Writ Petition No. 823 of 2024 · Bombaybench High Court · 2025
Case Details
( 1 ) Cri.WP-823-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 823 OF 2024 Nur Ali s/o. Sardar Ali ShahAge : 44 years, Occu: BusinessR/o. Block No. 44/4 74, Katodara Houseing Colony, Surat. 2. Shah Shabanabi Nur AliAge: 40 years, Occu: Household,R/o. Block No. 44/4 74, Katodara Houseing Colony, Surat.3. Sardarali Navajali ShahAge : 73 years, Occu: Nil,R/o. Ho. No.123, Mandarwaja Bakhad,Mohalla, Khwaja Nagar, Surat.4. Kheroonesha Sardar Ali ShahAge :66 years, Occu: Household,R/o. Ho. No.123, Mandarwaja Bakhad,Mohalla, Khwaja Nagar, Surat....PETITIONERS VERSUSRehana Bi Sayyad Ali Shah,Age: 38 years, Occu: Business,R/o. Plot No.185, Patelwadi,Nandurbar. ...RESPONDENTMr. Sohail Subhadar Shaikh, Advocate for the Petitioners.Mr. Ram B. Deshpande, Advocate for Respondent. Ethape
Legal Reasoning
( 2 ) Cri.WP-823-2024CORAM:KISHORE C. SANT, J.RESERVED ON: 9th JULY 2025. PRONOUNCED ON : 29th JULY 2025.ORDER :-1.Heard Mr. Shaikh, the learned Advocate for the Petitioners, andMr. Deshpande, the learned Advocate for Respondent. The matter isheard finally at the stage of admission, with the consent of the parties. 2.This Writ Petition arises out of proceeding in Criminal Misc.Application No.383 of 2021, pending before the learned JudicialMagistrate, First Class, Nandurbar. The petitioners are the originalopponents in complaint filed by the Respondent before the learnedJMFC, Nandurbar, under Section 12 of the Protection of Women fromDomestic Violence Act, 2005 (for short “D. V. Act”) claiming relief underSections 18, 19, 20, 22 and 23 of the D. V. Act which is sought to bequashed by this writ petition.3.The respondent is the daughter-in-law of petitioner No.1 and 2.The petitioner Nos. 3 and 4 are the brother-in-law and wife of brother-in-law of respondent. Ethape ( 3 ) Cri.WP-823-20244.The respondent filed a complaint under the D. V. Act. It is statedthat respondent married to son of petitioner Nos. 1 and 2, namely,Sayyad Ali Sardar Ali in the year 2002. The husband of the respondentdied on 4th December 2003. It is alleged that in the marriage, her parentsspent amount of Rs. 4 lakhs approximately. She was staying in the jointfamily at Surat. The present petitioners used to harass her on pettyreasons. They used to keep her starved. They started demanding anamount of Rs.10 lakhs, and on that count, they used to harass hermentally and physically. When she was pregnant, it is alleged that thepetitioners again started harassing her, saying that no amount is paid byher father in the marriage, and now, again there would be one moreaddition in the family, and started asking her to terminate the pregnancy.They did not like husband of the respondent taking her care during thepregnancy. 5.She delivered a baby on 2nd October 2003 at her parents’ house atShahada. The husband of the informant, because of the harassment,allegedly committed suicide on 12th October 2003. After demise of theEthape ( 4 ) Cri.WP-823-2024husband, the petitioners again started harassing her. After the son ofinformant became major and started looking after family business, thesame is not liked by the petitioners and again there was harassment onthat count. It is ultimately alleged that now the flat in which theopponent was staying with her son is being tried to be occupied by thepetitioners. It is on this, the complaint was filed and reliefs were prayedfor. 6.The petitioners appeared and filed say. It is specific case of thepetitioners in the say that the petition is filed only to harass thepetitioners. There is no shared household since 2003 i.e. since death ofhusband of respondent. Thus, no proceeding is maintainable againstthem. The petitioners are residents of Surat, whereas the respondent isresiding in Shahada. 