Mohd. Anees Khan, S/o Mohd. Saleem Khan v. Farhat Naaz, W/o Shri Mohd. Anees Khan
2016-12-22
RAJENDRA MAHAJAN
body2016
DigiLaw.ai
ORDER : Rajendra Mahajan, J. This petition under Section 482 of the Cr.P.C. is directed for setting aside the order dated 10.10.2014 and quashing the entire proceedings in MJC-R/2688 of 2014 titled Smt. Farhat Naaz v. Mohd. Anees Khan and two others, pending before the Court of Judicial Magistrate First Class, Bhopal (for short the 'Court'). 2. The facts, in nutshell, for adjudication of this petition are given below :- 2.1. Respondent Smt. Farhat Naaz has filed an application against the petitioners under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity "the Act") in the court seeking reliefs provided under Sections 18, 19, 20, and 22 of the Act and return of her Stridhan. The substratum of the application is that on 26.12.2012 the marriage of respondent was solemnized with petitioner No.1 Mohd. Anees Khan as per Muslim rites and customs at Bhopal. Petitioner No. 2 Smt. Imamunabi Khan and petitioner No. 3 Mohd. Saleem Khan are her mother-in-law and father-in-law respectively. She has alleged that in the marriage, her father spent Rs. 6,00,000/- (six lakh rupees) out of which he had given Rs.2,00,000/- (two lakh rupees) in cash to the petitioners through a bank demand draft. In addition to that, her father gave domestic articles and ornaments in dowry. From the very first day of her marital life, petitioner Nos.2 and 3 told her that they are expecting from her father that he would give them Rs.10,00,000/- (ten lakh rupees) in cash. But, he gave only Rs.2,00,000/- (two lakh rupees) which is a very small amount. Thus, her father insulted them. They also told her that petitioner No.1 is doing a job in Abu Dhabi and that if they had married him in any other family they would have received much more dowry. Thereafter, petitioner Nos. 2 and 3 started harassing her mentally by taunting her and cursing her father. After one week of the marriage, petitioner No.1 wanted to go Abu Dhabi leaving her with his parents. At her great insistence, he took her with him to Abu Dhabi. There, he often misbehaved and ill-treated her. He used to say that he would keep her with him as his domestic servant, so long as her parents have not given Rs.8,00,000/- (eight lakh rupees) to his parents. Whenever she objected to his rude behaviour, he committed marpeet with her.
There, he often misbehaved and ill-treated her. He used to say that he would keep her with him as his domestic servant, so long as her parents have not given Rs.8,00,000/- (eight lakh rupees) to his parents. Whenever she objected to his rude behaviour, he committed marpeet with her. About two months later, he forcibly sent her back to India from Abu Dhabi with an ulterior motive that seeing her woes, her parents would give them the remaining amount of Rs.8,00,000/-. After her arrival in India, her parents and brothers took her to her matrimonial home so that she could live with petitioners No. 2 and 3. At that time, they misbehaved with her parents and brothers. They told them that they would allow her to live with them only after receiving Rs.8,00,000/- from them. Under the circumstance, she had to return to her parental house. She waited for about two months in the hope that her in-laws would take her back with them, but in vain. Thereafter, she again went to Abu Dhabi on her own expenses. There, petitioner No.1 did not allow her to enter his residential flat. As a result, she had to spend the whole night sitting outside of his flat with her luggage. In the next day morning, the neighbours saw her in a pitiable condition and reprimanded him. Thereafter, he allowed her to enter his flat. However, he would rudely behave with her. He often cursed her parents and also committed marpeet with her. He did not bring cooking materials from the market and he would say that he had not invited her to live with him in Abu Dhabi. He used to force her to go back to India. In the circumstances, she had to return India. Again, her parents initiated talks of settlement and took her to the residence of petitioner Nos. 2 and 3. They again told them that they would keep her only when Rs.8,00,000/- has been paid to them. She has also alleged that petitioner No.1 used to send her e-mails hurting her feelings and threatening to defame her parents. 2.2. The respondent has also stated in the application that she has no independent source of income and that her parents maintain her and incur all her living expenses. Petitioner No.1, in Abu Dhabi, is earning Rs.2,00,000/- (two lakh rupees) per month in terms of Indian currency.
