Tuesday, 1 November 2016

When proceeding under domestic violence Act is liable to be quashed?

 It is thus, obvious that the Applicant /Respondent No.1
was   under   obligation   to  prima   facie  demonstrate   that   she   had
relationship with the deceased in the nature of marriage.  If that was
lacking in the application, learned Magistrate could not have issued
notices to the petitioners.  In my considered opinion the Respondent
No.1 has failed to show from her application that she had relationship
with the deceased in the nature of marriage.  I have therefore, came to
the conclusion that no case was made out for issuing notices to the
Petitioners.  
19. There is another aspect which needs to be considered in
the present petitions.   The word, ''respondent'' has been defined in
section 2(q) of the Act as under :
“(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:”
20. In the present case deceased Rajesh Khanna was the adult
male person with whom Respondent No.1 claimed to have  domestic
relationship.     The   petitions   under   section   12   of   the   Act   are   filed
against the Petitioners in the Court of Magistrate by virtue of proviso
to section 2 (q) of the Act which runs as under :­
“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.”
21. No   doubt   the   present   Petitioners   are   relatives   of   the
deceased Rajesh Khanna. The question which arises for determination
is as to whether the present proceedings could have been filed against
them by taking advantage of the above stated proviso to section 2 (q)
of the Act.  It is admitted position that the Petitioners had never been
staying in the shared household  with the respondent no. 1.   The
Petitioner   No.1   Dimple   Jatin   Khanna   has   been   admittedly   staying
away from the bungalow 'Ashirwad' since last many years.  Petitioner
No.2 Twinkle Khanna is married and she is staying with her husband
petitioner no. 3 in her matrimonial house at Gandhi Gram Road, Juhu,

Mumbai.   As such, briefly stated, the Petitioners had never shared
common household with the Respondent No.1.  Grievance, if any, of
Respondent   No.1   could   have   been   against   the   deceased   Rajesh
Khanna.     Had   the   deceased   been   alive   at   the   time   of   filing   of
complaint and had the Petitioners living together with the deceased,
probably, there could have been a cause for Respondent No.1 to file a
complaint under section 12 of the Act against the petitioners.   The
proceedings of present nature could not have been filed against the
Petitioners  only  because they are  relatives  of  the  deceased Rajesh
Khanna.
22. In my opinion, this is a fit case where this Court shall
exercise powers under section 482 of Criminal Procedure Code. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4196 OF 2012
Mrs. Dimple Jatin Khanna @
Dimple Rajesh Khanna @ Mrs.
Dimple Khanna

V
Anita Advani 

CORAM:­M.L. TAHALIYANI, J.

Dated : 9th APRIL, 2015.

Citation:2016 ALLMR(CRI)3748 bom

Heard   learned   Senior   counsel   for   Petitioners   and   Smt.
Mrunalini Deshmukh for Respondent No.1 and learned APP Shri V.B.K.
Deshmukh for Respondent No.2­ State.
2. The Petitioners in all the petitions have moved this Court
for quashing the proceedings pending against them in the Court of
Metropolitan Magistrate, 9th Court, Bandra, Mumbai, bearing C.C. No.
25/DV/2012   filed   by   Respondent   No.1   under   section   12   of   the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as 'the Act') 
3. Petitioner  No.1  –  Mrs.  Dimple  Jatin  Khanna  @  Dimple
Rajesh Khanna and Petitioner No.2 Mrs. Twinkle Rajiv Bhatia in writ
petition No.4196 of 2012 are widow and daughter respectively of the
deceased Rajesh Khanna (hereinafter referred to as 'Petitioner Nos. 1
and 2' ).  The Petitioner in writ petition No.4197 of 2012 (hereinafter
referred to as 'Petitioner No.3' ) is the husband of Petitioner No.2 in
writ petition No.4196 of 2012.   In this regard it may be mentioned
here that there was third similar petition also filed by Mrs. Rinke
Samir Saran @ Rinke Jatin Khanna bearing petition No.4228 of 2012.
She is also daughter of the deceased Rajesh Khanna.  However, during

