Delhi High Court

Satish Sharma vs State & Anr. on 19 August, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: August 08, 2011
                                 Judgment delivered on: August 19, 2011

+      CRL.M.C. NO. 2305/2008

       SATISH SHARMA                                         ....PETITIONER

                    Through:    Mr.S.C.Singhal, Advocate.

                          Versus

       STATE & ANR.                                      ....RESPONDENTS

                    Through:    Ms. Jasbir Kaur, APP for R-1.
                                Mr. Vivek Singh Bishnoi, Advocate for
                                Mr.V.K.Ohri, Advocate for R-2.




        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Satish Sharma, the petitioner herein vide the instant petition

under Section 482 Cr.P.C. is seeking following prayer:

"i) Criminal Complaint Case No.1363/2001 titled as "Shipali Sharma Vs. Gaurav Sharma & Ors" pending in the court of Shri Pooran Chand, Metropolitan Magistrate, New Delhi and the summoning order dated 31.05.2008 in the aforesaid complaint case be quashed so far as petitioner is concerned.

ii) Cost of the petition may also be kindly awarded in favour of the petitioner and against the respondent."

2. Briefly stated, facts relevant for the disposal of this petition are

that the petitioner is husband of Late maternal aunt of Gaurav

Sharma. Respondent No.2 Shipali Sharma was married to Gaurav

Sharma on 29.04.2005. The marriage between them was not a

success, which led to filing of a divorce petition by Gaurav Sharma.

When respondent No.2 was served with the notice of divorce

petition, she filed a complaint under Section 12 of the Protection of

Women from Domestic Violence Act, 2005(for short "the Act")

against Gaurav Sharma and five others, including the petitioner.

Learned Metropolitan Magistrate, on consideration of the complaint

under the Act found prima facie case against four out of six

respondents named in the complaint and issued process for

appearance against them. Petitioner is one of those named accused

persons.

3. Feeling aggrieved by the above, petitioner Satish Sharma has

preferred this petition under Section 482 Cr.P.C. seeking quashing of

the complaint against him.

4. Learned Sh. S.C.Singhal, Advocate appearing on behalf of the

petitioner has submitted that the complaint against the petitioner as

also the summoning order dated 31st May, 2008 qua him are liable

to be set aside for the reason that the learned Trial Court has totally

ignored the definition of domestic relationship as given in Section

2(f) of the Act and failed to appreciate that the petitioner does not

even fall within the definition of the respondent as given in Section

2(q) of the Act. Learned counsel submitted that the Trial Court has

failed to appreciate that the petitioner is only a distant relative of

husband of the respondent No. 2, being the husband of late sister of

mother-in-law of the respondent No. 2, as such, in all probabilities,

he is not expected to get involved in the domestic issues of

matrimonial family of the respondent No.2. Learned counsel further

argued that the Trial Court, while appreciating the complaint and

preliminary evidence, has totally ignored that the allegations against

the petitioner are highly vague and they relate to the year 2005 and

2006 whereas the complaint has been filed much later in May, 2008

as a counterblast to the divorce petition filed by Gaurav Sharma,

husband of the respondent No. 2. Learned counsel contended that

the petition under Section 12 of the Act filed by the respondent No.

2 is an abuse of process of law and is nothing but an attempt to rope

in entire family of her husband with a view to pressurize them.

Thus, he has urged for quashing of complaint as well as the

summoning order dated 31st May, 2008 qua the petitioner.

5. Learned APP as also counsel for respondent No.2, on the

contrary, has contended that the complaint under Section 12 of the

Act, prima facie, discloses the involvement of the petitioner in

domestic violence meted out to respondent No.2 Therefore, the

impugned summoning order cannot be faulted. Thus, they have

strongly urged for dismissal of the petition under Section 482 Cr.P.C.

6. In order to appreciate the rival contentions, it would be useful

to have a glance over the relevant provisions of the Act. Section 12

of the Act entitles an aggrieved person, or a Protection Officer, or

any other person acting on behalf of the aggrieved person to apply

to the Magistrate for grant of one or more reliefs under the Act.

Section 18 of the Act enumerates the orders which the Magistrate

can pass in favour of the aggrieved person. These orders include

order prohibiting the respondent from (a) committing any act of

domestic violence; (b) aiding or abetting in the commission of acts

of domestic violence; (c) entering the place of employment, or

school in the case of the child, of the aggrieved person; (d)

attempting to communicate with the aggrieved person, (e)

