No specific allegations but general and vague allegations, continuation of the proceedings against such relatives would be abuse of Judicial process.

THE HON’BLE SRI JUSTICE M. SEETHARAMA MURTI

Criminal Petition No.8604 of 2012

19-01-2015

1.A.K. Srinivasa Rao and 3 others.Petitioners

The State of A.P., rep., by its PP, High Court of A.P., Hyderabad and another
. Respondents

Counsel for the petitioners: Sri M.V. Suresh

Counsel for Respondent No.1: STATE
Counsel for Respondent No.2: Sri A.S.Bhavani Shankar

<Gist :

>Head Note:

? Cases referred:

(2012) 10 SCC 741

THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI

CRIMINAL PETITION No.8604 OF 2012

ORDER:

This is an application under Section 482 of the Code of Criminal
Procedure, 1973 (for short, the CrPC) by the petitioners-respondents 5 to
8 in D.V.C.No.11 of 2012, on the file of the learned VII Metropolitan
Magistrate, Cyberabad at Hayathnagar, Hyderabad, requesting to quash
the proceedings against them in the said D.V.Case.

2. I have heard the submissions of the learned counsel for the
petitioners, the learned counsel for the 2nd respondent/complainant and
the learned Additional Public Prosecutor representing the 1st
respondent/State. I have carefully perused the material record.

2. (a) The 2nd respondent herein is the petitioner in the DV
Case. The petitioners herein are the respondents 5 to 8 in the DV Case.
The parties shall hereinafter be referred to as petitioners and the 2nd
respondent as they are arraigned in this criminal petition.

3. Now, the points for determination are –
i) Whether the petitioners have made out valid and
sufficient grounds for quashing the proceedings
against them in D.V. Case No.11 of 2012 on the file of
learned VII Metropolitan Magistrate, Cyberabad at
Hayathnagar, Hyderabad?

ii) Whether the uncontroverted allegations made in the
complaint of the 2nd respondent do not disclose even a
prima facie case against the petitioners?

iii) Whether the application of the 2nd respondent should
not have been entertained by the learned Magistrate
against the petitioners (respondents 5 to 8) without
discussing the domestic and legal relationship of the
petitioners with the 2nd respondent?
4. POINTS:
4. (a) The substance of the petition, which was presented by
the 2nd respondent to the Protection Officer, in brief, is this:
The respondents 1 to 4 in the DV Case, who are not parties to
the present criminal petition, are the husband, parents-in-law and the
brother-in-law of the 2nd respondent herein. The petitioners herein are the
respondents 5 to 8 in the DV Case. Under the lawful wedlock, the 2nd
respondent has given birth to a male child by name Puneet. Since
02.11.2009, on which date the Reception was arranged, troubles had started
between the spouses as the marriage was not liked by the 2nd respondents
Parents-in-law as it is a love marriage and no dowry was given as expected
by them. Further, on 03.11.2009, her husband had arranged a dinner for
the family, friends and others in a restaurant. During the dinner party, the
2nd respondent was made to sit separately from all the family members
and, her husband did not talk to her despite her request that she was
feeling lonely. She was abused very badly in the presence of all the
persons, who had attended that dinner party. Her parents-in-law stated to
her that she had absconded from her parents house and married their son
without any dowry. Her husband and parents-in-law, who all are residing
in the same house, started harassing her and her parents-in-law used to
ask her to bring dowry or else to take divorce so that their son can re-
marry and get a good amount of dowry. As the 2nd respondent could not
bring the dowry as demanded, on 22.04.2010, they all had abused her and
her parents in filthy language and also removed her Mangal Sutram and
Mettelu and had driven her out of the house stating that she should enter
the house only with the dowry amount of Rs.5,00,000/-. Therefore, she
had left her matrimonial home and made a complaint before the Women
Police Station, Begumpet. Her parents-in-law, husband and brother-in-law
were called by the said police on the next day i.e., 23.04.2010 for
counselling. At that counselling they had admitted their mistakes and had
promised to treat the 2nd respondent well without indulging in any such
acts of harassment. On such assurance, the 2nd respondent lead conjugal
life with her husband at Kummariguda, Secunderabad. However, her
husband had again started harassing her; and, for not bringing dowry,
subjected her to both physical and mental torture by making sarcastic
remarks against her and her parents. Therefore, after staying in the house
with her husband for few days, the 2nd respondent had returned to her
parents house. Even at the time when the boy was born, her husband and
parents-in-law did not come to see the child. When she was with her
husband and was weak during pregnancy, they did not care to even take
her to a hospital. After she went to her parents house and when her
husband took her to the hospital, it was revealed that she was pregnant
and she was advised to take bed rest. During the period from 14.05.2011 to
05.11.2011 her husband took a separate residence for both of them in
Venkatagiri. However, being under the influence of his parents and others
and being instigated by them he had continued the harassment and
subjected the 2nd respondent/complainant to both mental and physical
torture. On one occasion her husband tried to throttle her with an
intention to kill her. When his parents asked him to give divorce to the 2nd
respondent so that he can re-marry and get good amount of dowry, he had
stated that he is a diabetic and nobody else will come forward to marry
him. Thus, suppressing the fact that he is a diabetic, he had married the
2nd respondent and had continued the torture for brining dowry being
instigated by his parents and relatives, whose names are mentioned at the
foot of the complaint. At the time of marriage of the brother-in-law of the
2nd respondent, dowry was paid. Therefore, they became greedier. In the
2nd week of November, 2011, the husband of the 2nd respondent had
shifted the residence from Venkatagiri to Manikonda on the premise that
he is going to Bangalore/Mumbai on office trips. Thus, he had left the 2nd
respondent alone and later did not join her. Therefore, she was forced to
come back to her parents house and had started staying with them since
22.02.2012. It has come to her notice that her husband has filed a divorce
case in O.P. No.73 of 2012 on the file of the Family Court, Secunderabad,
with false allegations. She is resisting the said petition. The 2nd
respondents husband is earning Rs.70,000/- per month by working in a
multi national company and is still neglecting to maintain her and her son.
She is now living at the mercy of her parents.
Pleading so, in her petition, the 2nd respondent had claimed the
following reliefs:-

