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Gujarat High Court · body

2019 DIGILAW 603 (GUJ)

Ajitkumar Kantilal Yagnik v. State of Gujarat

2019-06-21

A.P.THAKER

body2019
JUDGMENT : 1. RULE. Ms.Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of rule for respondent No.1 and Ms.Avani Patel, learned advocate for respondent No.2. 2. Considering the fact that the petitioner No.1 and respondent No.2 are senior citizens and at the request of both the sides, the matter is heard finally. 3. By way of present application under Articles 226 and 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code, the petitioners have sought for the reliefs for quashing and setting aside the complaint being Criminal Case No.134 of 2016 under the provisions of the Protection of Women from Domestic Violence Act 2005 (hereinafter be referred to as “the Domestic Violence Act”) pending before the Metropolitan Magistrate, Court No.19, Ahmedabad. 4. According to the petitioners, petitioner No.1 is the husband of respondent No.1 – original complainant, petitioner No.2 is son of petitioner No.1 and respondent No.2 and petitioner No.3 is daughter-in-law of petitioner No.1. It is contended that the marriage between the petitioner No.1 and respondent No.2 was solemnized on 06.12.1976 as per the Hindu Rites and Rituals and out of the said wedlock, three children were born. It is contended that petitioner No.1 is retired professor and presently, residing at the address mentioned in the cause-title with petitioner Nos.2 and 3, whereas, respondent No.2 is residing with her daughter Sandhya. It is contended that the said house was originally purchased by petitioner No.1 which was forcefully taken by his daughter. It is contended that respondent No.2 is a doctor and having decree of Ayurveda Acharya, Shiksha Shastri, DSC and Vaidhvirasad. It is contended that she is holding a Medical Practice Registration Certificate vide No.GB(S) 1448 and she is practicing as a doctor at nearby place of Ahmedabad and capable to maintain herself. 4.1 Regarding the contents of the impugned complaint, it is contended by the petitioners that the allegations made by respondent No.2 – complainant are that the petitioners have thrown out her from the house and he told that if she wanted to reside at his house then she has to earn and give income to the petitioner but now she is unable to work and earlier she was running her clinic, at that point of time, she used to give all her income to the petitioners and all these things are being told to petitioners No.2 and 3. She has alleged that petitioner No.1 was giving mental and physical harassment to her and since last 30 years, to save herself and her children’s life, she settled the matter and, thereafter, all were behaving good but before four years of filing of the complaint, her husband assaulted her and dropped her at the house located at Village : Dabhala and there she was residing alone and, thereafter, her husband had quarrel over there and she was thrown away from that house as well and her husband was speaking bad words in very small issues and sometimes her husband used to slap her. In spite of this, she tolerated everything and did not utter a single word and her husband has insulted her in front of relatives and he told her that he would not scare of legal cases and whatever she wants to do and her husband wanted to bring new wife and thus, her husband harassed her. According to the contents of the complainant, the petitioner – husband harassed her and her daughter-in-law has taken all ornaments and they have withdrawn money lying in the bank account and she is residing in her daughter’s in-laws house. On all these grounds, the complainant has filed the complaint under the Domestic Violence Act. 4.2 It is contended by the petitioners that the husband and wife were residing peacefully with their three children and after 32 years of marriage life, respondent – wife deserted petitioners and one son and left the matrimonial house without informing anyone and, thereafter, the petitioner – husband tried for reunion and when respondent – wife realized her mistake she again started residing with the petitioners and all were residing happily in those days since 2008. It is contended that thereafter, again in 2010, respondent – wife left the matrimonial house and deserted the present petitioners and went to reside with daughter Sandhya and, thereafter, she never came back. It is contended that in the year 2013, the wife has filed one maintenance application being Criminal Misc. Application No.494 of 2013 which is pending before the Family Court No.4, for final arguments and the present application under the Domestic Violence Act is filed only to harass the petitioners. It is contended that in the year 2013, the wife has filed one maintenance application being Criminal Misc. Application No.494 of 2013 which is pending before the Family Court No.4, for final arguments and the present application under the Domestic Violence Act is filed only to harass the petitioners. According to the petitioners, it appears that respondent – wife has tried to harass the petitioners against them as she has filed the complaint after six years of separation and after 40 years of marriage life. It is contended that the petitioner No.1 and respondent – wife both are senior citizens and at this age, they have come before the Court for matrimonial dispute. 4.3 It is contended that the impugned complaint under the Domestic Violence Act is nothing but an abuse of process of law and the allegations made in the complaint are general in nature and all are speculative and imaginary in nature. It is contended that the impugned complaint under the Domestic Violence Act is filed only with an intend to grab the money and with oblique motive and it is required to be quashed and set aside. It is prayed to quash and set aside the complaint filed under Sections 12(1) and 18, 19, 20, 21 and 22 of the Domestic Violence Act before the learned Metropolitan Magistrate, Court No.19, Ahmedabad being Criminal Misc. Application No.134 of 2016. 