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Vipinderpal Singh Sidhu And … vs Jashanjeet Kaur on 2 August, 2018

CRM-M-39768 of 2016 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRM-M-39768-2016 (OM)
Date of Decision: 02.08.2018

Vipinder Pal Singh Sidhu and others

….Petitioners
Versus

Jashanjeet Kaur
….Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Raman Mahajan, Advocate
for the petitioner(s).

Mr. Ashwani Sharma, Advocate
for the respondent.

****

ANITA CHAUDHRY, J

The instant petition has been filed under Section 482 Cr.P.C.

for quashing the complaint filed under the Domestic Violence Act.

Petitioner No.1 is the husband, petitioners No.2 and 3 are father-in-law and

mother-in-law while petitioner No.4 is the sister-in-law of the respondent.

In brief the facts pleaded by the petitioners; respondent was

married to petitioner No.1 on 19.11.2005. A daughter was born to them in

November, 2008. The respondent and petitioner No.1, after marriage, stayed

initially in a rented accommodation in Mohali and in May, 2006 they went

to the parental house in Village Bidowali for two weeks. A close relative

had died in an accident and they attended the bhog ceremony and thereafter

the respondent did not go to the village. The petitioners claim that

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petitioner No.1 and the respondent stayed at Mohali and respondent started

working with Healthyway Immigration Services Limited, Sector-42,

Chandigarh and in June, 2007 the couple shifted to Noida and the

respondent started working in a School in Noida. The couple shifted to

Mohali in August, 2009. It was pleaded that petitioner No.1 was finding it

difficult to concentrate on his work as during their stay in Delhi, the

respondent had been attending late night parties with her friends, returning

home late drunk and she stopped taking care of the daughter. On return, the

respondent opened her own boutique by the name of Temble/Tia Design

Studio in September/October 2010 at parental house. It was pleaded that

due to the conduct of the respondent, life of petitioner No.1 became hell and

he moved out of the rented accommodation i.e. House No.2009, First Floor,

Phase 10, Mohali w.e.f. 11.05.2011. It was claimed that the respondent also

locked the house and moved along with the daughter and started living in

her parental home in House No.2047, Phase-10, Mohali. Petitioner No.1

filed a divorce petition in March, 2012 which was dismissed in 2014. FAO

was pending in the High Court. It was pleaded that a complaint was filed

and notice was issued by the Magistrate without calling for the report of the

protection officer and petitioner No.1 had filed his reply detailing the

factual position on 19.07.2013 and even at that time, the report from the

CDPO had not been received. The petitioners had appended the

photographs, copy of the divorce petition and documents relating to the Tia

Design Studio set up by the respondent. It was pleaded that the respondent

had filed a complaint against the petitioners and after recording preliminary

evidence, petitioners were summoned. It was pleaded that petitioners No.2,

3 and 4 had filed an application dropping the proceedings against them and

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the respondent had filed reply to the application. Meanwhile, CDPO

appeared before the Judicial Magistrate and sought time to file report and

the case was adjourned and the CDPO had filed the reply but the respondent

failed to respond to the application filed by them and the case was

adjourned time and again and the Magistrate allowed maintenance of

Rs.25,000/- without deciding the application. It was pleaded that the Court

below did not consider the fact that the respondent was not in the domestic

relationship with the petitioners and the respondent had made false

allegations accusing petitioner No.1 forcing her to watch pornography or

forcing her to get money from her parents while they were staying at Noida.

It was pleaded that the respondent concealed the fact that she was admitted

in Max Hospital for one day on account of food poising and not on account

of overdose of sedatives. It was pleaded that the rented accommodation was

kept locked and the respondent removed all her belongings and shifted to

her parent’s house and the Court did not appreciate the fact that they were

not in a domestic relationship with either of the petitioners. It was pleaded

that respondent No.1 had got married in February, 2004. It was pleaded that

the general and vague allegations had been levelled. It was pleaded that

petitioner No.1 had been paying the rent though he had vacated the house in

May 2011 and the respondent had moved to her parent’s house. It was

pleaded that an eviction petition was filed by the owner which was allowed

and the key of the premises was handed over by the father of the respondent.

It was pleaded that petitioner No.1 was continuously paying maintenance.

