Imtiyaz Ahmed Gove and Others vs Smt. Gulnar

K.N. Phaneendra, J.—The petitioner has approached this Court seeking quashing of the entire proceeding in respect of Crl. Misc. No. 128/2013 on the file of Prl. Civil Judge and J.M.F.C. Court, Dharwad filed by the respondent herein u/s 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ''D.V. Act'' for brevity). The learned counsel for petitioners in support of petition averments has submitted that the respondent has deserted her husband i.e., petitioner No. 1 and started living separately. He further contends that she has executed a "Khulanama" (divorce without intervention of Court). Further it is submitted that even if the entire petition averments are translated into evidence there are no allegations against petitioner Nos. 2 to 5, who are arrayed as respondent Nos. 2 to 5 in the Crl. Misc. No. 128/2013 filed u/s 12 of D.V. Act. Thirdly, he has submitted that though the petitioner No. 1 was not residing in the address given before trial Court i.e., resident at C/o. Gafarsab, Opp. Safa Hall, Mallapur, Dharwad, it is urged that only for the purpose of filing the petition the said false address has been given.

On the other hand, learned counsel for respondent submitted that whatever the factual aspects submitted by either side has to be proved before the trial Court by leading evidence. At this stage when the matter requires evidence, the Court cannot give any finding on any factual aspects and quash the entire proceedings.

I have carefully perused the petition averments filed in Crl. Misc. No. 128/2013. The respondent has averred in petition that she was living with petitioner No. 1 and they lived as husband and wife. It is further stated that the respondents have thrown her out from the matrimonial home and she denies that she has deserted the petitioner No. 1. At para 6 she has stated that respondent Nos. 2 to 5 used to harass respondent-complainant by putting entire work load of the house on her and they were also not providing sufficient food to her. It is also alleged that all of them were regularly threatening and abusing this respondent. Insofar as petitioner Nos. 2 to 5 are concerned, some allegations have been made against them. Whether these allegations amount to domestic violence or not has to be thrashed out by the trial Court on facts.

At this stage, in my opinion, whether the respondent-complainant has been residing at opposite to Safa Hall, Malapur, Dharwad or only for the purpose of lodging petition before the trial Court she has chosen the said place in order to harass or cause inconvenience to the petitioners, has to be thrashed out by the Court only on the basis of the evidence to be led by the parties to the proceedings. There are materials against the petitioners with regard to work load put on the complainant and also not providing proper food to her. All these things have to be looked into by the trial Court in order to ascertain whether the complaint is maintainable against petitioner Nos. 2 to 5 or not. Before filing any objections to the petition, in my opinion, all these allegations cannot be considered and appreciated by this Court for the first time, if it is done it amounts to usurping the jurisdiction of the trial Court. Hence, I refrain from doing that.

On the basis of the petition filed by respondent before J.M.F.C., Dharwad, and on looking into the contention of petitioner, the learned Magistrate has issued notice to the respondents and the order sheet dated 04.01.2014 discloses that the petitioners herein have approached the trial Court by engaging a counsel. Under the above said circumstances, the matter is still at threshold and objections have to be filed by petitioners herein to the main petition and afterwards the Magistrate can hear the objections and then pass appropriate orders. If the Magistrate finds that the allegations made in petition or the materials placed before the Court amply discloses and satisfies the Court that the petition is not maintainable against the petitioners herein, then the Court may pass appropriate orders. If the Court passes orders, the same can be challenged by way of filing an appeal before the competent Court u/s 29 of the D.V. Act. The said Act says that any order passed by Magistrate under the D.V. Act is appealable. Under the above said circumstances, it is too premature stage to quash the entire proceedings against the petitioners herein. Hence, the petition is devoid of merits at this stage. With these observations, petition is dismissed. However, petitioners are at liberty to approach the trial Court by means of filing objections and seek for dismissal of complaint against them. In such an event, learned Magistrate to hear the parties and pass appropriate orders.

In view of dismissal of main petition, I.A. No. 1/2014 does not survive for consideration.