Nos.1 to 4 residents of 301, 302, Fogla House,
Iranwadi, Hamukalyani Road, Kandivali (West),
Mumbai.
5] The State of Maharashtra,
through D.G.P., Akola
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Mr. Sameer V. Sohoni, Advocate for the petitioner
Mr. Soumitra Paliwal, Advocate for respondent nos.1 to 4
Mr. S. A. Ashirgade, A. P. P. for respondent no.5
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CORAM : G. A. SANAP, J.
DATED : APRIL 05, 2023.
JUDGMENT
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2 CRIWP814.22 (J).odt
1. RULE. Rule made returnable forthwith. Heard finally by consent of the learned advocates for the parties.
2. In this petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, challenge is to the judgment and order dated 15.02.2022, passed by the Additional Sessions Judge, Akol, whereby the learned Judge allowed the appeal bearing Criminal Appeal No. 33/2021 filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the D.V. Act" for short) by respondent nos.1 to 4 (original appellant nos.2 to 5) and thereby dismissed the D.V.Act case being Misc. Criminal Application No. 336/2015 filed against them.
3. The facts are as follows :
In this judgment the parties would be referred by their nomenclature in the application filed in the Court of the Chief Judicial Magistrate under the D.V. Act. The petitioner is the applicant. Respondent nos.1 to 4 are the non-applicant nos.2 to 5. The non- applicant no.1, against whom the proceeding is pending as on today, is ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 3 CRIWP814.22 (J).odt the husband of the applicant. The applicant and non-applicant no.1 got married in May,2005 at Akola. Non-applicant nos.2 and 3 are the in-
laws of the applicant. Non-applicant no.4 is the brother of non- applicant no.1 and non-applicant no.5 is the wife of non-applicant no.4. Non-applicant no.1 is working as a Doctor in Beaumont Hospital, Michigan (America). After the marriage, on 15.09.2005, the applicant went to the United States of America (USA) to cohabit with her husband. The applicant and non-applicant no.1 resided together in America for almost nine years. They had been visiting India occasionally. The dispute arose between the applicant and non- applicant no.1. The applicant, therefore, finally came down to India with her daughter Shreeya in the year 2015 and took shelter with her father at Akola.
4. The applicant, apart from lodging report against the non- applicants at Gittikhadan Police Station, Akola, filed petition under Section 12 of the D.V. Act in the Court of Chief Judicial Magistrate, Akola through her father. It is the case of the applicant that non- applicant nos.1 to 5 subjected her to domestic violence both in America as well as in Mumbai. It is her case that in America, non-applicant no.1 ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 4 CRIWP814.22 (J).odt subjected her to domestic violence and in Mumbai, non-applicant nos.2 to 5 subjected her to domestic violence as and when she would come to India and stay with them in Mumbai. It is further the case of the applicant that non-applicants made demand of money from her father. The applicant was interested in pursuing her studies. Non-applicant no.1 was required to spend for her education. Non-applicant nos.2 and 3, therefore, demanded huge amount from her parents to meet the expenses. It is stated that the applicant was subjected to mental and physical torture. She stayed with her father at Akola for some time. When she realized that non-applicant no.1 was not in any manner interested to continue the married life with her, she took admission to a medical course in a college at Pune. She has been pursuing her medical course. It is stated that non-applicants have not made provision for their maintenance. They have not provided her residence, which she is entitled to have at the cost of the non-applicants. Apart from this, she has stated that on account of mental and physical sufferings she has undergone at the hands of non-applicant nos.1 to 5, she is entitled to get compensation.
