Calcutta High Court (Appellete Side)

Prajjal Kumar Bhattacharya & Anr vs The State Of West Bengal & Anr on 5 January, 2021

                IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


Present:    The Hon'ble Justice Shivakant Prasad

                         CRR 3767 of 2019

                 Prajjal Kumar Bhattacharya & Anr.

                               -Versus-

                  The State of West Bengal & Anr.

For the Petitioners            :    Mr. Manjit Singh

For the Opposite Party No. 2   :    Mr. Anjan Dutta
                                    Ms. Madhurima Sarkar
Heard on                       :     16.12.2020

Judgment on                    :     05.01.2021


Shivakant Prasad, J.

In this revisional application the petitioners have sought to

quash the proceedings in connection with case No. AC-14 of 2018

under Section 12/23 of the Protection of Women from Domestic

Violence Act, 2005 (in short D.V. Act, 2005) now pending before the

Court of learned Judicial Magistrate, 4th Court, Alipore, South 24-

Parganas by assailing the order dated 18.11.2019 passed by learned

Additional District and Sessions Judge, 2nd Fast Track Court, Alipore,

South 24-Parganas in Criminal Appeal No. 10 of 2019 affirming the

order dated 10.12.2018 of the learned Judicial Magistrate, 4th Court,

Alipore on an application filed under Section 25 of the Protection of

Women from Domestic Violence Act, 2005.

The petitioner no. 1 is a retired Central Government employee.

The petitioner no. 2 is housewife of the petitioner no. 1. Previous to

the retirement of the petitioner no. 1, they used to reside at Lucknow

in their own home and occasionally visit their son at Kolkata, but they

reside permanently at Lucknow. The opposite party no. 2 is the

daughter-in-law of the petitioners.

After receiving notice, the petitioners appeared before the

learned Magistrate and filed an application under Section 25 of the

D.V. Act, 2005, praying for deletion of their names on the grounds

assigned in the said application mainly under Sections 2(a), 2(f), 2(g),

2(q), 2(s), 3, 13(1), 27 and 28 of the Act on contention that there is no

specific allegations of domestic violence against the present petitioners

and that mere mentioning of relevant Sections of the D.V. Act and

languages of those sections are not sufficient. Particulars of offences

committed by each accused persons and role played by each of them

in committing the offence need to be stated as the allegations against

them but the allegations made in the complaint are completely vague

and unspecific.

It is submitted that the allegations levelled against the

petitioners in the complaint suffer from antagonistic contradictions

and inherent absurdity. The allegations even if, taken to be true, do

not make out any cause of action giving rise to initiation of a

proceeding under provisions of D.V. Act, 2005 and incidence of such

domestic violence in the complaint is entirely missing since the

purported allegations made in the complaint against the petitioners

are inherently improbable that a prudent person could never reach a

just conclusion to hold any prima facie case against them.

In support of such contention, Mr. Manjit Singh learned counsel

appearing for the petitioners relied on the observations made in the

decision of Sri Aloy Kumar Chanda & Another Vs. The State of

West Bengal & Another (2016 (1) C.CrLR 6) which is reproduced

hereunder:

16. On an analysis of the facts alleged by the opposite party no. 2 in above paragraphs of the petition of complaint I find that the allegations made by the opposite party no. 2 are vague and omnibus, because the specific date, month and year of the incidents are not disclosed in the petition of complaint. Moreover, some of the allegations are highly improbable and absurd. This court is not oblivious of the general tendency of the aggrieved person to rope in all members of family of the husband in any proceeding initiated by the wife, so that the wife can wreck vengeance on all members of family of the husband. On an analysis of facts alleged by the opposite party no. 2 in the petition of complaint I am of the opinion that no domestic violence is made out against the petitioner nos. 2 and 3 who are elder brother-in-law and sister-in-law of the opposite party no. 2, though the allegation of domestic violence is made out against the petitioner/husband. In "P. Venkatrajam and Others v. State (A.P.)" reported in 2015 (2) AICLR 900the allegations of domestic violence made against the father-in-law and brother-in-law of the aggrieved persons were found to be vague and omnibus. In the said report, the Andhra Pradesh High Court quashed the proceeding under Section 12 of the Domestic Violence Act against the father-in-law and brother-in-law of the aggrieved persons, as the allegations made against them were found to be vague and non-specific. By relying on the said decision I am also inclined to quash the proceeding against the petitioner nos. 2 and 3 who happens to be the brother-in-law and sister-in-law of the opposite party no. 2.

