2010 Supreme(Bom) 489

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI
Kishor
Versus
Sou. Shalini & Others
CRIMINAL WRIT PETITION NO.37 of 2008
Decided on : 30-03-2010

Headnote:Protection of Women from Domestic Violence Act, 2005 - Sections 12, 19 and 20 - Complaint under - Challenged by petitioner-husband - Contention, respondent-wife getting Rs. 2,000/- for herself as maintenance and Rs. 1000/- for son and Rs. 1200/- towards rent of separate premises in earlier proceeding under Section 125 of Cr PC - And she remaining separate for past over 15 years and no allegation of any violence before filing of complaint - Complaint under Sections 12, 19 and 20 of Act not maintainable - Held - On facts, no offence made out - Complaint ought to have thrown out - In absence of any particulars, Court have no jurisdiction to entertain complaint - Complaint not maintainable - Quashed - All orders passed in said complaint by Courts below quashed - Petition allowed. - In the instant case, peculiar facts are that admittedly the petitioner and respondents have not been in contact with each other physically or otherwise for the last 15 years before filing of the complaint against him. In other words, suddenly after a big gap of 15 years the Act of 2005 having been brought into force, respondent Nos. 1 and 2 approached the Court with the grievance that they want higher amount of maintenance and rental in lieu of accommodation as there is domestic violence on the part of the petitioner, which constitutes economic abuse and since the economic abuse is included in the domestic violence under Section 3 of the Act of 2005, offence of domestic violence is made out. The moot question, therefore, in the light of these admitted facts is whether the complaint could be said to be maintainable. In so far as the averments regarding showing name of respondent No. 1 as nominee in the service book or she being shown as dead are vague. In so far as averments regarding disposal of ancestral house at Kishor Nagar by petitioner and his mother are as vague as could be and it is not possible to hold that on such vague averments the complaint should be entertained on the ground that the averments could be proved in the evidence. That is not enough.

       Perusal of the definition of ’aggrieved person’ shows that respondent No. 1 being married wife of petitioner, respondent No. 2 being son of petitioner and minor till he attains majority would be aggrieved persons. Therefore, reading definition of ’aggrieved person’ with the definition of ’domestic relationship’ there is no manner of doubt that the application at the instance of respondent No. 1 as a wife and at the instance of respondent No. 2 till he attains the age of majority, is maintainable. The Court is, however, entitled to decipher the period of minority and majority of respondent No. 2. The expression ’has been’ and harms, injures or endangers ’occurring’ in the definition of aggrieved person and elsewhere will have to be interpreted keeping in mind the opinion expressed by the Apex Court in the case of The Secretary, Regional Transport Authority, Bangalore and another v. D.P. Sharma and another, 1989 SC 509, in particular paragraph No. 15, which reads thus :

       "15.....In our opinion, whether the expression ’has been’ occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute."

       Now Explanation - II clearly provides that ’overall facts and circumstances of the case shall be taken into consideration’. In the case at hand, the respondents have abruptly after a long gap of 15 years alleged domestic violence against the petitioner. There is no proximity shown anywhere nearer to the date of filing the complaint or any deprivation, prohibition or restriction upon demand being made before filing the complaint.

       It is true as argued by counsel for the respondents that the Act of 2005 is beneficial piece of legislation, but then the provisions of the Act of 2005 and in particular Explanation - II thereof clearly show that domestic violence cannot readily be inferred but will have to be found out on the facts and circumstances of each case. In the instant case according to Court domestic violence having been alleged only after 15 years by the respondents would constitute an abuse of process of law. Certainly this beneficial piece of legislation would be available to those who are entitled to the benefits thereof and in the instant case, Court has found that the respondents are not entitled to at least under the Act of 2005 though they may be entitled to the reliefs sought by them in the proceedings in some other Law.