NEUTRAL CITATION
R/CR.MA/1428/2017 ORDER DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1428 of 2017
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ANANTKUMAR DAYARAM PANCHAL & 4 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
ADITYA A CHOKSI(7835) for the Applicant(s) No. 1,2,3,4,5
MS. SHIVANGI M RANA(7053) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
MR. YAGNESHKUMAR S JOSHI(8074) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/08/2023
ORAL ORDER
1. When the matter is called out, learned advocate for the applicant has produced on record the death certificates of the applicant No.3 & 4 viz., - Narmadaben and Satishbhai, which are taken on record, whereby it is revealed that applicant Nos.3 & 4 has passed away on 13.4.2020 and 9.1.2023 respectively and therefore, the present application as become abated qua the applicant Nos.3 & 4. Hence, the present application is disposed of as having become abated qua the applicant Nos.3 & 4. Page 1 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023
NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined QUA THE PRESENT APPLICATION NOS.2 & 5:-
2. The present application is filed for seeking following reliefs:
"A. YOUR LORDSHIP may be pleased to issue an order or directions quashing and setting aside the impugned order wide dated 27.03.2015 & subsequent proceedings thereto passed by the Hon'ble Court of Learned Judicial Magistrate First Class, Court No.1, Vadodara in Criminal Miscellaneous Application No. 987 of 2015 (at Annexure A).
B. YOUR LORDSHIP may be pleased to grant ad interim relief qua stay on further proceedings of Miscellaneous Application No. 987 of 2015 (at Criminal of Annexure A) pending before the Hon'ble Magistrate Court First of Learned Judicial Class, Court No.1 Vadodara during pendency and final disposal of the present application C. YOUR LORDSHIP may Pass any such other and / or further orders that may be thought just and proper, in the facts and circumstances of the present case."
3.1 Brief fact of the case as per the case of applicants Page 2 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined in this application are as such that on 04.02.1999 the marriage between applicant No.1 and respondent No.2 solemnized with the Hindu rituals at Anand. Thereafter respondent No.2-Wife started living at her matrimonial residence in Ahmedabad with the family of applicant No.1. Out of their matrimonial relation applicant No.1 and respondent No.2 gave a birth to a girl child on 18.02.2000. It is further the case of the applicants in this application that one or another reason be it quarrel or be it extensive verbal fights, the marriage life between the applicant No.1 and respondent No.2 could not survive happily even after giving birth to a child. So, on 24.04.2002 respondent No.2- Wife willingly left the matrimonial home with the minor child to stay at her Parental home at Anand.
3.2 It is further the case of the applicants in this application that on 07.10.2003 respondent No.2-Wife as well as the child namely 'Happy' made an application under Section 125 of the Code of Criminal Procedure, 1973 being Criminal Miscellaneous Application No. 526 of 2003 against applicant No.1-Husband before Hon'ble Court of the 5th Additional Senior Civil Judge and Page 3 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined Judicial Magistrate First Class claiming Maintenance of Rupees 5000/- for maintaining social life as well as for herself and for the minor child 'Happy'. It is further the case of the applicants in this application that during the pendency of above mentioned application for maintenance, on 21.06.2006, the respondent No.2-wife and applicant No.1- Husband jointly submitted compromise pursis' before the Hon'ble Trial Court stating that from 10.06.2006 again they have started living together happily with child 'Happy' after the socially elder and elderly relatives of their families intervened to resolve the matrimonial issues and has arrived at compromise. And also it was stated that the said above mentioned application for maintenance.
3.3 It is further the case of the applicants in this application that respondent No.2-wife and applicant No.1- Husband continued to live together happily with 'Happy' for almost two years from the date of above referred joint compromise pursis made available to Hon'ble Trial Court. It is further the case of the applicants in this application that even though their marriage life could not remain stable and therefore on 18.03.2008 respondent Page 4 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined No.2-Wife again left the matrimonial home willingly with child 'Happy' and till today still staying in the parental house at Anand. It is further the case of the applicants in this application that on 18.03.2008 respondent No.2- wife addressed a letter to the Police Inspector Narayanpura Police Station, Ahmedabad City stating that applicant No.1-Husband has given a threat to her life if respondent No.2-Wife does not withdraw the case for maintenance against him as well as requested Police in her letter not to take any actions as of now against the Husband.
