NISHANT HUSSAIN Vs. SEEMA SADDIQUE

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 30.3.2012 passed by learned Addl. Sessions Judge (Fast Track) No.3, Jodhpur Mahanagar whereby application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short "the Act of 2005") has been allowed and the order dated 23.12.2011 passed by the court below has been affirmed. The short facts of the case are that marriage between the parties took place on 26.12.1997. Male child has been born out of the wedlock on 15.9.1999. There are allegations of harassment to respondent no. 1 in August, 1998 and October, 2002. A criminal FIR for the offences under Section 498A and 406 IPC has also been lodged in January, 2004. Thereafter in 2007, the present petition has been filed and the learned trial court ordered maintenance allowance in favour of respondent and the appeal preferred against the order of the trial court has been dismissed. Hence this revision petition.

(2.) THE only contention of the present petitioner is that, admittedly, the respondent has left the matrimonial home in the year 2002 and the Act of 2005 came into force in October,2006. It is not in dispute that the Act of 2005 has retrospective effect, but the complaint can be filed within a period of one year from the date of incident and when the parties are not living together, there is no occasion for any incident of domestic violence and on the basis of incidents occurred before 2002, this petition is not competent. THEre is no evidence that the present petitioner has committed any act of domestic violence after the year 2002. A false case is set up by the non -applicant stating therein that on 4th and 5th August, 2007 when the respondent arrived at Jodhpur for the proceeding in criminal court, the incident of domestic violence has taken place but considering the totality of the circumstances, this isolated act cannot be termed under the Act of 2005 and hence the orders are perverse and abuse of process.

(3.) HEARD learned counsel for the parties and perused the impugned orders. It is not in dispute that the parties are living separately since October, 2002, hence there is no occasion for committing any domestic violence. The only incident of August, 2007 has been alleged which is apparently seems to be designed for this petition. Taken to be true that the incident of August, 2007 has occurred between the parties, still it does not constitute the act of domestic violence. The matter has been proceeded under Section 107 and 116(3) Cr.P.C.. No act of domestic violence has been alleged against the present petitioner as defined under Section 3 of the Act of 2005. The learned court below has also considered the fact that the parties are residing separately since 26.10.2002. All the allegations regarding violence which have been set up in the complaint are prior to October, 2002. It has been stated that on 4th and 5th August, 2007 the present petitioner has misbehaved with father and mother of the respondent and has threatened to take away child forcibly and again he misbehaved on 5.8.2007 and also threatened for dire consequences. But as stated earlier, this isolated incident cannot be termed as act of domestic violence and reliance has been placed on Vijay Verma v. State N.C.T. of Delhi & anr. (Cr.M.Case No. 3878/2009) decided on 13.8.2010 passed by the High Court of Delhi wherein it has been specifically held that only violence committed by a person while living in the shared household can constitute domestic violence. Threatening by a person may amount to an offence under the Indian Penal Code but this cannot amount to domestic violence. Domestic violence is a violence which is committed when parties are in domestic relationship, sharing same household with an opportunity to commit violence. Here in the present case, when the parties are residing separately since 2002, there was no occasion to commit domestic violence and the petition is clearly not maintainable.