Sunday 31 December 2023

Whether Domestic violence proceeding can be quashed against Physically handicapped person on the ground that he is unable to give threats?

 It is sought to be argued by the learned counsel for the applicant no.3 mother-in-law that she is physically disabled person and therefore she cannot be said to have committed any domestic violence against the respondent. The allegation against applicant no.3 is that she used to abuse and threaten the respondent. Needless to state that physically handicapped person in all cases need not be said to be incapable to give such threats. It would be the matter of evidence during trial before the learned Magistrate to ascertain as to whether any domestic violence was caused to respondent by these applicants. Suffice it to say that prima facie perusal of the application indicates that respondent was subjected to domestic violence. Having regard to these facts, the application is dismissed as against applicantsno.1, 2, 3 and 6.

 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

914 CRIMINAL APPLICATION NO.694 OF 2023

 Salim  Vs Sharin 

CORAM : R. M. JOSHI, J.

DATE : AUGUST 11, 2023

At the outset, learned counsel for the applicants states

that he is only pressing for relief of the quashment of Criminal Misc.

Application No.967 of 2019 filed before learned Judicial Magistrate

First Class, Dhule under the provisions of the Protection of Women

from Domestic Violence Act (hereinafter referred to as the ‘D.V. Act’) and rest of the prayers are not pressed.

2. This application has been filed under Section 482 of the

Code of Criminal Procedure seeking quashment of Criminal Misc.

Application No.967 of 2019 filed under the D.V. Act by the

respondent.

3. It is the contention of the applicants that without there

being any specific incidences of domestic violence referred in the

application, such application cannot be permitted to be prosecuted

before the learned JMFC. It is also contention of applicants no. 4 and

5 that they were residing separately and that they never shared a

common household with the respondent in order to attract provisions

of the D.V. Act.

4. Learned counsel for the applicants has drawn attention of

the Court to the order passed in Criminal Application No.2168 of

2022 wherein there is a specific finding recorded by the Division

Bench of this Court that applicants no.4 and 5 were residing

separately. There is no dispute about the fact that this order has not

been challenged by the respondent herein. Finding recorded by this

Court to that extent therefore has attained finality.

5. Perusal of the application filed before the learned

Magistrate also does not specifically states that applicant nos. 4 and 5

were sharing common household. Even otherwise, in view of the

specific finding recorded by the Division Bench of this Court in the

aforesaid application, now it is not open for the respondent to claim

that applicants no. 4 and 5 were staying in a joint family. Section

2 (a) of the D.V. Act defines ‘aggrieved person’. Section 2 (f) defines

‘domestic relationship’ which 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 consanguinity, marriage,

or through a relationship in the nature of marriage or living together

as a joint family. There are no specific allegations against applicants

no.4 and 5 as they were residing together as a joint family. Thus,

application filed under the provisions of D.V. Act is not maintainable

as far as applicants no.4 and 5 are concerned.

6. As far as applicants no.1, 2, 3 & 6 are concerned, there is

no dispute about the fact that they were residing in the joint family

with respondent may be for a short period of three months as claimed

by them. The period is immaterial as the provisions of D.V. Act does

not contemplate any specific period to have been spent by the persons

in order to constitute it to be domestic relationship. In view of this,

there is no substance in the contention of learned counsel for the

applicants no.1, 2, 3 and 6 that the proceedings are not tenable

against them.

7. As far as the other contentions with regard to there being

no specific allegations made against applicants no.1, 2, 3 and 6

constituting domestic violence are concerned, prima facie perusal of

the application made before the learned Magistrate indicates that

there are allegations against these applicants about abusing

respondent. It is sought to be argued by the learned counsel for the applicant no.3 mother-in-law that she is physically disabled person and therefore she cannot be said to have committed any domestic violence against the respondent. The allegation against applicant no.3 is that she used to abuse and threaten the respondent. Needless to state that physically handicapped person in all cases need not be said to be incapable to give such threats. It would be the matter of evidence during trial before the learned Magistrate to ascertain as to whether any domestic violence was caused to respondent by these applicants. Suffice it to say that prima facie perusal of the application indicates that respondent was subjected to domestic violence. Having regard to these facts, the application is dismissed as against applicantsno.1, 2, 3 and 6.

8. Since applicants no.4 and 5 did not share domestic

relationship with respondent / aggrieved person, the proceeding

against them under the D.V. Act cannot be sustained and hence the

D.V. proceedings being Criminal Misc. Application No.967 of 2019

stands quashed qua applicants no.4 and 5.

9. Criminal Application stands disposed of in above terms.

10. In view of disposal of criminal application, nothing

survives for consideration in the pending application No.1553 of 2023

and the same stands disposed of.

[ R. M. JOSHI ]

JUDGE


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