The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.597 of 2022 Durga Das Panigrahi and Others Petitioners Mr. Brahmananda Tripathy, Advocate …. -Versus- Sweta Mishra Opposite Parties Mr. Bibhu Prasad Tripathy, Advocate for O.P. …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:15.05.2023 1. Instant writ petition under Section 482 Cr.P.C. is filed by the petitioners challenging the proceeding in CMC No.88 of 2022 initiated by an application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) and pending in the file of learned S.D.J.M., Bhubaneswar and issuance of notice to show cause on the grounds inter alia that no prima facie case is made out against them and it is liable to be quashed in exercise of the Courts’ inherent jurisdiction. 2. The petitioners are respondent Nos.4 to 7 in the proceeding before the court below having been registered at the behest of the opposite party-aggrieved person who alleged domestic violence against them and other in-laws. From the application under Section 12 of the DV Act, a copy of which is at Annexure-2, it is made to appear that petitioner Nos.1 and 2 are the parents-in-law of petitioner No.4 (respondent No.4, namely, sister-in-law of the opposite party), whereas, petitioner No.3 is the latter’s husband (respondent No.5). As according to the petitioners, with false and frivolous allegation made against them, the opposite party CRLMC No.597 of 2022 Page 1 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra dragged all them into litigation out of personal grudge when they do not have any direct relation with her nor at any point in time, did ever shared household and hence, therefore, cannot be said to have committed any acts of domestic violence.
Legal Reasoning
3. Heard Mr. B. Tripathy, learned counsel for the petitioners and Mr. B.P. Tripathy, learned counsel for the opposite party. 4. The opposite party filed a counter affidavit dated 19th July, 2022 denying the contention of the petitioners and alleging that they are the relations of her husband and therefore, cannot be said not to be in any domestic relationship and furthermore, they have been arrayed as accused in Bhubaneswar Mahila P.S. Case No.17 of 2022. The details of the facts alleged in Annexure-2 have been justified by the opposite party stating the facts regarding the physical, verbal and emotional abuse, she was subjected to in the hands of the petitioners besides the other respondents. 5. Learned counsel for the petitioners submits that if there is a shared household between the parties related by marriage ETC. described in Section 2(f) of the DV Act and the aggrieved person so defined in Section 2(a) thereof alleged to have been subjected to any act of domestic violence, a proceeding under the DV Act with the necessary reliefs is maintainable. It is contended that the expression ‘shared household’ stands defined in Section 2(s) of the DV Act which means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household which belongs to a joint family and while sharing the household in such manner and being in a domestic relationship, for any kind of violence she is subjected to, the latter may demand maintenance with other reliefs including an order for CRLMC No.597 of 2022 Page 2 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra residence. In the instant case, as according to the learned counsel for the petitioners, the opposite party did not share common household with the petitioners at any given point of time and therefore, in absence of it, a proceeding under the DV Act cannot be entertained against them. 6. On the contrary, learned counsel for the opposite party submits that the opposite party has moved the learned court below against the petitioners and also her husband and parents- in-law on account of ill-treatment she was meted out, details of which, have been elaborately narrated in the application under Section 12 of the DV Act. It is further submitted that the allegation stands against the petitioners as well and the manner of their participation is described in Annexure-2 so submitted before the learned S.D.J.M., Bhubaneswar and therefore, it cannot be said that they have not committed any acts of domestic violence and hence, the action initiated against them should not be interfered with but ought to be left for a decision during the proceeding itself. 7. Precisely stated, the petitioners contention is that there has been no domestic relationship with the opposite party and thus, the proceeding under Section 12 of the DV Act initiated against them should be quashed otherwise it would be an abuse of process of law. The learned counsel for the petitioners in support of such contention has referred to the following decisions, such as, Mohammad Maqeenuddin Ahmed and Others Vrs. State of Andhra Pradesh and Another 2007 CRI.L. J. 3361; K. Narasimhan Vrs. Smt. Rohini Devanathan 2010 CRI.L.J. 2173 besides a judgment of this Court in Sadananda Behera Vrs. Nandita Sethi decided in CRLMC No.4740 of 2015 and disposed of on 16th December, 2015. As a counter, learned counsel for the opposite party submits that the allegations about the domestic violence are CRLMC No.597 of 2022 Page 3 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra clearly revealed from the application under Section 12 of the DV Act and hence, the petitioners should respond to the show cause notice issued by the learned court below. It is further submitted that such issuance of notice by the learned S.D.J.M., Bhubaneswar does not infringe the rights of the petitioners which cannot be equated with summons issued under Section 204 Cr.P.C. since the word complaint as contemplated in the DV Act and Rules is not the same as defined in Cr.P.C., inasmuch as, while dealing with an application under Section 12 of the DV Act, the Magistrate is not called upon to take action for commission of any such offence and therefore, it is not like taking cognizance under Section 190 Cr.P.C. as it is only dealing with civil reliefs and furthermore, the petitioners cannot be construed as accused persons and in so far as the dispute is concerned, it is factually based and hence, the same is to be examined by the learned court below. Lastly, it is apprised that the opposite party filed the application under Section 12 of the DV Act but inadvertently mentioned it as the Domestic Incident Report (DIR) which is usually submitted by a Protect Officer or a service provider. 