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2023 DIGILAW 1274 (BOM)

Abhishek Jain S/o Shri Subhash Jain v. Ruchi Jain W/o Shri Abhisehk Jain

2023-06-12

G.A.SANAP

body2023
JUDGMENT : G.A. SANAP, J. 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties. 3. In this criminal writ petition, challenge is to the judgment and order dated 01.11.2022 passed by the learned Additional Sessions Judge-13, Nagpur whereby the learned Additional Sessions Judge dismissed the appeal filed by the petitioners under Section 29 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as ‘the D.V. Act’) challenging the order dated 23.03.2022 passed by the Judicial Magistrate First Class, Nagpur. The respondent has filed an application under Section 12 of the D.V. Act and prayed for reliefs under Sections 18, 19, 20, 22 and 23 of the D.V. Act. The petitioners are the non-applicants in the said application. In the said application the respondent has narrated the facts leading to the filing of the proceeding under the D.V. Act. 4. In short, it is the case of the respondent that after marriage for few days she was treated properly. After few months of the marriage the petitioner No. 1 started doubting her character. The petitioner No. 2, who is mother-in-law of the respondent, joined them at the place of the service of the petitioner No. 1 initially at Hyderabad and later on at Bengaluru. The petitioners, according to the respondent, took custody of her stridhan. They refused to handover the same to her. The petitioners, according to respondent, ill-treated and tortured her. She was subjected to mental pain and agony. The marriage between respondent and petitioner No. 1 took place on 28.02.2008. In the year 2014, the petitioner No. 1 got a job in USA. Petitioner No. 1 took the respondent and his mother petitioner No. 2 to USA. In USA, the respondent was subjected to mental torture and cruelty. At the time of birth of the daughter, respondent came to Nagpur. After birth of daughter the petitioners did not bother to take care of respondent and the daughter. When the ill-treatment and torture became unbearable on 24.02.2018 the respondent left USA and came to Nagpur. She has been residing with her parents. It is stated that the petitioners have not provided her maintenance, separate residence and other reliefs. They have also refused to return back her stridhan. In short, it is the case of the respondent that she was subjected to domestic violence. 5. She has been residing with her parents. It is stated that the petitioners have not provided her maintenance, separate residence and other reliefs. They have also refused to return back her stridhan. In short, it is the case of the respondent that she was subjected to domestic violence. 5. The petitioners appeared before the Magistrate. They filed two applications Exhs.14 and 15. By these two applications they challenge the maintainability of the application and the jurisdiction of the Court of Magistrate to entertain the application. According to them, the application under Section 12 of the D.V. Act, filed by the respondent, after one year from coming to Nagpur from USA, is not maintainable inasmuch as the respondent was not subjected to any domestic violence during this period of one year. The petitioners further contended that the alleged domestic violence was caused to the respondent in USA and therefore, the application filed by the respondent in the Court of Judicial Magistrate First Class at Nagpur (India) is not maintainable. The Court of Magistrate has no jurisdiction to entertain the said application. 6. Learned Magistrate by order dated 23.03.2022 rejected both these applications. Petitioners filed the appeal under Section 29 of the D.V. Act against this order. The Learned Additional Sessions Judge dismissed the appeal. The petitioners are therefore before this Court. 7. I have heard Mr. Abhishek Verma, learned Advocate for the petitioners and Mr. H.R. Gadhia, learned Advocate for the respondent. Perused the record and proceedings. 8. Learned Advocate for the petitioners submitted that in view of the fact that the alleged domestic violence was caused in USA and the application was filed in the Court of Judicial Magistrate First Class at Nagpur (India), the provisions of Section 188 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’) would become applicable. Learned Advocate submitted that as per Section 188 of the Cr.P.C., previous sanction of the Central Government was necessary to inquire into or try such offence in India. Learned Advocate submitted that as per Section 188 of the Cr.P.C., previous sanction of the Central Government was necessary to inquire into or try such offence in India. Learned Advocate submitted that since the allegations made in the application may constitute the offences under the Indian Penal Code and therefore, the sanction of the Central Government was necessary for filing the proceeding under Section 12 of the D.V. Act in terms of Section 188 of the Cr.P.C. Learned Advocate further submitted that undisputedly for a period of one year there was no cohabitation between the petitioner No. 1 and the respondent and therefore, there was no question of domestic violence to the respondent at the hands of the petitioners and therefore, the proceeding under Section 12 of the D.V. Act seeking multiple reliefs under the D.V. Act was not maintainable. Learned Advocate further submitted that the Court of Judicial Magistrate First Class at Nagpur in view of the undisputed facts will have no jurisdiction to entertain the application made by the respondent. 