Reference is also made to a case of Shyamlal Devda and Ors.

Vs. Parimala [2020 (3) SCC 14: 2020 AIR (SC) 762] adverting my

attention to paragraph 9 to contend that there is no substantial

allegation against the petitioners/the parents in law of the opposite

party no. 2 which reads thus:

9. In the present case, the respondent has made allegations of domestic violence against fourteen appellants. Appellant No.14 is the husband and appellants No.1 and 2 are the parents-in-law of the respondent. All other appellants are relatives of parents-in-law of the respondent. Appellants No.3, 5, 9, 11 and 12 are the brothers of father-in-law of the respondent. Appellants No.4, 6 and 10 are the wives of appellants No.3, 5 and 9 respectively. Appellants No.7 and 8 are the parents of appellant No.1. Appellants No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10 are the residents of State of Rajasthan and appellants No.11 to 13 are the residents of State of Gujarat. Admittedly, the matrimonial house of the respondent and appellant No.1 has been at Chennai. Insofar as appellant No.14-husband of the respondent and appellants No.1 and 2-Parents-in-law, there are averments of alleging domestic violence alleging that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment to the respondent. There are no specific allegations as to how other relatives of appellant No.14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High Court was not right in saying that there was prima facie case against the other appellants No.3 to 13. Since there are no specific allegations against appellants No.3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed.

Having regard to the above observation in the cited decision, it

appears that the Hon'ble Apex Court declined to quash the

proceeding against parents in law, finding that there were averments

of allegations that parents in law had taken away the Jewellery of

the aggrieved person/respondent gifted by her father on the

occasion of the marriage.

Now, it would be apt to take notice of the averments made in

paragraphs 4, 6, 8 and 9 of the application under Section 12 of D.V.

Act, 2005 to decipher fact therefrom as to whether there is

substantial allegation against the petitioners and whether any relief

has been prayed for against them by the aggrieved person /opposite

party no. 2.

In paragraph 4, it is categorically averred that on 03.02.2017,

the aggrieved person was taken to her matrimonial home, being her

shared household situated at Sherwood Estate, 169 N.S.C. Bose

Road, Block-I, Flat no. L1, Narendrapur, P.S. Sonarpur, Kolkata-700

103, South 24-Parganas, and that she had received a substantial

amount of gold ornaments and other valuable presentations on the

day of bridal ceremony held on 04.02.2017 as per a list annexed to

the application under Section 12 of the Act and all such stridhan

articles were entrusted to the respondents, according to their

direction on the pretext of keeping the same in safe custody.

Averments made in paragraph 6 reflect that she had noticed

that her husband is a habitual drunker and each and every day he

used to return home under the influence of liquor and she tried her

best to rectify the respondent no. 1 and even, intimated the same to

the respondent no. 2 and 3 being her parents in law, but the

respondent no. 2 and 3 (the present petitioners) instead of taking

any effort or endeavour to rectify the bad behaviour and habits of the

respondent no. 1 (husband) not only had abused the aggrieved

person but also had perpetrated physical violence upon her but she

was keen to keep the marital tie intact.

It is depicted from the statements in paragraph 8 that since

before the marriage between herself and the respondent no.1, she

was in avocation with Tata AIG General Insurance Company Ltd. But

owing to continuous act of domestic violence upon her by the

respondents, her performance got affected that her employer issued

a Performance Improvement Program Letter dated 25.5.2017 and

subsequent, the petitioner was deprived of earning her livelihood.