1) Protection orders for her and her child, and also to
her parents and other family members.

2) Maintenance @ Rs.30,000/- per month for her and
her child.

3) Payment of rent @ Rs.5,000/- per month as she
wanted to live in a rented house.

4) Direction to the respondents to pay an amount of
Rs.5,00,000/- as compensation towards loss of
earnings and for the mental and physical
harassment meted out by them to her.

5) To continue to have the custody of the child with
her only.
Pursuant to the said complaint, the D.V. Case was taken on file against all
the respondents therein including the petitioners herein.
4. (b) Now, the petitioners herein, who are respondents 5 to 8
in the DV Case, are seeking to quash proceedings against them in the said
DV Case by inter alia contending as under:
The petitioners are strangers to the family of the 2nd
respondent and her husband. On receipt of summons in the D.V. Case, the
petitioners had entered their appearance and are contesting the case. The
complaint given by the 2nd respondent does not disclose commission of
any domestic violence as defined in Section 2(g) read with Section 3 of the
Protection of Women from Domestic Violence Act, 2005 (the Act, for
short). The petitioners do not come within the definition of domestic
relationship as defined in Section 2(f) of the Act. They are not related by
consanguinity, marriage or through a relationship in the nature of
marriage. They are also not the family members living together as joint
family. The contents of the petition of the 2nd respondent do not disclose
any acts of so called domestic violence committed by the petitioners
herein. The learned Magistrate had failed to apply his mind and had
mechanically issued the summons ignoring the fact that the petitioners do
not come within the purview of the provisions of the Act. It would be a
mental torture for the petitioners to face the trial, which is un-necessary in
the DV Case. Hence, the continuation of the proceedings in the DV Case
against the petitioners is nothing but an abuse of process of law and the
court.

