Bombay HC: DV act proceedings cannot be inititated against grand sons to claim monetary and medical relief
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 892 OF 2009
1. Ganesh s/o. Rajendra Kapratwar .. Petitioners Age. 50 years, Occ. Business,
R/o. Talgalli, Degloor,
Tq. Degloor, Dist. Nanded.
2. Abhijeet s/o. Ganeshrao Kapratwar
Age. 24 years, Occ. Service,
R/o. As above.
3. Parijeet s/o. Ganeshrao Kapratwar
Age. 21 years, Occ. Education,
R/o. As above.
1. The State of Maharashtra .. Respondents
2. Sow. Shantabai w/o. Rajendra Kapratwar
Age. 66 years, Occ. Household,
R/o. Talgalli, Degloor,
Tq. Degloor, Dist. Nanded.
Shri Y.R. Barhate, Advocate for the petitioners. Shri K.M. Suryawanshi, A.P.P. for respondent No.1/State. Shri B.G. Deshmukh, Advocate for respondent No.2. CORAM : P.R. BORKAR,J.
DATED : 10.02.2010
ORAL JUDGMENT :-
1. This is a petition for quashing and setting aside proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act” for brevity), against the petitioners at the behest of respondent No.2 bearing Misc. Criminal Application No. 75 of 2009, pending before the Judicial Magistrate, First Class, Degloor and also for quashing and setting aside order dated 26.08.2009, taking cognizance of the complaint and issuing notice to the petitioners.
2. Brief facts giving rise to this petition may be stated as below :-
. Admittedly respondent No. 2 is mother of petitioner No.1 and petitioner No.1 is father of petitioner Nos. 2 and
3. It is also not disputed that respondent No.2 has two more sons besides petitioner No.1. Respondent No.2 approached the Court of Judicial Magistrate, First Class, Degloor under section 12 (1) of the Domestic Violence Act. It is stated (3)
therein that respondent No.2 is residing with her second son Anil. Her youngest son Ram is serving at Chandigarh, Haryana along with his family. Petitioner No.1 has his business of finance. His elder son Abhijeet who is petitioner No.2 is serving in Delhi as an Engineer and earning Rs. 30,000/- per month. However, the petitioners are not providing maintenance to respondent No.2. It is further stated that the petitioners are disputing with respondent No.2 on trifle matters and causing her mental torture. The husband of respondent No.2 purchased a plot at Vishal Nagar, Degloor and constructed a house. But the petitioners were threatening to dispossess her forcibly and she is likely to lose shelter. It is further stated that respondent No.2 is suffering from so many diseases such as blood pressure. As there is cataract in her eye, doctor advised surgery. Due to lack of money, respondent No.2 is unable to undergo surgery and therefore she wanted maintenance, so also medical expenses from the petitioners.
3. Along with petition the original application under Domestic Violence Incident Report, Application under Section 23 (1) of the Domestic Violence Act and affidavit are (4)
enclosed. Considering the documents the learned Judicial Magistrate, First Class, Degloor, issued notices to the petitioners by order dated 26.08.2009 and same is challenged in this matter.
4. This Court by order dated 1st October, 2009 refused to entertain the petition so far as petitioner No.1 is concerned and therefore the petition was dismissed as against petitioner No.1. So far as petitioner Nos. 2 and 3 are concerned, they being grand-sons of respondent No.2, the petition is to be considered and notice before admission was issued to respondent No.2
5. Heard Adv. Shri Y.R. Barhate for the petitioners, A.P.P. Shri K.M. Suryawanshi for respondent No.1 and Adv. Shri B.G. Deshmukh for respondent No.2.
6. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission.
7. The learned advocate for the petitioner argued that (5)
petitioner Nos. 2 and 3 are grand-sons of respondent No.2 and as such during lifetime of petitioner No.1 i.e. their father, they are not liable to pay maintenance, nor they are duty bound to provide medical expenses for cataract operation of respondent No.2. He also pointed out that it is not case of respondent No.2 that the petitioner No.1 is not in a position to pay maintenance or he is not able to pay medical expenses because of old age, unemployment or disability etc. It is further argued that when petitioner No.1 is there, respondent No.2 will not be entitled to get medical expenses or maintenance from petitioner Nos. 2 and 3. Thus proceedings under the provisions of Domestic Violence Act against petitioner Nos. 2 and 3 is an abuse of process of law.
8. It is argued that petitioner No.2 is residing at Nioda, (U.P.) and he is serving there and not residing at Degloor; whereas petitioner No.3 is residing with petitioner No.1 at Degloor. On the other hand the learned advocate for respondent No.2 argued that as per Section 2-A of the Domestic Violence Act “aggrieved person” is defined as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any (6)
act of domestic violence by the respondent. Phrase “domestic relationship” is defined under section 2 (f) of the said Act as 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. “Domestic violence” is defined in section 3 of the Act.
9. The only allegation regarding domestic violence is that the petitioners quarreled with respondent No.2 on petty matters and/or threatened to dispossess her from the house, which was constructed by her husband on the plot purchased by him. It is nobody’s case that the cataract which requires surgical operation is a result of any domestic violence. So far as maintenance and medical expenses are concerned, section 20 of the Domestic Violence Act is relevant and it lays down that while disposing of application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic (7)
violence and such relief may include, but not limited to the medical expenses.
10. In this case there is no dispute that petitioner No.1 Ganesh was liable to pay maintenance and he would also be liable to incur medical expenses as mentioned in section 20 (1) (b) of the Domestic Violence Act. However, so far as petitioner Nos. 2 and 3 are concerned, under Hindu Adoptions and Maintenance Act, 1956, as grand-sons they would have been liable to pay maintenance under section 22 (1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not not been alive. When the father of petitioner Nos. 2 and 3 is alive and is capable of paying maintenance, section 22 (1) of the Hidu Adoptions and Maintenance Act, will not be applicable and under section 20 of the Hindu Adoptions and Maintenance Act, petitioner No.1 would be liable to pay maintenance to his mother i.e. respondent No.2. As per section 20 (b) of the Domestic Violence Act, the maintenance includes even medical attendance and treatment.
11. So in the above said circumstances, the proceedings under section 12 (1) may not be tenable against petitioner (8)
Nos. 2 and 3 so far as relief of maintenance and medical expenses are concerned. However, residence order under section 19 of the Domestic Violence Act can be passed against all the petitioners. Section 17 which recognizes right to reside in a shared house. It is argued before this Court by the learned advocate for the petitioners that respondent No.2 has been residing separately for 10 years. In-fact, in the Domestic Violence Incident Report, in para 4 it is specifically stated that applicant has been residing with her second son Anil. However, this would be a question of fact and the parties will have to go before the Magistrate, so far as direction is sought against forcible dispossession is concerned. It would be a question of fact whether for 10 years respondent No.2 has been residing separately, and there is threat of her dispossession from the house as claimed.
12. So, in these circumstances, this petition is allowed partly. The petition is dismissed so far as petitioner No.1 is concerned as stated earlier. The proceedings against petitioner Nos. 2 and 3 may proceed, further only in respect of reliefs which could be granted in sections 18 and 19 of the Domestic Violence Act. (9)
13. The Criminal Writ Petition accordingly disposed of. [P.R. BORKAR,J.]