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.6172 of 2010 Between: Shaik Budelal and 5 others .. Petitioners AND The State represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another .. Respondents ORDER: The Criminal Petition is directed against the further proceedings in DVC.No.2 of 2010 on the file of Judicial First Class Magistrate, Nalgonda. The 2nd respondent gave a complaint to the Protection Officer dated 03-03-2010 alleging that she was married to the 1st petitioner on 13-05-2001 at Aathkur village of Vungutur Mandal, Krishna District at which time her parents gave a cash of Rs.1,00,000/-, 5 Tulas of gold and household articles worth Rs.50,000/-. She claimed to have gone to the marital home immediately after marriage and to have given birth to two sons during the wedlock. She claimed that she and the mother of the 1st petitioner were harassed by the petitioners 1 to 6 and a year earlier to the complaint, the 1st petitioner kept the 2nd respondent with the family of the 2nd petitioner at Mangalagiri, while he was staying at Godhra of Gujarat. She was claimed to have been harassed by the 2nd and 4th petitioners in various ways including beating and abusing due to which the 2nd respondent and the mother of the 1st petitioner were living separately at Aathkur. Even there it was alleged that the petitioners 2 to 6 did not even allow them to have food or to do any work. The 1st petitioner’s mother was also stated to have been compelled to neck the 2nd respondent out till she gets an additional dowry of Rs.50,000/-. The 2nd respondent further claimed that on 02-02-2010 the petitioners 1 and 2 gave a notice to the 1st petitioner’s mother in respect of the property, which was returned by the 1st petitioner’s mother. The 2nd respondent and the mother of the 1st petitioner were claimed to have been necked out of the house on 21-02-2010 and in spite of complaining to all the relatives, none of them responded. As they have threat to their lives, the 2nd respondent desired that appropriate action be taken for protection and a sum of Rs.15,000/- for monthly maintenance, Rs.5,000/- for house rent, Rs.4,000/- per month for the education of children may be granted apart from a share in the properties of the father of the 1st petitioner and also a compensation of Rs.10,00,000/-. The Protection Officer filed a Domestic Violence report against all the petitioners on the basis of the said complaint, which was taken cognizance by the Magistrate and the petitioners herein desired the said proceedings to be quashed against them contending that the 1st petitioner was married to the 2nd respondent on 13-05- 2001 after which they led happy marital life being blessed with two sons during the wedlock. They also contended that the 2nd respondent along with two children went on 01-10-2007 to Gogavani Gudem to enquire about her mother’s health as she was suffering with cancer. She did not return back in spite of many requests for number of times and the 2nd respondent informed that she is not interested to live in Godhra and the 1st petitioner should come to her place as illatom son-in-law. The petitioners claimed that the 1st petitioner filed Civil Suit No.77 of 2008 at Godhra and a decree and judgment were passed on 07-07-2009 directing restitution of conjugal rights in favour of the 1st petitioner against the 2nd respondent. As the 2nd respondent did not respond in spite of many requests thereafter and as there was desertion for more than one year, which amounted to Talak, the 1st petitioner pronounced Talak in the presence of Kasim Yakub Khoda and Talha Mohammed Sayeed Bhatuk on 12-11-2009 at 4.00 P.M. as per law and sent Rs.3,600/- towards maintenance for IDDAT period by way of Demand Draft. The 2nd respondent refused to receive the communication by registered post in spite of knowing about the same and the 2nd respondent thereafter ceased to be the 1st petitioner’s family member after three months. She lodged a complaint in Vungutur police station against the 2nd petitioner and his sons alleging kidnap of the 1st petitioner, which was investigated into Crime No.184 of 2009 and the petitioners 1 and 2 gave a notice to the 2nd respondent and the police officials. The 2nd respondent filed the complaint as a counter blast and the petitioners 2 to 6 are living separately at different places and the question of their harassing the 2nd respondent at any time, therefore, does not arise. The petitioners, therefore, claimed that even if the allegations of the 2nd respondent are taken at face value, the petitioners are not liable to any reliefs under the special statute and therefore, they desired the further proceedings against them be quashed. In Crl.P.M.P.No.12067 of 2011, the 2nd respondent filed a counter in response to the allegations made in the Criminal Petition stating that the 1st petitioner was never willing to take the 2nd respondent along with them to Godhra due to the involvement of the petitioners 2 to 6. M.C.No.29 of 2007 filed by the 2nd