IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :18.06.2014 CORAM: THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM CRL.O.P.No.3211 of 2014 1.Dr.S.Z.Zuhhairullah 2.Mrs.S.H.Dilshad Begum M/s.Aleem Beedi Company, Sathyamangalam, Erode District 635 401 ... Petitioners Vs. Mrs.Farhana Begum @ Falak Naaz ... Respondent Prayer : Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to quash the proceedings initiated by the respondent herein under the provisions of the Protection of Women from Domestic Violence Act, 2005 in C.C.No.7428 of 2013, on the file of the II Metropolitan Magistrate Court, Egmore, Chennai. For Petitioner : Mr.V.Govindaraj For Respondent : Mr.Babu Muthu Meeran ORDER
This Criminal Original petition filed under Section 482 Cr.P.C., is to quash the C.C.No.7428 of 2013, on the file of the II Metropolitan Magistrate, Egmore based on a petition filed by the respondent herein under Section 12 of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as the 'Act').
2. The first petitioner is the husband of the respondent and the second petitioner is the mother of the first petitioner. The marriage between the first petitioner and the respondent was solemnised on 23.10.2010, followed by Valima on 24.10.2010. The respondent would state that after marriage, they resided at the first petitioner's residence at Sathyamangalam from 24.10.2010 to 26.10.2010, followed by a reception conducted on 27.10.2010 at Coimbatore. It is further submitted that after the reception, all the jewels of the respondent were taken away by the second petitioner and thereafter, they went for honeymoon to Simla and returned to Sathyamangalam on 02.11.2010. The respondent would state that from 18.11.2010, she stayed along with the first petitioner in his parents house at Nungambakkam, Chennai and at that time, the first petitioner was pursuing his M.D.S course. In the petition, the respondent has made certain allegations against the first petitioner and that the second petitioner had induced the first petitioner not to consummate the marriage. The respondent would state that she conceived and there was pressure exerted by the petitioners to abort the child. It is further stated that the second petitioner on 14.01.2011, called the respondent's mother over phone and asked her to get the child aborted. Several other allegations have been made in the petition and those allegations are mostly targeted against the first petitioner/husband.
3. The respondent has sought for a protection order under Section 18(e) of the Act and to prohibit the first petitioner herein to alienate any of the assets including the share held by him in his name in M/s.Aleem Beedi Company, Sathyamangalam and from operating the bank locker or bank account without the leave of the Court; the respondent has also sought for alternate accommodation for her as enjoyed by her in the shared household or to pay a rent of Rs.25,000/- per month; and for direction to pay monetary relief of Rs,2,00,000/- under Section 20(b) of the Act to meet the medical expenses; monthly maintenance of Rs.35,000/-; Rs.15,000/- for her daughter and Rs.50,00,000/- as compensation under Section 22 of the Act.
4. The petitioners have been served with summons and they were directed to appear before the Court on 28.04.2014, and the matter has been adjourned to 26.06.2014 for their appearance.
5. The learned counsel appearing for the petitioner after narrating the facts in extenso contended that the complaint itself is a sheer abuse of process of law. It is submitted that the marriage between the first petitioner and the respondent was dissolved by pronouncing talaq and the respondent has filed a suit in O.S.No.352 of 2012, on the file of the Principal Family Court, Chennai, wherein she has sought for a judgment and decree to declare the letter dated 08.11.2012, pronouncing Talaq against her as null and void and for restitution of conjugal rights and to restrain the first petitioner from marrying any other women without the consent and knowledge of the respondent. The learned counsel would submit that the averments in the plaint are contradictory to the averments in the petition, which will clearly show that it is motivated and the suit having been filed in December 2012 and the present petition filed under the provisions of the Domestic Violence Act has been filed in November 2013 and the contradictions in the allegations itself would be sufficient to quash the petition. Further, it is submitted that under Section 31 of the Act, the punishment which is contemplated is one year and in terms of 468 Cr.P.C., the limitation for lodging the complaint should be one year and in the instant case Talaq was pronounced on 08.11.2012, the suit was filed on 27.11.2012, and the complaint was filed only in 2013, well beyond the period of one year. Further, the learned counsel referred to certain allegations and averments made in the complaint and submitted that the allegations are derogative and baseless and therefore, this Court should quash the complaint.
6. The learned counsel for the respondent submitted that the Talaq alleged to have been pronounced on 08.11.2012, is by sending a SMS and immediately thereafter, there was discussion and compromise talks between the elders and well-wishers of both families and nothing worked out and therefore, the respondent filed the suit and thereafter, the application under Section 12 of the Act was filed on 01.11.2013. It is further submitted the contentions that the period of one year limitation would be applicable is not correct, since what is contemplated under the Act is only an application and not a complaint and the provisions of Section 468 Cr.P.C., would not be attracted. In support of his contentions, the learned counsel placed reliance on the decision of the Hon'ble Division Bench of this Court in the case of A.S.Parveen Akthar vs. UOI, reported in 2003-1-L.W. 370 and the decision of the Kerala High Court in the case of Muhammad Kunju & Ors., vs. By Advs.Sri.K.A.Hassan, & Ors., in Crl.M.C.No.2036 of 2013, dated 26.03.2013 and the decision of the Bombay High Court in the case of Parvin Firoz Shaikh vs. Firoz Sharfuddin Shaikh in Crl.W.P.No.562 of 2011.
