Kunal Verma And Ors vs Pooja Verma

Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), the petitioners seek quashing of complaint titled Pooja Verma v/s KunalVerma & Ors., under section 12 of J&K Protection from Women Domestic Violence, Act pending before learned CJM, Jammu along with all consequential proceedings initiated there under from time to time and also order dated 18.03.2017 passed by learned 1st Addl. Session Judge, Jammu in Cr. Appeal no. 86/2016, titled Kunal Verma & Ors v/s PoojaVerma.

The case of the petitioners is that petitioner no. 1 is the husband of respondent. The petitioner no 2 is the mother and petitioner no.3 is the real uncle of petitioner no.1. The petitioner no.1 from the child hood suffered neurological problem and V-P shunt has been placed in the brain of petitioner no.1. The said shunt is externally expose and is only covered with the hairs of petitioner no.1. The Ventriculoperitoneal shunt (VP Shunting) is a surgical procedure that primarily treats a condition called hydrocephalus. The conditions occur when excess cerebrospinal fluid collects in the brain ventricles. The petitioner no.1 as such has to take extreme care and cannot withstand even slightest injury in his head. The petitioner no. 1 has been brought up with this ailment since his child hood; therefore he is introvert and can never stand with heated arguments.

It is averred in the petition that petitioner No. 2 is a handicap lady, she suffered paralytics stroke in her early youth and her left body portion is disabled and her left leg and left-hand is absolutely paralytics. The petitioner no. 3 is the real uncle of the petitioner no. 1 and is residing separately in another house at Trikuta Nagar, Jammu and never had any domestic relationship with the respondent, as the petitioner no.3 and respondent had never resided together. It is further averred in the petition that the father of the petitioner no.1 was running a business of Gold Smith and running his shop at Link Road Jain Bazar, Jammu. Petitioner No.1 could not even complete his matriculation, when he lost his father. The petitioner No.1, therefore took the responsibility of running the shop of his father. The father of the petitioner No.1 had engaged some artisans who were doing the work in the shop. The father of the respondent Sh. Darshan Lal is an artisan in gold smith and was known to petitioner no.3. The petitioner no.3 requested the father of the respondent to marry his daughter with the petitioner No.1, which was accepted and marriage was solemnized without dowry at Arya Samaj Mandir Opp. Super Bazaar, Jammu in a simple manner and only one rupee was taken at Shagun.

The further case of the petitioners is that the marriage of the petitioner no.1 with the respondent was solemnized on 17.05.2006 and was showered with all love, affection and care in her matrimonial home. There was no complaint either from the petitioners' side or the respondent's side and both were living happily. The petitioner no. 1 was blessed with a girl child on 12.5.2007. The daughter of the petitioner no.1 Sabhya Verma is very dear to all the family members and has been studying in J&K Public School and has been topper in her class. The petitioner no.1 has been fulfilling all the desires and demand of the respondent to such an extent that he depleted all his savings and capital of the business. The respondent took away all the jewellery and money from the petitioner no.1 and used to give it to her parental family. It is stated that the respondent was gifted gold as well as diamond ornaments by the petitioners and other relatives at the time of her marriage. Although that was her Istri Dhan, but she has done away with all her gold and diamond jewellery and never informed the petitioners with respect to her ornaments. Whenever the petitioner no 1 enquired about the whereabouts of her jewelry she started creating nuisance and dispute in the matrimonial home. The petitioners bare all this and always advised her to be meticulous in spending.

In the petition, it has been averred that in 2013, the respondent started leaving her matrimonial home without informing the petitioner no.1 and used to stay outside the house for unreasonable time which created suspicion in the mind of petitioner no.1 and the suspicion materialized when a number of friends and relatives of the petitioners informed them that respondent has turned astray and having extra marital relations with one Vicky Sharma. That the misdeeds of the respondent were causing humiliation and disrespect to the family of the petitioner, therefore, they requested the respondent to mend her ways whereupon she became more furious and started neglecting the petitioner no.1. She also started preparing her own meals and was not taking care of the petitioner no. 1. Due to his aliment and the spend thrift nature of the respondent, the petitioner no.1 became dependent upon his relatives. He was forced to sell the shop of his father which was sold by him on 16.3.2015 to Sh. Ved Parkash. The petitioner no.3 started helping the petitioner no.1 and assured him that he will engage him as a manager in his shop situated at Prem Nagar, Jammu. But the said shop was never started. It is averred that when the petitioner no.1 suffered financial crunch and ailment, the attitude of the respondent became more cruel towards the petitioners. She was interested in extracting money from the petitioners as her sole objective. The parents and brothers of the respondent were also helping her in her evil design. Aggrieved thereof the petitioner no.1 and 2 filed a complaint against the respondent before the police Station Women Cell, Jammu on 28.08.2016.

