Tukaram and Others vs Sheelabai

Aravind Kumar, J.—1. Heard Sri Sanjay A. Patil, learned Advocate appearing for petitioners and Smt. Umadevi S. Babshetty, learned Advocate for Sri Sharanabasappa K. Babshetty, learned Advocate appearing for respondent-complainant. Perused the records.

Petitioners are seeking for quashing of the order dated 17.07.2015 passed by the Civil Judge and JMFC at Bhalki, in Criminal Miscellaneous No. 492/2015 and for quashing of the entire criminal proceedings pending in Criminal Miscellaneous No. 492/2015.

Briefly stated facts are as under:

Son of petitioner Nos. 1 and 2 by name Sri Ramrao Amadabade married respondent-complainant in the year 1994 and out of said wedlock, four children have been born and eldest son is aged about 22 years. Respondent who is the wife of said Sri Ramrao Amadabade i.e., daughter-in-law of petitioner Nos. 1 and 2 filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ''Act'') alleging that after the birth of fourth child, her husband-Ramrao Amadabade started neglecting her and was not maintaining her properly and had thrown her out of matrimonial home which is situated at Bhatramba village, Bhalki Taluk. She has further alleged in her complaint that she is residing at Bhalki along with her children for educational purpose and her husband is not providing her finance to maintain herself and her children and she has no source of income. Accordingly, complaint came to be filed before Child Development Protection Officer (for short ''CDPO'') on 29.06.2015. Said complaint came to be forwarded by CDPO to the jurisdictional Magistrate Court on 29.06.2015. Thereafter, cognizance was taken by registering the same and directed issuance of notice to petitioners herein and respondent through CDPO vide order dated 17.07.2015. Questioning the same, petitioners are before this Court.

It is the contention of Sri Sanjay A. Patil, learned Advocate appearing for petitioners that petitioners are no way connected to the marital life of respondent and her husband, since complainant, her husband and her children are residing separately after the partition which took place in the year 2002 i.e., on 05.07.2002 itself and as such, continuation of proceedings against petitioners under the Act would be abuse of process of Court. It is further contended that properties came to be allotted to the husband of complainant from out of the joint family properties and complainant is getting rent of Rs. 1,00,000/- per annum and she is also enjoying income from agricultural land to an extent of Rs. 5,00,000/- which is self-sufficient to maintain herself and her children and that apart, she is getting a sum of Rs. 30,000/- per annum as rent towards the house situated at Bhatramba village. It is further contended that petitioner Nos. 1 and 2 are aged persons and living separately away from the complainant and her family members. It is also contended that petitioner No. 3 is married and living separately with her husband-petitioner No. 4 and petitioner No. 5 is residing along with petitioner Nos. 1 and 2 and his wife petitioner No. 6 and their children and they are in enjoyment of respective shares allotted to them under partition deed dated 05.07.2002 and for no fault of them, they have been directed to appear before the jurisdictional Court only because they are related to respondent''s husband and issuance of notice to petitioners would amount to abuse of process of law. In support of his submission, he has relied on the judgment of Hon''ble Apex Court in the case of Preeti Gupta and another Vs. State of Jharkhand and another reported in , (2010) 7 SCC 667.

Per contra, Smt. Umadevi S. Babshetty, learned Advocate appearing for respondent submits that on account of physical and mental torture meted out to respondent-complainant, she has filed a complaint under Section 12 of the Act and it is for the jurisdictional Court to consider the evidence that would be placed by the complainant to ascertain as to whether petitioners have committed offences alleged by the complainant and at this stage, proceedings ought not to be quashed. Hence, she prays for dismissal of the petition.

Having heard the learned Advocates appearing for parties and on perusal of the records and on perusal of complaint which is enclosed to the communication forwarded by CDPO to the Civil Judge and JMFC, Bhalki, which has since been registered as Criminal Miscellaneous No. 492/2015 would indicate that complaint is in a printed format and it would indicate that respondent has alleged that petitioners have abused her in foul language and have taunted her and were preventing her from going out of their house while she was residing at matrimonial home (Bhatramba) and not providing money to maintain herself and her children apart from allegation of threatening her to kill her. On these allegations, she has filed a complaint before CDPO which has since been forwarded to the jurisdictional Magistrate Court.

