was under obligation to prima facie demonstrate that she had
relationship with the deceased in the nature of marriage. If that was
lacking in the application, learned Magistrate could not have issued
notices to the petitioners. In my considered opinion the Respondent
No.1 has failed to show from her application that she had relationship
with the deceased in the nature of marriage. I have therefore, came to
the conclusion that no case was made out for issuing notices to the
Petitioners.
19. There is another aspect which needs to be considered in
the present petitions. The word, ''respondent'' has been defined in
section 2(q) of the Act as under :
“(q) “respondent” means any adult male person who
is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved
person has sought any relief under this Act:”
20. In the present case deceased Rajesh Khanna was the adult
male person with whom Respondent No.1 claimed to have domestic
relationship. The petitions under section 12 of the Act are filed
against the Petitioners in the Court of Magistrate by virtue of proviso
to section 2 (q) of the Act which runs as under :
“Provided that an aggrieved wife or female living
in a relationship in the nature of a marriage may
also file a complaint against a relative of the
husband or the male partner.”
21. No doubt the present Petitioners are relatives of the
deceased Rajesh Khanna. The question which arises for determination
is as to whether the present proceedings could have been filed against
them by taking advantage of the above stated proviso to section 2 (q)
of the Act. It is admitted position that the Petitioners had never been
staying in the shared household with the respondent no. 1. The
Petitioner No.1 Dimple Jatin Khanna has been admittedly staying
away from the bungalow 'Ashirwad' since last many years. Petitioner
No.2 Twinkle Khanna is married and she is staying with her husband
petitioner no. 3 in her matrimonial house at Gandhi Gram Road, Juhu,
Mumbai. As such, briefly stated, the Petitioners had never shared
common household with the Respondent No.1. Grievance, if any, of
Respondent No.1 could have been against the deceased Rajesh
Khanna. Had the deceased been alive at the time of filing of
complaint and had the Petitioners living together with the deceased,
probably, there could have been a cause for Respondent No.1 to file a
complaint under section 12 of the Act against the petitioners. The
proceedings of present nature could not have been filed against the
Petitioners only because they are relatives of the deceased Rajesh
Khanna.
22. In my opinion, this is a fit case where this Court shall
exercise powers under section 482 of Criminal Procedure Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4196 OF 2012
Dimple Rajesh Khanna @ Mrs.
Dimple Khanna V Anita Advani
CORAM:M.L. TAHALIYANI, J.
Dated : 9th APRIL, 2015.
Citation:2016 ALLMR(CRI)3748 bom
Mrunalini Deshmukh for Respondent No.1 and learned APP Shri V.B.K.
Deshmukh for Respondent No.2 State.
2. The Petitioners in all the petitions have moved this Court
for quashing the proceedings pending against them in the Court of
Metropolitan Magistrate, 9th Court, Bandra, Mumbai, bearing C.C. No.
25/DV/2012 filed by Respondent No.1 under section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as 'the Act')
3. Petitioner No.1 – Mrs. Dimple Jatin Khanna @ Dimple
Rajesh Khanna and Petitioner No.2 Mrs. Twinkle Rajiv Bhatia in writ
petition No.4196 of 2012 are widow and daughter respectively of the
deceased Rajesh Khanna (hereinafter referred to as 'Petitioner Nos. 1
and 2' ). The Petitioner in writ petition No.4197 of 2012 (hereinafter
referred to as 'Petitioner No.3' ) is the husband of Petitioner No.2 in
writ petition No.4196 of 2012. In this regard it may be mentioned
here that there was third similar petition also filed by Mrs. Rinke
Samir Saran @ Rinke Jatin Khanna bearing petition No.4228 of 2012.
She is also daughter of the deceased Rajesh Khanna. However, during
the course of hearing of petitions a statement was made on behalf of
Respondent No.1 that she does not press for any relief against the
Petitioner in petition No.4228 of 2012. Said petition was therefore,
disposed of accordingly. As such, only two petitions are pending for
disposal.
