Allowed

Kalpana Santosh Jadhav v. Hanma @ Seema Govindrao Jadhav and Ors.

Bombay HC27 Sept 2013WP/63/2013

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an order deleting six women from the respondent list of a Section 12 application under the Domestic Violence Act. The Single Judge held that women are not excluded from the definition of 'respondent' and that the proceedings are civil, not criminal, so sufficient grounds for criminal issues were not relevant.

What did the court decide?

The order dated 05.11.2012 passed by the Additional Sessions Judge was set aside, and the order dated 06.06.2012 passed by the Magistrate was restored.

Kalpana Santosh Jadhav Vs Hanma @ Seema Govindrao Jadhav… — Domestic Violence | Bombay HC (2013)

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Cri.W.P.63.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 63 OF 2013

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Sau. Kalpana W/o Santosh Jadhav Age : 28 years, Occ : Household, R/o At Present Kamtha (Bk), Tq. Ardhapur, Dist. Nanded.

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..PETITIONER

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VERSUS

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Hanma @ Seema W/o Govindrao Jadhav Age : 39 years, Occ : Household,

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Govindrao S/o Shankarrao Jadhav Age : 41 years, Occ : Business,

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Both R/o Dharmabad, Tq. Dharmabad, Dist. Nanded.

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Shobha W/o Chandrakant Dakhore Age : 37 years, Occ : Household,

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Chandrakant S/o Madhavrao Dakhore Age : 39 years, Occ : Service, Nos. 3 and 4 R/o Deep Nagar, Mukhed, Tq. Mukhed, Dist. Nanded.

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Radha @ Anuradha W/o Dayanand Suryawanshi, Age : 36 years, Occ : household,

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Dayanand S/o Sagar Suryawanshi Age : 38 years, Occ : Business, Nos. 5 and 6 R/o Bhainsa (Mandal), Adilabad, Dist. Nanded.

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Cri.W.P.63.13.odt

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7. The State of Maharashtra

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..RESPONDENTS

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Advocate for Petitioner : Mr. Gaikwad Anil M. Advocate for Respondent Nos. 1 to 6 : Mr. S.C. Bhosale APP for Respondent No. 7 : Mr. P.N. Muley

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CORAM : ABHAY M. THIPSAY, J. Dated: September 27, 2013

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ORAL JUDGMENT :-

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Rule. By consent, Rule made returnable forthwith. By consent, heard finally.

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The petitioner has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (Hereinafter referred to as “the Domestic Violence Act”) against 8 persons, including the respondent nos. 1 to 6 herein. Respondent Nos. 1 to 6 made an application before the learned Magistrate who is seized of the matter, praying that ‘their names be deleted from the array of the respondents.’ The learned Magistrate, by his order dated 06.06.2012, rejected the said application. While rejecting the application, the learned Magistrate made it clear that the observations made in the order were only tentative and were in the context of the prayer for deletion of names of the said respondents from the proceedings. The Magistrate made it clear that whether ‘domestic violence’ had taken place, would be

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Cri.W.P.63.13.odt

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considered only after the trial.

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Against this order of the Magistrate, the respondents approached the Court of Sessions by filing a revision application. The learned Additional Sessions Judge allowed the revision application and directed the names of the said respondents to be deleted.

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Being aggrieved by the order passed by the Sessions Court in revision, the petitioner has approached this Court invoking its constitutional jurisdiction.

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One of the contentions raised by the respondents, who are women, was that in view of the definition of the term ‘respondent’ as given in the said Act, the proceedings against them were not maintainable. This contention has been specifically dealt with and turned down by the Supreme Court of India in the case of Sandhya Manoj Wankhade V/s Manoj Bhimrao Wankhade

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and others” {2011(3) Mh.L.J. (Cri.) 73} . Since the said decision of the Supreme Court of India was not pointed out to the learned Additional Sessions Judge, who heard the revision application, he accepted the contentions of the women respondents.

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The learned Additional Sessions Judge went on to discuss, whether or not, there were sufficient grounds for proceedings against the said respondents and by taking a view that

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4 Cri.W.P.63.13.odt

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there were no such grounds, directed the names of the said respondents to be deleted from the application under Section 12 of the Domestic Violence Act.

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As aforesaid, the view taken by the Additional Sessions Judge that women will not be covered by the definition of the term ‘Respondent’, as given in the Domestic Violence Act, is clearly contrary to law. As regards his opinion that there were no sufficient grounds for proceeding against the respondents, the question is whether the approach of the learned Additional Sessions Judge in that regard was justified. The question is whether the considerations which should weigh in deciding whether the process to answer a criminal charge has been rightly issued, should arise in proceedings instituted on the basis of Section 12 of the Domestic Violence Act.

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The proceedings under the provisions of the said Act cannot be equated with a criminal trial. Therefore, the considerations, whether or not there were sufficient grounds for proceedings in a given case, ought not arise in such proceedings. The proceedings are akin to civil proceedings. The Additional Sessions Judge has misdirected himself in applying the principles which are brought in picture when a challenge to the correctness of the order issuing process to appear and answer to the charge of an offence, needs to be decided.

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5 Cri.W.P.63.13.odt

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Even otherwise, whether the allegations levelled by the petitioner would ultimately be proved, could have been decided only after the evidence would be recorded. In the revisional jurisdiction, therefore, the Additional Sessions Judge ought not to have interfered with the order passed by the Magistrate, which actually did not decide any rights of any of the parties.

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Since the order passed by the Additional Sessions Judge proceeds on a wrong view of the legal position, the same is required to be interfered with, in the constitutional jurisdiction of this Court. However, in view of the submissions made by the learned counsel for the respondent Nos. 1 to 6 and keeping in mind that the personal presence of these respondents before the Magistrate during the proceedings would not be necessary, it is directed that the Magistrate shall not insist on their personal presence during the proceedings before him and shall permit them to remain present through a duly instructed Advocate.

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In the result, the Petition is allowed. The order dated 05.11.2012 passed by the Additional Sessions Judge is set aside, and the order dated 06.06.2012 passed by the Magistrate is restored.

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The learned Magistrate shall not, however, insist on the personal presence of the respondent Nos. 1 to 6 herein, during the proceedings; and shall permit them to appear through a duly

Cri.W.P.63.13.odt

instructed Advocate.

The Petition is allowed in the aforesaid terms.

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Rule is made absolute accordingly.

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Sd/-

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( ABHAY M. THIPSAY, J. )

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sga/-

Kalpana Santosh Jadhav v. Hanma @ Seema Govindrao Jadhav and Ors.

Case brief

What is this about?

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Kalpana Santosh Jadhav v. Hanma @ Seema Govindrao Jadhav and Ors.

Case brief

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What did the court decide?

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