IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.7165 OF 2008 1. CHANDRAWATI DEVI, WIFE OF LATE MAHESH PRASAD 2. BRAJ MOHAN PRASAD, SON OF LATE MAHESH PRASAD, 3. RAKHI DEVI, WIFE OF BRAJ MOHAN PRASAD, ALL OF VILLAGE BARUN, PS SURAJPURA, DISTRICT ROHTAS, AT PRESENT RESIDENTS OF 32 / AB HILL COLONY, DISTRICT DHANBAD. 4. RADHA KRISHNA PRASAD, SON OF LATE MAHESH PRASAD, 5. USHA DEVI, WIFE OF RADHA KRISHNA PRASAD BOTH OF VILLAGE BARUN, PS SURAJPURA, DISTRICT ROHTAS, AT PRESENT RESIDENTS OF 403, SHIPRA SHUMBHAM BHAWAN, TILAK MARG, NORTH, SK PURI, PS SK PURI, DISTRICT PATNA. 6. SANJAY KUMAR, SON OF LATE MAHESH PRASAD, RESIDENT OF VILLAGE BARUN, PS SURAJPURA, DISTRICT ROHTAS, AT PRESENT 400, GOLD SPRING ROAD, D-308, C.P. ROCKY HILLS, CONNECTICUT (U.S.A.) ………………………………………………………………………. PETITIONERS. VERSUS 1. THE STATE OF BIHAR, 2. DR. ALKA KUMARI, WIFE OF LATE AJAY KUMAR, RESIDENT OF VILLAGE BARUN, PO SURAJPURA, DISTRICT ROHTAS, AT PRESENT RESIDING IN THE HOUSE OF RAM BABU. OPPOSITE GOVERNMENT MIDDLE SCHOOL, SAIDPUR, PS KADAM KUAN, PATNA …………………………………………………………………..OPPOSITE PARTIES. ********************* FOR THE PETITIONERS :- MR. B.P. PANDEY, SENIOR ADVOCATE MR. SURENDRA PANDEY, ADVOCATE MR. P.K. SINHA, ADVOCATE FOR THE S T A T E :- MR. JHARKHANDI UPADHYAYA, A.P.P. FOR O. P. NO. 2 :- MR. YOGENDRA PRASAD SINHA, ADV ********** 9 29/04/2010 This application has been filed for quashing of Domestic Violence Case No. 1637C/2007 pending before the Judicial Magistrate, 1st Class, Patna instituted by Dr. Alka Kumari, wife of Late Dr. Ajay Kumar on the ground that the case does not come within the purview of domestic violence as defined in the Protection of Women 2 From Domestic Violence Act, 2005 (hereinafter to be referred to as „the Act of 2005‟). Petitioner no.1 is the mother of Late Dr. Ajay Kumar and mother-in-law of the complainant. Petitioners 2, 4 and 6 are the sons of petitioner no.1 and brother-in- laws of the complainant whereas petitioners 3 and 5 are the wives of petitioners 2 and 4 respectively. The admitted facts are that the complainant married Dr. Ajay Kumar on 29.2.2004. Dr. Ajay was holding the post of Civil Assistant Surgeon in Jharkhand on a consolidated salary of Rs.14,000/-. Unfortunately during the parliamentary elections, he was given patrolling duty which led to an incident in which Dr. Ajay Kumar died. The allegations are that at the time of marriage, certain amount of money was paid to petitioner no.1 as marriage expense. The details are given at paragraph 3 of the complaint petition. At paragraph 6, it is alleged that after the death, the petitioners within one month of the death, when the complainant was in shock and not in a position to think about anything, `…………. the petitioners without any emotion, not caring the sentiments and pitiable condition, cunningly obtained the signatures of the complainant on vakalatnama and as per their choice used it for their own benefit‟. It is said that the complainant was compelled to sign on an agreement 3 and she was given a copy of the same. Thereafter it is alleged that she received certain amount of money from the Insurance, Bank deposits etc. The complainant was given only 50 per cent of the said amount and the rest was paid to petitioner no.1, the mother of the deceased. Against the brothers, it is alleged that they have withdrawn the entire amount standing in the name of Dr. Ajay Kumar from Life Insurance Corporation of India, Punjab National Bank, HDFC, Indus Indian Bank without any knowledge of the complainant. She also complaints that all her clothes, camera, certificates and pass book of bank accounts etc. of her husband Dr. Ajay were taken by the accused persons. She claims that she deposited Rs. 5 lakhs in favour of her mother-in-law, her jewellery, album, clothes, ring, digital camera etc. were not returned to her. The complainant also alleges that she was called to Ranchi in December, 2004 and made to sign on a writ petition and was not given the liberty to read its contents. At paragraph 21 of the complaint, it is stated that she was not allowed to enter the house of in- laws and, thus prayed in the complaint filed by her as follows : “That direct the respondents to handover the death certificate, all policy, bank account and different account of the Late Dr. Ajay Kumar. “That direct the respondents to return the amount of compensation, insurance policy and deposited amount in several banks which was illegally withdrew by the respondent no. 1, 2, 6. 