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2021 DIGILAW 367 (JK)

Neeru Tandon v. Anamika Parmar

2021-07-28

RAJNESH OSWAL

body2021
JUDGMENT : 1. The petitioners have filed this petition for quashing the proceedings arising out of application bearing No. 37/criminal, titled, Anamika Parmar and Anr. vs. Rohit Tandon and others filed under sections 12, 17, 18, 19, 20 and 22 of Protection of Women from Domestic Violence Act, 2010 (for short the Act) filed by the respondents against the petitioners and order dated 13.10.2018 passed in application under sections 12, 17, 18, 19, 20 and 22 of the aforesaid Act along with order dated 13.10.2010 passed in the application for interim relief by the learned Sub Judge (Special Mobile Magistrate) Poonch. 2. It is stated in the petition that respondent Nos. 1 and 2 has filed the false and frivolous application under the Act. The respondent No. 2 is the minor daughter of petitioner No. 3 and respondent No. 1. It is also stated that the respondents have filed the application under the Act against the petitioners which is pending before the learned Sub Judge (Special Mobile Magistrate), Poonch, wherein the court vide order dated 13.10.2018 has issued the process against the petitioners. The petitioners have challenged the proceedings arising out of said application and order dated 13.10.2018 on the following grounds: (i) That the complaint has not been filed in accordance with the rules framed under the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010. (ii) That in the order dated 13.10.2018, it is revealed that no preliminary statement of respondent No. 1 has been recorded by the trial court. (iii) That, even if, the allegations levelled in the complaint are taken to be true, then also no case is made out against the petitioners. (iv) That the allegations made in the complaint are too absurd and inherently improbable on the basis of which no prudent person can lead to the conclusion that there are sufficient grounds to proceed in the complaint. (v) That the allegations levelled in the complaint under the Act are entirely different and distinct from the allegations made by respondent No. 1 in her application made under section 488 Cr.P.C. (vi) That petitioner No. 1 has been implicated by the respondents with a view to victimize her, particularly when she is already married and happily settled at her matrimonial home. 3. Mr. 3. Mr. Rohit Kohli, learned counsel for the petitioners, during the course of arguments submitted that he does not want to press the petition on behalf of petitioner No. 3 but at the same time he submitted that there are absolutely no allegations against the petitioner Nos. 1 and 2 in the application filed by the respondents under the Act and the continuance of the proceedings against the petitioner Nos. 1 & 2 shall be abuse of process of law. 4. Mr. J.P. Gandhi, learned counsel for the respondents has submitted that the allegations are leveled against all the petitioners and the learned trial court has rightly summoned all the petitioners. He further argued that the petitioners have a remedy to file appeal under section 29 of the Act before the appellate court and the present petition is not maintainable. 5. Heard learned counsel for the parties and perused the record. 6. As Mr. Rohit Kohli, learned counsel has restricted his arguments to the extent of petitioner Nos. 1& 2 only, so this Court would examine only the allegations leveled against petitioner Nos. 1 and 2, if any, by the respondents. 7. First of all this Court would like to observe that the application filed under section 12 of the Act is not a complaint and the word ‘complaint’ frequently used in connection with proceedings under section 12 of the Act, is a misnomer. 8. The preliminary objection raised by learned counsel for the respondents, that the petitioners have remedy of appeal and the present petition is not maintainable, is without any substance as the learned trial Court has not passed any order either under section 23 of the Act for grant of interim relief or final order but the trial court has simply issued the notice to the petitioners. It is only when the either the final order or interim order is passed by the Magistrate, the appeal can be filed under section 29 of the Act. 9. It is only when the either the final order or interim order is passed by the Magistrate, the appeal can be filed under section 29 of the Act. 9. A perusal of the application filed under the Act reveals that the marriage of respondent No. 1 and the petitioner No. 3 was solemnized on 11.05.2014 and their relation remained cordial for two months and thereafter petitioner No. 3 started beating the respondent No. 1 (his wife) frequently in presence of respondent No. 2 (daughter) when the respondent No. 2 attempted to intervene to abstain him from committing inhuman act with his mother. It is further stated that the respondent No. 1 was serving as teacher prior to her marriage and after marriage, the petitioners do not allow her to go to school for teaching duties. Respondent No. 1 has stated in her application that she made all efforts to please the petitioner No. 3 for allowing her to go to perform her duties. Consequently, the respondent No. 1 agreed herself with the wish of petitioners especially the petitioner No. 3 and shunned her private job as a teacher. It is further submitted that the petitioner Nos. 1 and 2 have also been abusing and taunting the respondent No. 1. 