alienating any assets or operating bank accounts and bank lockers

used or enjoyed by both the parties, or singly by the respondent and

(f) causing violence to the dependants or other relatives of the

aggrieved person. The list of protection orders mentioned in Section

18 of the Act is not exhaustive and it is open to the Magistrate to

pass any other appropriate order in consonance with the objective of

the Act. Section 19 of the Act confers power on the Magistrate to

pass a Residence Order on being satisfied that domestic violence

had taken place. Such order may restrain the respondent from

dispossessing the aggrieved person or disturbing her possession

from the shared household, restrain him or any of his relatives from

entering any portion of the shared household where the aggrieved

person resides, restrain him from alienating or disposing of the

shared household or creating encumbrances on it, restrain him from

renouncing his rights in the shared household, and may also direct

the respondent to remove himself from the shared household or to

secure same level of alternate accommodation for the aggrieved

person as was enjoyed by her in the shared household or to pay rent

for the same. Under Section 20, the Magistrate while disposing of an

application under Section 12 of the Act can direct the respondent to

pay monetary relief to the aggrieved person in respect of loss of

earnings, medical expenses, loss caused due to destruction, damage

or removal of any property from her control and maintenance of the

aggrieved person as well as her children. He can also order a lump

sum payment or monthly payment of the maintenance. Under

Section 21 of the Act, the Magistrate may grant temporary custody

of the children to the aggrieved person and may deny visit of the

respondent to the children of the aggrieved person. Under Section

22, the Magistrate can direct the respondent to make payment of

compensation and damages for the injuries, including mental torture

and emotional distress. Under Section 23, the Magistrate is

competent to pass against the respondent such interim order as he

deems fit in the facts and circumstances of the case. It would thus

be seen that on an application moved by the aggrieved person

under Section 12 of the Act, the Magistrate can pass orders against

the respondent granting relief to the aggrieved person and such

orders are essentially civil in nature.

7. Respondent has been defined thus under Section 2(q) of the

Act:

"(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act."

8. From reading of above, it is apparent that respondent means a

male adult person who is or has been in a domestic relationship with

the aggrieved person. Domestic relationship has been defined

under Section 2(f) of the Act:

"(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family."

9. On reading of above definition, it is clear that domestic

relationship means a relationship between two persons who live or

have at any point of time lived together in a shared household when

they are related by consanguinity, marriage or a relationship in the

nature of marriage, adoption or are family members living together

as a joint family. In the instant case, there is nothing in the

complaint to suggest that the petitioner ever resided together with

the respondent No.2 after her marriage or he ever shared the

matrimonial home of respondent No.2 at any given time. Perusal of

the copy of the complaint under Section 12 of the Act annexed with

the petition would show that in the complaint, respondent

No.2/complainant has shown her address as that of her matrimonial

home H-1/125, Ground Floor, Vikas Puri, and the address of the

petitioner as B-336, Hari Nagar, Delhi. From this, it is evident that

the petitioner, who is husband of late sister of mother-in-law of

respondent No.2, has been living at a different place, as such there

is no question of his being in a domestic relationship with

respondent No.2. As such, he does not fall within the definition of

the "respondent" as defined under Section 2(f) of the Act. Perusal of

the impugned order would show that the learned Metropolitan

Magistrate, while passing the impugned summoning order, dropped

the names of maternal uncle and aunt of husband of respondent

No.2 from the array of accused persons for the reason that they do

not fall within the definition of "respondent" under the act. The

allegations against the maternal uncle and aunt of husband of

respondent No.2 in the complaint are exactly similar to the

allegations against the petitioner, who also does not fall within the

definition of "respondent". Therefore, it is beyond comprehension

as to how and for what reasons the learned M.M. has made a

distinction between the petitioner and maternal uncle and aunt of

husband of respondent No.2. Thus, in my view, the impugned order

dated 31.05.2008 of learned M.M. suffers from inherent defect and

cannot be sustained.

10. Coming to the merits of the case. The allegations against the

petitioner in the complaint under Section 12 of the Act are

reproduced thus:

"After the wedding on 29/4/2005, when I reached my in- laws in the morning all the respondents including Mrs. And Mr. Neeraj Sharma (Maami and Maama) Mr. Satish Sharma (Mausaji), who were also there in the house, told me in many words that the gifts and the cash given by my parents is not as per their status. They told me that my parents, should have given at least `20 lakhs in cash, my mother-in-law took over the entire cash, jewellery and gifts given to them by my parents and till date they are with my mother-in-law....."

"Mrs. And Mr. Neeraj Sharma (Maami and Maama) Mr. Satish Sharma (Mausaji) used to visit our house frequently also used to force me to either to bring `20 lakhs from my father or to give divorce to my husband......."

"On my first karwah chouth function I had put mehndi on my hands but my husband got angry and shouted at me saying that he did not consider me as his wife. He slapped me on my face and my mother in law washed off my mehndi forcefully. Mrs. and Mr. Neeraj Sharma (Maami and Maama) Mr. Satish Sharma (Mausaji) appreciated the treatment given to me......"

"I am living in my matrimonial home and my in-laws including my brother-in-law and Mrs. and Mr. Neeraj Sharma (Maami and Maama) Mrs. Satish Sharma (Mausaji) told me that I should listen to their advice to get my husband back who has gone missing without leaving his address. They further told me

that I should bring ` 20 lakhs in cash so they can clear off their loans and she can settle with her husband. In last two years my parents have sent goods of worth `5 lakhs on asking of my in- laws on different festivals."

11. On reading of the above, it is apparent that allegations made

in the complaint qua the petitioner are vague and general in nature.

The allegations relate to the alleged incidents of the year 2005 and

2006. Admittedly, prior to filing of complaint under Section 12 of

the Act, respondent No.2 did not file any complaint with the Police or

any authority regarding harassment or cruel treatment meted out to

her by her in-laws or the petitioner. It is not disputed that husband

of respondent No.2 had filed a divorce petition against her and she

was served with the notice of divorce petition on 21.01.2008. The

complaint under Section 12 of the Act has been filed after the

receipt of the notice of the divorce petition. From this, it can be

safely inferred that the complaint filed by respondent No.2 is a