Dr. Dhiraj Gada v. Sheetal Gada

( Passed on this 05 th day of November, 2015 ) THIS petition has been filed under Section 482 of the Code of Criminal Procedure [for short the Code] for quashment of summoning order dated 06.05.2013 passed by the JMFC, Indore in M.J.C. No.17/2013 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 [for short the Act].

[2] Brief facts of this case are that the on 08.12.2003 Respondent was married with the son of petitioners, viz. Kunj Gada and they lived together till 24.02.2013. Out of the wedlock, a daughter and son were born on 04.06.2005 and 14.02.2009 respectively. The petitioner No.1 is father- in-law and petitioner No.2 is mother-in-law of the Respondent.

[3] The Respondent filed an application under -: 2:- Misc. Criminal Case No.1759 of 2014. Section 12 of the Act against her husband Kunj Gada, father- in-law [petitioner No.1 herein]; mother-in-law [petitioner No.2 herein]; sister-in-law and husband of sister-in-law claiming various reliefs, namely, Protection orders under Section 18 of the Act; Residence orders under Section 19 of the Act; Monetary relief under Section 20 of the Act; Compensation and damages under Section 22 of the Act; interim orders under Section 23 of the Act and order prohibiting the Respondents from committing acts of domestic violence.

[4] The Respondent filed the application under Section 12 of the Act stating the following instances of Domestic Violence :-

(i) since you are from a small home, you will have to live here as a servant, and that all the domestic work, including sweeping, mopping, cleaning the dishes etc, used to be got done by the Respondent.

(ii) between January 2005 and June 2005, the Petitioner No.1 has indulged in sexual harassment of the Respondent as he carried out internal examination of the Respondent during her first pregnancy.

(iii) despite her consistent refusal, the Petitioner No.1 arranged for the delivery of the Respondent's daughter on 04/06/05 at a small hospital named Sarvodaya Hospital. The Respondent further alleges that the Petitioner No.1 did not arrange for a lady doctor to be present at the time of delivery.

(iv) Respondent's husband had kept her as a receptionist at his shop and was not paying the Respondent anything and whatever amount was shown as being paid into the account the Respondent, same would be removed by the Petitioner No.1 and his son.

(v) the mother of the Petitioner No.1 wanted a male heir for the perpetuation of the Gada lineage and so, the Petitioner No.1 in order to fulfill her desire wanted to make the Respondent conceive a child from donor sperm which would be free from the genetically acquired malaise of obesity which according to -: 3:- Misc. Criminal Case No.1759 of 2014. the Respondent plagued the Gada family with the Petitioner No.2 weighing about 140 Kgs and Mr. Kunj Gada weighing about 140 Kgs. It is the case of the Respondent that the Petitioner No.1 was concerned that if the artificial insemination of the Respondent was done using Mr. Kunj Gada's sperm, the child would also acquire the propensity to be obese through his genes. In order to obviate such an eventuality, the Respondent states that the Petitioner No.1 suggested her impregnation using donor sperm of a person who was free from the genetic tendency for obesity. The Respondent states that the Respondent shot down the suggestion of the Petitioner No.1 upon which the Petitioner No.1 is said to have assured the Respondent that the Petitioner No.1 would use the sperm of Mr. Kunj Gada only to impregnate her. It is the contention of the Respondent that she came to know that Petitioner No.1 had used someone else's sperm to impregnate the Respondent as the blood group of the child was O -ve whereas the blood group of the Respondent, Aneri Gada and Mr. Kunj Gada were O +ve.

(vi) a demand of Rs.1,00,000/- (rupees one lakh only) as dowry by the and the cruelty perpetrated on her by the Petitioners in order to coerce her to get the dowry of one lakh.

