Sunday, 12 February 2017

Whether wife can claim relief under domestic violence Act on same allegation on basis of husband is acquitted U/S 498A of IPC?

The considerations in the prosecution under Section 498­A
of the Indian Penal Code are different from the considerations while
dealing with an application under Section 12 of the Domestic Violence
Act, 2005.  “Cruelty” as explained/contemplated by Section 498­A of
the Indian Penal Code is different from the “domestic violence” as
defined by Section 3 of the Domestic Violence Act, 2005. 
“Economic abuse” as defined by clause (iv) of Explanation
I of Section 3 of the Domestic Violence Act, 2005 cannot be an offence
under Section 498­A of the Indian Penal Code.  The denial of right of
shared household or denial of alternate accommodation to the wife or
denial of monetary assistance to the wife will not constitute an offence
punishable under Section 498­A of the Indian Penal Code.  Considering
the facts of the case, in my view, the submissions made on behalf of
the applicant relying on the provisions of Section 300 of the Code of
Criminal Procedure, are misdirected.   Apart from the fact that the

applicant   is   acquitted   of   the   charge   of   commission   of   offences
punishable under Section 498­A and Section 323 of the Indian Penal
Code because of insufficiency of evidence, in my view, the claim made
by   the   applicant   under   Sections   17,   19   and   20   of   the   Domestic
Violence Act, 2005 is not hit by the principles of res judicata and by the
findings in the judgment given in Regular Criminal Case No.129/2014.
11. There cannot be  any dispute  that the  principles of  res
judicata  are applicable to criminal proceedings and the maxim “resjudicata
provertitate accipitur” will apply to the proceedings under
Section 12 of the Domestic Violence Act, 2005 as the proceedings are
quasi­civil  quasi­ criminal  in  nature.   However, the  point which is
required to be considered is whether the non­applicant can seek reliefs
under Section 17, Section 19 and Section 20 of the Domestic Violence
Act, 2005 on the basis of the same allegations, for which the applicant
was   prosecuted under Section 498­A and Section 323 of the Indian
Penal Code.  
Though,   in   the   application   under   Section   12   of     the
Domestic Violence Act, 2005, the non­applicant has reproduced the
same   allegations   against   the   applicant   which   were   made   in   the
complaint   made   to   the   police   station   on   the   basis   of   which   the

applicant is prosecuted for offences under Section 498­A and Section
323 of the Indian Penal Code, the pleadings/averments for seeking
reliefs under Section 17, Section 19 and Section 20 of  the Domestic
Violence Act, 2005 are different.  The relevant pleadings in support of
the reliefs claimed by the non­applicant are in paragraph No.60 of the
application, as follows :
“60. That the applicant is not having any source of income
and   she   is   not   doing   any   job   and   her   children   are   also
dependent on her.   It is to submit that the respondent is
lecturer earning good salary but not sparing single pai for the
applicant and the children.  That the respondent is leading his
luxurious life and depriving the applicant and her children
from minimum requirements of the life.  It is to submit that
the   respondent   No.1   can   easily   pay   Rs.20,000/­   to   the
applicant   for   the   maintenance   of   the   applicant   and   her
children.  It is therefore prayed that Hon'ble Court may grant
Rs.20,000/­ as maintenance to the applicant.”
12. The entitlement of the non­applicant for the reliefs sought
by her and the liability of the applicant to provide shared household or
to make an alternate arrangement for residence of the non­applicant
and   to   provide   monetary   assistance   for   food,   clothes,   medical,
travelling and miscellaneous items will have to be adjudicated by the
Court considering the application under Section 12 of   the Domestic
Violence Act, 2005.  Learned Magistrate who has decided the Regular

Criminal Case No. 129/2014 could not have dealt with these issues.
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
    CRIMINAL APPLICATION (APL) NO.497 OF 2015
Jaiprakash Madhukarrao Sahurkar,

V
Sarika w/o Jaiprakash Sahurkar,

                             CORAM : Z.A. HAQ, J.
                                     DATED  : 29th FEBRUARY, 2016.
Citation: 2016 ALLMR(CRI)5008

1. Heard Shri A.L. Deshpande, Advocate for the applicant
(husband) and Shri Kamlesh Dodani, Advocate for the non­applicant
(wife).

