Dismissed

Pankaj Kaushik v. Pushpa Pankaj Kaushik

Karnataka HC11 Nov 2021WP/103340/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition filed by a husband seeking to quash an interim order granting a notice to a Protection Officer to produce original domestic violence documents. The Court held that the application was not an abuse of process and remanded the matter for expeditious disposal.

What did the court decide?

Writ petition dismissed; direction to trial court to dispose of the matter within six months.

Pankaj Kaushik Vs Pushpa Pankaj Kaushik — Domestic Violence | Karnataka HC (2021)

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WP NO.103340/2018(GM-RES)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^th DAY OF November, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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BETWEEN:

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PANKAJ KAUSHIK, S/O: RAGHUNATH KAUSHIK, AGE: 47 YEARS, OCC: ADVOCATE, R/O: 647, KENCHA ROAD, KARWAR-581301, DIST: UTTAR KANNADA.

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….PETITIONER

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(BY SRI. PANKAJ KAUSHIK, PARTY-IN-PERSON.)

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AND:

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PUSHPA PANKAJ KAUSHIK, W/O. PANKAJ KAUSHIK, AGE: 41 YEARS, R/O: SANKRIWADA, BAAD, KARWAR-581304 DIST: UTTAR KANNADA.

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(AMENDMENT CARRIED OUT VIDE ORDER DATED 05.04.2019)

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SRHI. P.H. NAIK, PROTECTION OFFICER, C.D.P.O., NEAR PIKLE HOSPITAL,

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KARWAR-581301,UTTAR KANNADA.

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….RESPONDENTS

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(RESPONDENT NO.1 - PARTY IN PERSON RESPONDENT NO.2 - SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED INTERIM ORDER DATED 09.04.2018 VIDE ANNEXURE-A PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC (II COURT), KARWAR, UTTAR KANNADA IN D.V.NO.11 OF 2014 AND INTER ALIA PASS ANY APPROPRIATE ORDERS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND ETC.

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THIS PETITION BEING HEARD AND RESERVED FOR FOR ORDERS ON 14.02.2020, THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner-husband is before this court seeking for issuance of a writ in the nature of certiorari quashing the impugned order dated 09.04.2018 passed by the Additional Civil Judge and JMFC-II, Karwar, Uttar Kannada in D.V. No.11/2014.

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Though the Petitioner and Respondent No.1 were represented by their respective advocates before

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the trial court, they have chosen to represent themselves as parties in person in these proceedings.

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The prayers sought for by the petitioner-husband in the present writ petition are as under:

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3.1. Issue a writ in the nature of certiorari quashing the impugned interim order, dated 09.04.2018, vide Annexure-A, passed by the Addl. Civil Judge and JMFC (II Court), Karwar, Uttar Kannada, in D.V. No.11/2014 and inter alia pass any appropriate orders in the facts and circumstances of the case.

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3.2. The respondent No.1 - wife of petitioner and respondent No.2, Protection Officer, Shri. P.H. Naik, (CDPO), acting on her behalf be issued a notice at the earliest, for

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further hearing and final disposal of this writ petition before this Hon’ble Court.

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3.3. The petitioner on the grounds of legal expenses borne by him for a period of four years and is practising as an Advocate, for defamation withstood, claims an amount of Rs.5,00,000/- (Rupees Five Lakhs only) from both Respondents stated above. The same be allowed as they have filed a false and frivolous case causing hurt, injury and disrepute to Petitioner’s profession and have also given mental and physical harassment.

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3.4. Cost of writ petition be awarded to the petitioner.

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3.5. Grant any other relief, which the Hon’ble High Court deems fit in the peculiar facts and circumstances of the case.

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The petitioner-husband had also sought for exparte stay of the impugned order, no such stay was granted by this Court.

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The impugned order is an order of the trial court dated 09.04.2018 on an application under Section 66 of the Indian Evidence Act, 1872. The said Section is hereunder reproduced for easy reference.

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“Section 66 in The Indian Evidence Act, 1872

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66. Rules as to notice to produce:—Secondary evidence of the contents of the documents referred to in section 65, clause

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(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:—

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Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—

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(1) when the document to be proved is itself a notice;

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(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

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(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

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(4) when the adverse party or his agent has the original in Court;

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(5) when the adverse party or his agent has admitted the loss of the document;

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(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

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The respondent-wife had filed a case under Section 12 of the Domestic Violence Act on 19.06.2014 before Civil Judge and JMFC-II, Karwar Uttar Kannada against the petitionerhusband. The respondent-wife sought for marking of the photocopies of the complaint and certain other documents, the same was objected

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to by the petitioner-husband. Therefore, the respondent-wife filed an application under Section 66 of the Indian Evidence Act seeking for a direction to the Protection Officer to produce the original of the complaint and other documents which were retained by him so as to enable the respondent-wife to mark them in evidence.