In my view such an averment of allegation may be directed

against her husband who had developed bad habit allegedly being a

drunk and beating her under drunken state of mind which might

have told upon her mind to such extent that she could not perform

her duty well as the manager of the company to the satisfaction of

her employer but such allegation by no stretch of imagination can be

considered as against the present petitioners/the parents in law of

the aggrieved person and allegation so made may be treated as vague

and without any substance.

In paragraph 9 of the application, it has been averred by the

aggrieved person that respondent no. 1(husband) escalated torture

upon her but the respondent nos. 2 and 3 (parents in law) did not

interfere when the respondent no.1/husband tried to put an end to

her life by subjecting her to smothering with pillow with active

assistance and indulgence of the respondent nos.2 and 3.

In the averments made in the application under Section 12 of

the Act, 2005, applicant has contended that despite having

knowledge regarding such deteriorated mental condition of the

petitioner owing to such continuous perpetration torture, the

respondent nos. 1, 2 and 3 instead of deescalating such torture and

fomentations upon her, had escalated such torture to a substantial

level and be it mentioned here that such returning home by the

respondent no. 1 under the influence of liquor and perpetration of

torture, acts of domestic violence upon the petitioner had become a

regular routine to the petitioner and even, the petitioner had noticed

that the respondent no. 1 has developed several extramarital

relationship with various women and kept busy in contacting those

women over Whatsapp, Facebook and Messenger and on being

raising protest thereof, the petitioner was not only physically

assaulted by the respondent no. 1 at the instance of the respondent

nos. 2 and 3, but she was also subjected to smothering with a pillow

by the respondent no. 1 with the active assistance and indulgence of

the respondent no. 2 and 3 and thereby all the respondents had tried

to put an end to the life of the petitioner and when the petitioner

somehow had been able to free herself from such atrocities being

perpetrated by the respondents upon her and further had tried to

communicate her parents over telephone, her mobile phone was

snatched by the respondents and the respondent no. 2 and 3 instead

of "restraining" the respondent no. 1 from causing perpetration of

such torture upon the petitioner, had not only denied to intervene

into it, but also had casually shrugged off the incident by stating

that their son being the respondent no. 1 had an angry streak.

However, the petitioner had to pay visit to doctor immediately and

had to get medically treated owing to such heinous act of domestic

violence upon herself by the respondents, more particularly by the

respondent no. 1, with the active instigation and indulgence of the

other respondents.

To support such contention the aggrieved person/opposite

party no. 2 has annexed certain medical papers but they do not

support the contention of subjecting her to smothering with pillow

by her husband with active assistance and indulgence of her parents

in law because had it been so, the aggrieved person might have been

suffocated to death but no medical documents annexed to the

application really supports such contention. Therefore, such an

allegation prima facie appears to be vague and omnibus.

On behalf of the opposite party no. 2, it is submitted that the

husband filed one divorce suit before the learned District Judge at

Alipore vide Matrimonial Suit No. 3176 of 2017 which is pending for

its adjudication. On perusal of the plaint of Matrimonial Suit, it

clearly deciphered that the opposite party live in the shared

household.

It is contended on behalf of the petitioner that the present

petitioners never verbally abused their daughter in law. Keeping in

mind for peaceful life of their son, they never raised any objection,

never lodged any complaint with any authority, rather the petitioners

are the victim of violence caused by the so called aggrieved person and

her parental relatives. Presently Sri Arup Kumar Mukherjee, the

father of the aggrieved person who used to hold threat in petitioners

showing his high access with the political lords and higher police

authorities.

In my opinion, the averments of allegations as against the

parents in law (the present petitioners) appear to be vague and

omnibus to wreck the vengeance against the petitioners because it

may not be possible for the old aged parents to have control over their

erring son who had developed a bad habit as alleged by the aggrieved

person.