The respondent was summoned in the police station women cell and the SHO police women cell reconcile the parties, but as a counter blast the respondent on 15.1.2016 filed complaint under Section 12 of the J&K Protection of Women from Domestic Violence, Act before the Learned CJM, Jammu. Alongwith complaint, an application under Section 23 of the Act filed, wherein the learned CJM Jammu awarded maintenance of Rs.10,000/- per month vide order dated 15.11.2016. This order was challenged by the petitioner no. 1 by filing an appeal which was disposed of by learned 1st Addl. District Judge, Jammu vide order dated 18.3.2017. The learned 1st Addl. Session Judge has modified the order passed by learned CJM and has reduced the maintenance amount from Rs.10,000/- per month to Rs. 5,000/- per month.

The petitioners challenge the complaint filed by the respondent and order dated 18.03.2017, passed by learned 1stAddl. Session Judge on the following grounds:-

(a) That from the bare perusal of the complaint and the record, there is no prima facie evidence of any domestic violence at the behest of petitioners. The respondent got married on 17.5.2006 and the marriage was dowry less. As stated above the marriage was solemnized under peculiar circumstances, therefore, there was no question of demanding dowry. The respondent herself has stated that petitioner No. 1 has good earning, therefore, there is no question of treating with cruelty. The respondent herself has pleaded in her complaint that she humiliated for the reasons best known to the petitioners. When the respondent is unable to point out any reason therefore, the allegations are absolutely vague and misconceived.

(b) That the respondent cannot take benefit of her own wrong on the one hand, there is evidence that respondent is leading an immoral life and is not a pious Hindu wife, therefore she is not entitled to any maintenance and the complaint is filed in order to cover up her misdeeds. The only objective of the respondent is to extract money and property from the petitioners. The petitioner no. 1 is a patient of tuberculosis and V.P Shunt has been fixed inhis brain, therefore, it is improbable that he can beat his wife. Similarly the petitioner No. 2 is a handicapped lady and it is improbable that she can beat the respondent.

(c) That the petitioner no. 3 is the uncle of the petitioner as never resided with the petitioner no. 1 and there is no domestic relationship between the petitioner No. 3and respondent. He has been mala fide impleaded with the sole objective that he is a resourceful man money can be extracted from him. That the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent person can reach a just conclusion that there is sufficient ground for proceedings against the accused, the complaint as such deserves to be quashed.

(d) That the petitioner no 1 when was the resourceful and able bodied has been maintaining the respondent and his daughter to the best of his potential. The petitioner no 1 has admitted his daughter in J&K Public School and has been paying her school fee and other expenditure. The respondent has withdrawn daughter from the said school and has got admitted her in an average school. The respondent has no care for her daughter also and mercilessly beat her. The respondent has alleged that respondent is earning Rs. 2.00lacs per month but there is no prima facie evidence in this respect. She has suppressed the material facts that shop of the petitioner no. 1 has been sold and he is suffering from tuberculosis. The complaint is a in tactics of exploiting the petitioners and extracting money from them.

(e) That the complainant has alleged that she was not taken care by the petitioner when she was pregnant. The daughter was born on 12.5.2007 and the respondent is complaining this fact of nine years with smacks of mala fide.

