# Nivesh Gupta & Ors v. State of U.P. & Anr

- **Citation:** (2021) 7 ILRA 695
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-06
- **Case number:** Application U/S 482 Cr.P.C. No. 6947 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nivesh-gupta-ors-v-state-of-u-p-anr-47256
- **Pages:** 4

## Headnote

Violence Act, 2005 - Criminal Procedure
Code, Section 482 - Quashing of
proceedings
-
Court
below
merely
registered the complaint filed by opp.
party no. 2 under DV Act - Applicant
sought quashing on ground that parties
not living in 'shared household' therefore
proceedings
under
DV
Act
not
maintainable - Held - whether parties are
living or not not living together in a
shared
household,
would
require
adjudication by the competent court,
based upon a consideration of the case in
its entirety - question of maintainability
would require proper appreciation of facts
of case and thorough deliberation of
issues raised - Claim for protection under
DV Act may not be thrown out at
threshold
- applicants can raise his
defence in the proceedings before the
court below - Proceedings, not liable to be
quashed. (Para 12, 15)

Dismissed. (E-4)

List of Cases cited :

## Text

7 All. Nivesh Gupta & Ors. Vs. State of U.P. & Anr.
695
liability and therefore both the proceedings
can simultaneously be carried out because
of the Pandemic the matter remain pending
here. If the accused are still not arrested the
only indulgence which can be shown. They
may appear before the Court below and the
Court
below
may
consider
their
applications for cancellation of nonbailable warrants.

21. No case for under Section 482
Cr.P.C. is made out. The application is
dismissed with exemplary costs of Rs.
50,000/-.

F. Order

On oral request before this order is
signed, the cost is reduced to Rs.5,000/-
(five thousand).
----------
(2021)07ILR A695
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 6947 of 2021

Nivesh Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shri Krishna Mishra, Sri Shri Krishna
Mishra

Counsel for the Opposite Parties:
A.G.A.

The Protection of Women from Domestic
Violence Act, 2005 - Criminal Procedure
Code, Section 482 - Quashing of
proceedings
-
Court
below
merely
registered the complaint filed by opp.
party no. 2 under DV Act - Applicant
sought quashing on ground that parties
not living in 'shared household' therefore
proceedings
under
DV
Act
not
maintainable - Held - whether parties are
living or not not living together in a
shared
household,
would
require
adjudication by the competent court,
based upon a consideration of the case in
its entirety - question of maintainability
would require proper appreciation of facts
of case and thorough deliberation of
issues raised - Claim for protection under
DV Act may not be thrown out at
threshold
- applicants can raise his
defence in the proceedings before the
court below - Proceedings, not liable to be
quashed. (Para 12, 15)

Dismissed. (E-4)

List of Cases cited :

1. Krishna Bhattacharjee Vs Sarathi Choudhur
(2016) 2 SCC 705

2. Vaishali Abhimanyu Joshi Vs Nanasaheb
Gopal Joshi (2017) 14 SCC 373

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Shri Krishna Mishra,
learned counsel for the applicants through
video link and Ms. Sushma Soni, learned
Additional Government Advocate for the
State-opposite party.

2. The present application seeks to
challenge the order dated 7.11.2020, by
means of which, the complaint registered as
Complaint Case No. 1777 of 2020
(Shambhavi Kesharwani vs. Nivesh Gupta)
filed by the opposite party no. 2, has been
directed to be registered fixing a date and
696 INDIAN LAW REPORTS ALLAHABAD SERIES
the subsequent orders, in terms of which,
further dates have been fixed in the case.
The applicants have also sought quashing
of the proceedings of the complaint case.

3. The only ground, which is sought
to be canvassed to challenge the order
registering the case and also seeking
quashing of the proceedings, is that the
applicants are not living with the opposite
party no. 2 in a 'shared household' and,
therefore, the proceedings under 'The
Protection of Women from Domestic
Violence Act, 2005', would not be
maintainable.

4. Learned A.G.A., appearing for the
State-opposite
party,
submits
that
the
contention, which is sought to be raised by
the applicants with regard to the parties not
living together in a shared household, would
require adjudication by the competent court
and the applicants can raise their defence in
the proceedings before the court below.
Learned A.G.A. further submits that in the
facts of the present case, the complaint filed
by the opposite party no. 2 has merely been
registered, and the present application
seeking quashing of the proceedings, is
clearly premature and is not liable to be
entertained at this stage.

5. The proceedings, which are sought
to be challenged in the present case relate
to 'The Protection of Women from
Domestic Violence Act, 20051, which was
enacted to provide for a more effective
protection
of
the
rights
of
women
guaranteed under the Constitution, who are
victims of violence of any kind occurring
within the family and for matters connected
therewith or incidental thereto.

6. The Statement of Objects and
Reasons
of
the
enactment
contains
reference to the Vienna Accord of 1994 and
the Beijing Declaration and the Platform
for Action (1995), wherein domestic
violence was acknowledged as a human
right issue and serious deterrent to
development.
The
United
Nations
Committee on Convention on Elimination
of All Forms of Discrimination Against
Women (CEDAW) also recommended that
State parties should act to protect women
against violence of any kind especially that
occurring within the family.

7. The provisions under the DV Act
seek to cover those women, who are or have
been in a relationship with the abuser, where
both parties have lived together in a 'shared
household' or related by consanguinity or
marriage or through a relationship in the
nature of marriage or adoption. Relationship
with family members living together as a
joint family are also included. In addition,
women who are sisters, widows, mothers,
single women, or living with the abuser are
entitled to legal protection.