It would not be out of the context to take note of the averments

made in the plaint of Matrimonial Suit No. 3176 of 2017 which has

been made part of the affidavit in opposition filed by the opposite

party no. 2. It emerges therefrom that her husband has prayed for a

decree of dissolution of marriage solemnised on 27.11.2016 between

the petitioner and the respondent in accordance with Special

Marriage Act, 1954, wherein the averments made is that the plaintiff

on the contrary, came to know that his wife is a habitual drunker

and had no self respect. The respondent /wife had forced him to take

her out to night clubs on a daily basis though the plaintiff /husband

was not comfortable with such culture but had to do so under

pressure on various occasions and that the parents of his wife had

been putting pressure on him for being ghar jamai (domesticated son

in law) and have a family life without his aged parents. It is also

alleged in the plaint that on 13.8.2017 there was get-together of

family members in connection with marriage anniversary of cousin

brother of the plaintiff when his wife/aggrieved person had boozed

there too much that she was not in a position to even walk and so

13.8.2017 she left her matrimonial home at her own wish and

without her consent and or support of her husband or her parents in

law.

All such allegations which are averred in the plaint are on

affidavit in opposition filed on behalf of the aggrieved person. There

are allegations and counter allegations which are undoubtedly

required to be considered on the basis of the evidence in the

matrimonial proceedings by and between the wife and husband.

This Court is aware of a latest decision of the Hon'ble Apex

Court in Satish Chander Ahuja Vs. Sneha Ahuja case reported in

2020 SCC 841 wherein it has been held that the aggrieved

person/daughter in law would be entitled to the living in the shared

house even exclusively belonging to her parents in law. It is not

understood whether the duplex Flat at Narendrapur belongs

exclusively to the parents in law or the husband of the aggrieved

person but, prima facie, it is revealed that the petitioners occasionally

make visit to the place. Even if the petitioners are putting up on

regular basis after the retirement, the jurisdiction of the Court is well

inferred as Section 27 of the Protection of Women from Domestic

Violence Act, 2005 covers the situation. It would be profitable to

reproduce the provisions of Section 27 of the Act which reads thus:

"27. Jurisdiction (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act (2) Any order made under this Act shall be enforceable throughout India.

A plain reading of the above provision makes it clear that the petition under the Domestic Violence Act can be filed in a court where the person aggrieved permanently or temporarily resides or carries on business or is employed. In the present case, the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court, Bengaluru. In view of Section 27(1) (a) of the Act, the Metropolitan Magistrate court, Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction."

The definition of shared household includes a household where

the person aggrieved lives or at any stage had lived in a domestic

relationship. He contended that since admittedly the respondent had

lived in the property in question in the past, hence the said property

is her shared household.

Object and reason of the Act, 2005 being a Special Act cannot

be lost sight of, which provide for affective protection of the right of

women who are victim of violence of any kind in the shared house.

The Hon'ble Apex Court in Sneha Ahuja's case held that the

definition of shared household given in Section 2(s) cannot be read to

mean that shared household can only be that household which is

household of the joint family of which husband is a member or in

which husband of the aggrieved person has a share and further

observed that the judgment in S.R. Batra Vs. Taruna Batra reported in

(2007) 3SCC 169, has not correctly interpreted Section 2(s) of Act,

2005 and the judgment does not lay down a correct law.

It has been observed that where a final order has been passed

by the Magistrate under Section 12. What is the nature and life of the

said order? Section 25(2) itself contemplates an eventuality when

order passed under the Act can be altered, modified or revoked.

Section 25(2) provides:

"Section 25. Duration and alteration of orders.-

(1) xxx xxx xxx (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."

Observations in Paragraphs 108, 109, 110 and 111 of the

Hon'ble Apex Court can profitably be take note to consider the legality

and propriety of the order impugned under revision which read thus:

108. Whether apart from powers of Magistrate under Section 25(2) of the Act, 2005, the Act, 2005 contemplates any other eventuality when despite the order of residence under Section 19 an aggrieved person can be evicted or dispossessed.

109. The right to reside in shared household as granted by Section 17 itself contemplates an exception in express words, i.e., "save in accordance with the procedure established by law".