4. Late Shri Rajesh Khanna was staying in his bunglow
known as “Aashirwad”, situated at Cartar Road, Bandra, Mumbai. It is
admitted position that Petitioner No.1 was not staying with the
deceased since few years before the date of death of the deceased
Rajesh Khanna, who died on 1872012. It is further admitted
position that Petitioner Nos.2 and 3 are daughter and soninlaw,
respectively of Petitioner No.1 and the deceased Rajesh Khanna.
5. The Respondent No.1 Anita Advani has filed a complaint in the
Court of Metropolitan Magistrate, 9th Court, Bandra, claiming that she
had lived together with the deceased Rajesh Khanna in a shared
household and she was in relationship with him in the nature of
marriage. It is stated by her that she stayed with the deceased till 22
62012 when she was dishoused from the 'Aashirwad' bungalow. It is
stated by her in her complaint that she had stayed with the deceased
as his wife and had taken care of his all the needs in good and bad
times. According to her she did not leave the company of the
deceased even when his health was deteriorating and he was sinking.
It is alleged by her that the Petitioners reached the bungalow only
when they realised that the deceased was not likely to live for more
than a few days. It is further alleged that Petitioners have reached
'Aashirwad' bungalow only with a view to dishouse the Respondent
No.1 and to grab the property belonging to the deceased Rajesh
Khanna. She has therefore, claimed reliefs under sections 18, 19 and
20 of the Act. Her prayer clause in the complaint can be reproduced
as under :
“(a) This Hon'ble Court may be pleased to pass a Permanent
Perpetual protection order in favour of Complainant/Applicant
restraining and prohibiting the respondent from
(i) committing any further act of domestic violence upon the
complainant;
(ii) aiding or abetting in the commission of acts of domestic
violence upon the complainant ;
(iii) Threatening the Complainant in any form, whatsoever,
(iv) Obstructing the complainant from having free ingress and
egress into the residence at Aashirwad Bungalow, Carter
Road, Bandra (West), Mumbai 400 050 and residing
therein;
(v) Restrain the Respondents from alienating any assets,
operating bank lockers or bank accounts used or held by
Mr. Rajesh Khanna without the leave of this Hon'ble Court;
(vi) Causing violence to the dependents, other relatives or any
person who give the complainant assistance from domestic
violence;
(b) This Hon'ble Court may be pleased to pass a permanent
perpetual Residence order in favour of the Complainant
/Applicant
(i) Restraining and prohibiting the respondent from
dispossessing or in any other manner disturbing the
possession of the Complainant from the shared household
at Aashirwad Bungalow, Carter Road, Bandra (West),
Mumbai 400 050.
(ii) Restraining the respondent from alienating or
disposing off the shared household or encumbering the
shared household at Aashirwad Bungalow, Carter Road,
Bandra (W), Mumbai 400 050;
(iii) By an appropriate Order direct the respondent to
secure an alternate Residential accommodation of same
level as enjoyed by the complainant in the above
mentioned shared household as alternate accommodation
for the Complainant or to pay costs for the same, if the
circumstances so require:
(iv) direct the Respondents to execute a bond, with or
without sureties, for preventing the commission of
domestic violence upon the complainant.
