One more ground was argued in respect of this proceeding.
It was submitted that the same allegations are made by
respondent in the complaint which was filed by her for offence u/s
498-A of IPC. It was submitted that either of the 2 proceedings
This
Court
holds
that
this
proposition
is
proceedings.
need to be stayed in view of the nature of contents of the 2
misconceived. The purpose behind the 2 proceedings is altogether
different and the 2 proceedings need to be heard and decided
separately in view of the nature of the proceedings and the final
order which can be made in the proceedings. Thus, on second
ground also, the petitioners have no case in Writ Petition No.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.631/2011
Ritesh Ratilal Jain
VERSUS
1]
Sandhya W/o Ritesh Jain
CORAM :T.V.NALAWADE,J.
DATE : 26TH JUNE, 2013.
Citation; 2013 CR l J 3909 bombay
The first proceeding is filed for quashing and setting aside
the proceeding of Criminal Misc.Application No.176/2011 which is
pending in the Court of JMFC, Bhusawal,Dist.Jalgaon. The said
proceeding is filed for some reliefs under the Protection of Women
from Domestic Violence Act, 2005, by respondent no.1.
The second proceeding is filed for the relief of quashing and
setting aside the proceeding of R.C.C.No.107/11 which is pending
before JMFC,Bhusawal and which is filed by police for offence
punishable u/s 498-A, 323, 504, 506 r.w. 34 of IPC. After
investigation of the crime u/s 156(3) of Cr.P.C. on private
complaint filed by respondent no.1, charge sheet is filed by police.
In respect of first proceeding, it was submitted by learned
Both sides are heard.
counsel for petitioner that as per the record, respondent no.1 was
living separate from her husband for more than 4 years and so,
learned JMFC ought not to have entertained the proceeding. He
placed reliance on some observations made by this Court in the
case reported as 2013(5) LJSOFT 48 [Sejal Dharmesh Ved V/s
State of Maharashtra & Others]. This Court has carefully gone
through facts of this reported case and observations made. The
marriage between the parties had taken place in the year 1999
and wife had returned to India in the year 2009.
She filed
application under aforesaid Act in the year 2010 and in view of
facts of that case, the Court held that such proceeding ought to
have been filed within reasonable time and Court held that the
application was not tenable. The facts of the present case are not
that similar. There are allegations in respect of ill treatment given
to respondent in Surat and there are allegations that the husband
that he had left respondent no.1 to her parents house as he
wanted to desert her. It is her case that no provision was made for
her maintenance and she has no source of income. It is her case
that ill treatment was given to her as the husband and his relatives
were not satisfied with the dowry given at the time of marriage and
the husband wanted Rs.2 lakh more. She could not conceive even
after 10 years of marriage and so, husband wanted to marry
second wife. Husband has filed proceeding for divorce against
Hindu Marriage Act.
respondent no.1 under the provisions of Section 13(1)(1a) of
Police have filed criminal case against
husband for offence u/s 498-A of IPC after making investigation of
the complaint dated 14/6/10. Specific incident dated 13/6/10 is
mentioned in the complaint. Thus, facts of the case in hand are
altogether different.
4]
definition of “aggrieved person” is given in In Section 2(a) of
Protection of Women From Domestic Violence Act, 2005 which is
as under :
“2(a) “aggrieved person” - means any
woman who is, or has been in a domestic
relationship with the respondent and who
alleges to have been subjected to any act of
domestic violence by the respondent;
5]
In Section 2(f) of Protection of Women From Domestic
Violence Act, 2005, definition of “Domestic Relationship” is given
as under :
“2(f) “domestic relationship” means a
relationship between two persons who live or
have, at any point of time, lived together in a
shared household, when they are related by
in
or
the
nature
through
of
a
marriage,
ig
relationship
marriage,
consanguinity,
adoption or are family members living together
as a joint family.”
The definition of “Domestic Violence” is
given in Section 3 of the said Act as under :
“3] Definition of domestic violence – For the
purposes of this Act, any act, omission or
commission or conduct of the respondent shall
constitute domestic violence in case it -
[a]
harms or injures or endangers the
health, safety, life, limb or well being whether
mental or physical of the aggrieved person or
tends to do so and includes causing physical
abuse, sexual abuse, verbal and emotional
abuse and economic abuse; or
harasses,
harms
injures
or
endangers the aggrieved person with a view
to coerce her or any other person related to
her to meet any unlawful demand for any
dowry or other property or valuable security; or
has the effect of threatening the
[c]
ig
aggrieved person or any person related to her
by any conduct mentioned in clause (a) or
clause (b); or
[d]
otherwise injures or causes harm,
whether physical or mental, to the aggrieved
person.
Explanation I – For the purposes of this
section -
[i]
“physical abuse” means any act or
conduct which is of such a nature as to cause
bodily pain, harm or danger to life, limb, or
health or impair the health or development of
the aggrieved person and includes assault,
criminal intimidation and criminal force;
[ii]
“sexual
abuse”
includes
any
conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates the
dignity of woman ;
[iii]
“verbal
and
insults, ridicule, humiliation, name
ig
(a)
abuse”
includes -
emotional
calling and insults or ridicule specially with
and
regard to not having a child or a male child;
(b)
repeated threats to cause physical
pain to any person in whom the aggrieved
person is interested.
