Bombay High Court
Jaiprakash Madhukarrao Sahurkar vs Sarika W/O Jaiprakash Sahurkar on 29 February, 2016
Bench: Z.A. Haq
1 apl497.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO .497 OF 2015
Jaiprakash Madhukarrao Sahurkar,
Aged about 43 years,
Occupation - Service,
R/o Plot No.11, Patrakkar Colony,
Manas Mandir, District Wardha.
ig .... APPLICANT
VERSUS
Sarika w/o Jaiprakash Sahurkar,
Aged about 39 years,
Occupation - Household,
R/o C/o. Sarang Dabade, Sarafa
Market, Naik Gali, Itwari, Nagpur. .... NON-APPLICANT
______________________________________________________________
Shri A.L. Deshpande, Advocate for the applicant,
Shri Kamlesh Dodani, Advocate for the non-applicant.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 29
FEBRUARY, 2016.
th
ORAL JUDGMENT :
1. Heard Shri A.L. Deshpande, Advocate for the applicant
(husband) and Shri Kamlesh Dodani, Advocate for the non-applicant
(wife).
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2. The applicant has filed this application under Section 482
of the Code of Criminal Procedure and under Article 227 of the
Constitution of India praying that the order passed by the learned
Magistrate in Misc. Criminal Application No.153/2014 on the
application (Exhibit No.35) on 18-05-2015 be set aside and the
proceedings initiated by the non-applicant under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as "the Domestic Violence Act, 2005") be quashed.
3. The marriage of the applicant and non-applicant was
solemnized on 21-02-1999. The applicant and non-applicant are
having two sons, elder studying in 10th standard and younger in 7 th
standard. The differences between the parties arose in 2013 and the
non-applicant had filed the complaint against the applicant with the
Police Station on 02-12-2013 on the basis of which first information
report was registered against the applicant for offences under Sections
498-A, 323 and 504 of the Indian Penal Code. The non-applicant filed
complaint under Section 12 of the Domestic Violence Act, 2005 before
the learned Magistrate, on 16-01-2014.
In the proceedings before the learned Magistrate, an
attempt was made for amicable settlement and the parties arrived at
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amicable settlement on 26-03-2014 and the terms were reduced to
writing.
In October 2014 the applicant filed H.M.P. No.347/2014
praying for decree for divorce under Section 13(1)(i-a) of the Hindu
Marriage Act. The applicant had filed an application before the trial
Court praying that the agreement (Tadjod Patrak) between the parties
executed on 26-03-2014 be cancelled. This application was rejected by
the trial Court.
4. The learned Magistrate conducted the trial initiated
against the applicant for offences punishable under Sections 498-A,
323 and 504 of the Indian Penal Code and by the judgment dated
15-04-2015 acquitted the applicant. After the judgment is passed by
the learned Magistrate acquitting the applicant, an application (Exhibit
No.35) came to be filed by the applicant on 27-04-2015 in the
proceedings under the Domestic Violence Act, 2005 praying that the
proceedings be dismissed in view of the findings recorded by the
learned Magistrate while acquitting the applicant. The learned trial
Judge dismissed this application by the order dated 18-05-2015.
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5. The substantive challenge is that the applicant having
been acquitted of the charge under Sections 498-A and 323 of the
Indian Penal Code, the proceedings initiated by the non-applicant
under the provisions of the Domestic Violence Act, 2005 on the same
allegations made by the non-applicant, are required to be dismissed.
This challenge is raised relying on the provisions of Section 300 of the
Code of Criminal Procedure.
Shri A.L. Deshpande, Advocate, referring to Section 28 of
the Domestic Violence Act, 2005 and Rule 6(5) of the Protection of
Women from Domestic Violence Rules, 2006, has submitted that the
proceedings under Section 12 of the Domestic Violence Act, 2005 are
governed by the provisions of the Code of Criminal Procedure, 1973
and the applications under Section 12 of the Domestic Violence Act,
2005 have to be dealt with in the same manner laid down under
Section 125 of the Code of Criminal Procedure, 1973. It is submitted
that there cannot be dispute about applicability of Section 300 of the
Code of Criminal Procedure and the entitlement of the applicant for its
benefit. The learned Advocate has submitted that the applicant having
been tried by the Court of competent jurisdiction for the offences
under Sections 498-A and 323 of the Indian Penal Code on the basis of
allegations made by the non-applicant in her complaint and the
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applicant having been acquitted, the applicant cannot be compelled to
undergo the rigour of trial under 12 of the Domestic Violence Act,
2005 on the basis of the same allegations.
