The Allahabad High Court while allowing an application observed that mere domestic relationship between the parties is not sufficient to inculpate the person who is in the domestic relation with aggrieved person unless there is a specific incident of domestic violence as defined under Section 3 of the D.V Act.
The Allahabad High Court while allowing an application observed that mere domestic relationship between the parties is not sufficient to inculpate the person who is in the domestic relation with aggrieved person unless there is a specific incident of domestic violence as defined under Section 3 of the D.V Act.
The Allahabad High Court while allowing an application observed that mere domestic relationship between the parties is not sufficient to inculpate the person who is in the domestic relation with aggrieved person unless there is a specific incident of domestic violence as defined under Section 3 of the D.V Act.
A Single Bench of Justice Dinesh Pathak passed this order while hearing an application under section 482 filed by Virendra Kumar Kushwaha and 4 Others.
The applicants have invoked the inherent jurisdiction of the Court assailing the summoning order dated 5.4.2021 passed by the Civil Judge (Sr Division), Kaushambi and order dated 3.12.2022 passed by the Civil Judge (Sr Division)/ FTC/ ACJM Kaushambi under Section 23 of Protection of Women from Domestic Violence Act, 2005 (in brevity D.V Act) in Complaint Case under Section 12 of the D.V Act.
The facts of the case are that marriage of respondent no 2 was solemnized with applicant no 1 in the year 2019. It appears that owing to matrimonial bickering, respondent no 2 has moved a complaint dated 24.3.2021 against her husband and in-laws (mother-in-law, father-in-law and two sisters-in-law) under Section 12 of D.V Act.
The trial court, vide order dated 5.4.2021, has issued summons against the applicants and directed the Probation/Protection Officer for submitting his report.
In pursuance of the order dated 5.4.2021, the Probation/ Protection Officer has submitted inquiry report/formal incident report dated 16.11.2021 in Form-I as required under Rule (5) of Domestic Violence Rules 2006. The District Probation Officer in his report dated 16.11.2022 has mentioned the statements of complainant, husband, mother-in-law and father-in-law. During pendency of proceeding under Section 12 of D.V Act, court has passed an ex-parte order dated 3.12.2022 under Section 23 of D.V Act granting interim maintenance to the tune of Rs 3000/- per mensem in favour of the respondent no 2 (wife). Having been aggrieved, the application has been filed assailing the order of interim maintenance dated 3.12.2022 and the summoning order dated 5.4.2021.
The Court observed that,
Having considered the rival submissions advanced by the counsel for the parties and perusal of the record, it reveals that matrimonial status between applicant no1 and respondent no2 being husband-wife and the relationship of respondent no2 with the applicant nos 2 to 5 being in-laws have not been denied. In her complaint filed under Section 12 of D.V Act, respondent no 2 has sought relief under Section 18,19, 20 and 22 of D.V Act arraying the applicants as respondents. Allegation of domestic violence has been levelled against respondents (applicants herein) in perfunctory manner without referring to any particular incident of domestic violence attributing to any of them.
The Probation/Protection Officer, while submitted his report, has recorded the statement of complainant and the statements of respondent nos 1, 2 and 3 of the complaint (applicant nos 1, 2, and 3) to show his prima facie satisfaction qua cognizance of the case under Section 12 of D.V Act.
In clause-2 of the report as submitted in form- I under Section 5(1) of the Domestic Violence Rules, names of all the applicants are mentioned. In clause-4, date of violence has been shown to be March 24, 2021 which was allegedly commissioned against the Ritu Kumari, (respondent no 2) wherein, as mentioned in the remark column, she has allegedly been abused and pounded. Nature of violence has been shown as a demand of dowry, harassment, insult, radical and humiliation etc. A four wheeler and cash amounting Rs 1 lakh has been also shown to be demanded from the respondent no 2. In her statement recorded before the District Probation Officer, she has stated that her marriage was solemnized with the applicant no 1 on 9.3.2019 according to hindu rites and rituals. Her father has expended about Rs 8 lakhs in marriage which includes one lakh cash given in Tilak ceremony. In the marriage ceremony, two gold finger rings, one motorcycle along with household goods and Stridhan have been gifted as well. While she came to her in-laws house, one four wheeler and cash amounting Rs 1 lakh has been demanded by her husband, father in-law, mother-in-law and two sisters-in-law. She has been abused, thrashed and thrown out from her matrimonial house on 16.1.2021 for want of fulfillment of dowry. In the meantime, she gave birth to a boy on 28th September, 2020 out of wedlock with applicant no 1. The husband was not good towards the child to whom he disowned and expressed his desire to solemnize second marriage.
It is further stated by respondent no 2 that all her in-laws, as arrayed in the complaint being respondents, have thrashed, abused and kicked her out for demand of additional dowry. She has narrated her ordeals to her parents who came and took her along with her child in a private vehicle. Thereafter, she made a complaint of such incident in women police station, where both the parties have been called upon for amicable settlement, however, husband has refused to toe the line, therefore, she has resorted to legal recourse. As per her statement, husband (applicant no 1) is earning about Rs 30,000/- per month by operating an Autorickshaw and running a Kharad shop.
“So far as granting an interim maintenance, by order impugned dated 3.12.2022, is concerned I found no illegality or perversity in the said order which has been passed ex-parte against the applicant no 1. Perusal of the order-sheet of Case, as appended with the application, reveals that the trial court has treated the services of notice sufficient upon respondent no 1 to 5, vide order dated 19.4.2022, and by subsequent order dated 22.8.2022 matter was ordered to be proceeded ex-parte against the applicants by stopping their opportunity of defence. The order dated 2.11.2022, further date was fixed for ex-parte evidence of the complainant. In the affidavit filed in support of the application, applicants have not whispered anything about ex-parte proceedings. They have simply assailed the order dated 3.12.2022 qua amount of interim maintenance. Considering the high price of living the amount of Rs 3000/- per mensem cannot be said to be exorbitant. The trial court has granted interim maintenance considering the notional income of the applicant no 1, prima facie, which cannot be said to be excessive. He still has an opportunity to contest the case and put his defence before the trial court to prove his innocence.
In the peculiar facts and circumstances of the case, I am of the considered view that the allegations as made against applicant nos 4 and 5 are wholly insufficient and, prima facie, do not make out a case of domestic violence against them under the provision as enunciated in D.V Act. Moreover, the allegation made against applicant nos 4 and 5 are farfetched and improbable that no prudent person can conclude that there are sufficient grounds to proceed with the matter under the D.V Act against the applicant nos 4 and 5. Therefore, it is fit case to quash the proceeding under D.V Act in exercise of inherent jurisdiction under Section 482 Cr.P.C so far as it relates to the applicant nos 4 and 5”, the Court further observed.
Resultantly, the Court allowed the application and the summoning order dated 05.04.2021 passed by the Civil Judge (Senior Division) Kaushambi in Complaint Case under Section 12 of D.V Act, so far as it relates to the applicant nos 4 and 5, is hereby quashed. Further proceedings will go on against the remaining applicant i.e applicant nos 1, 2 and 3.
The Court clarified that the application is rejected against the order dated 03.12.2022 passed by Civil Judge (Senior Division)/F.T.C/Additional Chief Judicial Magistrate, Kaushambi under Section 23 of the D.V Act, by which an interim maintenance has been granted in favour of the respondent no 2.