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2017 DIGILAW 1036 (JK)

Aijaz Rasool Bhat v. Asmat (MST. )

2017-11-27

ALI MOHAMMAD MAGREY

body2017
JUDGMENT : Ali Mohammad Magrey, J. Instant petition has been filed under Section 561-A Cr.PC. seeking quashment of order dated 18.03.2017 passed by learned Judicial Magistrate (City Munsiff), Srinagar, in case File No. 179/M captioned Mst. Asmat vs. Aijaz Rasool Bhat on the grounds detailed out in the petition. Brief facts: 2. Respondent, Mst. Asmat claiming to be a legally wedded wife of petitioner, filed a complaint before learned Judicial Magistrate, Srinagar, under J&K Protection for Women from Domestic Violence Act, 2010 (for short “Domestic Violence Act”), which as stated came to be transferred to learned Judicial Magistrate (City Munsiff) Srinagar. In the complaint, it is alleged that petitioner subjected the respondent to violence and during her stay in the marital house, she was harassed and physically tortured by the petitioner and his family members and in the month of November, 2015, when respondent was in family way was given Rukhsati as a prevailing custom in the valley and thereafter petitioner has neglected her and does not allow her to reside in the house of the petitioner along with children. The instance of domestic violence alleged to have been committed are detailed out in the complaint. Besides filing of the complaint under the Domestic Violence Act, the respondent, as stated has filed a petition under Section 488 Cr. P.C., 1973 claiming maintenance for having been neglected, but despite that learned Judicial Magistrate has passed the order. 3. Petitioner on notice having raised preliminary objections regarding maintainability of the compliant with reference of the contents of the complaint being factually incorrect and legally unsustainable, as also on the ground that the respondent stands divorced. 4. Petitioner is aggrieved of the order passed by the learned Judicial Magistrate (City Munsiff), Srinagar, on 18.03.2017 and challenges the same on the grounds detailed out as under:- (i) That the trial Court has rushed to the proceedings and in one breath says that the respondent No.1 and petitioner have put their allegations and counter allegations, which are triable issues and are to be adjudicated upon during the course of trial. The observations of the trial Court is not based on facts but have been made only to justify the impugned order, the same is liable to be set aside and quashed. The observations of the trial Court is not based on facts but have been made only to justify the impugned order, the same is liable to be set aside and quashed. (ii) That the trial Court has miserably failed to appreciate that the respondent is a divorcee and is not living with the petitioner since November, 2017, thus the impugned order having been passed with non-application of mind deserves to be set aside and quashed. (iii) That the petitioner admits that the respondent had married with the petitioner in June, 2001 and out of the wedlock three issues are born, however, when the petitioner has miserably failed to motivate the respondent to come back to the matrimonial house who instead declined and virtually avoided resumption of matrimonial tie on one pretext or the other and choose to stay with her parents and thereafter tried to make out stories and tried her best to harass the petitioner, the petitioner was constrained to divorce the respondent in terms of Divorce Deed. This vital aspect of the matter though specifically pleaded in the objections filed by the petitioner herein has not been considered by the trial Court while passing the impugned order, the same therefore is non est in the eyes of law and deserves to be quashed. (iv) That it is now well settled that divorced women cannot file plaint under Domestic Violence Act. There is catena of Judgments pronounced by the Hon'ble High Courts in this behalf. A reference in this behalf for kind consideration is that Punjab and Haryana High Court in Criminal Misc. No. M-36736 of 2014 captioned Amit Agarwal and others vs. Sanjay Aggarwal and others held, “that the provisions under the Act could only be invoked during a domestic relationship, where the domestic relationship ceases, the provisions under the Act cannot be invoked”. This vital aspect of the matter has not been considered by the trial Court when a mention of divorce deed having been given and received by the respondent is seen in the impugned order, therefore, the impugned order is bad in the eyes of law and deserves to be set aside by this Hon'ble Court on this ground alone. 5. Main ground of challenge has reference to the application of Section 2(a) of the 2010 Act, and 2(f). 5. Main ground of challenge has reference to the application of Section 2(a) of the 2010 Act, and 2(f). Both the provisions being relevant are extracted as under:- “Section 2(a) of the 2010 Act, defines the aggrieved person is as under: “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.” Section 2(f) states: “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 consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” 6. Since the petitioner had pleaded that he had divorced the respondent, as such, there was no domestic relationship between him and respondent, therefore, the complaint under Domestic Violence Act was not maintainable. It was also pleaded that so far as the maintenance was concerned, petition under Section 488 Cr.P.C., 1973 had been filed and maintenance was granted by the Magistrate against which the proceedings are pending. 