Court: Madhya Pradesh High Court
Bench: JUSTICE Jarat Kumar Jain
Swapnil Kolhe & Ors Vs Kirti Kolhe On 26 August 2014
Law Point:
Protection of Women from Domestic Violence Act, 2005 — Sections 12, 28 — Criminal Procedure Code, 1973 — Section 482 — Indian Penal Code, 1860 — Sections 498A, 34, 506 — Domestic Violence — Cruelty — Common Intention — Quashing of proceedings — No limitation prescribed for filing application except reasonable time — Similar allegations in complaint under Section 12 of Domestic Violence Act as in FIR lodged under IPC — Fit case for quashing of complaint — No finding can be arrived insofar as contention regarding no domestic relationship between respondent-wife and petitioners is concerned — It is matter of evidence — Complaint filed by respondent under Sections 12 of Act quashed.
JUDGEMENT
1. This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (in brief the Code), against the order dated 25.1.2013 passed by 15th ASJ, Indore, in Criminal Case No. 568/2013 whereby she affirmed the order dated 8.8.2013 passed by the JMFC Indore in Cr. Case No. 13/2012.
2. The facts are undisputed that the marriage between the petitioner No. 1 and the respondent was solemnized on 24.6.2009 and the Petitioner Nos. 2 to 6 are Father, Mother, Maternal Uncle, Maternal Aunt and Sister of Petitioner No. 1 respectively. On 2.5.2012 the respondent-wife lodged the report against the Petitioners No. 1 to 3 and 6 at Mahila Police Station, Indore which was registered as Crime No. 50/2012 under Sections 498A/34, 506 of IPC and Section-4 of Dowry Prohibition Act. The petitioners filed the petition under Section 482 of the Code for quashing the proceedings and charges framed against them. The petition was dismissed by this Court vide order dated 2.9.2013 against which the petitioners filed appeal in the Hon’ble Supreme Court (Cr.A.No.1144/2014), which was allowed vide order dated 9.5.2014 and petitioners were discharged.
3. The brief facts of this case are as under:
(a) 24.6.2009 : Marriage between the petitioner No. 1 and the respondent was solemnized.
(b) 23.4.2011 : Respondent-wife left the house of petitioner No. 1.
(c) 14.7.2011 : Petitioner No. 1 filed an application under Section-9 of Hindu Marriage Act, 1955 for seeking restitution of conjugal rights.
(d) 7.9.2011 : The respondent filed a written complaint at Mahila Thana, Indore raising allegations against the petitioners that they treated her with cruelty in connection with the demand of dowry.
(e) 12.12.2011: The parties were called at the Mahila Police Station, Indore and the matter was settled between the parties.
(f) 2.5.2012: The respondent lodged the report at Mahila Thana, Indore, against the petitioner Nos. 1 to 3 and 6 which was registered as Crime. No. 50/2012 under Sections 498A/34, 506, I PC and Section 4 of Dowry Prohibition Act.
(g) 17.5.2012: The respondent filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 against the petitioners before the JMFC, Indore, which was registered as Cr. Case No. 13/2012.
4. This petition is with regard to the complaint filed by the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in brief the ‘Act’). It is alleged that the petitioners’ have treated the respondent-wife with cruelty for the demand of dowry. The petitioners appeared before the Magistrate and raised two objections that for last 13 months the respondent-wife is residing separately therefore the domestic relationship does not subsist. Thus the application is time barred and the petitioner Nos. 4 to 6 never lived together with the respondent, therefore, there was no domestic relationship with the respondent-wife. On 8.8.2013 the learned JMFC, Indore dismissed the objections. Being aggrieved with this order, the petitioners filed the appeal under Section 29 of the Act. The learned ASJ dismissed the appeal. Being aggrieved with this order, the petitioners have preferred this petition.
5. Learned Counsel for the petitioners submit that as per the provisions of Section 20A of the Act, all the proceedings under Sections 12, 18 to 23 and Section 31 of the Act are governed by the Code. As per the provisions of Section 468 of the Code, application under Section 12 of the Act can be filed within a period of one year from the date of incident whereas the respondent filed this application after lapse of 13 months from leaving her matrimonial house. For this purpose he relied upon the order dated 7.3.2013 passed by the Bombay High Court in the case of Sejal Dharmesh Ved v. State of Maharashtra & Others, in Cr.A. No. 160/2011 and Judgment of the Hon’ble Supreme Court in the case of Inderjit Singh v. State of Punjab, III (2011) DMC 7 (SC)=VI (2011) SLT 434=III (2011) DLT (CRL.) 748 (SC)=(2011) 12 SCC 588.
