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Hon’ble Justice Indira Banerjee and Justice M.R Shah of Supreme Court on 4th October, 2019 passed an order in the matter of Kamlesh Devi v. Jaipal & Others, that domestic violence complaint cannot maintainable in court, if the parties are not living together in a shared house.
The petitioner and respondents are the family members of the same family and have been living in the same premises. Husband of the petitioner is retired from BSF and she has three daughters, namely, Urmila, Anusaya and Gaytri. Anusaya and Gaytri are unmarried daughters of the petitioner and have been going to Krishna Nagar College for their study. Further respondents have made a gang and are quarrelsome persons and whenever daughters of petitioner i.e. Anusaya and Gaytri went to their college, respondents Jaipal, Krishan Kumar and Sandeep followed them and tease them and also did obscene activities. Husband of the petitioner Sube Singh also made a complaint to Sarpanch of Village Gaud against the respondents then in presence of respectable of the village, the respondents also apologized in writing on 05th August, 2008. Thereafter, they remained normal for some time but afterwards again started those obscene activities. The complaint was under section 17, 18, 19, 20, 21, 22, 23, and 26 of the Protection of Women from Domestic Violence Act, 2005.
On 22nd October, 2012 Judicial Magistrate (First Class) dismissed a complaint filed by the petitioner under the provision of the Protection of Women from Domestic Violence Act, 2005. An appeal lies against the order of Judicial Magistrate Court (First Class) in High Court of Punjab and Haryana, Chandigarh under section 401 of Criminal Procedure Code. The High Court also dismissed the petition. Revision petition is filed under 401 of Criminal Procedure Code, 1973. While dismissing the petition the High Court has found that the ingredient establishing the domestic Violence charges are wholly absent in this case. The petitioner and the respondent are not persons living together in a shared household. There is a vague allegation that the respondents are family members. There is not a whisper of the respondent with the petitioner, they are neighbours.
The Supreme Court while dismissing the petition said that, it transpires that the offence, if any, which has been alleged, falls in the provision of IPC, 1860 and it does not attract the provision of the Domestic Violence Act, 2005.
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