5. The non-applicants filed their reply and opposed the ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 5 CRIWP814.22 (J).odt application. The non-applicants made an application (Exh.19) for dismissal of the petition on the ground that it sans the grounds to constitute domestic violence. It is further contended that non-applicant nos.2 to 5 were not in domestic relationship with the applicant. It is further their contention that in a petition filed by the non-applicant no.1, the competent Court at Michigan (America), has dissolved the marriage between the applicant and non-applicant no.1 by a decree of divorce. It is thus submitted that in view of non-existence of marital tie between the applicant and non-applicant no.1, the proceeding against the non-applicants could not be maintained. It is further contended that the applicant and non-applicant no.1 had been residing in America for nine years. The applicant never resided with non-applicant nos.2 to 5 at Mumbai. It is stated that her visits to the house in Mumbai were flying visits. The applicant, according to the non-applicants, stayed with her father at Akola as and when she would come down to India from America. It is further stated that on her own the applicant discontinued her association with her husband and started residing with her parents at Akola. Non-applicant no.1 made efforts to take her back to America, however there was no positive response from the applicant. Non-applicant no.1, therefore, filed a petition for divorce in the Court ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 6 CRIWP814.22 (J).odt at Michigan (America). The divorce has been granted. It is stated that in order to harass the non-applicants, the applicant has filed the proceeding under the D.V. Act. It is their specific contention that non- applicant nos.2 to 5 had no domestic relation with the applicant. The applicant never resided with them in a shared household.
6. Learned Magistrate, after hearing the submissions of the parties, rejected the application (Exh.19) on 08.09.2015. The non- applicants, being aggrieved by the said order, filed an appeal before the Sessions Court at Akola. Learned Additional Sessions Judge, by his judgment and order dated 15.02.2022 partly allowed the appeal and dismissed the D.V.Act proceedings filed by the applicant against non- applicant nos.2 to 5. The applicant/wife being aggrieved by this order is before this Court.
7. I have heard Mr. Sameer Sohoni, learned advocate for the petitioner/applicant, Mr. Soumitra Paliwal, learned advocate for respondent nos.1 to 4/non-applicants and Mr. S.A. Aashirgade, learned Additional Public Prosecutor for respondent no.5/State. Perused the record and proceedings.
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8. Learned advocate for the applicant submitted that the facts stated in the application filed under the D.V. Act are prima facie sufficient to establish that the proceeding filed under the D.V. Act is very well maintainable against non-applicant nos.2 to 5. Learned advocate pointed out that there is ample material on record to show that before leaving India for America after marriage, the applicant resided with non-applicant nos.2 and 3 in Mumbai. Learned advocate further submitted that on the visit of the applicant to India from America, she would stay with non-applicant nos.2 and 3 at their residence in Mumbai. Learned advocate submitted that therefore, the facts stated in the application itself are sufficient to establish prima facie that the applicant was in domestic relationship with the non-applicants. Learned advocate further submitted that there is ample material on record to show that the applicant resided with them in their house at Mumbai, which was a shared household for the purpose of D.V. Act. Learned advocate further submitted that on the report of the applicant, criminal prosecution has been launched against applicant nos.1 to 5 for the offence punishable under Section 498-A of the Indian Penal Code and other provisions. Learned advocate submitted that the facts stated in ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 8 CRIWP814.22 (J).odt the application are more than enough to prima facie establish that the applicant was subjected to domestic violence by all the non-applicants. Learned advocate submitted that the non-applicants have not provided maintenance to the applicant and her daughter and also not made provision for separate residence at Pune, where she has been pursuing her studies. Learned advocate, therefore, submitted that the order passed by the learned Additional Sessions Judge is patently illegal and therefore, is required to be set aside. In order to substantiate his submissions, learned advocate has relied upon the following decisions :
1] Prabha Tyagi .vs. Kamlesh Devi, [(2022) 8 SCC 90] 2] Aditya Anand Varma .vs. State of Maharashtra, thru. the P.P. and others ; [(2022) 3 Bom.C.R. (Cri.) 48]
