Allowed

Thanooja v. State of Kerala

Kerala HC20 Jun 2022Crl.MC/8902/2017

Case brief

AI extract

What is this about?

Kerala HC quashed defamation proceedings filed by a husband against wife's parents under IPC 499/500, ruling that allegations of sexual perversion made in a family court dissolution petition were made in good faith and in self-protection, attracting statutory exceptions.

What did the court decide?

Criminal Misc. Case allowed; private complaint and all subsequent proceedings in ST No. 2714/2017 quashed.

Thanooja Vs State of Kerala — Cheating and Forgery | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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MONDAY, THE 20^TH DAY OF JUNE 2022 / 30TH JYAISHTA, 1944

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CRL.MC NO. 8902 OF 2017

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[ARISING OUT OF S.T.NO.2714/2017 ON THE FILE OF THE JUDICIAL FIRST

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CLASS MAGISTRATE COURT, CHAVAKKAD]

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PETITIONERS/ACCUSED:

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1 THANOOJA,AGED 31 YEARS,D/O.LATE MUHAMMED ASHRAF, AMBALATH HOUSE, THANOOJA MANZIL, SHANTHI NAGAR, VADAKARA DESOM, KURKKANCHERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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2 THAHIRA,AGED 49 YEARS, W/O. LATE MUHAMMED ASHRAF, AMBALATH HOUSE, THANOOJA MANZIL, SHANTHI NAGAR, VADAKARA DESOM, KURKKANCHERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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3 AJMAL ASHRAF,AGED 22 YEARS S/O. LATE MUHAMMED ASHRAF, AMBALATH HOUSE, THANOOJA MANZIL, SHANTHI NAGAR, VADAKARA DESOM, KURKKANCHERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.SIRAJ KAROLY SRI.C.K.PREM RAJ

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031

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2 ANZAR ABDULLAMON,AGED 36 YEARS S/O. ABDULLAMON, ASANARAKATH HOUSE, KADAPPURAM P.O., ANJANGADI, THRISSUR.

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R2 BY ADV SRI.P.K.SAJEEV

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OTHER PRESENT:

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R1 BY SRI. C S HRITHWIK, SR.PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 20.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC No.8902 /2017 2

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O R D E R

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S.T.No.2714/2017 on the file of the Judicial First

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Class Magistrate Court, Chavakkad. The aforesaid case is registered based on a private complaint submitted by the 2^nd respondent, who is none other than the husband of the 1^st petitioner. The 2^nd and 3^rd petitioners are the mother and brother of the 1^st petitioner. The aforesaid complaint was submitted by the 2^nd respondent alleging offences punishable under Section 500 r/w. Section 34 of the Indian Penal Code (IPC).

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follows: The marriage between the 1^st petitioner and the 2^nd respondent was solemnized as per Muslim religious rites on 22.12.2013. After the marriage,

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they resided together only for ten months. Subsequently, on account of the disputes between

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the parties, the 1^st petitioner submitted

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O.P.No.166/2015 before the Family Court, Thrissur,

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CRL.MC No.8902 /2017 3

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for dissolution of marriage under the provisions of Dissolution of Muslim Marriage Act, 1939. Annexure2 is the aforesaid Original Petition. The aforesaid application was submitted by the 1^st petitioner on the ground of cruelty. One of the major reasons highlighted by the 1^st petitioner in the said

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petition as an instance of cruelty was that, the 2^nd respondent had a perverted sexual life. It was averred that, quite often, the 1^st petitioner was subjected to anal sex as well as oral sex without her consent forcibly.

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Annexure-1 complaint was submitted by the

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2^nd respondent in such circumstances mainly contending that, the imputation made by the 1^st

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petitioner in Annexure-2 complaint submitted before the Family Court with regard to the sexual life of the 1^st petitioner is baseless and the same was made with an intention to defame the 2^nd respondent. It is also alleged that, while serving notice of the Family Court issued in Annexure-A2, the Process Server from the Family Court, at the instance of

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CRL.MC No.8902 /2017 4

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the 2^nd and 3^rd petitioners had communicated about

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the contents of the same with the neighbours of the

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2^nd respondent, and therefore the 2^nd and 3^rd

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petitioners were also implicated as the accused

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persons. The learned Magistrate has taken

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cognizance on Annexure-1 private complaint and the same is pending as S.T.No.2714/2017 before the Judicial First Class Magistrate Court, Chavakkad.

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This Crl.M.C. is filed by the petitioners in such

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circumstances.

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counsel for the petitioners, Sri. C.S.Hrithwik, the

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learned Public Prosecutor for the State and

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Sri.P.K.Sajeev, the learned counsel for the 2^nd

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respondent.

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The crucial contention that has been raised

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by the learned counsel for the petitioners is that under no circumstances the statements allegedly made by him in Annexure-A1 petition submitted before the Family Court can attract the offences under Sections 499 and 500 of the IPC. According to

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CRL.MC No.8902 /2017 5

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the learned counsel for the petitioners, the aforesaid statements are made in good faith before a lawful authority. Therefore it falls under the eighth exception to Section 499 of the IPC. It is also contended that, such a statement would also fall under the ninth exception to Section 499 IPC as well. In support of the aforesaid contentions, the learned counsel for the petitioners places reliance upon Annexure-5 final order passed by the Family Court in O.P.No.166/2015 on 17.10.2018. As per the order in the Original Petition, the contentions of the 1^st petitioner about the sexual perversion of the 2^nd respondent were upheld and based on the said finding, it was declared that the marriage between the 1^st petitioner and the 2^nd respondent is liable to be dissolved on the ground of cruelty. On the other hand, the learned counsel

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for the 2^nd respondent would oppose the aforesaid contentions.