the course of hearing of petitions a statement was made on behalf of
Respondent No.1 that she does not press for any relief against the
Petitioner in petition No.4228 of 2012.    Said petition was therefore,
disposed of accordingly.  As such, only two petitions are pending for
disposal.  
4. Late   Shri   Rajesh   Khanna   was   staying   in   his   bunglow
known as “Aashirwad”, situated at Cartar Road, Bandra, Mumbai.  It is
admitted   position   that   Petitioner   No.1   was   not   staying   with   the
deceased since few years before the date of death of the deceased
Rajesh   Khanna,   who   died   on  18­7­2012.    It   is   further   admitted
position   that   Petitioner   Nos.2   and   3   are   daughter   and   son­in­law,
respectively of Petitioner No.1 and the deceased Rajesh Khanna.
5.   The Respondent No.1 Anita Advani has filed a complaint in the
Court of Metropolitan Magistrate, 9th Court, Bandra, claiming that she
had   lived   together   with   the   deceased   Rajesh   Khanna   in   a   shared
household and she was in relationship with him in the nature of
marriage.  It is stated by her that she stayed with the deceased till 22­
6­2012 when she was dis­housed from the 'Aashirwad' bungalow.  It is
stated by her in her complaint that she had stayed with the deceased

as his wife and had taken care of his all the needs in good and bad
times.     According   to   her   she   did   not   leave   the   company   of   the
deceased even when his health was deteriorating and he was sinking.
It is alleged by her that the Petitioners reached the bungalow only
when they realised that the deceased was not likely to live for more
than a few days.   It is further alleged that Petitioners have reached
'Aashirwad' bungalow only with a view to dis­house the Respondent
No.1   and   to   grab   the   property   belonging   to   the   deceased   Rajesh
Khanna.  She has therefore, claimed reliefs under sections 18, 19 and
20 of the Act.  Her prayer clause in the complaint can be reproduced
as under :­
“(a) This Hon'ble Court may be pleased to pass a Permanent
Perpetual protection order in favour of Complainant/Applicant
restraining and prohibiting the respondent from 
(i) committing any further act of domestic violence upon the
complainant;
(ii) aiding or abetting in the commission of acts of domestic
violence upon the complainant ;
(iii) Threatening the Complainant in any form, whatsoever,
(iv) Obstructing the complainant from having free ingress and
egress into the residence at Aashirwad Bungalow, Carter
Road,   Bandra   (West),   Mumbai   400   050   and   residing
therein;
(v) Restrain   the   Respondents   from   alienating   any   assets,
operating bank lockers or bank accounts used or held by
Mr. Rajesh Khanna without the leave of this Hon'ble Court;
(vi) Causing violence to the dependents, other relatives or any
person who give the complainant assistance from domestic
violence;
(b) This Hon'ble Court may be pleased to pass a permanent

perpetual   Residence   order   in   favour   of   the   Complainant
/Applicant
(i) Restraining   and   prohibiting   the   respondent   from
dispossessing   or   in   any   other   manner   disturbing   the
possession of the Complainant from the shared household
at   Aashirwad   Bungalow,   Carter   Road,   Bandra   (West),
Mumbai 400 050.
(ii) Restraining   the   respondent   from   alienating   or
disposing  off  the  shared household  or encumbering  the
shared   household   at  Aashirwad   Bungalow,  Carter  Road,
Bandra (W), Mumbai­ 400 050;
(iii) By an appropriate Order direct the respondent to
secure  an  alternate  Residential  accommodation   of   same
level   as   enjoyed   by   the   complainant   in   the   above
mentioned shared household as alternate accommodation
for the Complainant or to pay costs for the same, if the
circumstances so require:
(iv) direct the Respondents to execute a bond, with or
without   sureties,   for   preventing   the   commission   of
domestic violence upon the complainant.
(v) to   direct   the   officer   in   charge   of   Bandra   police
station to give protection to the Complainant or to assist
the   complainant   in   the   implementation   of   the   above
orders;
(vi) to direct the respondent to return to the possession
of the complainant her personal belongings and personal
effects jewelleries clothes and apparels and other movable
properties belonging to the complainant lying at Aashirwad
Bungalow, Carter Road, Bandra (West), Mumbai 400­050;
(c) This Hon'ble Court may be pleased to pass a monetary relief
order in favour of the Complainant /Applicant
(i) directing the Respondents to pay to the Complainant
an amount of Rs.10,00,000/­ Rupees Ten Lakhs only as
monetary relief to meet the expenses incurred on account
of bodily pain, harm caused by the Respondents and to
compensate   for   loss   caused   due   to   forcible   and   illegal
eviction   from   the   Residence   and   the   resultant   mental
Agony, anguish, danger to life, health and impairment of
the   health,   injury   and   damages   suffered   by   the
complainant;
(ii) directing the Respondents to pay to the Complainant

