IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1173 OF 2013
Amitabh Upadhyay S/o R.P.Upadhyay
Age: 48 years, Occ: Pvt. Service
B4/2, Symphony Enclave,2/3, Chinar park, Rajarhat
Kolkata – 700 156. .. Applicant.
1. State of Maharashtra
Represented by Public Prosecutor,High Court of Bombay, Mumbai.
2. Pushpita Mukherjee
Flat No.102, Building No.3,
Vijay Park, G.B. Road,Kasarvadavali, Thane(W), .. Respondents
Ms. Jahan Ara Sarkhot, Advocate for the applicant..
Mr. Prag Prabhakar Pokale, for respondent No.2,
Mr. A.S.Shitole, APP, for the respondent-State.
CORAM: SMT.SADHANA S.JADHAV,J.
JUDGMENT RESERVED ON 14.7.2014.
PRONOUNCED ON: 25.09.2014.
1. The applicant herein is seeking the relief of quashing of the complaint on the basis of which he is being prosecuted under the provisions of Sections 12, 18, 21 and 23 of the Protection of Women from Domestic Violence Act, 2005 in Complaint No.524 of 2013 pending before the Judicial Magistrate (2nd Court) at Thane.
2. The applicant herein is working as a Maintenance Engineer with Emirates Airways. The applicant was married to the respondent No.2 on 11.5.1995. The couple is blessed with a daughter on 15.4.1999. The name of the daughter is Tania.
3. The applicant was transferred to Andhra Pradesh and shifted to Secunderabad along with his wife and daughter. In fact, right from the initial period after marriage, there was temperamental incompatibility between the couple, but the couple had made efforts to adjust themselves to lead a happy married life. Finally, the respondent No.2 had voluntarily abandoned her matrimonial home and had left Secunderabad as if never to return again.
4. The applicant herein was, therefore, constrained to file a petition under Section 13(1-B) of the Hindu Marriage Act, 1955 against the respondent No.2 before the Second Addl. Senior Civil Judge, Ranga Reddy Court at L.B. Nagar, Andhra Pradesh, which was registered as O.P.No.99/2005. Since Secunderabad was the last place where they lived together, the petition for divorce was filed at Secunderabad.
5. It is the case of the applicant that on receipt of notice of divorce petition, the respondent No.2 filed a complaint against the applicant, which was transferred to Alwal Police Station, Ranga Reddy. She had also filed a complaint at Thane alleging therein that the applicant had committed an offence under Section 365 of Indian Penal Code.
6. The couple had amicably settled the disputes as they had decided to obtain divorce by mutual consent. The applicant had paid an amount of Rs.4,00,000/- by demand draft towards full and final settlement towards permanent alimony and the maintenance which was acknowledged and accepted by her. Since there was an amicable settlement, the respondent No.2 had withdrawn the complaint on the basis of which Crime No.382 of 2005 was registered. The proceeding ini Misc. Application No.69 of 2005 was referred to Lok Adalat and there, by mutual consent, the parties were divorced.
7. The couple had appeared before the Lok Adalat on 19.4.2006. An award was passed and O.P.No.99 of 2005 was allowed by mutual consent.
8. As per the decree/award in O.P.No.99 of 2005, it was decided that their minor daughter Tania would live with the applicant and he would be the sole legal guardian of the said child. It was also agreed by respondent No.2 that she would never claim or initiate any proceeding claiming permanent custody of the child. The applicant had agreed to give visitation rights of daughter Tania for a total period of 30 days in a year which would include 15 days in the month of January and 15 days during summer vacation in April or May, except for the year 2006. The applicant contends that he had abided by the terms and conditions agreed upon in the compromise deed.
9. The applicant was then transferred to Calcutta. He had informed the respondent No.2 about the same. He had also furnished his address at Calcutta.
Respondent No.2 had taken Tania for the vacation to Thane. From Thane, she had issued a legal notice to the applicant on 28.12.2007 expressing her denial to return Tania. In addition, the applicant was threatened of dire consequences if he attempted to contact Tania. The applicant replied the legal notice by reminding her that she had accepted the terms and conditions under the decree by mutual consent and that she cannot turn back upon it.
10. The applicant was, therefore, constrained to lodge a complaint before the Kadarvadavali Police Station on 6.1.2008. He also lodged a complaint before the Judicial Magistrate, First Class, Thane on 8.1.2008, which was registered as O.M.A. No.10 of 2008. The police had conducted an enquiry and informed the Magistrate that Tania was insisting upon being with her father. She was allowed to accompany the applicant and the proceedings in O.M.A. No.10 of 2008 were closed.
