IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SEVENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.2968 of 2010 Between: Balga Venkataramana Murthy and another .. Petitioners AND The State of A.P. represented by Public Prosecutor, High Court Buildings, Hyderabad and others .. Respondents ORDER: H ea r d Kum. B. Avani Reddy, learned counsel representing Sri G. Tuhin Kumar, learned counsel for the petitioners and Kum. G. Sindhu, learned counsel representing Sri K. Chidambaram, learned counsel for respondents 2 and 3 and Sri Rudresh Deshpande, learned counsel representing the learned public prosecutor/the 1st respondent. 2. The challenge by the petitioners is to the maintainability of D.V.C. No.8 of 2010 on the ﬁle of IV Additional Chief Metropolitan Magistrate, Visakhapatnam against them. 3. The 2nd respondent herein for herself and for her minor dauaghter, the 3rd respondent herein, ﬁled an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against both the petitioners herein alleging that the 1st petitioner and the 2nd respondent were married on 04-03-1990 at Kondapuram and the 2nd respondent’s parents paid Rs.5,00,000/- in cash and gave all household articles worth Rs.2,00,000/- apart from 20 tulas of gold at the time of marriage, to the 1st petitioner. They also presented a two-wheeler and a Maruti car to the 1st petitioner apart from providing a cooking gas connection with a gas stove. Out of the marriage, the 3rd respondent was born to the couple on 21-06-1993. But the 1st petitioner, addicted to vices and alcoholism, did not take care of respondents 2 and 3. It was alleged that the petitioners jointly harassed the 2nd respondent herein and as the 2nd respondent had to undergo a tubectomy operation without being able to give birth to a son, the harassment by the petitioners had increased both physically and mentally. The 2nd respondent further alleged that the 1st petitioner did not provide any assistance to the daughter for her studies and she is being looked after by her maternal grand father, with whom she is staying. The 2nd respondent also alleged that the 1st petitioner was abusing in vulgar language and beating the 2nd respondent, actively supported by the 2nd petitioner who also used to abuse and beat the 2nd respondent with hands and legs. The 2nd respondent further claimed that her father got a bore- well dug and a motor erected for drawing water at an expense of Rs.20,000/- in the house of the petitioners and her father also got the ﬁrst ﬂoor constructed over the house of the petitioners at a cost of Rs.2,00,000/-. Still the 1st petitioner in a state of intoxication beat the 2nd respondent black and blue in June, 2009 and the 2nd respondent was saved with the intervention of the police. The 2nd respondent alleged that the 1st petitioner, with the instigation of the 2nd petitioner, is pestering her to consent for mutual divorce and the 2nd respondent was not allowed into the matrimonial home after her visit to her father and brother in September, 2009. The 2nd respondent claimed that negotiations between the parties through elders were in vain and the 2nd respondent was compelled to ﬁle a criminal case against the petitioners in respect of the harassment meted out to her. She claimed that she did not involve the 2nd petitioner in view of her age and with a view to not dragging the parents-in-law into the case. The 1st petitioner was claimed to be trying to alienate the immovable properties to deprive respondents 2 and 3 of their rights over the same and therefore, respondents 2 and 3 claimed monetary reliefs for food, clothing, medication and other basic necessities at Rs.10,000/-, Rs.3,000/- per month for accommodation, Rs.2,00,000/- towards compensation, prohibition of the 1st petitioner against alienation of the properties and prohibition of the petitioners from committing any acts of domestic violence against respondents 2 and 3, apart from Rs.25,000/- towards educational expenses and conveyance for the 3rd respondent and costs. 4. The petitioners claimed herein that the domestic violence case straight away without a report from the protection oﬃcer, is not maintainable and the Court has no territorial jurisdiction, as the cause of action arose at Kondapuram on the allegations of the 2nd respondent. The provisions of the Act are not attracted and nothing was stated against the 2nd petitioner, aged about 68 years. When the 2nd respondent left the house three years earlier in June, 2009, the case instituted after three years is not maintainable and M.O.P. No.6 of 2010 on the ﬁle of Senior Civil Judge, Rajam under Section 9 of the Hindu Marriage Act is pending and this case is conceived as a counter blast by the 2nd respondent. Therefore, the petitioners desired that the further proceedings in the domestic violence case be quashed. 5. The point for consideration is whether the further proceedings against the petitioners in the domestic violence case need to be terminated ? 