2. The applicant has filed this application under Section 482
of   the   Code   of   Criminal   Procedure   and   under   Article   227   of   the
Constitution of India praying that the order passed by the learned
Magistrate   in   Misc.   Criminal   Application   No.153/2014   on   the
application   (Exhibit   No.35)   on   18­05­2015   be   set   aside   and   the
proceedings initiated by the non­applicant under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as “the Domestic Violence Act, 2005”) be quashed.
3. The   marriage   of   the   applicant   and   non­applicant   was
solemnized   on   21­02­1999.     The   applicant   and   non­applicant   are
having two sons, elder studying in 10th standard and younger   in 7th
standard.  The differences between the parties arose in 2013 and the
non­applicant had filed the complaint against the applicant with the
Police Station on 02­12­2013 on the basis of which first information
report was registered against the applicant for offences under Sections
498­A, 323 and 504 of the Indian Penal Code.  The non­applicant filed
complaint under Section 12 of the Domestic Violence Act, 2005 before
the learned Magistrate, on 16­01­2014.
In   the   proceedings   before   the   learned   Magistrate,   an
attempt was made for amicable settlement and the parties arrived at

amicable settlement on 26­03­2014 and the terms were reduced to
writing.
In October 2014 the applicant filed H.M.P. No.347/2014
praying for decree for divorce under Section 13(1)(i­a) of the Hindu
Marriage Act.  The applicant had filed an application before the trial
Court praying that the agreement (Tadjod Patrak) between the parties
executed on 26­03­2014 be cancelled.  This application was rejected by
the trial Court.  
4. The   learned   Magistrate   conducted   the   trial   initiated
against the applicant for offences punishable under Sections 498­A,
323 and 504 of the Indian Penal Code and by the judgment dated
15­04­2015 acquitted the applicant.  After the judgment is passed by
the learned Magistrate acquitting the applicant, an application (Exhibit
No.35)   came   to   be   filed   by   the   applicant   on   27­04­2015   in   the
proceedings under the Domestic Violence Act, 2005 praying that the
proceedings   be   dismissed   in   view   of   the   findings   recorded   by   the
learned Magistrate while acquitting the applicant.   The learned trial
Judge dismissed this application by the order dated 18­05­2015.

5. The   substantive   challenge   is   that   the   applicant   having
been acquitted of the charge under Sections 498­A and 323 of the
Indian   Penal   Code,   the   proceedings   initiated   by   the   non­applicant
under the provisions of the Domestic Violence Act, 2005 on the same
allegations made by the non­applicant, are required to be dismissed.
This challenge is raised relying on the provisions of Section 300 of the
Code of Criminal Procedure.
Shri A.L. Deshpande, Advocate, referring to Section 28 of
the Domestic Violence Act, 2005 and Rule 6(5) of the Protection of
Women from Domestic Violence Rules, 2006, has submitted that the
proceedings under Section 12 of the Domestic Violence Act, 2005 are
governed by the provisions of the Code of Criminal Procedure, 1973
and the applications under Section 12 of the Domestic Violence Act,
2005 have to be dealt with in the same manner laid down under
Section 125 of the Code of Criminal Procedure, 1973.  It is submitted
that there cannot be dispute about applicability of Section 300 of the
Code of Criminal Procedure and the entitlement of the applicant for its
benefit.  The learned Advocate has submitted that the applicant having
been   tried   by  the  Court  of   competent  jurisdiction   for   the   offences
under Sections 498­A and 323 of the Indian Penal Code on the basis of
allegations   made   by   the   non­applicant   in   her   complaint   and   the

applicant having been acquitted, the applicant cannot be compelled to
undergo the rigour of trial under 12 of the Domestic Violence Act,
2005 on the basis of the same allegations.  
It is submitted that claiming benefit under the provisions
of Domestic Violence Act, 2005, the non­applicant has to establish that
there is “domestic violence” as defined in Section 3 of the Domestic
Violence Act, 2005, and the ingredients of “domestic violence” as per
Section 3 of the Domestic Violence Act, 2005 are almost the same as
that of Section 498­A of the Indian Penal Code and once it is found by
the Court of competent jurisdiction that the non­applicant has failed to
establish that the applicant had subjected the non­applicant to cruelty
contemplated by Section 498­A of the Indian Penal Code, the applicant
cannot be put to double jeopardy of undergoing the trial under the
provisions   of   Section   12   of   the   Domestic   Violence   Act,   2005.     In
support   of   the   submission   reliance   is   placed   on   the   following
judgments :
i) Judgment given by the Andhra Pradesh High Court in the
case of Markapuram Siva Rao s/o Somaiah vs. State of
Andhra   Pradesh   and   another  in  Criminal   Petition
No.12970 of 2010.
ii) Judgment given by this Court in the case of G.G.A. Naidu

