IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : MRS. FARIDA KHAN & ANOR
VERSUS
NON-APPLICANTS/ : DILSHAD
KHAN & ORS.
The above named appellant/applicant/petitioner
has affixed herewith a Court Fee Stamp worth Rs. 110/- + Rs. /- issuance of notice to the following
respondents/non-applicants.
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S.
No.
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Name &
address of the persons
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Process
fee paid
On
Merit on stay
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1.
2.
3.
4.
5.
6.
7.
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DILSHAD KHAN, aged about 36 years, S/o
Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near
Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya
Pradesh).
SHAMSHAD AHMAD, Aged about 41years, S/o
Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate, Near Kachchi,
Shahjahanabad, BHOPAL (Madhya Pradesh).
NAUSHAD AHMAD KHAN, aged about 46 years,
S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near
Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya
Pradesh).
ASLAM KHAN, Aged about 47 years, S/o Late
Mr. Ayub Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow,
Berasia Road, BHOPAL (Madhya Pradesh).
MRS. FAKHRUNISSA, Aged about 66 years, W/o
Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal
Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).
MRS. SHAHEEN, Aged about 39 years, W/o Mr.
Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu
Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).
MRS. YASMEEN, Aged about 40 years, W/o Mr.
Aslam Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow,
Berasia Road, BHOPAL (Madhya Pradesh).
|
Rs.15/-
+Rs. /-
Rs.5/-
[Extra]
|
|
|
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Date
of order
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Claim valued
at
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Particulars
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15.05.2012
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CRR
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On
Admission and IA 9901/2012 for grant of Stay Only
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Jabalpur
Counsel for
–Applicant
Date
: /05/2012 Vijay Raghav Singh
1. DILSHAD KHAN, aged
about 36 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey
Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL
(Madhya Pradesh).
2. SHAMSHAD AHMAD, Aged
about 41years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate,
Near Kachchi, Shahjahanabad, BHOPAL (Madhya Pradesh).
3. NAUSHAD AHMAD KHAN,
aged about 46 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247,
Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road,
BHOPAL (Madhya Pradesh).
4. ASLAM KHAN, Aged
about 47 years, S/o Late Mr. Ayub Khan, R/o Near Small Mosque, P. G. B. T.
College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).
5. MRS. FAKHRUNISSA,
Aged about 66 years, W/o Late Mr. Matloob Ahmed Khan, R/o House No. 247,
Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road,
BHOPAL (Madhya Pradesh).
6. MRS. SHAHEEN, Aged
about 39 years, W/o Mr. Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near
Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).
7. MRS. YASMEEN, Aged
about 40 years, W/o Mr. Aslam Khan, R/o Near Small Mosque, P.G. B. T. College
Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).
1)
DILSHAD
KHAN, aged about 36 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247,
Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road,
BHOPAL (Madhya Pradesh).
2)
SHAMSHAD
AHMAD, Aged about 41years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 47,
Islami Gate, Near Kachchi, Shahjahanabad, BHOPAL (Madhya Pradesh).
3)
NAUSHAD
AHMAD KHAN, aged about 46 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No.
247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa
Road, BHOPAL (Madhya Pradesh).
4)
ASLAM
KHAN, Aged about 47 years, S/o Late Mr. Ayub Khan, R/o Near Small Mosque, P. G.
B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).
5)
MRS.
FAKHRUNISSA, Aged about 66 years, W/o Late Mr. Matloob Ahmed Khan, R/o House
No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa
Road, BHOPAL (Madhya Pradesh).
6)
MRS.
SHAHEEN, Aged about 39 years, W/o Mr. Shamshad Ahmad, R/o House No. 247,
Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road,
BHOPAL (Madhya Pradesh).
7)
MRS.
YASMEEN, Aged about 40 years, W/o Mr. Aslam Khan, R/o Near Small Mosque, P.G. B. T. College
Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur (M. P.).
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur (M. P.).
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur (M. P.).
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur (M. P.).
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur (M. P.).
The Registrar (Judicial) The
Registrar (Judicial)
High Court of Madhya Pradesh High Court of Madhya
Pradesh
Principal Seat at Jabalpur (M. P.). Principal
Seat at Jabalpur (M. P.).
IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : MRS.
FARIDA KHAN & ANOR
VERSUS
NON-APPLICANTS/ : DILSHAD
KHAN & ORS.