an amount of Rs.50,00,000/­ Rupees Fifty Crores Only as
and by way of lump sum payments to meet the cost and
expenses   for   securing   same   level   of   alternate
accommodation   for   residence   of   the   complainant   as
enjoyed by the complainant in the shared household;
(d)   pending   the   hearing   and   final   disposal   of   the   above
complainant this Hon'ble Court may be pleased to order and
direct the respondents ;
(di)   a   protection   order   in   favour   of   the   Complainant
/Applicant ;
(dii) directing the Respondents to permit the complainant to
stay in the Aashirwad Bungalow Carter Road, Bandra
(West), Mumbai 400050 or in the alternate secure same
level of alternate accommodation for residence of the
complainant   as   enjoyed   by   the   complainant   in   the
shared   household;   and   thereafter   restrain   the
Respondents from obstructing free ingress and egress
into the said residence and residing therein;
(diii)   Restraining   and   prohibiting   the   Respondents   from
committing   any   act   of   domestic   violence   upon   the
complainant; or aiding or abetting thereof;
(div)   restrain   the   Respondents   from   threatening   the
Complainant in any form, whatsoever;
(dv) Restrain the Respondents from alienating or disposing
any assets, operating bank lockers or bank accounts used
or held by Mr. Rajesh Khanna and or disposing off or
encumbering the shared household without the leave of
this Hon'ble Court.
(dvi) Directing respondent to secure an alternate Residential
accommodation   of   same   level   as   enjoyed   by   the
complainant in the above mentioned shared household
as alternate accommodation for the complainant or to
pay costs for the same, if the circumstances so require;
(dvii)   direct   the   Respondents   to   execute   a   bond,   with   or
without   sureties,   for   preventing   the   commission   of
domestic violence upon the complainant;
(dviii) direct the officer in charge of Bandra police station to
give   protection   to   the   Complainant   or   to   assist   the
complainant in the implementation of the above orders;
(dix) Direct the respondent to return to the possession of the
complainant the complainant personal belongings and

personal   effects   jewelleries   clothes,   and   apparels   and
other movable properties belonging to the complainant
lying   at   Aashirwad   Bungalow,   Carter   Road,   Bandra
(West), Mumbai 400­050.
(dx) Direct the Respondents to pay to the Complainant an
amount   of   Rs.10,00,000/­   Rupees   Ten   Lakhs   only   as
monetary   relief   to  meet   the   day   to  day   maintenance
expenses of the complainant;
(e) That costs of this complaint and further proceeding may
be granted in favour of the complainant;
(f) This Hon'ble Court may be pleased to grant and pass
such other and further orders and reliefs as may deem
fit in the nature and circumstance of the case;
6. Though the application under section 12 of the Act filed by
Respondent   No.1   runs   into   few   pages   and   gives   details   of   her
relationship with the deceased Rajesh Khanna, it is not necessary to
reproduce the same in the present order.  The facts in brief mentioned
hereinabove and the prayer clauses of the application of Respondent
No.1 are, in my opinion, sufficient enough to give clear picture of the
case of Respondent No.1 before the learned Magistrate.
7. On filing of such application the order which is impugned
in the present petitions was passed by the learned Additional Chief
Metropolitan Magistrate on 7­11­2012, which can be reproduced as
under :­

“Presented today by the Applicant.  Issue show
cause notices to the Respondents.”
8. The Petitioners are aggrieved by this order.  It is the case of
the Petitioners that they had never been in the domestic relationship
with   Respondent   No.1   and   therefore,   she   cannot   claim   any   relief
against them.  It is further submitted that there was no relationship
between Respondent No.1 and the deceased in the nature of marriage.
Learned senior counsel for the Petitioners Mr. Shirish Gupte and Mr.
Mahesh Jethmalani have  submitted  that  even if  the  application  is
taken to be true and correct it does not disclose that Respondent No.1
was ever having any relationship with the deceased in the nature of
marriage.  It is contended that therefore she cannot claim any relief
under the Act.  In addition to this, it is also submitted that none of the
Petitioners are Respondents within the meaning of 'Respondent' as
defined   under   section   (q)   of   the   Act.     The   learned   counsel   have
submitted that the Respondent No.1 cannot take refuge under proviso
to section 2 (q) of the Act.  What is contended is that Respondent No.1
could not have dragged the Petitioners to Court on the ground that
they were relatives of the alleged male partner of Respondent No.1

