Dismissed

Sri Hamed Ali v. State of Karnataka

Karnataka HC5 May 2021WP/11483/2017

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition seeking to quash an order of cognizance under the Protection of Women from Domestic Violence Act. The Court upheld the Magistrate's jurisdiction based on the aggrieved party's residence at Mysuru and held that prior dismissed civil/criminal proceedings did not bar the DV Act complaint.

What did the court decide?

Writ petition dismissed with no order as to costs.

Sri Hamed Ali Vs State of Karnataka — Domestic Violence | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF MAY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO.11483 OF 2017 (GM-RES)

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BETWEEN:

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SRI HAMED ALI S/O.MAHABOOB ALI AGED ABOUT 64 YEARS R/AT NO.692, 2^ND FLOOR 1^ST STAGE, 2^ND MAIN 3^RD FLOOR, H.B.R.LAYOUT BENGALURU – 560 043 ... PETITIONER

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(BY SRI RAHAMATHULLA SHARIFF, ADVOCATE)

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AND:

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STATE OF KARNATAKA REP.BY THE PROTECTION OFFICER WOMEN AND CHILD WELFARE CENTRE BANNIMANTAP, N.R.MOHALLA MYSURU – 570 007

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SMT.GULNAZ BEGUM W/O.HAMEED ALI AGED ABOUT 52 YEARS R/AT NO.156, IV MAIN 4^TH CROSS, C.V.ROAD BANNIMANTAPA MYSURU – 570 007 ... RESPONDENTS

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(BY SMT.SHILPA S.GOGI, HCGP FOR R-1; SMT.A.NANCY PRINCE, ADVOCTAE FOR R-2) ***

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF TAKING CONGNIZANCE DATED 20.06.2016 BY III ADDITIONAL FIRST CIVIL JUDGE (JR.DN.) & JMFC, MYSURU IN CRL.MIS.NO.160/2016 ON THE REPORT OF THE 1^ST RESPONDENT UNDER THE PROVISIONS OF THE UNDER THE PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, WHICH IS PRODUCED AS ANNEXURE-A AND TO PASS ANY OTHER EQUITABLE WRIT/ORDER/DIRECTION WHICH THIS HON’BLE COURT MAY BE DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 26.03.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Petitioner has preferred this writ petition seeking

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to quash the order of cognizance dated 20.06.2016

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taken by III Additional First Civil Judge (Jr. Dn.) & JMFC, Mysuru in Crl.Mis.No.160/2016 for the offence punishable under the provisions of protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’).

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Brief facts leading to filing of this petition are as under:

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Petitioner is a retired District Registrar and

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claims to be senior citizen, aged 64 years. He got married to second respondent, Smt.Gulnaz Begum on 03.02.1991 at Mysuru. Three sons are born from the said wedlock. At the time of marriage, petitioner was working as a probationary Sub-Registrar. Pursuant to marriage, according to petitioner, second respondent was cruel, adamant in nature and not cooperative and created obstructions for peaceful marital life. Despite all these acts committed by second respondent, petitioner started tolerating all misbehaviour of second respondent in order to lead a peaceful marital life. After having spent 19 years of married life together with second respondent, there was no change in the attitude and behaviour of second respondent. Inspite of several panchayats conducted wherein elders had advised second respondent to mend her character and live a peaceful married life considering their children born from the marriage, she continued her adamant behaviour.

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Petitioner made valiant attempt to save the marriage with second respondent, but in view of adamant behaviour of second respondent both petitioner and second respondent agreed to dissolve their marriage by way of ‘Khula Nama’ and accordingly, marriage solemnized between petitioner and second respondent came to be dissolved by ‘Khula Nama’ on 07.11.2009 before elders and family members. Ever since then, there is no connection with second respondent.

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This being the state of affairs, second respondent filed a petition seeking maintenance under Section 125 of Cr.P.C. before the Family Court, Bengaluru in Crl.Misc.No.321/2010, which came to be dismissed for non-prosecution due to continuous absence of petitioner therein i.e., second respondent herein on 20.08.2011. After dismissal of said petition, second respondent filed a fresh petition seeking very same relief under Section 125 of Cr.P.C. in

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Crl.Misc.23/2012, which came to be dismissed as not maintainable by I Additional Principal Judge, Bengaluru on 29.07.2013.

