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Nageshwar Prasad Mishra Vs State Of U.p. & Ors.


Court:Allahabad High Court

Bench: JUSTICE Vijay Lakshmi

Nageshwar Prasad Mishra Vs State Of U.p. & Ors. 6 May 2014

Law Point:
Protection of Women from Domestic Violence Act, 2005 — Sections 2(f), 2(g), 2(q), 2(s), 3, 18, 12, 22 — Domestic Violence — Aggrieved Person — Defamation and malicious prosecution alleged by daughter against her father — Petitioner-father cannot be termed as ‘respondent’ and respondent No. 4 not “aggrieved party” — Act of petitioner not covered by definition of “domestic violence” under Section 3 of Act — Both civil and criminal cases pending between father and daughter due to their strained relations — Possibility of false implication cannot be ruled out — No reason that after expiry of four years of marriage of her daughter suddenly father went to her matrimonial home and would ask her to return to her parents’ house for remarriage leaving behind her husband and four-year-old son — It appears, that having being deprived of all gifts and dowry, because of her love marriage against parents’ wishes, daughter used Domestic Violence Act as tool for extorting Rs. 4 lacs from her father in garb of compensation — Impugned order quashed.





  1. By means of this writ petition, the petitioner has questioned the validity of two orders passed by the Courts below, the first being order dated 7.9.2009 passed by the Judicial Magistrate, Allahabad in Complaint Case No. 907/XII of 2008, Smt. Usha Gupta v. Nageshwar Prasad Mishra, whereby the learned Magistrate dismissed preliminary objection raised by the petitioner regarding the maintainability of complaint case under the provisions of Domestic Violence Act. The second order under challenge is the judgment and order dated 11.2.2010 passed by the lower Appellate Court in Criminal Appeal No. 193 of 2009, Nageshwar Prasad Mishra v. Usha Gupta, whereby the appeal of the petitioner filed against the aforesaid order dated 7.9.2009 of the Judicial Magistrate, Allahabad, was dismissed.
  2. Briefly stated facts relevant for the disposal of this petition are that the petitioner is the real father of respondent No. 4, Smt. Usha Mishra. On 6.2.2004, his daughter Usha Gupta solemnized her inter-caste marriage with one Ramji Gupta against the wishes of her father (petitioner) and after marriage, she having ceased to have any relations with her parental house, started living with her husband, Ramji Gupta separately. As the relations between the daughter and father had become strained, she never came back to the house of the petitioner after her marriage on 6.2.2004. However, on 18.12.2008, she filed a complaint case against her father in the Court of Judicial Magistrate, Allahabad under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) alleging that she is the handicapped daughter of opposite party. Her father is a man of bad character. He has kept another woman as wife with him despite the fact that the first wife i.e. the mother of the complainant is alive. She had earlier moved an application against the atrocities of her father before the Court under Section 156(3), Cr.P.C. On the basis of which, the police had registered a criminal case against her father but by filing a criminal revision against the order passed on the application under Section 156(3), Cr.P.C. his father obtained a stay order in his favour by the revisional Court and after obtaining the stay order, he started defaming and humiliating the complainant. It was further alleged by the daughter that her father who keeps an evil eye on her and who was harassing her by instituting false cases against her, came to her house on 16.12.2008 and enticed her to go with him deserting her husband and 4 years old son.
  3. On the aforesaid grounds, the complainant/respondent No. 4 prayed from the Court of Judicial Magistrate, Allahabad to restrain the opposite party/her father to visit her matrimonial home. She also claimed Rs. 4 lacs as compensation from her father for defaming and humiliating her and for forcing her to face malicious prosecution. She also sought police protection from the Court.
  4. After taking cognizance on the complaint, the Magistrate summoned the father/petitioner who appeared and raised his preliminary objection on the ground of maintainability of the complaint case under the provisions of the Domestic Violence Act, 2005. In the preliminary objection, it was averred by the father/petitioner that the essential ingredients of any offence under Domestic Violence Act are missing in the complaint case, as after the love marriage of his daughter on 6.2.2004, he never resided with her in a shared household, so according to definition clause of the Act, neither his daughter comes into category of “aggrieved person” nor he comes into category of “respondent” and the provisions of Domestic Violence Act are not applicable to his case. Besides it, he also challenged the complaint case on factual grounds by stating that he never visited the matrimonial home of her daughter and all the allegations levelled by his daughter against him are totally false. On the aforesaid ground the petitioner/father prayed that the complaint case be dismissed as being not maintainable under the Domestic Violence Act, 2005.
  5. Learned Magistrate vide impugned order dated 7.9.2000 disposed of the application of the petitioner regarding preliminary objections and after observing that unless the evidence of both the parties is available on record, no opinion can be expressed on the objections of the opposite party (father/petitioner), dismissed the preliminary objection.
  6. Against the said order of dismissal passed by the Judicial Magistrate, Allahabad, the petitioner filed Criminal Appeal No. 193/09 before the Additional Sessions Judge, Court No. 3, Allahabad. The Appellate Court also refused to interfere in the order of the Judicial Magistrate by observing that before her marriage, the complainant was residing with her father and according to Section 2(f) of the Domestic Violence Act, the relationship includes relationship between two persons by consanguinity (blood relations). On the aforesaid grounds, learned Appellate Court affirmed the order passed by the learned Judicial Magistrate and dismissed the appeal of the petitioner by the impugned order dated 11.2.2010.
  7. Aggrieved by both these orders of the Courts below, the petitioner has moved this Court, challenging the legality of both the aforesaid orders mainly on the ground of lack of essential ingredients in this case to entitle a person to move application under Section 12 of the Act.Learned Counsel for the petitioner has vehemently argued that respondent No. 4, the daughter of the petitioner, started living separately from her father in another house with her husband since 6.2.2004 after performing marriage and it is admitted case that due to bitterness in relations, neither she ever visited to her parental home after her marriage nor her father ever went to her house. Learned Counsel for the petitioner has contended that under these circumstances, it cannot be said that petitioner’s daughter is an “aggrieved person” under Section 2(a) of the Act. Moreover, there being no domestic relationship between the two as per provision of Section 2(f) of the Act, the petitioner being not covered by definition of “respondent” as contemplated under Section 2(g) of the Act and there being no “shared household” as per the definition of Section 2(s) of the Act, it cannot be assumed that any “domestic violence” was occurred as defined under Section 3 of the Act, therefore no complaint by Smt. Usha Gupta under Section 12 of the said Act was maintainable. But both the learned lower Courts without considering the legal provision and without even discussing even a word about the pleas taken by petitioner in his preliminary objection have passed the order in great mechanical manner without understanding the definition of ‘aggrieved person’, ‘respondent’ and ‘shared household’ as provided under Section 2 of the Domestic Violence Act, 2005. Hence, he has prayed to quash the impugned orders. The petitioner has relied upon the following judgments in support of his case:(1) T. Arvandansam v. S.T.V. Satya Pal, 1977 LS 307 SC.(2) S.R. Batra v. Taruna Batra, I (2007) DMC 1 (SC)=I (2007) SLT 1=136 (2007) DLT 1 (SC)=2006 LS 1211 SC.