4 “That the direct of the respondent no.3 to return five lacs twenty three thousand rupees which she received before marriage of the complainant from member of the maika of complainant by cheque and draft which is mentioned above. “That direct the respondents to return all the articles to the complainant which is mentioned in schedule no. 1 of this petition. “That pass other relief or other relieves in favour of the complainant against the respondents which the complainant entitled under Domestic Violence Act, 2005”. The questions that have arisen in this case are : Whether the application under section 482 of the Code of Criminal Procedure would be maintainable? Whether opposite party no.2 can legitimately claim that petitioner no.1 should return all the amount paid to her under the Domestic Violence Act? I will first take up the question of maintainability of this application under Section 482 of the Code of Criminal Procedure. The specific argument made by the Counsel appearing on behalf of the Opposite Party No. 2 is that the proper procedure for the petitioner will be to file an appeal. Section 29 of the Act of 2005 specifically provides that an appeal from the order made by the Magistrate shall lie to the Court of Sessions within thirty days from the date of service of the order on the aggrieved person. In the present case, admittedly there is no order of the 5 Magistrate. What has been challenged by the petitioners is the very institution of the case and as such it cannot be said that appeal would be the remedy available to the petitioners. The right to challenge the very institution of the proceeding would come within the inherent powers of the High Court. The powers possessed by the High Court under Section 482 of the Code of Criminal Procedure are very wide. The only rider is that since the powers are wide, the Court has to take extra precaution and exercise its powers in a legitimate manner. I, therefore, find no difficulty in holding that this application is maintainable under Section 482 of the Code of Criminal Procedure. Maintainability of this application has been challenged on the ground that the application is not maintainable on the ground that the complaint/ proceeding could only be quashed under Article 226, 227 of the Constitution and the present application is not maintainable under section 482 of the Code of Criminal Procedure, I propose to answer the point by referring to the principles laid down in Pepsi Food Limited vs. Special Judicial Magistrate, (1998) 5 SCC 749. The Apex Court in Pepsi Food Limited has referred to several cases. In the case of State of Haryana vs. Bhajan Lal, (1992) Supp. 1 SCC 335, the Supreme court examined the extra ordinary power under Article 226 of the Constitution and also the inherent power under section 482 of the Code of Criminal 6 Procedure. It has been held that the power under both these provisions is to prevent the abuse of process of law and to secure justice. The power of superintendence under Article 227 of the Constitution by the High Court is not only administrative in nature but also judicial in nature. This view was also upheld in Pepsi Food Limited where the application had been filed under Article 226 of the Constitution. It was held that nomenclature under which petition is filed, is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. The second aspect that has been raised in this case is whether the case would be maintainable against the petitioners who are the mother-in-law and brother-in-laws (elder brother & younger brother of the deceased husband). An „Aggrieved person‟ has been defined in Section 2 (a) of the Act of 2005 which envisages that “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subject to any act of domestic violence by the respondent.” Domestic relationship has been defined in the Act of 2005 in sub section (f) of Section 2. “Domestic relationship” means a relationship between two persons who lived or have, at any point of time, lived together in a 7 shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition itself suggests that two persons should be (a) live together and share the household (b) are related by being born in the same family or by virtue of being married into the family or through a relationship