9. Learned advocate for non-applicant nos.2 to 5 submitted that learned Additional Sessions Judge was right in granting the relief in favour of non-applicant nos.2 to 5. Learned advocate submitted that the applicant and non-applicant no.1 resided together in America for nine years. Learned advocate submitted that on account of discord between the applicant and non-applicant no.1, the applicant deserted non-applicant no.1 and started residing with her father at Akola. Learned advocate further submitted that the applicant never resided with non-applicant nos.2 and 3 at Mumbai permanently. Learned ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 9 CRIWP814.22 (J).odt advocate submitted that her visits were flying visits to their residence at Mumbai. Learned advocate submitted that as and when the applicant would come down to India from America, she would pay flying visits to the residence at Mumbai and she would stay with her father at Akola. Learned advocate submitted that the proceeding initiated against non- applicant nos.2 to 5 is just to harass them. Learned advocate submitted that the reliefs sought for, with regard to the maintenance and the provision of separate residence, are mainly directed against non- applicant no.1. Learned advocate submitted that even if the relief of shared household in their residence at Mumbai is allowed against non- applicant no.1, the same would be executed and implemented. The relief of shared household in their residence at Mumbai can be granted against non-applicant no.1 and for that purpose non-applicant nos.2 to 5 are not required to be arrayed as party. Learned advocate submitted that learned Additional Sessions Judge, on the basis of available material, allowed the appeal. In short, learned advocate for the non- applicant nos.2 to 5 has supported the judgment and order passed by the learned Additional Sessions Judge. Learned advocate has also placed reliance on the decision of the Hon'ble Apex Court in Prabha Tyagi .vs. Kamlesh Devi, [(2022) 8 SCC 90] to substantiate his ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 10 CRIWP814.22 (J).odt contention that even without joining non-applicant nos.2 to 5 as party, the relief of shared household can be granted.
10. In order to appreciate the rival submissions, I have gone through the record and proceedings. I have minutely perused the judgment and order passed by the learned Additional Sessions Judge. Learned Judge has observed that as far as non-applicant nos.2 to 5 are concerned, the proceedings is without substance. Learned Judge has considered the definition of "domestic relationship" and "shared household" as provided under Sections 2(f) and 2(s) of the D.V. Act, respectively, to come to a conclusion that the undisputed and admitted facts does not attract these definitions as against non-applicant nos.2 to
5. In order to appreciate the submissions, at the outset, it would be necessary to make a mention of some of the undisputed facts. The father of the applicant resides at Akola. The applicant and non- applicant no.1 are well qualified. The husband of the applicant is working as a Doctor in Beaumont Hospital, Michigan (America). The applicant has been prosecuting her medical course in a college at Pune. The applicant has been residing with her daughter at Pune. After the marriage in May-2005, in the month of September-2005, the applicant ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 11 CRIWP814.22 (J).odt went to stay with her husband in America. The applicant of and on would come down to India from America. The applicant finally came to India in May-2014 and since then she has been staying in India. It is, therefore, apparent that from September-2005 to May-2014, the applicant resided with non-applicant no.1 in America. During this period of nine years, of and on she would come down to India. It is not the case of the applicant that on her visit she stayed in India for indefinite period. It is stated that from America, she would come to Mumbai and stay with non-applicant nos.2 and 3 and then come down to Akola at the house of her father. The couple is blessed with a female child. The child also stayed with the applicant and non-applicant no.1 in America.
11. It is to be noted that the applicant and non-applicant no.1 are blaming each other for their marital discord and disturbed relations. According to the non-applicant, the applicant after May-2014, refused to join his company in USA. It is his case that the applicant deserted him and therefore, he filed a petition in the jurisdictional Court in Michigan (America) for divorce. The divorce has been granted. It is further pertinent to note that the applicant/wife has stated that all the ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 12 CRIWP814.22 (J).odt non-applicants demanded money from her father. Her father could not pay the money. It is stated that she was, therefore, subjected to mental and physical cruelty and torture. It is the case of the applicant that all the non-applicants subjected her to domestic violence. It has come on record that after returning to India in May-2014, the applicant lodged report at Gittikhadan police station, Akola against non-applicant nos.1 to 5. On the basis of the said report, a crime bearing No. 05/2015 for the offences punishable under Sections 498-A, 406, 323, 504, 506 read with Section 34 of the Indian Penal Code and under Sections 4 and 5 of the Dowry Prohibition Act, 1961 came to be registered against non- applicant nos.1 to 5. The criminal case is pending against non- applicant no.1.
