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Madhya Pradesh High Court · body

2010 DIGILAW 230 (MP)

Ramlal v. Srnr. Rekha

2010-02-24

N.K.MODY

body2010
Judgment ( 1. ) Being aggrieved by the judgment dated 28/5/2009 passed by XVIth Addl. Sessions Judge, Indore in Cri. Appeal No. 221/2009, whereby the order dated 18/4/2009 passed by A.C.J.M, Indore in Cri. Case No. 984/ 2009, whereby the application filed by the petitioner was dismissed, was maintained, the present petition has been filed. ( 2. ) Short facts of the case are that the respondent prosecuted the petitioner for the offence alleged to have been committed under section 12,17 and 22 of Domestic Violence Act, 2005 alleging that marriage of the petitioner was solemnized in the year 1992 and thereafter parties lived to gether as husband and wife upto 1994. It was alleged that respondent was subjected to curelty by the petitioner and in the year 1994 petitioner married another woman namely Yashodabai from whom the petitioner is having two daughters. It was alleged that petitioner is not taking care of the respondent. It was also alleged that petitioner is having three houses, while the respondent is without shelter. It was prayed that either one of the house or the rent be awarded to the respondent. ( 3. ) Upon the notice petitioner moved an appiiction on 17/3/2009 before the learned trial Court, wherein it was alleged that marriage of the petitioner was solemnized with the respondents in the year 1992 and the parties are living separately since 1994. it was alleged that the Protection of Women From Deomestic Violence Act has corne in force w.e.f. 26/10/2006. In the facts and circumstances of the case it was alleged that petitioner cannot be prosecuted for the alleged misdeeds of the petitioner for the period when the Act was not in force, therefore, the complaint be dismissed. After hearing the parties the application filed by the petitioner was dismissed against which an appeal was filed, which was also dismissed hence this petition. ( 4. ) Learned counsel for the petitioner submits that marriage of the petitioner was solemnized in the year 1992. As per the complaint itself respondents is living separately since 1994, therefore, there was nothing on the basis of which it can be said that the petitioner has caused Domestic Violence after coming into force of the Domestic Violence Act. ( 4. ) Learned counsel for the petitioner submits that marriage of the petitioner was solemnized in the year 1992. As per the complaint itself respondents is living separately since 1994, therefore, there was nothing on the basis of which it can be said that the petitioner has caused Domestic Violence after coming into force of the Domestic Violence Act. It is submitted that in the facts and circumstances of the case petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside. ( 5. ) From perusal of the record it is evident that the learned Court below has observed in its order that since the petitioner has kept a woman as wife, therefore, continuous cause of domestic violence arose to the respondent. Another ground, which has been taken by the petitioner for taking cognizance of the offence is that petitioner is having two daughters from Yashodabai while the petitioner is not taking care of the respondent. This fact is no more in dispute that for the purposes of maintenance the rerspondent has initiated separate proceedings, which are pending under section 125 Cr.P.C. Similarly so far as Yashodabai is concerned, respondent has prosecuted the petitioner for an offence punishable under section 494 IPC, which is pending. Since the parties are living separately w.e.f. 1994, therefore, prima facie it appears that no cause of action accured to the respondent to prosecute the petitioner for the offence punishable under the provisions of Domestic Violence Act. In the matter of Navin v. Rajni in M.Cr.C.No. 6741/2008 decided by this Court on 2/3/2009 the marriage was solemnized between he parties on 12/11/2005 and in the complainant it was alleged that the complaint was subjected to violence between 12/11/2005 to 6/6/2006, while the Act came in force on 26/10/2006, therefore, this Court held that since the Act was not in force when the alleged offence was committed, therefore, petitioner husband cannot be prosecuted. The similar circumstances are arising in the present case. In view of this petition filed by the petitioner is allowed and the impugned judgment passed by the appeal Court and the order passed by the trial Court are set aside the complaint filed by the respondent stands dismissed. With the aforesaid observations petition stands disposed of.