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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARATI H. DANGRE, J.
Mr. Prabhakar Mohite – Appellant
Vs.
The State of Maharashtra - Respondents
WRIT PETITION NO.1793 OF 2014
Decided on : 05-09-2018
Protection of Woman from Domestic Violence Act, 2005 - Section 3, 2(s), 12, 18, 19, 20, 21, 22, 23, and 31 – Criminal Procedure Code - Section 482 - Harassment on account of the demand of dowry - Marital discord between parties - Marriage between parties namely respondent No.2 and nephew of petitioner No.2 - Respondent No.2 approached by preferring an application highlighting marital discord between parties namely herself and her husband as well as her in laws - Complaint proceeded to allege harassment on account of demand of dowry and also referred to certain instances demonstrative of irretrievable breaking down of relationship on account of misunderstanding between parties - Specific case of respondent No.2 as stated in application is that after solemnization of marriage she came to reside - It further proceeds to state that present petitioners who are aunt and uncle of her husband were also residing in and used to often visit her matrimonial home - This is how in application she ropes petitioner Nos. 1 and 2 and it proceeds to state that two petitioners used to instigate husband of respondent No.2 and it was thereafter in collusion, she was harassed by all the respondents namely husband, her in laws as well as present petitioners - Applicant has categorically made a statement, in application that on every Saturday and Sunday present petitioners used to visit her matrimonial house and at that time husband of complainant used to be at home and at instigation of present petitioners along with her own in laws, she was subjected to harassment - She therefore sought protection orders from Court by filing application and invoking provisions of Domestic Violence Act, 2005 - It is on basis of this application, summons have been issued to present petitioners and being aggrieved by said action, they have filed present Writ Petition – Held, Court have already held that Section 28 of D. V. Act announces clearly and without any ambiguity intention of Parliament to apply criminal procedure generally subject to exceptions given under Act - Inherent power of High Court under Section 482 of Cr. P.C - Subject to selfimposed restrictions including factor of availability of equally efficacious alternate remedy under Section 29 of D. V. Act, would be available for redressal of grievances of party arising from orders passed in proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and also in respect of offence under Section 31 of D. V. Act - Would show that inherent power of High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under Code or to challenge any order of Court, which amounts to abuse of process of Court or generally to secure ends of justice - This would mean that not only respondentman but also aggrieved personwoman may feel like approaching High Court to give effect to any order or to prevent abuse of process of Court or secure ends of justice - This would show that this power is capable of being used by either of parties and not just by respondent seeking quashing of proceedings under Section 12 of D.V. Act - If this power is removed from Section 28 of D.V. Act, affected woman may as well or equally get adversely hit, very object of D.V. Act may get defeated - Authoritative pronouncements of full Bench, judgment in case of Sukumar Gandhi (supra) no longer holds field and therefore objection raised by learned counsel for respondent No.2 about maintainability of present petition on ground that power under Section 482 cannot be exercised in respect of proceedings under Domestic Violence Act can not be sustained – Order Accordingly.
1. Rule. Rule made returnable forthwith. Heard by consent of the parties.
The present Writ Petition is filed by the petitioner No.1 who is a retired person and senior citizen whereas the petitioner No.2, who is the wife of petitioner No.1. The petitioners are aggrieved by the issuance of process against them in the proceedings under the Protection of Woman from Domestic Violence Act, 2005 initiated by the respondent No.2, who is wife of petitioner No.2's nephew. The petitioner No.2 is the aunt of the husband of the respondent No.2. The said proceedings came to be initiated by respondent No.2 against her husband as well as her father in law and mother in law and also the present petitioners.
2. The marriage between the parties namely the respondent No.2 and the nephew of the petitioner No.2 was solemnized on 07.07.2007. The respondent No.2 approached the Judicial Magistrate, First Class, Panvel, by preferring an application bearing No. DV/MA/122/2013 on 15.03.2013 highlighting the marital discord between the parties namely herself and her husband as well as her in laws. The complaint proceeded to the allege harassment on account of the demand of dowry and also referred to certain instances demonstrative of irretrievable breaking down of the relationship on account of the misunderstanding between the parties.
The specific case of the respondent No.2 as stated in the application is that after solemnization of the marriage she came to reside at Room No.502, B-Wing, Sector-9, Khanda Colony, Taluka Panvel, District Raigad. It further proceeds to state that the present petitioner's who are the aunt and uncle of her husband were also residing in Khanda Colony and used to often visit her matrimonial home. This is how in the application she ropes petitioner Nos. 1 and 2 and it proceeds to state that the two petitioners used to instigate the husband of the respondent No.2 and it was thereafter in collusion, she was harassed by all the respondents namely the husband, her in laws as well as the present petitioners. The applicant has categorically made a statement, in the application that on every Saturday and Sunday the present petitioners used to visit her matrimonial house and at that time the husband of the complainant used to be at home and at the instigation of the present petitioners along with her own in laws, she was subjected to harassment. She therefore sought protection orders from the Court by filing the application and invoking provisions of the Domestic Violence Act, 2005, on 15-03-2013. It is on the basis of this application, the summons have been issued to the present petitioners and being aggrieved by the said action, they have filed the present Writ Petition.
3. The learned senior counsel Shri.Sakhare, appearing for the petitioners would submit that the marriage between the parties namely the respondent No.2 and the nephew of the petitioner No.2 was solemnized on 07.07.2007. The learned senior counsel do not dispute that the present writ petitioners are resident of New Panvel. However he would submit that they are residing at Maruti Niwas, Plot No.37B, Section 6, New Panvel, which is an address distinct and away from the residence of the respondent No.2 and her family and that the petitioners never shared a joint household with the respondent No.2. Shri.Sakhare would further submit that on account of the matrimonial discord of the respondent No.2 with her husband she left her matrimonial house on 13.07.2011. On 14.07.2011 she lodged a complaint under Section 498A against her husband and her in laws. Mr.Sakhare would submit that the said complaint conspicuously did not name the present petitioners and there is no allegation that she was subjected to harassment at the instance of these petitioners. However the said complaint is only against her husband and in laws. He also submits that in the month of August 2011 the husband of the respondent No.2 instituted proceedings for divorce. The said proceedings are pending for
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