9. Learned Advocate Mr H.R. Gadhia for the respondent submitted that the application filed under the D.V. Act and particularly, under Section 12 of the D.V. Act could not be said to be a criminal complaint. Learned Advocate submitted that the provisions of Section 188 would come into operation if there is grievance of commission of criminal offence outside India. In this case, the Magistrate is not trying any case on the allegation of commission of criminal offence. Learned Advocate further submitted that as per the provisions of Section 27 of the D.V. Act the Court of Judicial Magistrate First Class at Nagpur has a jurisdiction to entertain and try the application filed by the respondent. Learned Advocate in order to substantiate his submissions placed heavy reliance on decision of this Court in the case Sumeet Ninave vs. Himani Ninave in Criminal Application No. 1576 of 2022, decided on 29.02.2023. Learned Advocate pointed out that the facts of the case on hand and the facts of the above mentioned case are identical. Learned Advocate further submitted that the multiple prayers have been made in the application by the respondent. Learned Advocate pointed out that one of the prayers is for return of stridhan. Learned Advocate pointed out that the facts of the case on hand and the facts of the above mentioned case are identical. Learned Advocate further submitted that the multiple prayers have been made in the application by the respondent. Learned Advocate pointed out that one of the prayers is for return of stridhan. Learned Advocate submitted that the failure to return stridhan is a continuing act and therefore, the provisions of D.V. Act would get attracted on failure of the petitioners to return her stridhan. In order to substantiate this submission reliance is placed on decision in the case of Krishna Bhattacharjee vs. Sarathi Choudhury and Another, (2016) 2 SCC 705 . Learned Advocate submitted that the Courts below have not committed any mistake or error in rejecting the applications. 10. It is seen that the Courts below have taken into consideration the decision in the case of Krishna Bhattacharjee (supra) to come to a conclusion that the grievance made by the petitioners was without any substance. Learned Advocate for the petitioners submitted that when the demand of the stridhan was made in writing by the respondent, she was informed that the brother of the petitioner No. 1 had disposed of her stridhan. Learned Advocate therefore submitted that the petitioners, who are not having custody of her stridhan cannot be called upon to return the same. Learned Advocate submitted that therefore this principle of continuing offence or act cannot be invoked in this case. In my view, there is no substance in this submission. The Hon’ble Apex Court in the case of Krishna Bhattacharjee (supra) has elaborately dealt with this issue in Para No. 32 of the decision. Para No. 32 is extracted below: “32. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.” In my view, this decision is an apt answer to the technical objection raised on behalf of the petitioners. 11. It is to be noted that in the case of Sumeet Ninave (supra) I have dealt with the similar issues. In my view the, the dispute raised in this case is fully covered by the decision in the Sumeet Ninave (supra). For the purpose of convenience Para Nos. 9, 10, 11, 12, 13 and 14 are relevant. The same are extracted below: “9. In order to appreciate the rival submissions, I have gone through the record and proceedings. I have also gone through the judgments relied upon by both the parties. For the purpose of convenience Para Nos. 9, 10, 11, 12, 13 and 14 are relevant. The same are extracted below: “9. In order to appreciate the rival submissions, I have gone through the record and proceedings. I have also gone through the judgments relied upon by both the parties. It is true that as per Section 1 of the D.V. Act, the D.V. Act extends to the whole of India except the State of Jammu and Kashmir. It does not extend beyond the limits of India. The question therefore, is whether for the domestic violence caused to the aggrieved person on the foreign soil can be taken cognizance of by the Court of Magistrate in India at any of the places provided in clause (a) to (c) of Section 27. It is to be noted that subsection 1 and Section 27 of the D.V. Act will have to be harmoniously construed. The D.V. Act is a social beneficial legislation. The object and intention of the legislature behind this enactment is writ large from the statement of the object and reasons of the Act. Section 27 of the Act provides for the jurisdiction of a Court of Magistrate of First Class or Metropolitan Magistrate to entertain the application under this Act. The provisions of Section 27(1) (a) and (b) are applicable irrespective of the place of cause of action. It is to be noted that clause (a) and (b) of Section 27 (1) of the D.V. Act has, therefore, no direct nexus or corelation with the place where the domestic violence was actually caused. In my view, these two clauses namely (a) and (b) of sub section (1) of Section 27 have to be harmoniously construed with sub section 1 of Section 27 of the Act. If it is so done then it would show that the law makers were mindful of such a situation and therefore, Section 27 have been worded in this form. It therefore goes without saying that though the Domestic Violence Act extend to the whole of India as provided under Section 1 of the D.V. Act, the domestic violence caused on the foreign soil could also be taken cognizance by invoking Section 27 (1) (a) and (b). 10. It is to be noted at this stage that on this ground learned Magistrate was right in rejecting the application. 10. It is to be noted at this stage that on this ground learned Magistrate was right in rejecting the application. At this stage, it would be necessary to consider the decisions relied upon by the learned Advocate for the complainant. In the case of Hima Chugh vs. Pritam Ashok Sadaphule (supra), the facts were identical to the facts of the case in hand. The wife was permanent resident of U.K. She was subjected to domestic violence in U.K. She came to India and started living with her parents at Delhi. She filed an application under the D.V. Act in the Court of Metropolitan Magistrate, Delhi. The Metropolitan Magistrate Delhi held that since the complainant was subjected to domestic violence on the soil of U.K, he will have no jurisdiction to entertain the complaint. Delhi High Court in this case has held that in view of the provisions of Section 27 of the D.V. Act, the Metropolitan Magistrate will have the jurisdiction to entertain the complaint inasmuch as the complainant had started permanently residing with her parents at Delhi. 