# Smt. Sarvesh Verma & Anr v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-29
- **Case number:** Application U/S 482 No. 14600 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarvesh-verma-anr-v-state-of-u-p-anr-45432
- **Pages:** 4

## Headnote

(A) Criminal law - The Indian Penal Code -
Section 498A - Protection of Women from
Domestic Violence Act, 2005 - Section 12
- Husband or relative of husband of a
women subjecting her to cruelty - -
Application of magistrate , Section18 -
Protection orders, Section 23 - power to
grant interim and ex parte orders - U.P.
Government Servant Conduct Rules, 1956
- Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action
(1995) - domestic violence is undoubtedly
a human rights issue - State parties
should act to protect women against
violence of any kind, especially that
occurring within the family .Para - 7

Accusation is of domestic violence by mother-inlaw and father-in-law - against widowed lady
with her two minor daughters - Contention said
in the application is to be adjudged by the
Magistrate and for that an opportunity of
adducing evidence is always needed. Para - 8

HELD:- This court may never give direction for
a decision without giving opportunity of hearing
or having evidence. Hence there is no abuse of
process of law.Para - 8

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-

## Text

11 All. Smt. Sarvesh Verma & Anr. Vs. State of U.P. & Anr.
77
Case No. 370 of 2019, State vs. Sachin
Kumar Srivastava (arising out of Case
Crime No. 412 of 2018) under Section
406,506,420
I.P.C.,
P.S.
Gorakhnath,
District Gorakhpur pending before the
Additional Chief Judicial Magistrate-I,
Gorakhpur are hereby quashed. The
Additional Chief Judicial Magistrate-I,
Gorakhpur
shall
ensure
that
an
endorsement is made in the G.D. of the
police
station
concerned
that
the
proceedings of this case have been
quashed under orders of this Court.

14. It will be open to the second
Opposite Party to recover her dues in
accordance with law, in the manner she
may be advised.

15. Let a copy of this order be
forwarded to the Registrar General for
necessary action.

16. Let a copy of this order be
forwarded to the Additional Chief Judicial
Magistrate-I,
Gorakhpur
through
the
District & Sessions Judge, Gorakhpur for
compliance by the Office.
----------
(2020)11ILR A77
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 14600 of 2020

Smt. Sarvesh Verma & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anil Kumar Pandey

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

(A) Criminal law - The Indian Penal Code -
Section 498A - Protection of Women from
Domestic Violence Act, 2005 - Section 12
- Husband or relative of husband of a
women subjecting her to cruelty - -
Application of magistrate , Section18 -
Protection orders, Section 23 - power to
grant interim and ex parte orders - U.P.
Government Servant Conduct Rules, 1956
- Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action
(1995) - domestic violence is undoubtedly
a human rights issue - State parties
should act to protect women against
violence of any kind, especially that
occurring within the family .Para - 7

Accusation is of domestic violence by mother-inlaw and father-in-law - against widowed lady
with her two minor daughters - Contention said
in the application is to be adjudged by the
Magistrate and for that an opportunity of
adducing evidence is always needed. Para - 8

HELD:- This court may never give direction for
a decision without giving opportunity of hearing
or having evidence. Hence there is no abuse of
process of law.Para - 8

Application u/s 482 Cr.P.C. dismissed.
(E -7)

List of Cases Cited:-

1. Ram Singh Tomar & ors. Vs Smt. Bhoori Bai
and others, 2017 Cr.L.J. 3455,

2. S. R. Batra & ors. Vs Taruna Batra, (2007) 3
SCC 169,

3. Vimlaben Ajeet Bhai Patel Vs Vatsalben Ashok
Bhai Patel, (2004) SCC 469

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. Heard learned counsel for the
applicants and learned A.G.A. representing
the State. Perused the records.
78 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This application under Section 482
Cr.P.C. has been filed by applicants Smt.
Sarvesh
Verma
(mother-in-law)
and
Vishambhar Dayal Verma (father-in-law)
with a prayer for setting aside order dated
17.10.2019 passed in Complaint Case No.
533 of 2016, Smt. Rakhi Verma Vs. Smt.
Sarvesh Verma and others, u/s 12 of the
Protection of Women from Domestic
Violence Act, 2005, pending in the court
Special C.J.M., Agra, with a further prayer
of staying further proceeding of above
mentioned complaint case.