110. The procedure prescribed for proceedings under Section 19 as provided in Section 28 of the Act is as per the provisions of the Code of Criminal Procedure, 1973. Section 28 of the Act, 2005, provides as follows:- "28. Procedure.- (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18,19,20,21,22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973(2 of 1974). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure 106 for disposal of an application under section 12 or under sub-section (2) of section

23."

111. The rules have been framed under the Act, 2005, namely "The Protection of Women from Domestic Violence Rules, 2006". Rule 5 deals with Domestic Incident Report which is to be submitted by protection officer in Form I. The Form I is part of Rule which contains details in various columns to enable the Magistrate to take appropriate decision. Rule 6 provides that every application of the aggrieved person under Section 12 shall be in Form-II or as nearly as possible thereto. Form-II is again part of Rule which contains various details including orders required, residence orders, under Section 19, monetary relief under Section 20, details of previous litigation, if any, and other details to enable the Magistrate to take appropriate decision. Rule 6 sub-Rule (4) provides that for obtaining an interim ex-parte order under Section 23, an affidavit is to be filed in Form-III. The Form-III is an affidavit of an aggrieved person or the person filing affidavit on behalf of his ward, daughter, etc. The Act and the Rules thus provide for a procedure and manner of filing an application for obtaining a relief under Act, 2005. The Act, 2005, is an Special Act which provides for manner and procedure for obtaining relief by an aggrieved person.

The averments made in application under Section 12 by the

aggrieved person as against her parents in law is of the entrustment

of jewellery and stridhan articles which she received in her wedding

ceremony. This is what is the averments made in the Affidavit in

opposition which has not been refuted by the petitioners by use of

affidavit in reply. As such, the decision in Sri Aloy Kumar Chanda

(supra) is quite distinguishable from the facts of the instant case. In

respectful consideration of the decision of the Hon'ble Apex Court in

Sneha Ahuja (supra), I am of the opinion that ratio of decision is

apposite to the facts and circumstances of the instant case, inasmuch

as, the parents in law were not exonerated from the case on the

allegation of taking away jewellery by them. I find prima facie

uncontroverted allegations of entrustment of jewellery and stridhan of

the aggrieved person to the petitioners on the plea of safe keeping

which facts are required to consider in accordance with the evidence

to be adduced by the parties to the proceeding before the Trial

Magistrate.

That apart, in the Court of Judicial Magistrate, opposite party

no. 2/aggrieved person sought for the following protection orders:

"a. an order under Section 18 of PWDV Act, restraining the respondent form perpetrating any torture or acts of domestic violence, upon your petitioner;

b. an order under Section 19 of PWDV Act, directing upon the respondents to pay a sum of Rs. 50,000/- per month in favour of the petitioner for the stay of herself at a separate alternative accommodation;

c. an order under Section 20 of PWDV Act, directing upon the no. 1, to pay a sum of Rs. 1,75,000/- per month in favour of the petitioner towards the monthly monetary relief of the petitioner, which includes her expenditures towards fooding, garments, medication, conveyances and other sundries;

d. an order under Section 22 of PWDV Act, directing upon the respondents, to pay compensation to the tune of Rs. 25,00,000/- to your petitioner for causing harm, injuries and mental distress to your petitioner, upon perpetration of the acts of domestic violence. It would not be possible for your petitioner to survive at the status of the respondent no. 1, in this era of regular price hiking."

Definition of domestic violence enshrined in section 3 of the Act,

2005, means any act, omission or commission or conduct of the

respondent.

In view of the texture of the prayer portion of the application

under Section 12 of the Act, it cannot be said that no protection relief

has been sought for against the present petitioners.

In respectful consideration of the views of the Hon'ble Apex

Court in case of Sneha Ahuja (supra) and further in consideration of

the application under Section 25(2) and application under Section 12

of the Act, 2005 filed by the opposite party no. 2 herein, I am of the

view that application under Section 25(2) of the Act, 2005 was

prematurely filed on behalf of the present petitioners, ergo, the order