6. Point: The allegations in the petition ﬁled by the 2 nd respondent before the Magistrate for the reliefs under the special statute did not attribute any speciﬁc overt acts to the 2nd petitioner except stating in para 9 that the 1st petitioner herein was actively supported in his illegal activities by the 2nd petitioner who also abused and beat the 2nd respondent with hands and legs and further stating in para 14 that the 1st petitioner herein with the active instigation of the 2nd petitioner was pestering the 2nd respondent to consent for mutual divorce. In neither event, any speciﬁc claim was made about when, where and how the acts of commission or omission of the 2nd petitioner herein had happened. Even otherwise, it is clear from the various allegations made by the 2nd respondent in the domestic violence case that the ill-treatment, harassment and cruelty were attributed only to the 1st petitioner and the cash, articles and vehicles given at the time of marriage were claimed to have been given only to the 1st petitioner, which he did not return even after separation. The allegations of the 2nd respondent about the incident in June, 2009 also were against the 1st petitioner only, though claimed to be with the active support of the 2nd petitioner and thus, the 1st petitioner planning with the 2nd petitioner in committing the various acts of domestic violence against the 2nd respondent, was an abstract allegation without any speciﬁc claims of positive involvement of the 2nd petitioner in any physical acts of commission or omission to attribute committal of domestic violence to her. The allegations of instigation by the mother to the son are easy to make and diﬃcult to refute and in the absence of any details as such, the same cannot inspire conﬁdence in a judicial mind to be constituting a valid and actionable cause for the 2nd respondent to proceed against the 2nd petitioner. Even otherwise, the reliefs claimed in the domestic violence case for monetary reliefs for food, clothing, medication and other basic necessities or for accommodation or compensation or prohibition of alienation by the 1st petitioner or payment of educational and conveyance expenses to the 3rd respondent concerned only the 1st petitioner and in no way the 2nd petitioner. Only the direction claimed against the respondents to the domestic violence case not to commit any domestic violence alone can, in some manner, be considered to be concerning the 2nd petitioner also. However, when the contents of the domestic violence case do not probablise the committal of any acts of domestic violence by the 2nd petitioner herself at the advanced age of 69 years, even that relief is unavailable against the 2nd petitioner ex facie. The continuance of the domestic violence case against the 2nd petitioner under the said circumstances will be miscarriage of justice and therefore, this is a ﬁt case where the inherent powers of this Court can be invoked in favour of the 2nd petitioner. 7. In so far as the 1st petitioner is concerned, the very M.O.P. No.6 of 2010 ﬁled by him against the 2nd respondent seeking restitution of conjugal rights, shows that the relationship between the couple is so strained as to lead to making of very serious allegations mutually and approaching the police and the Courts for appropriate reliefs. The truth or otherwise of the allegations made by the parties against each other cannot be the subject of any fact ﬁnding investigation by this Court in this summary enquiry and a decision on questions of fact in issue has to be left to the Magistrate for determination on merits in accordance with law on the evidence to be placed before him by the parties. The allegations in the domestic violence case and the aﬃdavit ﬁled in support thereof cannot be considered not to disclose any actionable cause against the 1st petitioner under the circumstances. 8. While no opinion is being expressed on the merits of rival claims in this regard, in so far as the objection about the territorial jurisdiction of the Court a t Visakhapatnam is concerned, the provisions of Section 27 of the Act provide an answer in favour of the 2nd respondent in respect of the same, as the 2nd respondent is admittedly residing at Visakhapatnam by the time of institution of the case. Similarly, the contention that any relief under the special statute is unavailable against a woman, is no longer res integra and has been answered by this Court and the Apex Court in favour of maintainability of a domestic violence case against a female relative of the husband or male partner of a woman. The claim that the case cannot be sustained in the absence of a report from the protection oﬃcer, is also answered in the negative b y precedential law and a direct application by an aggrieved person before the Court is not prohibited. There are no other grounds on which the petitioners can succeed in respect of the 1st petitioner and therefore, while the petition should succeed in respect of the 2nd petitioner, it should fail in respect of the 1st petitioner. 9. In the result, the criminal petition is dismissed in respect of the 1st petitioner and is allowed in respect of the 2nd petitioner and the further proceedings in D.V.C. No.8 of 2010 on the ﬁle of IV Additional Chief Metropolitan Magistrate, Visakhapatnam are quashed against the 2nd petitioner. _____________________ G. BHAVANI PRASAD, J Date: 07-12-2011 Svv