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Madhya Pradesh High Court · body

2013 DIGILAW 970 (MP)

Kamal Vaswani v. Jaidevi Vaswani

2013-08-16

D.K.Paliwal

body2013
ORDER 1. This petition has been preferred under section 482 of CrPC for quashing the private complaint, whereby notice has been issued to the petitioners in MJC No.36/2012 vide order dated 9.11.2012 under section 12 of the Protection of Women from Domestic Violence Act, 2005. 2. Brief facts of the petition are that respondent had moved an application under section 12 and under section 23(2) read with sections 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, alleging that the petitioners are sons of complainant’s Devar. Petitioners have turned out the respondent/complainant from the house and since then she is residing with her relatives. It is further alleged that petitioners have filed a suit for eviction against the tenant of the respondent/complainant and have tried to deprive the respondent/complainant of the rent. It is further alleged that respondent/complainant is apprehending that she might be beaten. Respondent/complainant does not want to remain dependent upon her relatives but wants to reside in her family house situated at Mor Bazar bearing number 41/7 and new number 45/7. Respondent/complainant apprehends that petitioners will not allow her to remain in the house, therefore, it is prayed that order be passed under sections 18 and 19 of the Protection of Women from Domestic Violence Act. 3. On the basis of the aforesaid allegations learned Magistrate has taken the cognizance under the provisions of Protection of Women from Domestic Violence Act and issued notice to the petitioners to secure their presence. Upon service of notice petitioners appeared before the Court on 3.12.2012 and filed reply to the application filed by the respondent/complainant under section 23(2) of the Protection of Women from Domestic Violence Act. Learned JMFC, Gwalior has dismissed the application filed under section 23 of the Protection of Women from Domestic Violence Act holding that prima facie no case under the provisions of Protection of Women from Domestic Violence Act is made out. However the learned JMFC, Gwalior has fixed the case for reply of the application under section 12 of Protection of Women from Domestic Violence Act. Being aggrieved by the same petitioners have preferred this petition. 4. However the learned JMFC, Gwalior has fixed the case for reply of the application under section 12 of Protection of Women from Domestic Violence Act. Being aggrieved by the same petitioners have preferred this petition. 4. It is submitted that the private complaint as well as the order dated 9.11.2012 taking cognizance and other subsequent proceedings are contrary to the law and record because prima facie no case is made out under the provisions of the Protection of Women from Domestic Violence Act. It is clear that no allegation of domestic violence has been made against the petitioners, which has also been found by the learned trial Court below while passing the order on 10.12.2012. In view of the findings recorded by the learned trial Court, the private complaint as well as the order dated 9.11.2012 it is clear that till 9.11.2012 no report prepared by the Protection Officer was received. It is, therefore, apparent that the impugned order was passed ignoring the provisions of section 12 of the Protection of Women from Domestic Violence Act. It is further submitted that the house in question does not belong to the husband of the respondent/complainant but belongs to her father-in-law exclusively, therefore, respondent/complainant cannot claim any right to live therein. The proceedings has been initiated by the respondent/complainant after loosing from the civil Court that too after suppressing the proceedings concluded and pending in the Courts. Petitioners have never committed any violence with the respondent/complainant. No prima facie case is made out against the petitioners, therefore, it is prayed that private complaint as well as order dated 9.11.2012 and the subsequent provisions be quashed. 5. Learned counsel for the respondent/complainant has supported the impugned order passed by the learned Court below and submitted that respondent/complainant is the widow of Late Parmanand. Late Parasram was the father-in-law of the respondent/complainant, who died on 13.1.2010. Parasram was having ancestral property situated at Mor Bazar in the form of residential house. After death of Parasram the property was vested in his sons Parmanand and Hariram. It is further stated that Hariram tried to grab the property and filed a civil suit against the tenant, who was paying rent to the respondent/complainant, then respondent/complainant filed a civil suit and prayed for temporary injunction. After death of Parasram the property was vested in his sons Parmanand and Hariram. It is further stated that Hariram tried to grab the property and filed a civil suit against the tenant, who was paying rent to the respondent/complainant, then respondent/complainant filed a civil suit and prayed for temporary injunction. In reply it was not pleaded that Late Parasram has executed any will on 16.10.1986 in favour of Hariram and his wife Rekha. It is further submitted that the petitioners have forged a will said to be executed by Late Parasram in their favour on 16.10.1986 by which the house situated at Mor Bazar was given to Hariram. 6. In order to appreciate the submissions of the learned counsel for the parties, I have perused the record. 7. The respondent/complainant has filed an application under section 12 read with sections 18, 19, 20, 21 and 22 of Protection of Women from Domestic Violence Act 2005. Alongwith the application under section 12 of the Domestic Violence Act an application under section 23(2) has also been filed. 8. Annexure P/6 is the order passed by the learned CJM, vide order dated 7.11.2011, learned CJM fixed the case for hearing and arguments on point of registration of the case and on 9.11.2012 the learned CJM has found that there are prima facie grounds to take cognizance under the Protection of Women from Domestic Violence Act and by taking cognizance has directed for issuance of notice through Protection Officer to the petitioners. 9. It appears that the learned Magistrate has not followed the mandatory procedure provided under section 12, which reads as under:- 12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub- section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. (5) The Magistrate shall endeavour to dispose of every application made under subsection (1) within a period of sixty days from the date of its first hearing.” 10. On bare perusal of the aforesaid provision, it becomes clear that before passing an order on application, the Magistrate has to take into consideration the domestic incident report received from Protection Officer or Service Provider. The order reveals that learned Magistrate before issuing notice to the petitioners did not even consider the contents of the application. section 12 of the Act clearly provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The object is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any noticet to petitioners as to who were the petitioners who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of stridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. section 27 of the Act provides which judicial Magistrate Court can have jurisdiction to entertain an application under section 12 of the Act. 11. The procedure adopted by the learned Magistrate issuing notice to the petitioners without considering the domestic incident report and without going through the contents of the application and without specifying as to why each of the petitioners named by the complainant was to be summoned, is contrary to the Act. 12. From the perusal of the order sheet of the learned Court below it transpires that the petitioners appeared before the Court below and filed the reply of application under section 12. Learned Court below passed the order on the application under section 23 of the Domestic Violence Act. 12. From the perusal of the order sheet of the learned Court below it transpires that the petitioners appeared before the Court below and filed the reply of application under section 12. Learned Court below passed the order on the application under section 23 of the Domestic Violence Act. It is held that there is no allegation regarding the commission of domestic violence by the petitioners only relief under sections 18, 19, 20, 21 and 22 of the Domestic Violence Act has been prayed, therefore, the respondent/complainant has not been found entitled to any relief as claimed by her, ultimately the application under section 23 has been dismissed, however, the petitioners have been directed to file a reply of application under section 12 of the Domestic Violence Act. When the learned Court below prima facie did not found that the domestic violence has been committed then there is no justification for directing the petitioners to file reply under section 23 of Domestic Violence Act. 13. Taking into consideration that the learned trial Court has not prima facie found that any domestic violence has been committed by the petitioners. The continuation of the proceeding would amount to abuses of process of law. Petition deserves to be allowed. Consequently, petition is allowed.