Gujarat High Court
Bhavnaben Vipulkumar Babariya vs State Of Gujarat on 24 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1137 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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BHAVNABEN VIPULKUMAR BABARIYA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MS. ALKA B VANIYA(6945) for the Respondent(s) No. 2
MR. MEET THAKKAR, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 24/02/2025
ORAL JUDGMENT
1. Rule, returnable forthwith. With consent of learned
advocates for both the parties, the present application is
taken for final hearing.
2. Present revision application Section 397 read with
401 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code' for short) is preferred being
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aggrieved and dissatisfied by order dated 24.7.2023
passed by the learned 5th Additional Sessions Judge,
Amreli (hereinafter referred to as 'the learned Sessions
Court' for short) in Criminal Appeal No. 7 of 2023 as well
as order dated 12.1.2023 passed by the learned Additional
Judicial Magistrate First Class, Amreli (hereinafter referred
to as 'the Magistrate Court' for short) below Exh-10 in
Criminal Misc. Application No. 136 of 2021.
3. The facts giving rise for preferring the present
revision application is that the applicant Nos.1, 2 and 3
(hereinafter referred to as 'the applicants" for short) are
sister-in-law, brother-in-law (i.e. husband of sister-in-law)
and brother-in-law of the respondent. It is their case that
the brother of applicant No.1 and 3 namely Hasmukhbhai
@Hirenbhai Dharaiya got married with Chetanaben
(hereinafter referred to as 'the respondent' for short)
according to Hindu rites and rituals on 6.5.2017. After the
marriage, the couple started living together in joint family
along with father-in-law and mother-in-law at Liliya. It was
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the case of the applicants that they had never stayed as a
joint family along with the respondent. It was the case of
the applicants that the marriage life of Hasmukhbhai and
respondent No.2 was running smoothly but thereafter the
marital life of Hasmukhbhai and the respondent No. 2
sailed into rough weather and differences cropped up
between the couple due to various reasons. However, a
baby girl namely Yana was born on 5.4.2018 out of the
wedlock of the couple. However, despite the birth of the
child, the matrimonial dispute between the couple
persisted. The brother of the applicant Nos.1 and 3 i.e.
Hasmukhbhai preferred a family suit being Family Suit No.
35 of 2019 which was filed under Section 9 of the Hindu
Marriage Act before the Family Court. The Family Suit was
filed on 18.6.2019 for restitution of conjugal rights.
4. It was the case of the applicants that a counter blast
to the family suit No. 35 of 2019, an First Information
Report (FIR) was preferred against all the family members
of the husband of the respondent. FIR also arraigned the
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present applicants as the accused. It was the case of the
applicant that they have never lived together with the
respondent pursuant to her marriage with
Hasmukhbhai.As a matter of fact, it was the case of the
applicant No.1 that since 2017, the applicant No.2 was
sent to Germany by his employer and, therefore, applicant
No.1 being wife of applicant No.2 also went to Germany
along with the husband at the relevant point of time when
the issue of matrimonial dispute of the respondent was
taking place. It was also the case of the applicants that
applicant No.3 was a government employee and was
residing separately and no one was responsible for the
matrimonial dispute of the wedded couple. It is the case of
the applicants that pursuant to the FIR, a writ-petition
came to be preferred by the applicants before this Hon'ble
Court being Special Criminal Application No. 7820 of 2019.
This Court by order dated 31.7.2024 has quashed the FIR
qua the present applicants in Special Criminal Application
No. 7820 of 2019.
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5. It is the case of the applicants that even after
preferring an FIR, the respondent preferred an application
under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as
'the D.V. Act' for short) by making false and completely
incorrect allegations against the family members of her
husband and in particular the applicants. On being served
with the notice of the Criminal Misc. Application No. 136 of
2021 filed under the D.V. Act, 2005, the applicants
appeared through their advocate and filed reply vide Exh-
9. It was the case of the applicant that they have never
resided with the respondent, the applicant cannot be
joined and made responsible / liable under the D.V. Act,
2005 and, therefore, the applicants preferred an
application vide Exh-10 and prayed that notice issued to
them may be withdrawn and they may be discharged from
the proceedings under the D.V. Act, 2005. Pursuant to the
application filed below Exh-10, the respondent filed a
reply, which was exhibited below Exh-11. The learned
Magistrate Court, after hearing both the sides and
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considering the material on record, was pleased to reject
the application preferred by the applicants by way of an
order dated 12.1.2023.
6. Being aggrieved and dissatisfied by order dated
12.1.2023 passed by the learned Magistrate Court, the
applicants preferred an appeal under Section 29 of the
D.V. Act, 2005 before the learned Sessions Court. The
appeal came to be numbered as Criminal Appeal No. 7 of
2023. The learned Sessions Court, after hearing the
parties and perusing the material on record, was pleased
to reject the appeal filed by the applicants by way of
impugned judgment and order dated 24.7.2023, which
resultantly confirmed the order passed by the learned
Magistrate Court dated 12.1.2023. Being aggrieved and
dissatisfied by the impugned order dated 24.7.2023
passed by the learned Sessions Court and the order dated
12.1.2023 passed by the learned Magistrate Court, the
present revision application is preferred by the present
applicants.
