Protection of Women from Domestic Violence Act, 2005 – Once the domestic relationship came to an end after the decree of divorce the complaint under the Domestic Violence Act could not have been filed.
Complaint under D.V. Act
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY
Crl. Misc. No.M-36736 of 2014 (O&M)
Date of decision : 31.05.2016
Amit Agarwal and others ……Petitioner(s)
Sanjay Aggarwal and others …Respondent(s)
Present: Mr. Sukhbir Singh, Advocate for the petitioners. Mr. A.S. Manaise, Advocate for the respondents.
ANITA CHAUDHRY, J.
The instant petition has been filed under Section 482 Cr.P.C. seeking quashing of complaint filed under the Domestic Violence Act.
It is necessary to give the factual issues before referring to the legal issues. A complaint under theDomestic Violence Act was filed by Sanjay Aggarwal, brother of Ritu Aggarwal. Ritu was married to Amit Aggarwal in October, 2003. A child was born to them in October, 2004. Allegations were levelled that there was demand of a car before marriage. The family gave Rs.2 lacs in cash, gold items besides electrical goods. There was a demand even at the time of birth of the child, the wife was beaten up and tortured and kicked out of the house finally in June, 2006. The Istridhan and the dowry articles were retained by the accused. A claim for maintenance, compensation as damages, residence in the shared house hold was made.
The petitioners are the husband, father in law & the brother in law. It was the second marriage for petitioner no.1. It is claimed that Ritu left the matrimonial home in June, 2006 to attend two functions and took all the jewellery with her to wear on the occasion at Ludhiana on 02.02.2006. It was pleaded that petitioner no.1 and his parents had made a number of calls but she refused to return till petitioner no.1 separated from his family. She was insisting for a separate residence or transfer of some property in her name. The petitioners had pleaded that petitioner no.1 got the FIR registered against respondent no.2 on 10.09.2006. A week later Ritu got a case registered under Section 498-A and 406 IPC against petitioner no.1, his parents and other relatives. The FIR against the sister and brother in law was quashed in October, 2008. The FIR qua the husband and his parents was quashed on the ground that no part of the cause of action had arisen at Batala, however, the Apex Court transferred the trial to Delhi. It was pleaded that petitioner no.1 had filed a divorce petition and Ritu failed to appear though she had been served and exparte decree of divorce was passed. An application for setting aside the exparte decree was filed after 14 months but it was dismissed for non-prosecution on 18.07.2011. Another application was filed for its restoration, which was pending. It was pleaded that since a divorce had been granted, there was no domestic relationship and the complaint under the Domestic Violence Act was not maintainable. It was pleaded that so far as the maintenance was concerned, a petition under Section 125 Cr.P.C. had been filed and maintenance was granted by the Magistrate against which an appeal had been filed, which was pending and maintenance up to October, 2014 had been paid and all the articles had been recovered by the police.
Respondent no.1 filed the reply and it was pleaded that the issue of maintainability of the complaint had been raised by the petitioner before the trial Court and it was pending and the petitioner could not raise the same issue before this Court. It was pleaded that respondent no.1 had filed a complaint on 01.12.2007, which was withdrawn on 27.03.2009 as the complainant wished to withdraw the complaint and file a fresh one and a statement in that regard was made on 27.03.2009. It was pleaded that an exparte decree of divorce was passed and no service was effected and an application for setting aside the decree was filed and was pending. It was pleaded that the decree had not attained finality and the exparte decree did not wash away the previous incidents of domestic violence and respondent no.2 was pushed out of the house in June, 2006. It was pleaded that although petitioner no.3 was the brother in law of petitioner no.1 and married prior to the marriage of respondent no.2 but he was actively involved in the acts of domestic violence. It was pleaded that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person could present an application to the Magistrate under Section 12 of the Domestic Violence Act and he had filed the complaint on behalf of his sister. It was admitted that a complaint was filed and was withdrawn and no liberty was granted to file again though he had reserved his right to file again.
I have heard the counsels of both the sides.
The counsel for the petitioners had contended that the complaint under the Domestic Violence Act had been filed approximately after three years from the date the wife had left the matrimonial home and the complaint had been filed by the brother. It was urged that during her total stay in Delhi, no complaint was given to the police though the police station was at a walking distance. It was urged that the brother filed a complaint and withdrew it and without disclosing that fact another complaint was filed. It was urged that in view of the provisions contained in D.V. Act, a complaint can be filed only within a period of one year of the incident and since there was a divorce, the complaint was not maintainable. It was urged that the complainant had also named the brother in law who had been married five years prior to the marriage and he did not have a domestic relationship and the complaint was liable to be dismissed qua him. It was urged that the FIR was got registered against the petitioner and his family members and the High Court had quashed the FIR partly, against the sister and brother in law in 2008 and the FIR has been quashed against the husband. It was urged that the wife had left the matrimonial home before the Act came into existence and she was living in Batala and no domestic violence could be committed by them as they had never lived together. It was urged that so far as the maintenance was concerned, a petition under Section 125 Cr.P.C. had been filed in the Courts at Batala and the Court had granted maintenance to the wife and the child and there are two parallel jurisdictions and the wife had already availed the remedy of filing a petition under Section 125 Cr.P.C. and later a petition under Section 127 Cr.P.C. was filed seeking enhancement of the interim maintenance. It was pleaded that the wife was an income-tax assessee and she had a D-Mat account and she 4 of 13 held shares in the D-Mat account and was doing business and had received Rs.2,49,000/- from the first husband as full and final settlement.
The submission on the other hand was that a complaint was filed earlier where a statement was given and liberty was sought for instituting another complaint and therefore, second complaint was filed after few days. It was urged that the brother had filed the complaint and there is no restriction and any person can file a complaint on behalf of the aggrieved person. It was urged that the question of limitation did not arise as the wife was asking for residence and maintenance which was a recurring cause of action. It was urged that an application has been filed before the Court below on the similar lines and the petitioners could not have filed a petition under Section 482 Cr.P.C.
A perusal of the petition would show that in the title, the petitioner has sought quashing of Annexure P-3, which is a complaint, which had already been withdrawn. It appears that the correction made with the ink was erroneous otherwise an objection would have been taken by respondent. The petitioner is seeking quashing of Annexure P-1.
Few facts need to be noticed first. Sanjay Aggarwal, brother of Ritu filed a complaint under theDomestic Violence Act some time in November, 2007, which was subsequently withdrawn vide Annexure P-4. Though the complainant had sought liberty to file a fresh complaint but the order dated 27.03.2009 (Annexure P-5) shows that no such liberty was granted. The husband had filed a petition seeking dissolution of the marriage. Service was effected on the respondent and she failed to appear and was proceeded exparte and exparte decree of divorce was passed on 16.05.2008. The complaint under the D.V. Act was filed against the husband, his father and brother in law. The brother in law admittedly is residing separately, though in the same city. Exparte decree of divorce has not been set aside till date.
Two important issue arise in the case. Whether the wife can file a complaint under the Domestic Violence Act when the relationship has come to an end with a decree of divorce and whether a petition under Section 482 Cr.P.C. would be maintainable.
Coming to the issue of maintainability, the submission on behalf of the petitioner was that the inherent powers under Section 482 Cr.P.C. can be exercised whether it is found that the allegations are groundless or where the complaint can not proceed then the parties cannot be left to undergo the agony of a criminal trial.
The submission of the other side was that an application had been filed before the trial Court and the trial Court was yet to examine the issue and the petition under Section 482 Cr.P.C. would not be maintainable.
The Apex Court, in the case of