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2019 DIGILAW 1111 (KAR)

Archita Pal v. Priyanka Chandra Naskar

2019-06-04

JOHN MICHAEL CUNHA

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JUDGMENT : John Michael Cunha, J. Petitioner is aggrieved by the order passed by the learned LVII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, in Crl.R.P. No. 25094/2015 dated 07.09.2015 whereby the learned Sessions Judge has allowed the application filed by the respondents herein under Section 2(q) of Protection of Women from Domestic Violence Act. 2005 (hereinafter referred to as 'the Act'). 2. The outlined facts leading to this petition are as follows: Petitioner married one Sri. Jayanta Chandra (respondent No. 1 in Crl. Misc. Petition No. 70/2015) on 06.12.2013. She filed a petition under Section 12 read with Section 18, 19, 20 and 22 of the Act against her husband, sister-in-law, mother-in-law and father-in-law who are respondent Nos. 1 to 3 in this petition (respondent Nos. 2, 3 and 4 in Crl.Misc. Petition No. 70/2015). On service of summons, the respondents filed an application under Section 2(q) of the Act seeking deletion of their names. The learned Magistrate dismissed the said application. Against the said order respondents preferred revision in Crl.R.P. No. 25094/2015 and by the impugned order dated 07.09.2015 the learned Sessions Judge allowed the revision petition and consequently allowed the application filed by the respondents under Section 2(q) of the Act. 3. Learned counsel for the petitioner submits that the petition contains serious allegations against the respondents which attract the provisions of Section 12 of the Act. Under the said circumstance the learned Sessions Judge has erred in allowing the application filed by the respondents for their discharge. The averments made in the complaint clearly indicate that the petitioner herein was subjected to domestic violence after her marriage. The respondents were in domestic relationship with the petitioner as defined in Section 2(f) of the Act. Under the said circumstance, without affording an opportunity to the petitioner to adduce necessary evidence in support of the accusations made against the respondents, learned Sessions Judge has committed an error in directing deletion of the names of the respondents and hence he seeks to quash the impugned order passed by the learned Sessions Court. In support of his submission learned counsel has placed reliance on the following decisions. 1. Sandhya Manoj Wankhade Vs. Manjoj Wankhade, (2012) 2 ALT(Cri) 391 2. Kalpana Vs. Hanama @ Seema and others, Manu/MH/1590/2013 3. Neeraj Goswami Vs. State of U.P., (2013) 2 AllCriR 1345 4. In support of his submission learned counsel has placed reliance on the following decisions. 1. Sandhya Manoj Wankhade Vs. Manjoj Wankhade, (2012) 2 ALT(Cri) 391 2. Kalpana Vs. Hanama @ Seema and others, Manu/MH/1590/2013 3. Neeraj Goswami Vs. State of U.P., (2013) 2 AllCriR 1345 4. Refuting the above submissions learned counsel for the respondents submitted that none of the respondents are in domestic relationship with the petitioner. The allegations made in the complaint do not amount to "domestic violence" within the provisions of Act. The incident is alleged to have taken place when the petitioner visited the house of respondent No. 1. Respondent No. 1 was a married lady. Her relationship cannot be construed as domestic relationship as defined under Section 2(f) of the Act. Under the said circumstance the Sessions Judge was justified in allowing the application and deleting their names from the array of parties. In support of this submission the learned counsel has placed reliance on the following decisions: 1. Sonia Chauhan Raghove Vs. Sanjive Raghove and others, Crl. M.C. 452/2012 disposed on 07.02.2012 2. S.R. Batra and another Vs. Smt. Taruna Batra, Appeal (Civil) 5837/2006, disposed on 15.12.2006 5. Further he submitted that in respect of the very same occurrence, petitioner had filed a complaint under Section 498-A read with Section 34 IPC against her husband as well as respondents herein and after investigation a charge sheet was filed against the respondents and her husband and after trial, the respondents as well as the husband of the petitioner are acquitted by the Judicial Magistrate, 1st Class at Baruipur, South 24 Parganas, in GR Case No. 5511/2014 in T.R. case No. 1171/2016. Thus he seeks to dismiss the petition. 6. Considered the submissions of the learned counsel for the parties and perused the records. 