Allowed

Mr. Shrikanth Ravindra v. Smt. Padarathy S. Sowmya

Karnataka HC29 Jun 2022WP/5915/2017

Case brief

AI extract

What is this about?

The High Court of Karnatakas quashed domestic violence proceedings against a brother-in-law who was arraigned as a respondent, holding he did not live in a shared household and the proceedings were initiated with an ulterior motive to abuse the process of law.

What did the court decide?

The writ petition was allowed and the impugned proceedings in Crl. Misc. No.210/2016 pending before the Metropolitan Magistrate were quashed insofar as they related to the petitioner.

Mr. Shrikanth Ravindra Vs Smt. Padarathy S. Sowmya — Domestic Violence | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29TH DAY OF JUNE, 2022 BEFORE

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO.5915 OF 2017 (GM-RES)

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BETWEEN :

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MR. SHRIKANTH RAVINDRA S/O. SRI P.P. RAVINDRA AGED ABOUT 32 YEARS R/AT. PWD JUDICIAL QUARTERS DODDABALLAPUR.

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... PETITIONER

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(BY SRI P.N. MANMOHAN, ADVOCATE) AND :

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SMT. PADARATHY S. SOWMYA W/O. SRI PRASHANTH RAVINDRA AGED ABOUT 28 YEARS R/AT. AMMEGUNDI ESTATE KIRGOOR VILLAGE AND POST PONNAMPET-571216 VIRAJPET, SOUTH KODAGU.

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... RESPONDENT

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(BY SRI S. KRISHNA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CRL. MISC. NO.210/2016 PENDING BEFORE THE COURT OF THE METROPOLITAN

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MAGISTRATE-1 (MAYO HALL) AT BENGALURU INSOFAR AS THE PETITIONER IS CONCERNED (PRODUCED AS ANNEXURES-A AND B).

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THIS WRIT PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING :

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ORDER

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The respondent herein filed a petition under Sections 12, 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (for brevity, 'the Act') to pass an order to provide protection and maintenance.

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2. The learned Magistrate issued notice to the petitioner and other respondents. Taking exception of the same, the respondent No.4 is before this Court.

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3. Learned counsel appearing for the petitioner submits that in the absence of any specific allegation that the petitioner shared common residence with the respondent and her husband, the provisions of the Act are not applicable. He has placed reliance on the decision of the Hon'ble Supreme Court in the case of S.R. BATRA AND ANOTHER vs. TARUNA BATRA (SMT.) reported in (2007) 3 SCC 169.

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4. On the other hand, the learned counsel appearing for respondent submits that there are specific allegations made against the petitioner in the petition filed under Sections 12 and 19 of the Act. Hence, the petition filed by the respondent is maintainable. He further submits that the relief sought under Sections 12 and 19 of the Act are predominantly civil in nature and the purpose of the Act is to provide civil remedy. Hence, the present petition filed under Section 482 of the Criminal Procedure Code is not maintainable.

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5. He further submits that the petitioner has got an efficacious alternative remedy of approaching the Trial Court under Order I Rule 10(2) of the Code of Civil Procedure, 1908 to delete his name from the proceeding. In support of his submission, he placed reliance on the decision of the Hon'ble Supreme Court in the case of KUNAPAREDDY ALIAS NOOKALA SHANKA BALAJI vs. KUNAPAREDDY SWARNA KUMARI AND ANOTHER reported in (2016)11 SCC 774.

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6. The Petitioner is the brother-in-law of the respondent and he has been arraigned as respondent No.4 in the petition

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filed by the respondent under Section 12 and Section 19(1)(b) of the Act, 2005.

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7. Perusal of the petition indicate that the petitioner has not lived at any stage in a domestic relationship with the respondent and her husband. The allegations in the petition against the petitioner are as follows:

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i) There was intervention on the part of the petitioner for each and every small and trivial issues which is quite common in a household existence.

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ii) The petitioner unmindful of being a Civil Judge was threatening the respondent, who is to vehemently state that he is Judge and therefore he knows other Judges wherein he could do whatever he want and it would be easier to get divorce for his brother.

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iii) The husband duly backed by his parents and his brother i.e., the petitioner, as a routine used to threaten the respondent once the petitioner becomes

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a Judge as he was waiting for his result of a Judicial examination.

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Except the said allegations, there is no specific allegation that the petitioner lives or at any stage has lived in a domestic relationship. Hence, the petitioner was not living in a shared household as defined under Section 2(s) of the Act, 2005 so as to attract the applicability of the provisions of the Act, 2005 to the petitioner.

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The Hon''ble Supreme Court in the case of Satish Chander Ahuja -vs- Sneha Ahuja reported in (2021) 1 SCC 414 at paras 138 and 139 has held as follows:

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“138. The proceedings under the DV Act, 2005 are proceedings which are to be governed by the Code of Criminal Procedure, 1973.

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The procedure to the followed by the Magistrate is provided under Section 28 of the DV Act and as per Section 28 of the DV Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Even subsection (2) of Section 28

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provides that the Magistrate can lay down his own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. However, for other proceedings, the procedure is to be followed as per the provisions of the Code of Criminal Procedure, 1973. The procedure to be followed under Section 125 shall be as per Section 126 CrPC which includes permitting the parties to lead evidence. Therefore, before passing any orders under the DV Act, the parties may be permitted to lead evidence. However, before any order is passed under Section 12, the Magistrate shall take into consideration any domestic incident report received by him from the protection officer or the service provider. That does not mean that the Magistrate can pass orders solely relying upon the domestic incident report received by him from the protection officer or the service provider. Even as per Section 36 of the DV Act, the provisions of the DV Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the Magistrate can also pass an interim order as per Section 23 of the DV Act.”

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Section 28 of the Act, 2005 specifies that all proceedings including Sections 12 and 19 of the Act shall be governed by the provisions of the Cr.P.C.

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The proceedings under the Act, 2005 are the proceedings which are to governed by the Cr.P.C. as held by the Hon'ble Supreme Court in the case of Satish Chander supra, the submission of the learned counsel for the respondent that the relief sought under Sections 12 and 19 are predominantly civil in nature and as such the writ petition is not maintainable under Section 482 of Cr.P.C. is not acceptable. Even otherwise, the present petition is filed under Article 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C. Hence, the present petition is maintainable even accepting that the proceedings under D.V. Act, 2005 are predominantly civil in nature.

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The petitioner cannot be relegated to file an application for deleting his name by invoking Order I Rule 10(2) of the Code of Civil Procedure, 1908, since the provisions of the C.P.C. are not applicable to the proceedings under the D.V. Act, 2005. The present petition is maintainable to secure the ends of justice when prima

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facie it is established that the impugned proceedings are initiated with an ulterior motive for wreaking vengeance against the petitioner and with revengeful intent.

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In view of the preceding analysis, continuation of the impugned proceedings against the petitioner will be an abuse of process of law.

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14. Accordingly, I pass the following

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ORDER:

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i) The writ petition is allowed

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ii) The impugned proceedings in Crl.Misc. No.210/2016 pending on the file of the Court of Metropolitan Magistrate-I (Mayo Hall) Bengaluru, insofar it relates to petitioner/respondent No.4 is hereby quashed.

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Sd/JUDGE

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hnm

Mr. Shrikanth Ravindra v. Smt. Padarathy S. Sowmya

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Mr. Shrikanth Ravindra v. Smt. Padarathy S. Sowmya

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