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Aggrieved by the said order of dismissal, second respondent has preferred a revision petition before this Court in RPFC No.7/2014, which also came to be dismissed by this Court on 04.02.2016.

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This being the history of marital dispute between petitioner and second respondent, second respondent filed a private complaint on 17.06.2010 before XI Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru in PCR No.59/2010. The learned Magistrate has referred the matter for investigation for the offences punishable under Sections 120-B, 420, 342, 504, 506 and 509 read with Section 34 of IPC. After conducting investigation, the jurisdictional Police submitted ‘B’ report, which came to be accepted

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by learned Magistrate and complaint came to be closed.

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By suppressing all these facts second respondent filed a complaint alleging domestic offence under the provisions of the Act. On such complaint being filed on 03.05.2016 before first respondent, who conducted enquiry and filed a report on 01.06.2016 before the learned Magistrate and based on said enquiry report, cognizance was taken by Magistrate and issued notice to petitioner. Petitioner is aggrieved by order of learned Magistrate taking cognizance of Domestic Incident Report dated 01.06.2016 has approached this Court seeking to quash the said order as the same is without application of mind and hence,

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is not sustainable in law.

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It is contended by learned counsel appearing for petitioner that taking cognizance of the offence by learned Magistrate on the Domestic Incident Report is without application of mind and learned Magistrate has passed the order mechanically, which is not sustainable in law. Learned counsel

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further contends that second respondent has initiated this complaint under the provisions of the Act only with an intention to wreck vengeance and to harass and torture the petitioner without any rhyme or reason or any element of truth in the same. Learned counsel further contends that second respondent has made false allegations of cruelty, dowry harassment after a lapse of 19 years of marriage and has suppressed the fact that on her own volition, marriage between her and petitioner came to be dissolved by way of ‘Khula Nama’ as contemplated under the Mohammedan law. Hence, initiation of proceedings by petitioner before learned Magistrate is illegal and deserves to be quashed.

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9. Learned counsel further contends that prior

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to filing of present case for domestic violence, admittedly, petitioner had initiated two complaints, one under the provisions of IPC and other seeking for maintenance under Section 125 of Cr.P.C. It is a

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matter of record that criminal case ended in filing of ‘B’ report, which has attained finality and respondents have not challenged the same and petition filed seeking maintenance under Section 125 of Cr.P.C. came to be dismissed for non-prosecution.

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Learned counsel further contends that there is no territorial jurisdiction for learned Magistrate to entertain the complaint filed for domestic violence as according to second respondent the incident of alleged domestic violence is said to have occurred within the territorial jurisdiction of Banaswadi Police Station limits within Bengaluru city,

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but the complaint under the Act has been filed deliberately before the learned Magistrate at Mysuru, which Court does not have the territorial jurisdiction to entertain the said complaint. Learned counsel further contends that Protection Officer at Mysuru who has filed Domestic Incident Report does not have jurisdiction to enquire with the matter and to file the

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report. Therefore, neither the Protection Officer at Mysuru nor learned Magistrate at Mysuru could have entertained the complaint of second respondent as both do not have territorial jurisdiction to enquire into the matter and take cognizance of same. Learned counsel further contends that when any complaint is filed under the Act, there shall be a detailed enquiry and investigation conducted by the Protection Officer/ Enquiry Officer before submitting the report to the learned Magistrate. It is contended that in the present case, first respondent has not made proper enquiry from the family members, neighbours, friends and others with regard to alleged complaint made against petitioner.

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Learned counsel further contends that in view of alleged domestic violence having committed with the jurisdiction of Banaswadi Police Station at Bengaluru city, learned Magistrate at Mysuru would not get jurisdiction to entertain the complaint much

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less taking cognizance of the same which is illegal and unsustainable in law. On the basis of these submissions, learned counsel for petitioner seeks to quash the proceedings before the learned Magistrate at Mysuru taking cognizance of complaint lodged by second respondent for the offence punishable under the provisions of the Act.