9. Learned counsel Mr.  Jethmalani has submitted that the
aggrieved person has to prima facie show that she was in domestic
relationship.     In   the   present   case   Respondent   No.1   was   under
obligation to demonstrate in her application that she had relationship
with the deceased in the nature of marriage.  Unless this condition is
fulfilled,   the   application   could   not   have   been   entertained   by   the
learned Magistrate.  According to him, show cause notice issued by he
Magistrate   amounted to abuse of process of Court and needs to be
redressed by this Court in exercise of its powers under section 482 of
the Criminal Procedure Code.
10. Learned counsel Smt. Mrunalini Deshmukh has submitted
that   the   application   made   by   the   Respondent   No.1,   prima   facie,
discloses that she was having relationship with the deceased in the
nature of  marriage  and  therefore,  this  Court may  not exercise its
powers under section 482 of the Criminal Procedure Code to quash
the order of the learned Magistrate.  It was submitted by her that the
inherent powers are to be exercised sparingly and in rarest of the rare
cases.   According to her, application describes in detail as to how
Respondent No.1 had served the deceased Rajesh Khanna for years
and as to how the Petitioners had neglected the deceased.   Learned

counsel has brought to my notice that Respondent No.1 has alleged
that Petitioners reached 'Aashirwad' bungalow only when they realised
that if they did not meet the deceased they would loose the property
which   stood   in   the   name   of   the   deceased.     Smt.   Deshmukh   has
submitted that whether Respondent No.1 had relationship with the
deceased in the nature of marriage or not is a question of fact which
needs to be determined by the Trial Magistrate and therefore, this
Court   may   not   intervene   at   this   stage   and   may   not   permit   the
Petitioners to invoke powers of this Court under section 482 of the
Criminal Procedure Code.   She has relied upon few judgments of
Hon'ble Supreme Court to fortify her arguments that this is not a fit
case   where   Court   may   exercise   its   powers   under   section   482   of
Criminal Procedure Code.  Judgments relied upon by Mrs. Deshmukh
are :­
1. Pratibha V/s. Rameshwari Devi & Ors. II(2007)DMC 583 (SC)
2. State of Bihar V/s. Murad Ali Khan & Ors. AIR 1989 SC 1
3. Som Mittal V/s. Govt. of Karnataka AIR 2008 SC 1126
4. Baijnath Jha V/s. Sita Ram & Anr. AIR 2008 SC 2778
5. Sushil Suri V/s. CBI & Anr. AIR 2011 SC 1713
11. My attention was particularly invited to para 10 of the
judgment of  Pratibha V/s. Rameshwari Devi & Ors.1
.  The relevant
portion of the said para can be reproduced as under :
1 II(2007)DMC 583 (SC)

10. Before parting with this judgment, we may also
remind ourselves that the power under Section 482
of the Code has to be exercised sparingly and in the
rarest of rare cases.”
12. Learned counsel for the Petitioners Mr. Shirish Gupte has
relied upon mainly two judgments of Hon'ble Supreme Court.   First
judgment relied upon by the learned counsel for the Petitioners is in
the case of  State of Hariyana & Ors. V/s. Bhajanlal & Ors2
.   The
learned   counsel   has   relied   upon   paragraph   No.   102   of   the   said
judgment, which can be reproduced as under :­
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extra­ordinary
power under Article  226  or the inherent powers Under
Section  482  of the Code which we have extracted and
reproduced   above,  we  give  the  following  categories   of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
Court or otherwise to secure the ends of justice, though it
may   not   be   possible   to   lay   down   any   precise,   clearly
defined   and   sufficiently   channelised   and   inflexible
guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not primafacie
constitute any offence or make out a case against
the accused.
(2) Where the allegations in the First Information Report
and other materials, if any, accompanying the F.I.R. do not
2 1992 Supp (1) Supreme Court Cases 335

disclose a cognizable offence, justifying an investigation
by police officers Under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated Under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
13. My attention was also invited to the judgment of Hon'ble
Supreme Court in the matter of Pepsi Foods Ltd. & Anr. V/s. Special
Judicial   Magistrate   &   Ors3
.     The   Hon'ble   Supreme   court   while
dealing with the powers of High Court under section 482 of Criminal
Procedure Court has said as under :
3 reported at 1998 5 SCC 749