in the nature of marriage such as a „live in‟ relationship, adoption by virtue of being members of the joint family. The facts of the case disclose that Dr. Alka Kumari was married with late Dr. Ajay Kumar on 29.02.2004. After marriage, she lived with the petitioner no. 1 for eight days at their residence in Dhanbad and after her reception on 3rd March, 2004, she left for her honeymoon. After her honeymoon, she started living at her NANIGHAR, at Saidpur in Patna as per paragraph 6 of the complaint petition, as she was a student of PMCH DGO and her husband went to Dhanbad where he was posted as a doctor on contractual basis. Dr. Ajay Kumar unfortunately died within 51 days of his marriage and it is said that Dr. Alka Kumari rushed from Patna to Dhanbad along with her mother and grand mother. In the circumstances aforesaid, there is no doubt about the fact that Dr. Alka Kumari was related to the petitioner by virtue of her marriage to late Dr. Ajay 8 Kumar to petitioner no.1 but it definitely cannot be said that they share a household or lived together in a joint family as it is accepted that she was living at Patna after her honeymoon to complete her studies and has not lived with the petitioners after the death of her husband. It is not really a case of Domestic Violence. „Shared household‟ has also been defined under Section 2(s) of the Act of 2005. Most important of all is the definition of domestic violence under the Act of 2005. Section 3 of the Act of 2005 deals with various types of domestic violence. It has been argued on behalf of the complainant that she has been economically abused. Clause (iv) of sub-section (iii) of Section 3 of the Act of 2005 defines economic abuse, which is as follows:- “(iv) “economic abuse” includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or 9 which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) Prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.” The claim of the complainant has been mentioned in paragraph 3 of the complaint petition, which is as follows:- “(3) That at the time of the marriage the total amount of Rs. 5,23,000 (Rupees Five Lakh twenty three thousand only) was given by the Parents, Maternal uncle and brother of the complainant to the respondents. Besides of expenses of marriage ceremony. (i) That an amount of Rs. 1,51,000/=(Rupees one lakh fifty one thousand only) was given through a Demand Draft of SBI, NMCH, Patna bearing no. 938265 dated 13.12.2003 by the parents of my client. (ii) That a cheques bearing No. 310028 of Rs. 1,00,000/- (Rupees one Lakh only) was given by my client‟s mother from her SBI, NMCH, Patna Account No.- 1027650649 (iii) That a Cheque bearing No. 679628 of Rs. 49,000/- (Rupees forty nine thousand only) was given by client‟s maternal uncle from his SBI Account, Bhikhana Pahari, Patna, Account No. 10062589511. (iv) That a Cheque No. 679629 of Rs. 49,000/- (Rupees forty nine thousand only) was again given by my client‟s maternal uncle from his SBI, Bhikhana Pahari, Patna Account No. 10062589511. 10 (v) That a Cheque bearing No. 607891 of Rs. 49,000/- (Rupees forty nine thousand only) was given by my client‟s brother from his SBI Account, Rajendra Nagar, Patna Account No. 10520208050. (vi) That a Cheque bearing No. 522566 of Rs. 51,000/- (Rupees fifty one thousand only) was given by my client‟s brother from his SBI Account, Rajendra Nagar, Patna Account No. 10520208050. (vii) That a Cheque bearing No. 822231 of Rs. 51,000/- (Rupees fifty one thousand only) was given by my client‟s parents from their SBI Account, Rajendra Nagar, Patna Account No. 10520173240. (viii) That a Cheque bearing No. 822231 of Rs. 23,000/- (Rupees twenty three thousand only) was again given by my client‟s parents from their SBI Account, Rajendra Nagar, Patna Account No. 10520173240. Besides the expenses of the marriage ceremony.” The opposite party is claiming that that a sum of Rs. 5,23,000/- were given by different members of the family to the respondents by way of marriage expenses or whatever purpose. There is no allegation that there was a demand for the said money. The complaint does not specify that whether the money given by way of demand or by way of a gift by different members of the family. In fact the allegation is not of demand of dowry or anything of the sort. Besides which, she also claims several other amounts such as a cheques