(v) to direct the officer in charge of Bandra police
station to give protection to the Complainant or to assist
the complainant in the implementation of the above
orders;
(vi) to direct the respondent to return to the possession
of the complainant her personal belongings and personal
effects jewelleries clothes and apparels and other movable
properties belonging to the complainant lying at Aashirwad
Bungalow, Carter Road, Bandra (West), Mumbai 400050;
(c) This Hon'ble Court may be pleased to pass a monetary relief
order in favour of the Complainant /Applicant
(i) directing the Respondents to pay to the Complainant
an amount of Rs.10,00,000/ Rupees Ten Lakhs only as
monetary relief to meet the expenses incurred on account
of bodily pain, harm caused by the Respondents and to
compensate for loss caused due to forcible and illegal
eviction from the Residence and the resultant mental
Agony, anguish, danger to life, health and impairment of
the health, injury and damages suffered by the
complainant;
(ii) directing the Respondents to pay to the Complainant
an amount of Rs.50,00,000/ Rupees Fifty Crores Only as
and by way of lump sum payments to meet the cost and
expenses for securing same level of alternate
accommodation for residence of the complainant as
enjoyed by the complainant in the shared household;
(d) pending the hearing and final disposal of the above
complainant this Hon'ble Court may be pleased to order and
direct the respondents ;
(di) a protection order in favour of the Complainant
/Applicant ;
(dii) directing the Respondents to permit the complainant to
stay in the Aashirwad Bungalow Carter Road, Bandra
(West), Mumbai 400050 or in the alternate secure same
level of alternate accommodation for residence of the
complainant as enjoyed by the complainant in the
shared household; and thereafter restrain the
Respondents from obstructing free ingress and egress
into the said residence and residing therein;
(diii) Restraining and prohibiting the Respondents from
committing any act of domestic violence upon the
complainant; or aiding or abetting thereof;
(div) restrain the Respondents from threatening the
Complainant in any form, whatsoever;
(dv) Restrain the Respondents from alienating or disposing
any assets, operating bank lockers or bank accounts used
or held by Mr. Rajesh Khanna and or disposing off or
encumbering the shared household without the leave of
this Hon'ble Court.
(dvi) Directing respondent to secure an alternate Residential
accommodation of same level as enjoyed by the
complainant in the above mentioned shared household
as alternate accommodation for the complainant or to
pay costs for the same, if the circumstances so require;
(dvii) direct the Respondents to execute a bond, with or
without sureties, for preventing the commission of
domestic violence upon the complainant;
(dviii) direct the officer in charge of Bandra police station to
give protection to the Complainant or to assist the
complainant in the implementation of the above orders;
(dix) Direct the respondent to return to the possession of the
complainant the complainant personal belongings and
personal effects jewelleries clothes, and apparels and
other movable properties belonging to the complainant
lying at Aashirwad Bungalow, Carter Road, Bandra
(West), Mumbai 400050.
(dx) Direct the Respondents to pay to the Complainant an
amount of Rs.10,00,000/ Rupees Ten Lakhs only as
monetary relief to meet the day to day maintenance
expenses of the complainant;
(e) That costs of this complaint and further proceeding may
be granted in favour of the complainant;
(f) This Hon'ble Court may be pleased to grant and pass
such other and further orders and reliefs as may deem
fit in the nature and circumstance of the case;
6. Though the application under section 12 of the Act filed by
Respondent No.1 runs into few pages and gives details of her
relationship with the deceased Rajesh Khanna, it is not necessary to
reproduce the same in the present order. The facts in brief mentioned
hereinabove and the prayer clauses of the application of Respondent
No.1 are, in my opinion, sufficient enough to give clear picture of the
case of Respondent No.1 before the learned Magistrate.
7. On filing of such application the order which is impugned
in the present petitions was passed by the learned Additional Chief
Metropolitan Magistrate on 7112012, which can be reproduced as
under :
“Presented today by the Applicant. Issue show
cause notices to the Respondents.”
8. The Petitioners are aggrieved by this order. It is the case of
the Petitioners that they had never been in the domestic relationship
with Respondent No.1 and therefore, she cannot claim any relief
against them. It is further submitted that there was no relationship
between Respondent No.1 and the deceased in the nature of marriage.
Learned senior counsel for the Petitioners Mr. Shirish Gupte and Mr.