“22. It is settled that High Court can exercise its power
of judicial review in criminal matters. In State of
Haryana and Ors. v. Bhajan Lal and Ors.
MANU/SC/0115/1992 : 1992CriLJ527 , this Court
examined the extraordinary power under Article 226 of
the Constitution and also the inherent powers under
Section 482 of the Code which it said could be
exercised by the High Court either to prevent abuse of
the process of any court or otherwise to secure the
ends of justice. While laying down certain guidelines
where the court will exercise jurisdiction under these
provisions, it was also stated that these guidelines
could not be inflexible or laying rigid formulae to be
followed by the courts. Exercise of such power would
depend upon the facts and circumstances of each case
but with the sole purpose to prevent abuse of the
process of any court or otherwise to secure the ends of
justice. One of such guidelines is where the allegations
made in the first information report or the complaint,
even if they are taken at their face value and accepted
in their entirety do not prima facie constitute any
offence or make out a case against the accused. Under
Article 227 the power of superintendence by the High
Court is not only of administrative nature but is also of
judicial nature. This article confers vast powers on the
High Court to prevent the abuse of the process of law
by the inferior courts and to see that the stream of
administration of justice remains clean and pure. The
power conferred on the High Court under Articles 226
and 227 of the Constitution and under Section 482 of
the Code have no limits but more the power more due
care and caution is to be exercised invoking these
powers. When the exercise of powers could be under
Article 227 or Section 482 of the Code it may not
always be necessary to invoke the provisions of Article
226” (emphasis supplied)
14. As   such,   after   having   gone   through   the   judgments   of
Hon'ble Supreme Court cited by the learned counsel for the Petitioners
and the learned counsel for Respondent No.1, one thing is clear that
the   proceedings   pending   before   the   Magistrate   can   be   quashed   if

allegations made in the application under section 12 of the Act in their
entirety do not prima facie constitute a case to be entertained under
section 12 of the Act.
15. In view thereof, what is necessary to be examined is as to
whether learned Magistrate was justified in issuing show cause notice
to the Petitioners on the application made by Respondent No.1.  It is
not necessary to be stated here that notice could have been issued
only when the application discloses a prima facie case for entertaining
application under section 12 of the Act.  In the present case learned
senior counsel Mr. Mahesh Jethmalani and Mr. Shirish Gupte have
invited my attention to the judgment of Hon'ble Supreme Court in the
case of D. Velusamy Vs. D. Patchaiammal4   to support the contention
of the petitioners that the relationship, if any, of the respondent no. 1
with the deceased was not  akin to marriage. Paragraph Nos. 31, 32
and 33 of the said judgment reads as under:
“   31.In   our   opinion   a   'relationship   in   the   nature   of
marriage' is akin to a common law marriage. Common
law marriages require that although not being formally
married:
(a) The couple must hold themselves out to society as
being akin to spouses.
(b) They must be of legal age to marry.
4 (2010) 10 SCC 469 

