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1. Challa Sivakumar And Two Others vs 1.Challa Anita And Two Others on 24 October, 2018

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO

Crl.P.No.13188 of 2013

24.10.2018

1. Challa Sivakumar and two others …Appellants

1.Challa Anita and two others. Respondents

Counsel for petitioners: Sri V.Narayan Reddy

Counsel for Respondent Nos.1 and 2: Sri M.Venkata Narayana
Counsel for Respondent No.3: Addl.Public Prosecutor (AP)

Gist:

Head Note:

? Cases referred:
1. 2015 (2) ALD (Crl.) 470 (AP)
2. 2012(1) ALD (Crl.) 496 (SC)
3. 2013(1) ALD (Crl.) 147 (AP)
4. (2014) 10 SCC 736

HONBLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Petition No.13188 of 2013
ORDER:

In this petition filed under Section 482 Cr.P.C, the petitioners/
respondents 1 to 3 seek to quash the proceedings against them in
D.V.C.No.6 of 2013 on the file of Judicial Magistrate of First Class,
Sullurpet, SPSR Nellore District.

2a) Petitioners 2 and 3/respondents 2 and 3 are parents of the 1st
petitioner/respondent No.1.

b) Respondent No.1 herein, who is the wife of 1st petitioner, filed DVC
No.6 of 2013 alleging that her marriage with 1st petitioner was performed
on 02.12.2009 at Sullurpet; during marriage, her parents agreed to give
Rs.6 lakhs cash to the 2nd petitioner towards dowry and Rs.80,000/- to the
1st petitioner for purchase of gold ornaments; some time they lived happily
and out of wedlock, they were blessed with a male child on 29.08.2010;
after the birth of child, 1st petitioner came to her parental house and beat
her unnecessarily; while so, in January, 2011 separate family was put up at
Chennai and the expenses were borne by her father; in April 2011, 1st
petitioner raised an issue and picked up quarrel with her family members
and abused her in filthy language; when her parents came to Chennai for
celebrating 1st birthday day function, 1st petitioner abused her and her
mother in vulgar and un-parliamentary language and beat her black and
blue; on coming to know of the same, her father took her and children to
Sullurpet in September, 2011; when the elders intervened and mediated
the matter on 21.06.2012; the 1st petitioner agreed to return the dowry
amount of Rs.6 lakhs and to pay lump sum amount of Rs.3 lakhs towards
maintenance and demanded for dissolution of marriage; contrary to same,
he issued lawyer notice dated 04.07.2012 with all false allegations and
sought for restitution of conjugal rights which was suitably replied; to
avoid paying the agreed amount of Rs.9 lakhs, he filed HMOP
No.71/2012 before Senior Civil Judge, Gudur for dissolution of marriage
and the same is pending for disposal; she also filed HMOP No.92/2012 for
the same relief, wherein the 1st petitioner remained ex parte and the Court
after enquiry granted decree of divorce on 18.12.2012; thereafter she filed
the present DVC against petitioners/respondents for various reliefs
mentioned in the petition.

Hence, the instant quash petition.

3) Heard arguments of Sri V. Narayana Reddy, learned counsel for
petitioners; Sri M. Venkata Narayana, learned counsel for respondents 1
2 and learned Additional Public Prosecutor for the State (Andhra
Pradesh).

4) I heard both the learned counsel about the maintainability of DVC
in view of judgment of this Court in Giduthuri Kesari Kumar and others
vs. State of Telangana and others , wherein this Court observed thus:
Para14. To sum up the findings:

i) Since the remedies under D.V. Act are civil remedies, the
Magistrate in view of his powers under Section 28(2) of D.V. Act
shall issue notice to the parties for their first appearance and
shall not insist for the attendance of the parties for every hearing
and in case of non-appearance of the parties despite receiving
notices, can conduct enquiry and pass ex parte order with the
material available. It is only in the exceptional cases where the
Magistrate feels that the circumstances require that he can insist
the presence of the parties even by adopting coercive measures.

ii) In view of the remedies which are in civil nature and enquiry is
not a trial of criminal case, the quash petitions under Sec. 482
Cr.P.C. on the plea that the petitioners are unnecessarily arrayed
as parties are not maintainable. It is only in exceptional cases like
without there existing any domestic relationship as laid under
Section 2(f) of the D.V. Act between the parties, the petitioner filed
D.V. case against them or a competent Court has already
acquitted them of the allegations which are identical to the ones
levelled in the Domestic Violence Case, the respondents can seek
for quashment of the proceedings since continuation of the
proceedings in such instances certainly amounts to abuse of
process of Court.

In view of the above ruling, I gave my anxious consideration to
know whether there exists any exceptional circumstances to entertain the
quash petition.

