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DV Quash – DV after Divorce, No Domestic Relation No DV Case

IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH

Crl. Misc. No.M-36736 of 2014 (O&M)
Date of preference : 31.05.2016

Amit Agarwal and others……Petitioner(s)

Versus

Sanjay Aggarwal and others…Respondent(s)

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of internal papers might be authorised to see a judgment? Yes/No
2. To be referred to a Reporters or not? Yes
3. Whether a visualisation should be reported in a digest? Yes

Present: Mr. Sukhbir Singh, Advocatefor a petitioners.

Mr. A.S. Manaise, Advocatefor a respondents.

ANITA CHAUDHRY, J.

JUDGEMENT

The benefaction petition has been filed underneath Section 482, Cr.P.C. seeking quashing of censure filed underneath a Domestic Violence Act.

2. It is required to give a significant issues before referring to a authorised issues. A censure underneath a Domestic Violence Act was filed by Sanjay Aggarwal, hermit of Ritu Aggarwal. Ritu was married to Amit Aggarwal in October, 2003. A child was innate to them in October, 2004. Allegations were leveled that there was direct of a automobile before marriage. The family gave Rs. 2 lacs in cash, bullion equipment besides electrical goods. There was a direct even during a time of birth of a child, a mother was beaten adult and tortured and kicked out of a chateau finally in June, 2006. The Istridhan and a dowry articles were defended by a accused. A explain for maintenance, remuneration as indemnification chateau in a common chateau reason was made.

3. The petitioners are a husband, father-in-law and a brother-in-law. It was a second matrimony for postulant No. 1. It is claimed that Ritu left a matrimonial home in June, 2006 to attend dual functions and took all a trinket with her to wear on a arise during Ludhiana on 2.2.2006. It was pleaded that postulant No. 1 and his kin had done a series of calls nonetheless she refused to lapse compartment postulant No. 1 distant from his family. She was insisting for a apart chateau or send of some skill in her name. The petitioners had pleaded that postulant No. 1 got a FIR purebred opposite respondent No. 2 on 10.9.2006. A week after Ritu got a box purebred underneath Sections 498A and 406, IPC opposite postulant No. 1, his kin and other relatives. The FIR opposite a sister and hermit in law was quashed in Oct 2008. The FIR qua a father and his kin was quashed on a belligerent that no partial of a means of movement had arisen during Batala however, a Apex Court eliminated a hearing to Delhi. It was pleaded that postulant No. 1 had filed a divorce petition and Ritu unsuccessful to seem nonetheless she had been served and ex parte direct of divorce was passed. An focus for environment aside a ex parte direct was filed after 14 months nonetheless it was discharged for non-prosecution on 18.7.2011. Another focus was filed for a restoration, that was pending. It was pleaded that given a divorce had been granted, there was no domestic charge and a censure underneath a Domestic Violence Act was not maintainable. It was pleaded that so distant as a upkeep was concerned, a petition underneath Section 125, Cr.P.C. had been filed and upkeep was postulated by a Magistrate opposite that an seductiveness had been filed, that was tentative and upkeep adult to October, 2014 had been paid and all a articles had been recovered by a police.

4. Respondent No. 1 filed a respond and it was pleaded that a emanate of maintainability of a censure had been lifted by a postulant before a Trial Court and it was tentative and a postulant could not lift a same emanate before this Court. It was pleaded that respondent No. 1 had filed a censure on 1.12.2007, that was cold on 27.3.2009 as a complainant wished to repel a censure and record a uninformed one and a matter in that courtesy was done on 27.3.2009. It was pleaded that an ex parte direct of divorce was upheld and no use was effected and an focus for environment aside a direct was filed and was pending. It was pleaded that a direct had not achieved finality and a ex parte direct did not rinse divided a before incidents of domestic assault and respondent No. 2 was pushed out of a chateau in Jun 2006. It was pleaded that nonetheless postulant No. 3 was a hermit in law of postulant No. 1 and married before to a matrimony of respondent No. 2 nonetheless he was actively endangered in a acts of domestic violence. It was pleaded that an depressed chairman or a Protection Officer or any other chairman on seductiveness of a depressed chairman could benefaction an focus to a Magistrate underneath Section 12 of a Domestic Violence Act and he had filed a censure on seductiveness of his sister. It was certified that a censure was filed and was cold and no autocracy was postulated to record again nonetheless he had indifferent his right to record again.

I have listened a Counsel of both a sides.