10. It is also stated in the petition that the petitioner No. 3 is duty bound to provide residential accommodation and maintenance to the respondents and the respondents have further prayed that the directions be issued to the petitioner No. 3 to provide separate residence and maintenance to the respondents. 11. The petitioner No. 1 is the sister-in-law of respondent No. 1 and petitioner No. 2 is the mother-in-law of respondent No. 1. The petitioner No. 1 is married and is residing in her matrimonial home whereas the petitioner No. 2 is an old lady of 61 years of age. A perusal of the application reveals that there are no specific allegations against the petitioners 1 and 2 with regard to the commission of any act of domestic violence as defined under the Act. The only allegation that emerges from the application filed by the respondents is that petitioners 1 and 2 have also been abusing and taunting respondent No. 1. 12. The allegations against petitioner Nos. The only allegation that emerges from the application filed by the respondents is that petitioners 1 and 2 have also been abusing and taunting respondent No. 1. 12. The allegations against petitioner Nos. 1 & 2 are vague, as there are no specific details with regard to the alleged abuses and taunts made by the petitioners 1 and 2. There is no mention of date and time with regard to the allegations. Needless to say that the Magistrate can summon the respondents in the application filed by the aggrieved person only, when there are specific allegations regarding the commission of acts of domestic violence, particularly when the application has been filed against the relatives of the husband, residing separately at the time of filing application. In the instant case, there petitioner No.1 was/is residing separately in her matrimonial home and though petitioner No. 2 was residing with the respondents but there are vague and general allegations against both of them. The continuance of proceedings against both of them shall be nothing but an abuse of process of law. 13. In case titled, Shyamlal Devda and others v. Parimala, reported in (2020) 3 SCC 14 , the summons issued by the court were challenged before the High Court and the High Court dismissed the said petition, however, the Supreme Court while setting aside the proceedings, has observed as under : “9. In the present case, the respondent has made allegations of domestic violence against fourteen appellants. Appellant 14 is the husband and Appellants 1 and 2 are the parents-in-law of the respondent. All other appellants are relatives of parents-in-law of the respondent. Appellants 3, 5, 9, 11 and 12 are the brothers of father-in-law of the respondent. Appellants 4, 6 and 10 are the wives of Appellants 3, 5 and 9 respectively. Appellants 7 and 8 are the parents of Appellant 1. Appellants 1 to 6 and 14 are residents of Chennai. Appellants 7 to 10 are the residents of the State of Rajasthan and Appellants 11 to 13 are the residents of the State of Gujarat. Admittedly, the matrimonial house of the respondent and Appellant 1 has been at Chennai. Appellants 7 and 8 are the parents of Appellant 1. Appellants 1 to 6 and 14 are residents of Chennai. Appellants 7 to 10 are the residents of the State of Rajasthan and Appellants 11 to 13 are the residents of the State of Gujarat. Admittedly, the matrimonial house of the respondent and Appellant 1 has been at Chennai. Insofar as Appellant 14 husband of the respondent and Appellants 1 and 2 parents-in-law, there are averments of alleged domestic violence alleging that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment to the respondent. There are no specific allegations as to how other relatives of Appellant 14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High Court was not right in saying that there was prima facie case against the other Appellants 3 to 13. Since there are no specific allegations against Appellants 3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed.” 14. In view of all what has been said and discussed above, this petition is allowed. The proceedings initiated in the application bearing No. 37/criminal dated 13.10.2018, titled, Anamika Parmar and Anr. vs. Rohit Tandon and others under sections 12, 17, 18, 19, 20 and 22 of the J&K Protection of Women from Domestic Violence Act, 2010 filed before the learned Sub Judge (Special Mobile Magistrate), Poonch, along with orders dated 13.10.2018 qua the petitioner Nos. 1 and 2 are hereby quashed. The proceedings against the petitioner No. 3 shall continue and the learned Sub Judge (Special Mobile Magistrate) Poonch is directed to decide the application filed by the petitioner expeditiously.