Anup S/O Omprakash Rai And Another vs Priti W/O Pankaj Rai
2022 Latest Caselaw 7538 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.


            CRIMINAL APPLICATION NO.395 OF 2022

1.      Anup s/o Omprakash Rai, Aged about
        35 years, Occupation - Business,

2.      Ankush s/o Omprakash Rai, Aged about
        32 years, Occupation - Business,

        Both R/o Near Railway Gate, Paramhans
        Nagar, Dabki Road, Bhaurad, Tq. Akola
        and Dist. Akola.
                                                 ... APPLICANTS
                            VERSUS

        Sau. Priti w/o Pankaj Rai, Aged
        about 37 years, Occupation -
        Housewife, R/o C/o Subhash
        Deolal Malaviya, Village -
        Mandu, Tah. Dharni, District -
        Amravati.

                                              ... NON APPLICANT

_____________________________________________________________
       Shri Sagar Katkar, Advocate for the applicants.
       Syed Owais Ahmed, Advocate for the non-applicant.
______________________________________________________________


                         CORAM      :     VINAY JOSHI, J.
                         DATED      :     02.08.2022.
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JUDGMENT :

Heard. ADMIT. By consent of both learned Counsel

appearing for the parties, the matter is taken up for final disposal.

2. The applicants raise a challenge to the maintainability of

application bearing PWDVA No.71 of 2021 filed by the non-applicant

under the provisions of the Protection of Women from Domestic

Violence Act 2005 (for short 'the DV Act'). Both applicants are the

brother-in-law of non-applicant/lady who initiated the proceeding in

the Court of Magistrate claiming to be subjected to domestic violence.

It is argued that the applicants never lived in domestic relationship with

the non-applicant as they did not live together in a shared household. It

is contended that soon-after the marriage, the non-applicant started to

live with her husband and in-laws at matrimonial house, which situated

at Balwant Colony, Mitra Nagar, Sindhi Camp, Akola whilst both

applicants (brother-in-law) were residing separately near Railway Gate,

Paramhans Nagar, Dabki Road, Bhaurad, Taluka Akola. So also, the

maintainability is challenge on the ground that the entire application is

vague which does not specify the day, date time and instances of

domestic violence and therefore, continuation of proceeding amounts

to abuse of the process of Court.

3. Per contra, the learned Counsel appearing for the non-

applicant resisted the application on the ground that the applicants are

very much residing in matrimonial house. The applicants have falsely

posed to be residing at some other place which is their business

concern. Secondly, it is contended that the original application bears a

specific reference in paragraphs 2 and 3 about the acts of domestic

violence at the hands of the applicants.

4. The learned Counsel for the applicants has produced copies

of Aadhar Card to support the stand that they are residing separately at

the place situated at Dabki Road, Akola. Likewise, one electricity bill of

said premises, has also been produced. The non-applicant would submit

that the place at Dabki road is family business concern of which Visiting

Card has been produced. It is submitted that the applicants have

obtained Aadhar Card on the address of business premises and thus,

they came with a false case that they are residing separately meaning

thereby they did not reside in a shared household.

5. Pertinent to note that in this application, initially the

applicants have stated their address of matrimonial house i.e. of

Balwant Colony, however, later on, by amendment they have changed

the address as Dabki Road. The application filed under Section 12 of

the DV Act says that both applicants are residing in matrimonial house,

and thus, it is a matter of trial to establish whether the applicants were

residing separately.

6. Learned Counsel for the applicants by placing reliance on

the decision of this Court in case of Mr. Prabhakar Mohite and anr. vs.

State of Maharashtra 2018 ALL MR (Cri) 4508 would submit that

unless the parties reside in matrimonial house and in absence of

specific role attributable to the applicants, the petition is liable to be

quashed. In said case, the arguing respondents were residing elsewhere

and visiting at matrimonial house at the weekend. On the basis of given

facts, it has been held that the contentions are vague and of general

nature, hence, the application was quashed.

7. In case at hand, in paragraph 2 of the application before the

trial Court the non-applicant/lady (present non-applicant) has specified

that the non-applicants nos.3 to 5 (including present applicants) always

used to raise monetary demand on account of dowry and on that count

they were abusing her in filthy language. She stated that the non-

applicants used to instigate her husband on which he used to harass

her. She also stated that prior to the Holi festival of the year 2017, the

non-applicants assaulted her and accordingly she was sent to her

maternal house. Thus, prima facie there are specific allegations

attributing to present applicants about their act of monetary demand,

abuses and assault. In the wake of such a position, the proceedings

cannot be throttled at the threshold. The act of harassment and

coercing the aggrieved person to meet unlawful demand falls within

the purview of the term of domestic violence. Therefore, it cannot be

said that there is no prima facie material to proceed with the

application.

8. In view of the above, no case of interference is made out.

Hence, the application stands rejected. No order as to costs.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

03.08.2022 15:32