Yatish Kumar Malviya And 3 Others vs State Of U.P. And Another
2016 Latest Caselaw 6779 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 19.10.2016
 
						         Delivered on 04.11.2016
 

 
Case :- APPLICATION U/S 482 No. - 30924 of 2016
 

 
Applicant :- Yatish Kumar Malviya And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- R.S. Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Om Prakash-VII,J.

The present application under Section 482 CrPC has been filed by the applicants with the prayer to quash the complaint case no. 1834 of 2015 under Section 12 of the Protection of Women from Domestic Violence Act (in short 'the Act'), P.S. Daraganj, District Allahabad including the notices served to the applicants pending before the Special Chief Judicial Magistrate, Allahabad. Further prayer has been made to stay the proceedings of the aforesaid complaint case.

Heard Shri R.S. Pandey, learned counsel for the applicants as well as the learned AGA appearing for the State and perused the entire record.

It was submitted by the learned counsel for the applicants that complaint was filed on the basis of false facts and the same is time barred but the concerned Magistrate without considering this fact illegally took the cognizance thereon. Referring to the provisions of Section 28 of the Act, it was also submitted that limitation for initiating proceeding under Section 12 of the Act is of only one year. It was next submitted that the complaint is malafide as the same is in continuation of the earlier complaint filed on behalf of the opposite party no. 2. No cause of action arose to file the present complaint. Further, female members have also been arraigned as respondent which cannot be done under the Act. At this juncture, learned counsel for the applicants referred to the definition of 'respondent' defined under Section 2(q) of the Act. In support of his submissions, learned counsel for the applicants placed reliance on the decisions of the Hon'ble Supreme Court in Inderjit Singh Grewal Vs. State of Punjab and another, (2011) 12 SCC 588, two decisions of the Madhya Pradesh High Court in the case of Ajay Kant Vs. Alka Sharma, 2007 LawSuit(MP) 1415 and in the case of Tehmina Qureshi vs. Shazia Qureshi, 2009 Lawsuit (MP) 341, and a decision of the Andhra Pradesh High Court in Menakuru Renuka Vs. Menakuru Mohan Reddy, 2008 LawSuit(AP) 832, a decision of Uttarakhand High Court in Kanti Devi and another vs. State of Uttarakhand and another, 2014 LawSuit (Utt) 30, a decision of Delhi High Court in Dhupender Singh Mehra and another vs. State (NCT of Delhi) and another, 2010 LawSuit (Del) 3615, It was next contended that the complaint was not filed on proper proforma. Lastly it was submitted that by developing the facts mentioned in the earlier complaint, the present complaint has been filed without disclosing the date of cause of action.

On the other hand, learned A.G.A. appearing for the State-opposite party no. 1 submitted that since on the complaint filed by the opposite party no. 2 only notice has been issued and no order as yet has been passed, the present application filed by the applicants is not maintainable. It was further submitted that the female members can also be arraigned as respondent and relief can also be claimed against them. Definition as provided in Section 2(q) of the Act has been widened including the female members by the Hon'ble Supreme Court in several judgments. In support of his submissions, learned A.G.A. has placed reliance on the decisions of the Apex Court in Sandhya Manoj Wankhade Vs. Manoj Bhim Rao Wankhade and others, (2011)3 SCC 650 and a recent decision in the case of Hiral P. Harsora and others Vs. Kusum Narottamdas Harsora and others, decided on 6 October, 2016 in Civil Appeal No. 10084 of 2016 (arising out of SLP (Civil) No. 9132 of 2015. Lastly, it was submitted that no case is made out to interfere with the matter.

I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the written submissions and the case laws cited by the learned counsel for the parties.

In the present matter, although an objection regarding maintainability of the present application has been raised by the learned AGA appearing for the State - opposite party no.1 yet keeping in view the fact that the learned counsel for the applicants has raised a legal question that female members cannot be made respondent in the proceedings under the Act, the Court is proceeding to decide the application on merits. Further, it is settled legal position that a more sensitive approach is expected from the courts before throwing a petition at the threshold on the ground of maintainability. It should be borne in mind that helpless and hapless "aggrieved person" under the Act approaches the court under the compelling circumstances. It is the duty of the court to scrutinise the facts from all angles whether a plea advanced to nullify the grievance of the aggrieved person is really legally sound and correct. The principle "justice to the cause is equivalent to the salt of ocean" should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication of his case. Hence, the Court is proceeding to deal with the case on merits at this stage itself without issuing notice to the opposite party no.2 for the reasons mentioned here-in-below.

So far as the submission that the female can not be made respondent in the proceedings initiated under the Act, in paragraph Nos. 13 and 14 of Sandhya Manoj Wankhade (supra), the Hon'ble Supreme Court has held as under:

"13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005."

Further, in paragraphs 36 of Hiral P. Harsora and others case (supra) the Apex Court has held as under:

"36. A conspectus of these judgments also leads to the result that the microscopic difference between male and female, adult and non adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment, the words "adult male person" are contrary to the object of affording protection to women who have suffered from domestic violence "of any kind". We, therefore, strike down the words "adult male" before the word "person" in Section 2(q), as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.

Having struck down these two words from the definition of "respondent" in Section 2(q), the next question that arises is whether the rest of the Act can be implemented without the aforesaid two words. This brings us to the doctrine of severability - a doctrine well-known in constitutional law and propounded for the first time in the celebrated R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930. This judgment has been applied in many cases. It is not necessary to refer to the plethora of case law on the application of this judgment, except to refer to one or two judgments directly on point."

From a perusal of the above-quoted paragraphs, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Act against them. If the 'respondent' is to be read as only an adult male person, it is evident that the women who evict or exclude the aggrieved person are not within its coverage and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront but putting forward female persons. Thus, it is clear that female can be made respondent in the proceeding initiated under the Act. The submission made by the learned counsel for the applicants that women will not be covered by the definition of the term 'respondent', as given in the DV Act, is clearly contrary to law and the same is not acceptable.

So far as the other submissions made by the learned counsel for the applicants are concerned, from a perusal of the complaint, it cannot be said that the present complaint has been filed in continuation of the earlier complaint filed by the opposite party no.2. Relationship of the parties is not disputed. Aggrieved party is living separately for the reasons mentioned in the application. Hence, it cannot be said that no cause of action arose to file the present complaint. All the essential ingredients to initiate proceedings under Section 12 of the Act are available in the present matter. It is also pertinent to mention here that the Magistrate dealing with the matter is empowered to pass suitable order if he is satisfied with the reply given by the applicants. Plea regarding maintainability of the complaint on other technical grounds i.e. the complaint was not filed on proper proforma or it was not verified in accordance with the law may be raised before the Magistrate / Court concerned at appropriate Stage. It is made clear that hyper-technical view on this ground should not be taken until and unless the basis of complaint is completely destroyed. At this stage, submissions made in this regard, cannot be accepted. Further, the applicants cannot get any help with the case laws cited by them.

In view of the above discussions, there is no substance in the submissions made by the learned counsel for the applicants. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.

Order Date :- 04.11.2016

safi