7. The basic facts are not in dispute. A reading the complaint filed by the petitioner under Section 12 of the Act indicates that after marriage petitioner was residing with her husband at Bengaluru. All the incidents of alleged cruelty and harassment are alleged to have taken place in the matrimonial house at Bengaluru where the petitioner and her husband were residing together. There is nothing on record to show that the respondents herein lived with the petitioner either in the matrimonial house or in a shared household at any time. All the incidents of alleged cruelty and harassment are alleged to have taken place in the matrimonial house at Bengaluru where the petitioner and her husband were residing together. There is nothing on record to show that the respondents herein lived with the petitioner either in the matrimonial house or in a shared household at any time. The only allegation made against the respondents in the petition find a place at paragraph 18 of the criminal miscellaneous petition No. 70/2015 which is extracted herein below: "18. During October, 2014, Complainant went to Kolkata and visited her in-laws house first to make them happy. On 02.10.2014 during Durba Ashtami after Complainant served lunch to Respondent No. 1, 3 and 4, Respondent No. 2 arrived at the residence but refused to meet the Complainant. Respondent No. 2 utterly ignored the presence of Complainant. Thereafter Respondent No. 1 came after half an hour. During this time, Complainant requested Respondent No.1 to resolve the issue between Respondent No. 2 and the Complainant. On hearing such request, Respondent No. 1 immediately got angry and started shouting and verbally abusing Complainant passing egoistic remarks like "whatever Respondent No. 1 thinks is correct and does is correct and Complainant has no right to question him". He started breaking things, chairs, hitting bottles against his head etc. Respondent No. 2, 3 and 4 were present. All of them started verbally abusing Complainant. Respondent No. 4 verbally abused Complainant and hurled profusely insulting words against her mother and her family background stating Complainant is from lower economic background, not educated etc. Respondent No. 4 even threatened Complainant that he can finish off Complainant's family very easily. Respondent No. 2 came and accused the Complainant that she should not be allowed to stay in the house, she should be thrown out of the house. Respondent No. 2 and 3 also cast aspersions including the fact that Complainant is jealous about Respondent No. 2. When the Complainant clarified that this understanding is not true, Respondent No. 2 aggressively came forward towards Complainant. Respondent No.1 encouraging such aggressive acts held Complainant's hands and mouth, so that Complainants could not run and scream. Thereafter Respondent No. 2 slapped the Complainant on her face in the presence of Respondent No. 3 and 4. Complainant was shattered and shocked with disbelief that such an incident could happen without any reason. Respondent No.1 encouraging such aggressive acts held Complainant's hands and mouth, so that Complainants could not run and scream. Thereafter Respondent No. 2 slapped the Complainant on her face in the presence of Respondent No. 3 and 4. Complainant was shattered and shocked with disbelief that such an incident could happen without any reason. The Complainant was further agonized about the same since Respondent No. 1 could not understand what Complainant was going through and he took the side of Respondent 2, 3 and 4. After suffering this extreme degradation, Complainant requested Respondent No. 1 to take her to her mother's residence in Kolkata. He refused the same. Respondents collectively and wrongfully confined Complainant and locked her inside a room. Complainant finding no other alternative, helpless for sympathy and being forced into confinement attempted to slit her hand veins by a blade. Respondents observing this allowed the Complainant to leave for her mother's house the next day. The Respondent No. 1 assured to resolve the matter, but utterly failed to respond till 05.10.2014 morning. Thus Complainant was forced to file a police complaint on 05.10.2014 afternoon. After obtaining the FIR number, the Complainant was informed that she must physically be present and appear before the court. Since Complainant was working in Bengaluru and had not received any financial help from Respondent No. 1, in a state of desperation to resume her job responsibilities she was forced to come back to Bangalore. Anticipating further physical violence & threat against Complainant, Complainant's mother was compelled to accompany Complainant back to Bangalore. Respondent No. 1 came to Police Station along with his lawyer. They collectively took a stance that if Complainant is desirous to file a police case the same may be pursued and that the Respondent No. 1 was not inclined to resolve the issue. A copy of the FIR along with the complaint is produced at Annexure K and K1." 