[5] This petition is filed stating that after the marriage on 08.12.2003 until 24.02.2012 Respondent resided with the petitioners. During the period of stay, serious disputes were arose between the Respondent and her husband Kunj Gada as Respondent developed illicit intimacy with one Rajesh Jain. In the month of January, 2013, Kunj Gada has filed a petition under Section 13 (1) (i) of the Hindu Marriage Act, 1955 against the Respondent seeking decree of divorce on the ground of adultry; whereas petitioner No.1 has lodged a FIR at Police Station Tukoganj, Indore at Crime No.130/2013 for the offence under Section

406 read with Section 120-B and Section 497 of IPC against the Respondent and Rajesh Jain. Thereafter Respondent was arrested in the said offence and after release, Respondent started living with her parents.

[6] The petition is filed on the ground that the -: 4:- Misc. Criminal Case No.1759 of 2014. application under Section 12 of the Act is filed to wreck vengeance on the petitioners for having filed the FIR against the Respondent. The allegations made in the application are false and do not come within the definition of domestic violence. Baseless allegations are made in the application with an intention to blackmail the petitioners to fulfill her illegal demands. Thus, allowed to continue this prosecution is misuse of process of Court. Therefore, the order of summoning the petitioners be quashed.

[7] In reply of the petition, the Respondent denied the averments of the petition and submits that in the application she has made the specific and definite allegations against the petitioners that can only be proved by way of evidence. It is denied that false allegations have been made in the application and the complaint is counter blast of the FIR lodged by the petitioners or it is filed to blackmail the petitioners. It is also submitted that the typed script, conversation and the recordings are not filed along with the necessary certificates as provided under Section 65-B of the Evidence Act. Thus, such evidence is inadmissible in evidence. This is a clear case of domestic violence and there is no merit in the petition. It deserves to be dismissed.

[8] Learned counsel for the petitioners submits that the Act has no retrospective effect. Therefore, alleged act of domestic violence before the commencement of the Act cannot be considered in application under Section 12 of the Act.

[9] Learned counsel for the petitioners submits that domestic violence is defined under Section 3 of the Act. -: 5:- Misc. Criminal Case No.1759 of 2014. None of the allegations made in the application come within the definition of physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. For this purpose, he drew the attention of this Court on every allegation made in the application and submitted that even if the allegations taken to be true on their face value, no case is made out for committing domestic violence by the petitioners. The Respondent was having illicit relationship with Rajesh Jain and when the petitioners' son Kunj Gada has collected evidence against her, then she has filed the present application to create a pressure on the petitioners to fulfill her illegal demands. The proceedings against the petitioners are frivolous and mala-fide, therefore, the complaint filed by the Respondent be quashed. [10] Learned counsel for the petitioners further submits that the allegations made in the complaint are so absurd or improbable and on the basis of no fair minded and informed observer can over reach just and proper conclusion so as to existence of sufficient grounds for proceedings. In such cases, Court should exercise the jurisdiction under section 482 of the code to quash the complaint. For this purpose, he placed reliance on the judgment of apex Court in the case of M.M.Ojha v/s Alok Kumar Shrivastava, reported in (2009) 9 SCC 682. [11] Learned counsel for the petitioners submits that when the allegations contained in the application, even if, given face value and taken to be correct in their entirety disclosed no offence, then the Court should not be allowed to continue such proceedings as held by the apex Court in -: 6:- Misc. Criminal Case No.1759 of 2014. the case of Mahesh Choudhary v/s State of Rajasthan [(2009) 4 SCC 439]. For this purpose, learned counsel for the petitioners has also cited the judgments of apex Court in the case of Harmanpreet v/s State of Punjab [(2009) 7 SCC 712]; Sunderbabu v/s State of Tamil Nadu [(2009)

