if Wife is not taken to the house of Husband, then domestic violence is in continuation against the Husband and others. Means DV Case may be filed after one Year of Separation.

2014 STPL(Web) 1537 MP 1
Bhaskar Mishra Vs. Smt. Shailja Mishra
http://www.stpl-india.in
2014 STPL(Web) 1537 MP
[2014(2) Crimes 646]
MADHYA PRADESH HIGH COURT
(N.K. GUPTA, J.)
BHASKAR MISHRA
Appellant
VERSUS
SMT. SHAILJA MISHRA
Respondent
Miscellaneous Criminal Case No. 6199 of 2013 (J)-Decided on 4-10-2013.
Protection of Women from Domestic Violence Act, 2005—Section 12—Criminal Procedure Code,
1973—Section 482 – Quashing of Proceedings – Domestic violence – Not quashed – Plea of harassment
– Earlier also petitioner acquitted in 498A IPC case – Wife not living with husband – Maintenance
granted to her – Held: Entire allegations made by respondent against applicants shall be considered by
trial Court after taking evidence of parties—At this stage it cannot be said that application filed under
Section 12 of Special Act is not maintainable—There is scope that report of Protection Officer may be
obtained in favour of applicants and thereafter proceedings may be dropped, but in that Special Act where
no limitation is fixed for filing of application, no shelter can be given to applicants at this stage though
they were acquitted from charge of offence under Section 498A of IPC – Petition dismissed. Trial Court to
precede trial.
(Paras 8 to 10)
Cases Referred:
1. Ajay Kant Sharma v. Smt. Alka Sharma, 2008(1) JLJ 393: 2007(4) MPLJ 193. (Para 4)
2. Dasrath P. Bundela v. State of M.P., 2012(1) MPHT 196. (Para 5)
3. District Cooperative Central Bank Isagarh v. Leeladhan and Anr., 2012(1) MPHT 201. (Para 5)
4. Goli @ Sharda Devi v. State of MP, 2009(3) MPLJ 610. (Para 5)
5. Dr. Atiq Mohammad v. State of MP, 2005(3) MPHT 52. (Para 5)
6. Preeti Gupta v. State of Jharkhand, 2010(4) Crimes 19 (SC): (2010) 7 SCC 667: 2010(6) Supreme 312.
(Para 5)
7. State of Haryana v. Ch. Bhajan Lal and Ors., AIR 1992 SC 604. (Para 5)
8. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhare and Ors., 2011(II) MPWN 33: (2011) 3 SCC
650. (Para 6)
ORDER
N.K. Gupta, J. —By the instant petition under section 482 of CrPC the applicants have challenged the
proceedings of the Misc. Case No.16/2013 pending before the JMFC Rewa relating to Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Special Act”).
2. The brief facts of the case are that the complainant/respondent is the wife of the applicant No.1 Bhaskar
Mishra, whereas the remaining applicants are relatives of Bhaskar Mishra. A dispute arose between the
parties and the applicant No.1 had moved an application for decree of divorce under Section 13 of the
Hindu Marriage Act, but his application was dismissed. Some more proceedings were prosecuted by the 2014 STPL(Web) 1537 MP 2
Bhaskar Mishra Vs. Smt. Shailja Mishra
http://www.stpl-india.in
complainant against the applicants. At present the respondent has moved an application under Section 12
of the Special Act against all the applicants before the trial Court.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the applicants has submitted that the respondent has moved a criminal case
against the applicant No.1 and others for the offence punishable under Section 498A of IPC and they were
acquitted. The applicant No.1 is paying maintenance to the respondent as per the order passed in the
proceeding under Section 125 of CrPC Hence, there is no any violence done by any of the applicants
thereafter. The application filed by the respondent under Section 12 of the Special Act is not
maintainable. It is also submitted that according to the definition of the respondent given in Section 2(q)
of the Special Act only male members can be made respondents, and therefore the proceeding pending
before the trial Court against the applicants No.2 and 3 is not-maintainable. In support of his contention,
the learned counsel for the applicants has placed his reliance upon the order passed by the Single Bench
of this Court in the case of Ajay Kant Sharma v. Smt. Alka Sharma.[ 2008(1) JLJ 393: 2007(4) MPLJ
193.]
5. It is also submitted by the learned counsel for the applicants that when a proceeding under Section
498A of IPC was concluded and the applicants were not found guilty, then the proceeding under Section
12 of the Special Act is initiated only to harass the applicants. For the powers of this Court under section
482 of Cr.P.C. and the reasons for quashing the FIR, the learned counsel for the applicants has placed his
reliance upon the orders passed by the Single Benches of this Court in the cases of Dasrath P. Bundela v.
State of MP.[ 2012(1) MPHT 196.]; District Cooperative Central Bank, Isagarh v. Leeladhan and another
[2012(1) MPHT 201.]; Goli @ Sharda Devi v. State of MP [2009(3) MPLJ 610.] and Dr. Atiq
