Back
ALLAHABAD HIGH COURT (LB)
Akhtar Husain Khan, J.
Mohd. Nafees @ Guddu - Applicant
Versus
State of U.P. - Opposite Parties
Criminal Application No. 4063 of 2013
Decided On : 7-8-2015
Domestic Violence - Jurisdiction of Magistrate - Protection of Women From Domestic Violence Act, 2005 - Section 12 (1) - Section 23 - Section 3 - Section 2(a) - Section 2(q)
Fact of the Case:
The petitioner sought to quash the order passed by the Magistrate under section 12 (1) of the Protection of Women From Domestic Violence Act, 2005, and the appellate court's decision upholding the same. The petitioner contended that the opposite party had admitted to being divorced, making the application under section 12 (1) not maintainable.
Finding of the Court:
The court found that even a divorced wife who has been subjected to domestic violence during the continuation of marriage or domestic relationship may move an application under section 12 (1) of the Act for appropriate relief. The court held that the impugned orders were not illegal or infirm, and there were no grounds for interference under section 482 Cr.P.C.
Issues: Jurisdiction of the Magistrate under section 12 (1) of the Act, 2005 and the maintainability of the application by the divorced wife.
Ratio Decidendi: The court interpreted the provisions of the Act, 2005, particularly sections 3, 12 (1), 2(a), and 2(q), to establish that even a divorced wife can seek relief under the Act if subjected to domestic violence during the marriage or domestic relationship.
Final Decision: The petition moved under section 482, Cr.P.C. was dismissed by the court.
Akhtar Husain Khan, J.
Present petition has been moved under section 482 Cr.P.C. by the petitioner Mohd. Nafees @ Guddu with the prayer to quash the order dated 4.1.2011, passed by the VIII Addl. Chief Judicial Magistrate, Lucknow in Case No. 565 of 2010, Smt. Zareena Bano v. Mohd. Nafees @ Guddu & others, under section 12 (1) of Protection of Women From Domestic Violence Act, 2005, Police Station Thakur Ganj, district Lucknow along with the impugned order dated 23.7.2013, passed by the Appellate Court (IV Addl. District & Sessions Judge, Lucknow) in Criminal Appeal No. 130 of 2012 arising out of said order dated 4.1.2011, passed by the Magistrate.
2. I have heard learned counsel for the applicant as well as the learned A.G.A. appearing for State of U.P.
3 None appeared for Opposite Party No. 2 though list was revised.
4. Learned counsel for the applicant contended that the petition moved by opposite party no. 2 under section 12 (1) of Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as 'Act, 2005') is not maintainable as the opposite party no. 2 herself has admitted in para 11 of the petition, moved under section 12 (1) of the Act, 2005 that the petitioner has already divorced her. As such, the cognizance taken by the Magistrate is without jurisdiction and the impugned order passed by the Magistrate is contrary to law.
5. Learned counsel for the petitioner contended that the appellate court has committed illegality in upholding impugned order passed by the Magistrate.
6. Learned counsel for the applicant has placed reliance upon pronouncement of the Hon'ble Apex Court rendered in the case of Indrajit Singh Grewal v. State of Punjab and another, reported in 2012 CRI.L.J. 309 as well as pronouncement of b High Court, Delhi rendered in the case of Harbans Lal Malik and others v. Payal Malik, reported in 2010 (3) Crime 700 (Delhi).
7. Learned A.G.A. opposed the petition, moved under section 482, Cr.P.C. and contended that the Magistrate is competent to take cognizance of the application moved under section 12 (1) of the Act, 2005 and impugned order is in accordance with law.
8. I have considered the submissions of learned counsel for the parties and perused the record.
9. After taking cognizance on application of opposite party no. 2 moved under section 12 (1) of the Act, 2005 vide impugned order dated 4.1.2011, learned Addl. Chief Judicial Magistrate, Lucknow, Court No. 32, has allowed interim maintenance to the complainant (here opposite party no. 2) under section 23 of the Act, 2005. Being aggrieved with the order of Magistrate, petitioner filed Criminal Appeal No. 130 of 2012 before the Sessions Court which was decided by the IV Addl. District & Sessions Judge, Lucknow vide judgment & order dated 23.7.2013 and appeal was dismissed.
10. In the case of Indrajit Singh Grewal v. State of Punjab and another (supra) a complaint was filed under section 12 (1) of the Act, 2005 by the aggrieved person (wife) against the respondent (husband) with the allegation that decree of divorce obtained by both the parties is a sham transaction. Even after getting divorce both were living as husband and wife but in the meantime she was forced to leave her matrimonial house.
11. In view of the above facts, the Hon'ble Apex Court has held as follows:
"25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act, 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