(c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried.
(d) They must have voluntarily cohabited and held
themselves out to the world as being akin to spouses for
a significant period of time.
(see 'Common Law Marriage' in Wikipedia on Google)
In our opinion a 'relationship in the nature of marriage'
under the 2005 Act must also fulfill the above
requirements, and in addition the parties must have lived
together in a 'shared household' as defined in Section
2(s) of the Act. Merely spending weekends together or a
one night stand would not make it a 'domestic
relationship'.
32. In our opinion not all live in relationships will amount
to a relationship in the nature of marriage to get the
benefit of the Act of 2005. To get such benefit the
conditions mentioned by us above must be satisfied, and
this has to be proved by evidence. If a man has a 'keep'
whom he maintains financially and uses mainly for
sexual purpose and/or as a servant it would not, in our
opinion, be a relationship in the nature of marriage'
33. No doubt the view we are taking would exclude many
women who have had a live in relationship from the
benefit of the 2005 Act, but then it is not for this Court to
legislate or amend the law. Parliament has used the
expression 'relationship in the nature of marriage' and not
'live in relationship'. The Court in the grab of interpretation
cannot change the language of the statute.”
16. Learned counsel for Petitioners have also relied upon the
judgment of Hon'ble Apex Court in the case of Indra Sarma Vs. V.K.V.
Sarma (Criminal Appeal No.2009 of 2013). The observations made by
the Hon'ble Supreme Court in the said judgment at paragraph Nos. 61,
62, 63 and 66 can be reproduced as under 
“  61.   Such   relationship,   it   may   be   noted,   may
endure for a long time and can result pattern of

dependency   and   vulnerability,   and   increasing
number of such relationships, calls for adequate
and effective protection, especially to the woman
and children born out of that live­in­relationship.
Legislature, of course, cannot promote pre­marital
sex,   though,   at   times,   such   relationships   are
intensively personal and people may express their
opinion,   for   and   against.   See  S.Khushboo  v.
Kanniammal and another (2010) 5 SCC 600.
62.  Parliament  has to  ponder  over these  issues,
bring   in   proper   legislation   or   make   a   proper
amendment of the Act, so that women and the
children, born out of such kinds of relationships be
protected, though those types of relationship might
not be a relationship in the nature of a marriage.
63. We may now consider whether the tests, we
have laid down, have been satisfied in the instant
case. We have found that the appellant was not
ignorant   of   the   fact   that   the  respondent   was   a
married person with wife and two children, hence,
was   party   to   an   adulterous   and   bigamous
relationship. Admittedly, the relationship between
the appellant and respondent was opposed by the
wife of the respondent, so also by the parents of
the appellant and her brother and sister and they
knew that they could not have entered into a legal
marriage   or   maintained   a   relationship   in   the
nature of marriage.  Parties never entertained any
intention to rear children and on three occasions
the pregnancy was terminated.  Having children is
a strong circumstance to indicate a relationship in
the   nature   of   marriage.  No   evidence   has   been
adduced to show that the parties gave each other
mutual support and companionship. No material
has been produced to show that the parties have
ever   projected   or   conducted   themselves   as
husband and wife and treated by friends, relatives
and others, as if they are a married couple. On the
other hand, it is the specific case of the appellant

that   the   respondent   had   never   held   out   to   the
public   that   she   was   his   wife.   No   evidence   of
socialization in public has been produced. There is
nothing   to   show   that   there   was   pooling   of
resources or financial arrangements between them.
On the other hand, it is the specific case of the
appellant that the respondent had never opened
any joint account or executed any document in the
joint name. Further, it was also submitted that the
respondent   never   permitted   to   suffix   his   name
after the name of the appellant. No evidence is
forthcoming,   in   this   case,   to   show   that   the
respondent   had   caused   any   harm   or  injuries   or
endangered the health, safely, life, limb or wellbeing,
or caused any physical or sexual abuse on
the appellant, except that he did not maintain her
or continued with the relationship. 
ALIENATION OF AFFECTION
64. …...
65. …...
66. We have, on facts, found that the appellant’s
status was that of a mistress, who is in distress, a
survivor of a live­in relationship which is of serious
concern,   especially   when  such   persons   are  poor
and illiterate, in the event of which vulnerability is
more   pronounced,   which   is   a   societal   reality.
Children born out of such relationship also suffer
most which calls for bringing in remedial measures
by   the   Parliament,   through   proper
legislation.”(emphasis supplied)
17. Learned counsel for the Petitioners brought to my notice
that   the   marriage   between   the   deceased   Rajesh   Khanna   and   the
Petitioner   No.1   Dimple   Khanna   was   not   terminated   and   was   in