6. Learned Counsel for the petitioners further submit that the petitioner No. 4 to 6 are Maternal Uncle, Maternal Aunt and Sister of the Petitioner No. 1. They never lived with the respondent therefore they were not having any domestic relationship with the respondent-wife. Thus the application under Section 12 of the Act is not maintainable against them.
7. Learned Counsel for the petitioners lastly submitted that on the same facts the respondent firstly, lodged the report against the petitioners under Section 498A/34 and 506 of IPC, and there after filed the application under Section 12 of the Act. The Hon’ble Supreme Court, quashed the proceeding holding that the prosecution under Sections 498A/34, 506 of IPC is wholly unfounded. In view of this, the proceedings under Section. 12 of the Act be quashed.
8. Per Contra, learned Counsel for the respondent submits that there is no limitation provided for filing the application under Section 12 of the Act and at relevant time the respondent-wife lived with the petitioner Nos. 4 to 6 in a shared household, thus, she was in domestic relationship Therefore Courts below rightly rejected the objections raised by the petitioners.
9. Learned Counsel for the respondent submits that the offence under Sections 498A/34 and 506 of IPC is different from the offence under the Act, therefore there is no impediment in filing the application under Section 12 of the Act. The Indian Penal Code is a general law whereas the Domestic Violence Act is a special law and for this preposition he relied upon the Judgment of C.G. High Court in the case of Rajesh Kurre v. Safurabai, reported in 2008 (11) Laws 22 (Chhat.).
10. After hearing learned Counsel for the parties, I have gone through the record.
11. Firstly I have considered the objection with regard to limitation. Section 28 provides that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code. Section 12 provides procedure and requirement of filing of the application and as such there is no limitation prescribed for filing the application under Section 12 of the Act. It is true that such application should be filed within a reasonable time as held by the Bombay High Court in the case of Sejal Dharmesh Ved (supra). Thus I find that there is no force in the objection raised by the petitioners in so far as limitation for filing the complaint is concerned.
12. The second contention, which has been raised by the petitioners, is that there is no domestic relationship between the respondent-wife and the petitioner Nos. 4 to 6. According to the petitioners they never lived with the respondent in a shared household whereas the respondent alleged that she was in domestic relationship with the Petitioners. In the considered opinion of this Court, at this juncture no finding can be arrived insofar as this rival contention of the parties is concerned, as it is a matter of evidence which would be marshaled in the trial.
13. The third contention of the petitioners is that on 2.5.2012 the respondent lodged a report at Mahila Thana, Indore under Sections 498A/34 and 506 of the Cr.P.C. and on basis of this report the criminal proceedings were initiated against the petitioner Nos. 1 to 4 and 6 which were subsequently quashed by the Hon’ble Apex Court and hence on the same set of facts after 15 days of lodging the report the application under Section 12 of the Act cannot be proceeded.
14. For the aforesaid purpose the contents of the FIR registered under Section 498A, IPC and the complaint under Domestic Violence Act have to be considered in juxtaposition. The relevant portion of the FIR dated 2.5.2012 reads as under:
“Hindi matter omitted”
15. And the relevant portion of the complaint under Section 12 of the Act reads as under:
“Hindi matter omitted”
16. From the reading of both the aforesaid complaints it can be inferred that the respondent has alleged that she was subjected to cruelty in connection with the demand of dowry. It is evident that the Hon’ble Supreme Court after considering all the facts and circumstances of the case quashed the criminal proceedings which were initiated in pursuance to the FIR dated 2.5.2012. And having being found that the respondent has more or less alleged similar allegations against the Petitioners in the complaint under Section 12 of the Act and there is no allegation by the respondent that between 2.5.2012 to 17.5.2012, she was subjected to cruelty. From the above analysis I found that it is a fit case for quashment of complaint.
17. Thus the Petition is allowed and the complaint filed by the respondent under Section 12 of the Protection of Women from Domestic Violence Act is hereby quashed.
Petition allowed.
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