I N
D E X
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Sno
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Description
of documents
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Annexure
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Pages
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1.
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Index
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1
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2.
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Chronology of events
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2 TO 7
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3.
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Memo
of criminal revision
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8 TO 23
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4.
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List
of Documents
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24
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5.
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Copy of
the complaint under Section 12 (1) dated 12.01.2011
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A-1
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25 TO 39
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6.
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Copy of
the domestic incident report dated 12.01.2011
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A-2
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40 TO 43
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7.
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Copy of the application dated
19.05.2011
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A-3
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44 & 45
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8.
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Copy of the reply submitted by the
non-applicants
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A-4
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46 & 47
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9.
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Copy of the application dated
02.09.2011
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A-5
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48
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10.
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Copy of the reply dated 21.11.2011
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A-6
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49 TO 51
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11.
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Copy of the Order dated 18.01.2012
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A-7
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52 TO 55
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12.
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Copy of the impugned Judgment and
order dated 17.04.2012 passed by the Court of Vth Additional Session Judge,
Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad
Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal
Appeal No. 144 of 2012
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A-8
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56 TO 58
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13.
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Application for grant of stay
alongwith affidavit
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59 TO 61
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14.
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Vakalatnama
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62
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PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANTS
IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : MRS.
FARIDA KHAN & ANOR
VERSUS
NON-APPLICANTS/ : DILSHAD
KHAN & ORS.
CHRONOLOGY OF
EVENTS
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S.No
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Date
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Events
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1.
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18.02.2009
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Applicant No. 1
married (Nikah) with non-applicant
No. 1 on 18.02.2009 in accordance with Muslims rites and customs. After the
marriage she went to her matrimonial home and she was subjected to cruelty by
(1) Non-applicant No.1- husband, (2) Mother in Law Mrs. Fakhrunissa, (3) Nanad Yasmeen, (4) Non-applicant No. 4
Nandoi, (5) Non-applicant No. 2 Jeth, and (6) Jethani Mrs. Shaheen for bringing less dowry. The applicant No. 1
was sent back to her parental home.
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2.
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21.05.2010
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Applicant No. 1
was blessed with a daughter applicant No. 2 on 21.05.2010 at Bhopal.
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3.
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04.10.2010
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Since the demand of dowry
was not fulfilled by the parents of applicant No.1 therefore nobody took care
of her during maternity period. The
matter was reported to Pariwar
Paramarsh Kendra of Police Station Shahjahanabd on 04.10.2010.
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4.
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02.11.2010
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Thereafter a commission
of offences punishable under Section 498-A/34 read with Section 406 of Indian
Penal Code, 1860 and under Section 3/4 Dowry Prohibition Act, 1961 (Act No. 28 of 1961) in Crime No.
93/2010 before the Mahila Police Station, Bhopal (M. P.) on 02.11.2010
against all the non-applicants.
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5.
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12.01.2011
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Applicants /
aggrieved persons filed an application on 12.01.2011 under the provisions of
Section 12 (1) the Protection of Women from Domestic Violence Act, 2005 [No.
43 of 2005] against the non-applicant No. 1 to 4 / respondent No. 1 to 4
before the Court of Judicial Magistrate First Class, Bhopal (M. P.)
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6.
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12.01.2011
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Applicant prayed for the relives of (1) protection
order Under Section 18, (2) residence
Order under Section 19, (3) monetary relief under Section 20 (4) Custody
Orders under Section 21, (4) Compensation Orders under Section 22. Any other
relief deemed fit and proper may also be granted, have been prayed for. The
case was registered as Miscellaneous Judicial
Case (Criminal) No. 16 of 2011 by the learned trial magistrate.
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7.
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12.01.2011
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Applicant No. 1
also filed domestic incident report before the magistrate under the provision
of Section 9 (b) the Protection of Women from Domestic Violence Act, 2005
[No. 43 of 2005] in which cruelty committed by non-applicant No. 5 to 7 was
duly narrated in Para 3.
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8.
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31.01.2011
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The
Hon'ble Apex Court in Sou. Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade
And Others, decided on 31 January, 2011 reported
in (2011) 3 SCC 650, considered the definition of Respondent defined under
Section 2(q) of the Act of 2005, and held that although section 2(q) defines
a respondent to mean any adult male person, who is or has been in a domestic
relationship with the aggrieved person, the proviso widens the scope of the
said definition by including a relative of the husband or male partner within
the scope of a complaint. Hon'ble Apex Court further held that legislature
never intended to exclude female relatives of the husband or male partner
from the ambit of complaint that can be made under the provisions of 2005
Act. It is true that expression female has not been used in the proviso to
Section 2(q) also, but, no restrictive meaning can be given to expression
relative nor has said expression been defined to make it specific to males
only.
