A single judge at Aurangabad Bench of Bombay High Court held as follows,
From Para 9,
9. In the backdrop of aforesaid provisions, if the precedents are considered, then it is clear that the Hon’ble Apex Court no doubt, in the case of Kamatchi (supra) has held that the proceedings under the DV Act are essentially in the nature of civil proceedings. It is however, pertinent to note that the said judgment is passed in the context of challenge to the order passed by the Trial Court holding that the proceeding fled before it is barred by limitation. It is held in paragraph No. 20 of the judgment that :
“20. It is thus clear that the High Court wrongly equated fling of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been fled within a period of one year of the alleged acts of domestic violence.”
Thus, by implication applicability of the provision of Section 468 of Code of Criminal Procedure is excluded. In respectful view of this Court, in the said judgment, the issue whether or not the provisions of Section 482 of the Code of Criminal Procedure has application to DV Act, was not involved nor decided therein.
From Para 13,
13. No doubt, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked as a matter of course. The Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, has held that if the High Court finds that any proceedings is abuse of process of Court then in that case, non-invocation of provisions of Section 482 of the Code of Criminal Procedure would not be justified. It needs to be recorded that merely because the enactment of DV Act is to provide for more effective protection of the right of woman, it would not mean that a proceedings which is palpably not tenable shall be allowed to be continued. If it is allowed so, then it will be nothing less than sheer abuse of process of Court. Thus, in the considered view of this Court, the present application for quashment of proceeding under DV Act is maintainable.
From Paras 16, 17 and 18,
16. Learned counsel for the respondent opposed the said submission by stating that the said issue cannot be decided at this stage as the same would be subject matter of trial after leading evidence.
17. In order to decide this controversy, it would be relevant to take note of provisions which define “aggrieved person” and “domestic relationship”. Section 2(a) of DV Act defines “aggrieved person” which reads thus :-
2(a) “aggrieved person” means any woman who is, or has been, in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Section 2(f) states “domestic relationship” to be “a relationship between two persons 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 these definitions, domestic relationship between aggrieved person and respondent is sine qua non to maintain any proceeding under DV Act. In order to constitute relationship between two persons as domestic relationship, they must live or 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. Admittedly, the relationship of respondent with applicants No. 4 to 6 is as a family member. Thus, in order to constitute domestic relationship, the family members of the aggrieved person must be living together with aggrieved person as joint family. It is, therefore, essential that the applicant pleads that there is domestic relationship between her and respondent and that the other family members have lived or are living together as a joint family, to maintain any such complaint/application under the provisions of the DV Act.
18. In the instant case, applicants No. 4 to 6 have come out with a specific case that they never lived as joint family with the respondent. In order to substantiate the said contention,documentary evidence such as Aadhar Card etc. is placed on record. Genuineness thereof is not challenged. On the other hand perusal of the complaint/application to the Magistrate does not show pleadings that these applicants have lived or living with the respondent together as members of joint family. Thus, for want of specific pleadings, and in view of unimpeachable evidence placed on record by these applicants showing their separate place of residence, the application/complaint against such applicants could not have been entertained as these applicants do not come within the definition of domestic relationship with the respondent.
From Para 21,
Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023
21. Unfortunately, similar trend seems to have been adopted and proceedings under DV Act are filed at even distant place i.e. place where aggrieved person resides as per Section 2(s) of Act and not only husband and joint family members residing under one roof are made respondents but distant relatives those who have no domestic relationship are also roped in order to cause harassment and to build pressure on husband. In considered view of this Court the observations made by Hon’ble Apex Court, while dealing with offence under Section 498-A of Indian Penal Code, apply to the cases under DV Act, which are filed in clear abuse of process of Court. The present case is squarely covered by illustrations (1), (3) and (7) in case of Bhajanlal (supra) and hence such proceeding cannot be permitted to be continued.