Meenakshi Jatav V. Seema Sehar

Court:   HIGH COURT OF MADHYA PRADESH

Bench:  

Meenakshi Jatav V. Seema Sehar on 28 January, 2013

Law Point:

JUDGEMENT

This petition under Section 482 of Cr.P.C is preferred by the petitioners for setting-aside the order dated 17.07.2012 passed by J.M.F.C, Ambah, District Morena in Criminal Case No. 109/12 whereby, the learned Magistrate had issued notices to the petitioners on an application filed by the respondent No. 1 under Section 12 of the Protection of Woman from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’) after registering the application.

2. Facts of the case, in brief, are that the respondent No. 1, Dr. Seema Sehar got married with one Rahul Sehar on 27.11.2010 as per Hindu rites at Guna. Rahul Sehar and his family members started harassing her by demanding Rs. 4 lacs and one four wheeler from her parents. Her father gave Rs. 20,000/-, but could not fulfill their greed. Thus, there was matrimonial discord between respondent No. 1 and her husband, therefore, respondent No. 1 lodged a complaint against her husband and his family members on 24.6.12 and filed an application dated 17.7.12 under Section 12 of the Act against petitioners and her husband, Rahul Sehar as well as parents-in-law, Hari Ram and Smt. Rajni in the Court of J.M.F.C, Ambah, District Morena seeking relief under Sections 18, 19, 20, 22 & 23 of the Act. Relevant paras of the application reads as under:-

3. Learned Magistrate after registering the application, issued notices to the petitioners and others vide order dated 17.07.2012, hence, this petition has been filed by the petitioners for dropping the proceedings against them.

4. Learned counsel for the petitioners contended that petitioner Nos. 1 and 3 are Nanands and petitioners No. 2 & 4 are Nandois of the respondent No. 1. The marriage of the petitioners No. 1 & 3 has been solemnized much prior (i.e 15 years) before the marriage of respondent No. 1 and they are working and residing separately in their matrimonial house at Shivpuri and Bhopal, respectively. Only for creating pressure against her husband an application under Section 12 of the Act has been filed on false grounds against the petitioners. Petitioners have no concern with the alleged offence and activities. On 24.6.2012, respondent No. 1 has filed a complaint against her husband and parents-in-law whereupon a case under Section 498-A/34 of IPC has been registered against them and again on 28.6.2012 she made another complaint before the police, Porsa, District Morena against her husband, but no allegation has been made by her in the aforesaid complaints against the petitioners. It is further contended that the relief sought for in the application under Sections 18, 19, 20, 22 & 23 of the Act cannot be granted to the respondent No. 1 against the petitioners, therefore, the application is not maintainable against the petitioners. On these grounds, learned counsel prayed for quashing the criminal proceedings initiated against the petitioners. He has placed reliance on the following decisions:-

(i) S.R Batra v. Taruna Batra, 2007 Cr.L.R (SC) 113; and

(ii) Tehmina Qureshi… v. Shazia Qureshi…., 2010 (1) MPHT 133;

5. Learned counsel for the respondents have argued in support of the impugned order and prayed for dismissal of the petition.

6. Learned counsel for the respondent No. 1.complainant further submits that petitioners are harassing the respondent No. 1 and committed domestic violence against her, therefore, she has submitted an application against them. After considering the report received from the Protection Officer, the JMFC has taken cognizance against the accused persons including the petitioners. The petition filed under Section 482 of Cr.P.C by the petitioners is mis-conceived and no relief can be granted to them. He has placed reliance on the following decisions:-

(i) Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, (2011) 3 SCC 650;

(ii) Samira Khanum v. Mohd. Asfar Towheed, (2009) 4 SCC 49;

(iii) Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660;

(iv) Ajay Kant v. Smt. Alka Sharma, 2007 (4) MPHT 62;

7. After having heard, learned counsel for the parties at length, I have carefully perused the material available on record.

8. It is an admitted fact that petitioner No. 1, Smt. Meenakshi Jatav & petitioner No. 3, Smt. Reenuka Pawar are nanads (sisters of husband) of the respondent No. 1.complainant. Petitioner No. 2, Jitendra Jatav is the husband of petitioner No. 1, Smt. Meenakshi Jatav and petitioner No. 4, Satish Pawar is husband of petitioner No. 3, Smt. Reenuka Pawar. Petitioner No. 1 is living with her husband at her matrimonial home at Shivpuri while petitioner No. 3 is living with her husband at her matrimonial home at Bhopal.