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9.
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19.05.2011
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Thereafter
applicant made an application on 19.05.2011 under Order 1, Rule 10 of the
Code of Civil Procedure, 1908 and submitted that (1) Mother in Law Mrs.
Fakhrunissa, (2) Jethani Mrs.
Shaheen, and (3) Nanad Yasmeen be
arrayed as co-respondent No. 5, 6 & 7 in the array of cause title.
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10.
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Non-applicants by
filing reply submitted the provisions of code criminal procedure, 1973 (No. 2
of 1974) would be applicable in a proceeding initiated under the provisions
of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005].
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11.
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02.09.2011
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Thereafter
applicants made an application for appropriate direction so that their
application under Order 1, Rule 10 of the Code of Civil Procedure, 1908 may
be read as application under the provisions of Section 2 (q) of the Protection
of Women from Domestic Violence Act, 2005 [No. 43 of 2005].
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12.
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21.11.2011
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Non-applicants
by submitting their contended that on facts the law laid don by apex Court is
distinguishable.
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13.
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18.01.2012
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The
trial Court was pleased to kind enough in allowing the two applications
whereby and whereunder directing the applicants to implead the female
relative of the husband as as co-respondent No. 5, 6 & 7 in the array of
cause title.
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14.
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14.02.2012
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Feeling
aggrieved by the order passed by the trial Court, non-applicants preferred a
criminal appeal under the provision of Section 29 of the Protection of Women
from Domestic Violence Act, 2005 [No. 43 of 2005].
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15.
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17.04.2012
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The
impugned Judgment and order dated 17.04.2012 passed by the Court of Vth
Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in
the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the
file of Criminal Appeal No. 144 of 2012.
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16.
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Applicants
preferred a criminal revision under section 397/401 of the Code of Criminal
Procedure, 1973 (No. 2 of 1974) before the Hon’ble High Court of Madhya
Pradesh, Principal Seat at Jabalpur against the impugned Judgment and Order
passed by the lower appellate Court.
|
PLACE : JABALPUR
DATE
: ADVOCATE
FOR APPLICANTS
IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : 1. MRS.
FARIDA KHAN, Aged about 34 Complainants years,
W/o Mr. Dilshad Ahmed Khan,
Aggrieved Persons D/o Mr. Mansoor Khan,
2.
MISS IFRA, Aged about 2 years, D/o Mr.
Dilshad Khan, Through natural Guardian mother MRS. FARIDA KHAN, Aged about 34
years, W/o Mr. Dilshad Ahmed Khan, D/o Mr. Mansoor Khan,
Both
presently residing at 7, Near Akansha Apartment, Khanugaon Square, Ahmadabad
Palace Road, Koh-E-Fiza, BHOPAL (Madhya Pradesh).
VERSUS
NON-APPLICANTS/ : 1. DILSHAD
KHAN, aged about 36 years,
Respondents
S/o Late Mr. Matloob
Ahmed Khan, R/o
Husband
of aggrieved House No. 247,
Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road,
BHOPAL (Madhya Pradesh).
Jeth of aggrieved
2. SHAMSHAD
AHMAD, Aged about 41
years, S/o
Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate, Near Kachchi,
Shahjahanabad, BHOPAL (Madhya Pradesh).
Elder Jeth of aggrieved 3. NAUSHAD
AHMAD KHAN, aged about 46
years, S/o
Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal
Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).
Nandoi of
aggrieved 4. ASLAM KHAN, Aged about 47 years, S/o
Late Mr. Ayub
Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia
Road, BHOPAL (Madhya Pradesh).
Mother in Law of aggrieved 5. MRS. FAKHRUNISSA, Aged about 66
years, W/o
Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal
Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).
Jethani of
aggrieved 6. MRS. SHAHEEN, Aged about 39 years,
W/o Mr.
Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu
Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).
Nanad of
aggrieved 7. MRS. YASMEEN, Aged about 40 years,
W/o Mr.
Aslam Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow,
Berasia Road, BHOPAL (Madhya Pradesh).