8. The expression ‘domestic violence’ is defined in Section 3 of the DV Act and the respondent is said to have committed the same in the manner when he conducts himself resulting thereby injuries caused to the aggrieved person. The term respondent as per Section 2(q) of the DV Act means any person who is or has been in a domestic relationship with the aggrieved person and against whom, the latter has sought for any reliefs under the DV Act, who may be a wife or female partner leaving in a relationship in the nature of a marriage being eligible to file a complaint against any relative of the husband or such other the respondents. As per Section 2(f) of the DV Act, the expression ‘domestic relationship’ means a relationship between two CRLMC No.597 of 2022 Page 4 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra persons, who live or have at any point of time lived together in a shared household when they are related by marriage, consanguinity or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. If the above provisions are read together, it would mean that a respondent, who is or has been in a domestic relationship and live or lived together with the aggrieved person at any time and has committed domestic violence while sharing common household would be liable under the DV Act in case an application is received from the aggrieved person or a DIR from a Protection Officer or service provider. 9. In the case at hand, the petitioners are the in-laws of the opposite party from the side of her sister-in-law, namely, petitioner No.4. The application under Section 12 of the DV Act is filed by the opposite party seeking reliefs against the petitioners and her husband and parents-in-law, namely, respondent Nos.1, 2 and 3 respectively. Admittedly, certain allegations do appear in Annexure-2 regarding the involvement of the petitioners, referring to which, it is claimed that the proceeding under Section 12 of the DV Act as against them to be maintainable. The Court considers Annexure-2 as an application under Section 12 of the DV Act independently by the opposite party though supported by a document wrongly styled as DIR which is normally received from a Protection Officer or service provider. Such filling by the aggrieved person is permissible under law. In Prabha Tyagi Vrs. Kamlesh Devi (2022) 8 SCC 90, the Apex Court held and observed that the DV Act does not make it mandatory for aggrieved person to submit an application under Section 12 only through a Protection Officer or service provider and when any such application is moved by herself or with the assistance of a lawyer and not the Protection Officer or service provider, there CRLMC No.597 of 2022 Page 5 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra would be no DIR for consideration by the Magistrate. In Satish Chander Ahuja Vrs. Sneha Ahuja (2021) 1 SCC 414, the Supreme Court held that consideration of the DIR does not mean that a Magistrate can pass order solely relying upon such report received from a Protection Officer or service provider. So, in such view of the matter, since there is no mandatory requirement under the DV Act for a DIR, Annexure-2 is to be treated as an application received from the opposite party which is legally tenable. 10. Next question for consideration is, whether, the petitioners can be proceeded with at the instance of the opposite party on the strength of Annexure-2? A copy of the chargesheet in Bhubaneswar Mahila P.S. Case No.17 of 2022 is produced by the learned counsel for the opposite party to suggest that the petitioners along with other respondents have been criminally prosecuted under Sections 498-A, 354(A), 354(B), 406 and 506 read with 34 IPC and Section 4 of the Dowry Prohibition Act. However, in the present case, the Court is to satisfy itself if the petitioners can be made to face the proceeding under the DV Act for being alleged of having committed domestic violence against the opposite party. As concluded before, a respondent or respondents as the case may be can be proceeded under the DV Act provided the latter have or at any point of time, had been in a domestic relationship with the aggrieved person. In the considered view of the Court, unless there is a sharing household and the alleged mischief is committed, a proceeding under Section 12 of the DV Act would not be maintainable. When certain allegations are made against any respondents, who are related to the aggrieved person, either by marriage or such other means as delineated in Section 2(f), an action under the DV Act would lie only if acts of domestic violence is committed while being in a shared household. In K. Narasimhan (supra), it is concluded that if CRLMC No.597 of 2022 Page 6 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra the aggrieved person and respondent never stayed together in same household, merely because the former was abused and ill- treated by the latter, it would not amount to any acts of domestic violence in absence of being in a shared household. That apart, to include and involve the in-laws, who are in a common household with the aggrieved person, all such particulars are to be stated in the application under Section 12 of the DV Act. If there is no specific allegation against the respondent or respondents, who is alleged to be in shared household, reliefs under the DV Act cannot be claimed against them by the aggrieved person. In this regard in Mohammad Maqeenuddin Ahmed (supra), as relied upon by the learned counsel for the petitioners, may be profitably referred to. In the said decision, the relief sought for was against the husband only and no specific allegations were made vis-à-vis other family members and hence, the proceeding under the DV Act against the latter was quashed invoking inherent jurisdiction. To the similar effect, the decision in Sadananda Behera (supra) has been rendered. In any case, to act upon the grievance of the aggrieved person, the Magistrate is to go through the contents of the application filed under Section 12 of the DV Act to satisfy himself that the respondent being in a domestic relationship and having shared common household, either presently or at a given point of time, if committed any domestic violence may be proceeded with for appropriate reliefs under the DV Act and not otherwise. 