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7. This Court has heard Mr. Ritvij Oza, learned advocate
for the applicants, Ms. Alka Vaniya, learned advocate for
the respondent No.2 and Mr. Meet Thakkar, learned
Additional Public Prosecutor for the State-respondent.
8. Mr. Ritvij Oza, learned advocate for the applicants
submitted that the impugned orders passed by the Courts
below are contrary to law, facts and evidence on record.
The learned Sessions Court as well as learned Magistrate
Court have failed to appreciate and consider the fact that
the application under the D.V. Act, 2005 was only
preferred against the present applicants which, inter alia,
was a frivolous allegation and was with a view to harass
the present applicants. The applicants have never resided
with the respondent or shared a house-hold and,
therefore, no proceedings under the D.V. Act can be
preferred against the present applicants. The learned
Sessions Court as well as the learned Magistrate Court
ought to have discharged the present applicants from the
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proceedings. It was submitted by Mr. Oza that the real
crux of the matter was that the respondent was taking
vengeance and creating hurdle in the proceedings
initiated by her husband under the Hindu Marriage Act.
The present proceedings are nothing but a counter blast
and the same deserves to be rejected only on this ground.
There is no sufficient ground to proceed against the
present applicants if the application under the D.V. Act
read with carefully there are only general allegations
made against the present applicants. There is nothing on
record to show any credence against the allegations
made. The allegation is only an exaggerated version.
Maximum allegation is made that they were instigating
the husband of the respondent. Such allegations can be as
vague as it can be. Therefore, no credence can be given to
such allegations. Further, before filing of the application
under the D.V. Act, 2005, an FIR was also registered
against the applicants by the respondent. This Court in
Special Criminal Application No. 7820 of 2019 was pleased
to quash the FIR against the present applicants. In view of
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the same, Mr. Oza, learned advocate submitted that the
allegations made against the present applicants are
frivolous and without credence and, therefore, the order
passed by the learned Magistrate Court as well as learned
Sessions Court is bad in law, perverse and are required to
be quashed and set-aside. In view of such submissions,
Mr. Oza, learned advocate has prayed to allow the present
revision application filed by the present applicants.
9. Per contra, Ms. Alka Vaniya, learned advocate for the
respondent has submitted that the name of the applicants
are clearly reflected in the application made by the
respondent. In the application it can be observed that the
applicants were instigating husband of the respondent and
even accusation is made that they were demanding dowry
from the present respondent and, therefore, giving
physical and mental torture. It was further submitted that
if the impugned orders are perused carefully then there is
clear-cut observation made by the learned Sessions Court
as well as learned Magistrate Court that there are
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allegations against the applicants that they have
demanded dowry. In view of such allegations, it could be
improper to quash the present application. In view of such
submissions, Ms. Vaniya has submitted that the orders
passed by the learned Magistrate and learned Sessions
Court are just and proper and require no interference.
With such submissions, Ms. Vaniya has prayed to reject
the present revision application preferred by the present
applicants.
10. After hearing learned advocates for both the parties
and perused the material placed on record, the fact is not
in dispute that the present applicants are sister-in-law,
husband of sister-in-law as well as brother-in-law of the
respondent. The application preferred under the D.V. Act,
2005, if perused carefully, makes general allegations
against the applicants. The allegations are giving
instigating to the husband of the respondent so that the
respondent can be harassed. Further, there is no specific
allegation pertaining any of the applicants being involved
in any of the incident. It is also not in dispute that the
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husband of the respondent had preferred a Family Suit
and thereafter an FIR has been filed by the present
respondent and thereafter, application is filed under the
D.V. Act, 2005. It may be true that some of the allegations
made against the present applicants are little bit different
and were made in D.V. Act, 2005, the fact is that this
Court in Special Criminal Application No. 7820 of 2019 was
pleased to quash the FIR against the present applicants.
Even looking to the allegations made in the present
application under the D.V. Act, the same are nothing but
general allegations. However, the fact is not in dispute
that the applicants are living separately and they have not
lived together and shared house-hold with respondent
No.2. All these facts, brought together, would make it
clear that the allegations made against the applicants are
an afterthought and vague allegations as well as the
counterblast to the proceedings initiated by husband of
the respondent. This aspect has not been considered by
the learned Sessions Court as well as the learned
Magistrate Court. In view of the same, it would be an
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infirmity to sustain the allegations made against the
present applicants and upheld the observations made by
the learned Magistrate Court as well as learned Sessions
Court. Resultantly, the present application is required to
be allowed and is hereby allowed. The order dated
24.7.2023 passed by the learned 5 th Additional Sessions
Judge, Amreli in Criminal Appeal No. 7 of 2023 as well as
order dated 12.1.2023 passed by the learned Additional
Judicial Magistrate First Class, Amreli below Exh-10 in
Criminal Misc. Application No. 136 of 2021 are hereby
quashed and set-aside.
Resultantly, the present revision application is
allowed with above mentioned observation with no order
as to costs. Rule is made absolute to the aforesaid extent.
(PRANAV TRIVEDI,J)
SAJ GEORGE
