Gujarat High Court
Bhavnaben Vipulkumar Babariya vs State Of Gujarat on 24 February, 2025
NEUTRAL CITATION
R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1137 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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BHAVNABEN VIPULKUMAR BABARIYA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MS. ALKA B VANIYA(6945) for the Respondent(s) No. 2
MR. MEET THAKKAR, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 24/02/2025
ORAL JUDGMENT
1. Rule, returnable forthwith. With consent of learned advocates for both the parties, the present application is taken for final hearing.
2. Present revision application Section 397 read with 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short) is preferred being Page 1 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined aggrieved and dissatisfied by order dated 24.7.2023 passed by the learned 5th Additional Sessions Judge, Amreli (hereinafter referred to as 'the learned Sessions Court' for short) in Criminal Appeal No. 7 of 2023 as well as order dated 12.1.2023 passed by the learned Additional Judicial Magistrate First Class, Amreli (hereinafter referred to as 'the Magistrate Court' for short) below Exh-10 in Criminal Misc. Application No. 136 of 2021.
3. The facts giving rise for preferring the present revision application is that the applicant Nos.1, 2 and 3 (hereinafter referred to as 'the applicants" for short) are sister-in-law, brother-in-law (i.e. husband of sister-in-law) and brother-in-law of the respondent. It is their case that the brother of applicant No.1 and 3 namely Hasmukhbhai @Hirenbhai Dharaiya got married with Chetanaben (hereinafter referred to as 'the respondent' for short) according to Hindu rites and rituals on 6.5.2017. After the marriage, the couple started living together in joint family along with father-in-law and mother-in-law at Liliya. It was Page 2 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined the case of the applicants that they had never stayed as a joint family along with the respondent. It was the case of the applicants that the marriage life of Hasmukhbhai and respondent No.2 was running smoothly but thereafter the marital life of Hasmukhbhai and the respondent No. 2 sailed into rough weather and differences cropped up between the couple due to various reasons. However, a baby girl namely Yana was born on 5.4.2018 out of the wedlock of the couple. However, despite the birth of the child, the matrimonial dispute between the couple persisted. The brother of the applicant Nos.1 and 3 i.e. Hasmukhbhai preferred a family suit being Family Suit No. 35 of 2019 which was filed under Section 9 of the Hindu Marriage Act before the Family Court. The Family Suit was filed on 18.6.2019 for restitution of conjugal rights.
4. It was the case of the applicants that a counter blast to the family suit No. 35 of 2019, an First Information Report (FIR) was preferred against all the family members of the husband of the respondent. FIR also arraigned the Page 3 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined present applicants as the accused. It was the case of the applicant that they have never lived together with the respondent pursuant to her marriage with Hasmukhbhai.As a matter of fact, it was the case of the applicant No.1 that since 2017, the applicant No.2 was sent to Germany by his employer and, therefore, applicant No.1 being wife of applicant No.2 also went to Germany along with the husband at the relevant point of time when the issue of matrimonial dispute of the respondent was taking place. It was also the case of the applicants that applicant No.3 was a government employee and was residing separately and no one was responsible for the matrimonial dispute of the wedded couple. It is the case of the applicants that pursuant to the FIR, a writ-petition came to be preferred by the applicants before this Hon'ble Court being Special Criminal Application No. 7820 of 2019. This Court by order dated 31.7.2024 has quashed the FIR qua the present applicants in Special Criminal Application No. 7820 of 2019.
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5. It is the case of the applicants that even after preferring an FIR, the respondent preferred an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the D.V. Act' for short) by making false and completely incorrect allegations against the family members of her husband and in particular the applicants. On being served with the notice of the Criminal Misc. Application No. 136 of 2021 filed under the D.V. Act, 2005, the applicants appeared through their advocate and filed reply vide Exh-
9. It was the case of the applicant that they have never resided with the respondent, the applicant cannot be joined and made responsible / liable under the D.V. Act, 2005 and, therefore, the applicants preferred an application vide Exh-10 and prayed that notice issued to them may be withdrawn and they may be discharged from the proceedings under the D.V. Act, 2005. Pursuant to the application filed below Exh-10, the respondent filed a reply, which was exhibited below Exh-11. The learned Magistrate Court, after hearing both the sides and Page 5 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined considering the material on record, was pleased to reject the application preferred by the applicants by way of an order dated 12.1.2023.
6. Being aggrieved and dissatisfied by order dated 12.1.2023 passed by the learned Magistrate Court, the applicants preferred an appeal under Section 29 of the D.V. Act, 2005 before the learned Sessions Court. The appeal came to be numbered as Criminal Appeal No. 7 of 2023. The learned Sessions Court, after hearing the parties and perusing the material on record, was pleased to reject the appeal filed by the applicants by way of impugned judgment and order dated 24.7.2023, which resultantly confirmed the order passed by the learned Magistrate Court dated 12.1.2023. Being aggrieved and dissatisfied by the impugned order dated 24.7.2023 passed by the learned Sessions Court and the order dated 12.1.2023 passed by the learned Magistrate Court, the present revision application is preferred by the present applicants.