5) Severely fulminating the averments in DVC petition as false and
not maintainable, learned counsel for petitioners mainly contended that the
1st respondent/complainant always resided with her parents only. Though
a separate family was setup at Chennai on 25.01.2011, the 1st respondent
left the 1st petitioner in February, 2011 and went away to her parental
house. She used to visit Chennai once in a month and stayed for a week
and leave to her parents. Finally she left the matrimonial home in
February, 2011 and she never came back. Thus she stayed in Chennai
hardly for two months in her entire matrimonial life. Therefore, the 1st
petitioner got issued legal notice on 04.07.2011 requesting her to come
and join his society to lead happy marital life. Instead of joining him, the
1st respondent filed HMOP No.92/2012 on the file of Senior Civil Judge,
Gudur and obtained decree of divorce and thereafter she filed the DVC
with all false allegations as if the petitioners ill-treated her and necked her
and her child out of matrimonial home. The petitioners 2 and 3 are living
separately at Vidyanagar, Kota Mandal, SPSR Nellore District, which is
faraway from Chennai and therefore, they never lived along with her son
and 1st respondent under one roof and hence DVC is not maintainable
against them. Sofaras 1st petitioner is concerned, the case is not
maintainable against him either because already a divorce decree was
granted on 18.12.2012 and thereafter she has been living with her parents
and hence no domestic relationship exists between her and petitioners
within the ambit of Section 2(f) of the Protection of Women from
Domestic Violence Act, 2005 (for short DV Act) as on the date of filing
of DVC No.6/2018 i.e, 25.07.2013. Hence the continuation of proceedings
in DVC No.6/2018 against petitioners would amount to abuse of process
of the Court. He placed reliance on the following decisions:

i) Inderjit Singh Grewal v. State of Punjab and another

ii) Medi Koteswara Prasad v. Medi Manemma and others
Learned counsel thus prayed to allow the petition.

6) Per contra, learned counsel for 1st respondent would argue that all
the acts of domestic violence were committed by the petitioners during the
subsistence of the marriage as the 1st petitioner within one year after the
marriage showed abhorrence against the 1st respondent and her child
without any plausible reason and left them to the mercy of parents of the
1st petitioner and when the elders tried to compromise the issue, he curtly
stated before them that he wanted a divorce and agreed to pay
Rs.9,00,000/- to the 1st respondent and her child. However, without taking
his wife and child to his fold or paying the amount as agreed before the
elders, surprisingly, issued a lawyer notice dated 04.07.2012 with all false
allegations and sought for restitution of conjugal rights, contrary to his
declaration before mediators that he wanted only a divorce. Learned
counsel further submitted that the 1st respondent gave a suitable reply
notice dated 11.07.2012. To avoid payment of the agreed amount of
Rs.9,00,000/-, the 1st petitioner filed HMOP No.71/2012 seeking
dissolution of marriage. In those circumstances, having no other go, the 1st
respondent was also constrained to file HMOP No.92/2012 and the 1st
petitioner remained ex parte and the Court after enquiry granted decree of
divorce on 18.12.2012. Learned counsel would further argue that the said
divorce decree is not an obstacle for the 1st respondent to file petition
under Section 12 of DV Act for the domestic violence committed by the
petitioners during the subsistence of the marriage. He thus prayed to
dismiss the petition.

7) The point for determination is:

Whether there exist any exceptional circumstances as
envisaged in the judgment of this Court in Giduthuri Kesari
Kumars case (1 supra) to entertain the present petition?

8) POINT: As extracted supra, in Giduthuri Kesari Kumars case
(1 supra), this Court observed that in view of the remedies enlisted in the
D.V Act, which are civil in nature and enquiry is not a trial of criminal
case, the quash petitions under Section 482 Cr.P.C are not generally
maintainable except in exceptional cases like, without there existing any
domestic relationship as laid under Section 2(f) of the D.V Act between
the parties, the petitioner filed D.V case against the respondents or a
competent Court has already acquitted the respondents of the allegations
which are identical to the ones levelled in the Domestic Violence case etc.

a) Now the petitioners seek to project the lack of domestic relationship
between the parties as an exceptional ground for seeking quashment of the
proceedings. Their case is that the 1st respondent herself obtained decree
of divorce against 1st petitioner from the Court of Senior Civil Judge,
Gudur, in HMOP No.92/2012 on 18.12.2012 and thereafter she filed the
D.V case and therefore, the said case is not maintainable as the domestic
relationship is no longer in existence. In Medi Koteswara Prasads case
(3 supra), a learned Single Judge of this Court no doubt held that by virtue
of the dissolution of the marriage between the parties, the 1st petitioner
cannot be termed as an aggrieved person as defined in Section 2(a) of
the D.V. Act. Learned Judge further observed that what is significant is
that only concerned woman, who is or has been in domestic relationship
with the respondent, who is alleged to have been subjected to any act of
domestic violence by the respondent can alone be termed as aggrieved
person who can file the complaint for relevant releifs under different
provisions of the D.V.Act. Learned Judge ultimately quashed the
proceedings against the petitioners therein. In Inderjit Singh Grewals
case (2 supra), Honble Apex Court held that petition under Section 12 of
D.V. Act is not maintainable because parties were already divorced. We
will presently see that the said decision was rendered in a different
context.