5. The Counsel for a petitioners had contended that a censure underneath a Domestic Violence Act had been filed approximately after 3 years from a date a mother had left a matrimonial home and a censure had been filed by a brother. It was urged that during her sum stay in Delhi, no censure was given to a military nonetheless a military hire was during a walking distance. It was urged that a hermit filed a censure and withdrew it and nonetheless disclosing that fact another censure was filed. It was urged that in perspective of a supplies contained in D.V. Act, a censure can be filed usually within a duration of one year of a occurrence and given there was a divorce, a censure was not maintainable. It was urged that a complainant had also named a hermit in law who had been married 5 years before to a matrimony and he did not have a domestic charge and a censure was probable to be discharged qua him. It was urged that a FIR was got purebred opposite a postulant and his family members and a High Court had quashed a FIR partly, opposite a sister and hermit in law in 2008 and a FIR has been quashed opposite a husband. It was urged that a mother had left a matrimonial home before a Act came into existence and she was vital in Batala and no domestic assault could be committed by them as they had never lived together. It was urged that so distant as a upkeep was concerned, a petition underneath Section 125, Cr.P.C. had been filed in a Courts during Batala and a Court had postulated upkeep to a mother and a child and there are dual together jurisdictions and a mother had already availed a pill of filing a petition underneath Section 125, Cr.P.C. and after a petition underneath Section 127, Cr.P.C. was filed seeking encouragement of a halt maintenance. It was pleaded that a mother was an income-tax assessee and she had a D-Mat comment and she hold shares in a D-Mat comment and was doing business and had perceived Rs. 2,49,000 from a initial father as full and final settlement.

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6. The acquiescence on a other palm was that a censure was filed progressing where a matter was given and autocracy was sought for instituting another censure and therefore, second censure was filed after few days. It was urged that a hermit had filed a censure and there is no reduction and any chairman can record a censure on seductiveness of a depressed person. It was urged that a doubt of reduction did not arise as a mother was seeking for chateau and upkeep that was a repeated means of action. It was urged that an focus has been filed before a Court subsequent on a identical lines and a petitioners could not have filed a petition underneath Section 482, Cr.P.C.

7. A examination of a petition would uncover that in a title, a postulant has sought quashing of Annexure P-3, that is a complaint, that had already been withdrawn. It appears that a improvement done with a ink was erring differently an conflict would have been taken by respondent. The postulant is seeking quashing of Annexure P-1.

8. Few contribution need to be beheld first. Sanjay Aggarwal, hermit of Ritu filed a censure underneath a Domestic Violence Act some time in Nov 2007 that was subsequently cold vide Annexure P-4. Though a complainant had sought autocracy to record a uninformed censure nonetheless a sequence antiquated 27.3.2009 (Annexure P-5) shows that no such autocracy was granted. The father had filed a petition seeking retraction of a marriage. Service was effected on a respondent and she unsuccessful to seem and was proceeded ex parte and ex parte direct of divorce was upheld on 16.5.2008. The censure underneath a D.V. Act was filed opposite a husband, his father and brother-in-law. The brother-in-law admittedly is staying separately, nonetheless in a same city. Ex parte direct of divorce has not been set aside compartment date.

9. Two critical issues arise in a case. Whether a mother can record a censure underneath a Domestic Violence Act when a charge has come to an finish with a direct of divorce and either a petition underneath Section 482, Cr.P.C. would be maintainable.

10. Coming to a emanate of maintainability, a acquiescence on seductiveness of a postulant was that a fundamental powers underneath Section 482, Cr.P.C. can be exercised either it is found that a allegations are illogical or where a censure can't ensue afterwards a parties can't be left to bear a anguish of a rapist trial.

11. The acquiescence of a other side was that an focus had been filed before a Trial Court and a Trial Court was nonetheless to inspect a emanate and a petition underneath Section 482, Cr. P.C. would not be maintainable.

12. The Apex Court, in a box of Kailash Chandra Agarwal Anr. v. State of U.P. Ors., III (2014) DMC 595 (SC)=VIII (2014) SLT 561=AIR 2014 SCW 6152, beheld that a censure did not charge specific purpose to a kin of a father and it was quashed, by referring to a visualisation in a box of Kans Raj v. State of Punjab Ors., we (2000) DMC 645 (SC)=IV (2000) SLT 162=(2000) 5 SCC 207. Which reads thus:

“5……..A bent has, however, grown for roping in all family of a in-laws of a defunct wives in a matters of dowry deaths 14 which, if not discouraged, is expected to impact a box of a charge even opposite a genuine culprits. In their over unrestrained and stress to find self-assurance for limit people, a kin of a defunct have been found to be creation efforts for involving other family that eventually break a box of a charge even opposite a genuine indicted as appears to have happened in a benefaction case.”

