Gujarat High Court

Kanaiyalal Laljibhai Patadiya vs State Of Gujarat on 30 September, 2024

                                                                                                                  NEUTRAL CITATION




                             R/SCR.A/4886/2017                                     ORDER DATED: 30/09/2024

                                                                                                                  undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SPECIAL CRIMINAL APPLICATION (DOMESTIC VIOLENCE ) NO. 4886
                                                 of 2017

                       ==========================================================
                                           KANAIYALAL LALJIBHAI PATADIYA & ANR.
                                                          Versus
                                                 STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
                       HL PATEL ADVOCATES(2034) for the Respondent(s) No. 2
                       MS MONALI BHATT, APP for the Respondent(s) No. 1
                       UMANG P RAVAL(9074) for the Respondent(s) No. 2
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                            Date : 30/09/2024

                                                             ORAL ORDER

1. By way of the present application under Section 482

of the Code of Criminal Procedure, 1973 (hereinafter

referred to as "Cr.P.C."), the applicants have prayed

to quash and set aside the judgment and order

passed by learned Judicial Magistrate First

Class, Botad in Criminal Misc. Application

No.144 of 2011 dated 1.6.2017 as well as

consequential proceedings arising therefrom.

2. Heard learned advocate Mr. Ashish M. Dagli for the

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

applicants, learned APP Ms. Monali Bhatt for the

respondent - State as well as learned advocate Mr.

Umang Raval for respondent No.2. Perused the

record.

3. Considering the facts and circumstances of the case

and with consent of the learned advocates for the

respective parties, this matter is taken up for final

disposal forthwith.

4. The facts of the case are as under:

* The petitioners are in-laws of respondent No.2

herein and the son of the petitioners got married with

respondent No.2 on 22.4.1999 at Nadiad. Out of

wedlock, two children were born; one is namely;

Shivangi and anther one namely; Rahul. Respondent

No.2 filed a complaint being Criminal Misc.

Application No.144 of 2011 on 3.10.2011 complaint

under Sections 18, 19, 20, 21 and 22 under the

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

Domestic Violence Act before the Court of learned

Judicial Magistrate First Class, Botad wherein, vide

order dated 1.6.2017 the present petitioners were

directed to pay to the respondent No.2 Rs.5,000/- as

rental amount and Rs.2,000/- as maintenance

alongwith Rs.16,000/- as compensation amount to

the respondent No.2. Against the impugned order,

the present application is preferred by the applicants

with a prayer to quash and set aside the judgment

and order passed by learned Judicial Magistrate First

Class, Botad in Criminal Misc. Application No.144 of

2011 dated 1.6.2017 as well as consequential

proceedings arising therefrom.

5. Learned advocate for the applicants submitted that

the present petition is filed by the father in law and

mother in law of the respondent No.2. It is further

submitted that the impugned judgment and order is

illegal and improper against the settled principle of

law. It is submitted that the learned Principal Senior

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

Civil Judge has exceeded jurisdiction vested in him

and has committed patent illegality in allowing the

complaint. It is submitted that respondent No.2 filed

the complaint under Sections 18, 19, 20, 21 and 22

under the Domestic Violence Act against the

husband, present applicants, minor children and

original opponent No.1 and original complainant. It is

submitted that the respondent wife has also obtained

an order of maintenance against the husband in

proceedings arising out of Section 125 of the Code of

Criminal Procedure. It is submitted that the issue is

squarely covered by the decision dated 21.6.2016

passed in Special Criminal Application No.3993

of 2014 in the case of Abdulrahim Abdulmiya

Pirzada v. State of Gujarat of the Coordinate

Bench of this Court. It is further submitted that the

husband has not challenged the impugned judgment

and order.

6. Per contra, learned advocate for the respondent No.2

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

submits that the present petition is filed only by the

father in law and mother in law and as the husband

has not challenged the impugned judgment and

order, the same has attained finality. Learned

advocate for the respondent No.2 could not

contradict the ratio laid down by the Coordinate

Bench of this Court in the case of Abdulrahim

Abdulmiya Pirzada (Supra).

7. Learned APP for the respondent - State submitted

that there is no error or illegality committed by the

learned trial Court in the impugned order and further

submitted that this Court may not interfere in the

findings arrived at by the learned trial Court in the

order impugned.

8. I have heard learned advocates for the parties and

also considered the submissions canvassed by the

learned advocates for the parties. Perused the

papers placed on record.

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

9. It transpires that the respondent No.2 has filed a

complaint under Sections Sections 18, 19, 20, 21 and

22 under the Domestic Violence Act seeking prayers

against the husband, father in law and mother in law

and minor children against the original opponent

No.2 who is allegedly having illicit relations with the

husband i.e. original opponent no.1. The challenge is

made by present petitioners on the ground that the

learned trial Court has committed an error by

allowing the application against the father in law and

mother in law. The said issue is no more res integra

in the case of Abdulrahim Abdulmiya Pirzada

(Supra), wherein, this Court has observed as under:

"It goes without saying that the husband is liable to maintain the wife and also to pay the maintenance. I do not find any error or infirmity in the impugned order so far as the liability of the husband to make good the payment of maintenance is concerned. The issue as regards the liability of mother-in-law and brother-in-law (i.e. the husband's brother) is no longer res integra.

At this juncture, it may be germane to refer to certain decisions of the Supreme Court. In the case of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, (2008)4 SCC 649, the Supreme Court has, after referring to

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

the provisions of Sections 3(b), 18 and 19 of the Hindu Adoptions and Maintenance Act, 1956, observed that maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. The Court further observed that Sections 18 and 19 of the said Act prescribe the statutory liabilities in regard to maintenance of wife by her husband, and only on his death, upon the father-in-law. Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise.

In the case of S.R. Batra and another v. Taruna Batra (Smt.), (2007)3 SCC 169, the Supreme Court has expressed the opinion that the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. In the facts of the said case, the Court observed that the house in question belonged to the mother-in- law of Smt.Taruna Batra and did not belong to her husband Amit Batra, hence Smt.Taruna Batra cannot claim any right to live in the said house. The Court was further of the view that the house in question could not be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. It was contended before the Supreme Court that a 'shared household' includes a household where the person aggrieved lives or has at any stage lived in a domestic relationship. The court did not agree with the said submission and was of the opinion that the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

From the principles enunciated in the above referred decisions, it is apparent that any right

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

which the wife has during the subsistence of her marriage and during the lifetime of her husband is against the husband and she has no right to claim any relief against the father-in-law or sister-in-law or any of the relatives of her husband inasmuch as the obligation to maintain her lies only on her husband."

10. It is settled principle of law that when the compliant

is filed by the wife against the father in law and

mother in law, to wreak vengeance for the settling

scores and would not fall within the ambit of of

illustration (7) of the illustrations delineated by the

Hon'ble Apex Court in the case of State of Haryana

v. Bhajan Lal, reported in 1992 Supp (1) SCC

335. The Apex Court in the said decision Bhajan Lal

(Supra) has set out the categories of cases in which

the inherent power under Section 482 of the Cr.P.C.

can be exercised and held in paragraph No.102 as

under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

11. In the aforesaid facts and circumstances of the case,

I am of the view that the learned trial Court has

committed an error by holding the present

petitioners liable for the prayers prayed for by the

complainant. Resonantly, the complaint against the

NEUTRAL CITATION

R/SCR.A/4886/2017 ORDER DATED: 30/09/2024

undefined

petitioners is hereby quashed and set aside. The

judgment and order passed by learned Judicial

Magistrate First Class, Botad in Criminal Misc.

Application No.144 of 2011 dated 1.6.2017 is