Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(J&K) 33

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
JAVED IQBAL WANI, J.
Banarsi Lal Anand, S/o. Late Sh. Hans Raj Anand & Ors. - Petitioners
Versus
Sonali Bhagotra, W/o. Koushik Singh Chambyal, D/o. Dev Raj & Ors. - Respondents
CM(M) No. 224 of 2023, CM Nos. 7150 of 2023 & 7151 of 2023
Decided On : 28-02-2024

Advocates Appeared:
For the Petitioner: Mr. Koshal Parihar.
For the Respondent: Mr. Pawan K. Kundal.

The judgment established the importance of meeting the statutory requirements for maintaining an application under the Protection of Women from Domestic Violence Act, 2005 and emphasized the court's supervisory jurisdiction.

Headnote:
Domestic Violence - Maintainability of Application - Protection of Women from Domestic Violence Act, 2005 - Sections 12, 18, 19, 20, 22
Fact of the Case:
The petitioners challenged the maintainability of an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 by the respondent. The respondent alleged domestic violence by the petitioners and others.
Finding of the Court:
The court found that the petitioners did not qualify as 'respondents' under the Act of 2005 and the application against them was misconceived and not maintainable. The court exercised supervisory jurisdiction based on established principles.
Issues: The main issue was the maintainability of the application under the Act of 2005 against the petitioners.
Ratio Decidendi: The court emphasized that to maintain an application under the Act of 2005, the applicant must be an aggrieved person in a domestic relationship living in a shared household and subjected to domestic violence by a respondent as defined in the Act. The court also highlighted the principles of supervisory jurisdiction.
Final Decision: The petition was allowed, and the impugned application against the petitioners was dismissed. The court directed the lower court to proceed against the other respondents in accordance with the law.

JUDGMENT :

1. The petitioners in the instant petition filed under Article 227 of the Constitution of India have thrown challenge to the maintainability of an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short "Act of 2005") filed by the respondent 1 herein besides against the proforma respondents herein as also the petitioners herein being respondents 4 and 5 in the aforesaid application.

2. The facts emerging from the record would reveal that the respondent 1 herein filed an application under Section 12 read with Sections 18, 19, 20 and 22 of the Act of 2005 against the proforma respondents herein amongst them Davinder Singh being her father-in-law and Namrata Chambyal as her mother-in-law impleading the petitioners herein as respondents 4 and 5 therein in the said complaint besides one Krishan Devi, widow of one Naseeb Singh alleging therein in the said application that she was married to one Koushik Singh Chambyal S/o proforma respondents 2 and 3 herein in the year 2022 with no issue born in the said wedlock and that she has been working with her husband in a private company and her father-in-law is working in the police department and that at the time of entering into marital wedlock with the above named son of the proforma respondents 2 and 3 herein, she brought gold and silver ornaments with her and started living with the proforma respondents 2 and 3 herein along with her husband in their residential house situated at Roop Nagar, Jammu, however, after some time, the said respondents started insulting her and committing physical assault upon her inasmuch as at the instigation of the respondents 3 to 5 therein in the aforesaid application who supported the illegal activities of the proforma respondents 2 and 3 herein and never tried to take corrective measures and that even the respondents 4 and 5 being the petitioners herein used to threaten and pressurize the respondent 1 herein by subjecting her to physical and mental cruelty in order to have her thrown out from her matrimonial house and that the respondents 4 and 5 being the petitioners herein had taken money from her and her husband as loan and did not return back the same to her and instead started threatening her of dire consequences.

3. The petitioners herein have challenged the maintainability of the aforesaid application filed by the respondent 1 herein on the grounds urged in the petition.

Heard learned counsel for the parties and perused the record.

4. The counsel for the petitioners while making his submissions in line with the contentions raised in the petition would contend that the applicant/respondent 1 herein in the application filed under the Act of 2005 before the court below has failed to indicate that the provisions of the Act of 2005 were attracted qua the allegations leveled against the petitioners herein, who did not fall within the definition of "respondent" as defined in Section 2(q) of the Act of 2005 and that the court below, without considering this fundamental aspect, wrongly entertained the application, assumed jurisdiction and proceeded thereon without any competence against the petitioners herein.

On the contrary, counsel for the respondent 1 herein while opposing the submission of the counsel for the petitioners would contend that the instant petition is not maintainable under Article 227 of the Constitution of India as the petitioners were required to have approached the Court below in the first instance and to raise before it all the pleas which are being raised in the instant petition.

5. Before proceeding to address to the issues involved in the instant petition, it would be pertinent to refer to the following provisions of the Act of 2005 being relevant herein :

Section 2(a) of the Act of 2005 defines "aggrieved person" and reads as under :

“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 a