13. This doubt has been examined in a series cases. The Apex Court in Ashish Dixit and Others v. State of U.P. and Another, 2013 (2) RCR (Cr.) 340=RAJ 318 had quashed a record underneath a Domestic Violence Act in a petition filed underneath Section 482, Cr. P.C. This High Court in Jasvir Kaur and Another v. Manpreet Kaur, in CRM No. M-29792 of 2011 authorised a petition filed underneath Section 482, Cr. P.C. seeking quashing of a censure filed underneath a Domestic Violence Act. The Karnataka High Court in Smt. Nagarathnamma v. M.S. Vanithashree, in Cr. P. No. 5246/2010 had authorised a petition filed underneath Section 482, Cr.P.C. Thus a censure can be quashed in a petition filed underneath Section 482, Cr.P.C. if it is found that a censure was an abuse of a routine of a Court or has filed usually with a perspective to harass a other side.

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14. The censure had filed by a brother. An conflict was taken that no management had been given to a complainant to board a complaint. It is required to notice Section 12 of a Domestic Violence Act. It reads as under:

Section 12 in The Protection of Women from Domestic Violence Act, 2005

12. Application to Magistrate—

(1) An depressed chairman or a Protection Officer or any other chairman on seductiveness of a depressed chairman might benefaction an focus to a Magistrate seeking one or some-more reliefs underneath this Act: Provided that before flitting any sequence on such application, a Magistrate shall take into care any domestic occurrence news perceived by him from a Protection Officer or a use provider… …………………………………….

A examination of a above would uncover that a censure can be filed by an depressed chairman or a Protection Officer or any other chairman on seductiveness of a depressed chairman and there is no bar and a other chairman on seductiveness of a depressed chairman can record a complaint.

15. A examination of a record reveals that a censure had been filed that was cold and autocracy was taken to board a uninformed censure nonetheless no autocracy was postulated and a fact that progressing a censure was filed and was withdrawn, was not mentioned in Annexure P-1.

16. The subsequent doubt is does a depressed chairman even meant a ‘divorced woman’. Answer to a doubt lies in a clarification supposing in Section 2(a), it defines a depressed chairman as under:

“2 (a) “aggrieved person” means any lady who is, or has been, in a domestic charge with a respondent an who alleges to have been subjected to any act of domestic assault by a respondent.”

The use of a word is any lady ‘who is’ or ‘has been’. Both a expressions are in a benefaction tense. The legislature has not used a word ‘who was’ or ‘had been’. This means a domestic charge has to be in a benefaction and not in a past. The clarification requires that on a date Act come into force, a lady should be in domestic relationship.

17. The clarification of domestic charge given underneath Section 2(f) serve supports a perspective that a requirement underneath D.V. Act is that a charge that is a basement of invoking a office underneath D.V. Act has to be in a present. Section 2(f) of a D.V. Act reads as under:

(f) “domestic relationship” means a charge between dual persons who live or have, during any indicate of time, lived together in a common household, when they are associated by consanguinity, marriage, or by a charge in a inlet of marriage, adoption or are family members vital together as a corner family;

18. The clarification clearly speaks of a domestic charge between dual persons who live or have during any indicate of time lived together in a common domicile and are associated by matrimony or by a charge in a inlet of marriage. This clarification also speaks about a existence of a charge by matrimony or a charge in a inlet of matrimony during a time. The countenance used is ‘are related’ by marriage. The countenance by a Legislature is not ‘were related’. From a unclothed reading of these dual supplies it is apparent that a goal of a legislature is to strengthen those women who are vital in a domestic relationship.

19. The row of a respondent was that when a mother can pierce a office of a Court underneath Section 125, Cr.P.C., zero prevents her from invoking a office of a Court underneath D.V. Act. It was serve contended that a countenance used underneath Section 2(f) ‘at any indicate of time lived together’ also includes a divorced wife.

20. This emanate has been examined in II (2010) DMC 202=III (2010) DLT (CRL.) 360=171 (2010) DLT 67 patrician Harbans Lal Malik v. Payal Malik, wherein it had been held:

“11. It is apparent that in sequence to make a chairman as respondent in a petition underneath Section 12, there contingency exist a domestic charge between a respondent and a depressed person. If there is no domestic charge between a depressed chairman and a respondent, a Court of MM can't pass an sequence opposite such a chairman underneath a Act. Domestic charge is tangible underneath Section 2 (f) of a Act and is as under:

“domestic relationship” means a charge between dual persons who live or have, during any indicate of time, lived together in a common household, when they are associated by consanguinity, marriage, or by a charge in a inlet of marriage, adoption or are family members vital together as a corner family;

21. It is apparent that domestic charge arises between a dual persons, who have lived together in a common domicile and when they are associated by consanguinity, matrimony or by a charge in a inlet of marriage, adoption or are family members vital together as a corner family. The clarification speaks of vital together during any indicate of time however it does not pronounce of carrying propinquity during any indicate of time. Thus, if a domestic charge continued and if a parties have lived together during any indicate of time in a common household, a chairman can be a respondent nonetheless if a charge does not continue and a charge had been in a past and is not in a present, a chairman can't be done respondent on a belligerent of a past relationship. The domestic charge between a depressed chairman and a respondent contingency be benefaction and alive during a time when a censure underneath Domestic Violence Act is filed.