(f) That the respondent is residing in the same house of the petitioner no. 1 and the petitioner no 1 is providing clothing to the respondent and her daughter. The respondent is otherwise getting food shelter and clothing from the petitioner no 1, then there is no logic in awarding separate maintenance to her. The school fee of her daughter is also paid by the petitioner no1, therefore the respondent is not entitled to any maintenance. Above all there is no neglect of the respondent and the daughter by the petitioner no.1, nor there are such circumstances which warrants her separate leaving, therefore the respondent is not entitled to maintenance. Sum of Rs. 5000/- has been awarded as maintenance under section 488 Cr.P.C and maintenance granted under domestic violence Act has to be adjusted in the maintenance granted under section 488 Cr.P.C. The petitioner no 1 is not an able bodied person and is presently worked as Salesman in a shop and as an income of Rs. 7000/- per month and major some is utilizing in his treatment. The petitioner no. 1 as such is able to maintain the respondent only according to his income and amount of separate Rs. 5000/- as maintenance is highly exaggerated and unreasonable.

(g) That the complainant is manifestly attended with manifestly attended with mala fide and maliciously instituted with a view to spite the petitioners due to personal grudge and took up her misdeeds. The complaint as such deserves to be set aside."

I have considered the contents of petition and arguments of counsel for respondent herein.

The allegations made in the petition filed under Section 12 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 are as under:-

"After the solemnization of their marriage that took place between the respondent No.1 and the petitioner at Jammu on 19-05-2006. After very few days of their marriage the petitioner came to know about the true colors of the respondent No.1 who has never been a prudent husband. It is unfortunate to state that he always been listening to his elder brother, namely, Harsh Verma, mother, namely, Neelam Verma i.e. respondent No. 2 and uncle namely PremVerma i.e. respondent No.3. They are the people who control the respondent No.1.The petitioner who belongs to a very humble family never knew that her marriage with the respondent No.1 will turn sour and her dream to live a happy marital life would break down. The respondent No. I who dances on the tunes of respondent No 2 and 3 never treated the petitioner with love and care. She was always treated as a slave and commodity by him.

The respondent No.1, 2 and 3 several times together save thrashing to the petitioner for not bringing dowry that they had told her to. The petitioner who belongs to a very gentle family and has her level best tried to adjust with respondents has been treated with utmost cruelty by them. Whatcould be more shameful than this that the respondent No.1 has completely withdrawn from the society of the petitioner as he does not even provide her financial support. It is imperative to mention herein that the respondent No. I who is a young man has even stopped co-habiting with the petitioner. The respondent who is in complete control of his uncle e respondent No.3 has even stopped maintaining the petitioner and her minor daughter. Itis the mother and father of the petitioner who are maintaining the petitioner and minor daughter and supplying ration and other things to them. It is imperative to mention herein that the petitioner is very much putting up in the same house where the respondent No. 1 and 2 are living.

The respondent No.1 and 2 have several times beaten up the petitioner who is actually an obedient wife. She always wanted to reconcile with the respondent No.1 and live a happy marital life with him. The respondent No. l and his family members are playing tricks to get rid of the petitioner. They have several times thrown out her belongings from the house to harass her. The respondent No.1 is a moneyed man; he is a Gold Smith running a big show room at Prem Nagar, Apart from running the abovementioned showroom the respondent is also into money lending business. Hi monthly income is more than Rs. 2,00,000/-. The respondent No.1 as well as his family members have been humiliating the petitioner on every small issue and have always harassed her for the reasons best known to them.

That when the petitioner started objecting to their unbecoming behavior, the respondents stared committing the acts of Domestic Violence on her. The respondent No.1 is accusing the petitioner of having bad character. She has been accused of having extramarital affair and earning money from getting into flesh trade, The respondent No:2 who is the mother of respondent No. I is also playing tricks to harass the petitioner, She has been calling her with bad names like Randi, Chalu, Budmash, Vaishya etc, She has also been harassed for not giving birth to a baby boy. It is apt to mention herein that at the time of petitioner's pregnancy she was not taken care by respondent No.I and 2.The petitioner is time and again been threatened by the respondents that she would not get any relief from any court against them. She has been defamed in society that the petitioner is a bad chartered woman and does not want to remain in the control of respondent No.1.

