Bombay High Court
Nur Ali Sardar Ali Shah And Others vs Rehana Bi Sayyad Ali Shah on 29 July, 2025
(1) Cri.WP-823-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 823 OF 2024
Nur Ali s/o. Sardar Ali Shah
Age : 44 years, Occu: Business
R/o. Block No. 44/4 74,
Katodara Houseing Colony, Surat.
2. Shah Shabanabi Nur Ali
Age: 40 years, Occu: Household,
R/o. Block No. 44/4 74,
Katodara Houseing Colony, Surat.
3. Sardarali Navajali Shah
Age : 73 years, Occu: Nil,
R/o. Ho. No.123, Mandarwaja Bakhad,
Mohalla, Khwaja Nagar, Surat.
4. Kheroonesha Sardar Ali Shah
Age :66 years, Occu: Household,
R/o. Ho. No.123, Mandarwaja Bakhad,
Mohalla, Khwaja Nagar, Surat. ...PETITIONERS
VERSUS
Rehana Bi Sayyad Ali Shah,
Age: 38 years, Occu: Business,
R/o. Plot No.185, Patelwadi,
Nandurbar. ...RESPONDENT
Mr. Sohail Subhadar Shaikh, Advocate for the Petitioners.
Mr. Ram B. Deshpande, Advocate for Respondent.
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CORAM : KISHORE C. SANT, J.
RESERVED ON : 9th JULY 2025.
PRONOUNCED ON : 29th JULY 2025.
ORDER :
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1. Heard Mr. Shaikh, the learned Advocate for the Petitioners, and
Mr. Deshpande, the learned Advocate for Respondent. The matter is
heard finally at the stage of admission, with the consent of the parties.
2. This Writ Petition arises out of proceeding in Criminal Misc.
Application No.383 of 2021, pending before the learned Judicial
Magistrate, First Class, Nandurbar. The petitioners are the original
opponents in complaint filed by the Respondent before the learned
JMFC, Nandurbar, under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 (for short "D. V. Act") claiming relief under
Sections 18, 19, 20, 22 and 23 of the D. V. Act which is sought to be
quashed by this writ petition.
3. The respondent is the daughter-in-law of petitioner No.1 and 2.
The petitioner Nos. 3 and 4 are the brother-in-law and wife of brother-
in-law of respondent.
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4. The respondent filed a complaint under the D. V. Act. It is stated
that respondent married to son of petitioner Nos. 1 and 2, namely,
Sayyad Ali Sardar Ali in the year 2002. The husband of the respondent
died on 4th December 2003. It is alleged that in the marriage, her parents
spent amount of Rs. 4 lakhs approximately. She was staying in the joint
family at Surat. The present petitioners used to harass her on petty
reasons. They used to keep her starved. They started demanding an
amount of Rs.10 lakhs, and on that count, they used to harass her
mentally and physically. When she was pregnant, it is alleged that the
petitioners again started harassing her, saying that no amount is paid by
her father in the marriage, and now, again there would be one more
addition in the family, and started asking her to terminate the pregnancy.
They did not like husband of the respondent taking her care during the
pregnancy.
5. She delivered a baby on 2nd October 2003 at her parents' house at
Shahada. The husband of the informant, because of the harassment,
allegedly committed suicide on 12th October 2003. After demise of the
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husband, the petitioners again started harassing her. After the son of
informant became major and started looking after family business, the
same is not liked by the petitioners and again there was harassment on
that count. It is ultimately alleged that now the flat in which the
opponent was staying with her son is being tried to be occupied by the
petitioners. It is on this, the complaint was filed and reliefs were prayed
for.
6. The petitioners appeared and filed say. It is specific case of the
petitioners in the say that the petition is filed only to harass the
petitioners. There is no shared household since 2003 i.e. since death of
husband of respondent. Thus, no proceeding is maintainable against
them. The petitioners are residents of Surat, whereas the respondent is
residing in Shahada.
7. The petitioners have now approached this Court for quashing of
the proceeding mainly on the ground that the provisions of D.V. Act
came into force in the year 2005. The respondent and petitioners are
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staying separately since 2003 i.e. prior to coming into force of D. V. Act.
The provisions of the D. V. Act are, therefore, not applicable, and no
proceeding can be filed for the alleged act, even if any.
8. The learned Advocate for the petitioners relied upon the following
judgments:
(i) Tulshiram @ Tulsidas s/o. Haribhau Patil and Ors. Vs.
The State of Maharashtra Through Wadi Police
Station and Ors. in Criminal Application (APL)
No.387 of 2020 (Nagpur Bench).
(ii) Shivaji Gangadhar Ingale and Ors. Vs. The State of
Maharashtra and Anr. in Criminal Writ Petition
No.358 of 2022 (Aurangabad Bench).
9. In the case of Tulshiram Patil (supra), the Court considered that
the parties therein were not residing together or they never lived in a
shared household with the complainant. By considering the definition
given in Section 2(f) of the words, "domestic relationship" and in
Section 2(q) "Respondent", the Court held that when the persons do not
stay together under one roof, they cannot be said to be persons having a
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domestic relationship. So far as the word Respondent is concerned, the
Court held that the complainant has to be a person aggrieved against the
persons who are in domestic relationship. By considering Section 2 of
the D. V. Act, the Court considered whether the act cannot be said to be
an act of Domestic Violence. In the said case, the Court recorded that
the complainant failed to show domestic relationship as defined under
Section 2(f) and a shared household as defined in Section 2(s) of the
said Act. It is further held that the petitioner therein also cannot be
termed as a Respondent as defined in Section 2(q) of the Act, and on
that basis, the complaint came to be quashed and set aside by granting
liberty to file appropriate proceeding under Civil or Criminal law for
ascertaining the rights.
10. In the case of Shivaji Ingale (supra), the facts were that the
petitioner was charged under Section 4 of the Protection of Children
from Sexual Offences (for short "POCSO") Act, for an act committed
prior to enactment of POCSO Act. This Court further considered Article
20(1) of the Constitution of India. It was held that when the Act was
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allegedly committed, the provisions of POCSO were not in force, and
therefore, the petitioner therein could not be charged for the offences
under the POCSO, as on the date of commission of alleged act, POCSO
was not in force.
11. The learned Advocate for the respondent relied upon a judgment
passed by the Hon'ble Apex Court in the case of Kamatchi Vs. Lakshmi
Narayanan1, wherein the Apex Court held that there is no limitation for
filing a complaint under the D. V. Act. The Hon'ble Apex Court
considered Section 468 of Cr.P.C and held that the same is not
applicable. It was the case where the proceeding was filed for breach of
an order passed under Section 12. It is held that the limitation would
start only from the date of breach of order under Section 12. However,
the question in the present case is that on the date of alleged incident,
the provisions of D. V. Act were not in force. Secondly, in the present
case, it is seen that since 2003, parties are not in domestic relationship,
and therefore, they cannot be said to be respondent, and in view of this,
1 2022 STPL 4200 SC
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no provisions of D. V. Act would be applicable in the present case.
12. Considering all above, this Court is of the opinion that
continuation of the present proceeding against the present petitioners
would be an abuse of process of law. The proceeding is not maintainable
under the D. V. Act. Hence, the following order:
ORDER
(i) Criminal Writ Petition stands allowed in terms of
prayer clause (B) which reads as under:-
(B). That, the proceeding in Criminal M. A. No.383
of 2021 pending before the learned Judicial
Magistrate First Class, Nandurbar may kindly be
quashed and set aside.
(ii) With this, criminal writ petition stands disposed off.
[KISHORE C. SANT, J.]
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