Allahabad High Court
Mohd. Jabir Khan & Ors. vs State Of U.P. Thru. Ziladhikari, ... on 13 May, 2013
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 26
Case :- CRIMINAL REVISION No. - 202 of 2013
Petitioner :- Mohd. Jabir Khan & Ors.
Respondent :- State Of U.P. Thru. Ziladhikari, Faizabad & Another
Petitioner Counsel :- Manendra Nath Rai,Sushil Kumar Singh
Respondent Counsel :- Govt. Advocate
Hon'ble Ajai Lamba,J.
1. The facts, in brief, are that Smt. Shamiunnisa, respondent no.2, filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'Domestic Violence Act') against the husband, father-in-law, mother-in-law, sister-in-law and husband of sister-in-law. The Magistrate dismissed the complaint vide order dated 01.3.2011, finding it to be based on false allegations. The complainant filed an appeal, which has been allowed vide order dated 09.4.2013 while directing all the respondents in the complaint to pay a sum of Rs.3000/- for maintenance of the wife and the child and a sum of Rs.2000/- for educating the child, i.e. a total sum of Rs.5000/- per month.
2. The short contention of the learned counsel for the petitioners, respondents in the complaint, is that husband is not one of the petitioners before this court. The other family members have been burdened with paying maintenance, which is not permissible in law, because they have nothing to do with the matrimonial relations between the complainant and the husband(non-petitioner). Learned counsel for the petitioners has drawn attention of the court towards the orders passed by the lower courts, wherein it has been recorded that the complainant was allegedly turned out of the house on 14.7.2008 after giving her beatings. The complainant got herself medically examined and made a report in the police station on 18.8.2008, whereupon the case was registered.
3. In the contention of the learned counsel for the petitioners, because as per the case of the complainant herself, complainant was turned out of the house in July, 2008, the petitioners cannot be burdened with liability of paying maintenance amount to the wife/complainant/respondent no.2 here in this petition. The complainant has been living separately.
4. I have considered contentions of the learned counsel.
5. It transpires that very conveniently the husband of the complainant has gone to Bahrain and therefore is not available to face the criminal or civil proceedings. The husband has left the wife in India. The petitioners seek protection of the court on the pretext that they have nothing to do with the husband and wife. Section 2(f) of the Domestic Violence Act defines domestic relationship in the following terms:
"2(f). "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family."
6. In regard to the alleged incident of July 2008, as noticed above, the complaint was filed in the year 2009. Domestic relationship would include relationship between the persons who lived together in a shared household. Prima facie petitioners cannot be excluded from domestic relationship.
7. Learned counsel has relied on AIR 2013 SC 1077, Ashish Dixit and others v. State of U.P. and another, to say that the case of the petitioners is covered under the said judgment.
8. In the said case, the Hon'ble Supreme Court of India was considering peculiar facts and circumstances of that case. It is under the said circumstances that the proceedings were quashed against the persons, who were not living in domestic relationship. The Hon'ble Supreme Court of India has said in para 3 that "all and sundry" had been arrayed as accused by the complainant in the complaint. Even tenant had been arrayed as accused.
9. In the case in hand, only the persons who are directly and closely related to the husband and who were allegedly living with the husband and wife have been arrayed as accused/respondents in the complaint. In such circumstances, the case of the petitioners would not be covered by the judgment rendered by the Hon'ble Supreme Court of India in the case of Ashish Dixit (supra).
10. I also find equity in favour of respondent no.2/complainant, who is not being paid maintenance either by the husband who has gone abroad, nor by petitioners, who were living in domestic relationship.
11. Issue notice to respondent no.2 through the Chief Judicial Magistrate, Faizabad, returnable in six weeks.
12. It is made clear that the petitioners shall make a deposit of Rs.75000/-(Seventy five thousand only), which is portion of maintenance amount payable to the respondent, within ten days from today.
13. It is further made clear that notice would be issued only after deposit receipt of Rs.75000/-(Seventy five thousand only) in favour of Registrar of this court is shown to the Registry.
Order Date :- 13.5.2013
A.Nigam