3.4 It is further the case of the applicants in this application that on 13.07.2009, the Hon'ble Court of the 5th Additional Senior Civil Judge and Judicial Magistrate First Class passed an order for maintenance of Rupees 1800/- to the respondent No.2-Wife and maintenance of Rupees 600/- to the child 'Happy' to be payable every month by the applicant No.1 Husband from the date of filling the said application. It is further the case of the applicants in this application that on 13.09.2011 the respondent No.2-wife made an application under Section 127 of the Code of Criminal Procedure, 1973 being Page 5 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined Criminal Miscellaneous Application No. 719 of 2011 before the Hon'ble Court of Learned Principal Family Judge Vadodara with prayer to increase the amount of maintenance from Rupees 1800/- to Rupees 20000/- for herself and Rupees 600/- to Rupees 10000/- for the child 'Happy'. It is further the case of the applicants in this application that on 11.02.2015 the Hon'ble Court of Learned Principal Family Judge Vadodara partly allowed the above application and ordered increase of maintenance to respondent No.2-wife from Rupees 1800/- to 4200/- and to Child Rupees 600/- to 2400/- thus total rupees 9000/- per month payable from the date of filling application under section 127 by the respondent No.2- wife. It is further the case of the applicants in this application that on 08.12.2014 the applicant No.1- Husband filed Family Suit No. 1992 of 2014 before the Learned Family Court Ahmedabad for Declaration of Divorce Decree under Section 13 of the Hindu Marriage Act. Wherein on 25.03.2015 respondent No.2-wife made an application for Maintenance under Section 24 of the Hindu Marriage Act claiming Rupees 30000/- per month. The Family Court wide order dated 17.10.2016 partly granted the above application for maintenance under Page 6 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined section 24 and ordered applicant No.1- Husband to pay Rupees 9500/- per month as interim maintenance to the respondent No.2- wife and the daughter 'Happy' from the date of filling application till the final disposal of main application. It is further the case of the applicants in this application that the allegations levelled in the impugned complaint are absolutely absurd, false, concocted & got up with a view to harass the old aged in-laws of respondent No.2-wife. As far as the impugned proceedings are concerned, proceedings are commenced mechanically and in a routine manner. The same is sheer abuse of the process of law and hence applicants is preferred.
4. Heard learned counsel Mr. Aditya A. Choksi, representing the applicants, Mr. Yagneshkumar S. Joshi, learned counsel, representing the respondent No.2 - complainant and Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP), representing the respondent No.1 - State.
5.1 The learned counsel, Mr. Aditya A. Choksi, representing the applicants, has put forth arguments. He Page 7 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined contends that the present applicant No.2, who is approximately 90 years old and bedridden, is the father- in-law of the complainant. Additionally, present applicant No.5, around 60 years old, is the sister-in-law of the complainant, residing separately from the complainant's husband. He has drawn my attention to the application submitted before the Magistrate under Form No.2, Rules 6(i), 6(ii), 6(iii), and 17(iii) of the Domestic Violence Act whereby no satisfactory averments on the contrary is found. Furthermore, he points out that the complainant stated in Form No.2 that there has been no marital consummation between her and her husband for the past 12 years.
5.2 Furthermore, the counsel submits that, upon considering the allegations made in column 4 of Form No.1 and other forms, no evidence or specific allegations are found against any of the applicants. He adds that there are other ongoing proceedings stemming from the dispute between the husband and wife. He emphasizes that the husband provides maintenance to the wife amounting to Rs.6,500/- under Section 125 of the Criminal Procedure Code. Additionally, he notes that Page 8 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined divorce proceedings initiated by the husband were granted. Considering these factors, he argues that no fruitful purpose would be served in continuing this application considering the age of the applicants and the lack of allegations against them.
5.3 Therefore, the present application is required to be allowed by quashing the proceedings under Domestic Violence Act qua the present applicant Nos.2 & 5. 5.4 Furthermore, he has drawn my attention to the fact that qua the applicant No.1 - husband, the present application is not pressed.