respondent was compromised due to intervention of the Court and after the maintenance case, the suit for restitution of conjugal rights was filed as a counter blast. In fact, the 1st petitioner and the 2nd respondent lived at Aathkur along with other petitioners after the compromise of M.C.No.29 of 2007 and the petitioners started harassing as usual thereafter. The 2nd respondent was not allowed to attend the Court at Godhra in order to obtain an ex parte decree and the petitioners 2 to 6 had thrown out the 2nd respondent from the house at Aathkur on 20-09-2009. The 2nd respondent had no knowledge about Talak said to have been pronounced by the 1st petitioner and the petitioners resided together with the 2nd respondent after her marriage along with the mother of the 1st and 2nd petitioners also at the same house at Aathkur. It is only after the birth of second son to the 1st petitioner and the 2nd respondent that they moved to Mangalagiri town for the purpose of school education of the first son residing along with petitioners 2 and 4. The 2nd respondent also claimed that only those who have harassed the 2nd respondent have been included in the Domestic Violence Case and the other family members like mother and sister of the 1st petitioner, sons and daughters of the 2nd petitioner and the first and second sons of the 3rd petitioner were not included in the case though they are residing in the same house. As the petitioners lived in domestic relationship in the same shared household with the 2nd respondent, they are liable to answer the reliefs claimed in the Domestic Violence Case and hence, she desired that the interim orders passed in this case be vacated. Heard the learned counsel for both sides and Sri Rudresh Deshpande, learned counsel, representing the learned Public Prosecutor/1st respondent. The point for consideration is whether the further proceedings in the Domestic Violence Case have to be discontinued against the petitioners? The complaint to the Protection Officer by the 2nd respondent was not specific about the petitioners 2 to 6 also residing in the same house where the 1st petitioner, the 2nd respondent and the 1st petitioner’s mother were living. It only stated about all the petitioners joining together to harass the 2nd respondent with a demand for additional dowry. The further allegation about what was happening since one year prior to the complaint was about the 2nd respondent being left with the family of the petitioners 2 and 4 at Mangalagiri, which may indicate clearly that petitioners 2 and 4 are living with their family at Mangalagiri and not at Aathkur. It is not known from the complaint as to since when the petitioners 2 and 4 were residing at Mangalagiri. The alleged harassment by all the petitioners at Aathkur after the 2nd respondent was left in the house of the petitioners 2 and 4 and could not have been physically probable, if the petitioners 2 and 4 are residing with their family at Mangalgiri. The allegations of harassment and cruelty were devoid of any specific details as to when, where and how the alleged instances of harassment and cruelty had taken place and there was no proof that the 2nd respondent or anybody else complained to any public authority at any time about any such acts of physical and mental harassment meted out to the 2nd respondent during her marital life. The complaint from the 2nd respondent to the protection officer was almost about nine years after the marriage between the 1st petitioner and the 2nd respondent and the alleged communication from the 2nd respondent to all the relatives about her fate admittedly did not evoke any response and if the allegations are true, such silence on the part of the relatives may not be natural. In the addresses given in Form-I by the protection officer in the domestic violence report, the 1st petitioner was stated to be a resident of Godhra, while the petitioners 2 and 4 were described as residents of Mangalagiri. The petitioners 3, 5 and 6 alone were described as residents of Aathkur and in the absence of specification of any door number or any other particulars, it is not known whether those persons residing at Aathkur are residing in the same house or residing separately. The domestic violence report of the protection officer disclosed that the petitioners harassed the 2nd respondent physically and mentally, beat her, tried to kill her and sell away the agricultural land, but as already stated, none of such events have been the subject of any documentary evidence prior to the complaint made by the 2nd respondent to the protection officer. The Form-I further stated about the petitioners harassing, demanding additional dowry for Rs.5,00,000/-, torturing, ill-treating, neglecting, abusing, beating and neglecting to maintain the 2nd respondent and threatening to kill her and trying to sell away the agricultural land. While all possible forms of physical and mental torture have been thus mentioned, the allegations were totally devoid of any specific