CRIMINAL REVISION UNDER 397
/ 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 [NO. 2 OF 1974]
Being
aggrieved by the Judgment and Order dated 17.04.2012 passed by the Court of Vth
Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in
the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the
file of Criminal Appeal No. 144 of 2012, arising out of an Order dated 18.01.2012
passed by the Court of Judicial Magistrate, First Class, Mr. Lokendra Singh,
BHOPAL (Madhya Pradesh) in the matter of Mrs. Farida Khan & Anor. V/s
Dilshad Khan & Ors. in the file of Miscellaneous Judicial Case (Criminal) No.
16 of 2011, the applicants /aggrieved persons most humbly and respectfully begs
to prefer the instant criminal revision on following facts and grounds amongst
the others :
MATERIAL FACTS OF THE CASE
:
1. This
is first criminal revision petition against the impugned Order. Applicant has
not filed any criminal revision petition against the impugned Order before any
Court of Law.
2.
Applicants / aggrieved persons filed an
application on 12.01.2011 under the provisions of Section 12 (1) the Protection
of Women from Domestic Violence Act, 2005 [No. 43 of 2005] against the non-applicant
No. 1 to 4 / respondent No. 1 to 4 before the Court of Judicial Magistrate
First Class, Bhopal (M. P.) contending inter-alia
that applicant No. 1 married (Nikah)
with non-applicant No. 1 on 18.02.2009 in accordance with Muslims rites and
customs. After the marriage she went to her matrimonial home and she was
subjected to cruelty by (1) Non-applicant No.1- husband, (2) Mother in Law Mrs.
Fakhrunissa, (3) Nanad Yasmeen, (4)
Non-applicant No. 4 Nandoi, (5)
Non-applicant No. 2 Jeth, and (6) Jethani Mrs. Shaheen for bringing less
dowry. The applicant No. 1 was sent back to her parental home. Applicant No. 1
was blessed with a daughter applicant No. 2 on 21.05.2010 at Bhopal. Since the
demand of dowry was not fulfilled by the parents of applicant No.1 therefore nobody
took care of her during maternity period. The matter was reported to Pariwar Paramarsh Kendra of Police
Station Shahjahanabd on 04.10.2010. Thereafter a commission of offences
punishable under Section 498-A/34 read with Section 406 of Indian Penal Code,
1860 and under Section 3/4 Dowry Prohibition Act, 1961 (Act No. 28 of 1961) in Crime No. 93/2010 before the Mahila Police
Station, Bhopal (M. P.) on 02.11.2010 against all the non-applicants.
3.
Since the complaint under
the provisions of Section 12 (1) the Protection of Women from Domestic Violence
Act, 2005 [No. 43 of 2005] was barred
against the female relatives of husband in view of Judgment rendered by this
Hon’ble High Court in the case of Ajay Kant And Ors. vs Smt. Alka Sharma decided on 19 June, 2007 reported
in 2008 Cri LJ 264 = I (2008) DMC 1=
2007 (4) MPHT 62 = 2008 (2) Crimes 235 (M.P.) = 2008 STPL (LE-Crim) 28892.
4. Applicant prayed for the relives of (1)
protection order Under Section 18, (2)
residence Order under Section 19, (3) monetary relief under Section 20 (4) Custody
Orders under Section 21, (4) Compensation Orders under Section 22. Any other
relief deemed fit and proper may also be granted, have been prayed for. The
case was registered as Miscellaneous Judicial Case
(Criminal) No. 16 of 2011 by the learned trial magistrate. Copy of the
complaint under Section 12 (1) dated 12.01.2011 is filed herewith and marked as
Annexure A-1.
5.
Applicant No. 1 also filed domestic
incident report before the magistrate under the provision of Section 9 (b) the
Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005] in which
cruelty committed by non-applicant No. 5 to 7 was duly narrated in Para 3. Copy
of the domestic incident report dated 12.01.2011 is filed herewith and marked
as Annexure A-2.
