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2017 DIGILAW 1873 (GUJ)

RAJUBA BAHADURSINH JADEJA v. STATE OF GUJARAT

2017-12-05

B.N.KARIA

body2017
JUDGMENT : B.N. KARIA, J. 1. This Application has been filed by the petitioners praying to quash and set aside the Order dated 16.08.2010 passed below Application Ex. 9 in Criminal Misc. Application No. 396/2010 by the learned 5th Additional Senior Civil Judge and JMFC, Bhavnagar and to drop the proceedings against the petitioners initiated by the respondent no.2 under the provisions of Protection of Women from Domestic Violence Act, 2005 (for brevity "the PWD Act"). 2. Brief facts of the case are that the respondent no.2 married with Anilsinh, son of the petitioner No.1 in the year 1993 and thereafter, it was not possible for them to continue their relationship as husband and wife and therefore and thereby, a compromise was arrived at, by and between them, according to which, the entire amount of permanent alimony was paid to the respondent no.2 herein, which was to the tune of Rs. 3,51,000/-. That, an Application under section 13(B)(i) of the Hindu Marriage Act was submitted before the learned Civil Judge(S.D.) Bhavnagar, being HMP No. 47/2001, seeking divorce with mutual consent. The statutory intervening period of 6-18 months also expired and nobody opposed or retrieved or revoked the consent. Thus, in pursuance to the above petition for divorce by mutual consent, the decree ought to have been passed according to the petitioners in the routine course by the competent court. Thus, under the said bonafide belief, even Anilsinh did not pursue the matter. Thus, all the while, it was understood by all concerned that everything got over and decree must have been passed. However, subsequently, it come to the knowledge of the parties that for want of prosecution, the said HMP was dismissed for default vide Order dated 27.06.2007. Thereafter, respondent no.2 filed an Application under the provisions of section 97 of the Code of Criminal Procedure, 1973 inter alia seeking custody of Anilsinh ie., husband of the respondent no.2. The said application came to be allowed. Against which, a revision application came to be filed before the Sessions Court at Bhavnagar, which too came to be allowed. The respondent no.2 never challenged the said order passed in revision application and thus, the said order against the respondent no.2 attained finality. Thereafter, the respondent no.2 preferred an application, being Criminal Misc. Against which, a revision application came to be filed before the Sessions Court at Bhavnagar, which too came to be allowed. The respondent no.2 never challenged the said order passed in revision application and thus, the said order against the respondent no.2 attained finality. Thereafter, the respondent no.2 preferred an application, being Criminal Misc. Application No. 396 of 2010 under Sections 12, 18(b), 19, 20, 22 and 23 of the PWD Act, and therefore, the petitioners filed Application vide Ex. 9 in the said proceedings praying to drop the proceedings against them, which eventually rejected by the learned Additional Senior Civil Judge and JMFC by impugned order dated 16.08.2010. Being aggrieved by the said order, the petitioners have filed the present petition. 3. During pendency of this petition, on 08.11.2010 the petitioner No.1 passed away, and therefore, her name was deleted. 4. Heard learned advocate Mr. Parth S. Tolia for the petitioners No.2 and 3; learned advocate Mr. Mehul S. Shah for the respondent no.2 and learned APP Ms. Hansa Punani for the respondent no.1- State. 5. Learned advocate Mr. Parth S. Tolia for the petitioners No.2 and 3 submitted that in the year 2001, entire amount of permanent alimony was paid to the respondent no.2 which includes everything. It is the respondent no.2, who signed the petition for mutual consent clearly stating that she had received permanent alimony of Rs. 3,51,000/- and she will not claim anything else even from the husband towards maintenance or alimony in future, as well as acknowledged receipt of all the items received by her in the marriage from her parental home, which were returned back to her. That, both the husband and wife agreed to separate mutually and no claim against each other remained outstanding then. An agreement between the parties was arrived at way back in the year 2001 and as a matter of fact, after expiry of statutory waiting period of 6-18 months, a decree was deemed to have been passed. In any case, both of them cease to be husband and wife. That however, the respondent no.2 filed one frivolous complaint, being CR No. I-19/2001 for the offence punishable under Sections 498(A), 406, 420, 323, 504, 506(2) and 114 