Wednesday, 30 November 2016

Whether complaint under domestic violence Act is maintainable in absence of specific instance of domestic violence against petitioner?

The precise object of the Act of 2005 is to protect
a woman against domestic violence and in appropriate
cases, she is also entitled to claim right of residence.
The right of residence can be claimed by wife in the
property owned by her husband or joint property in
which husband has a share and not otherwise. A bare
reading of the complaint makes it abundantly clear that
it does not disclose any specific instance of domestic
violence against the petitioners as contemplated under
Section 3 of the Act of 2005 except certain omnibus
allegations against the petitioners. Moreover, there is
no semblance of proof furnished by the respondentcomplainant
that her deceased husband was owning a
residential house or had a share in the joint family
property. In such a situation, a casual reference of the
name of the family members i.e. petitioners in the
complaint without there being any allegation of their
active involvement in the matter is sufficient to
conclude that complaint is in fact designed to harass
petitioners against the legislative intent. In absence of
any concrete proof about domestic relationship with the
petitioners i.e. the petitioners and respondent had been
living in a shared household and she has been
subjected to domestic violence, the maintainability of
the complaint itself is under serious clouds. 
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

 CRIMINAL MISC. (PET.) (CRLMP) NO.1524 of 2011
 Sudama Dutt Sharma

V
The State of Rajasthan.

Date of Order :: 08.11.2016

HON'BLE MR. P.K. LOHRA, J.



Petitioners have laid this criminal misc. petition,
under Section 482 Cr.P.C., seeking quashment of
complaint under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (for short, 'Act of
2005') filed by second respondent-wife. [2]
It is, inter-alia, averred in the petition that
complainant entered into matrimony with Hitesh
Sharma on 25th of Febraury, 1994 and soon thereafter a
matrimonial dispute cropped up between the spouses,
which to led filing of complaint at the behest of second
respondent against her husband, Hitesh Sharma, for
offence under Sections 498A, 323, 406 and 504 IPC on
17th of October, 2010, who passed away during
pendency of the same. Apart from that, the
complainant also submitted a complaint against
petitioners and her husband under Section 12 of the
Act, 2005. In the complaint, petitioners No. 1 & 2, who
are father-in-law and mother-in-law of the complainant
respectively, were also arrayed and petitioner No.3,
who is sister-in-law, was also impleaded as a party. In
the original complaint, husband was also impleaded,
however due to his death complaint against him
abetted. By relying on the averments contained in the
complaint, wherein she has categorically stated that
she was forced to leave matrimonial home on 12th June,
1995, petitioners have pleaded in the petition that no
case for domestic violence against the petitioners is
made out within the four corners of Section 12 of the
Act of 2005. Specific contention of the petitioners is
that since 1995, the respondent-complainant is not
living with petitioners, and therefore, the allegation of
perpetrating domestic violence by them against her is
per se a false and concocted fact and in case the
proceedings in the matter are allowed to be continued,
the same would result in miscarriage of justice. It is[3]
also pleaded in the petition that by entertaining the
complaint of second respondent, the learned Chief
Judicial Magistrate, Banswara (for short, 'learned trial
Court') has abused the process of the Court, and
therefore, inherent powers are to be exercised for
quashing the complaint itself.
The petition is pending since 2011. On 26th of
November, 2012, the Court was pleased to admit
petition and requisitioned the record. Later on, vide
order dated 27th of April, 2013, further proceedings in
Complaint Case No.14/2010, pending before the
learned trial Court, were stayed.
Learned counsel for the petitioners, Mr. Joshi, has
strenuously urged that a bare perusal of complaint
under Section 12 of the Act of 2005 makes it
abundantly clear it does not disclose the requisite
ingredients for proceeding against the petitioners and
the complaint has been designed to harass the
petitioners, which is a glaring example of abuse of the
process of the Court. Learned counsel further submits
that although the Act of 2005 is a welfare legislation,
which is essentially enacted to protect the rights of a
woman, but then pre-requisite for taking shelter of the
provisions of the Act of 2005 is that the woman has
been subjected to domestic violence by her-in-laws,
which is conspicuously missing in the instant case.
Leaned counsel for the complainant, on the other
hand, submits that the factum of matrimony between
complainant and Hitesh Sharma is not in dispute and so[4]
also relationship of petitioners with the complainant as
such it is a clear case of domestic violence. Learned
counsel for the complainant further submits that a
cumulative reading of the averments contained in the
complaint makes it crystal clear that complainant has
not been subjected to domestic violence, therefore, no
interference in exercise of inherent jurisdiction is
warranted.
I have heard learned counsel for the parties and
perused the entire record of the case.
The precise object of the Act of 2005 is to protect
a woman against domestic violence and in appropriate
cases, she is also entitled to claim right of residence.
The right of residence can be claimed by wife in the
property owned by her husband or joint property in
which husband has a share and not otherwise. A bare
reading of the complaint makes it abundantly clear that
it does not disclose any specific instance of domestic
violence against the petitioners as contemplated under
Section 3 of the Act of 2005 except certain omnibus
allegations against the petitioners. Moreover, there is
no semblance of proof furnished by the respondentcomplainant
that her deceased husband was owning a
residential house or had a share in the joint family
property. In such a situation, a casual reference of the
name of the family members i.e. petitioners in the
complaint without there being any allegation of their
active involvement in the matter is sufficient to
conclude that complaint is in fact designed to harass[5]
petitioners against the legislative intent. In absence of
any concrete proof about domestic relationship with the
petitioners i.e. the petitioners and respondent had been
living in a shared household and she has been
subjected to domestic violence, the maintainability of
the complaint itself is under serious clouds. Reliance in
this behalf can be profitably made to a decision of this
Court in Hema alias Hemlata & Anr. Vs. Jitendra & Anr.
[2010 Cr. Law Journal 1744].
 There is yet another aspect of the matter that the
respondent-complainant laid the complaint on 8th of
February 2010 and during pendency of the complaint
her husband expired on 17th of October 2010, as a
consequence of which complainant against him was
abated. In the considered opinion of this Court,
therefore, learned trial Court has seriously erred in
continuing proceedings against the present petitioners
on wholly untenable grounds. On the face of it,
when the complaint is bereft of pre-requisites of
necessary ingredients prescribed under Section 12 of
the Act of 2005, further proceedings in the matter
against the petitioners is nothing but a futile exercise
which warrants clogging of the same perpetually to
secure ends of justice.
That apart, in the instant case, the
discord/acrimony between the spouses started from
1995 and since then complainant is not living with the
petitioners and even there was a matrimonial dispute
going on between the spouses, is sufficient to conclude[6]
that there is no iota of evidence to indicate that she has
been subjected to domestic violence by the petitioners.
Moreover, in the peculiar facts and circumstances of the
case, any claim of residence staked by respondentcomplainant
against the petitioners is wholly untenable
as per provisions of the Act of 2005.
In above view of the matter, if the proceedings are
allowed to be continued before the learned trial Court
on the complaint filed by the respondent-complainant,
it would obviously result in abuse of the process of the
Court.
Consequently, I feel persuaded to exercise
inherent jurisdiction of this Court for quashment of
entire proceedings.
Resultantly, the instant petition is allowed.
Complaint No.14/2010 pending before Chief Judicial
Magistrate, Banswara and the entire proceedings
pursuant thereto are hereby quashed and set aside.

 ( P.K. LOHRA ),J.

Print Page

No comments:

Post a Comment