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Husband acquitted in Domestic Violence case

Ujwala Niranjan Borhade

Vs.

Nirajnjan Ambadas Borhade.

Order below Exh. 22 in Cri. Misc. Application no.1262/2018

CNR No.MHDH03-004543-2018

The respondent has filed application to review the order dated 10/01/2022 passed below Exh. 10 by this Court. According to the respondent, the order passed below Exh. 10 is improper, incorrect due to mistake and error appeared on the face of record. According to the respondent, he had made typographical mistake in mentioning the date of marriage of daughter of applicant’s sister and date of allotment of room to him. But, he had already pointed out his mistake by filing pursis below Exh. 14 prior to passing order below Exh. 10. However, the Court has not considered the said pursis. It is further contended by the respondent that there is no such allegation made by the application against the respondent in Exh. 1. The Court while deciding application below Exh. 10, considered the complaint dated 21/10/2018 filed by the applicant in Dhule City Police Station. However, there is no such scope to consider the said incident which is after filing of complaint.

Therefore, the said incident cannot be considered.

2. It is also contended by the respondent that the Court while deciding the application below Exh. 10 observed in para No. 15 that there are fresh allegations against the respondent after the compromise of earlier matter in para Nos. 7, 8 & 9 in the application (Exh. 1). However, bare perusal of para No. 7 & 8 of Exh. 1, it is clear that there is no allegation against the respondent for any physical or mental harassment. The applicant has made vague allegations without giving details of specific incident, date or time stated in single line directing in para No. 9 that respondent harassed her physically and mentally. Therefore, according to respondent for such vague allegation, he cannot be harassed to face the trial. Hence, required to review the order dated 10/02/2022 passed by this Court. Hence, it is prayed to allow the application.

3. The application is vehemently opposed by applicant by filing her say below Exh. 27. It is contended by the applicant that the prima facie the application is filed by respondent is not maintainable at all. There is no such provision to review the order passed by the Court.

The application Exh. 10 is already decided by the Court. Therefore, respondent ought to have filed appeal under Section 29 before the Hon’ble Sessions Court. However, without filing such appeal, the respondent has filed instant application which is not maintainable. Hence, it is prayed to reject the application with heavy cost of Rs. 10,000/-.

4. Heard the advocate for both side at length and perused the record. Record goes to show that this Court has decided the application (Exh. 10) on 10/02/2022 and the proceedings against respondent Nos. 2 to 7 are dropped. However, the application is proceeded against the respondent No. 1. I have also perused the said order and record. Record goes to show that the respondent has filed pursis below Exh. 14 stating that due to the typographical mistakes there are some errors in the application (Exh.10) on 10/04/2019. The moot question arises before this Court is that whether Court can review its earlier order in the proceeding of Domestic Violence Act or not. The learned advocate for the respondent kept his reliance in the matter of Mangesh Savant Vs. Minal Bhosale, Cri. Writ Petition No. 905/2010, decided on 05/10/2011 and Raosaheb Pandharinath Kambale Vs. Shaila Raosaheb Kambale 2010 Cri. L.J 3596 and submitted that the Hon’ble High Court of Bombay have observed that the proceedings under the Domestic Violence Act as well as the proceeding under Section 125 of Cr.P.C. are quasi civil in nature.

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Therefore, the instant application is maintainable. I have gone through the the cases cited supra wherein the Hon’ble High Court have observed that ’the relief provided for in section 18, 19, 20, 21 & 22 can be also sought by the aggrieved person in any legal proceedings before Civil Court, Family Court or Criminal Court.’ Thus, the said act cannot be said to a penal statute. Merely because the jurisdiction to entertain to application under Section 12 has been concure upon learned Magistrate, the said act cannot be turn as penal statute and proceedings under the said Act cannot be treated as criminal proceeding. The power under the Act can be exercised even by a Civil Court or Family Court. The Hon’ble High Court have further observed that the petitioner can always raise all objections to the maintainability of pending application under Section 12 at appropriate stage. Thus, it is clear that the proceedings under Domestic Violence Act are quasi civil nature. If such proceedings are quasi civil in nature, then definitely the application to review the earlier order is maintainable under the provisions of Domestic Violence Act. In that view of the matter, I am proceeding to entertain and deciding the application filed by the respondent on its own merit.

5. I have gone through the order dated 10/02/2022 passed by this Court below Exh. 10, so also pleadings of the applicant in Exh. 1. The order dated 10/02/2022 speak in volume that there are fresh allegation in para Nos. 7 to 9 in Exh. 1 to draw the inference of violence committed by respondent to the applicant. Therefore, it is necessary to scrutinize para Nos. 7 to 9 of Exh. 1. In para No. 7 of Exh. 1 the applicant has stated that the respondent did not change his behaviour moreover, he did not give any treatment to applicant as well as her daughter in any hospital. On 25/04/2018 there was marriage of daughter of sister of the applicant. The respondent sent the applicant for marriage. However, he did not come for the marriage. Thereafter, on 27/03/2018, the applicant along with her mother had been to the Pune at Gol Market, Braman square, Armamend Quarter, at Room No. 2. The said room was vacated. Therefore, the applicant made call to the respondent. But he did not receive the call. Therefore, when applicant personally met with the respondent, he told her that she has to reside alongwith his brother or she has to reside with his parents at Akole and thereafter driven out to the applicant.

