Serial case filing wife’s DV quashed by Karnataka HC as its nothing but abuse of process of Court

* Serial case filing wife files maintenance cacse, 498a and also DV
* Husband assails DV case and files for quash at the Karnataka HC
* HC appreciates facts of the case and the report of the social welfare officer who talks about some threats to withdraw a maintenance case
* However that maintenance case is already decreed and over some years ago and so there is NO chance of withdrawing that case
* So DV case by wife is quashed by Karnataka HC who calls it an abuse of the process of law !!

*****************************disclaimer*******************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2014

BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION No.11022/2013

BETWEEN:

1. SRI.RAVIKUMAR S/O RUDRAPPA KALASHETTI
AGE: 35 YEARS, OCC: SERVICE,
R/O.NEHRU COLONY 4TH CROSS ROAD,
UDAYANAGAR, BANGALORE

2. SMT.SUSHILA RUDRAPPA KALASHETTI
AGE: 55 YEARS, OCC: HOUSE WIFE,
R/O.NEHRU COLONY 4TH CROSS ROAD,
UDAYANAGAR, BANGALORE … PETITIONERS

(BY SRI. RAMACHANDRA A MALI, ADV.)

AND:

SMT.PANKAJA W/O RAVIKUMAR KALASHETTI
AGE: 30 YEARS, OCC: HOUSE WIFE,
R/O.ANANTPUR, TQ: ATHANI, DIST: BELGAUM … RESPONDENT

(RESDT – SERVED & UNREPRESENTED)

THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS OF THE CASE BEARING CRL.MISC.NO.162/2013 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC, ATHANI, REGISTERED UNDER THE PROVISIONS OF SEC. 9(B) AND 37(2)(C) OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, AGAINST THE PETITIONERS ONLY.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard the learned Counsel for the petitioners and perused the records. The respondent though served remained un-represented.

2. This petition is filed seeking quashing of the entire proceedings in Crl.Misc.No.162/2013 on the file of the Principal Civil Judge & JMFC, Athani registered under the provisions of Sections 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘DV Act’, for short) against the petitioners.

3. The learned Counsel for the petitioners strenuously contended that, even on plain reading of the allegations made in the petition, it does not attract any provisions of DV Act. Secondly, he contended that the sole ground urged by the complainant in the misc. petition is that, the petitioners are forcing the complainant to withdraw the maintenance petition filed by her in the year 2009. He drew my attention to the fact that, the said petition was disposed of by the Court in Cri.Misc.No.523/2009 vide orders dated 03.12.2011 itself and the question of forcing the wife to withdraw the said petition does not arise. Except this one point, there is nothing in the complaint lodged by the wife before the trial Court.

4. Further the learned Counsel for the petitioners contends that, the respondent/wife is in the habit of filing cases against the petitioners and in fact there are a number of cases filed by her against the petitioners and this is one of those cases, which is filed in order to harass the petitioners invoking the provisions of DV Act. Such attitude of the respondent should be scuttled down by this Court by exercising powers under Section 482 of the Cr.P.C. Therefore, he pleads for quashing of the proceedings.

5. Having heard the arguments of the learned Counsel for the petitioners, I have carefully perused the materials produced before this Court and the certified copies of the documents showing the pendency of other cases between the parties. It is an undisputed fact that the marriage of complainant solemnized on 25.05.2003 with the 1st petitioner herein. On 24.09.2008, the respondent has filed a complaint in Mahadevapur police station at Bangalore against the petitioners and the learned Counsel for the petitioners submits that the said matter has been compromised between the parties. It is alleged that the respondent left the conjugal company of the 1st petitioner on 22.05.2009 along with her daughter Likita. Thereafter, it appears that rift began between the husband and wife. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. Records also disclose that, on 14.06.2009 the respondent/wife has filed a complaint against the petitioners before Athani police station in Athani PS Crime No.222/2009 alleging commission of offence punishable under Section 498A r/w. Section 34 of IPC. Thereafter, it appears the charge sheet has been filed and the said case is registered in C.C.No.636/2009, which is still pending before the said Court. The records also disclose that the respondent/wife has filed a maintenance petition in Crl.Misc.No.523/2009 and after due contest, the Court has ordered a sum of Rs.3,000/- per month to the respondent/wife and Rs.2,000/- per month to the daughter of the 1st petitioner towards their maintenance and also directed to pay Rs.2,000/- towards expense of the proceedings. However, the said order has not been put into execution since 2009. The respondent has not filed any application for recovery of any amount and it is not the allegation in the petition filed before the Domestic Violence Court that the husband has not at all paid any amount as ordered by the said Court. The learned Counsel submitted before the Court that the 1st petitioner has been regularly paying the amount which was ordered against him in the said maintenance petition. The respondent has not appeared before this Court and not raised any contention regarding any proceedings pending before the Court and that the amount ordered in the Crl.Misc.No.523/2009 has not been paid to her.