7. Heard the learned counsels appearing for the parties and perused the materials available on record.
8. The first contention that has to be considered is whether the application filed by the respondent under Section 12 of the Act has to be thrown out on the ground that it is filed beyond the period of limitation. Firstly, Section 12 does not contemplate filing of a complaint, but only an application. Therefore, prima facie the contention raised by the learned counsel for the petitioner does not merit acceptance. That apart the statute does not provide for any limitation and it being a special statute, the question of extending the period of limitation as stipulated under Section 468 Cr.P.C., does not arise. Further, the learned counsel for the respondent would submit that even assuming the principles in Section 468 of Cr.P.C., could be made applicable, the application filed by the respondent before the Court under the provisions of the Domestic Violence Act is well within the period of one year.
9. As noticed above, the Act contemplates filing of an application and a domestic violence cannot be a singular incident, it may be a bunch of events or several events continuing for a prolonged period. That apart, Section 31 of the Act only pertains to the punishment in the event of disobedience of a protection order passed under the provisions of the Act. Hence, this Court is of the view that the complaint cannot be quashed on the ground that it is barred by limitation.
10. The next contention advanced by the learned counsel for the petitioner is that the complaint is sheer abuse of process of law and the allegations in the complaint and the allegations in the plaint filed for declaring a talaq as null and void are mutually contradictory and therefore, the complaint has to be quashed. This court is unable to subscribe to such a contention in the light of the fact that the allegations which have been made have to be established before the Court by producing sufficient material and it is always open to the petitioners to place the materials before the Court to establish that the allegations are baseless, this exercise cannot be done in a petition filed under Section 482 Cr.P.C.
11. The learned counsel placed reliance on the decisions of the Kerala High Court and the Bombay High Court for the proposition that whatever may be the proceedings adopted by the husband to divorce his wife, who is an aggrieved person before the Court below is not a ground to deny the privileges and protection given to a wife under the provisions of the Domestic Violence Act. Further, the Kerala High Court held that the contentions that the benefits of the Domestic Violence Act cannot be extended, since the Muslim Woman (Protection of Rights on Divorce) Act, 1986, is available was rejected holding that the Muslim wifes are not excluded from the provisions of the Domestic Violence Act.
12. It is seen that the respondent has sought for declaring the talaq as null and void and she has also filed Interlocutory Applications in the suit before the Family Court for return of the jewels, for an order to refer the first petitioner to a qualified psychiatrist and for payment of litigation expenses which are pending before the Family Court and the matter is posted on 26.06.2014.
13. The learned counsel for the respondent would submit that the talaq must be for a reasonable cause and be preceded by attempts for reconciliation between the husband and wife by two Arbitrators and only if attempt for reconciliation fails, talaq must be effected. It is contended that there is no proper and reasonable cause for the first petitioner to pronounce talaq and the respondent has been put to mental cruelty, which started during the time of stay with her husband, for aborting the child unilaterally and passing comments about her physical appearance etc. The validity of the talaq has to be agitated by the parties before the Family court, where the respondent has filed the suit and it is open to the parties to raise all contentions in that regard in the pending suit. Sofar as the present application filed by the respondent under Section 12, this court considered the submission made by the learned counsel for the petitioner and is not convinced to accept the twin contentions raised for the reasons assigned in the preceding paragraphs. Therefore, this Court is not inclined to quash the complaint at the very threshold.
14. It is seen that the second petitioner is the mother of the first petitioner and stated to be residing at Sathyamangalam, and taking into consideration of her age, this Court is of the view that the personal appearance of the second petitioner Mrs.S.H.Dilshad Begum, wife of Mr.Zuberullah alone, shall be dispensed with, till the presence of the second petitioner is absolutely necessary for the conduct of the effective adjudication of the matter in the opinion of the Court and in such an event, the second petitioner can be directed to appear in the proceedings by the Court below.
15. In the result, the contentions raised by the petitioners are rejected and the Criminal Original Petition stands dismissed. The presence of the second petitioner Mrs.S.H.Dilshad Begum, wife of Mr.Zuberullah alone, shall be dispensed with, till the presence of the second petitioner is absolutely necessary for the conduct of the effective adjudication of the matter in the opinion of the Court and in such an event, the second petitioner can be directed to appear in the proceedings by the Court below. Further, the first petitioner shall appear before the Court below and it is open to the first petitioner to raise all contentions on his behalf and on behalf of his mother, the second petitioner and the Court below shall proceed independently in the matter without being influenced by observation made in this order. Consequently, connected miscellaneous petitions are closed. 18.06.2014 pbn Index :Yes/No Internet:Yes/No T.S.SIVAGNANAM, J.
pbn To II Metropolitan Magistrate Court, Egmore, Chennai Pre-Delivery Order in CRL.O.P.No.3211 of 2014 18.06.2014