That the petitioner is so scared of the violent behavior and conduct of the respondents that she is under depression and is on anti-depression medication. She is under regular treatment of the concerned Doctors. It is apt to mention herein that the petitioner was so harassed and treated with cruelty by the respondents that she was compelled to leave the matrimonial house but she mustered courage to live in the same house i.e. shared household. Despite the atrocities brought to her by the respondents the petitioner who is an obedient wife, she continued living with the respondent No. l and 2. She thought that good sense will prevail upon the respondents but all went in vain. It is on 30-08-2046 she lost all her patience when she was beaten up severely by respondents 1 and 2 around 12:00 in the night. She was locked in a room by the respondent No.1 and was not allowed to go out to report the matter. Again her belongings were thrown out from her room. To harass her and to make her to leave the matrimonial house the respondent No.1 and 2 even took away the washing machine and other things of basic necessities from her possession. The cruelty that the petitioner is treated with is on the provocation of the respondent No.3 who is actually dominating the respondent No.1 and 2.

The petitioner reported the matter to her parents who advised her to remain silent and not to lodge any FIR against the respondents. The poor petitioner again kept her patience and waited for a day. It is unfortunate to state that on 2nd of September, 2016 again the respondent No. 1 after dropping his daughter at School gave severe beating to the, petitioner. It is apt to mention herein that the respondent No.2 on the same day wanted to kill the petitioner by keeping the gas stove on. The petitioner smelled gas and immediately turned the nozzles off."

The respondent has filed objections before trial court. The stand taken in the objections is that marriage between the answering respondent and petitioner No.1was solemnized on 17th May 2006 at Jammu. It was after few days of her marriage with petitioner No.1, she and her parents came to know that the petitioners have concealed material facts related to the health of petitioner No.1. They learnt that the petitioner No.1 in his childhood had suffered from neurological problem and VP shunt was placed in his head; that at time of solemnization of marriage of answering respondent and petitioner No.1, he was running a gold smith's shop at Jain Bazar, Jammu and earning good money out of it. He was actually doing well in his professional life. The said shop was later sold to one Ved Parkash S/o Sh.

Ram Baija R/o Dakki Hajama, Jammu. The further stand taken in the objections is that on 18th September, 2017, the respondent approached Ld. Chief Judicial Magistrate, Jammu by way of filing a complaint seeking inquiry under section 202 Cr.P.C. into the letter that her daughter was forcibly made to write by petitioner No.1 and 2 and has been used against her in the present petition. The said complaint was later transferred to the Court of Ld. City Judge, Jammu. The Ld. Judicial Magistrate 1st Class City Judge, Jammu passed a detailed order on 18-9-2017 and directed the SHO, Pacca Danga to conduct the preliminary inquiry under section 202 Cr.P.C in the offence of forcibly making a minor to allege her mother of living an adulterous life. The SHO has conducted inquiry and submitted a detailed report. The further stand taken in the objections is that with the fraudulent intention to deceive and deprive the answering respondent and their child from their legitimate rights, the petitioner No. 1 has transferred his share in the shop he owned at Prem Nagar, Jammu in the name of petitioner No.3 and he has been even playing fraud with the Courts terming him not in capacity to earn the livelihood of the answering respondent and their child.

The trial court after considering the facts and circumstances of case on 15.11.2016 passed the order and directed petitioner-husband to pay Rs.10,000/- pm as monetary relief in terms of section 23 of D.V Act on the grounds that he is running a big shop of jewellers at Jammu and is earning about Rs.2 lakh pm. Petitioner herein aggrieved of order dated 15.11.2016, filed appeal before 1st Additional Sessions Judge, Jammu and Sessions Judge modified the order of monetary relief thereby reducing the same to Rs.5,000/-instead of Rs.10,000/- vide its order dated 18.03.2017.

The operative part of the impugned order dated 18.03.2017, passed by the 1st Additional Sessions Judge, Jammu reads as under:-