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7. This Court has heard Mr. Ritvij Oza, learned advocate for the applicants, Ms. Alka Vaniya, learned advocate for the respondent No.2 and Mr. Meet Thakkar, learned Additional Public Prosecutor for the State-respondent.
8. Mr. Ritvij Oza, learned advocate for the applicants submitted that the impugned orders passed by the Courts below are contrary to law, facts and evidence on record. The learned Sessions Court as well as learned Magistrate Court have failed to appreciate and consider the fact that the application under the D.V. Act, 2005 was only preferred against the present applicants which, inter alia, was a frivolous allegation and was with a view to harass the present applicants. The applicants have never resided with the respondent or shared a house-hold and, therefore, no proceedings under the D.V. Act can be preferred against the present applicants. The learned Sessions Court as well as the learned Magistrate Court ought to have discharged the present applicants from the Page 7 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined proceedings. It was submitted by Mr. Oza that the real crux of the matter was that the respondent was taking vengeance and creating hurdle in the proceedings initiated by her husband under the Hindu Marriage Act. The present proceedings are nothing but a counter blast and the same deserves to be rejected only on this ground. There is no sufficient ground to proceed against the present applicants if the application under the D.V. Act read with carefully there are only general allegations made against the present applicants. There is nothing on record to show any credence against the allegations made. The allegation is only an exaggerated version. Maximum allegation is made that they were instigating the husband of the respondent. Such allegations can be as vague as it can be. Therefore, no credence can be given to such allegations. Further, before filing of the application under the D.V. Act, 2005, an FIR was also registered against the applicants by the respondent. This Court in Special Criminal Application No. 7820 of 2019 was pleased to quash the FIR against the present applicants. In view of Page 8 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined the same, Mr. Oza, learned advocate submitted that the allegations made against the present applicants are frivolous and without credence and, therefore, the order passed by the learned Magistrate Court as well as learned Sessions Court is bad in law, perverse and are required to be quashed and set-aside. In view of such submissions, Mr. Oza, learned advocate has prayed to allow the present revision application filed by the present applicants.
9. Per contra, Ms. Alka Vaniya, learned advocate for the respondent has submitted that the name of the applicants are clearly reflected in the application made by the respondent. In the application it can be observed that the applicants were instigating husband of the respondent and even accusation is made that they were demanding dowry from the present respondent and, therefore, giving physical and mental torture. It was further submitted that if the impugned orders are perused carefully then there is clear-cut observation made by the learned Sessions Court as well as learned Magistrate Court that there are Page 9 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined allegations against the applicants that they have demanded dowry. In view of such allegations, it could be improper to quash the present application. In view of such submissions, Ms. Vaniya has submitted that the orders passed by the learned Magistrate and learned Sessions Court are just and proper and require no interference. With such submissions, Ms. Vaniya has prayed to reject the present revision application preferred by the present applicants.
10. After hearing learned advocates for both the parties and perused the material placed on record, the fact is not in dispute that the present applicants are sister-in-law, husband of sister-in-law as well as brother-in-law of the respondent. The application preferred under the D.V. Act, 2005, if perused carefully, makes general allegations against the applicants. The allegations are giving instigating to the husband of the respondent so that the respondent can be harassed. Further, there is no specific allegation pertaining any of the applicants being involved in any of the incident. It is also not in dispute that the Page 10 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined husband of the respondent had preferred a Family Suit and thereafter an FIR has been filed by the present respondent and thereafter, application is filed under the D.V. Act, 2005. It may be true that some of the allegations made against the present applicants are little bit different and were made in D.V. Act, 2005, the fact is that this Court in Special Criminal Application No. 7820 of 2019 was pleased to quash the FIR against the present applicants. Even looking to the allegations made in the present application under the D.V. Act, the same are nothing but general allegations. However, the fact is not in dispute that the applicants are living separately and they have not lived together and shared house-hold with respondent No.2. All these facts, brought together, would make it clear that the allegations made against the applicants are an afterthought and vague allegations as well as the counterblast to the proceedings initiated by husband of the respondent. This aspect has not been considered by the learned Sessions Court as well as the learned Magistrate Court. In view of the same, it would be an Page 11 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025 NEUTRAL CITATION R/CR.RA/1137/2023 JUDGMENT DATED: 24/02/2025 undefined infirmity to sustain the allegations made against the present applicants and upheld the observations made by the learned Magistrate Court as well as learned Sessions Court. Resultantly, the present application is required to be allowed and is hereby allowed. The order dated 24.7.2023 passed by the learned 5 th Additional Sessions Judge, Amreli in Criminal Appeal No. 7 of 2023 as well as order dated 12.1.2023 passed by the learned Additional Judicial Magistrate First Class, Amreli below Exh-10 in Criminal Misc. Application No. 136 of 2021 are hereby quashed and set-aside.
Resultantly, the present revision application is allowed with above mentioned observation with no order as to costs. Rule is made absolute to the aforesaid extent.
(PRANAV TRIVEDI,J) SAJ GEORGE Page 12 of 12 Uploaded by SAJ GEORGE(HC01069) on Wed Mar 12 2025 Downloaded on : Fri Mar 14 22:41:39 IST 2025