Madhya Pradesh High Court
Shailendra Kumar Mishra vs Smt Nisha Mishra on 20 December, 2023
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 20th OF DECEMBER, 2023
MISC. CRIMINAL CASE NO. 19309 of 2023
BETWEEN:-
1. SHAILENDRA KUMAR MISHRA S/O SHRI SURESH
MISHRA, AGED ABOUT 36 YEARS, OCCUPATION:
PRIVATE JOB.
2. SURESH KUMAR MISHRA S/O LATE SHRIPAL
MISHRA, AGED ABOUT 62 YEARS, OCCUPATION:
AGRICULTURST.
3. PREMADEVI MISHRA W/O SHRI SURESH KUMAR
MISHRA, AGED ABOUT 60 YEARS, OCCUPATION:
HOUSE WIFE.
4. YOGENDRA MISHRA S/O SHRI SURESH KUMAR
MISHRA, AGED ABOUT 29 YEARS, OCCUPATION -
SERVICE.
5. SMT. RAJANI MISHRA W/O SHRI YOGENDRA
MISHRA, AGED ABOUT 28 YEARS, OCCUPATION:
HOUSE WIFE
ALL RESIDENT OF Q 186 SHATABDIPURAM
POLICE STATION MAHARAJPURA GWALIOR
(MADHYA PRADESH)
6. BRAJMOHAN MISHRA S/O SURESH KUMAR
MISHRA, AGED ABOUT 38 YEARS, OCCUPATION:
AGRIUCLTURSIT R/O VILLAGE RAJPURA
POLICE STATION BAHOHI DISTT. BHIND
(MADHYA PRADESH)
7. MUNNALAL MISHRA S/O LATE SHRIPAL MISHRA,
AGED ABOUT 66 YEARS, R/O BLC TOWER
JHARNESHWAR COLONY HOSHANGABAD
BHOPAL (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI AWDHESH SINGH BHADORIYA - ADVOCATE)
AND
SMT. NISHA MISHRA W/O SHRI SHAILENDRA
2
KUMAR MISHRA, D/O SHRI MAHESH CHANDRA
PATHAK, AGED ABOUT 25 YEARS, OCCUPATION:
HOUSEWIFE R/O AM-33 DEENDAYAL NAGAR
DISTRICT GWALIOR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PURUSHOTTAM LAL SHARMA - ADVOCATE)
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This application coming on for admission this day, the court
passed the following:
ORDER
1. The present petition under Section 482 of Cr.P.C. is preferred by the
petitioners seeking quashment of the proceedings of Criminal Case
No.2849/2022 pending before the JMFC, Gwalior under Section 12
of the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as "the Act") registered vide order dated 22-
11-2022.
2. Brief facts of the case are that p etitioner No.1 and
respondent/complainant are husband and wife. They got married
on 29-04-2013 through Hindu Rites and Rituals and they blessed
with a girl child. After marriage, domestic incompatibility
prevailed between the parties on the issue of demand of dowry
from her matrimonial side and both the parties shared spree of
litigations and parties started living separately.
3. It is the submission of learned counsel for the petitioners that
respondent preferred a complaint under Section 12 of the Act
levelling the allegations of domestic violence against the petitioners
which was registered by the trial Court vide its order dated 22-11-
2022. It is further submitted that once on the same set of allegations,
the FIR registered against the petitioners under Section 498-A of
IPC has already been quashed by this Court vide order dated 11-04-
2023 in M.Cr.C.No.41915/2022, then on the same set of allegations,
complaint under Section 12 of the Act cannot be entertained. Except
petitioner No.1 all the family members live separately and they have
not harassed the complainant/respondent for any kind of demand of
dowry. They are remotely concerned. Thus, prayed for setting aside
the aforesaid impugned order whereby case has been registered
under the Act.
4. Learned counsel for the respondents opposed the prayer and
submitted that petitioners used to ill treat the respondent for the
demand of dowry and the trial Court rightly took the cognizance in
the matter under Section 12 of the Act. Only trial will unfold the
truth. He relied upon the judgment of Apex Court in the case of
Kamatchi Vs. Lakshmi Narayan, AIR 2022 SC 2932. Thus,
prayed for dismissal of this petition.
5. Heard.
6. This is a case where petitioners have challenged the proceedings
initiated against them under Section 12 of the Act. Contention of
petitioners that once petition vide M.Cr.C.No.41915/2022 was
allowed on 11-04-2023 and offence unde Section 498-A of IPC was
quashed against the petitioners, no proceedings under the Act is
maintainable, appears to be misplaced. Proceedings can be very well
maintainable for the reason that the present complaint has been filed
by the respondent under Section 12 of the Act seeking the relief of
Sections 18, 19, 20, 21 and 22 of the Act. All these provisions were
enacted in the Act as this Act has some different purpose, aims and
objects. These provisions are reproduced as under:
"18. Protection orders.--The Magistrate may, after giving
the aggrieved person and the respondent an opportunity of
being heard and on being prima facie satisfied that domestic
violence has taken place or is likely to take place, pass a
protection order in favour of the aggrieved person and
prohibit 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 of the aggrieved person
or, if the person aggrieved is a child, its school or any other
place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with
the aggrieved person, including personal, oral or written or
electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank
accounts used or held or enjoyed by both the parties, jointly
by the aggrieved person and the respondent or singly by the
respondent, including her stridhan or any other property
held either jointly by the parties or separately by them
without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any
person who give the aggrieved person assistance from
domestic violence;
(g) committing any other act as specified in the protection
order.