Mahesh Jethmalani have submitted that even if the application is
taken to be true and correct it does not disclose that Respondent No.1
was ever having any relationship with the deceased in the nature of
marriage. It is contended that therefore she cannot claim any relief
under the Act. In addition to this, it is also submitted that none of the
Petitioners are Respondents within the meaning of 'Respondent' as
defined under section (q) of the Act. The learned counsel have
submitted that the Respondent No.1 cannot take refuge under proviso
to section 2 (q) of the Act. What is contended is that Respondent No.1
could not have dragged the Petitioners to Court on the ground that
they were relatives of the alleged male partner of Respondent No.1
9. Learned counsel Mr. Jethmalani has submitted that the
aggrieved person has to prima facie show that she was in domestic
relationship. In the present case Respondent No.1 was under
obligation to demonstrate in her application that she had relationship
with the deceased in the nature of marriage. Unless this condition is
fulfilled, the application could not have been entertained by the
learned Magistrate. According to him, show cause notice issued by he
Magistrate amounted to abuse of process of Court and needs to be
redressed by this Court in exercise of its powers under section 482 of
the Criminal Procedure Code.
10. Learned counsel Smt. Mrunalini Deshmukh has submitted
that the application made by the Respondent No.1, prima facie,
discloses that she was having relationship with the deceased in the
nature of marriage and therefore, this Court may not exercise its
powers under section 482 of the Criminal Procedure Code to quash
the order of the learned Magistrate. It was submitted by her that the
inherent powers are to be exercised sparingly and in rarest of the rare
cases. According to her, application describes in detail as to how
Respondent No.1 had served the deceased Rajesh Khanna for years
and as to how the Petitioners had neglected the deceased. Learned
counsel has brought to my notice that Respondent No.1 has alleged
that Petitioners reached 'Aashirwad' bungalow only when they realised
that if they did not meet the deceased they would loose the property
which stood in the name of the deceased. Smt. Deshmukh has
submitted that whether Respondent No.1 had relationship with the
deceased in the nature of marriage or not is a question of fact which
needs to be determined by the Trial Magistrate and therefore, this
Court may not intervene at this stage and may not permit the
Petitioners to invoke powers of this Court under section 482 of the
Criminal Procedure Code. She has relied upon few judgments of
Hon'ble Supreme Court to fortify her arguments that this is not a fit
case where Court may exercise its powers under section 482 of
Criminal Procedure Code. Judgments relied upon by Mrs. Deshmukh
are :
1. Pratibha V/s. Rameshwari Devi & Ors. II(2007)DMC 583 (SC)
2. State of Bihar V/s. Murad Ali Khan & Ors. AIR 1989 SC 1
3. Som Mittal V/s. Govt. of Karnataka AIR 2008 SC 1126
4. Baijnath Jha V/s. Sita Ram & Anr. AIR 2008 SC 2778
5. Sushil Suri V/s. CBI & Anr. AIR 2011 SC 1713
11. My attention was particularly invited to para 10 of the
judgment of Pratibha V/s. Rameshwari Devi & Ors.1
. The relevant
portion of the said para can be reproduced as under :
1 II(2007)DMC 583 (SC)
10. Before parting with this judgment, we may also
remind ourselves that the power under Section 482
of the Code has to be exercised sparingly and in the
rarest of rare cases.”
12. Learned counsel for the Petitioners Mr. Shirish Gupte has
relied upon mainly two judgments of Hon'ble Supreme Court. First
judgment relied upon by the learned counsel for the Petitioners is in
the case of State of Hariyana & Ors. V/s. Bhajanlal & Ors2
. The
learned counsel has relied upon paragraph No. 102 of the said
judgment, which can be reproduced as under :
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers Under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
Court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not primafacie
constitute any offence or make out a case against
the accused.
(2) Where the allegations in the First Information Report
and other materials, if any, accompanying the F.I.R. do not
2 1992 Supp (1) Supreme Court Cases 335
disclose a cognizable offence, justifying an investigation
by police officers Under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated Under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
13. My attention was also invited to the judgment of Hon'ble
Supreme Court in the matter of Pepsi Foods Ltd. & Anr. V/s. Special
Judicial Magistrate & Ors3
. The Hon'ble Supreme court while
dealing with the powers of High Court under section 482 of Criminal
Procedure Court has said as under :
3 reported at 1998 5 SCC 749
“22. It is settled that High Court can exercise its power
of judicial review in criminal matters. In State of
Haryana and Ors. v. Bhajan Lal and Ors.