(iv) “economic abuse” includes -
(a) deprivation of all or any economic
or financial resources to which the aggrieved
person in entitled under any law or custom
whether payable under an order of a Court or
otherwise or which the aggrieved person
requires out of necessity including, but not
limited to, household necessities for the
aggrieved person and her children, if any,
stridhan, property, jointly or separately owned
by the aggrieved person, payment of rental
related
to
the
shared
maintenance;
(b)
household
and
disposal of household effects, any
alienation of assets whether movable or
valuables,
shares,
securities,
ig
immovable,
bonds and the like or other property in which
the aggrieved person has an interest or is
entitled to use by virtue of the domestic
relationship or which may be reasonably
required by the aggrieved person or her
children or her stridhan or any other property
jointly or separately held by the aggrieved
person; and
(c)
prohibition
or
restriction
to
continued access to resources or facilities
which the aggrieved person is entitled to use
or enjoy by virtue of the domestic relationship
including access to the shared household.
Explanation II – For the purpose of
determining
whether
any
act,
omission,
commission or conduct of the respondent
constitutes “domestic violence” under this
section, the overall facts and circumstances of
the case shall be taken into consideration.”
6]
Part (iv) regarding economic abuse of this definition can be
used in the instant case. The wording of Section 12 of aforesaid
Act under which the procedure for obtaining orders or reliefs under
ig
the Act is given shows that no time limit is fixed for filing of such
proceeding and what is required is to show that the applicant is
7]
aggrieved person as defined under the Act.
Thus in strict sense, no time limit is fixed for filing of the
proceeding if aforesaid things are made out by wife.
For
consideration of such proceeding, the purpose behind provisions
of Act need to be kept in mind and particularly when definition of
domestic relationship shows that a person like respondent is
required to show only that there was relationship between her and
the husband at any point of time as described in the definition. In
view of this position of law, this Court holds that observations
made in the case cited supra are of no help to the petitioners.
8]
One more ground was argued in respect of this proceeding.
It was submitted that the same allegations are made by
respondent in the complaint which was filed by her for offence u/s
498-A of IPC. It was submitted that either of the 2 proceedings
This
Court
holds
that
this
proposition
is
proceedings.
need to be stayed in view of the nature of contents of the 2
misconceived. The purpose behind the 2 proceedings is altogether
different and the 2 proceedings need to be heard and decided
separately in view of the nature of the proceedings and the final
order which can be made in the proceedings. Thus, on second
ground also, the petitioners have no case in Writ Petition No.
631/11.
In Writ Petition No.815/11 it was submitted for the petitioners
that the private complaint was filed after more than 4 years of
separate residence and it can be said that it was filed after more
than 4 years of alleged ill treatment given to the complainant. It
was submitted that as most of the period cohabitation was at Surat
and as the complaint is filed in Bhusawal, JMFC ought not to have
entertained the complaint.
acceptable.
These submissions are also not
There is some record.
In the complaint, specific
incident dated 13/6/10 is mentioned and in respect of this incident,
there are allegations against the accused that on that day he had
come to Bhusawal and he had committed offence described in
para no.3 of the complaint. Police of Bhusawal made investigation
and the charge sheet is now filed against the petitioners. There is
also record like the applications made to police authority by
respondent no.1 prior to filing of the complaint. This record also
shows that the wife was interested in returning to the matrimonial
house and she was taking all possible steps for the same. Much
was argued in respect of circumstance that there is mention in the
with her parents.
say filed by respondent Ritesh that due to illness, wife was living
It is the defence of Ritesh but the wife has
contended that she was left to her parents house by husband and
he deserted her.
There are allegations made by her that the
husband was demanding Rs.2 lakhs from her.
Thus, there is
sufficient material to make out prima facie case for the offences for
which charge sheet has been filed. In view of these circumstances
ig
this Court holds that it is not possible to quash and set aside
10]
proceedings of criminal case also.
The learned counsel for petitioner placed reliance on the
judgment reported in 2010(2) Bom.C.R.(Cri) 523, Nagpur Bench
[Satish @ Rajendra Harbans Tiward & Ors V/s State of
Maharashtra and another]. In this case, in view of the facts of
the case, the Court held that the complaint was not filed within 3
years from the date of offence and so, the Magistrate ought not to
have taken cognizance of the offence u/s 498-A of IPC. As per the
ratio laid down by the Apex Court in the case reported in AIR 2007
S.C. 2762 [Japani Sahoo V/s Chandra Sekhar Mohantry] period
of limitation needs to be counted from the date of complaint. There
cannot be dispute over this proposition.
This Court has gone
through the relevant material, and the complaint which show that
the cognizance of the offence could have been taken in view of the
date of last incident dated 13/6/2007.
In the result, both petitions stand dismissed. The Sessions
11]
Court is to see that both matters are brought in one Court of JMFC
and the JMFC is to see that for convenience of both sides, both
matters are kept on the same date, though cases are to be
decided separately.
[T.V.NALAWADE,J.]
No comments:
Post a Comment