3. Learned counsel for the applicants
argued that a preliminary objection was
filed in the trial court with specific mention
that husband of O.P. No. 2 has died and
there was no joint property or Hindu
Undivided Family Property entitling the
deceased husband to inherit the same.
Rather the alleged house was exclusively
owned by applicant no. 1, Smt. Sarvesh
Verma, as she purchased the same vide
registered sale deed in her name and
mother-in-law may not be entitled to
maintain widowed daughter-in-law nor
husband of O.P. No. 2 was entitled for any
share in above house. Moreso, O.P. No. 2
and her two daughters are not residing in
above house and they are having no interest
in it. Nothing was there as property of
Hindu
Undivided
Family
for
which
deceased husband of O.P. No. 2 was having
any share for inheritance. Hence neither the
application u/s 12 of the Protection of
Women from Domestic Violence Act, 2005,
was
maintainable
nor
interim
award
application u/s 23 of the aforesaid Act,
which was heard and was rejected. There
was a finding of non-entitlement of
maintenance by O.P. No. 2. There were
precedents of Apex Court passed in Ram
Singh Tomar and others Vs. Smt. Bhoori
Bai and others, 2017 Cr.L.J. 3455, S. R.
Batra and others Vs. Taruna Batra,
(2007)3 SCC 169, and Vimlaben Ajeet
Bhai Patel Vs. Vatsalben Ashok Bhai
Patel, (2004) SCC 469, wherein the Apex
Court has held that right to maintain the
wife is the liability of the husband and
father-in-law and mother-in-law are not
personally liable but for limited extent to
the property, which was under joint
ownership and capability of inheritance by
the deceased husband. In view of above
cited laws, there was no right to O.P. No. 2
and this preliminary objection was not
decided by the trial court. Hence a
proceeding u/s 482 Cr.P.C. No. 30320 of
2019, Smt. Sarvesh Verma and another Vs.
State of U.P. and three others, was filed,
wherein direction by a coordinate Bench
dated 06.08.2019 was there for disposal of
preliminary objection preferably within
three months. In compliance of the above
order, impugned order dated 17.10.2019
has been passed by the Special C.J.M.,
Agra, but no finding about maintainability
was given and it was again kept pending to
be decided after evidence. Hence this
application with above prayer for setting
aside the impugned order, which has been
passed under abuse of process of law.

4. Learned AGA has vehemently
opposed.

5. From the very perusal of the
impugned order passed by the Magistrate
dated 17.10.2019 it is very well there that
all the citations pressed by learned counsel
for applicants were written in it. But the
factual matrix, as to whether the applicants
were entitled to have their protections
enumerated u/s 18 of the aforesaid Act or
not, can be decided only by way of
evidence. Hence one opportunity for giving
evidence by applicants was there. Meaning
thereby the trial court has decided the
11 All. Smt. Sarvesh Verma & Anr. Vs. State of U.P. & Anr.
79
preliminary objections raised by applicants
with regard to maintainability of the
complaint, which has already been decided
by his predecessor while rejecting the
application u/s 23 of the Act. But for claim
for protection u/s 18 of the Act is different.
Protection under several clauses of Act for
widow of deceased son of the applicants as
well as for her two daughters has been
claimed. It has specifically been written in
the application moved u/s 12 of the Act that
since marriage the complainant Rakhi
Verma along with her husband was residing
in the house as a property of Hindu
Undivided Family headed by applicant no.
2 Vishambhar Dayal Verma, father-in-law,
wherein Smt. Sarvesh Verma is mother-inlaw, and she was with her belongings in
above house, where her two daughters were
born and they all are residing in the first
floor of above house. Her Stridhan has
been usurped by her in-laws. These factual
contentions are to be decided only on the
basis of factual evidence.