MANU/SC/0115/1992 : 1992CriLJ527 , this Court
examined the extraordinary power under Article 226 of
the Constitution and also the inherent powers under
Section 482 of the Code which it said could be
exercised by the High Court either to prevent abuse of
the process of any court or otherwise to secure the
ends of justice. While laying down certain guidelines
where the court will exercise jurisdiction under these
provisions, it was also stated that these guidelines
could not be inflexible or laying rigid formulae to be
followed by the courts. Exercise of such power would
depend upon the facts and circumstances of each case
but with the sole purpose to prevent abuse of the
process of any court or otherwise to secure the ends of
justice. One of such guidelines is where the allegations
made in the first information report or the complaint,
even if they are taken at their face value and accepted
in their entirety do not prima facie constitute any
offence or make out a case against the accused. Under
Article 227 the power of superintendence by the High
Court is not only of administrative nature but is also of
judicial nature. This article confers vast powers on the
High Court to prevent the abuse of the process of law
by the inferior courts and to see that the stream of
administration of justice remains clean and pure. The
power conferred on the High Court under Articles 226
and 227 of the Constitution and under Section 482 of
the Code have no limits but more the power more due
care and caution is to be exercised invoking these
powers. When the exercise of powers could be under
Article 227 or Section 482 of the Code it may not
always be necessary to invoke the provisions of Article
226” (emphasis supplied)
14. As such, after having gone through the judgments of
Hon'ble Supreme Court cited by the learned counsel for the Petitioners
and the learned counsel for Respondent No.1, one thing is clear that
the proceedings pending before the Magistrate can be quashed if
allegations made in the application under section 12 of the Act in their
entirety do not prima facie constitute a case to be entertained under
section 12 of the Act.
15. In view thereof, what is necessary to be examined is as to
whether learned Magistrate was justified in issuing show cause notice
to the Petitioners on the application made by Respondent No.1. It is
not necessary to be stated here that notice could have been issued
only when the application discloses a prima facie case for entertaining
application under section 12 of the Act. In the present case learned
senior counsel Mr. Mahesh Jethmalani and Mr. Shirish Gupte have
invited my attention to the judgment of Hon'ble Supreme Court in the
case of D. Velusamy Vs. D. Patchaiammal4 to support the contention
of the petitioners that the relationship, if any, of the respondent no. 1
with the deceased was not akin to marriage. Paragraph Nos. 31, 32
and 33 of the said judgment reads as under:
“ 31.In our opinion a 'relationship in the nature of
marriage' is akin to a common law marriage. Common
law marriages require that although not being formally
married:
(a) The couple must hold themselves out to society as
being akin to spouses.
(b) They must be of legal age to marry.
4 (2010) 10 SCC 469
(c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried.
(d) They must have voluntarily cohabited and held
themselves out to the world as being akin to spouses for
a significant period of time.
(see 'Common Law Marriage' in Wikipedia on Google)
In our opinion a 'relationship in the nature of marriage'
under the 2005 Act must also fulfill the above
requirements, and in addition the parties must have lived
together in a 'shared household' as defined in Section
2(s) of the Act. Merely spending weekends together or a
one night stand would not make it a 'domestic
relationship'.
32. In our opinion not all live in relationships will amount
to a relationship in the nature of marriage to get the
benefit of the Act of 2005. To get such benefit the
conditions mentioned by us above must be satisfied, and
this has to be proved by evidence. If a man has a 'keep'
whom he maintains financially and uses mainly for
sexual purpose and/or as a servant it would not, in our
opinion, be a relationship in the nature of marriage'
33. No doubt the view we are taking would exclude many
women who have had a live in relationship from the
benefit of the 2005 Act, but then it is not for this Court to
legislate or amend the law. Parliament has used the
expression 'relationship in the nature of marriage' and not
'live in relationship'. The Court in the grab of interpretation
cannot change the language of the statute.”