19. Residence orders.--(1) While disposing of an
application under sub-section (1) of section12, the
Magistrate may, on being satisfied that domestic violence
has taken place, pass a residence order--
(a) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the aggrieved
person from the shared household, whether or not the
respondent has a legal or equitable interest in the shared
household;
(b) directing the respondent to remove himself from the
shared household;
(c) restraining the respondent or any of his relatives from
entering any portion of the shared household in which the
aggrieved person resides;
(d) restraining the respondent from alienating or disposing
off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in
the shared household except with the leave of the
Magistrate; or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her
in the shared household or to pay rent for the same, if the
circumstances so require:
Provided that no order under clause (b) shall be
passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or
pass any other direction which he may deem reasonably
necessary to protect or to provide for the safety of the
aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to
execute a bond, with or without sureties, for preventing the
commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an
order under Chapter VIII of the Code of Criminal
Procedure, 1973 (2 of 1974) and shall be dealt with
accordingly.
(5) While passing an order under sub-section (1), sub-
section (2) or sub-section (3), the court may also pass an
order directing the officer in charge of the nearest police
station to give protection to the aggrieved person or to assist
her or the person making an application on her behalf in the
implementation of the order.
(6) While making an order under sub-section (1), the
Magistrate may impose on the respondent obligations
relating to the discharge of rent and other payments, having
regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the
police station in whose jurisdiction the Magistrate has been
approached to assist in the implementation of the protection
order.
(8) The Magistrate may direct the respondent to return to the
possession of the aggrieved person her stridhan or any other
property or valuable security to which she is entitled to.
20. Monetary reliefs.--(1) While disposing of an application
under sub-section (1) of section 12,the Magistrate may direct
the respondent to pay monetary relief to meet the expenses
incurred and losses suffered by the aggrieved person and
any child of the aggrieved person as a result of the domestic
violence and such relief may include, but not limited to,--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved
person; and
(d) the maintenance for the aggrieved person as well as her
children, if any, including an order under or in addition to
an order of maintenance under section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for
the time being in force.
(2) The monetary relief granted under this section shall be
adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case
may require.
(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the parties to
the application and to the in charge of the police station
within the local limits of whose jurisdiction the respondent
resides.
(5) The respondent shall pay the monetary relief granted to
the aggrieved person within the period specified in the order
under sub-section (1).
(6) Upon the failure on the part of the respondent to make
payment in terms of the order under sub-section (1), the
Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to
deposit with the court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent, which
amount may be adjusted towards the monetary relief payable
by the respondent.
21. Custody orders.--Notwithstanding anything contained in
any other law for the time being in force, the Magistrate
may, at any stage of hearing of the application for protection
order or for any other relief under this Act grant temporary
custody of any child or children to the aggrieved person or
the person making an application on her behalf and specify,
if necessary, the arrangements for visit of such child or
children by the respondent:
Provided that if the Magistrate is of the opinion that
any visit of the respondent may be harmful to the interests of
the child or children, the Magistrate shall refuse to allow
such visit.
22. Compensation orders.--In addition to other reliefs as
may be granted under this Act, the Magistrate may on an
application being made by the aggrieved person, pass an
order directing the respondent to pay compensation and
damages for the injuries, including mental torture and
emotional distress, caused by the acts of domestic violence
committed by that respondent."
6. Legislative intent of this Act has some different aims and objects
than the proceedings under Section 498-A of IPC. Even otherwise
the allegations in the complaint under Section 498-A of IPC and
present allegations are different. They can certainly be maintainable.
Therefore, at this stage arguments of petitioner lacks merits and
deserves to be rejected.
7. So far as merits part is concerned, when allegations are specific in
nature and in respect of accused persons then the trial is the best
forum where the truth would come to the fore and parties shall be at
liberty to lead their evidence and show their part of truth. In trial
Court both the parties would have ample opportunities to submit
their plight by documentary as well as oral.
8. Submissions raised by counsel for the petitioners are of no avail at
this stage because the jurisdiction under Section 482 of Cr.P.C. is to
be exercised very sparingly and in exceptional circumstances and its
scope is not such wide wherein, it can venture into arena of disputed
facts.
9. In the cumulative analysis, the petition preferred by the petitioner
fails and is hereby dismissed being bereft of merits.
(ANAND PATHAK)
Anil* JUDGE
ANIL KUMAR
CHAURASIYA
2023.12.22
11:04:22 +05'30'