    (3) Girish v. Poonam, 2012 LS 4194 (P & H).

    (4) Nagamuthula Kondaiah v. State of A.P., 2012 LS 381 AP.

    (5) Geeta v. Statements, 2014 LS 687 (All.).

    (6) Nandan Singh v. Statements, 2010 LS 4555 (Del.).

    (7) Satish Sharma v. Statements, 2011 LS 2800 (Del.).

  8. Per contra, learned A.G.A. and learned Counsel for the respondent No. 4 while opposing the writ petition have vehemently argued that the orders passed by the Courts below are perfectly legal. There is no illegality, irregularity, perversity or jurisdictional error in both the orders, requiring any interference by this writ Court. The learned Counsel for the respondent No. 4 has cited the following pronouncement in support of his case:(1) Mrs. Savita Bhanot v. Lt Col. V.D. Bhanot, I (2010) DMC 530=168 (2010) DLT 68=(2010) 1 Femi-Juris C.C. 662 (Del).Both the parties have filed written submissions also which are taken on record.
  9. I have heard learned Counsel for both the parties and have carefully gone through the records, written submissions filed by the learned Counsel and the relevant provisions of Domestic Violence Act, 2005.In order to appreciate the rival contentions of both sides, it would be useful to have a glance over the relevant provisions of the Act. In this regard Sections 2(a), 2(f), 2(g), 2(q), 2(s) and Section 3 coupled with Sections 18 and 22 are important.Section 2(a) of the Act defines ‘aggrieved person’ according to which:“‘aggrieved persons’ means any woman who is, or has been, in a domestic relation with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

    Sections 2(f) defines “domestic relationship” which means:

    “a relationship between two person who live or have, at any point of time, lived together in a 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.”