14 SCC 244]; Mahindra & Mahindra v/s Rajeev Dubey [(2009) 1 SCC 706]; Geeta Mehrotra v/s State of Uttar Pradesh [(2012) 10 SCC 741] and W.Kalyani v/s State through Inspector of Police [(2012) 1 SCC 358]. [12] On the other hand, learned counsel for the Respondent very fairly concedes that the Act has no retrospective effect. Even the conduct of the petitioners before commencement of the Act can be considered by the Court. There are specific and definite allegations against the petitioners in regard to domestic violence. To judge the domestic violence of the petitioners, the Court has to consider the overall facts and circumstances of the case as provided in the Explanation II appended to Section 3 of the Act. This is not a case in which Respondent/wife has filed a complaint for prosecution of the petitioners on false allegations to harass them. But in the present case due to domestic violence the Respondent has to force to leave her shared household and she is unable to maintain herself as well as two minor children. There are serious disputed questions of fact which cannot be determined without evidence. Thus, the petition is liable to be dismissed. He placed reliance on the judgment of apex Court in the case of Meena Choudnary v/s Commissioner of Delhi Police [LAWS (SC)-2014-9-102]. -: 7:- Misc. Criminal Case No.1759 of 2014. [13] After hearing learned counsel for the parties, perused the record. [14] The Act brought into force on 26.10.2006. Admittedly in the application under Section 12 of the Act, some allegations are made against the petitioners which are before the commencement of the Act. Hon'ble apex Court in the case of Saraswathy v/s Babu [(2014) 3 SCC 712] held as under :- In the present case, in view of the fact that even after the order passed by the Subordinate Judge the respondent- husband has not allowed the appellant-wife to reside in the shared household, matrimonial house, we hold that there is a continuance of domestic violence committed by the respondent- husband against the appellant-wife. In view of the such continued domestic violence, it is not necessary for the courts below to decide whether the domestic violence is committed prior to the coming into force of the Protection of Women from Domestic Violence Act, 2005 and whether such act falls within the definition of the term 'Domestic Violence' as defined under section 3 of the dv act, 2005. The other issue that whether the conduct of the parties even prior to the commencement of the DV Act, 2005 could be taken into consideration while passing an order under sections 18, 19 and 20 fell for consideration before this Court in V.D Bhanot v. Savita Bhanot. (2012) 3 SCC 183. In the said case, this Court held as follows :-

12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the DV Act, 2005, the conduct of the parties even prior to the coming into force of the DV Act, could be taken into considering while passing an order under Section 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the DV Act, 2005. [15] Thus, it is clear that while examining the allegations made in the application, the Court can even consider the conduct of the parties before the commencement of the Act. -: 8:- Misc. Criminal Case No.1759 of 2014. [16] Admittedly the Respondent is daughter-in-law of the petitioners and, therefore, there is domestic relationship between the petitioners and Respondent. From bare reading of the complaint, it is apparent that many serious allegations have been made against the petitioners and while considering the act of Domestic Violence the Court has to consider overall facts and circumstance of the case, as per the Explanation II appended with Section 3 of the Act. Without taking evidence, the Court cannot give any finding whether petitioners have committed any Domestic Violence as defined in Section 3 of the Act. Therefore, this complaint cannot be quashed on the ground that the same is baseless and filed to wreck vengeance on the petitioners for lodging FIR against the Respondent. [17] Hon'ble apex Court in the case of R.Kalyani V/s. Janak C. Mehta, reported in (2009) 1 SCC 516, held as under :-

16. Recently in R.Kalyani V. Janak C. Mehta This Court laid down the law in the following terms : (SCC P.523, Paras 15-16).

15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclosed commission of an offence, the Court shall not go beyond -: 9:- Misc. Criminal Case No.1759 of 2014. the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections

482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint. [18] The present complaint is not filed for prosecution of petitioners but the respondent is claiming her right under Domestic Violence Act and the allegations are depend on the facts, therefore, on the basis of the documents filed with the petition, this Court cannot held that the allegations made in the complaint are false. The powers under Section 482 can be exercised sparingly. I am of the view that the petitioners are failed to make out a case for exercising inherent jurisdiction of this Court. Thus, there is no merit in the petition. The petition is accordingly dismissed. [ JARAT KUMAR JAIN ] JUDGE Sharma AK/*