12. On the basis of prima facie analysis of the facts and material on record, learned Additional Sessions Judge observed that the visits of the applicant to her matrimonial home in Mumbai were flying visits. She never resided there permanently. Learned Judge, therefore, prima facie found that she was not in domestic relationship with non- applicant nos.2 to 5 and she did not reside with them in a shared household. The question is whether this finding is supported by the ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 13 CRIWP814.22 (J).odt material on record. The applicant and non-applicant no.1, after marriage, stayed in America for nine years from September-2005 till May-2014. It is not the case of the applicant that she permanently resided in India and more particularly at the family residence at Mumbai. It is, therefore, seen that her visits to India were flying visits. It is further seen that she has not provided the actual duration of stay at the matrimonial house at the time of her visits to India. Non-applicant nos.2 and 3 are her in-laws. Non-applicant no.4 is the brother of her husband and non-applicant no.5 is the wife of non-applicant no.4. It is the case of non-applicant nos.4 and 5 that they are residing separately from non-applicant nos.2 and 3. It is stated that they have been unnecessarily roped in, in this proceeding. It is also stated that non- applicant nos.2 and 3 have not committed any act as alleged. It is stated that the applicant never resided with them except her flying visits so as to subject her to domestic violence at their hands as alleged. In the facts and circumstances, the applicant was required to state in details the period of her stay at the matrimonial house. In absence of disclosure of duration of her stay with non-applicant nos.2 to 5, it could not be said that her visits to India were intended for the purpose of stay with the non-applicant nos.2 to 5. The failure on the part of the applicant to ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 14 CRIWP814.22 (J).odt provide such details, has to be considered in the context of her visits to her parental house at Akola every time she came down to India. The International Airport is at Mumbai. The applicant was, therefore, necessarily required to first come down to Mumbai and then start her journey to Akola. In the D.V. Act application, the applicant has stated that she had to return to America every time because her husband has been residing in America and she intended to join him. It is, therefore, seen that her visits to Mumbai and particularly to the house of her in-laws, were flying visits. It is not the case of the applicant that on her visits to India, she had not gone to her parents house at Akola. All these facts have been taken into consideration by the learned Additional Sessions Judge.
13. It is the case of the applicant that after marriage, immediately she could not accompany her husband to America because of non-compliance of travel documents, Visa etc. It has come on record that on 15.09.2005, initially she went to America with her husband and stayed there for nine years, subject to her of and on flying visits to India. She came down to India in May-2014 with an intention not to return when her relations with the husband became sour beyond repair. After ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 15 CRIWP814.22 (J).odt settling in India with her daughter, she filed proceeding against the non-applicants. As far as her stay immediately after marriage at the house of her in-laws is concerned, it has come on record that the same was for the purpose of travel to America. It is to be noted that her stay with the in-laws immediately after marriage from May-2005 to September-2005 was nine years back. Learned Judge, on the basis of this fact, observed that her stay could not be said to be in a shared household and also her relations with them could not be termed as domestic relationship. It is to be noted that when relations of the applicant with non-applicant no.1 became sour, she came down to India with an intention not to return to America. In the facts and circumstances, in this environment of sour relations, it was necessary on her part to state categorically that she resided with the non-applicants and same constituted domestic relationship in shared household. She has not stated a word about her actual period of stay.
14. Learned Additional Sessions Judge found that her two visits to Mumbai residence immediately after marriage and when she came down to Indian in May-2014, are two extreme in point of time. Learned Judge found that the intermittent flying visits could not be said ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 16 CRIWP814.22 (J).odt to be of any significance to attract the definition of "domestic relationship" and her stay in the "shared household".
15. It is to be noted that the submissions advanced in a matter cannot be considered dehorse the peculiar facts and circumstances of each and every matter. The facts of each and every case have its peculiarity. The submissions are to be appreciated and considered keeping in mind the peculiar facts and circumstances. The issue and the legal points raised by the parties are required to be addressed keeping in mind the facts and circumstances of each and every case. It is to be noted that the D.V. Act is a social beneficial legislation. The object and intent of the Legislature behind bringing this legislation cannot be frustrated on some flimsy grounds. However, at the same time, the Court has to be on a guard and ensure that such a beneficial legislation is not misused to settle the score.