b) Basing on the above rulings, the petitioners implored to quash the
proceedings. I am afraid, the request of the petitioners cannot be
conceded in view of the subsequent decision of Apex Court in Juveria
Abdul Majid Patni v. Atif Iqbal Mansoori and another . One of the
questions engaged in that case was, whether a divorced woman can seek
for reliefs against her ex-husband under Sections 18 to 23 of the Domestic
Violence Act, 2005. The Sessions Court and High Court of Bombay
having considered the fact that the marriage between the parties was
dissolved by Khula divorce on 09.05.2008, held the domestic relationship
between the parties was severed by the date of filing of DVC on
28.09.2009 and therefore, the said D.V case was not maintainable.
However, Honble Apex Court on a threadbare analysis of the different
provisions of the D.V.Act, has come to a different conclusion. Elucidating
Section 2(a) which defines the term aggrieved person, Supreme Court
observed that apart from the woman, who is in a domestic relationship,
any woman, who has been in a domestic relationship with the respondent,
if alleges to have been subjected to act of domestic violence by the
respondent, comes within the meaning of aggrieved person. Similarly,
analyzing Section 2(f), which deals with the term domestic relationship,
the Apex Court held that a person aggrieved (wife herein), who at any
point of time has lived together with husband in a shared household is also
covered by the meaning of domestic relationship.

c) In the same lines, the Apex Court extrapolated the term shared
household defined under Section 2(s) and observed that if the aggrieved
person, at any stage has lived in a domestic relationship with the
respondent in a house, the person aggrieved can claim a shared household.
The Apex Court also happened to analyse Section 3, which defines the
term domestic violence. It held that apart from physical abuse,
sexual abuse and verbal and emotional abuse, the economical abuse
also constitute domestic violence. Ultimately, the Apex Court held thus:
Para 30: An act of domestic violence once committed, subsequent
decree of divorce will not absolve the liability of the respondent from
the offence committed or to deny the benefit to which the aggrieved
person is entitled under the Domestic Violence Act, 2005 including
monetary relief under Section 20, child custody under Section 21,
compensation under Section 22 and interim or ex parte order under
Section 23 of the Domestic Violence Act, 2005.

It should be noted, in the process, the Apex Court also discussed its
earlier judgment in Inderjit Singh Grewals case (2 supra) and observed
thus:

Para 28: In Inderjit Singh Grewal [Inderjit Singh Grewal v. State
of Punjab, (2011) 12 SCC 588 : (2012) 2 SCC (Civ) 742 : (2012) 2
SCC (Cri) 614] the appellant Inderjit Singh and Respondent 2 of the
said case got married on 23-9-1998. The parties to the marriage
could not pull on well together and decided to get divorce and,
therefore, filed a case for divorce by mutual consent under Section
13-B of the Hindu Marriage Act, 1955. After recording the statement
in the said case, the proceedings were adjourned for a period of
more than six months to enable them to ponder over the issue. The
parties again appeared before the Court on second motion and on
the basis of their statement, the District Judge, Ludhiana vide
judgment and order dated 20-3-2008 allowed the petition and
dissolved their marriage. After dissolution of marriage, the wife filed
a complaint before the Senior Superintendent of Police, Ludhiana
against Inderjit Singh under the provisions of the Domestic Violence
Act alleging that the decree of divorce obtained by them was a sham
transaction. It was further alleged that even after getting divorce
both of them had been living together as husband and wife. In the
said case, the Superintendent of Police, City I conducted the full-
fledged inquiry and reported that the parties had been living
separately after the dissolution of the marriage. Hence, no case was
made out against Inderjit Singh. In this context, this Court held that
Section 12 application to Magistrate under the Domestic Violence
Act challenging the said divorce was not maintainable and in the
interest of justice and to stop the abuse of process of court, the
petition under Section 482 CrPC was allowed. The law laid down in
the said case is not applicable for the purpose of determination of the
present case
In view of the subsequent judgment of the Apex Court categorically
holding that domestic violence once committed, subsequent decree of
divorce will not absolve the liability of the respondent and petition under
D.V. Act is maintainable, the judgment in Medi Koteswara Prasads case
(3 supra) is no longer a good law and the judgment in Inderjit Singh
Grewals case (2 supra) is also not applicable.

9) The instant case is concerned, it is the categorical plea of the 1st
respondent that during the subsistence of the marital tie between herself
and 1st petitioner, all the petitioners have subjected her to domestic
violence and they necked her and her child out of matrimonial home and
therefore, she took shelter in her parental home and the efforts made by
the elders did not fructify and though the 1st petitioner wanted divorce on
the promise of paying Rs.9,00,000/- but betrayed her and hence she was
constrained to file divorce application and obtained decree and later filed
D.V case to obtain the reliefs. In view of the judgment in Juveria Abdul
Majid Patnis case (4 supra), the subsequent decree of divorce will not
interdict her from filing the D.V case in respect of the act of domestic
violence allegedly caused by the petitioners. Therefore, the plea of non-
existence of domestic relationship at present cannot be taken as an
exception to entertain the quash petition.

10) In the result, this Criminal Petition is dismissed with the observation
that the petitioners shall appear before the Trial Court and vindicate their
defence. The Trial Court is directed to decide the case on merits
uninfluenced by the observations made in this order.

As a sequel, miscellaneous petitions pending, if any, shall stand
closed.

U. DURGA PRASAD RAO, J
Date: 24.10.2018

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