9. It is apparent from the record that the marriage of the petitioners No. 1 and 3 took place much prior to the marriage of respondent No. 1. Petitioners No. 1 & 2 are in Government service and serving in the District Shivpuri since 2002, while petitioner No. 3 is working as teacher in a School in the District Bhopal since 2003, and petitioner No. 4, Satish Pawar is employed in private company since 2006 at Bhopal. Respondent No. 1 is working as teacher in a Government School and residing at Porsa, District Morena.

10. Respondent No. 1 is seeking relief under Section 19 of the Act for restraining the petitioners from dispossessing her from the shared household situated at Guna and for returning back her stridhan. She is also seeking monetary reliefs under Section 20 of the Act and compensation and damages under Section 22 of the Act against the petitioners. The respondent No. 1 is working in Government School and not residing at Guna but residing at Porsa, District Morena.

11. The petitioners are separately residing at Shivpuri and Bhopal who are Nanads and Nandois of the complainant/respondent No. 2, therefore, the relief sought for under Sections 19, 20 & 22 of the Act by the respondent No. 1 cannot be granted against them.

12. Respondent No. 1 has also sought relief under Section 18 of the Act to prohibit the petitioners from committing any act of domestic violence against her alleging that they are harassing her by abuses (verbal and emotional) by threatening and causing physical and mental harm and also by demanding dowry.

13. On a perusal of the application submitted by the respondent No. 1 under Section 12 of the Act, it is apparent that no specific allegation has been made against the petitioners. On the basis of report lodged by the respondent No. 1 on 24.06.2012, a case under Section 498-A/34 of IPC was registered at Police Station Porsa, District Morena against her husband and parents-in-law of the respondent No. 1. Subsequently, another report on 28.06.2012 has also been lodged by her for threatening, against her husband. In the aforesaid report and application, no single allegation has been made by the respondent No. 1 against the petitioners. In Geeta Mehrotra v. State of Uttar Pradesh, (2012) 10 SCC 741, the Apex Court observed that though the contents of the complaint made out a prima facie case against the husband of respondent No. 1 wife and some other family members, but no such case was made out against the petitioners-accused (sister and brother of husband). There were no specific allegation against the petitioners-accused (sister and brother of the husband) so as to make them liable for bickering between respondent No. 1.wife and her husband. There was no specific allegation against the petitioners-accused that they have demanded any dowry from respondent No. 1. Casual reference to a large number of members of the husband’s family without any allegation of active involvement would not justify taking cognizance against them and subjecting them to trial. Thus, prima-facie, no case is made out against the petitioners as there is omnibus allegation against them that they were also involved in physical and mental torture to the complainant without mentioning even a single specific incident against them.

14. In Asoke Basak (supra), the Apex Court while considering the scope and ambit of the jurisdiction of the High Court under Section 482 of Cr.P.C, held that although the jurisdiction of High Court under the said provision is very wide but it is not unbridled. The High Court is required to exercise its inherent powers under Section 482 of the Code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice and to prevent abuse of the process of court. One of the situations when the High Court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.

15. In Ajay Kant (supra), this Court has observed as under:-

“4. Although it is not argued yet it appears appropriate to mention that any order passed by the learned Magistrate under the Act is appealable as provided by Section 29 of the Act. Usually when an opportunity to assail the impugned order in revision or appeal is available, taking recourse under Section 482 of Cr.P.C is not required. However, it is observed by the Apex Court in Para 26 in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, that sometime for immediate relief Section 482 of the Code or Article 227 have to be resorted to, for correcting some grave errors that might be committed by the Subordinate Courts. Considering the steps taken by the learned Magistrate against the petitioner Nos. 3 and 4, this petition has been considered herein.”

16. Looking to the facts and circumstances of the case in hand, the decisions in the cases of Sandhya Manoj Wankhade (supra) and Samira Khanum (supra) relied upon by the respondent No. 1 does not provide any assistance to the respondent No. 1.

17. In S.R Batra (supra), the Apex Court held that the claim for alternative accommodation under Section 19(1)(f) of the Act can only be made against the husband and not against the husband’s in-laws or other relatives. In Tehmina Qureshi (supra), this Court held that the wife is entitled to a right of residence in a shared house in which husband has a share.

18. In view of all, as discussed here-in-above and in the light of law laid down by the Apex Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335, I am of the view that the petition deserves to be allowed. Consequently, it is hereby allowed. The proceedings pending in the Court of J.M.F.C, Ambah, District Morena in Criminal Case No. 109/2012 (Smt. Seema Sehar v. Rahul Sehar), so far as it relates to the petitioners are liable to be and hereby quashed.

19. With the aforesaid, the petition stands allowed and disposed of accordingly.

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