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Thus, the crucial question that arises for consideration is whether the petitioners could

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CRL.MC No.8902 /2017 6

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establish a case for invoking the powers of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC). Annexure-1 is the complaint submitted by the 2^nd respondent, and it is discernible therefrom that the allegation which forms the basis for attracting the offence under Section 499 r/w. Section 500 of the IPC is that the 1^st petitioner had made certain statements in the petition filed by her before the Family Court, referring to the sexual life of the 2^nd respondent. Admittedly, the aforesaid accusations were made by the 1^st petitioner in Annexure-2 petition submitted by her seeking an order of dissolution of their marriage on the ground of cruelty. As rightly pointed out by the learned counsel for the petitioners, in such a situation, the accusation would fall under the eighth exception to Section 499 IPC, which reads as follows:

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“ Eighth Exception. —Accusation preferred in good faith to authorised person. —It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subjectmatter of accusation.”

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CRL.MC No.8902 /2017 7

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In order to come within the said exception, the

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accusation must have been made in good faith, and the same must have been made before a lawful authority. The expression ‘good faith’ is explained in Section 52 of the IPC, which reads as follows:

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“5 2. “Good faith”. —Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.”

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cannot be attributed to the 1^st petitioner

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herein. This is mainly because, the Family Court upheld the allegations/accusations made by her

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in Annexure-2 Original Petition after conducting

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a full-fledged trial. The aforesaid accusations were made before a Family Court which is the competent authority to decide the question

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whether the perverted nature of the sexual relationship between the parties amounts to cruelty or not. In my view, certainly the same

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CRL.MC No.8902 /2017 8

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would fall under the eighth exception to Section 499 IPC.

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Apart from the above, the facts of this

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case would make out a case for attracting the ninth exception to Section 499 of IPC as well, which reads as follows:

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“Ninth Exception: Imputation for Protection of Interests: If any accusations or imputations are made on another person in order to protect the interests of oneself, then it is not defamation.”

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The aforesaid provisions provide that an imputation on the character of another, made in good faith cannot be treated as defamatory if the same is made for the protection of the interest of the person making it or any other person. In this case, while raising the allegations of the perverted sexual life of the 2^nd respondent, the 1^st petitioner was invoking her rights available under the Dissolution of

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Muslim Marriage Act, 1939. She submitted the aforesaid petition on the ground of cruelty, and

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CRL.MC No.8902 /2017 9

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according to the 1^st petitioner, the perverted sexual nature of the 2^nd respondent amounts to cruelty. Therefore the said statement was made by the 1^st petitioner to protect her interests. Ultimately, the aforesaid allegations were found to be true and treating the said acts as cruelty, a decree of divorce was granted in

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favour of the 1^st petitioner. In such

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circumstances, this case would also fall under the ninth exception of Section 499 IPC.

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Petitioners 2 and 3 were implicated on

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the allegation that, at the time of serving the

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notice of Original Petition issued from the Family Court, the Process Server, under the

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guise of enquiring about the residence of the

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complainant, revealed the contents of the

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petition to the neighbours of the complainant. It is alleged that such disclosure was made at

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the instance of petitioners 2 and 3. In my view, the said allegation is too far-fetched. Apart

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CRL.MC No.8902 /2017 10

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from the mere statement, there are no materials

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to substantiate the same. Moreover, the aforesaid revelation is alleged to have been made by the Process Server from the Family Court, and he is neither made as an accused nor a witness. Further, I have already found that the statements made in the original petition would not attract the offence of defamation. Therefore the proceedings against petitioners 2 and 3 also are liable to be quashed.

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In such circumstances, the only

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irresistible conclusion possible is that the

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entire proceedings pursuant to Annexure-1

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complaint initiated against the petitioners are

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clear abuse of the process of law since the

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offences alleged against the petitioners are not attracted. Therefore, I am of the view that,

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this is a fit case in which the powers of this Court under Section 482 Cr.PC is to be invoked.

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CRL.MC No.8902 /2017 11

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In the result, this Crl.M.C. is allowed and

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Annexure-1 complaint submitted by the 2^nd respondent and all further proceedings pursuant

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thereof, including the proceedings in

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S.T.No.2714/2017 on the file of the Judicial First Class Magistrate Court, Chavakkad are hereby quashed.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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pkk

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CRL.MC No.8902 /2017 12

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APPENDIX OF CRL.MC 8902/2017

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PETITIONERS’ ANNEXURES:

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ANNEXURE 1	TRUE COPY OF THE COMPLAINT FILED BY RESPONDENT BEFORE THE JUDICIAL FIRS MAGISTRATE COURT, CHAVAKKAD 29.07.2015.	THE 2ND T CLASS DATED
ANNEXURE 2	TRUE COPY OF THE PETITION SUBMITTED THE FAMILY COURT, THRISSUR AS O.P 2015 DATED 04.02.2015.	BEFORE .166 OF
ANNEXURE 3	TRUE COPY OF THE COUNTER STATEMENT F THE 2ND RESPONDENT DATED 04.01.2016.	ILED BY
ANNEXURE 4	TRUE COPY OF THE SUMMONS ISSUED COURT DATED 28.11.2017.	BY THE
ANNEXURE 5	TRUE COPY OF THE COMMON ORDER 17.10.2018 OF THE FAMILY COURT, THRI OP NO.166/2015 AND OP NO.154/2015	DATED SSUR IN

Thanooja v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thanooja v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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