8. From the above it is clear that alleged incident has taken place when the petitioner visited the house of respondent No.1 namely, her sister-in-law who was a married lady. By no stretch of imagination respondent No. 1 can be said to be in domestic relationship with the petitioner. From the above it is clear that alleged incident has taken place when the petitioner visited the house of respondent No.1 namely, her sister-in-law who was a married lady. By no stretch of imagination respondent No. 1 can be said to be in domestic relationship with the petitioner. The expression 'domestic relationship' is defined in Section 2(f) of the Act and it reads as under: 2(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 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; 9. The facts narrated in the complaint make it evident that after the marriage all throughout the petitioner lived with her husband and all the incidents of alleged domestic violence had taken place in her matrimonial house. In the absence of any material to show that any one of the respondents were in domestic relationship with the petitioner or they shared a household with the petitioner, in my view, provisions of the Act are not applicable insofar as the respondents are concerned. That apart, the alleged incident has taken place when the petitioner visited the house of her in-laws in Kolkatta. The same does not amount to any act of violence entitling the petitioner for the relief under the provisions of the Act. The said incident may have given rise to an offence under the provisions of IPC and as submitted by the learned counsel for the respondents, petitioner has already taken recourse to the remedy under general law by setting in motion the criminal law against the respondents in respect of the same occurrence and after trial respondents as well as the husband of the petitioner are acquitted by the trial Court. That being the case it was highly improper on the part of the petitioner to implicate the respondents herein in the instant complaint in respect of the incident for which the respondents are already tried and acquitted by the competent Court. Nonetheless the allegations made in the complaint, in my view, do not make out any of the grounds under the provisions of the Act. The above facts clearly indicate out of spite and malice, petitioner has implicated the respondents without there being any basis to sustain the accusations against them. Nonetheless the allegations made in the complaint, in my view, do not make out any of the grounds under the provisions of the Act. The above facts clearly indicate out of spite and malice, petitioner has implicated the respondents without there being any basis to sustain the accusations against them. The facts discussed above clearly disclose that the petitioner has abused the process of Court. Under the said circumstance the Sessions Judge was justified in allowing the application filed by the respondents and directing deletion of their names from the array of parties. 10. The decisions relied on by the learned counsel for the petitioner do not apply to the facts of the case. In Sau. Kalpana Vs. Hanma @ Seema and others, (Criminal Writ Petition No. 63/2013 decided on 27.09.2013) the Bombay High Court was dealing with the case of a woman who was in domestic relationship with the accused person and in that context it was held that the allegations made against the respondents therein were required to be decided in trial. Whereas in the instant case the undisputed facts discloses that none of the respondents were in domestic relationship with the petitioner and therefore the provisions of the Act being not applicable to the respondents, the question of adducing evidence on the purported allegations does not arise at all. The other decisions relied on by the learned counsel for the petitioner are also fact specific and are not applicable to the case in hand. Having regard to the facts discussed above, there is absolutely no grounds to prosecute the respondents on the basis of the allegations made in the complaint. The facts depicted in the complaint clearly demonstrate that none of the respondents were in domestic relationship with the petitioner. Hence, the prosecution of the respondents under the provisions of the Act being wholly illegal and abuse of process of Court cannot be allowed to be continued. As a result, in exercise of power under Section 482 Cr.P.C. proceedings against the respondents are quashed. The order passed by the learned LVII Additional City Civil and Sessions Judge, Mayo Hall, Bangalore, in Crl.R.P. No. 25094/2015 dated 07.09.2015 is confirmed. Petition dismissed.