"The impugned order is an interim measure to decide the matter finally under section 12 of the Act (Supra) which is sub judice before the Trial Court. It will be open to the appellants during the proceedings raise grant of maintenance allowance in terms of section 488 Cr.P.C and also respondent allegedly leading an adulterous life and infidelity. Ld. Counsel for the appellants has placed on record a certificate issued by TB Sanatorium Amritsar vide No. ST/G dated 07.02.2017certifying that Kumal Verma (appellant no.1) had been under treatment for Tuberculous Pleural Effusior since 05.11.2016. The respondent moved application under Domestic Violence Act on 15.11.2016, against appellants. Sub section (2) of Section 25 of the Act provides that if the Magistrate on receipt of an application from either of the patties is satisfied that there is a change in the circumstances requiring alteration, modification, or revocation of any order made under this Act, he may for reasons to be recorded in writing pass such order, as he may deem appropriate. This court, however, finds that an amount of Rs.10,000/- to be paid monthly, besides Rs. 5000/- under section 488 Cr.P.C to be paid tothe respondent wife by appellant husband, who is a diagnosed case of TPE, is on higher side and is not sustainable and is liable to be slashed down. Having regard to the health of the appellant husband, requirement of the respondent wife and minor daughter of the age of eight years, grant of monthly maintenance of Rs. 5000-under section 488Cr.PC am amount of Rs. 5000/- per month shall be appropriate to be granted as an interim measure under section 23 of J&K Protection of Women from Domestic Violence Act 2010, instead of Rs. 10,000/- till disposal of the main petition. For the foregoing reasons and observations made hereinabove impugned order as an interim measure given to the factual background of the case is modified that the appellant husband shall pay Rs. 5000/- instead of 10,000/- per month to the respondent, till disposal of the main petition. Parties are directed to cause their appearance before the Trial Magistrate on 30.03.2017. Trial Court record along with a copy of this order be sent down, forthwith."

The Jammu and Kashmir Protection of Women from Domestic Violence Act 2010 has been legislated for more effective protection of the rights of women guaranteed under constitution, who are victim of violence. Section 12 of Act empowers victim to file a petition before Magistrate regarding domestic violence; section 18 deals with passing of protection order; section 19 deals with passing of residence order; section 20 deals passing of monetary order; section 21 deals with passing of custody order and section 22 deals with compensation order. These types of order can be passed/ granted by Magistrate after hearing and finally deciding the application under sections 12 of Act.

Section 23 of Protection of Women from Domestic Violence Act, empowers the magistrate to grant interim order during pendency of petition under section 12 of Act, as he deems just and proper. Further magistrate has also power to pass ex parte interim relief/s as magistrate deem just and proper during pendency of application under section 12 of Act. Section 23 of Act consists of two parts; section 23(1) empowers Magistrate to pass interim order during pendency of main petition under section 12 of Act; section 23 (2) empowers magistrate to pass ad-interim order during pendency of interim petition under section 23(1) of Act.

The purpose of this section is to save the victim from vagrancy, continuous harassment, dispossession of victim from place of residence or share hold, alienation of such place of residence or shared household etc. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be. Section 28 of Act states that all proceedings under section 12, 18, 19, 20, 21, 22, 23 and section 31 of Act shall be governed by provisions of Cr.P.C; sub section (2) section 28 of Domestic Violence Act gives the power to the trial court to lay down its own procedure for disposal of an application under sections 12 and 23 of Domestic Violence Act.

Petitioners have raised disputed question of facts in this petition for quashing the orders of courts below and for quashing whole proceedings.

As already held D.V. Act is a social legislation and has been legislated for more effective protection of the rights of women guaranteed under constitution, who are victim of violence. The law with regard to quashment of criminal proceeding is now well settled. This court cannot Act as trial court, appellate court or revisional court while exercising power under section 561-A Cr.P.C. A glance at the petition filed under the Domestic Violence Act would show that the allegations have been made against the petitioners. Therefore, whether the allegations made by the respondent is true or not is a matter to be decided by the trial court. All the grounds taken are pertaining to facts; since disputed question of facts has been involved in this case, which cannot be gone into by this Court, in view of the Judgment of the Hon'ble Supreme Court in HMT Watches Ltd., Vs. M.A. Abida & Another reported in 2015 (2) CTC 446, wherein, it has been held as under:-

"10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.

In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others, (2008) 13 SCC 678, this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: -

"17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.

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Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal [pic]proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.'

In Rallis India Limited v. Poduru Vidya Bhushan and others, (2011) 13 SCC 88 this Court expressed its views on this point as under:-

"12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm."

In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court."

Further, the petition under section 12 of D.V. Act cannot be termed as complaint in clear terms. Petition means request for providing relief, whereas complaint as per section 4(e) means allegations made oral or in writing to magistrate for taking action under code against offender for commission of offence.

In view of above discussion, no case for quashing of impugned orders as well as petition under D.V. Act, is made out. This petition is dismissed.