vs.  State of Maharashtra & Ors. reported in  2002 ALL
MR (Cri.) 1465.
iii) Judgment given by the Madras High Court in the case of
Emperor vs. John McIver reported in AIR 1936 Madras
353 (Full Bench).
iv) Judgment given by the Andhra Pradesh High Court in the
case of Thadi Narayana vs. The State of Andhra Pradesh
reported in AIR 1960 AP 1 (Full Bench).
6. Shri   A.L.   Deshpande,   Advocate   has   submitted   that   the
findings   recorded   by   the   learned   Magistrate   while   acquitting   the
applicant of the charge under Section 498­A and Section 323 of the
Indian Penal Code are binding on the non­applicant.  It is submitted
that the maxim “res­judicata provertitate accipitur” is applicable to the
criminal proceedings also.   In support of this submission, reliance is
placed on the judgment given by the Hon'ble Supreme Court in the
case of Pritam Singh and another vs. The State of Punjab reported in
AIR 1956 SC 415.
7. The learned Advocate for the applicant has submitted that
the non­applicant has abused the process of law by initiating different

proceedings against the applicant on the basis of same allegations and
the applicant having been acquitted in the proceedings initiated on the
allegations of commission of offences under Section 498­A and Section
323 of the Indian Penal Code, the non­applicant cannot be permitted
to   harass   the   applicant   by   requiring   the   applicant   to   face   the
proceedings under Section 12 of the Domestic Violence Act, 2005 on
the basis of same allegations.  To support this submission, the learned
Advocate has relied on the judgment given by the Punjab and Haryana
High Court in the case of  M.R. Tiwari vs. M/s. Aster Drugs and
Pharmaceuticals   Ltd.   and   Ors.  reported   in  2009(3)   Crimes   401
(P&H).
It is prayed that the application be allowed, the impugned
order be set aside and the proceedings filed by the non­applicant under
Section 12 of the Domestic Violence Act, 2005 be dismissed.
8. Shri Kalmesh Dodani, Advocate for the non­applicant has
submitted that the challenge raised by the applicant relying on the
provisions   of   Section   300   of   the   Code   of   Criminal   Procedure   is
misdirected.  It is submitted that the ingredients of offence punishable
under Section 498­A of the Indian Penal Code are different from the
ingredients of “domestic violence” defined by Section 3 of the Domestic

Violence Act, 2005.  It is submitted that the standard of proof required
for convicting the accused for the offences punishable under Section
498­A and Section 323 of the Indian Penal Code is different than the
standard of proof required while considering grant of reliefs to the
aggrieved person under Section 12 of the Domestic Violence Act, 2005.
The learned Advocate has pointed out the conclusions of the learned
Magistrate   in   paragraph   No.31   of   the   Judgment   given   in   Regular
Criminal Case No.129/2014 and has submitted that the applicant is
acquitted of the charge for commission of offence under Section 498­A
and Section 323 of the Indian Penal Code because of insufficiency of
evidence.  The learned Advocate for the non­applicant has submitted
that the proceedings under Section 12 of the Domestic Violence Act,
2005   are   quasi­criminal,   quasi­civil   proceedings.     To   support   this
submission, the learned Advocate has relied on the judgment given by
this Court in the case of  Raosaheb Pandharinath Kamble and Ors.
vs. Shaila Raosaheb Kamble and Ors.  reported in  2010 ALL MR
(Cri.) 2143.  It is prayed that the application be dismissed with costs.
9. With   the   assistance   of   the   learned   Advocates   for   the
respective parties, I have examined documents placed on the record of
the   application.     In   the   application   filed   under   Section   12   of   the

Domestic Violence Act, 2005, the non­applicant has prayed for relief
under Section 17 of the Domestic Violence Act, 2005 regarding her
right to reside in a shared household.  The non­applicant has prayed
for relief under Section 19 of the Domestic Violence Act, 2005 for
separate   accommodation   or   for   directions   to   the   applicant   to   pay
Rs.5,000/­ per month to enable the non­applicant to avail separate
accommodation.  The non­applicant has sought monetary reliefs under
Section 20 of the Domestic Violence Act, 2005 and has prayed that the
applicant be directed to pay Rs.20,000/­ per month for food, clothes,
medical, travelling and miscellaneous items.  The submissions made on
behalf of the applicant are required to be considered in the background
of the reliefs sought by the non­applicant in the application under
Section 12 of the Domestic Violence Act, 2005.
10. Section 498­A of the Indian Penal Code reads as follows :
“498­A.   Husband   or   relative   of   husband   of   a
woman subjecting her to cruelty  – Whoever, being the
husband   or   the   relative   of   the   husband   of   a   woman,
subjects   such   woman   to   cruelty   shall   be   punished   with
imprisonment for a term which may extend to three years
and shall also be liable to fine. 
Explanation  –   For   the   purpose   of   this   Section,
“cruelty” means­
(a) any wilful conduct which is of such a nature as is

