Heard learned counsel for the parties and perused the material on record.
The applicant, Mohd. Usman @ Bhai Lal, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the entire proceedings of Case No. 941 of 2009 (Smt. Shahar Bano Vs. Mohd. Usman) under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act') P.S. Sarai Mamrej, District Allahabad and stay the further proceedings of the aforesaid case.
The facts which are requisite to be stated for the adjudication of this application are that the opposite party no. 2 moved an application before the Magistrate concerned under Section 12 of the Act with the allegation that her marriage was solemnized with the applicant according to Muslim rites and rituals on 20.6.2001 and out of their wedlock five male issues were born but the applicant ousted her from his house, therefore, she was residing with her parents in their house. She is unable to maintain herself and also meet out the medical expenses whereas the applicant can afford essential commodity at this stage of her life, therefore, she claimed for dwelling house as well as maintenance and other expenses to the tune of Rs. 19,000/- per month. The Magistrate on receiving the complaint called upon the comments from the District Protection Officer.
Feeling aggrieved the applicant moved this application.
It is submitted by the learned counsel for the applicant that his marriage was solemnized with the opposite party no. 2 according to Muslim rites and rituals on 20.6.2001 and there was no family dispute between them since last nine years and five male issue were also born from the opposite party no. 2. They all are living with the applicant but the opposite party no. 2 was compelling the applicant to live her parents house along with the children but the applicant refused the proposal of the opposite party no. 2 on which she went her parental house and moved this application. The applicant has also moved an application for restitution of conjugal rights which is pending before the court concerned. It is further submitted that no offence is made out and it is a case of no injury. The applicant is still ready to keep the opposite party no. 2 with him.
Before adverting to the claim of the parties, it is expedient to refer to section 12 of Protection of Women from Domestic Violence Act, 2005, which is reproduced below:
12. Application to Magistrate.--(1)An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
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.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after s uch set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection."
In the case in hand, the marriage of the applicant was solemnized on 20.6.2001 according to Muslim rites and rituals and out of wedlock five male issues were born even then the opposite party no. 2 was forced to live in her parental house (Myka). No wife is supposed to leave the husband without any rhyme or reason especially in the circumstances when she have issues. It is not a case of the applicant that he is paying the maintenance to his wife whereas not even a single penny has been given by the applicant in lieu of maintenance or meet out other essential expenses of the wife at this stage. In view of said Act, any woman who is subjected to domestic violence such as actual abuse or threat or harassment by way of unlawful demands and also refused to give roof i.e. dwelling house or share house hold whether or not she has any title or right in such house or house hold in which the applicant has been failed to provide the opposite party. Besides this the said Act is a special Act and in the Section 32 of the Act there is a non-obstante clause which provides that no provision of Cr.P.C. will apply in this matter as this Act is self contained Act. This application has been moved only to delay the proceedings of the Act as the applicant has no reasonable apprehension that proceeding may occasioned to failure of justice. Only in cases where the court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice.
I find no reason to interfere in the proceedings and, therefore, refuse to quash the same in the aforesaid case.
In view of what has been discussed above, the application has no substance and is, accordingly, rejected.
Order Date :- 29.3.2018 AKK