11. According to the applicant, the complainant continued to issue legal notice to the applicant and extended threats. The applicant, therefore, filed Writ Petition No. 8984 of 2008 before the High Court of Andhra Pradesh contending therein that there is non-compliance of the award and the respondent is issuing threats. The Andhra Pradesh High Court passed interim orders on 21.5.2008 as follows :-
“Under these circumstances, this Court is of the view that the intention of the child needs to be ascertained. Post next week for production of the child. In the meanwhile the petitioner shall not be under obligation to handover the custody of the child to the respondent.”
Notices were issued to the respondent No.2. On receipt of the notice, the respondent No.2 had filed a complaint before the Chief Judicial Magistrate, Barasat, Kolkata. Thereafter, the applicant, respondent No.2 and Tania appeared before the Andhra Pradesh High Court. The Court had recorded the statement of Tania and had observed that the visitation rights for the year 2008 need not be implemented. The said order was challenged by the respondent No.2 before the Hon’ble Apex Court. The Special Leave Petition was dismissed on 26.8.2008.
The Hon’ble Apex Court had observed that while granting visitation rights, the office shall verify the need for granting visitation rights only upon considering the interest of the child. The Court had disposed of the Execution Petition and the applicant was allowed to keep his daughter with him with a direction that he shal take care of the child. In the case filed at Barasat, Kolkata, the applicant is protected by grant of pre-arrest bail.
12. Respondent No.2 has filed a complaint before the Civil Judge, S.D. Thane, under the provisions of Protection of Women from Domestic Violence Act, 2005 alleging therein that she was married to the applicant on 11.5.1995. While stating the description and nature of the offence alleged, she has stated that on 22.5.2008 when Tania was in her custody, she was being taken outside by the present applicant. Hence, she had lodged the FIR on 11.10.2011. It is alleged that respondent No.2 had been to meet her relatives. The applicant had mounted a blow on her head and had driven her out of the house. It is also alleged that on 22.5.2008 also she was assaulted by some miscreants at the Airport. It appears from the perusal of the complaint that the basic grievance of the respondent No.2 was that she was not being given easy access to her daughter Tania. The respondent No.2 had also alleged that Tania was kept starving. That on 11.10.2011, the applicant is alleged to have assaulted the respondent No.2. It is also alleged that at the time of signing the consent terms, the applicant had agreed to give Rs.7 lakhs, however he has given only Rs.4 lakhs. The relief that was claimed in the said proceeding was that the girl should be referred to a Psychiatrist or a Psycho-analyst and the respondent No.2 should be given visitation rights. It is in this background, that the applicant is seeking quashing of the proceedings.
13. It is a matter of record that respondent No.2 had withdrawn herself from the society of her husband voluntarily. The applicant had filed divorce petition under Section 13(1-B) of Hindu Marriage Act and the parties had obtained divorce by mutual consent. Upon perusal of the orders dated 19.4.2006, wherein the applicant and respondent No.2 had obtained divorce by mutual consent before the Lok Adalat. It is clear that respondent No.2 was not residing with the applicant since 2005. She had received the total amount of Rs.4 lakhs by way of permanent alimony. The instances which are stated for alleging acts under the Domestic Violence Act are stated to be of 22.5.2008 and 11.10.2011. On the relevant dates, the applicant was not in a domestic relationship with the complainant i.e. respondent No.2.
14. Section 2(f) of the Domestic Violence Act reads thus :-
“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;”
Section 2(g) defines “domestic violence as is defined under Section 3 of the Act. Section reads thus :-
“3. Definition of domestic violence – For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –
(a) harms or injures or endangers the health, safety, life, limp or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or © has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”
Explanation II – For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”
Hence, the statute carves out a rider that for the purpoose of determining whether any act, omission or commission or conduct would constitute domestic violence, the overall facts and circumstances of the case should be taken into consideration.
15. In view of this, after taking stock of the facts and circumstances of this case, it is clear that the respondent No.2 had filed complaints at various places without any foundation. She did not intend to abide by the terms and conditions incorporated in the consent terms although at the time of signing the consent terms, she had acknowledged, acquiesced and agreed to act upon the same. The daughter of the applicant had also expressed her willingness to stay with the applicant since she was being detained in the custody of the respondent No.2 against her wish.