likely to drive the woman to commit suicide or to cause
grave   injury   or   danger   to   life,   limb   or   health   (whether
mental or physical) of the woman; or 
(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to her
to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand.”
The considerations in the prosecution under Section 498­A
of the Indian Penal Code are different from the considerations while
dealing with an application under Section 12 of the Domestic Violence
Act, 2005.  “Cruelty” as explained/contemplated by Section 498­A of
the Indian Penal Code is different from the “domestic violence” as
defined by Section 3 of the Domestic Violence Act, 2005. 
“Economic abuse” as defined by clause (iv) of Explanation
I of Section 3 of the Domestic Violence Act, 2005 cannot be an offence
under Section 498­A of the Indian Penal Code.  The denial of right of
shared household or denial of alternate accommodation to the wife or
denial of monetary assistance to the wife will not constitute an offence
punishable under Section 498­A of the Indian Penal Code.  Considering
the facts of the case, in my view, the submissions made on behalf of
the applicant relying on the provisions of Section 300 of the Code of
Criminal Procedure, are misdirected.   Apart from the fact that the

applicant   is   acquitted   of   the   charge   of   commission   of   offences
punishable under Section 498­A and Section 323 of the Indian Penal
Code because of insufficiency of evidence, in my view, the claim made
by   the   applicant   under   Sections   17,   19   and   20   of   the   Domestic
Violence Act, 2005 is not hit by the principles of res judicata and by the
findings in the judgment given in Regular Criminal Case No.129/2014.
11. There cannot be  any dispute  that the  principles of  res
judicata  are applicable to criminal proceedings and the maxim “resjudicata
provertitate accipitur” will apply to the proceedings under
Section 12 of the Domestic Violence Act, 2005 as the proceedings are
quasi­civil  quasi­ criminal  in  nature.   However, the  point which is
required to be considered is whether the non­applicant can seek reliefs
under Section 17, Section 19 and Section 20 of the Domestic Violence
Act, 2005 on the basis of the same allegations, for which the applicant
was   prosecuted under Section 498­A and Section 323 of the Indian
Penal Code.  
Though,   in   the   application   under   Section   12   of     the
Domestic Violence Act, 2005, the non­applicant has reproduced the
same   allegations   against   the   applicant   which   were   made   in   the
complaint   made   to   the   police   station   on   the   basis   of   which   the

applicant is prosecuted for offences under Section 498­A and Section
323 of the Indian Penal Code, the pleadings/averments for seeking
reliefs under Section 17, Section 19 and Section 20 of  the Domestic
Violence Act, 2005 are different.  The relevant pleadings in support of
the reliefs claimed by the non­applicant are in paragraph No.60 of the
application, as follows :
“60. That the applicant is not having any source of income
and   she   is   not   doing   any   job   and   her   children   are   also
dependent on her.   It is to submit that the respondent is
lecturer earning good salary but not sparing single pai for the
applicant and the children.  That the respondent is leading his
luxurious life and depriving the applicant and her children
from minimum requirements of the life.  It is to submit that
the   respondent   No.1   can   easily   pay   Rs.20,000/­   to   the
applicant   for   the   maintenance   of   the   applicant   and   her
children.  It is therefore prayed that Hon'ble Court may grant
Rs.20,000/­ as maintenance to the applicant.”
12. The entitlement of the non­applicant for the reliefs sought
by her and the liability of the applicant to provide shared household or
to make an alternate arrangement for residence of the non­applicant
and   to   provide   monetary   assistance   for   food,   clothes,   medical,
travelling and miscellaneous items will have to be adjudicated by the
Court considering the application under Section 12 of   the Domestic
Violence Act, 2005.  Learned Magistrate who has decided the Regular

Criminal Case No. 129/2014 could not have dealt with these issues.
13. In view of the above, the submissions made on behalf of
the applicant cannot be accepted.  The provisions of Section 300 of the
Code of Criminal Procedure will not be attracted in the facts of the
case.   The learned Magistrate has rightly considered the issue and
there is no error in the impugned order repelling the challenge raised
on behalf of the applicant.
In view of my conclusions, the judgments relied upon by
the   learned   Advocates   representing   the   respective   parties   are   not
required to be discussed in details. 
14. I see no reason to interfere with the impugned order.  The
application is dismissed.  In the circumstances, the parties to bear their
own costs.
                            JUDGE

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