In the reply submitted by the respondent, it was admitted that

initially the couple shifted to a rented accommodation. It was pleaded that

couple shifted to the parental home in May, 2006 as petitioner No.1 was a

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lawyer and wanted to start his practice in District Court, Bathinda but after

sometime they returned to Mohali, It was admitted that she had started

working with Healthyway Immigration Services Limited, Sector-42,

Chandigarh and petitioner No.1 started his practice in the High Court. It was

admitted that her close relative had died in May 2006. It was admitted that

in June, 2007 they had shifted to Noida and it was admitted that they shifted

back to Mohali in 2009. It was pleaded that divorce petition was dismissed

and the FAO was pending. It was further averred that petitioner No.1 had

deserted the respondent and his daughter and was not maintaining them and

the order of eviction was passed in the eviction petition in collusion with the

landlord. It was pleaded that she used to occasionally visit her parent’s home

as both of them were old. It was claimed that she gave a complaint to the

police but no action was taken on the account of the influence exercised by

the petitioner’s family who were well connected. It was pleaded that notice

could be issued in the Domestic Violence complaint without waiting for the

report of the CDPO. It was pleaded that the Tia Design Studio was

maintained by her mother and not by her and that business was closed down

in 2012. It was admitted that maintenance of Rs.25,000/- was allowed on

09.12.2013. It was pleaded that she had vacated the rented accommodation

and was presently residing in House No.1125, Sector-37B, Chandigarh on

monthly rent and she had filed an application in the complaint for recovery

of the rent. It was pleaded that she was still in domestic relationship with all

the petitioners and the marriage is subsisting. It was pleaded that it was not

necessary that the parties live together in a shared household and it is

sufficient if they had lived together at any point of time in the past. It was

claimed that false allegations have been levelled that she was admitted in

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Max Hospital on account of food poising. It was pleaded that the order of

maintenance was challenged however the appeal was dismissed with

modification and it was ordered that petitioner No.1 alone would be

responsible for payment of maintenance. It is pleaded that in the complaint

had given incidents of domestic violence committed by the petitioners in

Para 5(a) to (h) the respondent claimed that petitioner No.1 humiliated,

harassed and maltreated her. It was pleaded that the child was not medically

fit as was suffering from bone dis-function and was studying in Yadvindra

Public School, Mohali.

I have heard both the sides.

The submission on behalf of the petitioners is that the couple

was married in 2005 and they live together in a rented accommodation and

had never stayed with the in-laws. It was urged that a complaint was filed

which was sent to the police under Section 156 Cr.P.C. and the trial had

ended in acquittal and the same incidents have been levelled in the

complaint filed under the Domestic Violence Act. It was urged that the trial

Court had issued notice to all the respondents in the complaint case without

even verifying whether they were living in the shared household or that they

have ever stayed together. It was urged that the complaint had been filed for

harassment of the husband and his family members which included the

married sister-in-law of the complainant. It was urged that petitioner No.4

was married in 2004 while petitioner No.1 was married to the complainant

in 2005. It was contended that petitioners No.2 and 3 are the parents of

petitioner No.1 and they were living in a different house and had never lived

with the husband. It was urged that parents of petitioner No.1 and the sister-

in-law had filed application before the Court below seeking dismissal of the

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complaint as against them but the trial Court kept on adjourning the matter

and did not hear arguments on their application and decided the application

filed for interim maintenance. It was urged that the complaint under the

Domestic Violence Act would be maintainable if there was a domestic

relationship which is not in this case and the filing of the complaint is abuse

of the process of the Court. Reliance was placed upon ‘Sanjay Hindwan Vs.

State Information Commission and others, 2016(3) RCR (Civil).’

On the other hand, the submission on behalf of the respondent

is that the allegations against all the petitioners and complaint under the

Domestic Violence Act would be maintainable even where the FIR or

complaint had been filed under Section 498-A IPC as relief claimed are

different and this issue had been examined in ‘Geeta Kapoor and another

Vs. State of Haryana 2014(1) RCR(Criminal) 942’. It was urged that a wife

can claim maintenance from the husband even where she has filed a petition

under Section 125 Cr.P.C. as held in Criminal Revision No.783 of 2017

titled as ‘Sanjay Gulati Vs. Harsh Lata’ decided by this Court on

26.04.2018. It was contended that the Magistrate had allowed the

maintenance and acquittal in the complaint under the Indian Penal Code

would not have any effect as they are claiming monetary relief and

residence order and it is for the trial Court to examine these questions.

