HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.4078 OF 2008 AND CRIMINAL REVISION CASE No.624 OF 2011 DATE: 23-09-2011 BETWEEN: CRIMINAL PETITION No.4078 OF 2008 P.V. Narasimhulu and another. - - - Petitioners/ A-2 and A-3. AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad and another. - - - Respondents/ Complainant. CRIMINAL REVISION CASE No.624 OF 2011 Dr. K. M. Sumalatha. - - - Revision Petitioner. AND Dr. P.V. Parthasarathi and The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondents/ Complainant. This Court made the following : HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.4078 OF 2008 AND CRIMINAL REVISION CASE No.624 OF 2011 COMMON ORDER: The parties involved in both these cases and also the subject matter involved therein are being one and the same, both these cases are being disposed off by way of this Common Order. This Criminal Petition is filed by the Petitioners/A-2 and A-3 (For short, ‘A-2 and A-3’) under Section 482 Cr.P.C., seeking to quash proceedings in Crl.M.P. No.4571 of 2008 on the file of the Court of XIV Chief Metropolitan Magistrate, Nampally, Hyderabad, registered under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) in so far as the Petitioners/A-2 and A-3 are concerned and the Criminal Revision Case is filed by the Complainant under Section 397 Cr.P.C. seeking to set aside order passed in Criminal Appeal No.128 of 2010 dated 08-02-2011 by the V Additional Metropolitan Sessions Judge (Mahila Court) Hyderabad 2. Whereas the Petitioners in Criminal Petition No.4078 of 2008 are A-2 and A-3, the Appellant in Criminal Appeal No.128 of 2010 is A-1 the second Respondent herein is the Complainant in the Crl.M.P. No.4571 of 2008, for the sake of convenience, I refer the parties as arrayed in the Crl.M.P. No.4571 of 2008. 3. The story set out in the complaint is as follows : The Complainant is Dentist by profession. The marriage of the complainant with A-1, son of A-2 and A-3 was performed at Tirupathi as per Hindu rites and customs and at the time of marriage an amount of Rs.2,00,000/- and 24 sovereigns of gold was given as dowry to A-1 to A-3. Subsequently, A-1 and the Complainant were blessed with two children. After the birth of the first child, A-1 approached the complainant with some papers and asked the complainant to sign on them, whereas, the complainant coming to know that those papers were mutual consent divorce papers was shocked and refused to sign on them. Therefore, A-1 threatened her with dire consequences and consequently she had no alternative option except to sign those papers and accordingly she signed those papers and he obtained mutual divorce in a single day on the file of the Judge, Family Court by coercion and fraud. Thereafter, she filed O.S. No.7 of 2002 on the file of the Court of V Additional Judge, Tirupati for declaring the decree of divorce as null and void and obtained exparte decree accordingly. Subsequently, A-1 married another woman by name Sunitha to the knowledge of A-2 and A-3, who also in fact encouraged A-1 to go for the second marriage and when she questioned the act of A-1, A-2 and A-3 supported him and all of them also started harassing her mentally and physically and further threatened to cause harm to her and her children. A-1 also developed illicit intimacy with one Doctor and informed her that he would get rid of her and marry the Doctor. Further, A-1 used to visit the house in a drunken condition and beat her in the presence of their children also. Further, she as a Dentist was maintaining a hospital in her name and A-1 to A-3 forced her to convert the property into a registered firm and compelled her to enter into a Deed of Partnership and after that it was named and styled as ‘Dr. Partha Dental Hospital and Research Centre’. Further, he got hospitals at Kukatpally and Himayathnagar named as Dr. Partha Dental Hospital and Research Centre, which were set up in that name by force. Further, the harassment became unbearable and whenever she questioned about the harassment and also the activities of A-1, he used to beat her at Tirupati and also at Hyderabad. Further, being a womanizer he transmitted his sexual disease known as Herpes genitals to her and thereafter he continued to have forcible sexual relationship with her. Further, on 21-05-2008 while she was at the house of her friend by name Shoba, A-1 to A-3 came there and informed that the first of them would severe his relationship with her subject to transferring her house plot in his name and also paying Rs.5-00 lakhs to them as additional dowry and then they also threatened to kill her and the children and further they shouted at Smt. Shoba for giving shelter to her. Further, never A-1 took care of the children also and on the other hand, threatened to take care of the children from her custody. Further, she is not in a position to maintain herself and the children and hence prayed the Court to grant the following reliefs : 1. To pass protection order under Section 18 of the Act. 2. To pass residence order under Section 19 of the Act. 3. To direct the respondent to pay monetary relief under Section 20 and/or maintenance of Rs.50,000/- p.m. to the petitioner and her children. 4. To pass protection and child custody order under section 21 of the Act. 5. To direct the respondent to grant compensation or damages under section 22 and also share in the properties. 4. The enquiry Court considered the matter so far as A-1 is concerned and partly allowed the matter directing A-1 not to interfere with the life of the complainant and children and to pay Rs.40,000/- p.m. to them towards accommodation, rent, medical expenses and maintenance payable by 5th of every month with effect from November, 2009. 