4. (c) At the time of hearing, the learned counsel for the
petitioners had submitted that the petitioners are distantly related to the
husband of the second respondent. He had also submitted that the
relationship of the petitioners is not even stated in the petition of the 2nd
respondent. He had further submitted that absolutely no overt acts or acts
of domestic violence are attributed to the petitioners herein and that a
reading of the entire complaint also disclose no case much less a prima facie
case against the petitioners and that therefore, taking into consideration
the uncontroverted averments in the petition of the 2nd respondent the
proceedings in the DV Case against the petitioners are liable to be
quashed.
4. (d) On the other hand, the learned counsel for the 2nd
respondent had submitted that at the foot of the petition, while giving the
particulars of the husband and others, the names of the petitioners are
shown at serial nos.5 to 8 of the petition and that the averments in the
petition disclose that the petitioners had committed the offence.
4. (e) In the light of the contentions and rival contentions, I
have gone through the contents of the petition carefully. Apart from the
allegations against the husband, parents-in-law and the brother-in-law the
only allegations made against the relatives are as follows: However, being
under the influence of his parents and others and being instigated by them
he had continued the harassment and subjected the complainant to both
mental and physical torture. Thus, suppressing the said fact, he had
married the 2nd respondent and had continued the torture for brining
dowry being instigated by his parents and relatives, whose names are
mentioned at the foot of said complaint. Thus, apart from the averments
against the husband, the parents-in-law and the brother-in-law, the above
averments were only made in the petition. The said averments are
omnibus in nature. In one of the said averments the words employed are –
under the influence of his parents and others and being instigated by
them. Who are the said others mentioned in the above statement is not
stated in the petition. In the second averment, it is stated to the effect that
suppressing that the husband of the 2nd respondent is a diabetic, he had
married her and continued the torture for bringing dowry being
instigated by his parents and relatives whose names are mentioned at the
foot of the said complaint. As already noted, the precise relationship of
the petitioners with the husband of the 2nd respondent is not even pleaded
in the petition of the 2nd respondent. The averments, which are
emphasised supra, are omnibus and vague allegations without any details.
Therefore, even on a plain consideration of all the uncontroverted
averments made in the petition of the 2nd respondent, it is obvious that the
same do not disclose a prima facie case against the present petitioners. On
this ground alone, the DV Case against the petitioners is liable to be
quashed.

4. (f) Coming next to the contention that the learned
Magistrate ought not to have taken the case on file against the present
petitioners for the reason that the petitioners have no domestic
relationship and that they have never shared the household or lived
together in a shared household with the 2nd respondent and her husband,
it is necessary to refer to the relevant provisions. Under Section 12 of the
Act, an aggrieved person may present an application to the Magistrate
seeking one or more reliefs under the Act.

Section 2 (a) defines aggrieved person and it reads as follows:

2 (a) aggrieved person means any woman who is, or has
been, in a domestic relationship with the respondent and who
alleges to have been subjected to any act of domestic violence by
the respondent.
The above definition makes a reference to domestic relationship between
the aggrieved woman and the respondent in the DV case. The definition
also makes a reference to domestic violence.
Domestic relationship which is defined in Section 2(f) reads as
under:
2 (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
Thus, Section 2 (f) of the Act dealing with domestic relationship refers to
shared household; and, shared household as defined in Section 2(s)
reads as follows:
2 (s) shared household means a household where the person
aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent and
includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either the
aggrieved person or the respondent or both jointly or singly have
any right, title, interest or equity and includes such a household
which may belong to the joint family of which the respondent is
a member, irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the shared
house-hold.

Section 2 (q) defines respondent as follows:
2 (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:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a complaint
against a relative of the husband or the male partner
Domestic violence which is defined in Section 2(g) reads as under:
2 (g) domestic violence has the same meaning as assigned to
it in Section 3.

Section 3 of the Act defines domestic violence and the said provision
reads as follows:

3. Definition of domestic violence:- For the purposes of this
Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it
(a) harms or injuries or endangers the health, safety, life,
limb or well-being, whether mental or physical, of the aggrieved
person or tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse; or
b) harasses, harms, injures or endangers the aggrieved
person with a view to coerce her or any other person related to
her to meet any unlawful demand for dowry or other property or
valuable security; or
(c) has the effect of threatening the aggrieved person or any
person related to her by any conduct mentioned in clause (a) or
clause (b); or
(d) otherwise injures or causes harm, whether physical or
mental, to the aggrieved person.