    According to the aforesaid definition the persons related by blood or by consanguinity i.e. father or brothers, etc. are also covered under the Act but the condition is that they or he be living or must have lived at any point of time in a shared household.

    Sections 2(s) defines “shared household” according to which “shared household” means:

    “a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

    Section 2(q) defines “respondent”, which means as follows:

    “ ‘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.”

    Section 3 of the Act, which defines domestic violence is reproduced below:

    3. Definition of domestic violence—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

    (a) harms or injures or endangers the health, safety, life limb or well-being, whether mental or physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

    (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

    (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in Clause (a) or Clause (b); or

    (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

    Explanation II—Appended to Section 3 is relevant, which provides that for the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes ‘domestic violence’ under this section, the overall facts and circumstances of the case shall be taken into consideration.”

    Section 12 of the Act entitles a “aggrieved person” or protection officer or any other person acting on behalf of the aggrieved person to apply to the Magistrate for grant of one or more reliefs under the Act. Section 18 of the Act enumerates the order which the Magistrate can pass in favour 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.

  10. I have carefully perused the averments made in the complaint filed by the respondent No. 4 under Section 12 of the Act before the Judicial Magistrate, Allahabad. The complaint which is Annexure 1 to the writ petition, clearly shows that after solemnizing marriage with Ramji Gupta, the complainant/respondent No. 4 started living independently in a separate house with her husband.
  11. The complainant/daughter has filed objection against the application of father which is Annexure 3 to the writ petition and in such objection, she has not disputed the date of her marriage which is 6.2.2004. She has also not disputed her separate-living with her husband in another house. She has clearly mentioned that her handicapped brother, Jyotikar Mishra is living with her since 2004. As her brother had supported in performing her love marriage, their father being annoyed, get him ousted from his house and since then her brother is living with her and she is bearing his entire expenses.
  12. A perusal of the pleadings shows that admittedly the respondent No. 4 was living in a separate house since four years prior to the occurrence i.e. 16.12.2008. The place of occurrence as mentioned in the complaint is daughter’s matrimonial home.Thus, clearly the petitioner is living separately from his daughter since 6.2.2004 and he has never at any point of time resided with her in the house where his daughter was living when the cause of action took place on 16.12.2008, when according to complainant, her father came and asked her to leave her husband and four years old son and come to his parental home so that her remarriage may be performed. Under these circumstances, it cannot be said that the respondent No. 4 can be termed as “aggrieved party” or the petitioner be termed as “respondent” or any “domestic violence” has taken place under Section 3 of the Act.
  13. In view of Explanation-II of Section 3 mentioned above, the Courts are required to see the overall facts and circumstances of the case before determining whether any act, omission, commission or conduct of the respondent constitutes domestic violence or not. The facts mentioned in the complaint filed by respondent No. 4 clearly shows that the only allegation levelled against the petitioner by the respondent No. 4, is that on 16.12.2008, the petitioner came to her house and allured her that if she would accompany him leaving her son and husband, he will withdraw the criminal case filed against her and would arrange her remarriage. There is no allegation of any such thing that the father committed any assault or used any abusive language against her. Although some vague allegations regarding her father having an evil eye on her and committing insult on some previous date are there but neither any time nor any place has been mentioned with regard to those vague allegations.
  14. It is also to be noted that several cases both of civil and criminal nature are pending between the father and the daughter due to their strained relations, so the possibility of false implication cannot be ruled out. There appears no reason why after expiry of four years of marriage of her daughter suddenly the father will go to her matrimonial home and would ask her to return to her parents’ house for remarriage leaving behind not only her husband but also her four years old son. It appears that having being deprived of all the gifts and dowry, because of her love marriage, against the wishes of parents, the daughter has used the Domestic Violence Act as a tool for extorting Rs. 4,00,000 (four lacs) from her father in the garb of compensation.
  15. Keeping in view all these facts and circumstances, it is my considered view that the act of the petitioner is not covered by the definition of “domestic violence” as provided under Section 3 of the Act. For the aforesaid reasons, the writ petition appears to have force in it. It deserves to be allowed and is hereby allowed. The impugned orders dated 7.9.2009 and 11.2.2010 are quashed. The case be remanded back to the Court of learned Judicial Magistrate, Allahabad, along with a copy of the judgment with direction to pass a fresh order in accordance with law in the light of legal position as discussed above, preferably within a period of 3 months and to send compliance report to this Court along with a copy of the order passed by him/her.

Writ Petition allowed.


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