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6. However, the documents filed by the applicant herself below Exh. 3 goes to show that she had made complaint to the superior of respondent on 16/08/2018 wherein, she has addressed to superiors of respondent and stated that when she had been at Pune, at that time her quarter was found locked. Therefore, she made call to the respondent. The respondent told her that his quarter is vacated by the Department, therefore he had no quarter. He himself is residing in the office. Therefore. He cannot kept her along with him. For that reason, since more than three months the respondent has sent her at her maternal home and respondent is not coming back to take her for cohabitation. Therefore, if para No. 7 of Exh. 1 and the letter dated 16/08/2018 goes to show that they are contrary to each other. The applicant in para No. 7 stated that she herself met with the respondent and in letter she has stated that more than three months she is residing separately from respondent. Therefore, if said paras are considered on its record, it does not depicts that there are physical as well as mental harassment at the instance of respondent. If the para No. 7 and 8 of Exh. 1 are minutely scrutinized, it reveals that the applicant is not in domestic relationship with the respondent.

7. The domestic violence can take place only when one is living in shared household with the respondent. The acts of abuses, emotional or economic, physical or sexual, verbal or non verbal if committed when one is living in the same shared household constitute domestic violence. However, in the present case in hand, there is no such allegations of the applicant against the respondent in Exh. 1. Admittedly, it appears from the pleadings and record that the applicant and respondent are living separately since 25/04/2018 on the count of marriage of daughter of her sister. It is further allegation of applicant that the respondent has neglected to her. Mere negligence on the part of respondent to the applicant cannot attract the provisions of Domestic Violence Act. Even it is assumed that as per the version of applicant, the respondent has committed violence by living separately then such act of violence may be punishable under the different provisions of I.P.C. or other Penal Laws. But it cannot cover under the Domestic Violence Act.

8. The learned advocate for the respondent relied in the matter of Vijay Verma Vs. State of Delhi, Cri.M.C. No. 3878/2009, decided on 13/08/2010 and submitted that even if assume that as per the versions of applicant the respondent has committed act of violence by living separately. He cannot comes under the ambit and scope of Domestic Violence Act. It can be punishable under different provisions of I.P.C. or other Criminal Laws. I have gone through the judgment cited supra wherein, Hon’ble Delhi High Court in para No. 7 observed that one has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in shared household can constitute domestic violence. A person may be threatening another person hundred miles away on telephone or by messages, this may amount to an offence under I.P.C., but this cannot amounts to domestic violence.

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In the present case in hand, as discussed above it is clear from the record that the applicant as well as respondent are living separately as per the own statement of applicant. In such circumstances, It is highly unacceptable the versions of applicant about the acts of violence at the instance of respondent. Domestic violence is violence which is committed when parties are in a domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence. Therefore, in view of judgment cited supra, it cannot be said that the respondent has committed domestic violence to the applicant. Merely, single line statement that the respondent has physically as well as mentally harassed to the applicant cannot be the sufficient to constitute domestic violence. Therefore, in view of foregoing discussions the facts in the judgments cited supra and facts of present case in hand are similar to each other. Hence, the judgment cited supra are squarely applicable to the present case in hand.

9. Record further shows that there were earlier proceeding between the applicant and respondent under the provisions of Domestic Violence Act. But the said proceeding bearing No. 764/2016 was amicably settled on 14/06/2017 and thereafter applicant went for cohabitation with the respondent. The applicant resides with the respondent till April 2018, thereafter according to the applicant, she was being mentally and physically harassed by the respondent. But after scrutiny of record, the applicant has failed to made out the act of violence at the instance of respondent. There is absolutely nothing on record to infer the act of violence committed by respondent. Therefore, in view of the observations of Hon’ble High Courts the application filed by the applicant is not in accordance with law even against respondent No. 1 also. Hence, it would be just and proper to dismiss the complaint even against respondent No. 1. Hence, I proceed to pass the following order.

ORDER
1) The application (Exh. 22) is hereby allowed as per the prayer clause.
2) The application is dismissed against respondent No. 1.
3) Application is disposed of accordingly.

(S.S. Sayyad)
Judicial Magistrate First Class,
Date : 09/01/2023 (Court No.6) Dhule.

-: C E R T I F I C A T E :-
I affirm that the contents of this P.D.F. file Order are same word to word as per original Order.
Name of Stenographer :- M.L. Sonawane (Steno-II)
Name of the court :- 6th Jt. Civil Court Junior Division,Dhule.
Order uploaded on :- 10/01/2023
Sd/- XXX
(Steno)

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