6. The Hon'ble Apex Court in Sou. Sandhya Manoj Wankhade Vs. Manoj
Bhimrao Wankhade And Others, decided on 31 January, 2011 reported
in (2011) 3 SCC 650, considered the definition of Respondent defined under
Section 2(q) of the Act of 2005, and held that although section 2(q) defines a
respondent to mean any adult male person, who is or has been in a domestic
relationship with the aggrieved person, the proviso widens the scope of the
said definition by including a relative of the husband or male partner within
the scope of a complaint. Hon'ble Apex Court further held that legislature
never intended to exclude female relatives of the husband or male partner from
the ambit of complaint that can be made under the provisions of 2005 Act. It is
true that expression female has not been used in the proviso to Section 2(q)
also, but, no restrictive meaning can be given to expression relative nor has
said expression been defined to make it specific to males only. Paras 13 to 18
are reproduced as under:-
“13. Having carefully considered
the submissions made on behalf of the respective parties, we are unable to
sustain the decisions, both of the learned Sessions Judge as also the High
Court, in relation to the interpretation of the expression respondent in
Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference,
Section 2(q) of the abovesaid Act is extracted hereinbelow:
2.(q) 'respondent' means any
adult male person who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any relief
under this Act: Provided that an aggrieved wife or female living in a
relationship in the nature of marriage may also file a complaint against the
relative of the husband or the male partner,
14. From the above definition it
would be apparent that although Section 2(q) defines a respondent to mean any
adult male person, who is or has been in a domestic relationship with the
aggrieved person, the proviso widens the scope of the said definition by
including a relative of the husband or male partner within the scope of a
complaint, which may be filed by an aggrieved wife or a female living in a
relationship in the nature of a marriage.
15. It is true that the
expression female has not been used in the proviso to Section 2(q) also, but,
on the other hand, if the legislature intended to exclude females from the
ambit of the complaint, which can be filed by an aggrieved wife, females would
have been specifically excluded, instead of it being provided in the proviso
that a complaint could also be filed against a relative of the husband or the
male partner.
16. No restrictive meaning has
been given to the expression relative, nor has the said expression been
specifically defined in the Domestic Violence Act, 2005, to make it specific to
males only. In such circumstances, it is clear that the legislature never
intended to exclude female relatives of the husband or male partner from the
ambit of a complaint that can be made under the provisions of the Domestic
Violence Act, 2005.
17. In our view, both the
Sessions Judge and the High Court went wrong in holding otherwise, possibly
being influenced by the definition of the expression respondent in the main
body of Section 2(q) of the aforesaid Act.
18. The appeal, therefore,
succeeds. The judgments and orders, both of the learned Sessions Judge,
Amravati, dated 15-7-2009 and the Nagpur Bench of the Bombay High Court dated
5-3-2010, in Crl. Writ Petition No.588 of 2009 are set aside. Consequently, the
trial court shall also proceed against the said Respondents 2 and 3 on the
complaint filed by the appellant”.
7. Thereafter
applicant made an application on 19.05.2011 under Order 1, Rule 10 of the Code
of Civil Procedure, 1908 and submitted that (1) Mother in Law Mrs. Fakhrunissa,
(2) Jethani Mrs. Shaheen, and (3) Nanad Yasmeen be arrayed as co-respondent
No. 5, 6 & 7 in the array of cause title. Copy of the application dated
19.05.2011 is filed herewith and marked as Annexure
A-3. Non-applicants by filing reply submitted the provisions of code
criminal procedure, 1973 (No. 2 of 1974) would be applicable in a proceeding
initiated under the provisions of the Protection of Women from Domestic
Violence Act, 2005 [No. 43 of 2005]. Copy of the reply submitted by the non-applicants
is filed herewith and marked as Annexure
A-4.
8. Thereafter
applicants made an application for appropriate direction so that their
application under Order 1, Rule 10 of the Code of Civil Procedure, 1908 may be
read as application under the provisions of Section 2 (q) of the Protection of
Women from Domestic Violence Act, 2005 [No. 43 of 2005]. Copy of the
application is filed herewith and marked as Annexure A-5. Non-applicants by submitting their contended
that on facts the law laid don by apex Court is distinguishable. Copy of the
reply dated 21.11.2011 is filed herewith and marked as Annexure A-6.
9. The
trial Court was pleased to kind enough in allowing the two applications whereby
and whereunder directing the applicants to implead the female relative of the
husband as as co-respondent No. 5, 6 & 7 in the array of cause title. Copy
of the Order dated 18.01.2012 is filed herewith and marked as Annexure A-7.
10.
