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DV filed after many years of separation Quashed

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 7552 of 2016

SARTHAK RAMNIKBHAI BHATTI & 3 other(s)

Versus

BINA SARTHAK BHATTI & 1 other(s)

Appearance:
MR. KULDEEP D VAIDYA(7045) for the Applicant(s) No. 1,2,3,4
ADITYA D DAVDA(8354) for the Respondent(s) No. 1
MANAN K PANERI(7959) for the Respondent(s) No. 1
MR HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 17/06/2019
ORAL ORDER

1. Rule. Learned Additional Public Prosecutor Mr.Soni waives service of notice of Rule for the respondent No.2.

2. The present application has been filed praying for quashing and setting aside the complaint registered as Domestic Violence Application No.300 of 2016 filed by the respondent No.1 – original complainant before the Court of Judicial Magistrate First Class, Anand.

3. Learned advocate Mr.Vaidya appearing for the petitioners has submitted that the petitioners will have to face unnecessarily hardship by the respondent No.1 in the complaint under the Domestic Violence Act. He has submitted that, in fact, the petitioner No.1, who is the husband of the complainant, used to reside at her house and left in November, 2011 and had been staying separately. He has submitted that petitioner Nos.2 to 4 were also living in their own residence and not with the present complainant. He has submitted that the petitioner No.2 – father-in-law, petitioner No.3 – brother-in-law and petitioner No.4 – sister-in-law are separately residing and on the contrary, the petitioner No.1 was residing with the respondent No.1 – complainant at her house and was insulted time and again and, ultimately, he had left the house. He has submitted that she used to harass the present petitioners and, accordingly, the petitioner No.1 filed the divorce proceedings against her on 27.11.2012 seeking divorce from the respondent No.1 – complainant.

3.1 Learned advocate Mr.Vaidya has submitted that the present complaint has been lodged in the year 2016 for the incident, which had occurred in 2012, and hence, since the petitioner No.1 had already left the house due to harassment, the impugned complaint is required to be quashed and set aside.

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4. Per contra, learned advocate Mr.Manan Paneri for the respondent No.1 has vehemently opposed the submissions advanced by the learned advocate Mr.Vaidya for the petitioners and submitted that, in fact, the petitioner No.1 – the husband of the complainant and his family members used to threaten the respondent No.1 for entering into divorce with her. He has submitted that the petitioner No.1 and his family members used to harass her and due to harassment, she has filed the complaint under the Domestic Violence Act in the year 2016. It is submitted by learned advocate for the respondent No.1 that the report under the Domestic Violence Act itself reveals that the petitioners had assaulted her in April 2016 and hence, the respondent No.1 was compelled to file the complaint under the Domestic Violence Act against the present petitioners.

4.1 As regards the contention raised by the learned advocate for the petitioners seeking quashing of the complaint on the ground of delay, learned advocate for the respondent No.1 has placed reliance on the judgment of the Apex Court in the case of Vanka Radhamanohari Vs. Vanka Venkata Reddy & Ors, reported in 1993 (4) SC 17 and in the case of Sanapareddy Maheedhar & Ors. Vs. State of Andhra Pradesh & Ors, reported in (2007) 13 SCC 165. He has submitted that as per the decisions of the Apex Court, the complaint under the Domestic Violence Act and a matrimonial offence cannot be quashed and set aside on the ground of limitation by the High Court while exercising inherent powers under Section 482 of the Criminal Procedure Code. Thus, he has submitted that the impugned complaint does not require any interference and the application may be rejected.

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5. I have heard learned advocates for the respective parties and have also perused the orders as pointed out by the learned advocates.

6. The marriage between petitioner No.1 with the complainant was solemnized on 30.01.2000 at Bhavnagar. The facts which are also not in dispute that the petitioner No.1 – husband used to stay with the respondent No.1 at his father-in-law’s house and on November 2011, the petitioner No.1 left the house of the respondent No.1. It is not the case of the complainant that she was residing with the petitioners at their residence. Thereafter, the petitioner No.1 filed divorce petition under Section 13(1)(B) of the Hindu Marriage Act at Bhavnagar Family Court being HMP No.209 of 2012 (Renumbered as HMP No.196 of 2013), which is pending for adjudication. Subsequently, the respondent No.1 filed a complaint as Domestic Violence Application No.300 of 2016 against the petitioners alleging cruelty and harassment by them. This Court has perused the entire application filed by the respondent No.1. The close scrutiny of the application reveals that the respondent No.1 has made bald allegations against the petitioners. No specific instances after the year 2011 have been narrated in the application. The report relied on by the learned advocate for the respondent No.1 in support of his submission revealing about the incident of April 2016 also does not figure in the Domestic Violence Application filed by the respondent No.1. The respondent No.1 has nowhere stated that the petitioners had assaulted her in April 2016 at her residence or elsewhere or in the Court demanding forceful divorce. Though there cannot be any cavil on the proposition of law that the complaint for the matrimonial offence cannot be quashed solely on the ground of delay, at the same time, the complainant has to satisfactorily explain about the conduct of remaining silent for all these years as well as the application has to be very specific and the complainant has to allege specific instance of cruelty and violence. The complaint under the Domestic Violence Act cannot be superficial bereft of particulars.

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7. In the instant case, the respondent No.1 – complainant has not disputed that the petitioner No.1, who is the husband of the complainant, was staying with her at her house and had left in the year 2011 and thereafter, had also filed a divorce petition in the year 2012. The respondent No.1 did not think appropriate to file the application under the Domestic Violence Act, and she remained silent for all these years and the same has been filed in the year 2016. The tenor of the entire application reveals that the same has been filed with an oblique motive only with a view to harass the petitioners. It is also not in dispute that the petitioner No.2 – father of the petitioner No.1, petitioner No.3 – brother, petitioner No.4 – sister were already staying separately at their own residence and were not staying at the house of the complainant. These facts are not disputed by the respondent No.1.

8. Under the afore-noted facts and circumstances of the case, the present petition succeeds. The impugned complaint registered as Domestic Violence Application No.300 of 2016 filed by the respondent No.1 – original complainant is hereby quashed and set aside.

9. It is further clarified that the order passed by this Court in the present writ application shall not be construed adverse against either of the parties in other proceedings. Direct service is permitted. Rule made absolute.

(A. S. SUPEHIA, J)

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