Thus, Section 3 of the Act also in the introductory part makes a reference to
the word respondent.
4. (g) A plain and analytical reading and a harmonious
consideration of all the provisions of the Act, particularly, the above
definitions brings to the fore the following aspects: A person can be
arraigned as a respondent in a DV case provided he is or has been in a
domestic relationship with the aggrieved person. The proviso to Section
2(q) says that an aggrieved wife may also file a complaint against the
relation of a husband. A plain reading of the said definition would make it
manifest that any person who can be arraigned as a respondent must be a
person who is or has been in domestic relationship with the aggrieved
person and must have subjected the aggrieved person to any act of
domestic violence. Unless the said requirements are fulfilled a person
cannot be arraigned as a respondent in a DV Case. Coming to the aspect of
domestic relationship, the domestic relationship means a relationship
between two persons who either are living together or had 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.
The definition of shared household is already extracted supra.

4. (h) Therefore, in the well-considered view of this Court, for
a person to be made a respondent in a DV case filed by an aggrieved
woman, such respondent, must have a domestic relationship with the
aggrieved person and must have been living or must have lived together
in a shared household along with the aggrieved person 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. Therefore, when any person who is so related who has been not
living or had not lived together at any point of time with the aggrieved
person in a shared household and who has/had no domestic relationship
cannot be made a respondent to a case filed by the woman under the
provisions of the Act.

4. (i) To put it in other words, in order to make a person as a
respondent in a DV case filed under section 12 of the Act, there must be a
domestic relationship either in present or in the past between the
aggrieved person and the respondent. In any case the domestic
relationship must be in existence at the relevant time when aggrieved
person has been subjected to any act of domestic violence by the
respondent. It is noticeable from the provisions that a domestic
relationship arises between the aggrieved person and another in case
when either they are living together or have at any point of time lived
together in a shared house hold and 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.
The aggrieved person and the respondent need not be living together in a
shared household at the time of the filing of the case/petition and it would
be sufficient if they had lived together at any point of time in the past,
when the alleged acts/omissions/conduct complained of had taken place.

4. (j) Reverting to the facts of the case, all the petitioners are
residents of Prakasam District whereas the 2nd respondent is a resident of
Hyderabad. Her husband, parents in law and brother-in-law are stated to
be residents of Secunderabad. There is no averment in the petition of the
2nd respondent and no material is also placed on record to show that the
petitioners are having or had any domestic relationship with the 2nd
respondent. It is not pleaded or shown by any material brought on record
that the petitioners and the 2nd respondent are living together or had lived
together at any point of time in a shared household and are having or had
a domestic relationship with the 2nd respondent. Further, after the
proceedings in Crime No.204 of 2010 were quashed by this Court, by
orders dated 04.10.2012, the present DV case was filed by the 2nd
respondent. The law is well settled that in a matrimonial case like the
present case, when only a casual reference is made to the relatives of the
husband and there is absence of specific allegations of active involvement
in the matter and when the allegations made are omnibus and vague in
nature and when the un-controverted allegations made in the
complaint/DV case do not disclose even a prima facie case, the continuation
of the proceedings against such relatives of the husband would be an
abuse of judicial process. The above view of this Court finds support from
the ratio in the decision in Geeta Mehrotra v. State of U.P . Therefore, this
case is an evidently fit case to quash the proceedings to prevent abuse of
process of court and secure the ends of justice.
5. Viewed thus, this Court finds that the petitioners have made
out valid and sufficient grounds to quash the proceedings against them in
the D.V.C.No.11 of 2012 on the file of VII Metropolitan Magistrate,
Cyberabad at Hayatnagar. The points are accordingly answered in favour
of the petitioners.
6. In the result, the criminal petition is allowed and the
proceedings against the petitioners/respondents 5 to 8 in D.V.C.No.11 of
2012, on the file of learned VII Metropolitan Magistrate, Cyberabad at
Hayathnagar, Hyderabad are quashed.
Miscellaneous petitions pending, if any, in this petition shall
stand closed.
____________________________
M.SEETHARAMA MURTI, J
Date: 19.01.2015

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