Feeling aggrieved by the
order passed by the trial Court, non-applicants preferred a criminal appeal on
14.02.2012 under the provision of Section 29 of the Protection of Women from
Domestic Violence Act, 2005 [No. 43 of 2005]. The Court below without applying
its mind, mechanically, without assigning any reason, reversed and set-aside the
order passed by the trial Court arbitrarily and discriminatory. The Judgment
impugned is bad in Law and deserves to be set aside. Copy of the impugned
Judgment and order dated 17.04.2012 passed by the Court of Vth Additional
Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter
of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of
Criminal Appeal No. 144 of 2012 is filed herewith and marked as Annexure A-8. Hence this
revision on following grounds amongst the others :
GROUNDS URGED
:
A.
The Court below ought to have appreciate
that since the complaint under the provisions of
Section 12 (1) the Protection of Women from Domestic Violence Act, 2005 [No. 43
of 2005] was barred against the female
relatives of husband in view of Judgment rendered by this Hon’ble High Court in
the case of Ajay Kant And
Ors. vs Smt. Alka Sharma therefore co-respondents No. 5 to 7 were arrayed as
co-respondent but allegations of domestic violence were there in complaint. It
is well settled under the Law that the act of court would prejudice no man and
after the pronouncement of judgment by the apex Court the applicants bonafidely
made application for additional of parties which was rightly allowed by the trial
Court.
B.
The Court below committed serious error of Law in distinguishing the
Judgment passed by the apex Court in the Sou. Sandhya
Manoj Wankhade Vs. Manoj Bhimrao Wankhade And Others, decided on
31 January, 2011 reported in (2011) 3 SCC 650. The judgment has
wrongly interpreted by the Court below.
C.
Because the Court below failed to appreciate that
under Section 8 of the Act provides for appointment of the Protection Officer
and Section 33 of the Act provides for penalty for not discharging duty by the
Protection Officer. Despite, as mentioned in the objects and reasons that for
providing a civil remedy, this Act has been enacted, the provisions of Sections
19, 27, 28, 31 to 33 clearly mention that some of the proceedings under the Act
are of criminal nature. Under Sections 19 to 22 of the Act an order to provide
residential facilities, monetary reliefs, custody order for a child and
compensation can be ordered by the Magistrate under the Act. Except a part of
Section 19 with regard to direction of execution of a bond and dealing the same
as provided under Chapter VIII of the Cr.PC, all the reliefs under Sections 18
to 22 appear to be of civil nature. Thus, some of the proceedings under this
Act can be said to be of civil nature and some of the proceedings can be said
to be of criminal nature husband in view of Judgment
rendered by this Hon’ble High Court in the case of Ajay Kant And Ors. vs Smt. Alka Sharma decided on 19
June, 2007 reported in 2008 Cri LJ 264 =
I (2008) DMC 1= 2007 (4) MPHT 62 = 2008 (2) Crimes 235 (M.P.) = 2008 STPL
(LE-Crim) 28892.
D. Because the
Court below ought to have appreciated that under Section 20, the Magistrate
while disposing of an application under Section 12 of the Act can direct the
respondent to pay monetary relief to the aggrieved person in respect of loss of
earnings, medical expenses, loss caused due to destruction, damage or removal
of any property from her control and maintenance of the aggrieved person as
well as her children. He can also order a lump sum payment or monthly payment
of the maintenance. Under Section 21 of the Act, the Magistrate may grant
temporary custody of the children to the aggrieved person and may deny visit of
the respondent to the children of the aggrieved person. Under Section 22, the
Magistrate can direct the respondent to make payment of compensation and
damages for the injuries, including mental torture and emotional distress.
Under Section 23, the Magistrate is competent to pass against the respondent
such interim order as he deems fit in the facts and circumstances of the case.
It would thus be seen that on an application moved by the aggrieved person
under Section 12 of the Act, the Magistrate can pass orders against the
respondent granting relief to the aggrieved person and such orders are
essentially civil in nature.
E. The Court below committed grave error and irregularity in not
considering that even though Section 28 (1) of the Act provides that most of
the proceedings under the Act shall be governed by the provisions of the Code
of Criminal Procedure, 1973, Section 28 (2) of the Act gives sufficient
latitude to the Court to lay down its own procedure for disposal of the main
application under Section 12 as well as the interlocutory application under
Sec. 23 (2) of the Act. Section 28 reads thus :
“28.Procedure.
28. Procedure.-(1) Save as otherwise
provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and
23 and offences under section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-Section (1)
shall prevent the court from laying down its own procedure for disposal of an
application under section 12 or under sub-section (2) of section 23”.