no. HDFC 400377 dated 20.06.2004 was received by petitioner no. 6 from the Life Insurance Corporation of India worth Rs. 2,38,151/-, life 11 insurance amount from Rajgir Branch of Life Insurance Corporation of India standing in the name of Dr. Ajay Kumar worth Rs. 4,75,214/- and cheques no. 459636 of Corporation Bank, 3 Ansal Chambers-1, Bhikaji Cama Place, New Delhi and certain other amounts were withdrawn by Dr. Ajay‟s brothers. Regarding this aspect of the allegation, it has been specifically stated that Dr. Alka Kumari had entered into an agreement with the petitioner no. 1 i.e. the mother of Late Dr. Ajay Kumar on 17th May, 2004 in which she has stated as follows:- “That deceased Dr. Ajay Kumar was holding three policies of Life Insurance Corporation of India bearing Policy No. 511894100 of Branch II, Patna, Policy No. 512235896 of Rajgir Branch and Policy No. 113529790 of Delhi Branch II R. That due to above said death of Dr. Ajay Kumar, the heirs i.e. member of First Party and second party will get insurance claim etc. from Election Commission of India and State Government of Jharkhand. That compensation for the death of Dr. Ajay Kumar and other benefits payable by the Government of Jharkhand or Administration is payable to his legal heirs i.e. first party and second party. That members of first party and second party mutually decided and agreed that whatsoever amount they will receive either from L.I.C. Election Commission of the India and State Government of Jharkhand the members of the first party and second party shall divide the same half and half in which none have any objection. 12 That whatsoever share will go in the hands of first party the second party will not have any claim in any case over those amounts likewise the first party will also not claim with regard to the share allotted to the member of second party in any manner even after her death. That the both parties agreed to share half and half of the amount which will be found invested by Dr. Ajay Kumar (deceased) in any Bank within 6 months before his marriage with first party on 29.02.2004.” From the agreement aforesaid, it appears that the mother is also the natural heir of Dr. Ajay Kumar being Class I heir under the Hindu Succession Act and is entitled to receive 50 per cent of the amounts to be paid to late Dr. Ajay Kumar with respect to those amounts which were related to the period six months prior to the marriage. It is submitted that the Opposite Party No. 2 now wants to take the entire money and belongings of petitioner no. 1 and other family members by filing this complaint case. I cannot hold that she is not entitled to the share of her husband‟s property, but the forum to make such a demand is not the correct one. It has been stated on behalf of the petitioners that they have no objection in supplying all details to the complainant/Opposite Party No. 2 provided that she meets with them and talks over the matters and expressed her needs and desires. They treat her as a daughter of the house rather than a daughter-in-law considering the short tenure of the marriage and the fact 13 that her husband passed away in such tragic circumstances. It has been submitted on behalf of the petitioners which has not been denied by Opposite Party No. 2 and there was no dispute infact regarding the said payment of money and the case filed on 04.01.2007 appears to be motivated by some other circumstances. The money withdrawn by petitioners or family members and subsequently paid to the Opposite Party No. 2/complainant is given below. MONEY WITHDRAWN BY PETITIONER OR FAMILY MEMBER Sl. No. Bank‟s Name Date Amount 1 Indus Ind Bank, Dhanbad (A/c No. 615160 08.05.2004 90,000.00 2 HDFC Bank, Dhanbad (A/c No. 2441000010 10580 22/05/2004 1,55,014.00 3 Punjab National Bank, Dhanbad (fixed deposit Account) 08/05/2004 33,046.00 MONEY DEPOSITED BY PETITION IN OPPOSITE PARTIES’ ACCOUNT Sl.No. Bank‟s Name Cheque Number Date Amount 1 Indus Ind. Bank 079311 21/06/04 45,000/- 2 HDFC Bank 017415 21/06.04 75,000/- 3 HDFC Bank 017419 06/09/04 15,000/- It is also an admitted fact that infact the Opposite Party No. 2/complainant had never lived with the petitioners. 