5. The respondent No.2 – original complainant has filed the affidavit-in-reply wherein she has prayed to reject the present petition. She has admitted the fact regarding her marriage with petitioner No.1 and three children out of the said wedlock. According to her version, petitioner No.1 is retired professor and getting pension of Rs.45,000/- to Rs.50,000/- and presently, residing with petitioners No.2 and 3 and she was earlier residing with her daughter Sandhya at Maninagar, but because of none working of the lift of the said flat and looking to her age, they have shifted to Vastral. She has stated that the flat which is situated at Maninagar was originally purchased by petitioner No.1 from one Subhadraben J. Patel and after 14.05.2011, the said flat was legally purchased by Sandhya, who is daughter of the parties from petitioner No.1 herein. She has stated that this fact reveals that the flat was legally purchased by the daughter from petitioner No.1. She has stated that this fact reveals that the flat was legally purchased by the daughter from petitioner No.1. She has stated that though the Sandhya has legally purchased the said flat from petitioner No.1, without her consent or knowledge, petitioner No.1 has given power of attorney of the said flat to petitioner No.3 in the year 2013 which clearly shows that there is mala fide intention on the part of petitioners No.1 and 3. 5.1 It is stated by the respondent No.2 in the affidavit-in-reply that in the year between 1990 to 1991, she was mentally and physically harassed and beaten by petitioner No.1 and she also received head injury. She has stated that regarding such incident one complaint was lodged before the Maninagar Police Station but to save her and children’s life, she settled the dispute. She has stated that the settlement has been arrived at between petitioner No.1 and herself in the year 2010 and by that agreement she started to live with petitioner No.1, but she was again harassed and beaten by petitioner No.1 and he himself dropped her at Village : Dabhala wherein petitioners continued to harass her. She has stated that she was thrown away from that house by the petitioner No.1 and daughter-in-law and taken all gold and silver ornaments of the complainant, which are, at present, in the custody of the present petitioners. She has stated that due to unbearable harassment at Village : Dabhala from the petitioners, she had given one handwritten complaint before the Gujarat State Commission for Women in the year 2012 and second complaint was also given before the Vatva Police Station in the year 2013. She has stated that the petitioners are not only harassing her but also her daughter and her family members as well as her brother since long and for that reason, her daughter has also given the complaint to the Police Commissioner, Ahmedabad against the petitioners No.1 and 3 in the year 2016. 5.2 It is stated by the complainant in the affidavit-in-reply that she is senior citizen of India and aged about 63-64 years and also suffering from knee problem, back pain as well as also suffering from diabetes and blood pressure. On all these grounds, it is submitted that the present petition deserves to be rejected and no relief as prayed for deserves to be granted. 6. On all these grounds, it is submitted that the present petition deserves to be rejected and no relief as prayed for deserves to be granted. 6. Heard Mr.Vivek Trivedi, learned advocate for the petitioners, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 and Ms.Avani Patel, learned advocate for respondent No.2 – original complainant at length. Perused the material placed on record. 7. Mr.Vivek Trivedi, learned advocate for the petitioners has submitted the same facts which are narrated in the memo of petition and has stated that there is no dispute regarding the marriage between the petitioner No.1 and respondent No.2 and children having borne out of the said wedlock which includes one son and two daughters. He has referred to various documentary evidence and has submitted that earlier settlement has been arrived at between the parties and the wife came to reside with the present petitioners and, thereafter, at her own left the home. He has stated that the marriage life of the parties are of 40 years and the impugned complaint under the Domestic Violence Act has been filed at belated stage and that too, after four years of living matrimonial home by the wife. He has submitted that the order of maintenance has passed by the Family Court is to the tune of Rs.10,000/- which is being paid by petitioner No.1. He has submitted that the vague and general allegations are made in the complaint without any specific date. He has submitted that respondent No.2 is a doctor and she is earning and the impugned complaint is filed with an ulterior motive to extract money from the petitioner No.1 and to harass him. He has submitted that there is no domestic relationship in existence at the time of filing of the complaint as before filing the complaint, before almost 3-4 years, the wife has left the matrimonial home. He has stated that respondent – wife is not even ready and willing to live with the husband and the petitioner No.1 is the senior citizen and as the allegations made in the complaint are vague and general in nature, the present petition may be allowed by quashing and setting aside the criminal proceedings lodged under the Domestic Violence Act. He has relied on the decision of this Court in the case of Harsukhbhai Tribhuvanbhai Rajpara Vs. State of Gujarat reported in DMC 2017 (3) 270 (Gujarat). 8. He has relied on the decision of this Court in the case of Harsukhbhai Tribhuvanbhai Rajpara Vs. State of Gujarat reported in DMC 2017 (3) 270 (Gujarat). 8. Per contra, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 has submitted that the State has formal party as the dispute is relating to the matrimonial dispute between the parties. She has submitted that necessary orders may be passed. 