8. The expression 'domestic violence'
under the Act has been defined in a manner
so as to include actual abuse or threat or
abuse that is physical, sexual, verbal,
emotional or economic. Harassment by way
of unlawful dowry demands have also been
covered under the definition. In order to
effectively ensure the protection of women,
the DV Act empowers the Magistrate
conerned to pass protection orders, residence
orders, custody orders, compensation orders
and also issue directions for mandatory
reliefs. The Magistrate is further empowered
to grant an ex-parte order and also to pass
such ad-interim order as he may deem just
and proper.

9. The DV Act was enacted keeping
in view the rights guaranteed under Articles
7 All. Nivesh Gupta & Ors. Vs. State of U.P. & Anr.
697
14, 15 and 21 of the Constitution to provide
for a remedy under the civil law intended to
protect the women from being victims of
domestic violence and to prevent the
occurrence of domestic violence in the
society.

10. The beneficial and affirmative
nature of the legislation was considered in
Krishna
Bhattacharjee
v.
Sarathi
Choudhury2, wherein it was held that
regard being had to the nature of the
legislation, the courts are expected to have
a sensitive approach and before throwing a
petition at the threshold on the ground of
maintainability, there has to be an apposite
discussion and thorough deliberation on the
issues raised. The relevant observations
made in the judgement are as follows :-

"3. Regard being had to the
nature of the legislation, a more sensitive
approach is expected from the courts
whereunder the 2005 Act no relief can be
granted, it should never be conceived of
but, before throwing a petition at the
threshold on the ground of maintainability,
there has to be an apposite discussion and
thorough deliberation on the issues raised.
It should be borne in mind that helpless and
hapless "aggrieved person" under the 2005
Act approaches the court under the
compelling circumstances. It is the duty of
the court to scrutinise the facts from all
angles whether a plea advanced by the
respondent to nullify the grievance of the
aggrieved person is really legally sound
and correct. The principle "justice to the
cause is equivalent to the salt of ocean"
should be kept in mind. The court of law is
bound to uphold the truth which sparkles
when justice is done. Before throwing a
petition at the threshold, it is obligatory to
see that the person aggrieved under such
a legislation is not faced with a situation of
non-adjudication, for the 2005 Act as we
have stated is a beneficial as well as
assertively affirmative enactment for the
realisation of the constitutional rights of
women and to ensure that they do not
become victims of any kind of domestic
violence."

11. Taking a similar view in Vaishali
Abhimanyu Joshi vs. Nanasaheb Gopal
Joshi3, it was held that looking to the
beneficial
nature
of
the
provisions
contained
under
the
DV
Act,
its
interpretation should be in a manner to
effectuate its objects and purpose. The
observations made in the judgement while
interpreting Section 26 of the Act are as
follows :-

"40. Section 26 of the 2005 Act
has to be interpreted in a manner to
effectuate the very purpose and object of
the Act. Unless the determination of claim
by an aggrieved person seeking any order
as contemplated by the 2005 Act is
expressly barred from consideration by a
civil court, this Court shall be loath to read
in bar in consideration of any such claim in
any legal proceeding before the civil court."

12. The question as to whether a
woman
would
be
entitled
to
claim
protection of right in a 'shared household',
would be required to be adjudicated taking
into view the meaning of the expression as
defined under Section 2(s) of the Act,
which would go to show that while
considering a claim for protection of the
right to live in a 'shared household', the
words 'lives' or 'at any stage has lived', in a
domestic relationship, would have to be
698 INDIAN LAW REPORTS ALLAHABAD SERIES
included within the purview. The question
as to whether a claim for protection of right
in a 'shared household' can be sustained,
would have to be, therefore, based upon a
consideration of the case in its entirety.

13. The DV Act has been held to be a
beneficial and an affirmative legislation for
more effective protection of constitutional
rights of women and to ensure that they do
not become victims of any kind of domestic
violence
and
while
interpreting
the
provisions of the Act, a sensitive approach
towards the rights of women is required to
be taken.

14. It would be obligatory on the
Court in a given case to scrutinise the facts
from all angles so as to examine whether
the
plea
advanced
with
regard
to
maintainability is on a sound legal basis or
has been raised solely with a view to
nullify the grievance of the aggrieved
person. The beneficial and the affirmative
object of the enactment would be required
to be taken into view while dealing with
such questions relating to maintainability
and a narrow interpretation, which may
leave the aggrieved woman in distress,
remediless or in a situation of nonadjudication, would have to be eschewed.

15. Having regard to the aforesaid and
looking to the beneficial nature of the
statute and its affirmative purpose, a claim
for protection under the DV Act may not be
thrown out at the threshold and the question
of maintainability would require a proper
appreciation of facts of the case and a
thorough deliberation of the issues raised.

16.

Learned
counsel
for
the
applicants, at this stage, fairly submits that
the applicants would appear before the
court below and file their objections and
contest the case on merits.

17. Having regard to the aforesaid
facts and circumstances of the case, this
Court is not inclined to exercise its inherent
jurisdiction, at this stage.

18. It is made clear that the
observations made hereinabove, are prima
facie in nature and the dismissal of the
present application would not preclude the
applicants from raising all objections,
which may be available to them, including
the point with regard to maintainability of
the proceedings.

19.

Subject
to
the
aforesaid
observations,
the
application
stands
dismissed.
----------
(2021)07ILR A698
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.06.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 12955 of 2021

Vijay Laxmi Yadav ...Petitioner
Versus
State of U.P & Ors. ...Respondents

Counsel for the Petitioner:
Ganga Prasad Srivastava, Rishi Kumar Tripathi

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974 - Rule 5 -
Delay in making a claim for compassionate
grounds appointment dilutes the case of