Mohammad v. State of MP.[ 2005(3) MPHT 52.] Also he has placed his reliance upon the judgment
passed by Hon’ble the Apex Court in the case of Preeti Gupta v. State of Jharkhand [2010(4) Crimes 19
(SC): (2010) 7 SCC 667: 2010(6) Supreme 312.] and State of Haryana v. Ch. Bhajan Lal and others.[ AIR
1992 SC 604.] Therefore, it is prayed that the application filed by the respondent under section 12 of the
Special Act may be quashed.
6. On the other hand, the learned counsel for the respondent has submitted that interpretation done by the
learned counsel for the applicants to the provisions of Section 2(q) of the Special Act is not correct. The
female members may also be prosecuted by that provision. In support of his contention, he has placed his
reliance upon the judgment of Hon’ble the apex Court in the case of Sandhya Manoj Wankhade v. Manoj
Bhimrao Wankhade and others [2011(11) MPWN 33: (2011)3 SCC 650.] It is also submitted that scope
of Section 12 of the Special Act is more wide and the respondent can proceed for shelter and other
facilities, which are not covered under Section 125 of CrPC, and therefore if the applicant No.1 is
depositing the maintenance amount, then the right of the respondent is still exists for other facilities.
Similarly, no divorce took place between the parties, and therefore the applicant No.1 and his family
members are not taking the respondent to their house, hence the domestic violence is continued.
Therefore, if the applicants are acquitted in the case of Section 498A of IPC, then it cannot be said that
the proceedings are initiated only td harass the applicants. Under such circumstances, it is prayed that the
present petition filed by the applicants under Section 482 of CrPC may be dismissed.
7. After considering the submissions made by the learned counsel for the parties and looking to the facts
and circumstances of the case, it is apparent from the judgment passed by Hon’ble the Apex Court in the
case of Sandhya Manoj (supra) the Hon’ble Supreme Court has emphasized the words “may also file a
complaint against the relatives of the husband or male partner” and in those words female relatives were
not excluded, therefore the respondent can be a female member also. In the light of the aforesaid
judgment, it appears that the order passed by the Single Bench of this Court in the case of Ajay Kant
Sharma (supra) is per inqurium, and therefore, it cannot be applied at this stage. Hence, the contention of 2014 STPL(Web) 1537 MP 3
Bhaskar Mishra Vs. Smt. Shailja Mishra
http://www.stpl-india.in
the learned counsel for the applicants cannot be accepted that the application filed under Section 12 of the
Special Act cannot be prosecuted against the applicants No.2 and 3.
8. Similarly, it is apparent that the respondent is still wife of the applicant No.1 and the remaining applicants are family members of the applicant No.1. Though maintenance is granted to the respondent, however, if she is not taken to the house of the applicant No.1, then domestic violence is in continuation against the respondent, and therefore prima facie it cannot be said that an application under Section 12 of the Special Act is not maintainable. The entire allegations made by the respondent against the applicants shall be considered by the trial Court after taking evidence of the parties, and therefore at this stage it cannot be said that the application filed under Section 12 of the Special Act is not maintainable.

9. The learned counsel for the applicants has placed his reliance upon the various judgments and orders of Hon’ble the apex Court and the’ Single Benches of this Court, however those are related for the offence punishable under Section 498A of IPC and other offences, but the proceedings under section 12 of the Special Act are different. There is a scope that a report of the Protection Officer may be obtained in favour of the applicants and thereafter proceedings may be dropped, but in that Special Act where no limitation is fixed for filing of the application, no shelter can be given to the applicants at this stage though they were acquitted from the. charge of offence under Section 498A of IPC.
10. On the basis of aforesaid discussion, prima facie it cannot be said that the application filed under Section 12 of the Special Act is not maintainable, and therefore there is no basis by which the present petition filed by the applicants under Section 482 of CrPC can be accepted. Consequently, it is hereby dismissed with no order as to costs. The interim order dated 16.5.2013 is automatically vacated. The trial Court is directed to proceed with the trial.
11. A copy of this order be sent to the trial Court for information and compliance.
U.K. Tripathi for applicants; Dilip Pandey for respondent.
Miscellaneous Criminal Case dismissed.
——

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