Bombay High Court
Majidkhan Nisarkhan vs Benazir Majid Khan on 29 September, 2022
Bench: V. G. Joshi
19.apl.773.22.jud 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.773 OF 2022
Applicants : 1. Majidkhan Nisarkhan,
Aged about 40, Occ. Business.
2. Nisarkhan Amanullah Khan,
Aged about 70 Yrs., Occ. Business.
3. Sherbano Nisar Khan,
Aged about 65 Yrs., Occ. Household.
4. Sajidkhan Nisarkhan,
Aged about 42 Yrs., Occ. Business.
Applicant Nos.1 to 4 r/o Kinwat, Nanded,
District Nanded.
5. Nahid Nisar Khan,
Aged about 39 Yrs., Occ. Household,
R/o Republic of kenya,
Indian Address - Malwani Paras CHS Ltd.,
Malad West, Mumbai.
6. Nikhat w/o Moin Sajjad Khan,
Aged about 38 Yrs., Occ. Household,
R/o Riyadh, Saudi Arabia.
Indian Address - Flat No.401, 4th Floor, Achraj
Reviera, Zingabai Takli, Nagpur.
7. Hina Parveen Syed Shoeb Ali,
Aged about 40 Yrs., Occ. Household,
R/o Saudi Arabia.
Indian Address - Villa No.1, Paramount Gate No.2,
Hyderabad.
- Versus -
19.apl.773.22.jud 2/8
Non-Applicant : Benazir Majid Khan,
Aged 29 Years,
R/o C/o Sayrabi Abdul Zaher Khan, Sawna, Tah.
Mahgaon, Dist. Yavatmal.
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Mr. M.N. Ali, Advocate for the Applicants.
Mr. S.G. Varshani, Advocate for the Non-Applicant.
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CORAM : VINAY JOSHI, J.
DATE : 29th SEPTEMBER, 2022.
ORAL JUDGMENT :-
Admit. Heard finally by consent of the learned Counsel for the
parties.
02] This is an application for quashing and setting aside the domestic
violence application (complaint) filed by the wife under Section 12 of the
Protection of Women from Domestic Violence Act (hereinafter shall be
referred to as 'Act' for short). Applicant Nos.1 to 7 are respondent Nos.1 to 7
in the original complaint. Applicant No.1 is husband, applicant Nos.2 and 3
are parents-in-law, whilst applicant Nos.4 to 7 are the married sisters of the
husband. The complaint is sought to be quashed on the ground of non-
maintainability by stating that the non-applicant/wife cannot be termed as
"aggrieved person" within the meaning of Section 2(a) of the Act, since she
never lived in domestic relationship. According to applicants, unless the wife
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lived with the respondents in a shared household, it cannot be termed that
they lived in domestic relationship, which is the essential ingredient to
maintain the complaint. In this regard, the applicants' learned Counsel took
me through the complaint filed by the non-applicant/wife.
03] It is the complainant's case that on 17/05/2021, she got married
with applicant No.1/husband at Village Hadgaon, District Nanded. The
husband and his family are resident of Tahsil Kinwat, District Yavatmal. On
the day of marriage, she was taken by her husband to Nagpur, where the
couple stayed for few days. Therefrom, she was directly taken to her maternal
house i.e at Village Sawna, Tahsil Mahagaon, District Yavatmal and left. It is
the complainant's case that thereafter she visited Kinwat with intent to live
with her husband, however, she was manhandled and driven away from the
house. As a consequence, she is living at her maternal house. On the basis of
such facts, the complainant, by claiming the domestic violence within the
meaning of Section 3 of the Act, has applied to the learned Magistrate in
terms of Section 12 of the Act claiming multiple reliefs.
04] The learned Counsel appearing for the applicants also took me
through a police report dated 25/10/2021 lodged by the wife for the offence
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punishable under Section 498-A of the Indian Penal Code. In the said report,
the complainant/wife has specifically stated that on the day of marriage itself,
she was taken to the Nagpur and on the following date, she was left at her
maternal house at Village Sawana. She also quoted one another incident,
where she went to her matrimonial house but she was not allowed by raising
monetary demand. The learned Counsel appearing for the complainant/wife
has produced a copy of investigation papers relating to the report under
Section 498-A of the Indian Penal Code. The fact remains that on the date of
marriage, the complainant/wife was not taken to the house of her husband
nor on the subsequent occasion i.e. on 24/07/2021 she was allowed to reside
with her husband and parents-in-law. The core question is whether the
isolated incident dated 24/07/2021 can be construed to state that the wife
was in 'domestic relationship' with her husband and in-laws. The learned
Counsel appearing for the non-applicant would submit that even a stay of a
wife for an hour amounts to domestic relationship and to be held that they
lived in a shared household.