There is no dispute to the fact that there seems to be discordant note between the complainant and her husband-Sri Ramrao Amadabade. It is also not in dispute that there was a partition which took place between family members of petitioner No. 1 way back in the year 2002 i.e., on 05.07.2002 and pursuant to the same, properties have been divided by all the members of the family including husband of the complainant. In the complaint filed before CDPO, complainant has clearly stated that she is residing at Bhalki. Petitioner Nos. 1, 2, 5 and 6 have been residing at Bhatramba village which is at a distance of 20 kilometers (approximately), as fairly admitted by Smt. Umadevi S. Babshetty, learned Advocate appearing for respondent. As to the actual act of violence perpetrated by these petitioners who are residing at a distance of 20 kilometers from the place where complainant is residing is not spelled out in the complaint. Section 3 of the Act defines as to what amounts to domestic violence. It not only includes physical abuse, sexual abuse, verbal and emotional abuse but also economic abuse and it would also include aggrieved person being perforced to yield to unlawful demands. Thus, contents of complaint should prima facie indicate that there has been such violence as defined under Section 3 of the Act. When facts on hand are examined, it would indicate that complainant has been residing separately at Bhalki and she is a permanent resident of Bhalki from long number of years and her major son who is aged about 22 years is also residing with her. Hence, burden is on the complainant to prima facie indicate as to the actual violence which was perpetrated on her by the accused persons. In the absence of any prima facie material, complainant cannot be heard to contend that omnibus statement made in the complaint itself is to be construed as amounting to domestic violence and attracts provision of Section 12 of the Act. The Hon''ble Apex Court in the case of Preeti Gupta and another Vs. State of Jharkhand and another reported in , (2010) 7 SCC 667, has sounded word of caution in this regard. It has been held by the Hon''ble Apex Court that allegations of harassment by husband''s close relations who had been living in different cities and never visited or rarely visited the place where the complainant/wife resided would have an entirely different complexion. Such allegations of the complainant are required to be scrutinized with great care and circumspection.

Keeping this principle laid down by the Hon''ble Apex Court in mind, when the facts on hand are examined, as observed hereinabove and at the cost of repetition it is to be noticed that petitioner No. 3 is sister-in-law of complainant (husband''s sister) and she is married and residing in her matrimonial home along with her husband who has also been arraigned as accused No. 4 in the complaint. They are neither residing with petitioner Nos. 1 and 2 nor respondent. Petitioner No. 5/accused No. 6 is another son of petitioner Nos. 1 and 2 (brother-in-law of complainant i.e., younger brother of complainant''s husband) and his wife Smt. Kantabai who has been arraigned as accused No. 7 i.e., petitioner No. 6 are not residing along with the complainant. Petitioner Nos. 1, 2, 5 and 6 are residing at Bhatramba and complainant is residing at Bhalki. Relationship between them have soared. They are residing separately since long number of years. They are not in talking terms. As to the actual abuse by these accused persons and their participation in the alleged abuse of complainant is not forthcoming from the complaint. Omnibus statement against all the petitioners being that they have threatened to murder complainant is required to be noted with utmost circumspection for reasons more than one; firstly, matrimonial dispute have cropped up between complainant and her husband. Secondly, she is receiving maintenance from her husband and is complaining that it is not sufficient. Thus, dispute has arisen between the complainant and her husband. On account of lack of details forthcoming from the complaint and there being no other material to attribute that petitioners have actively or passively participated in threatening the complainant/respondent, present proceedings initiated by the complainant against these petitioners if allowed to be continued would not only result in abuse of process of law but would also result in disharmony between the family of petitioners themselves. As has been observed by the Hon''ble Apex Court in the case of Preeti Gupta referred to supra, experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the family amongst parties may ruin the families which are cordial. In the instant case, daughter of petitioner Nos. 1 and 2 i.e., petitioner No. 3 is married to petitioner No. 4-Shivajijrao and has been undisputedly residing in her matrimonial home. As to when these petitioners visited respondent''s house and abused her are not forthcoming and as such, based on imaginary grounds criminal prosecution cannot be allowed to be proceeded and if such proceedings are allowed to continue against these petitioners, it would definitely result in not only abuse of process of law but would also result in relationship of family members getting jeopardized.

For all these myriad reasons, this Court is of considered view that proceedings against petitioners if allowed to continue, it would result in abuse of process of law and same cannot be allowed to be continued in the interest of justice. However, prime claim of respondent-complainant being against her husband, this Court is of considered view that she can proceed against her husband and in the present proceedings accused No. 1/husband of complainant is not seeking any relief at the hands of this Court and it is made clear at this juncture itself that quashing of proceedings against these petitioners would not entitle husband of the complainant to seek for quashing of the proceedings.

Hence, I proceed to pass the following:

ORDER

a) Criminal Petition is hereby allowed.

b) Order dated 17.07.2015 passed by the Civil Judge and JMFC, Bhalki, in Criminal Miscellaneous No. 492/2015 is hereby quashed.

c) Entire proceedings in Criminal Miscellaneous No. 492/2015 pending on the file of Civil Judge and JMFC at Bhalki, insofar as petitioners (Accused Nos. 2 to 7) are concerned stands quashed.