11. In the case of Mohammad Zuber Farooqi vs. State of Maharashtra and Another (supra) the facts are somewhat similar. The complainant (wife) and the husband resided in USA. She was subjected to domestic violence in USA. She came to India and started residing at Meerut. She shifted to Mumbai. In Mumbai, she filed complaint under Section 12 of the D.V. Act. The jurisdiction of the Metropolitan Magistrate Court at Mumbai was challenged before the High Court in a petition arising out of the maintenance order. The Coordinate Bench after considering the law laid down in the case of Rupali Devi vs. State of Uttar Pradesh (supra) held that the Court at Mumbai will have jurisdiction to entertain the complaint. 12. It would be necessary at this stage to consider the decision in the case of Rupali Devi vs. State of Uttar Pradesh (supra). It is true that issue involved before the Apex Court was with regard to the jurisdiction of criminal Court to entertain the criminal case under Section 498-A of the Indian Penal Code. The Hon’ble Apex Court in Para 15 of this decision has considered the close nexus between the cruelty as defined under Section 498-A of the Indian Penal Code and the acts of the domestic violence as defined under the D.V. Act. The Hon’ble Apex Court in Para 15 of this decision has considered the close nexus between the cruelty as defined under Section 498-A of the Indian Penal Code and the acts of the domestic violence as defined under the D.V. Act. In my view, it would be appropriate to reproduce Para No. 15 of this decision. It reads thus: “15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498-A of the Penal Code. The definition of “domestic violence” in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanations (a) & (b) to Section 498-A of the Penal Code which define “cruelty”. The provisions contained in Section 498-A of the Penal Code, undoubtedly, encompass both mental as well as the physical wellbeing of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498- A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 CrPC which would squarely be applicable to the present case as an answer to the question raised.” 13. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 CrPC which would squarely be applicable to the present case as an answer to the question raised.” 13. The Hon’ble Apex Court has observed that sufferings of the wife at parental home though may not be directly attributable to commission of acts of cruelty by the husband at matrimonial home but the same would undoubtedly be the consequences of the acts committed at the matrimonial home. It is observed that such consequences, by itself, would amount to distinct offences committed at parental home where she has taken shelter. It is further observed that adverse effects on the mental health in the parental home though on account of acts committed in the matrimonial home would amount to commission of cruelty. 14. In my view, by drawing the analogy from these observations, it has to be held that apart from the express provisions of Section 27, in my view, the consequence of trauma, suffering and distress carried by the complainant to her parental home would be sufficient to reject the submissions advanced by relying upon Section 1 of the D.V. Act. It is further pertinent to note that the reliance on subsection 2 of Section 27 is totally misplaced inasmuch as the question of execution of order would arise depending upon the nature of the order. Therefore, relying on subsection 2 of Section 27, the issue of jurisdiction cannot be answered in favour of the respondent No. 1.” 12. In my view, therefore, the contention of the petitioners on all counts cannot be accepted. It is to be noted that the learned Advocate for the petitioners heavily relied upon Section 188 of the Cr.P.C. and pointed out that the learned Magistrate should not have taken cognizance of the case filed by the applicant and started the inquiry and trial in the said matter without prior sanction of the Central Government. In order to seek support to this submission, learned Advocate has relied upon the following decisions: (i) Thota Venkateswarlu vs. State of Andhra Pradesh through Principal Secretary and Another, (2011) 9 SCC 527 (ii) Thotapally Sai Prasanna Kumar vs. State of Telangana in Criminal Petition No. 2173 of 2016, decided on 04.02.2022 13. In order to seek support to this submission, learned Advocate has relied upon the following decisions: (i) Thota Venkateswarlu vs. State of Andhra Pradesh through Principal Secretary and Another, (2011) 9 SCC 527 (ii) Thotapally Sai Prasanna Kumar vs. State of Telangana in Criminal Petition No. 2173 of 2016, decided on 04.02.2022 13. In my view, the submissions advanced by the learned Advocate for the petitioners relying upon Section 188 of the Cr.P.C. is nothing but a fallacy. It seems to be the result of misconception, in understanding the true spirit of the proceeding under Section 12 of the D.V. Act and the true nature and the scope of the provisions of Section 188 of the Cr.P.C. The proceedings initiated under the D.V. Act is of a civil nature. This view has been taken in number of judicial pronouncements. The proceeding initiated under Section 31 of the D.V. Act in case of breach of protection order could be said to be a criminal proceeding. Section 188 of the Cr.P.C. provides for the sanction for the purpose of inquiry into or trial of the offences committed outside India. The acts alleged to have been committed by the petitioners, stated in the complaint, could not be said to be an offence under the D.V. Act. It is a dispute of civil nature. Therefore, the submissions advanced by relaying upon Section 188 of the Cr.P.C. cannot be entertained. The Courts below have dealt with the same in great detail. 14. In the facts and circumstances, I do not find any substance in the writ petition. The order passed by the learned Additional Sessions Judge confirming the order passed by the learned Magistrate is in accordance with law. 15. The writ petition is accordingly dismissed. Rule stands discharged.