6. In matrix that house was owned by
Smt. Sarvesh Verma, got purchased by way
of said deed, is being said by applicants,
but the nucleus for purchase of above house
by Smt. Sarvesh Verma has not been said
before the trial court as well as before this
Court in the present case. It is a question of
fact, as to whether Smt. Sarvesh Verma was
having her own earnings and was capable
to make purchase of the house by her own
support and property or it has been
purchased in her name by her husband
Vishambhar Dayal Verma, who was in U.P.
Police Service and under love and affection
or by way to evade liability under U.P.
Government Servant Conduct Rules, 1956,
in the name of his wife. The very fact, as to
what was the matrix, the grand sum from
which this property was purchased and
from where it came as an output was
personal or it was from Hindu Undivided
Family property is to be seen by the trial
court. Hence, as residence of complainant
in above house along with her minor
daughters has been said by complainant
and it has been denied by applicants. This
is also a question of fact to be seen by the
trial court. Accordingly, the trial court vide
an elaborate order has fixed a date for
adducing evidence by applicants for
making judicial decision about facts stated
and to be decided in between parties.

7. The very object of legislation of
The Protection of Women from Domestic
Violence Act, 2005, has been given by
legislature is the implementation of the
Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action
(1995) have acknowledged that domestic
violence is undoubtedly a human rights
issue. The United Nations Committee on
Convention on Elimination of All Forms of
Discrimination Against Women in its
General
Recommendations
has
recommended that State parties should act
to protect women against violence of any
kind, especially that occurring within the
family. The phenomenon of domestic
violence in India is widely prevalent but
has remained invisible in the public
domain. The civil law does not address the
phenomenon in its entirety. Presently,
where a woman is subjected to cruelty by
her husband or his relatives, it is an offence
under section 498A of the Indian Penal
Code. In order to provide a remedy in the
civil law for the protection of women from
being victims of domestic violence and to
prevent
the
occurrence
of
domestic
violence in the society the Protection of
Women from Domestic Violence Bill was
introduced in the Parliament. Meaning
thereby the preamble of this is an Act to
provide for more effective protection of
80 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Hence under this Act
purpose is to protect women from violence
of any kind either direct or incidental
therewith. Hence the very purpose of this
Act is to protect women from domestic
violence. Hence the whole act is to be seen
under the present scenario.

8. The accusation is of domestic
violence by mother-in-law and father-in-law
and that is against widowed lady with her two
minor daughters. Hence the very contention
said in the application is to be adjudged by
the Magistrate and for that an opportunity of
adducing evidence is always needed. This
court may never give direction for a decision
without giving opportunity of hearing or
having evidence. Hence there is no abuse of
process of law. Accordingly, this application
merits its dismissal.

9. Dismissed as such.
----------
(2020)11ILR A80
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 14988 of 2020

Desh Deepak Dwivedi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anand Prakash Yadav, Kavita Yadav, Sri
Krishna Nand Yadav

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

(A) Criminal law - Indian Penal Code,
1860 - Sections 498A, 323, 504, 506 -
3/4 Dowry prohibition Act,1961 - demand
of dowry, cruelty with regard to it and
assault with abuse of criminal intimidation
- Code of criminal procedure, 1973 -
Section
156
-
investigation
in
to
cognizable
cases
-

Section
200
-
Examination of complainant , Section 202
- Postponment of issue of process ,
Section 203 - Dismissal of complaint -
Section 204 - issue of process - order
passed by the Magistrate was against the
proposition of law on the point of
summoning u/s 204 Cr.P.C. while deciding
the Criminal Revision - impugned order of
the learned Sessions Judge, is well in
accordance with law - C.J.M. rightly set
aside the order.

Divorce
petition
filed
by
applicant
-
allegations - complaint has been filed with
contention of demand of dowry, cruelty
with regard to it, ill-treatment as well as
assault, abuse and intimidation - contention
of complainant very well reiterated in the
statement
u/s
200
Cr.P.C.
-
further
corroborated by two witnesses in their
statements recorded u/s 202 Cr.P.C. -
enquiry u/s 202(1) Cr.P.C. by a Gazetted
Police
Officer
was
got
conducted
by
Magistrate and report of Gazetted Police
Officer i.e. Dy. S.P. - attempt for its
disposal by way of mediation by District
Probation Officer made - unsuccessful
.Para - 8

HELD:- The Officer, presiding as C. J. M.,
who has passed the order dated 17.3.2020
in Complaint Case is either not in a position
to
appreciate
law
or
visualize
the
observations made by learned Sessions
Judge,
or
is
with
some
extraneous
influence.
Hence
the
learned
Sessions
Judge, is being expected to make file to
some
other
Court
of
Magistrate
for
disposal.Para - 10

Application u/s 482 Cr.P.C. dismissed.
(E -7)