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The petitioner-husband filed his objections stating that

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7.1. The application filed is in violation of basic tenets of protection of women against Domestic Violence Act, 2005 (hereinafter for privity ‘D.V. Act’).

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7.2. As per provisions of D.V. Act and Rules framed thereunder, it is the duty of the Protection Officer to submit the domestic

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incident report along with the original complaint before the Magistrate, and the Magistrate has to take into consideration the domestic incident report as well as the complaint before passing any orders.

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7.3. The application under reply had been filed after 3 years 9 months from the time of filing of the incident report; therefore, the respondent-wife could not file such an application under Section 66 of the Indian Evidence Act.

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7.4. No notice could be issued at such a late stage and application has to be dismissed.

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7.5. The stand taken by the respondent-wife and her counsel is contradictory to the terms of Section 66 of the Indian Evidence

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Act.

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7.6. As per Section 115 of the Indian Evidence

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Act, Respondent–wife is estopped from taking a different stand.

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7.7. There was no domestic relationship as on the date on which the Respondent–wife claimed the happening of the domestic incident and the maintainability of the very petition itself is in question.

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7.8. He also relied on several decisions which are not in fact relevant to the application filed under Section 66.

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The trial court, recorded all his objections and formulated the following points for consideration.

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“1. Whether I.A. under Section 66 of the Indian Evidence Act filed by the Advocate for the petitioner deserves to be allowed?

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What order?

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The trial court answered the above points as under :

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Point No.1 in the affirmative

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Point No.2 as per final order.

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The trial court considering the application and the averments made therein as also the objections filed by the petitioner-husband held that

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10.1. the document available before it was a copy attested by the CDPO Karwar, in furtherance of which, the said proceedings were initiated.

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10.2. The contention of the petitioner-husband that such document cannot be called for after more than 3 years of the filing of the complaint is not sustainable.

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10.3. The evidence had commenced only

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recently, the question of marking of the document had arisen only at that stage, and therefore, there is no delay in filing the application.

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10.4. The trial court answered the apprehension of the petitioner-husband that there could be fabricated documents produced by Respondent No. 2 holding that the petitioner-husband can always crossexamine as regards alleged fabrication.

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10.5. The various citations which were relied upon by the petitioner-husband relating to the existence of or otherwise of a domestic relationship between the petitionerhusband and respondent-wife were not relevant for consideration of an application filed by respondent-wife under Section 66

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of the Indian Evidence Act and therefore, directed the issuance of a notice to the Protection Officer to produce the original document pertaining to the Domestic Violence complaint filed by the respondentwife on the next date of hearing.

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The petitioner-husband is challenging the said order before this court. The petitioner-husband has filed a synopsis of dates and events from pages A to T detailing the dates and events regarding marriage, proceedings between the parties, adverted to the orders passed by various courts in the writ petition etc.

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The petitioner-husband has stated about the marriage of the petitioner and respondent. The main contention raised is as regards the nonmaintainability of the complaint filed by the respondent-wife, by contending that the filing of

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the incident report as also the filing of the complaint itself is bad in law. The innumerable proceedings which are pending between the petitioner and respondent have been dragged on, on account of the pendency of the above proceedings and he has been harassed, he has to incur huge expenses amounting to Rs.5.00 lakhs in prosecuting the matter etc., Apart from stating that even the Protection Officer does not have the original complaint, the petitionerhusband in the entire petition has not made out any ground challenging the well reasoned impugned order passed by the Civil Judge and JMFC-II, Karwar Uttar Kannada on 09.04.2018 nor has any ground been made out for dismissal of the application filed by the respondent-wife under Section 66 of Indian Evidence Act.

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The petitioner-husband has also filed written

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arguments which contain details of the marriage, challenge to the domestic relationship etc., and again reiterates that the manner of filing of the complaint is not proper, the necessary forms have not been filed, the procedure in registering of the complaint has not been followed and therefore, he has sought for quashing of all the proceedings filed before the trial court in D.V. No.11/2014, there is however, no such prayer which is sought for in the above writ petition.