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22. It has been hold in Harbans Lal Malik (supra), that clarification of ‘wife’ as accessible in Section 125, Cr.P.C. can't be joined into Domestic Violence Act. Section 125 privately provides that a mother means ‘divorced wife’. Explanation underneath Section 125(1)(b) reads as under:

(b) “wife” includes a lady who has been divorced by, or has performed a divorce from, her father and has not remarried;

The Court had serve celebrated as under:

19. I, also cruise that a clarification of “wife” as accessible underneath Section 125, Cr.P.C. could not be alien into Domestic Violence Act. The Legislature was good wakeful of Section 125, Cr.P.C. and if Legislature intended, it would have tangible “wife” as in Section 125, Cr.P.C. in Domestic Violence Act as well. The purpose and intent of Domestic Violence and sustenance underneath Section 125, Cr.P.C. is opposite While Domestic Violence Act has been enacted by a Parliament to forestall acts of domestic assault on women vital in a common household. Section 125 of Cr.P.C. is to forestall itinerancy where mother is left high and dry nonetheless maintenance. Law gives a right to explain upkeep underneath Civil Law as good as Section 125, Cr.P.C. even to a divorced wife, nonetheless an act of domestic assault can't be committed on a divorced wife, who is not vital with her father or family and is giveaway to live wherever she wants. She has a right to explain upkeep and make other rights as per law. She has a right to explain control of children as per law nonetheless rejection of these rights do not volume to domestic violence…. …. ….

20. This clarification pre-supposes that a lady is vital with a chairman who committed assault and domestic charge is not upheld buried or severed. This does not pronounce of past assault that a lady suffered before extend of divorce.”

23. It is apparent that a supplies underneath a D.V. Act can be invoked usually when a domestic charge is in existence. Where a domestic charge ceases, a supplies underneath a D.V. Act can't be invoked.

24. In a benefaction case, a direct of divorce had been passed. Though it was an ex parte direct nonetheless it has not been set aside by a efficient Court. Once a domestic charge came to an finish after a direct of divorce a censure underneath a Domestic Violence Act could not have been filed. It is required to impute to a observations done in Inderjit Singh Grewal’s box (supra):

“24. Submissions done by Shri Ranjit Kumar on a emanate of limitation, in perspective of a supplies of Section 468, Cr.P.C., that a censure could be filed usually within a duration of one year from a date of a occurrence seem to be preponderous in perspective of a supplies of Sections 28 and 32 of a Act 2005 review with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 that make a supplies of Cr.P.C. germane and mount fortified by a judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762 and Noida Entrepreneurs Association v. Noida Ors., (2011) 6 SCC 508.

25. In perspective of a above, we are of a deliberate opinion that needing a Magistrate to ensue serve with a censure underneath a supplies of a Act 2005 is not concordant and in accord with a direct of divorce that still subsists and thus, a routine amounts to abuse of a routine of a Court. Undoubtedly, for quashing a complaint, a Court has to take a essence on a face value and in box a same discloses an offence, a Court generally does not meddle with a same. However, in a backdrop of a significant pattern of this case, needing a Court to ensue with a censure would be caricature of justice. Thus, seductiveness of probity warrants quashing of a same.”

25. A FIR had been lodged by a mother opposite a father and other relatives. The FIR has been quashed qua a relatives. The FIR qua a father was also quashed as a Court did not have a office however a hearing was eliminated to Delhi from Batala by a Apex Court. The depressed chairman had also filed a petition underneath Section 125, Cr.P.C. and halt upkeep has been granted.

26. Considering a above, it is hold that a benefaction censure is an abuse of a routine of a Court. The domestic charge had come to an end. The complainant had impleaded kin who were not vital in a common chateau and needing a Magistrate to ensue with a censure would be an abuse of a routine of law. The censure and a record therein are quashed.

27. Before parting, it might be simplified that a depressed chairman would be entitled to continue with other cases in suitability with law nonetheless being shabby with a observations done herein. The pronounced regard has been done usually to confirm a petition filed underneath Section 482, Cr.P.C.

The petition is allowed.

 

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