Documents filed along with Memo No. 655/12 are taken on record.
Arguments heard.
2. This is a petition, under section 482 of the Code of Criminal Procedure (for short ‘the Code’), for quashing the proceedings, pending as MJC No. 314/11 in the Court of Smt. Usha Tiwari, JMFC, Bhopal. In that case, notices have been issued to each one of the petitioners to show cause as to why the reliefs as prayed for by the respondent in her application, under section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short the ‘Act’), should not be granted.
3. According to the petitioners, proceedings are apparently an abuse of the process of the Court in view of the following facts—
(i) Marriage of the respondent was solemnized with Rahul Singh, son of petitioner Nos. 1 and 2 and brother of other petitioners on 11-9-2000 in the Arya Samaj Mandir in Bhopal as it was an inter-caste love marriage. In the wedlock, they are blessed with two daughters.
(ii) Soon after the marriage, the respondent and her husband started residing together separately from the petitioners.
(iii) The petitioner Nos. 1 and 2 are senior citizens.
(iv) No specific incident of domestic violence was illustrated in the application and most of the alleged acts of domestic violence related to the period prior to the date with effect from which the Act was brought into force.
4. Coming to the legal aspect of the matter, learned counsel for the petitioners has urged that the application, under section 12 of the Act, is not maintainable against petitioner Nos. 3 and 4, who are the sisters of Rahul, for the reason that the respondent, as defined in Clause (q) of section 2 of the Act, means only adult male person.
5. Per contra, learned counsel for the respondent has submitted that there is no sufficient ground to interfere with legitimate proceedings under the inherent powers. According to him, in the light of the facts stated therein, no option was left to the respondent except to move the Court, by filing the application for the reliefs as contemplated in sections 18, 19, 20, 22 and 23 of the Act.
6. In response, learned counsel for the petitioners, inviting attention to the contents of notice dated 18-11-2011 issued to Rahul Singh on behalf of his father, the petitioner No. 1 and its reply, has contended that the proceedings have been maliciously initiated at the instance of Rahul with an ulterior motive to wreak vengeance in the wake of his father's inclination to disqualify him from claiming any share or inheriting the property terming the same as self-acquired.
7. At the outset, it may be observed that the argument as to maintainability of the application as against petitioner Nos. 3 and 4 presumably based on the view taken by a co-ordinate Bench of this Court in Ajay Kant v. Alka Sharma, 2007(4) MPLJ 193 : 2008 Cri.LJ 264 and reaffirmed in Tehmina Qureshi… v. Shazia Qureshi…., 2010(2) MPLJ 127 : 2010(1) MPLJ (Cri.) 174 : 2010(1) MPHT 133, does not deserve acceptance in the wake of pronouncement of the Supreme Court in Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, 2011(2) MPLJ (Cri.) (S.C) 501 : 2011 Cri.LJ 1687. Accordingly, female relatives of husband/male partner may also be arrayed as respondent to the application under section 12 of the Act.
8. The averments made in the application suggest that during the preceding period of nearly 10 years, the respondent had been subjected to cruelty and harassment inter alia for the under mentioned reasons—
(i) Caste-difference.
(ii) Non-satisfaction of the dowry demand for a sum of Rs. 20 lacs.
(iii) Inability to beget a male child.
9. However, fact of the matter is that the application filed on 2-11-2011 by the respondent neither contains details of any recent incident of domestic Page: 615violence, as defined in section 3 of the Act, nor, furnishes any explanation for non presentation of the application at an earlier point of time despite the fact that the Act has been brought into force on 26-10-2006. Further, the order dated 12-1-2012, does not indicate as to what was there in the report of Protection Officer that weighed with learned Magistrate in directing issuance of notice to secure presence of the petitioners on 30-1-2012.
10. It is, therefore, apparent that the impugned order was passed without taking into consideration the report prepared by the Protection Officer, ignoring the proviso to section 12, that reads thus—
“Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider”.
(Emphasis supplied)
11. The proviso ordinarily carves out an exception from the general rule enacted in the main provision. It is also well settled that the word ‘any’ would mean one or more out of several and includes all (See. Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement, (2010) 4 SCC 772 : AIR 2010 SC 2239). In this view of the matter, even an interlocutory order directing issuance of notice would not be excluded from the rigour of the proviso. Accordingly, learned Magistrate ought to have passed a reasoned order holding that prima facie a case existed for asking the petitioners as to why the reliefs, as claimed in the application, should not be granted.
12. In the ordinary course, the matter would have been remanded for recording a reasoned order but I refrain from doing so simply because even if the allegations made against the petitioners in the application, are taken at their face value and accepted in their entirety, no justification for initiation of action against them would be made out in view of the admitted fact that during the relevant period, they were residing separately from the respondent. As such, the matter falls under categories (1), (5) and (7) of the cases, as enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604, attracting interference under the inherent powers.
13. For these reasons, the petition stands allowed and the proceedings in MJC No. 314/11 (above) are hereby quashed.
C.C as per rules.
Petition allowed.
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