7.The petitioners have now approached this Court for quashing ofthe proceeding mainly on the ground that the provisions of D.V. Actcame into force in the year 2005. The respondent and petitioners areEthape ( 5 ) Cri.WP-823-2024staying separately since 2003 i.e. prior to coming into force of D. V. Act.The provisions of the D. V. Act are, therefore, not applicable, and noproceeding can be filed for the alleged act, even if any. 8.The learned Advocate for the petitioners relied upon the followingjudgments:(i)Tulshiram @ Tulsidas s/o. Haribhau Patil and Ors. Vs.The State of Maharashtra Through Wadi Police Station and Ors. in Criminal Application (APL) No.387 of 2020 (Nagpur Bench). (ii)Shivaji Gangadhar Ingale and Ors. Vs. The State of Maharashtra and Anr. in Criminal Writ Petition No.358 of 2022 (Aurangabad Bench). 9. In the case of Tulshiram Patil (supra), the Court considered thatthe parties therein were not residing together or they never lived in ashared household with the complainant. By considering the definitiongiven in Section 2(f) of the words, “domestic relationship” and inSection 2(q) “Respondent”, the Court held that when the persons do notstay together under one roof, they cannot be said to be persons having aEthape ( 6 ) Cri.WP-823-2024domestic relationship. So far as the word Respondent is concerned, theCourt held that the complainant has to be a person aggrieved against thepersons who are in domestic relationship. By considering Section 2 ofthe D. V. Act, the Court considered whether the act cannot be said to bean act of Domestic Violence. In the said case, the Court recorded thatthe complainant failed to show domestic relationship as defined underSection 2(f) and a shared household as defined in Section 2(s) of thesaid Act. It is further held that the petitioner therein also cannot betermed as a Respondent as defined in Section 2(q) of the Act, and onthat basis, the complaint came to be quashed and set aside by grantingliberty to file appropriate proceeding under Civil or Criminal law forascertaining the rights. 10.In the case of Shivaji Ingale (supra), the facts were that thepetitioner was charged under Section 4 of the Protection of Childrenfrom Sexual Offences (for short “POCSO”) Act, for an act committedprior to enactment of POCSO Act. This Court further considered Article20(1) of the Constitution of India. It was held that when the Act wasEthape ( 7 ) Cri.WP-823-2024allegedly committed, the provisions of POCSO were not in force, andtherefore, the petitioner therein could not be charged for the offencesunder the POCSO, as on the date of commission of alleged act, POCSOwas not in force. 11.The learned Advocate for the respondent relied upon a judgmentpassed by the Hon’ble Apex Court in the case of Kamatchi Vs. LakshmiNarayanan1, wherein the Apex Court held that there is no limitation forfiling a complaint under the D. V. Act. The Hon’ble Apex Courtconsidered Section 468 of Cr.P.C and held that the same is notapplicable. It was the case where the proceeding was filed for breach ofan order passed under Section 12. It is held that the limitation wouldstart only from the date of breach of order under Section 12. However,the question in the present case is that on the date of alleged incident,the provisions of D. V. Act were not in force. Secondly, in the presentcase, it is seen that since 2003, parties are not in domestic relationship,and therefore, they cannot be said to be respondent, and in view of this,12022 STPL 4200 SC Ethape ( 8 ) Cri.WP-823-2024no provisions of D. V. Act would be applicable in the present case. 12.Considering all above, this Court is of the opinion thatcontinuation of the present proceeding against the present petitionerswould be an abuse of process of law. The proceeding is not maintainableunder the D. V. Act. Hence, the following order: ORDER(i)Criminal Writ Petition stands allowed in terms ofprayer clause (B) which reads as under:-(B). That, the proceeding in Criminal M. A. No.383of 2021 pending before the learned JudicialMagistrate First Class, Nandurbar may kindly bequashed and set aside. (ii)With this, criminal writ petition stands disposed off. [KISHORE C. SANT, J.]Ethape