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.3062 of 2010 Between: B. Omkar .. Petitioner AND B. Rekha and another .. Respondents ORDER: Heard Smt. K. Rekha, learned counsel for the petitioner and Sri M. Praveen Kumar, learned counsel for the 1st respondent and Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/2nd respondent. The Criminal Petition is directed against the further proceedings in DVC.No.16 of 2009 on the file of III Metropolitan Magistrate, Cyberabad, at L.B. Nagar, against the petitioner herein. On the complaint of the 1st respondent to the Protection Officer dated 11-05-2009 against the petitioner herein and others, a domestic violence report has been filed by the Protection Officer, which was taken cognizance by the Magistrate. The 1st respondent alleged in her complaint that she was married to B. Vinod, son of the petitioner on 14-11-2003 at which time cash of Rs.5,00,000/-, 20 Tulas of gold, 1 Kg. of silver ornaments, Rs.30,000/- for marriage clothes, Rs.35,000/- for cots and other furniture were paid by her parents. They also presented gold jewellary and silver ornaments to the 1st respondent and a gold chain, bracelet and ring to the husband. The 1st respondent claimed to have been blessed with two daughters during the course of wedlock and the respondents to the Domestic Violence Case were claimed to have harassed the 1st respondent since 2005. Vinod was stated to have died on 06-01-2008 and the 1st respondent was claimed to have been subjected to unbearable cruelty and harassment after the death of her husband being not provided even with the minimum necessities for living or accommodation in the family house. Intervention by elders seemed to have resulted in her being allowed to stay in two rooms in the house, but the harassment was stated to have continued forcing her to leave the house of her parents-in-law. Gift agreements were claimed to have been executed by the petitioner herein at the intervention of elders on 03-02-2008 and 05-02-2008 and as the harassment continued and as she was physically driven out along with her two children from her in-laws house, she had to leave on 07-06-2008 since when they are residing with the parents of the 1st respondent. The 1st respondent also claimed that after the demise of her husband, it is only her parents that were taking care of her and her children including education and maintenance of her children. She, therefore, sought for the reliefs to be granted in respect of monthly maintenance for her and her children and medical expenses, protection of her rights in the property covered by the gift documents and return of her gold and silver articles and other articles, which were in the custody of the petitioner apart from compensation of Rs.5,00,000/- for the harassment meted out to her. The petitioner claims herein that his son Vinod died at a tender age and the claims of the 1st respondent against him are false and untenable. The petitioner cannot be made liable for any relief at the age of 65 years when he is living as dependent on the earnings of his other sons. A Panchayat was stated to have been held after the death of Vinod to settle all the disputes, but C.C.No.882 of 2008 was stated to have been filed under Section 498 A of the Indian Penal Code at the instance of the 1st respondent, which is pending. The petitioner claimed to have nothing to do with the affairs of the 1st respondent and hence, he desired the further proceedings to be quashed. The point for consideration is whether the further proceedings in the Domestic Violence Case have to be terminated against the petitioner? The relationship between the parties is not in dispute and the copy of the complaint said to have been given by the petitioner on 03-05-2008 to the police itself shows that the petitioner was complaining of ill-treatment of Vinod Kumar by the 1st respondent herein and the petitioner also alleged that the 1st respondent had absolutely no feeling for her husband’s death. The petitioner also alleged that a document was obtained by force from him by the father of the 1st respondent and desired to have protection from the acts of the father of the 1st respondent. The said petition itself shows that the relationship between the parties is strained and copies of other documents filed by the petitioner also show that the 1st respondent is attempted to be excluded from the family properties. The copy of the complaint given by the 1st respondent against the petitioner and others in respect of the alleged offences under Section 498 A, 420, 406, 424, 448, and 506 read with Section 109 of the Indian Penal Code also shows that the 1st respondent was alleging that the gold jewellary and other valuables given by her parents were kept back by the accused in the criminal complaint and the accused in the criminal complaint were stated to have subjected her to cruelty and harassment amounting to an offence under Section 498 A of the Indian Penal Code. So, the allegations in the Domestic Violence Case and the proceedings initiated by the parties against each other show that these are disputed questions of fact, which have to be enquired into by the learned Magistrate in the Domestic Violence Case itself and cannot be the subject of a fact finding enquiry in a restricted summary proceeding under Section 482 of the Code of Criminal Procedure. Sri M. Praveen Kumar, learned counsel, also brought to notice the order passed by this Court in Criminal Petition No. 10960 of 2009 on 12-03-2010 dismissing the request by two other respondents to the Domestic Violence Case to quash the proceedings against them. The learned Judge was of the considered opinion that the disputed questions of fact do not make it a fit matter to be interfered with under Section 482 of the Code of Criminal Procedure. The reliefs claimed in the Domestic Violence Case are relating to return of gold and silver ornaments and other valuable articles belonging to the 1st respondent said to have been retained in the custody of the petitioner. Whether there are such ornaments and articles belonging to the 1st respondent in the custody of the petitioner is a question of fact to be enquired into in a regular trial. Similarly, after the death of the husband of the 1st respondent and the parties being Hindus, the entitlement of the 1st respondent and her children to seek maintenance with reference to the personal law of the parties, more particularly the provisions of the Hindu Adoptions and Maintenance Act may make it necessary for the Magistrate to enquire into the satisfaction or otherwise of the necessary ingredients for grant of such maintenance and the proceedings, therefore, cannot be nipped in the bud in a quash proceeding. However, Smt. K. Rekha, learned counsel, represented that the petitioner is now aged more than 65 years and is not keeping good health, and therefore, he is not in a position to physically attend on all future dates of hearing before the Magistrate. The physical presence of the petitioner on all future dates of hearing can be considered to be dispensed with under such circumstances, without prejudice to the further progress of the Domestic Violence Case, if the petitioner makes an appropriate request to the Magistrate. Accordingly, the Criminal Petition is dismissed. But, if the petitioner so desires and is so advised, he can make an appropriate application before the Magistrate to dispense with his physical presence on all future dates of hearing except when his physical presence is absolutely necessary and indispensable for further progress of the case and in the event of such a request being made, the Magistrate shall positively consider the same. _____________________ G. BHAVANI PRASAD, J Date: 07-12-2011 Ksn