7. The issue raised in this petition has reference to the question:-whether the wife can file a complaint under the Domestic Violence Act when the relationship has come to an end with reference to having divorce the wife. 8. The submission on behalf of petitioner was that the inherent powers under Section 561-A Cr.PC can be exercised and it is to be seen that the allegations are groundless can for the basis for proceeding in the matter. The submission of the other side was that an application had been filed before the trial Court and the trial Court was yet to examine the issue and the petition under Section 561-A Cr.PC would not be maintainable. 9. Learned counsel for the respondent has questioned the maintainability of petition with reference to non-availability of the grounds for such claim. In this behalf he has referred to and relied upon the Judgment in case titled : 2017 (3) JKJ 513 [HC] Dr. Karam Jit Singh vs. Dr. Ravinder Kour reported in 2017 (1) SLJ 258. 10. Facts of the case in the Judgment referred to and relied upon are dissimilar to the instant case, therefore, the Judgment is distinguishable, as such, is not applicable to the present case. 11. Karam Jit Singh vs. Dr. Ravinder Kour reported in 2017 (1) SLJ 258. 10. Facts of the case in the Judgment referred to and relied upon are dissimilar to the instant case, therefore, the Judgment is distinguishable, as such, is not applicable to the present case. 11. The Apex Court, in the case of Kailash Chandra Agarwal and Anr. vs. State of U.P. and Ors., reported in 2014 AIR (SCW) 6152 noticed that the complaint did not attribute specific role to the relatives of the husband and it was quashed, by referring to the judgment in the case of Kans Raj vs. State of Punjab and Ors. ( (2000) 5 SCC 207 ), which reads thus: “5..A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths 14 which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have 6 of 13 been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.” 12. This question has been examined in a number cases. The Apex Court in Ashish Dixit and others vs. State of U.P. and Anr. had quashed the proceedings under the Domestic Violence Act in a petition filed under Section 482 Cr. P.C., 1973 Delhi High Court in Jasvir Kaur and another vs. Manpreet Kaur in CRM No. M-29792 of 2011 allowed the petition filed under Section 482 Cr. P.C., 1973 seeking quashing of the complaint filed under the Domestic Violence Act. The Karnataka High Court in Smt. Nagarathnamma vs. M.S. Vanithashree in Cr.PC. No. 5246/2010 had allowed the petition filed under Section 482 Cr. P.C., 1973 Thus a complaint can be quashed in the petition filed under Section 482 Cr. P.C., 1973 if it is found that the complaint was an abuse of the process of the Court or has filed only with a view to harass the other side. 13. In the complaint filed by the respondent an objection was taken that no authority had been given to the complainant to lodge a complaint. It is necessary to notice Section 12 of the Domestic Violence Act. 13. In the complaint filed by the respondent an objection was taken that no authority had been given to the complainant to lodge a complaint. It is necessary to notice Section 12 of the Domestic Violence Act. It reads as under:- Section 12 in The Protection of Women From Domestic Violence Act, 2010 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... 14. A perusal of the above would show that a complaint can be filed by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person and there is no bar and the other person on behalf oi the aggrieved person can file a complaint. 15. The next question is does the 'aggrieved person' even mean a 'divorced woman'. Answer to the question lies in the definition provided in Section 2 (a), it defines the aggrieved person 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.” 16. The use of the word is any woman 'who is' or 'has been'. Both the expressions are in the present tense. The legislature has not used the word 'who was' or 'had been'. This means the domestic relationship has to be in the present and not in the past. The definition requires that on the date Act come into force, the woman should be in domestic relationship. 17. The definition of domestic relationship given under Section 2 (f) further supports the view that the requirement under D.V. Act is that the relationship which is the basis of invoking the jurisdiction under D.V. Act has to be in the present. The definition requires that on the date Act come into force, the woman should be in domestic relationship. 17. The definition of domestic relationship given under Section 2 (f) further supports the view that the requirement under D.V. Act is that the relationship which is the basis of invoking the jurisdiction under D.V. Act has to be in the present. Section 2 (f) of the D.V. Act reads as under: (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 8 of 13 they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. 18. The definition clearly speaks of a domestic relationship between two persons who live or have at any point of time lived together in a shared household and are related by marriage or through a relationship in the nature of marriage. This definition also speaks about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is 'are related' by marriage. The expression by the legislature is not 'were related'. From the bare reading of these two provisions it is apparent that the intention of the legislature is to protect those women who are living in a domestic relationship. 19. In the present case, a divorce deed had come into existence, therefore, the learned Magistrate without looking that aspect of the matter, has passed the order, when the relationship of husband and wife was not in existence. 20. In the above background, this petition is allowed and order passed on 18.03.2017 by the learned Judicial Magistrate (City Munsiff), Srinagar, is setaside along with complaint. 21. Disposed of along with connected MP(s).