9. Ms.Avani Patel, learned advocate for respondent No.2 – original complainant has vehemently opposed the present petition and submitted the same facts which are narrated in the affidavit-in-reply and has referred to the dates and events from page Nos.76 to 80 regarding the previous litigations between the parties and the order of maintenance passed by the Family Court in the year 2018. While referring to all these facts, she has submitted that the entire problem has been started due to the presence of the petitioner No.3 and has contended that the flat wherein respondent – wife is residing was purchased by daughter Sandhya from petitioner No.1 and though it was purchased by daughter Sandhya from petitioner No.1, petitioner No.1 has given power of attorney illegally to petitioner No.3. While referring to the documentary evidence regarding previous complaint, she has submitted that all these facts suggest that the respondent No.2 is being harassed by the present petitioners time and again and due to that she was compelled to file the complaint under the Domestic Violence Act. She has submitted that considering the material placed on record, the present petition deserves to be rejected as the petitioners can agitate and put their defence before the trial Court. She has prayed to reject the petition. 10. In response, Mr.Trivedi, learned advocate for the petitioners has submitted that the flat was originally purchased by petitioner No.1 and there was agreement to sale with daughter but petitioner No.1 has not received consideration thereof from daughter. He has submitted that petitioner No.3 has never resided with the complainant and the power of attorney was given to her daughter-in-law and no property was sold out. He has submitted that the petitioners have provided resident to respondent No.2 and now, also providing maintenance as per the order of the Family Court. He has submitted that petitioner No.3 has never resided with the complainant and the power of attorney was given to her daughter-in-law and no property was sold out. He has submitted that the petitioners have provided resident to respondent No.2 and now, also providing maintenance as per the order of the Family Court. He has submitted that from the material on record, it clearly transpires that there is no domestic violence committed by the petitioners and the impugned complaint under the Domestic Violence Act is nothing but an abuse of process of law and the same deserves to be quashed and set aside. He has prayed to allow the present petition. 11. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 12. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 13. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 14. Mr.Trivedi, learned advocate has relied upon on the decision in the case of Harsukhbhai Tribhuvanbhai Rajpara (supra) for his proposition that there is no domestic relationship between the parties as they have separated before four years prior to filing of the proceedings under the Domestic Violence Act. 15. On perusal of the said decision, it appears that in view of the definition of “domestic relationship” as defined under Section 2(f) of the Domestic Violence Act, it was held in the said decision that there was deed of separation entered into between the husband and wife and thus, considering this fact, it was observed that domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household. 16. To decide as to whether there is “domestic relationship” in the present case is concerned, it is found that the petitioner No.1 is the husband, petitioner No.2 is the son and petitioner No.3 is the daughter-in-law of the complainant. 17. Section 2(f) of the Protection of Women from Domestic Violence Act 2005 reads as under:- 2(f) “domestic relationship” means as 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. 18. In view of the aforesaid provisions, the words “domestic relationship” between two persons who live or have at any point of time lived together. Thus, even the past living with the person would fall under the definition of the domestic relationship. Now, it is very well settled by the Apex Court in the case of V. D. Bhanot Vs. 18. In view of the aforesaid provisions, the words “domestic relationship” between two persons who live or have at any point of time lived together. Thus, even the past living with the person would fall under the definition of the domestic relationship. Now, it is very well settled by the Apex Court in the case of V. D. Bhanot Vs. Savita Bhanot reported in (2012) 3 SCC 183 that application by a woman who had shared a household in past but was no longer residing with her husband or who was subjected to any act of domestic violence prior to coming into force of the Act was maintainable, the submissions on the part of the petitioners that there is no domestic relationship between the parties in this case is devoid of merits. 19. On perusal of the material placed on record, it appears that due to strained relationship between the parties, the complainant – respondent No.2 is, at present, residing with in-laws of her daughter and it also prima facie appears from the complaint under the Domestic Violence Act, 2005 that she has alleged commission of domestic violence during her stay with the petitioners herein. Whatever, factual aspects are raised by the petitioners in this case, can be decided by the concerned Magistrate under the proceedings filed under the Domestic Violence Act 2005. Therefore, considering the factual aspects of this case coupled with the aforesaid legal aspects of domestic relationship, this is not a fit case wherein inherent powers under Section 482 of the Code of Criminal Procedure could be exercised. 20. In view of the aforesaid foregoing reasons, the present petition is liable to be dismissed and accordingly, it is dismissed. Rule is discharged. Interim relief stands vacated forthwith.