5. It is contended on behalf of A-1 to A-3 by their learned counsel that whereas the Family Court, Hyderabad, a special Court granted mutual divorce in favour of A-1 and the complainant, the Civil Court got no jurisdiction to entertain the suit and cancel the mutual divorce decree granted by the Family Court by virtue of Section 9 C.P.C. and hence it is to be deemed that it is in force and as such, the question of making any domestic violence by A-1 to A-3 against the complainant does not arise at all and the case has no sustainability. Further, it is contended by him that A-2 and A-3 never lived in a shared house along with the complainant to attract section 2 (f) and 2 (q) of the Act, which is a condition precedent to consider the provisions under which the reliefs are sought for. He has brought to the notice of the Court what is specified in the complaint that A-1 and the complainant are the residents of Hyderabad and A-2 and A-3 are shown as the residents of Chittoor district only in this context. Further, it is contended by him that though the case was allowed in favour of the complainant so far as A-1 is concerned by the XIV Additional Chief Metropolitan Magistrate, Hyderabad, the V Additional Metropolitan Sessions Judge’s Court (Mahila Court) Hyderabad, on proper assessment of the material on record, allowed the Appeal No.128 of 2010 and there is no reason to interfere with the judgement rendered in the Appeal. The learned counsel for the complainant while conceding the plea that no case is made out against A-2 and A-3 with reference to the relevant provisions has submitted that there are clear allegations made by the complainant to the effect that by playing fraud and coercion, A-1 obtained the decree of mutual divorce on the file of the Family Court, Hyderabad, following which, she filed the Civil Suit and got cancelled the decree, which is binding upon A-1 and further there is good material to the effect that A-1 harassed the complainant in many ways and under those circumstances, it is to be held that there has been domestic violence which attracts the relevant provisions. It is further contended by him that the circumstances put-forth by the complainant amply provide that A-1 has been making efforts to take away the children from the custody of her and further the evidence recorded amply establishes that he got big properties compared to the properties the complainant has been holding and therefore the complainant is entitled to necessary monetary reliefs subject to the status of herself and A-1. Further, it is also contended by him that the enquiry Court properly examined and disposed of the matter, whereas the appellate Court failed to appreciate the matter properly. According to him, the appellate Court disposed of the matter only on surmises and conjectures. 6. The point for consideration is whether there are sufficient grounds to quash the proceedings in Crl.M.P. No.4571 of 2008, pending on the file of XIV Chief Metropolitan Magistrate, Nampally, Hyderabad so far as the Petitioners/A-2 and A-3 are concerned and to set aside the Judgement in the Appeal? 7. In order to uphold the claim of the complainant, the provisions of Section 2 (q) read with the provisions of section 2 (f) are to be satisfied at the outset. 8. Section 2 (f) of the Protection of Women from Domestic Violence Act, 2005 provides : “‘Domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” 8 (a). Therefore, in order to constitute domestic relationship : 1) There should be a relationship between two persons who live or have at any point of time lived together in a shared household and 2) They are related by consanguinity, marriage or through a relationship in the nature of marriage adoption or members of joint family who lived together. 8 (b). So far as A-2 and A-3 are concerned even as per the complaint, they are shown as the residents of Chittoor, whereas A-1 and the complainant are shown as the residents of Hyderabad and also are shown as the persons who lived together as wife and husband subsequent to their marriage and before parted from each other. There is absolutely no prima-facie material to the effect that A-2 and A-3 lived together along with A-1 and the Complainant in a shared household being related to the complainant by virtue of the marriage between her and A-1. Therefore, such a domestic relationship between the complainant on one hand and A-2 and A-3 on the other hand is not established. 8 (c). Section 2 (q) of the Act reads as follows : “‘Respondent’ means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.” 9. By virtue of Section 2(q) of the Act, in order to seek any relief under the Act by the Complainant having been aggrieved by the alleged acts of A-1 to A-3 at the outset it is to be shown prima-facie that domestic relationship existed between her and against them. The proviso there under that an aggrieved wife or female living in a relationship in the nature of a marriage may also complain against a relative of the husband or the male partner is subject to establishing prima-facie the existence of such domestic relationship. Therefore, when it is not shown prima-facie that such domestic relationship as defined in Section 2 (f) of the Act existed between the Complainant and A-2 and A-3, the question of proceeding against A-2 and A-3 to grant the reliefs prayed for against them does not arise at all. Consequently, the proceedings in the Domestic violence case so far as A-2 and A-3 are concerned are to be quashed. 10. Leaving that apart, then what is remained is the consideration of the question of the application of the proceedings with reference to A-1. 