5.5 Furthermore, he has drawn my attention to the fact that qua the ori. accused No.6, Co-ordinate Bench of this Court has quashed the proceedings in Criminal Misc. Application No.7145 of 2017 dated 5.7.2019. 5.6 Basing his arguments on the aforementioned grounds, he prays to allow this application in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 Page 9 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined SC 604, by quashing the proceedings under the Domestic Violence Act as Protection Officer has not recorded anything against the present applicants which can be considered in terms of Domestic Violence Act.
6. On the contrary, Mr. Yagneshkumar S. Joshi, the learned counsel representing respondent No.2 - the complainant, presents his arguments. He asserts that a prima facie offense has been established. Moreover, he points out that the applicant has an alternative remedy available through an appeal under Section 29 of the Domestic Violence Act. He further contends that there isn't a specific justification warranting interference with the present proceedings under the Domestic Violence Act. According to him, the provisions of the Act are designed to protect married women from offenses related to domestic violence. Hence, he argues that the complaint should not be quashed at this stage without subjecting it to the trial process. Additionally, he maintains that the provisions of the Domestic Violence Act are beneficial legislation, and the details provided by the Protection Officer's report should not be construed too rigidly. Therefore, he prays not to interfere by exercising the Page 10 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined jurisdiction under Section 482 of the Criminal Procedure Code.
7. Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP), representing the respondent No.1 - State has supported the contentions raised by the learned advocate for the respondent No.2. He has submitted that this Court should exercise the powers under Section 482 of the Criminal Procedure Code, very sparingly and prima facie allegation is made by naming all the accused persons in the complaint, this Court should not interfere.
8.1 I have considered the rival submission made at the bar. I have also taken into account the fact that the applicant, being approximately 90 years old and the father-in-law, does not have any explicit or indirect involvement that would constitute an offense under the provisions of the Domestic Violence Act. Furthermore, there is no trace of any allegations within the said report against applicant No.5 - the sister-in-law, who resides separately from the complainant's husband, that would amount to an offense under the Domestic Violence Page 11 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined Act. The pertinent provisions of the Domestic Violence Act are not met as per the contentions put forth in the current application.
8.2 Additionally, it's notable that the complainant - wife, in the present case, has implicated all the family members of her husband and even paramount neighbors in the proceedings under the Domestic Violence Act. According to the complaint itself, there has been no marital intimacy between the complainant and her husband for the past 12 years. This fact establishes that the complainant has not been residing with her husband for the past 12 years. Consequently, it appears prima facie that the initiation of proceedings under the Domestic Violence Act, along with other actions taken by the complainant, is driven by a malicious intent. It seems to be an attempt to harass the family members of the husband due to an underlying dispute between the husband and wife. The conduct exhibited by the complainant - wife strongly suggests that her claim of no marital intimacy for the past 12 years, followed by the initiation of various proceedings including the present complaint, is nothing but an abuse of process of law. It Page 12 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined is noteworthy that in numerous cases, the Hon'ble Apex Court has observed that provisions under Section 498A of the IPC as well as the provisions of the Domestic Violence Act are often misused, advisedly or otherwise, resulting in an undesirable outcome. Such practices have been disapproved and frowned upon by the courts. 8.3 Further, it will also be fruitful to mention the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or Page 13 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any offence Page 14 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly Page 15 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023 NEUTRAL CITATION R/CR.MA/1428/2017 ORDER DATED: 09/08/2023 undefined attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8.4 In light of the aforementioned observations, this is a fit case where this Court should exercise the powers under Section 482 of the Criminal Procedure Code, 1973 by preventing the abuse of process of law.
9. Accordingly, the present application is allowed.
10. The impugned order wide dated 27.03.2015 & subsequent proceedings thereto passed by the Hon'ble Court of Learned Judicial Magistrate First Class, Court No.1, Vadodara in Criminal Miscellaneous Application No. 987 of 2015 are hereby quashed and set aside qua the Present Application Nos.2 & 5.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 16 of 16 Downloaded on : Sun Sep 17 00:50:25 IST 2023