It is submitted that claiming benefit under the provisions
of Domestic Violence Act, 2005, the non-applicant has to establish that
there is "domestic violence" as defined in Section 3 of the Domestic
Violence Act, 2005, and the ingredients of "domestic violence" as per
Section 3 of the Domestic Violence Act, 2005 are almost the same as
that of Section 498-A of the Indian Penal Code and once it is found by
the Court of competent jurisdiction that the non-applicant has failed to
establish that the applicant had subjected the non-applicant to cruelty
contemplated by Section 498-A of the Indian Penal Code, the applicant
cannot be put to double jeopardy of undergoing the trial under the
provisions of Section 12 of the Domestic Violence Act, 2005. In
support of the submission reliance is placed on the following
judgments :
i) Judgment given by the Andhra Pradesh High Court in the
case of Markapuram Siva Rao s/o Somaiah vs. State of
Andhra Pradesh and another in Criminal Petition
No.12970 of 2010.
ii) Judgment given by this Court in the case of G.G.A. Naidu
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vs. State of Maharashtra & Ors. reported in 2002 ALL
MR (Cri.) 1465.
iii) Judgment given by the Madras High Court in the case of
Emperor vs. John McIver reported in AIR 1936 Madras
353 (Full Bench).
iv) Judgment given by the Andhra Pradesh High Court in the
case of Thadi Narayana vs. The State of Andhra Pradesh
reported in AIR 1960 AP 1 (Full Bench).
6. Shri A.L. Deshpande, Advocate has submitted that the
findings recorded by the learned Magistrate while acquitting the
applicant of the charge under Section 498-A and Section 323 of the
Indian Penal Code are binding on the non-applicant. It is submitted
that the maxim "res-judicata provertitate accipitur" is applicable to the
criminal proceedings also. In support of this submission, reliance is
placed on the judgment given by the Hon'ble Supreme Court in the
case of Pritam Singh and another vs. The State of Punjab reported in
AIR 1956 SC 415.
7. The learned Advocate for the applicant has submitted that
the non-applicant has abused the process of law by initiating different
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proceedings against the applicant on the basis of same allegations and
the applicant having been acquitted in the proceedings initiated on the
allegations of commission of offences under Section 498-A and Section
323 of the Indian Penal Code, the non-applicant cannot be permitted
to harass the applicant by requiring the applicant to face the
proceedings under Section 12 of the Domestic Violence Act, 2005 on
the basis of same allegations. To support this submission, the learned
Advocate has relied on the judgment given by the Punjab and Haryana
High Court in the case of M.R. Tiwari vs. M/s. Aster Drugs and
Pharmaceuticals Ltd. and Ors. reported in 2009(3) Crimes 401
(P&H).
It is prayed that the application be allowed, the impugned
order be set aside and the proceedings filed by the non-applicant under
Section 12 of the Domestic Violence Act, 2005 be dismissed.
8. Shri Kalmesh Dodani, Advocate for the non-applicant has
submitted that the challenge raised by the applicant relying on the
provisions of Section 300 of the Code of Criminal Procedure is
misdirected. It is submitted that the ingredients of offence punishable
under Section 498-A of the Indian Penal Code are different from the
ingredients of "domestic violence" defined by Section 3 of the Domestic
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Violence Act, 2005. It is submitted that the standard of proof required
for convicting the accused for the offences punishable under Section
498-A and Section 323 of the Indian Penal Code is different than the
standard of proof required while considering grant of reliefs to the
aggrieved person under Section 12 of the Domestic Violence Act, 2005.
The learned Advocate has pointed out the conclusions of the learned
Magistrate in paragraph No.31 of the Judgment given in Regular
Criminal Case No.129/2014 and has submitted that the applicant is
acquitted of the charge for commission of offence under Section 498-A
and Section 323 of the Indian Penal Code because of insufficiency of
evidence. The learned Advocate for the non-applicant has submitted
that the proceedings under Section 12 of the Domestic Violence Act,
2005 are quasi-criminal, quasi-civil proceedings. To support this
submission, the learned Advocate has relied on the judgment given by
this Court in the case of Raosaheb Pandharinath Kamble and Ors.
vs. Shaila Raosaheb Kamble and Ors. reported in 2010 ALL MR
(Cri.) 2143. It is prayed that the application be dismissed with costs.
9. With the assistance of the learned Advocates for the
respective parties, I have examined documents placed on the record of
the application. In the application filed under Section 12 of the
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Domestic Violence Act, 2005, the non-applicant has prayed for relief
under Section 17 of the Domestic Violence Act, 2005 regarding her
right to reside in a shared household. The non-applicant has prayed
for relief under Section 19 of the Domestic Violence Act, 2005 for
separate accommodation or for directions to the applicant to pay
Rs.5,000/- per month to enable the non-applicant to avail separate
accommodation. The non-applicant has sought monetary reliefs under
Section 20 of the Domestic Violence Act, 2005 and has prayed that the
applicant be directed to pay Rs.20,000/- per month for food, clothes,
medical, travelling and miscellaneous items. The submissions made on
behalf of the applicant are required to be considered in the background
of the reliefs sought by the non-applicant in the application under
Section 12 of the Domestic Violence Act, 2005.