11. Section 18 of the Act provides for granting protection orders, section 19 of the Act provides for granting residence orders, section 20 of the Act provides for granting necessary monetary reliefs and section 22 of the Act provides for granting necessary compensation, but all subject to existence of domestic violence as a condition to do so and also subject to satisfaction of the requirements of section 2(f) and 2(q) of the Act. Unless, domestic relationship is existed, the question of domestic violence does not arise at all. Further, Section 21 of the Act is with regards to granting temporary orders of custody of a child or children to the person aggrieved pending disposal of such main application. The question of passing such orders do arise only before the disposal of application and not at the time of disposal of it. 12. With reference to the validity of the exparte decree canceling the decree of divorce by mutual consent in O.S. 7 of 2002 on the file of the Court of V additional District Judge at Tirupathi, it is to be examined here as to whether the Civil Court got jurisdiction to cancel the decree granted by the Family Court. The Family Courts Act, 1984 (Act No.66 of 1984) came into force with effect from 14-09-1984. 13. Section 3 of the Act provides with reference to the establishment of Family Courts : “(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, after consultation with the High Court, and by notification,_ (a) shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, a family Court; (b) may establish Family Courts for such other areas in the State as it may deem necessary”. 14. Section 7 (1) of the Act provides that subject to the other provisions of this Act, the Family Court shall : “(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation:- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor”. 15. Further Section 8 of the Act provides with regards to exclusive jurisdiction and pending proceedings : “Where a Family Court has been established for any area-- (a) no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure. 1973 (2 of 1974),- (i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.” 16. Emphatically, by virtue of Section 7 (1) A of the Special Act, the Family Court Judge shall have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nataure referred to in the explanation and by virtue of Section 7(1) B of the Act the Family Court Judge shall be deemed for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Section 9 CPC clearly contemplates and aides in this context that the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred……… Consequently, when there is a special enactment to try the cases covered by Section 7(1) A of the Act, Section 9 CPC debars the trial of any suit or proceedings covered thereunder. 17. In State of Andhra Pradesh v. Majeti Laxmi Kantha Rao (D) by L.Rs. and others[1], it is held that the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of CPC but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil Courts to try civil suit and that the test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. Such exclusion in fact is provided by the provisions of Section 7(1) A of the Act. 18. Therefore, when the Jurisdiction of the Civil Court to try the matter is excluded, the decree passed by the Civil Court is to be deemed to be a nullity and therefore on that basis, the wife cannot claim any such relief. 19. Further, if what the wife claims that subsequent to the cancellation of the divorce decree the husband harassed her in the matter stated by her is true, she can place satisfactory evidence in that regard. Her claim infers that consequent upon the cancellation of the decree of divorce they came together and continued their marital relationship during which he subjected her to harassment in several ways. But, there is no good basis to come to a conclusion as to when they united and when those circumstances took place. In any case, when it is clear that the decree of divorce obtained by mutual consent is in force, the question of any such union and domestic violence from the husband are to be ruled out. Consequently, no relief under Sections 18 to 22 of the Act can be granted to her. Proper analysis of the circumstances of the case amply establish that the wife developed a new story which must for the purpose of harassing the husband or for the purpose of deriving some benefit out of it, which is to be deprecated. Therefore, by virtue of this provision the cancellation of the decree could have been made only by way of filing a suit before the same Family Court Judge subject to upholding the claim of the wife that the decree of divorce was obtained by the husband by playing coercion and fraud against her. Further, by virtue of Section 19 of the Act, she also could have preferred Appeal against the same decree for necessary relief but she did not take such measures for which also adverse inference is to be drawn. 20. The Appellate Court Judge examined the matter properly and there is no reason to interfere with the findings arrived by him. On the other hand, the enquiry Court upheld the claim of the wife only basing upon some surmises and conjectures. 21. Therefore, for the foregoing reasons, the Criminal Revision Case it is to be dismissed and the Criminal Petition is to be allowed. In the result, the Criminal Petition is allowed quashing the proceedings in Crl.M.P. No.4571 of 2008 pending on the file of the Court of XIV Chief Metropolitan Magistrate, Nampally, Hyderabad in so far the Petitioners/A-2 and A-3 are concerned and the Criminal Revision Case is dismissed confirming the judgement dated 08-02- 2011, made in Criminal Appeal No.128 of 2010 passed by the learned V Additional Metropolitan Sessions Judge (Mahila Court) Hyderabad. __________________________ G. KRISHNA MOHAN REDDY, J Date:23-09-2011. DSH THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 219 CRIMINAL PETITION No.4078 of 2008 AND CRIMINAL REVISION CASE No.624 OF 2011 September, 23, 2011 DSH/DA. [1] AIR 2000 SC 2220