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2020 Supreme(All) 767
IN THE HIGH COURT OF ALLAHABAD
Ram Krishna Gautam, J.
Smt. Sarvesh Verma And Another – Applicants
Versus
State of U.P. and Another – Opposite Parties
Application U/S 482 No. - 14600 of 2020
Decided On : 29-09-2020
Advocate Appeared:
For the Applicant : Anil Kumar Pandey
Point of Law: Very object of legislation of The Protection of Women from Domestic Violence Act, 2005, has been given by legislature is the implementation of the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. – The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. – The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. – The civil law does not address the phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498A of the Indian Penal Code.
Headnote:
Code of Criminal Procedure, 1973 – Section 482 – Protection of Women from Domestic Violence Act, 2005 – Section 12 – Maintenance – Application under Section 482 Cr.P.C. has been filed by applicants Smt. Sarvesh Verma (mother-in-law) and Vishambhar Dayal Verma (father-in-law) with a prayer for setting aside order passed in Complaint Case, Smt. Rakhi Verma Vs. Smt. Sarvesh Verma and others, u/s 12 of the Protection of Women from Domestic Violence Act, 2005, pending in the court Special C.J.M., Agra, with a further prayer of staying further proceeding of above mentioned complaint case – Counsel for the applicants argued that a preliminary objection was filed in the trial court with specific mention that husband of O.P. No. 2 has died and there was no joint property or Hindu Undivided Family Property entitling the deceased husband to inherit the same. – Rather the alleged house was exclusively owned by applicant no. 1, Smt. Sarvesh Verma, as she purchased the same vide registered sale deed in her name and mother-in-law may not be entitled to maintain widowed daughter-in-law nor husband of O.P. No. 2 was entitled for any share in above house. – Moreso, O.P. No. 2 and her two daughters are not residing in above house and they are having no interest in it. Nothing was there as property of Hindu Undivided Family for which deceased husband of O.P. No. 2 was having any share for inheritance. – Hence neither the application u/s 12 of the Protection of Women from Domestic Violence Act, 2005, was maintainable nor interim award application u/s 23 of the aforesaid Act, which was heard and was rejected. – There was a finding of non-entitlement of maintenance by O.P. No.2. There were precedents of Apex Court passed in Ram Singh Tomar and others Vs. Smt. Bhoori Bai and others, 2017 Cr.L.J. 3455, S. R. Batra and others Vs. Taruna Batra, (2007) 3 SCC 169, and Vimlaben Ajeet Bhai Patel Vs. Vatsalben Ashok Bhai Patel, (2004) SCC 469, wherein the Apex Court has held that right to maintain the wife is the liability of the husband and father-in-law and mother-in-law are not personally liable but for limited extent to the property, which was under joint ownership and capability of inheritance by the deceased husband. – In view of above cited laws, there was no right to O.P. No. 2 and this preliminary objection was not decided by the trial court. Hence a proceeding u/s 482 Cr.P.C. No. 30320 of 2019, Smt. Sarvesh Verma and another Vs. State of U.P. and three others, was filed, wherein direction by a coordinate Bench dated 06.08.2019 was there for disposal of preliminary objection preferably within three months. – In compliance of the above order, impugned order dated 17.10.2019 has been passed by the Special C.J.M., Agra, but no finding about maintainability was given and it was again kept pending to be decided after evidence. – Hence this application with above prayer for setting aside the impugned order, which has been passed under abuse of process of law. –
Finding of the Court:
– In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in the Parliament. Meaning thereby the preamble of this is an Act to provide for more effective protection of rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Hence under this Act purpose is to protect women from violence of any kind either direct or incidental therewith. – Hence the very purpose of this Act is to protect women from domestic violence. – Hence the whole act is to be seen under the present scenario. – Accusation is of domestic violence by mother-in-law and father-in-law and that is against widowed lady with her two minor daughters. – Hence the very contention said in the application is to be adjudged by the Magistrate and for that an opportunity of adducing evidence is always needed. – This court may never give direction for a decision without giving opportunity of hearing or having evidence. – Hence there is no abuse of process of law. –
Result: Application Dismissed
JUDGMENT :
1. Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
2. This application under Section 482 Cr.P.C. has been filed by applicants Smt. Sarvesh Verma (mother-in-law) and Vishambhar Dayal Verma (father-in-law) with a prayer for setting aside order dated 17.10.2019 passed in Complaint Case No. 533 of 2016, Smt. Rakhi Verma Vs. Smt. Sarvesh Verma and others, u/s 12 of the Protection of Women from Domestic Violence Act, 2005, pending in the court Special C.J.M., Agra, with a further prayer of staying further proceeding of above mentioned complaint case.
3. Learned counsel for the applicants argued that a preliminary objection was filed in the trial court with specific mention that husband of O.P. No. 2 has died and there was no joint property or Hindu Undivided Family Property entitling the deceased husband to inherit the same. Rather the alleged house was exclusively owned by applicant no. 1, Smt. Sarvesh Verma, as she purchased the same vide registered sale deed in her name and mother-in-law may not be entitled to maintain widowed daughter-in-law nor husband of O.P. No. 2 was entitled for any share in above house. Moreso, O.P. No. 2 and her two daughters are not residing in above house and they are having no interest in it. Nothing was there as property of Hindu Undivided Family for which deceased husband of O.P. No. 2 was having any share for inheritance. Hence neither the application u/s 12 of the Protection of Women from Domestic Violence Act, 2005, was maintainable nor interim award application u/s 23 of the aforesaid Act, which was heard and was rejected. There was a finding of non-entitlement of maintenance by O.P. No.2. There were precedents of Apex Court passed in Ram Singh Tomar and others Vs. Smt. Bhoori Bai and others, 2017 Cr.L.J. 3455, S. R. Batra and others Vs. Taruna Batra, (2007) 3 SCC 169, and Vimlaben Ajeet Bhai Patel Vs. Vatsalben Ashok Bhai Patel, (2004) SCC 469, wherein the Apex Court has held that right to maintain the wife is the liability of the husband and father-in-law and mother-in-law are not personally liable but for limited extent to the property, which was under joint ownership and capability of inheritance by the deceased husband. In view of above cited laws, there was no right to O.P. No. 2 and this preliminary objection was not decided by the trial court. Hence a proceeding u/s 482 Cr.P.C. No. 30320 of 2019, Smt. Sarvesh Verma and another Vs. State of U.P. and three others, was filed, wherein direction by a coordinate Bench dated 06.08.2019 was there for disposal of preliminary objection preferably within three months. In compliance of the above order, impugned order dated 17.10.2019 has been passed by the Special C.J.M., Agra, but no finding about maintainability was given and it was again kept pending to be decided after evidence. Hence this application with above prayer for setting aside the impugned order, which has been passed under abuse of process of law.
4. Learned AGA has vehemently opposed.
5. From the very perusal of the impugned order passed by the Magistrate dated 17.10.2019 it is very well there that all the citations pressed by learned counsel for applicants were written in it. But the factual matrix, as to whether the applicants were entitled to have their protections enumerated u/s 18 of the aforesaid Act or not, can be decided only by way of evidence. Hence one opportunity for giving evidence by applicants was there. Meaning thereby the trial court has decided the preliminary objections raised by applicants with regard to maintainability of the complaint, which has already been decided by his predecessor while rejecting the application u/s 23 of the Act. But for claim for protection u/s 18 of the Act is different. Protection under several clauses of Act for widow of deceased son of the applicants as well as for her two daughters has been claimed. It has specifically been written in the application moved u/s 12 of the Act