7. In this context it is seen that, on 03.04.2013 the respondent/wife once again made an application before the CDPO, Athani invoking the provisions of Domestic Violence Act. I have carefully perused the application filed before the CDPO, who subsequently filed a report to the Court and the Court has taken cognizance and issued notice to the petitioners under the provisions of the DV Act. The said application filed on 03.04.2013 clearly discloses that since 4- 5 years after her marriage and after the birth of her daughter Likita, the rift started between the husband and wife. In fact she alleged that the 2nd petitioner – her mother-in-law is the main cause for the rift between the husband and wife, as the 2nd petitioner often forced the respondent herein to bring gold and money from her parental house. Insofar as these allegations are concerned, there is already a case filed under Section 498-A r/w. Section 34 of the IPC, which I have referred to above.

8. Insofar as Domestic Violence petition is concerned, it is specifically alleged that the Criminal Court ordered an amount of Rs.8,000/- per month as maintenance, but her husband and his family were forcing her to withdraw the said petition and therefore, she alleged that they have committed an illegal act under the DV Act. Except these two sentences, nothing has been stated in order to attract any other provisions of the DV Act. As rightly contended by the learned Counsel for the petitioners and also supported by the documents produced before this Court, the maintenance petition was disposed of by the Principal Civil Judge and JMFC, Athani in the year 2011 itself vide orders dated 03.12.2011. The impugned petition filed on 03.04.2013 i.e., merely after 2 ½ years. Therefore, the question of petitioners forcing the respondent to withdraw the said maintenance petition does not appear to be proper and correct.

9. Under the above said circumstances, in the absence of any other materials before the trail Court and the materials produced before this Court to attract D.V. Act, on the other hand other materials disclosing that the respondent is in the habit of filing complaint against the husband and his family members, particularly insofar as this case is concerned, there is no reason for filing the petition under the said act. The allegations made are proved to be not correct on the basis of the orders passed by the learned JMFC in Crl.Misc.No.523/2009. Therefore, as rightly contended, filing of the application before the CDPO, Athani on the allegations, which are not based on any factual proof amounts to abuse of process of the Court. Hence the proceedings deserves to be quashed.

10. Before concluding, it is also pertinent to note here the Domestic Incident Report submitted by the Child Development Project Officer, who has also categorically stated as under:

“The only problem is that of mother in law Smt. Sushila. The applicant told that mother in law is a widow in very young age. She also told that she is not of good character. Mother in law is doing all unwanted things in front of applicant herself. The applicant’s husband is sober man. Mother in law is misusing the obedient nature of her son. Mother in law taken away 10 tolas of gold from the applicant. Now forcing for Rs. 2 lakh from applicant. The mother in law is forcing applicant to go for job against her will. Regarding this, there is already a case in front of Hon’ble court at Athani. Rs.8,000/- per month maintenance is ordered but so far no maintenance is given by respondent. The major problem is that mother in law is forcing applicant along with her sisters to take the case back. They are also threatening the applicant of her life and also making false cases against the brother of the applicant. ”

11. The above said report discloses that, so far other allegation of demand of dowry and also threatening the respondent etc., there is a criminal case already filed and pending before the Court and the complainant might not have brought to the notice of the CDPO with regard disposal of the maintenance petition, in which an amount of Rs.5,000/- per month was ordered as maintenance and Rs.2,000/- as expenses ordered by the Criminal Court.

12. Looking at the above said circumstances, I am of the opinion, there is absolutely no domestic violence incident as alleged and the allegations referred to are of ill-treatment and harassment of the respondent, for which a case under Section 498A r/w Section 34 of IPC is already pending. Therefore, in my opinion, the present Domestic Violence petition filed before the trial Court is nothing but abuse of process of the Court and the same is liable to be quashed. Accordingly, the following order is passed:

ORDER : Petition is allowed.

All further proceedings pending before the Principal Civil Judge and JMFC, Athani in Cri.Misc.No.162/2013 under Section 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2006 insofar as it relates to the present petitioners is hereby quashed.

Sd/-

JUDGE gab/-

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