F. The Court below erred in law in not following the Hon’ble Supreme
Court in the recent decision in U. SUVETHA VS. STATE BY INSPECTOR OF POLICE AND
ANOTHER (2009) 6 Supreme Court Cases 757) has considered the term with
reference to Section 498-A of Indian Penal Code and has observed that in the
absence of any statutory definition, the term must be assigned a meaning as it is
commonly understood and it would include father, mother, son, daughter,
brother, sister, nephew or niece, grandson or granddaughter of an individual or
the spouse of any person. In this context, it is pertinent to note that while
framing charge for the breach of protection order by the respondent, the
Magistrate is authorised under Section 31(3) of the Act to frame charge under
Section 498-A of Indian Penal Code, if the facts disclose commission of such an
offence.
G. The Court below ought to have appreciated that as seen, the
Statement of Objects and Reasons of the Act also refers to any 'relative' of
the husband or the male partner and the proviso to sub-section (1) of Section
19 of the Act makes it clear that the word mentioned in proviso to Section
2(q), is not restricted to a relative and would include a relative. But,
however, whether relief can be granted against the 'female' relative would
depend on the facts and circumstances of each case.
H.
The Court below failed to appreciate that Lord
Denning in the case of Seaford Court Estates Ltd. v. Asher [1994] 2 All ER 155
wherein he held : "When a defect appears a judge cannot simply fold his
hand and blame the draftsman. He must set to work on the constructive task of
finding the intention of Parliament and then he must supplement the written
words so as to give 'force and life' to the intention of the Legislature. A
judge should ask himself the question how, if the makers of the Act had
themselves come across this ruck in the texture of it, they would have straightened
it out ? He must then do as they would have done. A judge must not alter the
material of which the Act is woven, but he can and should iron out the
creases". This statement of law made by Lord Denning has been consistently
followed by the Apex Court starting in the case of M. Pentiah and Ors. v. Muddala
Veeramallappa and Ors. : [1961] 2 SCR 295 and followed as recently as in the
case of S. Gopal Reddy v. Slate of Andhra Pradesh : 1996 Cri LJ 3237
I.
The Court failed to appreciate that the Statement
of Objects and Reasons of the Act also refers to any 'relative' of the husband
or the male partner and the proviso to sub-section (1) of Section 19 of the Act
makes it clear that the word mentioned in proviso to Section 2(q), is not
restricted to a 'male' relative and would include a 'female' relative. But,
however, whether relief can be granted against the 'female' relative would
depend on the facts and circumstances of each case. Although Section 2(q)
defines a respondent to mean any adult male person, who is or has been in a
domestic relationship with the aggrieved person, the proviso widens the scope
of the said definition by including a relative of the husband or male partner
within the scope of a complaint, which may be filed by an aggrieved wife or a
female living in a relationship in the nature of a marriage. Section 2 (q)
reads as under :
“THE PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE ACT, 2005
NO.
43 OF 2005
[13th
September, 2005.]
2. Definitions.
2.
Definitions.-In this Act, unless the context otherwise requires,-
(q)
"respondent" means any adult male person who is, or has been, in a
domestic relationship with the aggrieved person and against whom the aggrieved
person has sought any relief under this Act:
Provided
that an aggrieved wife or female living in a relationship in the nature of a
marriage may also file a complaint against a relative of the husband or the
male partner;”
PRAYER
It
is, therefore most humbly and respectfully prayed that Judgment
and Order dated 17.04.2012 passed by the Court of Vth Additional Session Judge,
Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan
& Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No.
144 of 2012, may kindly be set-aside with costs throughout, in the larger
interst of Justice.
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANTS
IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : MRS.
FARIDA KHAN & ANOR
VERSUS
NON-APPLICANTS/ : DILSHAD
KHAN & ORS.
LIST OF DOCUMENTS
|
S.No
|
Description of document
|
Date of document
|
Original copy
|
Number of page
|
|
1.
|
Complaint
under Section 12 (1)
|
12.01.2011
|
Xerox
|
15
|
|
2.
|
Domestic
incident report dated
|
12.01.2011
|
--DO--
|
04
|
|
3.
|
Application U/o1, R.10 CPC
|
19.05.2011
|
--DO--
|
01
|
|
4.
|
Reply submitted by the
non-applicants
|
|
--DO--
|
02
|
|
5.
|
Application
|
02.09.2011
|
--DO--
|
01
|
|
6.
|
Reply submitted by the
non-applicants
|
21.11.2011
|
--DO--
|
02
|
|
7.
|
Order passed by trial Court
|
18.01.2012
|
--DO--
|
04
|
|
8.
|
Order passed by the Court of Vth
Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in
the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the
file of Criminal Appeal No. 144 of 2012
|
17.04.2012
|
Certified Copy
|
03
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANTS
IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : MRS.
