IMPORTANT POINT
Application by a woman who had shared a household in past but was no longer residing with her husband or who was subjected to any act of domestic violence prior to coming into force of the Act was maintainable

JUDGMENT (CAV)

Dr. A. P. Thaker, J.—Rule. Ms. Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of rule for respondent No.1 and Ms.Avani Patel, learned advocate for respondent No.2.

2. Considering the fact that the petitioner No.1 and respondent No.2 are senior citizens and at the request of both the sides, the matter is heard finally.

3. By way of present application under Articles 226 and 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code, the petitioners have sought for the reliefs for quashing and setting aside the complaint being Criminal Case No.134 of 2016 under the provisions of the Protection of Women from Domestic Violence Act 2005 (hereinafter be referred to as “the Domestic Violence Act”) pending before the Metropolitan Magistrate, Court No.19, Ahmedabad.

4. According to the petitioners, petitioner No.1 is the husband of respondent No.1 – original complainant, petitioner No.2 is son of petitioner No.1 and respondent No.2 and petitioner No.3 is daughter-in-law of petitioner No.1. It is contended that the marriage between the petitioner No.1 and respondent No.2 was solemnized on 06.12.1976 as per the Hindu Rites and Rituals and out of the said wedlock, three children were born. It is contended that petitioner No.1 is retired professor and presently, residing at the address mentioned in the cause-title with petitioner Nos.2 and 3, whereas, respondent No.2 is residing with her daughter Sandhya. It is contended that the said house was originally purchased by petitioner No.1 which was forcefully taken by his daughter. It is contended that respondent No.2 is a doctor and having decree of Ayurveda Acharya, Shiksha Shastri, DSC and Vaidhvirasad. It is contended that she is holding a Medical Practice Registration Certificate vide No.GB(S) 1448 and she is practicing as a doctor at nearby place of Ahmedabad and capable to maintain herself.

4.1 Regarding the contents of the impugned complaint, it is contended by the petitioners that the allegations made by respondent No.2 – complainant are that the petitioners have thrown out her from the house and he told that if she wanted to reside at his house then she has to earn and give income to the petitioner but now she is unable to work and earlier she was running her clinic, at that point of time, she used to give all her income to the petitioners and all these things are being told to petitioners No.2 and 3. She has alleged that petitioner No.1 was giving mental and physical harassment to her and since last 30 years, to save herself and her children’s life, she settled the matter and, thereafter, all were behaving good but before four years of filing of the complaint, her husband assaulted her and dropped her at the house located at Village : Dabhala and there she was residing alone and, thereafter, her husband had quarrel over there and she was thrown away from that house as well and her husband was speaking bad words in very small issues and sometimes her husband used to slap her. In spite of this, she tolerated everything and did not utter a single word and her husband has insulted her in front of relatives and he told her that he would not scare of legal cases and whatever she wants to do and her husband wanted to bring new wife and thus, her husband harassed her. According to the contents of the complainant, the petitioner – husband harassed her and her daughter-in-law has taken all ornaments and they have withdrawn money lying in the bank account and she is residing in her daughter’s in-laws house. On all these grounds, the complainant has filed the complaint under the Domestic Violence Act.

4.2 It is contended by the petitioners that the husband and wife were residing peacefully with their three children and after 32 years of marriage life, respondent – wife deserted petitioners and one son and left the matrimonial house without informing anyone and, thereafter, the petitioner – husband tried for reunion and when re