BINOD BIHARI TRIPATHY Vs. PRAVATI RANI TRIPATHY

JUDGEMENT

(1.) The petitioners in this application have sought for quashing the criminal proceeding, being CMC No. 175 of 2008, pending before the learned S.Q.J.M., Baragarh filed by the opposite parties under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'). It is contended by the petitioners that a bare reading of the complaint filed under Section 12 of the Act would go to show that the opposite parties as petitioners have prayed for Residence Order under Section 19 of the Act and/or direction to the respondents (present petitioner) to pay monetary reliefs under Section 20 of the Act and pass such interim orders as the Court may deem just and proper. It is further contended that a partition suit was filed by the opposite parties claiming their share of the joint family property, which has been decreed against which the first appeal (RFA No. 167 of 2007) has been filed before this Court to which a cross appeal has also been filed. The said RFA has been disposed of by judgment passed today. Learned counsel for the petitioners submitted that since a share has been allotted in favour of opposite party No. 1-complainant, it cannot be said that they have no source of income in any manner whatsoever. He further submits that on 12.7.2002 i.e. on the 14th day of death of Durga Charan Tripathy, who is the husband of opposite party No. 1, she expressed her willingness to visit her parents' house for a few days and also took the young child (opposite party No. 2) with her and stayed back at Bargarh in her parents' house in spite of repeated requests by the petitioners to come back to their house. She filed a suit for partition, being T.S. No. 75 of 2002, before the learned Civil Judge (Senior Division), Bolangir in the year 2002. As per the decree passed, she is entitled to a share in the joint family property and the share out of the amount payable on the insurance policy of her deceased husband with the LIC. As stated earlier, an appeal was preferred against the said decree, which has been disposed of by judgment passed today. Applications have been filed seeking reliefs under Sections 18, 19, 20, 21 and 22 of the Act. It is contended by the petitioners that the conditions precedent for maintaining an application under the Act that on the date of filing of the complaint, the female must be living in a relationship and in view of the severance of status by means of partition, there is no relationship in existence between the complainant and the respondents for continuing the proceeding. Further, in view of the partition of the properties and in view of the separate residence of the complainant, Sections 18 and 19 have no application for prosecution of the present case. It is further submitted that Section 20 of the Act deals with monetary relief including the maintenance. Sub-section 1(a), (b) and (c) have no application to the present case. Sub-section 1(d) deals with maintenance. As per Hindu Adoption and Maintenance Act and as per Section 125 Cr.P.C., the maintenance is to be claimed against the husband and not against the father-in-law and mother-in-law. Such maintenance cannot be granted as the complainants have succeeded to their share both in the immovable properties as well as over proceeds of the LIC policy. A further plea has been raised that according to the complainants-opposite parties, the cause of action/accident arose on 12.7.2002 whereas the Act came into force on 26.12.2006. The case under the said Act was filed on 20.9.2008. Therefore, the complaint itself is not maintainable.

(2.) Learned counsel for the opposite parties, on the contrary, submitted that Sections 18, 19 and 20 clearly show that appropriate Protection Order can be passed under Sections 18 and 19, and maintenance can be awarded under Section 20 of the Act. "Domestic Violence" has been elaborately defined in Section 3 of the Act which includes overt act amounting to omission or commission or conduct of the respondent causing harass, 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, which has the effect of threatening the aggrieved person or any person related to her by any conduct, otherwise injures or causes harm, whether physical or mental. The phrases "Physical Abuse", "Sexual Abuse" and "Verbal and Emotional Abuse" have also been defined in the said section. Considering the wide nature of redressal provided under the Act as defined in Section 3 thereof, I find that the nature of the complaint lodged by the respondents in the present case cannot be thrown out just because such allegations commenced from the year, 2002 when the Act did not come into force as I find that the omissions or commissions as alleged in the application are continuing in nature and therefore, as it continued even on the date of filing of the application, it cannot be said that the application should be thrown out in limine, I am, therefore, not inclined to quash the said proceeding numbered as CMC No. 175 of 2008 pending before the learned S.D.J.M., Bargarh, but, however, I direct that while hearing the case, the learned S.D.J.M., Bargarh shall take into consideration the fact that in the partition suit filed by the opposite parties-complainants, a decree has been passed allotting the share of the complainants both in the immovable properties as well as with regard to the amount under the Insurance Policy.