10. Section 498-A of the Indian Penal Code reads as follows :
"498-A. Husband or relative of husband of a
woman subjecting her to cruelty - Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years
and shall also be liable to fine.
Explanation - For the purpose of this Section,
"cruelty" means-
(a) any wilful conduct which is of such a nature as is
10 apl497.15
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to her
to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand."
The considerations in the prosecution under Section 498-A
of the Indian Penal Code are different from the considerations while
dealing with an application under Section 12 of the Domestic Violence
Act, 2005. "Cruelty" as explained/contemplated by Section 498-A of
the Indian Penal Code is different from the "domestic violence" as
defined by Section 3 of the Domestic Violence Act, 2005.
"Economic abuse" as defined by clause (iv) of Explanation
I of Section 3 of the Domestic Violence Act, 2005 cannot be an offence
under Section 498-A of the Indian Penal Code. The denial of right of
shared household or denial of alternate accommodation to the wife or
denial of monetary assistance to the wife will not constitute an offence
punishable under Section 498-A of the Indian Penal Code. Considering
the facts of the case, in my view, the submissions made on behalf of
the applicant relying on the provisions of Section 300 of the Code of
Criminal Procedure, are misdirected. Apart from the fact that the
11 apl497.15
applicant is acquitted of the charge of commission of offences
punishable under Section 498-A and Section 323 of the Indian Penal
Code because of insufficiency of evidence, in my view, the claim made
by the applicant under Sections 17, 19 and 20 of the Domestic
Violence Act, 2005 is not hit by the principles of res judicata and by the
findings in the judgment given in Regular Criminal Case No.129/2014.
11. There cannot be any dispute that the principles of res
judicata are applicable to criminal proceedings and the maxim "res-
judicata provertitate accipitur" will apply to the proceedings under
Section 12 of the Domestic Violence Act, 2005 as the proceedings are
quasi-civil quasi- criminal in nature. However, the point which is
required to be considered is whether the non-applicant can seek reliefs
under Section 17, Section 19 and Section 20 of the Domestic Violence
Act, 2005 on the basis of the same allegations, for which the applicant
was prosecuted under Section 498-A and Section 323 of the Indian
Penal Code.
Though, in the application under Section 12 of the
Domestic Violence Act, 2005, the non-applicant has reproduced the
same allegations against the applicant which were made in the
complaint made to the police station on the basis of which the
12 apl497.15
applicant is prosecuted for offences under Section 498-A and Section
323 of the Indian Penal Code, the pleadings/averments for seeking
reliefs under Section 17, Section 19 and Section 20 of the Domestic
Violence Act, 2005 are different. The relevant pleadings in support of
the reliefs claimed by the non-applicant are in paragraph No.60 of the
application, as follows :
"60. That the applicant is not having any source of income
and she is not doing any job and her children are also
dependent on her. It is to submit that the respondent is
lecturer earning good salary but not sparing single pai for the
applicant and the children. That the respondent is leading his
luxurious life and depriving the applicant and her children
from minimum requirements of the life. It is to submit that
the respondent No.1 can easily pay Rs.20,000/- to the
applicant for the maintenance of the applicant and her
children. It is therefore prayed that Hon'ble Court may grant
Rs.20,000/- as maintenance to the applicant."
12. The entitlement of the non-applicant for the reliefs sought
by her and the liability of the applicant to provide shared household or
to make an alternate arrangement for residence of the non-applicant
and to provide monetary assistance for food, clothes, medical,
travelling and miscellaneous items will have to be adjudicated by the
Court considering the application under Section 12 of the Domestic
Violence Act, 2005. Learned Magistrate who has decided the Regular
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Criminal Case No. 129/2014 could not have dealt with these issues.
13. In view of the above, the submissions made on behalf of
the applicant cannot be accepted. The provisions of Section 300 of the
Code of Criminal Procedure will not be attracted in the facts of the
case. The learned Magistrate has rightly considered the issue and
there is no error in the impugned order repelling the challenge raised
on behalf of the applicant.
In view of my conclusions, the judgments relied upon by
the learned Advocates representing the respective parties are not
required to be discussed in details.
14. I see no reason to interfere with the impugned order. The
application is dismissed. In the circumstances, the parties to bear their
own costs.
JUDGE
pma