IPC against the present petitioners before Mahila Police Station, Bhavnagar on 02.04.2001, in which subsequently a settlement purshis came to be filed. That however, the respondent no.2 filed one frivolous complaint, being CR No. I-19/2001 for the offence punishable under Sections 498(A), 406, 420, 323, 504, 506(2) and 114 IPC against the present petitioners before Mahila Police Station, Bhavnagar on 02.04.2001, in which subsequently a settlement purshis came to be filed. Thus, when the respondent no.2 herself stated on affidavit before the Court to the effect that she had received entire amount of permanent alimony and she does not have any claim, even against the husband, she is estopped from claiming anything contrary to the same now. Counsel contended that dismissal of petition for default does not alter the situation in any manner. The Court concerned is deemed to have pass decree of divorce after expiration of the statutory intervening period, when consent is not withdrawn during that period. Further, even if the said matter is dismissed for default, the fact remains that the respondent no.2 has received the entire amount of permanent alimony as full and final settlement from the husband and she is estopped from claiming anything else from her in-laws in future. It is further submitted by learned advocate Mr. Parth S. Tolia for the petitioners that the Act came into effect on 26th October 2006, whereas, the cause of action was over in the year 2001, when the respondent no.2 and husband Anilsinh ceases to be husband and wife, while their submitting the petition for divorce by mutual consent. That, the allegation/incident had taken place on or before 2001 and not thereafter. Hence, aggrieved person can not seek relief under the provisions of the PWD Act. Learned advocate for the petitioners has invited attention of this Court towards definition of `aggrieved person' under Section 2(a) of the Act and submitted that provisions of the Act cannot be applicable retrospectively, though the same can at the most be applied prospectively. Relying upon Section 2(q) of the Act, it is further submitted that only an adult male person in a domestic relationship with the aggrieved person can be the respondent and against such person only, relief can be sought. That, the petition is not maintainable against the petitioners no. 1 and 3, and therefore, it was requested to quash and set aside the order passed by the trial Court below Ex. 9 in Criminal Misc. Application No. 396 of 2010 dated 16th August 2010. 6. Per contra, learned advocate Mr. That, the petition is not maintainable against the petitioners no. 1 and 3, and therefore, it was requested to quash and set aside the order passed by the trial Court below Ex. 9 in Criminal Misc. Application No. 396 of 2010 dated 16th August 2010. 6. Per contra, learned advocate Mr. Mehul S. Shah appearing on behalf of the respondent no.2 has strongly objected the submissions made on behalf of the petitioners and submitted that the only question which requires to be considered by this Court would be in respect of applicability of the Act in the facts-situation of this case. That, the learned trial Judge has committed no error in giving finding, by relying upon report of the Protection Officer, that violation was committed by the petitioners, and therefore, whatever the allegations are made by the respondent no.2 in her complaint are required to be considered in the trial only. It would be premature to say at this stage that the complaint is not maintainable. No other question is allowed to be decided in this petition. The allegations made by the respondent no.2 in her complaint requires trial and this is premature stage to end the proceedings, as requested by the petitioners. That, the order passed by the learned trial Judge requires no interference, as it being legal and valid and hence, it was requested by him to dismiss the petition. 7. Learned APP Ms. Hansa Punani, learned Additional Public Prosecutor for the respondent No.1 has requested to pass necessary order considering the facts and principles of law laid down by the Apex Court on the issue, as the dispute is between two private parties. 8. Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent no.1-State, the only question which remains to be considered by this Court is whether a petition under the provisions of the Act would be maintainable by a woman, who is no longer residing with her husband, or who is allegedly subjected to an act of domestic violence prior to coming into force of the Act ie., on 26th October 2006. It is true that marriage of the respondent no.2 was solemnized with Anilsinh in the year 1993 and as per averments made, she was staying separately with her husband since last 9 to 10 years. It is true that marriage of the respondent no.2 was solemnized with Anilsinh in the year 1993 and as per averments made, she was staying separately with her husband since last 9 to 10 years. A petition for divorce under the Hindu Marriage Act was filed by mutual consent, which was dismissed in absence of either side. It is true that whatever allegations are made by the respondent no.2 in her complaint regarding domestic violence caused to her are prior to existence of the Act ie., 26th October 2006. A complaint, however, was filed by the respondent no.2 against the present petitioners [including petitioner no.1(deleted)] making certain allegations. The Protection Officer has submitted a report disclosing that threats were given by the present petitioners to the respondent no.2. One of the questions, which remain to be considered by this Court is whether this petition would be maintainable against the petitioner no.3, who happens to be sister-in-law(Jethani) of the respondent no.2 under Section 2 (q) of the Act. Apt it would be, to reproduce the definition of "respondent" given in the act itself, which reads that: (q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner" This provision clearly shows that an aggrieved wife or female, living in a relationship in the nature of a marriage, may also file a complaint against a relative of the husband, or the male partner. The word "relative" would certainly include a woman also, and therefore, submissions made by learned advocate for the petitioner that petition against the petitioner No.3 ie., sister-in-law (Jethani) of the respondent no.2, would not be tenable cannot be sustained. A similar question was decided by the High Court of Delhi, wherein, allegations were made by the wife against the relatives and husband in her complaint, before the Act came into existence. A similar question was decided by the High Court of Delhi, wherein, allegations were made by the wife against the relatives and husband in her complaint, before the Act came into existence. The Court was of the view that considering the constitutional safeguards under Article 21 of the Constitution, vis-a-vis provisions of Sections 31 and 33 of the PWD Act 2005, and after examining the statement of objects and reasons for enactment of the PWD Act, 2005 with a view to protecting the rights of woman under Articles 14, 15 and 21 of the Constitution, that the Parliament enacted the PWD Act 2005, in order to provide some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of domestic violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. A petition under the provisions of PWD Act, 2005 is maintainable, even if the acts of domestic violence had been committed prior to coming into force of the said Act, notwithstanding the fact that in the past, she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. When this order was challenged before the Apex Court, the Apex Court in a case of V.B. Bhanot v. Savita Bhanot, 2012(3) SCC 183 confirmed the judgment and order passed by Delhi High Court agreeing with the view expressed by the High Court that in looking into a complaint under section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PDW Act would be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. It is further observed that even if a wife who has shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005. Therefore, allegations made by the respondent no.2 in her complaint regarding domestic violence perpetuated upon her prior to 2005 would certainly call for judicial review, as discussed above. 9. Therefore, allegations made by the respondent no.2 in her complaint regarding domestic violence perpetuated upon her prior to 2005 would certainly call for judicial review, as discussed above. 9. As the petition for divorce preferred below has been dismissed by the learned Judge, in absence of either side, the parties continue to be husband and wife, as their marriage still subsists. This view gets endorsed by a decision of the High Court of Rajasthan in S.B. Criminal Revision Petition No. 449 of 2010 rendered in the case of Gajendra Singh v. Smt. Minakshi Yadav & Anr, reported in 2009 (1) Criminal Law Report 839 (Raj.). 10. Considering the aforesaid view taken by the Apex Court and the facts of this case, this Court is of the view that the complaint filed by the respondent no.2 against the present petitioner No.2 and 3 is maintainable. The impugned order cannot be said to be illegal or perverse and hence, this petition deserves to be dismissed. 11. In the result, this Special Criminal Application fails and the same stands dismissed. Rule discharged. Ad interim relief stands vacated. No costs.