FARIDA KHAN & ANOR
VERSUS
NON-APPLICANTS/ : DILSHAD
KHAN & ORS.
APPLICATION
FOR GRANT OF STAY
Applicants
named above most humbly and respectfully begs to submit as under :
1. Applicants
have preferred a Criminal Revision under Section 397 / 401 of the Code of
Criminal Procedure, 1973 (No. 2 of 1974) against the Judgment
and Order dated 17.04.2012 passed by the Court of Vth Additional Session Judge,
Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan
& Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No.
144 of 2012, arising out of an Order dated 18.01.2012 passed by the Court of
Judicial Magistrate, First Class, Mr. Lokendra Singh, BHOPAL (Madhya Pradesh)
in the matter of Mrs. Farida Khan & Anor. V/s Dilshad Khan & Ors. in
the file of Miscellaneous Judicial Case (Criminal) No. 16 of 2011.
2. Applicants
have a good prima facie case and hope to succeed in it. If during pendency of
instant criminal revision, the proceeding pending before the trial Court is not
stayed, the applicant would suffer irreparable loss and injury. The balance of connivance
too lies in their favor.
3. From
the facts and circumstances, narrated hereinabove in the preceding paras, it is
expedient in the larger interest of Justice that pending final disposal of the
instant criminal revision, the proceeding pending before the trial court be
stayed.
An
affidavit in support of this application is being filed herewith.
PRAYER
It
is, therefore most humbly and respectfully prayed that during pendency of
instant criminal revision the proceeding pending before the
Court of Judicial Magistrate, First Class, Mr. Lokendra Singh, BHOPAL (Madhya
Pradesh) in the matter of Mrs. Farida Khan & Anor. V/s Dilshad Khan &
Ors. in the file of Miscellaneous Judicial Case (Criminal) No. 16 of 2011, in
the larger interst of Justice.
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPLICANTS
IN
THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
CRIMINAL
REVISION NO. 862 OF 2012.
APPLICANTS/ : MRS.
FARIDA KHAN & ANOR
VERSUS
NON-APPLICANTS/ : DILSHAD
KHAN & ORS.
AFFIDAVIT
I, MRS.
FARIDA KHAN, Aged about 34 years, W/o Mr. Dilshad Ahmed Khan, D/o Mr. Mansoor
Khan, presently residing at 7, Near Akansha Apartment, Khanugaon Square,
Ahmadabad Palace Road, Koh-E-Fiza, BHOPAL (Madhya Pradesh), the above named
deponent, solemnly affirm and state on oath as under:
1.
That I am the applicant No. 1 in the above
mentioned criminal revision and am fully conversant with the facts deposed to
in the criminal revision.
2.
That the contents of paragraphs 1 to 3 of
the accompanying application are true to my personal knowledge and the contents
of paragraphs are based on legal advice, which I believe to be true. No
material has been concealed and no part is false.
JABALPUR
DATED : DEPONENT
VERIFICATION
I, MRS.
FARIDA KHAN, the above named deponent do hereby verify on oath that the
contents of the affidavit above are true to my personal knowledge and nothing
material has been concealed or falsely stated. Verified at ______this______day
of _______
DEPONENT
Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao
Wankhade, on 31 January, 2011 (2011) 3 SCC
650
Human and Civil Rights
Protection of Women from Domestic
Violence Act, 2005
S. 2(q) & proviso thereto and Ss.
12, 18, 19, 20 & 22 – “Respondent'' - Meaning - ``Relative'' of husband or
the male partner - Whether include females - Held, legislature never intended
to exclude female relatives from ambit of complaint that could be made under
2005 Act - Though expression ``female'' is not used in proviso to S. 2(q), but
no restrictive meaning can be given to expression ``relative'' nor has said
expression been defined to make it specific to males only - Courts below erred
in holding otherwise, (2011) 3 SCC 650
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