details even in the domestic violence report of the protection officer. The petition for restitution of conjugal rights filed by the 1st petitioner refers to the 2nd respondent herself not returning to the marital home in spite of many requests by the 1st petitioner and the affidavit of the 1st petitioner in the case decided ex parte was accepted as proving the allegations while directing restitution of conjugal rights. The petitioners also filed the copy of Talaknama dated 12-11-2009 and the statements on affirmation of two persons claimed to be Moulvies about pronouncement of Talak. The petitioners also filed the copy of the notice sent by them to the 2nd respondent and the police officials about the falsity of allegations in Crime No.184 of 2009. Irrespective of the truth or otherwise of the pronouncement of Talak and the consequences that follow regarding the marital relationship of the 2nd respondent with the 1st petitioner, insofar as the enquiry into this petition is concerned, the allegations against the petitioners 2 to 6 in the Domestic Violence Case do not appear to have been presented with the required particulars or necessary details. Such vague and omnibus allegations are easy to make and difficult to refute. The very counter filed in this case by the 2nd respondent alleges a maintenance case to have been filed by her even in 2007, which ended in a compromise and restoration of marital home for a while after the compromise, about which no mention was made in the complaint to the protection officer. The 2nd respondent being thrown out of the matrimonial home on 20-09-2009 was also not stated in the complaint to the protection officer and the mother of the 1st petitioner is the paternal aunt of the 2nd respondent even according to the complaint and it is not as though the 2nd respondent and their family would not have known about the family of the 1st petitioner prior to the marriage. The 2nd respondent was not claimed to have taken any steps against the ex parte decree for restitution of conjugal rights granted by the Civil Court at Godhra and under such circumstances, the continuance of the Domestic Violence Case against the petitioners 2 to 6 does not appear to be justified. While the petitioners 2 to 6, who are elder brother-in-law, uncle, wife of elder brother-in-law, brother-in-law and his wife to the 2nd respondent, were not thus clearly shown to have resided at any point of time in the same shared household along with the 1st petitioner and the 2nd respondent so as to make them susceptible to any reliefs under the special statute in view of such living in domestic relationship, the 1st petitioner cannot of course totally absolve himself in this restricted summary enquiry as this Court cannot act as a fact finding court in considering the invokability of the inherent powers under Section 482 of the Code of Criminal Procedure. As the allegations against the 1st petitioner have to be enquired into on merits on the evidence to be placed before the trial Court by the parties and as any proof of the allegations of the 2nd respondent to the Domestic Violence Case may make him liable to the reliefs of the monthly maintenance, monthly rent, monthly education expenses of her children, compensation and a right in the properties of the father of the 1st petitioner, it will be but in the interests of justice to leave such determination to the Magistrate without terminating the proceedings against the 1st petitioner herein itself. As the alleged pronouncement of Talak and absence of any marital relationship between the 2nd respondent and the 1st petitioner as of now are also disputed questions of fact, no expression of opinion can be made regarding the same in this petition. While the Domestic Violence Case should reach its logical conclusion on merits before the Magistrate to that extent, insofar as the petitioners 2 to 6 are concerned, they were not prima facie shown to have lived at any point of time jointly in the same house with the 2nd respondent and the 1st petitioner and as the 2nd petitioner is carrying on his occupation as a doctor at Mangalagiri and is living with his wife and children there and as the 3rd, 5th and 6th petitioners are not shown to be residing in the same house with the parties at any point of time, the possibility of their indulging in any act of domestic violence at any time is unnatural. In the absence of any specific allegations against them at any point of time, the mere vague, general and omnibus allegations made against them cannot be a justification for continuance of the proceedings against them and inherent powers of this Court should be invoked in their favour. Accordingly, the Criminal Petition is allowed in respect of the petitioners 2 to 6 and is dismissed in respect of the 1st petitioner and the further proceedings in DVC.No.2 of 2010 on the file of Judicial First Class Magistrate, Nalgonda are quashed against the petitioners 2 to 6. _____________________ G. BHAVANI PRASAD, J Date: 07-12-2011 Ksn