existence.  It was submitted that having knowledge of the fact that the
deceased had a wife, who was living separately, respondent no. 1
claimed to have entered into relationship with the deceased Rajesh
Khanna.  It is submitted that the relationship of Respondent No.1 with
the deceased was not in the nature of marriage.  Though both of them
were of legal age to marry they were not qualified to enter into legal
marriage.  They had never held themselves out to the world as being
spouses.     It   is   therefore,   contended   that   the   relationship,   if   any,
between the deceased and Respondent No.1 was not in the nature of
marriage and that she therefore, was not entitled for any relief under
the Act.  learned Senior counsel Mr. Mahesh Jethmalani has submitted
that though the petitioners have sympathy for Respondent No.1, the
issues in question are to be decided on the basis of law and the case
law laid down by the Hon'ble Supreme Court.  My attention was again
invited to para 32 of the judgment of Hon'ble Supreme Court in the
case of D. Velusamy Vs. D. Patchaiammal where the Apex Court has
said  that to get benefits under the Act all the conditions mentioned by
Apex Court in the said judgment must be satisfied.  It is also said by
the   Apex   Court   that   if   a   man   has   a   'keep'   whom   he   maintains
financially and uses mainly for sexual purpose and/or as a servant it
would not be a relationship in the nature of marriage.  My attention

was invited to two phrases used by the Apex Court i.e. “relationship in
the   nature   of   marriage”   and   “live   in   relationship”.   Law   extends
protection to the aggrieved person having “relationship in the nature
of marriage” and not the persons having “live in relationship” The
Apex Court has said that Court cannot change the language of statute
under the garb of interpretation.  
18. It is thus, obvious that the Applicant /Respondent No.1
was   under   obligation   to  prima   facie  demonstrate   that   she   had
relationship with the deceased in the nature of marriage.  If that was
lacking in the application, learned Magistrate could not have issued
notices to the petitioners.  In my considered opinion the Respondent
No.1 has failed to show from her application that she had relationship
with the deceased in the nature of marriage.  I have therefore, came to
the conclusion that no case was made out for issuing notices to the
Petitioners.  
19. There is another aspect which needs to be considered in
the present petitions.   The word, ''respondent'' has been defined in
section 2(q) of the Act as under :
“(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:”
20. In the present case deceased Rajesh Khanna was the adult
male person with whom Respondent No.1 claimed to have  domestic
relationship.     The   petitions   under   section   12   of   the   Act   are   filed
against the Petitioners in the Court of Magistrate by virtue of proviso
to section 2 (q) of the Act which runs as under :­
“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.”
21. No   doubt   the   present   Petitioners   are   relatives   of   the
deceased Rajesh Khanna. The question which arises for determination
is as to whether the present proceedings could have been filed against
them by taking advantage of the above stated proviso to section 2 (q)
of the Act.  It is admitted position that the Petitioners had never been
staying in the shared household  with the respondent no. 1.   The
Petitioner   No.1   Dimple   Jatin   Khanna   has   been   admittedly   staying
away from the bungalow 'Ashirwad' since last many years.  Petitioner
No.2 Twinkle Khanna is married and she is staying with her husband
petitioner no. 3 in her matrimonial house at Gandhi Gram Road, Juhu,

Mumbai.   As such, briefly stated, the Petitioners had never shared
common household with the Respondent No.1.  Grievance, if any, of
Respondent   No.1   could   have   been   against   the   deceased   Rajesh
Khanna.     Had   the   deceased   been   alive   at   the   time   of   filing   of
complaint and had the Petitioners living together with the deceased,
probably, there could have been a cause for Respondent No.1 to file a
complaint under section 12 of the Act against the petitioners.   The
proceedings of present nature could not have been filed against the
Petitioners  only  because they are  relatives  of  the  deceased Rajesh
Khanna.
22. In my opinion, this is a fit case where this Court shall
exercise powers under section 482 of Criminal Procedure Code.  If this
is not a fit case for exercise of inherent powers, to my mind, there
could not be any other conceivable case to exercise such powers.  
23. The result is that the petitioners succeed and both the
petitions   are   allowed.   Proceedings   pending   before   the   learned
Metropolitan Magistrate, 9th Court, Bandra against the petitioners vide
case No.25/DV/2012 shall stand quashed.

24. Both   the   criminal   writ   petitions   stand   disposed   of
accordingly.
25. Learned counsel Smt. Sarnaik for Respondent No.1 prays
for stay on this order for a period of six weeks.  In my opinion, stay on
the order will not serve any purpose and therefore, I am not inclined
to grant the prayer.  Prayer stands  rejected.
(JUDGE)

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