16. On the date of the alleged offences, the applicant and the respondent No.2 were not in a domestic relationship. The instances that are alleged are also shown to have occurred at a public place. The incident dated 22.5.2008 appears to have taken place outside the airport and the incident dated 11.10.2011 shows that the respondent No.2 was driven out of the house when she had been to visit her daughter. It cannot be said that on 11.10.2011, the respondent No.2 has been denied the right of residence in a shared household as she had withdrawn herself from the company of her husband way back in 2005.
17. The learned counsel appearing for the respondent No.2 has placed reliance upon the Judgment of this Court in the case of Bharati Naik vs. Ravi Ramnath Halarnkar & Anr. 2012 (5) LRC 259 (Bom), wherein this Court (Coram: R.M.Sawant, J.) has observed that the definition of Section 2(f) takes into consideration past relationship as the words “has been” or “have lived” have been used in the said definition. The Hon’ble Single Bench has observed as under :-
“The said words therefore have been used purposefully as the said Act has been enacted to protect a woman from domestic violence and, therefore there cannot be any fetter which can come in the way by interpreting the provisions in a manner to mean that unless the domestic relationship continues on the date of the application, the provisions of the said Act cannot be invoked. The words “has been” and the words ” have lived” have been used for the purpose of showing the past relationship or experience between the concerned parties. To interpret the said provisions so as to mean that only subsisting domestic relationship are covered would result in turning the provisions of the said Act Otiose.”
In the facts of that case, the petitioner, though divorced, had continued to stay in the shared household till she was allegedly forcibly evicted by the respondent and, therefore, she was entitled to invoke the provisions of the said Act.
18. In the present case, the respondent No.2 had withdrawn herself from the society of her husband way back in the year 2005 and since then there was no domestic relationship between the applicant and the respondent. The alleged act was not committed when the applicant and the respondent No.2 were in a domestic relationship, but after two years and five years after they had been divorced by mutual consent.
Even prior to filing the application under the provisions of Domestic Violence Act, respondent no.2 had filed several applications before different Courts which were either withdrawn or closed or not prosecuted. Hence, it cannot be said that the applicant had committed any offence while he was in a domestic relationship with the respondent No.2.
19. In the year 2011, the respondent No.2 was not living with the applicant and was not forcibly evicted from a shared household, but was simply denied visitation rights. The said denial was pursuant to the orders passed by the High Court of Andhra Pradesh. Moreover, the welfare and wish of their daughter was of a paramount importance and the daughter of the couple had specifically informed the Court that she does not wish to either visit or stay with the respondent No.2.
20. The learned counsel for the applicant rightly submits that in the year 2011, it could at the most be said that the applicant was only acting in the interest of his daughter. Moreover, the Civil Judge, S.D. Thane, had dismissed the Execution Petition filed by the respondent No.2 and had observed as follows :-
“Obviously, there would be certainly danger to the life of the daughter namely Tania if she asked to go with D.H. more particularly due to the adamant behaviour of the D.H. which this court observed during the time of hearing. Moreover, Tania cannot be compelled to reside or go with D.H. though they have agreed before the Lok Adalat for the visitation terms between them.”
In such circumstances, I am of the view that this is not a fit case in which Tania can be directed or asked to go with her mother D.H. By executing the decree and thus the execution proceeding itself is infructuous.
21. The said decree had attained finality since it was not challenged before any Court. It can be said that the applicant herein was only implementing the order passed by the Thane Court and hence denial of visitation rights cannot be treated as domestic violence. The domestic relationship between the couple was only by mutual consent five years prior to the incident dated 11.10.2011.
Thereafter, the couple had never shared the household. The allegations were not pertaining to the period when they had lived together and, therefore, it cannot be said that the alleged act would be in the nature of domestic violence. Hence, this Court is of the opinion that continuation of the proceedings under the Domestic Violence Act would be an abuse of process of law. The interest of daughter would be hampered if the applicant is dragged to Thane to attend the proceedings and answer unwarranted allegations. No case is made out under the Domestic Violence Act 2005. The applicant would have to go through the ordeal of a proceeding which is filed only to satisfy the personal vendetta or with an ulterior motive.
22. Hence, the application deserves to be allowed in terms of prayer clause (a). The proceedings against the applicant in Complaint No.524 of 2013 pending before the Judicial Magistrate, First Class, Thane, is hereby quashed and set aside.
(SMT.SADHANA S.JADHAV, J.)