Petition filed u/s 482 Cr.P.C to quash proceedings u/s 12 of Domestic Violence Act is not maintainable

 Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 ANNUR P.O PAYYANNOOR 689 008 R2 BY ADV. SRI.SURESH KUMAR KODOTH R2 BY ADV. SRI.K.P.ANTONY BINU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19 08 2020 ALONG WITH OP(Crl.).234 2019 THE COURT ON 15 09 2020 PASSED THE FOLLOWING Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY THE 15TH DAY OF SEPTEMBER 2020 24TH BHADRA 1942 OP(Crl.).No.234 OF 2019 AGED 35 YEARS D O. P. K. PADMANABHAN MASTER VARAVAYAL ROAD MOORIKOVVAL ANNUR P.O. PAYYANNUR NOW RESIDING AT THRIKKARIPUR SRI.SURESH KUMAR KODOTH AGED 39 YEARS S O. P.K. GOPLAKRISHNAN MASTER RESIDING AT KERALA WATER AUTHORITY GUEST HOUSE KACHERIPADY ERNAKULAM KOCHI 682 018 LATHA P. C W O. P.K. GOPALAKRISHNAN MASTER RESIDING AT KERALA WATER AUTHORITY GUEST HOUSE KACHERIPADY ERNAKULAM KOCHI 682 018 JYOTHI P. C D O. P.K. GOPALAKRISHNAN MASTER RESIDING AT KERALA WATER AUTHORITY GUEST HOUSE KACHERIPADY ERNAKULAM KOCHI 682 018 THIS OPHAVING BEEN FINALLY HEARD ON 19 08 2020 ALONG WITH Crl.MC.7977 2018(F) THE COURT ON 15 09 2020 DELIVERED THE FOLLOWING Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 C.R P.B.SURESH KUMAR J Criminal M.C.No.79718 Original PetitionNo.2319 Dated this the 15th Day of September 2020 JUDGMENT These matters relate to one and the same proceedings under the Protection of Women from Domestic Violence Act 2005 the Act) and they are therefore disposed of by this common judgment. Parties and documents are referred to in this judgment as they appear in Crl.M.C.No.79718. The second respondent is the wife of the third respondent and the petitioners are the mother and sister respectively of the third respondent. The marriage between the second respondent and the third respondent was solemnized on 18.11.2005 and they have a child aged nine years. The second respondent instituted M.C.No.217 on the files of the Court of the Judicial Magistrate of the First Class I Hosdurg under Section Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 12 of the Act against the petitioners and the third respondent Annexure AI is the application preferred by the second respondent in this regard. It is alleged by the second respondent in Annexure A1 among others that the petitioners had taken away her gold ornaments on the very first day of her marriage that the petitioners have been ill treating her thereafter with the support of the third respondent that the petitioners and the third respondent did not extend to her any care or protection while she was carrying that the petitioners and the third respondent were indifferent towards her even after she delivered the child that the petitioners and the third respondent used to humiliate her parents and that the third respondent is providing only paltry amount for her sustenance. The reliefs sought in the proceedings on the said allegations include orders prohibiting the petitioners and the third respondent from committing acts of domestic violence orders directing the petitioners and the third respondent to return the gold ornaments orders directing the third respondent to pay maintenance and to provide alternative accommodation to the second respondent orders restraining the third respondent from alienating his properties etc. The case set out by the petitioners in the Crl.M.C is that the facts disclosed in the application do not make out a case of domestic violence as defined under the Act and Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 the proceedings would therefore amount to an abuse of the process of the court liable to be quashed under Section 482 of the Code of Criminal ProcedureKLT 79 this Court held that a party against whom a proceedings is initiated under Section 12 of the Act cannot approach this court for quashing the proceedings invoking the power of this Court under Section 482 of the Code and that the power of this Court under Section 482 can be exercised only in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of the process of the court or to secure the ends of justice when cognizance is taken by the Magistrate for an offence under sub sectionof Section 31 or Section 33 of the Act. Paragraphs 17 to 19 of the said judgement read thus “17. In an application filed under section 12 claiming reliefs either under section 18 19 20 21 or 22 the Magistrate can pass an interim order under section 18 to 23. All these reliefs are in respect of the civil liability and not the criminal liability. If that be so it is not for this court under section 482 of the Code of Criminal Procedure to quash the proceedings invoking the extra ordinary inherent powers provided under the Code as such order is necessary neither to give effect to any order under the Code nor to prevent abuse of the process of any court nor to secure the ends of justice. An offence under sub sectionof Section 31 or an offence under section 33 taken cognizance by the Magistrate or an order passed by the Magistrate directing the respondent to execute a bond as provided under sub section 3 of Section 19 which by the mandate under sub Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 section 5 that such order is to be treated as an order under Chapter VIII of Code of Criminal Procedure stand on different footing. They are truly criminal proceedings Except in respect of such proceedings it is not for the High Court to exercise the extraordinary inherent jurisdiction to quash the proceedings pending before the Magistrate 18. A person to whom notice was issued by the Magistrate in a petition filed under section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable either on the ground that the person who filed the application is not an aggrieved