It is not disputed that the parties were married in 2005 and they

have two daughters which were born in 2009 and 2012. A complaint was

given to the police in March, 2013 which led to registration of the FIR and

after the complete trial, acquittal was recorded.

It is not in dispute that the couple lived in the rented

accommodation in Mohali. The complainant had alleged that she was

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subjected to continuous domestic violence and she had suffered mental

trauma on account of his unnatural behaviour. She made allegations of

physical assault in 2008 and had referred to miscarriage which occurred in

2008. It is not disputed that the husband had left the rented accommodation

in May 2011 while the complainant continued to live in those premises. The

allegations are that the husband stopped paying rent and proceedings for

eviction were initiated and a suit for recovery was filed by the landlord

which was allowed in February, 2018. A copy of the judgment dated

07.02.2018 was placed on record by the respondent. Allegations in the

complaint so far as the relatives of the husband are concerned are that

Istridhan was pawned by them. The complainant had asserted her right to

live in the shared household. It is not in dispute that a divorce petition had

been filed by the husband.

The relief claimed by the petitioner primarily was that the

respondent should not give any threat, respondent should be ordered to pay

the rent, electricity charges of the rented accommodation, the respondent

should be restrained from entering the rented accommodation and for

monetary relief.

The above would show that the main relief sought for are

against the husband. The petitioners have placed on record material to show

that the parents had disowned their son vide Annexure P-8 and it appears

from the pleadings that the respondent had never stayed with the in-laws nor

their house was the matrimonial home. The parents were living separately in

a different house and that was not the shared household. The sister-in-law is

married and living separately as is evident from the memo of parties given

in the complaint. Their addresses are mentioned. There is no plea by the

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complainant that all of them have lived together in the same house after

marriage. It appears that the complainant had impleaded the parents and the

sister-in-law with a view to harass them or to pressurize the husband to give

in and it is an abuse of the process of the Court.

Petitioners No.2 to 4 had rightly pleaded that the complaint

against them was not maintainable as it did not have necessary ingredients

on maintaining a petition under the Domestic Violence Act as there was no

relationship as defined in the Act. The purpose of the Act is to provide relief

to the aggrieved person against domestic violence and domestic violence

can take place where some or one of them had lived together in a shared

household. Violence committed by a person while living in the shared

household would only constitute domestic violence. If a threat is given or a

demand is made through any other electronic device then it would be an

offence under the Indian Penal Code and would not amount to domestic

violence. Similarly, the economic abuse and physical abuse can take place

when the persons are living together. If the persons are living far away such

abuses would not covered under the Domestic Violence Act.

A perusal of the complaint would show that petitioners No.2 to

4 were living in different houses and were not living in a shared household

nor I find that there are no allegations against them which need to be tried.

The allegations are vague as against them. The complaint against them is

nothing but a misuse of the process of the Court. The Magistrate without

examining whether the domestic relationship existed or whether there was a

shared household, issued notice without looking into the provisions of the

Act. Therefore the complaint and the notice issued to these petitioners i.e.

petitioners No.2 to 4 are quashed.

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So far as the petition filed by the husband is concerned, the wife is

seeking monetary relief, a right of residence. It is true that she was claiming

residence in a rented accommodation but the premises were vacated as there

was litigation at the behest of the landlord but those are matters which the

trial Court can only examine after considering the reply and examining the

documents which the parties may submit.

So far as the maintenance is concerned, no doubt the wife can

file and claim under the different Acts but ultimately the Court while

awarding maintenance subsequently has to consider and take into account

the maintenance which has already been awarded under any other Act.

There are certain conditions which the wife would fulfill when she can get

an order under Section 20 of the Act and those have to be proved. It is for

the trial Court to examine as to whether the complainant was able to prove

any act of violence at the hands of the husband.

As a consequence to the above, the petition is partly allowed

and the complaint and summoning order qua petitioners No.2 to 4 is

quashed. Petition qua petitioner No.1 is dismissed.

02 August, 2018 (ANITA CHAUDHRY)
ps-I JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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