It is sought to be argued by the learned counsel for the applicant no.3 mother-in-law that she is physically disabled person and therefore she cannot be said to have committed any domestic violence against the respondent. The allegation against applicant no.3 is that she used to abuse and threaten the respondent. Needless to state that physically handicapped person in all cases need not be said to be incapable to give such threats. It would be the matter of evidence during trial before the learned Magistrate to ascertain as to whether any domestic violence was caused to respondent by these applicants. Suffice it to say that prima facie perusal of the application indicates that respondent was subjected to domestic violence. Having regard to these facts, the application is dismissed as against applicantsno.1, 2, 3 and 6.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
914 CRIMINAL APPLICATION NO.694 OF 2023
Salim Vs Sharin
CORAM : R. M. JOSHI, J.
DATE : AUGUST 11, 2023
At the outset, learned counsel for the applicants states
that he is only pressing for relief of the quashment of Criminal Misc.
Application No.967 of 2019 filed before learned Judicial Magistrate
First Class, Dhule under the provisions of the Protection of Women
from Domestic Violence Act (hereinafter referred to as the ‘D.V. Act’) and rest of the prayers are not pressed.
2. This application has been filed under Section 482 of the
Code of Criminal Procedure seeking quashment of Criminal Misc.
Application No.967 of 2019 filed under the D.V. Act by the
respondent.
3. It is the contention of the applicants that without there
being any specific incidences of domestic violence referred in the
application, such application cannot be permitted to be prosecuted
before the learned JMFC. It is also contention of applicants no. 4 and
5 that they were residing separately and that they never shared a
common household with the respondent in order to attract provisions
of the D.V. Act.
4. Learned counsel for the applicants has drawn attention of
the Court to the order passed in Criminal Application No.2168 of
2022 wherein there is a specific finding recorded by the Division
Bench of this Court that applicants no.4 and 5 were residing
separately. There is no dispute about the fact that this order has not
been challenged by the respondent herein. Finding recorded by this
Court to that extent therefore has attained finality.
5. Perusal of the application filed before the learned
Magistrate also does not specifically states that applicant nos. 4 and 5
were sharing common household. Even otherwise, in view of the
specific finding recorded by the Division Bench of this Court in the
aforesaid application, now it is not open for the respondent to claim
that applicants no. 4 and 5 were staying in a joint family. Section
2 (a) of the D.V. Act defines ‘aggrieved person’. Section 2 (f) defines
‘domestic relationship’ which means a relationship between two
persons who live or have, at any point of time, lived together in a
shared household when they are related by consanguinity, marriage,
or through a relationship in the nature of marriage or living together
as a joint family. There are no specific allegations against applicants
no.4 and 5 as they were residing together as a joint family. Thus,
application filed under the provisions of D.V. Act is not maintainable
as far as applicants no.4 and 5 are concerned.
6. As far as applicants no.1, 2, 3 & 6 are concerned, there is
no dispute about the fact that they were residing in the joint family
with respondent may be for a short period of three months as claimed
by them. The period is immaterial as the provisions of D.V. Act does
not contemplate any specific period to have been spent by the persons
in order to constitute it to be domestic relationship. In view of this,
there is no substance in the contention of learned counsel for the
applicants no.1, 2, 3 and 6 that the proceedings are not tenable
against them.
7. As far as the other contentions with regard to there being
no specific allegations made against applicants no.1, 2, 3 and 6
constituting domestic violence are concerned, prima facie perusal of
the application made before the learned Magistrate indicates that
there are allegations against these applicants about abusing
respondent. It is sought to be argued by the learned counsel for the applicant no.3 mother-in-law that she is physically disabled person and therefore she cannot be said to have committed any domestic violence against the respondent. The allegation against applicant no.3 is that she used to abuse and threaten the respondent. Needless to state that physically handicapped person in all cases need not be said to be incapable to give such threats. It would be the matter of evidence during trial before the learned Magistrate to ascertain as to whether any domestic violence was caused to respondent by these applicants. Suffice it to say that prima facie perusal of the application indicates that respondent was subjected to domestic violence. Having regard to these facts, the application is dismissed as against applicantsno.1, 2, 3 and 6.
8. Since applicants no.4 and 5 did not share domestic
relationship with respondent / aggrieved person, the proceeding
against them under the D.V. Act cannot be sustained and hence the
D.V. proceedings being Criminal Misc. Application No.967 of 2019
stands quashed qua applicants no.4 and 5.
9. Criminal Application stands disposed of in above terms.
10. In view of disposal of criminal application, nothing
survives for consideration in the pending application No.1553 of 2023
and the same stands disposed of.
[ R. M. JOSHI ]
JUDGE
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