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Vishnu Verma And Others vs State Of U.P. And Another on 31 January, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgement reserved.

Case :- APPLICATION U/S 482 No. – 7996 of 2010

Applicant :- Vishnu Verma And Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Pankaj Dwivedi

Counsel for Opposite Party :- Govt. Advocate,Aklank Jain

Hon’ble Saurabh Shyam Shamshery,J.

None appears to press the present application even in the revised call. Counsel for the respondent no.2 also remained absent. Learned Additional Government Advocate is present for the State.

The application is of the year 2010, and the issue involved in the present case is on law point, therefore, I proceed to decide the application as keeping the application pending would be against the interest of justice.

I have heard the Additional Government Advocate for the State and perused the record.

Applicants have filed the instant application under Section 482 Cr.P.C. for quashing the proceedings of Complaint Case No.712 of 2008 under Section 12 of The Protection of Women from Domestic Violence Act, 2005, P.S. Tajganj,District-Agra.

From the records it reveals that applicant no.1 and opposite party no.2 were married on 14.2.2004. In marriage adequate gifts were given by the bride side. There were dispute among the husband and wife. It has been alleged that on 17.8.2005 the opposite party no.2 was forced to leave her matrimonial house and thereafter she was not allowed to come back. On the other hand, applicant No.1 alleged that she left on her own will and never

returned.

Applicant no.1 had filed Case No.295 of 2006 under Section 9 of the Hindu Marriage Act for restitution of his conjugal rights before Family Court, Agra on 12.4.2006.

The Opposite Party No.2 lodged F.I.R. against the applicants on 20.5.2006 under Sections 498A, 323 and 506 I.P.C. at Police Station-Tajganj, District-Agra.

The Opposite Party No.2 filed Complaint Case No.712 of 2008 under Section 12 of The Protection of Women from Domestic Violence Act,2005, (hereinafter called the “Act of 2005”) before the Learned Judicial Magistrate IInd, Agra on 17.7.2008 seeking following reliefs.

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The learned Trial Court vide order dated 17.7.2008, issued notices only to male persons and not against females of the family. Report was also called from the Probation Officer.

Probation Officer, after investigation submitted his report on 9.3.2009 where offences under Act of 2005 were found to be true.

Meanwhile, opposite party challenged the order dated 17.7.2008 whereby notices were issued only to male persons and females of the family were left out, in Criminal Revision No.236 of 2008, before the learned Additional Sessions Judge (Room No.4) Agra. The said revision was allowed vide order dated 20.10.2008 and directed that proceedings shall be under taken even against the female members also.

Consequently, notices were issued against the female applicants also on 26.6.2009.

All the applicants have approached this Court under Section 482 Cr.P.C.

The applicants have raised following grounds in the application for quashing of entire proceedings under Section 12 of the Act 2005.

“That all the incident mentioned in the complaint is alleged before the enforcement of the Act i.e. before 2006 whereas the Act came into force on 26.10.2006, and no such incident mentioned in the complaint after enforcement of the Act.” and,

“The real story of the case is this, that the respondent no.2 who was married to the applicant no.1 and the marriage was solemnized without any dowry and respondent no.2 are living with her husbands peacefully but due to heavy interference of her maika she always misguided by her parents and she went back to her maika and not came back. The applicants are neither previously convicted nor involved in any other case except this case they have no criminal history or bad antecedents. There is no direct and indirect evidence against the applicants in support of the prosecution story. It is relevant to mention here that this is a case of no injury.”

This Court has passed the following order on 25.3.2010:

“Heard learned counsel for the applicants and learned A.G.A. for the State.

The present petition under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No. 712 of 2008, under Sections 12 Protection of Women from Domestic Violence Act, Police Station Tajganj, District Agra, Judicial Magistrate, IInd, Court No.40, District Agra.

It is contended by learned counsel for the applicants that before the enforcement of Protection of Women from Domestic Violence Act, 2005, the opposite party no.2 and applicant no.1started living separately. It is thus, contended that the said Act would not be applicable in the present case.

Issue notice to opposite party no.2 returnable within a period of four weeks. Steps be taken within a week.

Learned A.G.A. prays for and is granted four weeks time for filing counter affidavit. Opposite party no.2 may also file counter affidavit within the same period. As prayed by learned counsel for the applicants, two weeks’ thereafter, is granted for filing rejoinder affidavit.

List immediately after expiry of the aforesaid period before appropriate Court.

Till the next date of listing, no coercive action shall be taken against the applicants in the aforesaid case.”

The main ground raised by the applicants is that the Act of 2005 is not applicable in the present case as all the alleged incidents are of the year 2004 to 2005 i.e. before the Act of 2005 came into force.

This issue has already been settled by the Hon’ble Supreme Court in the matter of V.D.Bhanot Vs. Savita Bhanot, (2012) 3 SCC 183, wherein it has been held that:

“Para 7. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26-10-2006.”

“Para 8. After considering the constitutional safeguards under Article 21 of the Constitution, vis-a-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the Statement of Objects and Reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force.”

“Para 12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.”

In the light of abovementioned judgment, the complaint filed by opposite party under Section 12 of the Act, 2005 is maintainable even the alleged acts of domestic violence had been committed prior to coming into force of the Act, 2005.

In view of the above discussions, the grounds raised by the applicants in the application are not tenable and hence rejected.

Accordingly, the application under Section 482 Cr.P.C. is dismissed.

Interim order, if any, stands vacated.

Order Date :- 31.1.2019

SB

 

 

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