Wife can claim relief or not under domestic violence Act on same allegation on basis of husband is acquitted U/S 498A of IPC

The considerations in the prosecution under Section 498­A of the Indian Penal Code are different from the considerations while dealing with an application under Section 12 of the Domestic Violence Act, 2005. “Cruelty” as explained/contemplated by Section 498­A of the Indian Penal Code is different from the “domestic violence” as defined by Section 3 of the Domestic Violence Act, 2005. “Economic abuse” as defined by clause (iv) of Explanation I of Section 3 of the Domestic Violence Act, 2005 cannot be an offence under Section 498­A of the Indian Penal Code. The denial of right of shared household or denial of alternate accommodation to the wife or denial of monetary assistance to the wife will not constitute an offence punishable under Section 498­A of the Indian Penal Code. Considering the facts of the case, in my view, the submissions made on behalf of the applicant relying on the provisions of Section 300 of the Code of Criminal Procedure, are misdirected. Apart from the fact that the applicant is acquitted of the charge of commission of offences punishable under Section 498­A and Section 323 of the Indian Penal Code because of insufficiency of evidence, in my view, the claim made by the applicant under Sections 17, 19 and 20 of the Domestic Violence Act, 2005 is not hit by the principles of res judicata and by the findings in the judgment given in Regular Criminal Case No.129/2014. 11. There cannot be any dispute that the principles of res judicata are applicable to criminal proceedings and the maxim “resjudicata provertitate accipitur” will apply to the proceedings under Section 12 of the Domestic Violence Act, 2005 as the proceedings are quasi­civil quasi­ criminal in nature. However, the point which is required to be considered is whether the non­applicant can seek reliefs under Section 17, Section 19 and Section 20 of the Domestic Violence Act, 2005 on the basis of the same allegations, for which the applicant was prosecuted under Section 498­A and Section 323 of the Indian Penal Code. Though, in the application under Section 12 of the Domestic Violence Act, 2005, the non­applicant has reproduced the same allegations against the applicant which were made in the complaint made to the police station on the basis of which the applicant is prosecuted for offences under Section 498­A and Section 323 of the Indian Penal Code, the pleadings/averments for seeking reliefs under Section 17, Section 19 and Section 20 of the Domestic Violence Act, 2005 are different. The relevant pleadings in support of the reliefs claimed by the non­applicant are in paragraph No.60 of the application, as follows : “60. That the applicant is not having any source of income and she is not doing any job and her children are also dependent on her. It is to submit that the respondent is lecturer earning good salary but not sparing single pai for the applicant and the children. That the respondent is leading his luxurious life and depriving the applicant and her children from minimum requirements of the life. It is to submit that the respondent No.1 can easily pay Rs.20,000/­ to the applicant for the maintenance of the applicant and her children. It is therefore prayed that Hon'ble Court may grant Rs.20,000/­ as maintenance to the applicant.” 12. The entitlement of the non­applicant for the reliefs sought by her and the liability of the applicant to provide shared household or to make an alternate arrangement for residence of the non­applicant and to provide monetary assistance for food, clothes, medical, travelling and miscellaneous items will have to be adjudicated by the Court considering the application under Section 12 of the Domestic Violence Act, 2005. Learned Magistrate who has decided the Regular Criminal Case No. 129/2014 could not have dealt with these issues. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APL) NO.497 OF 2015 Jaiprakash Madhukarrao Sahurkar, V Sarika Jaiprakash Sahurkar CORAM : Z.A. HAQ, J. DATED : 29th FEBRUARY, 2016. Citation: 2016 ALLMR(CRI)5008