16. Learned counsel for Petitioners have also relied upon the
judgment of Hon'ble Apex Court in the case of Indra Sarma Vs. V.K.V.
Sarma (Criminal Appeal No.2009 of 2013). The observations made by
the Hon'ble Supreme Court in the said judgment at paragraph Nos. 61,
62, 63 and 66 can be reproduced as under
“ 61. Such relationship, it may be noted, may
endure for a long time and can result pattern of
dependency and vulnerability, and increasing
number of such relationships, calls for adequate
and effective protection, especially to the woman
and children born out of that liveinrelationship.
Legislature, of course, cannot promote premarital
sex, though, at times, such relationships are
intensively personal and people may express their
opinion, for and against. See S.Khushboo v.
Kanniammal and another (2010) 5 SCC 600.
62. Parliament has to ponder over these issues,
bring in proper legislation or make a proper
amendment of the Act, so that women and the
children, born out of such kinds of relationships be
protected, though those types of relationship might
not be a relationship in the nature of a marriage.
63. We may now consider whether the tests, we
have laid down, have been satisfied in the instant
case. We have found that the appellant was not
ignorant of the fact that the respondent was a
married person with wife and two children, hence,
was party to an adulterous and bigamous
relationship. Admittedly, the relationship between
the appellant and respondent was opposed by the
wife of the respondent, so also by the parents of
the appellant and her brother and sister and they
knew that they could not have entered into a legal
marriage or maintained a relationship in the
nature of marriage. Parties never entertained any
intention to rear children and on three occasions
the pregnancy was terminated. Having children is
a strong circumstance to indicate a relationship in
the nature of marriage. No evidence has been
adduced to show that the parties gave each other
mutual support and companionship. No material
has been produced to show that the parties have
ever projected or conducted themselves as
husband and wife and treated by friends, relatives
and others, as if they are a married couple. On the
other hand, it is the specific case of the appellant
that the respondent had never held out to the
public that she was his wife. No evidence of
socialization in public has been produced. There is
nothing to show that there was pooling of
resources or financial arrangements between them.
On the other hand, it is the specific case of the
appellant that the respondent had never opened
any joint account or executed any document in the
joint name. Further, it was also submitted that the
respondent never permitted to suffix his name
after the name of the appellant. No evidence is
forthcoming, in this case, to show that the
respondent had caused any harm or injuries or
endangered the health, safely, life, limb or wellbeing,
or caused any physical or sexual abuse on
the appellant, except that he did not maintain her
or continued with the relationship.
ALIENATION OF AFFECTION
64. …...
65. …...
66. We have, on facts, found that the appellant’s
status was that of a mistress, who is in distress, a
survivor of a livein relationship which is of serious
concern, especially when such persons are poor
and illiterate, in the event of which vulnerability is
more pronounced, which is a societal reality.