14 Counsel for the petitioners also refers to the word `respondent‟ which occurs in sub section (a) of Section 2 of the Act of 2005 while defining aggrieved person. Sub section (2) of Section 2 of the Act of 2005 defines what is meant by respondent. It means that “any adult 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 the Act.” The proviso provides that an aggrieved wife or female living in the nature of marriage may also file a complaint against the relative of the husband or male partner. Counsel for the petitioners submits that respondent would exclude the mother-in-law and brother-in-law. However, the use of the word may also apply “a complainant against a relative of the husband” would lead the Court to the conclusion that relative would include brother-in-law and mother-in-law. It has been argued about the agreement as it has been submitted on behalf of the Opposite Party No. 2/complainant that the agreement is in violation of the law. I am not inclined to decide this issue as it does not come within the purview and scope of these proceedings. Coming to the facts, the Court shall now examine the facts of the case. From the pleadings of the parties, it is admitted that the compensation paid in lieu of the death of Late Dr. Ajay Kumar was divided half and 15 half between the Opposite Party No. 2/complainant and her mother-in-law, Chandrawati Devi. The petitioners do not deny this aspect of the matter at all. The petitioners further have categorically stated that they are willing to return the Car gifted to the husband of the Opposite Party No. 2/complainant and also they are willing to allow the Opposite Party No. 2/complainant to live in the joint family house at Dhanbad. It is also submitted that the family members (petitioners) are equally devasted by the death of Dr. Ajay Kumar, especially petitioner no. 1, the mother-in-law has not been able to recover from the shock of loosing her son, more so considering the circumstances under which he died. The petitioners submits that whatever she (Opposite Party No. 2) is lawfully entitled to, has been given to her and as far as the house is concerned, it is a joint family property of all the brothers, mother and late husband of the complainant/Opposite Party No. 2. As far as the articles as mentioned in Schedule I are concerned, it is submitted that all the articles except a car have been returned to her. Similarly, Dr. Alka Kumari has also received all the items of jewellery and has signed on the document which is annexed as Annexures 4 and 4/1. With respect to the claim that she should also be given certain amount which were in the name of Late Dr. Ajay Kumar much prior to the marriage, it has been submitted on behalf of the 16 petitioners that all the amount have been paid as per the agreement and the filing of the present case is absolutely unwarranted and does not amount to economic abuse or domestic violence. I may also clarify the allegation that the Opposite Party had surreptiously got the Opposite Party to sign on a vakalatnama and used it to file a writ application is frivolous and false in view of the pleading, order in the writ application. An I.A. No. 2425 of 2006 was filed WP (S) 507 of 2007 by Opposite Party NO. 2. The order is quoted below:- “In this I.A., petitioner no. 2 has sought amendment in the writ petition by the addition in the prayer to the effect that direction be given to petitioner no. 1 and her sons, namely, Radhey Krishna Prasad, Braj Mohan Prasad, Ghanshyam Prasad and Sanjay Kumar, as mentioned in paragraph-2 of the I.A., to pay all the amount with interest at the prevailing bank rate, illegally withdrawn by them from the financial institutions. In the writ petition, the prayer was made for directing the respondents to regularize the services of late Dr. Ajay Kumar, husband of the petitioner no. 2, who was appointed on contact basis as a doctor, in a regular and substantive scale of pay and to pay her (petitioner no. 2) the regular salary of her late husband and to further appoint her (petitioner no. 2) on the post of doctor in regular and substantive scale of pay, as she is a Medical Graduate and her case has been recommended by respondent no. 5 for her appointment as such. 17 Now by way of amendment in the prayer of the writ petition, petitioner no. 2 intends to seek declaration that the payment made to the mother, sister and other relatives of her husband was illegally withdrawn. Against such prayer, serious objection has been raised by the learned counsel for petitioner no. 1 stating that all the payments were made with