Allahabad High Court
Mohd. Nafees @ Guddu vs The State Of U.P And Anr. on 7 August, 2015
Bench: Akhtar Husain Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 15 A.F.R.
Reserved
Case :- U/S 482/378/407 No. - 4063 of 2013
Applicant :- Mohd. Nafees @ Guddu
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- Rameshwar
Counsel for Opposite Party :- Govt. Advocate,Mohd. Afsar
Hon'ble Akhtar Husain Khan,J.
Present petition has been moved under section 482 Cr.P.C. by the petitioner Mohd. Nafees @ Guddu with the prayer to quash the order dated 4.1.2011, passed by the VIII Addl. Chief Judicial Magistrate, Lucknow in Case No. 565 of 2010, Smt. Zareena Bano vs. Mohd. Nafees @ Guddu & others, under section 12 (1) of Protection of Women From Domestic Violence Act, 2005, Police Station Thakur Ganj, district Lucknow alongwith the impugned order dated 23.7.2013, passed by the Appellate Court (IV Addl. District & Sessions Judge, Lucknow) in Criminal Appeal No. 130 of 2012 arising out of said order dated 4.1.2011, passed by the Magistrate.
I have heard learned counsel for the applicant as well as the learned A.G.A. appearing for State of U.P.
None appeared for Opposite Party No. 2 though list was revised.
Learned counsel for the applicant contended that the petition moved by opposite party no. 2 under section 12 (1) of Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as 'Act, 2005') is not maintainable as the opposite party no. 2 herself has admitted in para 11 of the petition, moved under section 12 (1) of the Act, 2005 that the petitioner has already divorced her. As such, the cognizance taken by the Magistrate is without jurisdiction and the impugned order passed by the Magistrate is contrary to law.
Learned counsel for the petitioner contended that the appellate court has committed illegality in upholding impugned order passed by the Magistrate.
Learned counsel for the applicant has placed reliance upon pronouncement of the Hon'ble Apex Court rendered in the case of Indrajit Singh Grewal vs. State of Punjab and another, reported in 2012 CRI. L.J. 309 as well as pronouncement of Hon'ble High Court, Delhi rendered in the case of Harbans Lal Malik and others vs. Payal Malik, reported in 2010 (3) Crime (Delhi).
Learned A.G.A. opposed the petition, moved under section 482, Cr.P.C. and contended that the Magistrate is competent to take cognizance of the application moved under section 12 (1) of the Act, 2005 and impugned order is in accordance with law.
I have considered the submissions of learned counsel for the parties and perused the record.
After taking cognizance on application of opposite party no. 2 moved under section 12 (1) of the Act, 2005 vide impugned order dated 4.1.2011, learned Addl. Chief Judicial Magistrate, Lucknow, Court No. 32, has allowed interim maintenance to the complainant (here opposite party no. 2) under section 23 of the Act, 2005. Being aggrieved with the order of Magistrate, petitioner filed Criminal Appeal No. 130 of 2012 before the Sessions Court which was decided by the IV Addl. District & Sessions Judge, Lucknow vide judgment & order dated 23.7.2013 and appeal was dismissed.
In the case of Indrajit Singh Grewal vs. State of Punjab and another (supra) a complaint was filed under section 12 (1) of the Act, 2005 by the aggrieved person (wife) against the respondent (husband) with the allegation that decree of divorce obtained by both the parties is a sham transaction. Even after getting divorce both were living as husband and wife but in the meantime she was forced to leave her matrimonial house.
In view of the above facts, the Hon'ble Apex Court has held as follows:
"25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act, 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same."
In the case of Harbans Lal Malik and others vs. Payal Malik (Supra) Hon'ble Single Judge of Delhi High Court after having gone through the definition of Domestic Violence given in Section 3 of the Act, 2005, has held as under:
"20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce."
No doubt, Section 3 of the Act 2005 defines Domestic Violence in present tense, but section 12 (1) of the Act reads as follows:
"12. Application to Magistrate- (1) An aggrieved person or a Protection Officer or any other person on behalf of aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act;
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider."
Section 2 (a) of the Act 2005 defines aggrieved person as follows:
"aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;"
Section 2 (q) of the Act 2005 defines respondent as follows:
"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner."
In view of the above provisions of the Act, 2005, it is apparent that even a divorced wife who has been subjected to domestic violence during continuation of marriage or domestic relationship, may move an application under Section 12 (1) of the Act, 2005 for appropriate relief. It is incorrect to say that an application moved by opposite party no. 2 is not maintainable under section 12 (1) of the Act, 2005 because opposite party no. 2 has admitted divorce before filing of application under section 12 (1) of the Act, 2005.
Impugned order passed by Magistrate is an interim order. Final Order is yet to be passed by the Magistrate. There appears no illegality or infirmity either in impugned order passed by the Magistrate or impugned judgment and order passed by the Addl. Sessions Judge in appeal.
I found no sufficient ground for interference under section 482 Cr.P.C.
Petition moved under section 482, Cr.P.C. is dismissed accordingly.
Order Date :- 07.8.2015
ashok/-