11. In so far as the petitioners are concerned, as earlier mentioned, they are the in-laws through the sister-in-law of the opposite party. In fact, the husband and parents-in-law of the opposite party’s sister-in-law are the other respondents besides the direct in-laws. On a reading of the application as at Annexure-2, it is clearly revealed that the opposite party did not pull on well with CRLMC No.597 of 2022 Page 7 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra her husband, namely, respondent No.1 and certain mischief were committed by the parents-in-law. The sister-in-law of the opposite party, as stated earlier, is married to petitioner No.3, whereas, petitioner Nos.1 and 2 are her parents-in-law. It is being alleged by the opposite party that after the marriage held on 27th January, 2019, to her utter dismay, she was taken to the matrimonial home of her sister-in-law, namely, petitioner No.4 instead of her in-laws’ house and after completion of all the rituals of marriage, on 3rd February, 2019, joined her husband- respondent No.1 on a honeymoon trip. It has also been alleged that respondent No.1 did not spend quality time with the opposite party after marriage and always advised her to keep respondent No.2, namely, mother-in-law happy. Thereafter and as according to the opposite party, on certain occasions, the petitioners ill-treated her. The allegation is about the demands made and fulfillment of the same under compulsion, mischief by respondent No.2 father-in-law and illicit relationship of respondent No.1 husband with another woman at his clinic etc. It has been alleged that mischiefs like demands etc. have been made and committed with the direct or indirect knowledge and involvement of the petitioners. For the ill-treatment and alleged mischief, the opposite party lodged an FIR, which as mentioned before, resulted in submission of chargesheet in connection with Bhubaneswar Mahila P.S. Case No.17 of 2022 corresponding to C.T. Case No.883 of 2022. However, in the humble opinion of the Court, the petitioners for being chargesheeted by itself would not be a ground to justify the action under Section 12 of the DV Act which is permissible only if they are alleged of committing the acts of mischief being in a domestic relationship with the opposite party. On a sincere look at Annexure-2, as it made to understand, for a very brief period between 27th January, 2019 and 3rd February, 2019, the opposite party was allegedly made to stay in CRLMC No.597 of 2022 Page 8 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra the house of the petitioners instead of being taken to her matrimonial home and during that time, the marriage rituals were performed before her leaving for honeymoon trip. In other words, barely for seven days, the opposite party remained in the matrimonial home of her sister-in-law and furthermore, Annexure-2 does not indicate as to if she was ill-treated by any of the petitioners during such stay. Some allegations before, at the time of marriage and thereafter with regard to demands have been made with the direct or indirect involvement of the petitioners which is just not sufficient to subject them to a proceeding under Section 12 of the DV Act for the reason that even during the brief period of stay at the matrimonial home of petitioner No.4, nothing has been alleged against any of them that they did some mischief or committed any acts of domestic violence. The opposite party appears to have remained in the matrimonial home of respondent No.4 and after the rest of the rituals were over, she left to join her husband respondent No.1. The entire allegation is principally directed against the husband and parents-in-law of the opposite party while she was staying with them in a common household. The petitioners including petitioner No.4 being the sister-in-law of the opposite party cannot be subjected to the proceeding under the DV Act in absence of any allegations of them having committed domestic violence by considering the fact that she was with all the petitioners during her short stay. The aforesaid aspect was not duly taken cognizance of by the learned court below, if it is true that the petitioners have been summoned to show cause in the meantime. 12. In a proceeding under the DV Act, a Magistrate, on receiving an application under Section 12 thereof either from the aggrieved person directly or through the Protection Officer or service CRLMC No.597 of 2022 Page 9 of 10 Durga Das Panigrahi and Others Vrs. Sweta Mishra provider, he has to apply his judicial mind to the facts averred therein and only upon a subjective satisfaction that the parties are or have lived together singly or jointly in a shared household and during that time, the aggrieved person was subjected to domestic violence shall proceed against the respondent, whosoever he or she may be, either her husband or in-laws. It is not that the Magistrate without judicial application of mind to simply summon the respondent on receiving an application under Section 12 of the DV Act without reaching at a decision that there has been a domestic relationship between the parties or that they once lived together in a shared household. The responsibility of a Magistrate while entertaining any such proceeding and before summoning the respondent is not merely an empty formality which must depend on a conclusion being arrived at that the parties have or had been in a domestic relationship as defined in Section 2(f) of the DV Act. The same view has been expressed in K. Narasimhan (supra). Without further elaboration, the Court reaches at an irresistible conclusion that the proceeding under the DV Act vis-à-vis the petitioners, for the reasons discussed hereinabove, cannot be justified. 13. Accordingly, it is ordered.
Decision
14. In the result, the CRLMC stands allowed. As a logical sequitur, the proceeding in connection with CMC No.88 of 2022 pending in the file of learned S.D.J.M., Bhubaneswar is hereby quashed vis-à-vis the petitioners. Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC, CTC Date: 16-May-2023 11:01:57 TUDU CRLMC No.597 of 2022 Page 10 of 10 (R.K. Pattanaik) Judge