person as defined under section 2(a) or the application is not filed for an aggrieved person. He is also entitled to contend that he is not a respondent as defined under section 2(q) of the Act. He is also entitled to contend that there is no domestic violence as defined under section 2(g or the reliefs sought for are not the reliefs provided under the Act. In all such cases it is not for this court to consider the question when it could legitimately be raised and decided before the Magistrate. So long as the respondent is not an accused in a proceeding initiated under the Act and pending before the Magistrate and he is not obliged to apply for bail in respect of such proceedings and even his personal presence is not mandatory for hearing and disposing a petition under section 12 it is not for this court to consider the question whether the petitioner before the Magistrate is an aggrieved person as defined under section 2(a) or the respondent is a respondent as defined under clauseof Section 2 or the household is a shared household as defined under clause or whether there is any domestic relationship between the parties or whether the reliefs sought for in the petition could be granted. These are matters which are to be considered by the Magistrate Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 before granting relief in the petition filed under section 12 either under section 18 or 19 or 20 or 21 or 22 or 23 19. Learned counsel appearing for the petitioner pointed out that in various decisions of this court and the other High Courts and Apex Court proceedings initiated under section 12 of the Act were quashed invoking the powers under section 482 of Code of Criminal Procedure and in such circumstance it cannot be held that inherent powers under section 482 of the Code of Criminal Procedure is not to be exercised. In none of those decisions the question was addressed as stated above and in fact in none of those decisions question whether the inherent jurisdiction under section 482 of Code of Criminal Procedure is to be invoked to quash a proceeding initiated under the Act which is enacted to provide a remedy under the civil law was not considered. In such circumstances for the reason that proceeding under the Act was quashed invoking the powers under section 482 of the Code of Criminal Procedure it cannot be said that the powers under section 482 is to be invoked in all cases. I am of the firm view that a party against whom proceedings were initiated by the Magistrate under section 12 on a petition filed under section 12(1) of the Act seeking relief under section 18 to 23 has adequate remedy before the Magistrate it is not for the High Court to exercise the extraordinary inherent powers and quash the proceedings. Section 482 is to be invoked in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of process of any court or to secure the ends of justice when cognizance was taken by the Magistrate for an offence under sub sectionof Section 31 or Section 33 of the Act. In all other cases the affected party could raise the question and seek an order from the Magistrate including the maintainability of the proceedings Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 and if an order is passed against him he is at liberty to file an appeal as provided under section 29 of the Act. If that be so it is not for this court to invoke the extraordinary jurisdiction under section 482 of the Code of Criminal Procedure to quash a proceeding initiated under section 12 1) of the Act.” As evident from the extracted paragraphs of the judgement this Court has held in the said case that a person to whom notice is issued by the Magistrate in an application under Section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable against him on the ground either that the person who filed the application is not an ‘aggrieved person’ as defined in Section 2(a) of the Act or that he would not fall within the definition of the ‘respondent’ in Section 2(q) of the Act or that the allegations do not make out a case of ‘domestic violence’ as defined in Section 2(g) of the Act or that the reliefs sought are not reliefs provided for in the Act. It was also held by this Court in the said case that such contentions as regards the maintainability of the application if raised shall be decided by the Magistrate. It was further held by this Court in the said case that so long as the respondent is not an accused in a proceedings initiated under the Act he is not even obliged to apply for bail in respect of such proceedings and his personal presence is not Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 mandatory for hearing and disposing of an application under Section 12. In the light of the decision of this Court in Vijayalekshmi according to me the Criminal M.C. is not Despite the findings aforesaid it is necessary to mention that in so far as the proceedings under the Act are to be dealt with by criminal courts in accordance with the procedure prescribed under the Code it has become a common practice now to rope in the relatives at times even distant relatives of the person from whom relief is essentially intended as respondents in the applications instituted under the Act without any bonafides and with oblique motives on omnibus and vague allegations despite various judgements of the Apex Court deprecating that practice. In Preeti Gupta v. State of Jharkhand 7 SCC 667 the Apex Court has taken note of the said fact and observed that majority of such complaints are filed either on the advice of the lawyers or with their concurrence. Be that as it may. It is also observed that notice is invariably issued to all the respondents in such applications without application of mind as to whether the