16. It is seen that the applicant has now made up her mind not to return back to America. It is also not possible because the divorce decree has been granted by the jurisdictional Court in Michigan (America) on the petition filed by the husband. The wife has been ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 17 CRIWP814.22 (J).odt prosecuting her medical course in Pune. She has been residing in Pune with her daughter. Her application filed in the Court of Judicial Magistrate, First Class, at Akola is being prosecuted by her father. The applicant has claimed maintenance from the non-applicants, the compensation on account of domestic violence she was subjected to, and provision for her separate stay and/or the money to procure the separate residence. It is seen on perusal of her application that she does not want to come back and stay with the non-applicant nos.2 and 3. Non-applicant nos.4 and 5 are not residing with non-applicant nos.2 and 3. It is further pertinent to note that even if the order passed by learned Additional Sessions Judge is maintained and confirmed, still it would be open for the applicant to prove her case and obtain the order on all counts. It is pertinent to note that the order about shared household if passed against non-applicant no.1, would very well be executable against the husband and on the basis of the same, she would be entitled to go and stay in the premises of her husband/non-applicant no.1, 2 and 3. It is, therefore, pertinent to note that for this purpose, this application cannot be continued against non-applicant nos.2 to 5, which has been found to be without substance by the learned Additional Sessions Judge. On this count, I am fully agree with the ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 18 CRIWP814.22 (J).odt learned Judge. In the above context, it would be necessary to see the applicability of the decisions relied upon by the learned advocates for the parties.
17. In my view, the grievance of the applicant can be taken care of even if the proceeding is continued against non-applicant no.1 and dismissed against non-applicant nos.2 to 5. In the case of Prabha Tyagi (supra), the Hon'ble Apex Court has held that it is not mandatory for the aggrieved person when she is related through any "domestic relationship" at any point in time, to actually reside in the shared household with those persons against whom the relief is sought, so long as the aggrieved woman had lived in a domestic relationship at any point in time and thus had acquired the right to reside in the shared household under Section 17(1) of the D.V. Act. It is further held that expression "shared household" in relation to definition of " domestic relationship" means a household where the person aggrieved lives or at any stage has lived in domestic relationship either singly or along with the respondent and includes such a household whether 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 ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 19 CRIWP814.22 (J).odt 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. It is further held that the definition of 'shared household' is thus an inclusive one. It is further held that the distinction between sub-sections (1) and (2) of Section 17 of the D.V. Act is also notable. While sub-section (2) deals with aggrieved person, which is defined in Section 2(a) of the D.V. Act in the context of domestic violence, sub-section (1) of Section 17 is a right conferred on every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent. This judgment has been followed by the Coordinate Bench of this court in Aditya Anand Varma and others (supra).
18. In my view, in the peculiar facts of the case on hand, the grievance of the applicant can be taken care of against the husband and in case of an order on all counts in favour of the applicant against the ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 ::: 20 CRIWP814.22 (J).odt husband, her prayer to reside in the premises of the husband and non- applicant nos. 2 and 3, cannot be taken away simply because of dismissal of the application for the reasons stated above. It is pertinent to note that the application has been prosecuted against the husband before the Court of the Magistrate. I am informed that now the matter after recording evidence of the parties is posted for final arguments and the same can be disposed of within a month or two. It is to be noted that the matter has proceeded against the husband because the same was expedited by this Court in the earlier round of litigation. The appeal filed by the non-applicants came to be allowed qua non-applicant nos.2 to 5. In the peculiar facts of this case, the proposition of law laid down in the decisions cited supra, is not applicable to the facts of the present case. On the basis of the proposition of law, the well reasoned order in the facts and circumstances of this case, passed by the learned Additional Sessions Judge, cannot be reversed.
19. Accordingly, the petition deserves to be dismissed and the same is dismissed. Rule stands discharged.
(G. A. SANAP, J.) Diwale ::: Uploaded on - 20/04/2023 ::: Downloaded on - 14/06/2023 10:44:42 :::