Court: Rajasthan High Court
Bench: JUSTICE MRS. NISHA GUPTA
Nishant Hussain vs Seema Saddique & Anr on 21 September, 2012
Living Apart from 10 Years, No Cause of Action to Initiate DV Proceedings
This revision petition has been preferred against the order dated 30.3.2012 passed by learned Addl. Sessions Judge (Fast Track) No.3, Jodhpur Mahanagar whereby application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short “the Act of 2005”) has been allowed and the order dated 23.12.2011 passed by the court below has been affirmed.
The short facts of the case are that marriage between the parties took place on 26.12.1997. Male child has been born out of the wedlock on 15.9.1999. There are allegations of harassment to respondent no. 1 in August, 1998 and October, 2002. A criminal FIR for the offences under Section 498A and 406 IPC has also been lodged in January, 2004. Thereafter in 2007, the present petition has been filed and the learned trial court ordered maintenance allowance in favour of respondent and the appeal preferred against the order of the trial court has been dismissed. Hence this revision petition.
The only contention of the present petitioner is that, admittedly, the respondent has left the matrimonial home in the year 2002 and the Act of 2005 came into force in October,2006. It is not in dispute that the Act of 2005 has retrospective effect, but the complaint can be filed within a period of one year from the date of incident and when the parties are not living together, there is no occasion for any incident of domestic violence and on the basis of incidents occurred before 2002, this petition is not competent. There is no evidence that the present petitioner has committed any act of domestic violence after the year 2002. A false case is set up by the non-applicant stating therein that on 4th and 5th August, 2007 when the respondent arrived at Jodhpur for the proceeding in criminal court, the incident of domestic violence has taken place but considering the totality of the circumstances, this isolated act cannot be termed under the Act of 2005 and hence the orders are perverse and abuse of process.
Further more, it has also been submitted that decree of divorce has been passed on 5th March, 2010 and no domestic relationship is subsisted between the parties.
The contention of respondent no.1 is that on 4th and 5th August, 2007 the act of domestic violence has been done and no maintenance allowance has been allowed to her. It is a case of economical abuse and maintenance allowance has been rightly awarded.
Heard learned counsel for the parties and perused the impugned orders.
It is not in dispute that the parties are living separately since October, 2002, hence there is no occasion for committing any domestic violence. The only incident of August, 2007 has been alleged which is apparently seems to be designed for this petition. Taken to be true that the incident of August, 2007 has occurred between the parties, still it does not constitute the act of domestic violence. The matter has been proceeded under Section 107 and 116(3) Cr.P.C.. No act of domestic violence has been alleged against the present petitioner as defined under Section 3 of the Act of 2005. The learned court below has also considered the fact that the parties are residing separately since 26.10.2002. All the allegations regarding violence which have been set up in the complaint are prior to October, 2002. It has been stated that on 4th and 5th August, 2007 the present petitioner has misbehaved with father and mother of the respondent and has threatened to take away child forcibly and again he misbehaved on 5.8.2007 and also threatened for dire consequences. But as stated earlier, this isolated incident cannot be termed as act of domestic violence and reliance has been placed on Vijay Verma v. State N.C.T. of Delhi & anr. (Cr.M.Case No. 3878/2009) decided on 13.8.2010 passed by the High Court of Delhi wherein it has been specifically held that only violence committed by a person while living in the shared household can constitute domestic violence. Threatening by a person may amount to an offence under the Indian Penal Code but this cannot amount to domestic violence. Domestic violence is a violence which is committed when parties are in domestic relationship, sharing same household with an opportunity to commit violence. Here in the present case, when the parties are residing separately since 2002, there was no occasion to commit domestic violence and the petition is clearly not maintainable.
Further contention of the respondent is that this is a case of economical abuse as the maintenance allowance has not been given to the respondent. But in the petition nothing has been alleged regarding economical abuse. Only the incident which has been set up to constitute domestic violence is the incident of 4th and 5th August, 2007 which is not in the nature of the domestic violence.
The other contention of the the present petitioner is that it has been stated that harassment has been caused to the respondent in 1998 and in 2002 but the complaint could be filed within a period of one year from the date of the incident. Reliance has been placed on Inderjit Singh Grewal v. State of Punjab & anr. (2012 Cr.L.R.(SC) 16). Admittedly, the petition has been filed on 29.8.2007 and the incident has taken place in 1998 and 2002, which could not be made a ground of complaint in 2007.
Further reliance has been placed on Sunil Kumar Gupta v. Shalini Gupta (II (2012) DMC 705) where the marriage has been annulled by the decree of divorce and hence it was held that the respondent cannot be equated with that of aggrieved person as provided under Section 2(a) of the Act of 2005. Here in the present case, admittedly, the original petition was filed in 2007 whereas the decree of divorce has been filed in March, 2010 and hence this law does not give any relief to the present petitioner.
The contention of the respondent is that there is no infirmity in the impugned order but looking to the facts that no allegation of domestic violence are lodged in the petition, isolated incident of August, 2007 cannot be termed as domestic violence. Explanation Ii of Section 3 of the Act of 2005 reads as under:-
“Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”
This clearly suggests that for constituting domestic violence, overall facts and circumstances of the case shall be taken into consideration. Here in the present case, the incident of August, 2007 cannot be termed as domestic violence as the parties were living separately since 2002. Petition for divorce was also pending between them and subsequently the divorce has been granted. Reliance has been placed on V.D. Bhanot v. Savita Bhanot (AIR 2012 SC 965) where residence order has been passed in view of the facts of the case. Further more, reliance has been placed on Gajendra Singh v. Smt. Minakshi Yadav (2022(1) Cr.L.R.(Raj.) 839) where threat to respondent and his family was continued after the year 2006 and looking to the facts, maintenance has been allowed as the wife was facing domestic violence including threat and economic abuse but here nothing has been alleged by the respondent except the incident of 2007. Reliance has also been placed on Rajesh Kurre v. Safurabai & ors. (2009 Cri.L.K.(NOC) 446(Chh.) where the requirements of Section 125, Cr.P.C. and the provisions of Section 20 of the Act of 2005 have been explained.
Hence looking at the above that no case is made out by the respondent regarding act of domestic violence. The parties are residing separately since 2002 and hence the petition under Section 12 of the Act of 2005 is not maintainable in view of the facts of the case and the impugned orders of the courts below are liable to be quashed.
In view of above, this revision petition is allowed and the impugned orders of the courts below are hereby quashed and set aside.