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In support of his contention, learned counsel

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for petitioner has relied on the following decisions:

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(i) Santosh Bakshi v. State of Punjab reported in AIR 2014 SC 2966;

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(ii) Deb Narayan Halder v. Anushree Halder reported in AIR 2003 SC 3174;

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(iii) P.R.Suresh Babu Vs. B.S.Bharathi reported in 2015(3) KCCR 2247;

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Per contra, Smt.A.Nancy Prince, learned counsel for respondent No.2 contends as follows:

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The marriage of petitioner and second respondent was solemnized on 03.02.1991 as per Mohammedan law and three children are being born

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from the wedlock is admitted. She contends that at the time of marriage, respondent No.2 was forced to pay a sum of Rs.1,00,000/- through her parents along with a wrist watch, two gold rings, gold jewellery and several other household furniture and articles. She contends that several properties were purchased by petitioner in benami name of his brothers and sisters and not even a single property was taken in the name of second respondent and neither was she included as joint purchaser. According to her, petitioner was an arrogant womanizer and continuously harassed, tortured the second respondent, despite which, second respondent continued her marital relationship for the sake of minor children and with a fond hope that petitioner mend his act and change his behaviour.

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Learned counsel further contends that petition filed earlier for maintenance which came to be dismissed by Family Court and which was challenged before Revisional Court is being taken up for revival.

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The contention taken by petitioner in this petition seeking to quash the proceedings initiated under the Act is frivolous and same is not sustainable and cognizance taken by learned Magistrate is well within the ambit and provisions of the Act. She contends that there is no infraction by learned Magistrate at Mysuru in taking cognizance of offence under the Act. She supports the order of taking cognizance by learned Magistrate and seeks for dismissal of petition filed by petitioner.

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Having heard learned counsel for petitioner and learned counsel for respondents, the points that arise for consideration before this Court is as follows:

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“(i) Whether the cognizance taken by learned JMFC at Mysuru is sustainable in law?

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(ii) Whether this petition deserves to be allowed?”

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On a careful perusal of material placed on

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record before Court, it is noticed that there is no

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dispute with regard to marriage having taken place between petitioner and second respondent on 03.02.1991 at Mysuru. It is also admitted that from the wedlock, three children are born. It is also not in dispute that petitioner and respondent No.2 lived in matrimonial relationship for more than 19 years initially at Mysuru and thereafter, at Bengaluru.

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No doubt, the petition filed under Section 125 of Cr.P.C. and the private complaint filed under Section 200 of Cr.P.C. by second respondent against petitioner came to be dismissed for non-prosecution and closed by way of ‘B’ report respectively. Respondent No.2 would not be barred by any law to file complaint under the Act for alleged domestic violence.

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The main ground urged by petitioner in this writ petition is that jurisdictional Magistrate at Mysuru who has taken cognizance based on Domestic Incident Report, did not have the territorial jurisdiction to

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entertain the complaint and to take cognizance of offence. Secondly, the jurisdictional Magistrate has not applied his mind in taking cognizance of the matter as he has not considered the other relevant litigations initiated by the second respondent.

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Now let me analyse as to whether the learned Magistrate at Mysuru had jurisdiction to entertain the complaint/Domestic Incident Report. Section 27 of the Act reads as under:

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“27. Jurisdiction.─(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which─

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(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

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(b) the respondent resides or carries on business or is employed; or

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(c) the cause of action has arisen,

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shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. xxxxxx”

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As per the above provision, an aggrieved

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person who resides permanently or temporarily carries on business or is employed, is entitled to file a complaint before learned Magistrate to initiate action. In the present case, it is not in dispute that as on the date of filing the complaint before the learned Magistrate, the second respondent was residing at Mysuru which is forthcoming in the Domestic Incident Report filed by Protection Officer, the temporary address of respondent No.2 is shown as #136, Bannimantapa, ‘A’ Layout, 4^th Main, 4^th Cross, Mysuru, which is the address of her parents and due to the harassment meted out by petitioner, the second respondent had to take shelter in the residence of her parents at Mysuru. It is during this period while she was residing at Mysuru, the second respondent

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initiated the complaint of domestic violence against the petitioner, based on which, after an enquiry and investigation, the Protection Officer has filed the Domestic Incident Report.