Children born out of such relationship also suffer
most which calls for bringing in remedial measures
by the Parliament, through proper
legislation.”(emphasis supplied)
17. Learned counsel for the Petitioners brought to my notice
that the marriage between the deceased Rajesh Khanna and the
Petitioner No.1 Dimple Khanna was not terminated and was in
existence. It was submitted that having knowledge of the fact that the
deceased had a wife, who was living separately, respondent no. 1
claimed to have entered into relationship with the deceased Rajesh
Khanna. It is submitted that the relationship of Respondent No.1 with
the deceased was not in the nature of marriage. Though both of them
were of legal age to marry they were not qualified to enter into legal
marriage. They had never held themselves out to the world as being
spouses. It is therefore, contended that the relationship, if any,
between the deceased and Respondent No.1 was not in the nature of
marriage and that she therefore, was not entitled for any relief under
the Act. learned Senior counsel Mr. Mahesh Jethmalani has submitted
that though the petitioners have sympathy for Respondent No.1, the
issues in question are to be decided on the basis of law and the case
law laid down by the Hon'ble Supreme Court. My attention was again
invited to para 32 of the judgment of Hon'ble Supreme Court in the
case of D. Velusamy Vs. D. Patchaiammal where the Apex Court has
said that to get benefits under the Act all the conditions mentioned by
Apex Court in the said judgment must be satisfied. It is also said by
the Apex Court that if a man has a 'keep' whom he maintains
financially and uses mainly for sexual purpose and/or as a servant it
would not be a relationship in the nature of marriage. My attention
was invited to two phrases used by the Apex Court i.e. “relationship in
the nature of marriage” and “live in relationship”. Law extends
protection to the aggrieved person having “relationship in the nature
of marriage” and not the persons having “live in relationship” The
Apex Court has said that Court cannot change the language of statute
under the garb of interpretation.
18. It is thus, obvious that the Applicant /Respondent No.1
was under obligation to prima facie demonstrate that she had
relationship with the deceased in the nature of marriage. If that was
lacking in the application, learned Magistrate could not have issued
notices to the petitioners. In my considered opinion the Respondent
No.1 has failed to show from her application that she had relationship
with the deceased in the nature of marriage. I have therefore, came to
the conclusion that no case was made out for issuing notices to the
Petitioners.
19. There is another aspect which needs to be considered in
the present petitions. The word, ''respondent'' has been defined in
section 2(q) of the Act as under :
“(q) “respondent” means any adult male person who
is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved
person has sought any relief under this Act:”
20. In the present case deceased Rajesh Khanna was the adult
male person with whom Respondent No.1 claimed to have domestic
relationship. The petitions under section 12 of the Act are filed
against the Petitioners in the Court of Magistrate by virtue of proviso
to section 2 (q) of the Act which runs as under :
“Provided that an aggrieved wife or female living
in a relationship in the nature of a marriage may
also file a complaint against a relative of the
husband or the male partner.”
21. No doubt the present Petitioners are relatives of the
deceased Rajesh Khanna. The question which arises for determination
is as to whether the present proceedings could have been filed against
them by taking advantage of the above stated proviso to section 2 (q)
of the Act. It is admitted position that the Petitioners had never been
staying in the shared household with the respondent no. 1. The
Petitioner No.1 Dimple Jatin Khanna has been admittedly staying
away from the bungalow 'Ashirwad' since last many years. Petitioner
No.2 Twinkle Khanna is married and she is staying with her husband
petitioner no. 3 in her matrimonial house at Gandhi Gram Road, Juhu,
Mumbai. As such, briefly stated, the Petitioners had never shared
common household with the Respondent No.1. Grievance, if any, of
Respondent No.1 could have been against the deceased Rajesh
Khanna. Had the deceased been alive at the time of filing of
complaint and had the Petitioners living together with the deceased,
probably, there could have been a cause for Respondent No.1 to file a
complaint under section 12 of the Act against the petitioners. The
proceedings of present nature could not have been filed against the
Petitioners only because they are relatives of the deceased Rajesh
Khanna.
22. In my opinion, this is a fit case where this Court shall
exercise powers under section 482 of Criminal Procedure Code. If this
is not a fit case for exercise of inherent powers, to my mind, there
could not be any other conceivable case to exercise such powers.
23. The result is that the petitioners succeed and both the
petitions are allowed. Proceedings pending before the learned
Metropolitan Magistrate, 9th Court, Bandra against the petitioners vide
case No.25/DV/2012 shall stand quashed.
24. Both the criminal writ petitions stand disposed of
accordingly.
25. Learned counsel Smt. Sarnaik for Respondent No.1 prays
for stay on this order for a period of six weeks. In my opinion, stay on
the order will not serve any purpose and therefore, I am not inclined
to grant the prayer. Prayer stands rejected.
(JUDGE)
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