05] There is no quarrel on the point that in order to term a lady as
"aggrieved person", she must live in domestic relationship with the
respondent. The term domestic relationship has been defined under Section
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2(f) of the Act, which means a relationship between two persons, who live or
have, at any point of time, lived together in a shared household. Contextually,
the term a 'shared household' as defined under Section 2(s) of the Act has
been gone into. It means that a household where the person aggrieved
(complainant) lives or at any stage has lived in a domestic relationship either
singly or with others. Thus, the basic requirement is that they should live in a
shared household, so as to term that there was a domestic relationship in
between the parties. By no stretch of imagination, occasional visit of the wife
on 24/07/2021 at her husband's house can be termed that she lived in a
shared household amounting to domestic relationship.
06] The applicants' learned Counsel by placing reliance on the decision
of this Court in the case of Madhusudan Murarilal Sharma vs. Jyotsna Nilesh
Sharma & Anr. - 2019 ALL MR (Cri)5054, would submit that the
establishment of domestic relations is a very core foundation of
maintainability of the proceedings under Section 12 of the Act. In this regard,
he took me through the observations made by this Court in paragraph 8,
which are reproduced herein below.
"8. The DV Act intends to cover those women who
are or have been relationship with the abuser where both
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parties have lived together in a shared household and are
related by consanguinity marriage or through a relationship
in the nature of marriage or adoption. The relationship with
family members who live together as a joint family are also
included. The intention of the Legislature was certainly not
to provide a forum and remedy to every aggrieved woman
irrespective of the circumstances, irrespective of the
relationship with the offender or the nature of grievance.
The statutory scheme reveals that the provisions of the DV
Act can be invoked only by an aggrieved person who is
defined to mean 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. The jurisdictional facts which are precondition
to taking cognizance are (a) the woman must be, or must
have been in a domestic relationship with the respondent and
(b) she must have been subjected to any act of domestic
violence by the respondent. Domestic relationship as
statutorily defined presupposes that the respondent and the
complainant lived or have lived together in a shared
householder which is defined to mean a household where the
person aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent. The
household could be owned or tenanted either jointly by the
aggrieved person or the respondent or owned or tenanted by
either or them and could belong to the joint family of which
the respondent is a member. Whether the aggrieved person
or respondent has any right, title or interest in the shared
household is immaterial."
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07] There is no reason to deviate from the proposition which has been
laid down by this Court since it is nothing but reiteration of the provisions
contained under Section 2 of the Act.
08] The complainant nowhere states that she resided with the
applicants at her matrimonial house at village Kinwat at any point of time.
Admittedly, on the date of marriage, she has not visited at her matrimonial
house, but on 24/07/2021, she tried to go there, but she was driven away.
Thus, the essential ingredient to term the complainant as "aggrieved person"
has not been fulfilled since there was no domestic relationship. Though the
applicants have relied on some other decisions to reinforce the said point, but
I do not find it necessary to multiply the decisions in view of Madhusudan's
case, which has already quoted above.
09] In view of above, the wife's complaint under Section 12 of the Act is
not maintainable and required to be quashed as regards the present
applicants. At this juncture, the non-applicant's learned Counsel would submit
that the complaint may be allowed to proceed against the husband as multiple
reliefs including monetary relief has been claimed. Unless there has been
domestic violence within the meaning of Section 3 of the Act, no reliefs could
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be granted under the special statute and, therefore, the submission cannot be
upheld. Obviously, the complainant is at liberty to resort other remedies as
available under the law to enforce her rights.
10] In view of the above, the following order is passed :
i. The application is allowed.
ii. Complaint under Section 12 of the Act bearing PWDVA Application
No.18/2021 filed by the non-applicant/wife is hereby quashed and
set aside as regards to the present applicants i.e. non-applicant
Nos.1 to 7 of the main application.
iii. The application is disposed of in the above terms.
(VINAY JOSHI, J.)
*sandesh
Signed by:SANDESH DAULATRAO
WAGHMARE
Private Secretary to the Hon'ble Judge
Signing Date:01.10.2022 15:54