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Therefore, the second respondent who was residing temporarily with her parents as on date of lodging of the complaint and the Domestic Incident Report filed by the Protection Officer at Mysuru cannot be said to be without jurisdiction, in view of clear provisions of Section 27 of the Act.

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It is also necessary to extract Section 12 of the Act which reads as under:

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“12. Application to Magistrate.─(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

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Provided that before passing any order on such application, the Magistrate

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shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

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xxxxxxxxxxx”

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On a bare reading of above provision, liberty

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is provided to either the aggrieved person or Protection Officer on behalf of the aggrieved person to present an application to the learned Magistrate for one or more of the reliefs. In the present case, the Domestic Incident Report is filed on 01.06.2016 by the Protection Officer which was presented before the learned Magistrate and after careful perusal of the said Domestic Incident Report, the learned Magistrate has directed the Office to register the criminal case vide order dated 20.03.2016. Therefore, the learned Magistrate has perused the contents of Domestic Incident Report filed by the Protection Officer and after consideration of the same, has directed to register the criminal miscellaneous case against petitioner. This act of learned Magistrate cannot said

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to be without application of mind and non

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consideration of material placed before him as the learned Magistrate has acted in accordance with Section 12 of the Act.

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One other contention raised by learned

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counsel for petitioner is that marriage between petitioner and second respondent was dissolved by way of ‘Khula Nama’ on 07.11.2009 itself and therefore, when there was no marital relationship existing between petitioner and second respondent as

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on the date of filing of complaint/application or Domestic Incident Report or taking cognizance by the learned Magistrate, there was no subsisting marital relationship between petitioner and second respondent. In view of above contention, it is necessary to extract the definition of ‘aggrieved person’ as contemplated under Section 2(a) of the Act as under:

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“(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;”

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On perusal of above definition of the aggrieved person, there is no ambiguity that any woman, who is or has been, in a domestic relationship and who alleges that she was subjected to domestic violence would come within the definition of aggrieved person.

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In the present case, it is not in dispute that second respondent has been in a domestic relationship with the petitioner and therefore, she would consequently come within the definition of aggrieved person. It is for the learned Magistrate to deal with the matter on the merits of the case as to whether any domestic violence had taken place and it is for the second respondent to place all such material to prove this fact of domestic violence having been meted to by

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petitioner in the enquiry/trial to be conducted before the learned Magistrate and also with regard to bar of limitation, if any.

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Having considered the above contentions and the legal propositions, there is no doubt in my mind that cognizance taken by learned Magistrate on the basis of the Domestic Incident Report filed by the Protection Officer is in accordance with the provisions of the Act and the same cannot said to be bad in law for want of jurisdiction.

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The judgment relied upon by the learned counsel for petitioner would not be of any help as the facts and circumstances stated therein are different as

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in the case of Santosh Bakshi (supra), the Police had not made proper enquiry.

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In the present case on hand, the Protection Officer has made a detailed investigation and has filed the said report. The second judgment relied on, in the

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case of Deb Narayan Halder (supra) would not be applicable to the facts of the present case as the same relates to demand of dowry and cruelty. In the case of P.R.Suresh Babu ( supra), aggrieved person therein had filed more than one complaint under the Act. In the present case, it is not the case of petitioner that respondent No.2 has filed more than one complaint alleging domestic violence under the Act. Merely because, a complaint is filed under Section 200 of Cr.P.C. and a petition is filed under Section 125 of Cr.P.C. and despite both these petitions being closed, it would not bar the second respondent from initiating complaint for the offence punishable under the provisions of the Act. Hence, the judgments relied on by the learned counsel for petitioner would be of no assistance.

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Answering point No.1 raised above, the cognizance taken by learned Magistrate in Crl.Mis.160/2016 against the petitioner herein does

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not suffer from any infirmity and the same is sustainable. Having answered the above first point in the affirmative, no cogent sufficient grounds have been made out by petitioner to allow petition. Hence, I do not find any merit in the contentions raised by

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petitioner to accede to his request.

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