aggrieved person has made out a case of domestic violence against all of them as a result of which it is noticed that some of the proceedings under the Act where parties are arrayed as Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 respondents without making out a case of domestic violence against them have become a tool of harassment at the hands of the aggrieved persons to obtain reliefs which they are not entitled to. The statute being a remedial one to protect the women from domestic violence it has to be enforced having regard to the realities of life. As such even while taking all endeavours possible to protect the aggrieved persons from domestic violence the courts have to be extremely cautious and careful to ensure that its powers are not being abused. One of the important steps to be taken towards that direction is to scrutinize the applications meticulously and satisfy that a case of domestic violence as defined in the Act is made out against all the respondents and no one is arrayed as a party to the proceedings on omnibus and vague allegations so that the court can refrain from issuing notice to them. The provisions in the statute especially Section 28 conferring power on the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under sub section of Section 23 would indicate that the scheme of the statute is that the approach of the courts shall be to enforce the provisions of the Act keeping in mind the fact that the parties who are close relatives in most of the cases would at some point of time reconcile their differences and lead a life in harmony and Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 the opportunity for the parties to bring about a settlement of their differences is not lost on account of the steps taken in the proceedings. If proceedings under the Act are permitted to be used as tools of harassment I have no doubt that the possibility of the parties settling their disputes amicably and leading a life in harmony would be bleak In the circumstances the Original Petition and Criminal M.C. are disposed of without prejudice to the right of the petitioners to approach the Magistrate for reliefs as provided for in Vijayalekshmi. If the petitioners approach the Magistrate as permitted the court below shall consider their requests in the light of the decision of this Court in Vijayalekshmi and the observations made in this judgment. In so far as the petitioners are granted liberty to move the Magistrate for reliefs in terms of the judgment of this Court in Vijayalekshmi the relief sought by the second respondent for time bound disposal of the proceedings is declined for the present. P.B.SURESH KUMAR Sd JUDGE Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 APPENDIX OF Crl.MC 7977 2018 PETITIONER S EXHIBITS RESPONDENTS EXHIBITS: NIL COPY OF THE COMPLAINANT RECEIVED BY THE ACCUSED AND FILED BY THE SECOND RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS HOSDURG TRUE COPY OF THE TREATMENT RECORDS AND DISCHARGE SUMMARY OF THE FIRST Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 APPENDIX OF OP(Crl.) 234 2019 PETITIONER S EXHIBITS TRUE COPY OF MC DATED 28 12 2016 FILED BEFORE THE JFCM 1 HOSDURG TRUE COPY OF ORDER DATED 28.12.2016 IN CMP 10887 2016 TRUE COPY OF ORDER DATED 14.02.2016 IN CMP 10887 2016 TRUE COPY OF COUNTER AFFIDAVIT DATED RESPONDENTS EXHIBITS: NIL

Summary: The Hon’ble High court of Kerala in Latha.P.C Vs. State of Kerala [Crl.MC.No. 7977 of 2018(F)] held that a party against whom proceedings are initiated under section 12 of Protection of Women from Domestic Violence Act, cannot approach High Court for quashing the proceedings invoking the power u/s 482 of Cr.P.C. It was further observed by the Hon’ble court that “this Court has held in the said case that a person to whom notice is issued by the Magistrate in an application under Section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable against him, on the ground either that the person who filed the application is not an ‘aggrieved person’ as defined in Section 2(a) of the Act, or that he would not fall within the definition of the ‘respondent’ in Section 2(q) of the Act, or that the allegations do not make out a case of ‘domestic violence’ as defined in Section 2(g) of the Act or that the reliefs sought are not reliefs provided for in the Act. It was also held by this Court in the said case that such contentions as regards the maintainability of the application, if raised, shall be decided by the Magistrate. It was further held by this Court in the said case that so long as the respondent is not an accused in a proceedings initiated under the Act, he is not even obliged to apply for bail in respect of such proceedings and his personal presence is not mandatory for hearing and disposing of an application under Section 12. In the light of the decision of this Court in Vijayalekshmi, according to me, the Criminal M.C. is not maintainable.” It was further expounded by the court that “Despite the findings aforesaid, it is necessary to mention that in so far as the proceedings under the Act are to be dealt with by criminal courts in accordance with the procedure prescribed under the Code, it has become a common practice now to rope in the relatives, at times even distant relatives of the person from whom relief is essentially intended, as respondents in the applications instituted under the Act without any bonafides and with oblique motives, on omnibus and vague allegations, despite various judgements of the Apex Court deprecating that practice. In Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, the Apex Court has taken note of the said fact and observed that majority of such complaints are filed either on the advice of the lawyers or with their concurrence.”