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The respondent-wife also appeared party in person, and on enquiry she submitted that she would conduct the proceedings herself and she does not require any legal assistance. She submits that

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14.1. All the necessary documents were submitted by her to the Protection Officer.

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14.2. The Protection Officer, in turn, sent the

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complaint and connected documents to the Magistrate; therefore, all the originals are available with the Protection Officer.

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14.3. It is a fact that she has filed the complaint it is only a question of marking of the complaint, a copy validated by the protection officer could have been marked in evidence; however the petitionerhusband raising technical objections the same was not done.

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14.4. Since the petitioner-husband has raised technical objections with regard to veracity and validity of the certification, left with no other alternative she filed the application under Section 66 of the Indian Evidence

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Act calling upon the Protection Officer to produce the original of the complaint and

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other documents filed by her with the Protection Officer.

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14.5. She expresses surprise as to why the petitioner-husband should object to documents being produced by the

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Protection Officer.

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14.6. She has been made to run from pillar to post from the time of her marriage in the year 2011, she has been harassed by the petitioner-husband from the time of their marriage.

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14.7. The complaint under the Domestic Violence

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Act was filed in the year 2014. However, there has been a delay in the prosecution

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of the said matter for one reason or the

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other. She, therefore, submits that the

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petition may be dismissed by imposing

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exemplary costs.

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14.8. She also seeks for direction to be issued to

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the petitioner-husband to make payment of maintenance amount.

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Heard Sri. Pankaj Koushik the petitionerhusband party in person, Smt. Pushpa Pankaj Koushik –respondent-wife party in person.

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Though a lengthy petition has been filed enclosing several documents, lengthy oral arguments have been addressed as also lengthy written arguments have also been filed by the petitioner-husband, the short question that arises in this matter is as to whether the trial court was right in allowing the application under Section 66 of the Indian Evidence Act filed by the respondent-wife calling upon the Protection

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Officer to produce the original complaint and documents. The rest of the issues raised by the Petitioner are to be decided by the trial court on the basis of evidence lead.

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As could be seen from the records, the Protection Officer had forwarded the complaint to the Civil Judge and JMFC, Karwar, Uttar Kannada for registration of the complaint under Section 12 of the Domestic Violence Act, which was so done after receiving the said report and the complaint filed by the respondent-wife. It cannot, therefore, be disputed that there was a complaint filed and proceedings initiated thereon before Magistrate on 19.06.2014. The only question is the production of the original documents for the purpose of marking during the course of the evidence.

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The trial court rightly directed the Protection Officer who is said to be the custodian of the original complaint and the documents to produce the same before the court. Whether there exists such document or not cannot be adjudicated at the time of passing orders under Section 66 of the Indian Evidence Act. If the documents do not exist, the Protection Officer would necessarily reply to the court stating that such a document does not exist. If the documents exist, he will produce it before the court to enable the court to go ahead with the proceedings.

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The fact that the petitioner-husband has sought to oppose such production of original documents and also to challenge the same before this court would indicate that the petitioner-husband is

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seeking to protract the proceedings. The

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submission of the respondent-wife that she is also not receiving maintenance, unfortunately, cannot be considered in these proceedings, it is open for the trial court to consider the said request in accordance with the law.

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I am of the considered view that writ petition as filed is an abuse of the process of this court. The petitioner-husband has not made out any case for interfering with the impugned order dated 09.04.2018. The petitioner-husband is only trying to protract the matter. Hence, though this case could merit levy of exemplary costs, taking note of the fact that the petitionerhusband is a party in person, no such costs are imposed.

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For the aforesaid reasons, the above writ petition is dismissed with a direction to the Civil Judge

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and JMFC-II, Karwar, Uttar Kannada to take up the matter in D.V. No.11/2014 and dispose of the same as expeditiously as possible at any rate within six months of the date receipt of the copy of this order. Parties are at liberty to furnish a

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copy of this order to the trial Court.

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The registry is directed to transmit a copy of this order to Civil Judge and JMFC, Uttar Kannada.

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Sd/JUDGE

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MNS/Prs*

Pankaj Kaushik v. Pushpa Pankaj Kaushik

Case brief

What is this about?

What did the court decide?

Pankaj Kaushik v. Pushpa Pankaj Kaushik

Case brief

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What did the court decide?

What the court decided

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