2.2. The respondent has also stated in the application that she has no independent source of income and that her parents maintain her and incur all her living expenses. Petitioner No.1, in Abu Dhabi, is earning Rs.2,00,000/- (two lakh rupees) per month in terms of Indian currency. Petitioner No.3 is a retired government employee. He owns a big house, and that he has let out some portion of the house on huge rent. The respondent has also given her affidavit in support of the application. 2.3. The learned Magistrate registered the case upon the respondent's application, and he has ordered to serve show cause notices upon the petitioners. 2.4. After the service of notices upon the petitioners, they have filed an application under Section 245 (2) of the Cr.P.C. praying for discharge on the following grounds. Firstly, prior to the registration of the case against them the learned Magistrate has not called for a report from the Protection Officer or the Service Provider concerned, whereas it is mandatory as per proviso to Section 12 (1) of the Act. Thus, the notices are issued to them in the case in violation of the aforesaid proviso. Secondly, it is not mentioned in the application the date, month, year and place for arising out of cause of action. In support of the said application, petitioner No.3 has submitted his affidavit. 2.5. The respondent has not filed a written-reply of the said application. 2.6. Vide order dated 10.10.2014, which is under challenge, the learned Magistrate has dismissed the said application holding that for the registration of the case against the petitioners it is not mandatory for him to call for a report from the Protection Officer or the Service Provider concerned because he has power to take cognizance against the petitioners upon the respondent's application itself and that he has already ordered to call for domestic investigation report. However, the learned Magistrate in the impugned order has not dealt with the objection raised by the petitioners regarding the cause of action. 2.7. Feeling aggrieved by the impugned order, the petitioners has filed this petition. 3.
However, the learned Magistrate in the impugned order has not dealt with the objection raised by the petitioners regarding the cause of action. 2.7. Feeling aggrieved by the impugned order, the petitioners has filed this petition. 3. The learned counsel for the petitioners has submitted that as per the law laid down by this Court in the case of Rama Singh v. Smt. Maya Singh and others ( 2012 (4) MPLJ 612 ), prior to the registration of the application under Section 12 of the Act, it was mandatory for the learned Magistrate to have called for a report of the Protection Officer or the Service Provider concerned as per the proviso to sub-Section (1) of Section 12 of the Act. But, he had not complied with the proviso. He submitted that as per the definition given in 2(q) of the Act, the learned Magistrate committed a legal error by registering the case against petitioner No.2 as she is an woman. He submitted that the respondent has not specifically mentioned the date of arising out of cause of action, therefore, the application is not maintainable. He submitted that petitioner No.1 divorced the respondent as per Muslim law on 13.05.2014 and thereafter the Principal Judge Family Court, Bhopal has granted a decree of divorce to him against the respondent in Civil Suit No. 257-A/15 vide the judgment and decree dated 14.03.2016. Consequently, the domestic relationship between the respondent on one side and the petitioners on the other had already ended. He submitted that for the aforesaid reasons, the case instituted upon the application of the respondent under Section 12 of the Act is not maintainable against the petitioners. Thus, the impugned order dated 10.10.2014 and the subsequent proceedings of the case be quashed by this Court in exercise of inherent powers under Section 482 of the Cr.P.C. 4. In reply, the learned counsel for the respondent has submitted that for the registration of the case upon the respondent's application under Section 12 of the Act it is not mandatory for the learned JMFC to call for the report of the Protection Officer or the Service Provider. The learned Magistrate may take cognizance on the basis of the contents of the application made to him under Section 12 of the Act.
The learned Magistrate may take cognizance on the basis of the contents of the application made to him under Section 12 of the Act. Thus, the learned Magistrate has not erred in registering the case against the petitioners without calling for the report from the Protection Officer or the Service Provider. In support of this contention, he placed reliance upon a decision rendered by this High Court in the case of Ravi Kumar Bajpai & anr. v. Smt. Renu Awasthi Bajpai [I.L.R.(2016) M.P. 302]. He submitted that while interpreting the definition of "respondent" appearing in 2(q) of the Act, Hon'ble the Supreme Court in the case of Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and others (2011 AIR, SCW 1327), had held that "in the word" respondent adult female persons who are in the domestic relationship with the aggrieved woman are also included and she may also seek any reliefs against them under the Act. He also submitted that in a recent judgment dated 06.10.2016 rendered in Civil Appeal No. 10084 of 2016, Hiral P. Harsora and ors. v. Kusum Narottamdas Harsora and ors., the Supreme Court has declared word "male" appearing in the said definition as unconstitutional and deleted the word "male". Thus, the learned Magistrate has not erred in registering the case against petitioner No.2 Smt. Imamunabi Khan. He submitted that a cause of action is a bundle of facts if the application filed by the respondent under Section 12 of the Act is read as a whole, it is evident that a cause of action accrued to her every time when she was subjected to torture, harassment and ill-treatment by any of the petitioners. Therefore, it is not necessary for the respondent to mention in the application the date, month and year of cause of action. He submitted that the respondent filed the application against the petitioners in the court on 24.03.2014, whereas on 09.03.2015 petitioner No.1 filed a divorce petition against the respondent before the Principal Judge, Family Court, Bhopal. The Family Court granted divorce to petitioner No.1 against the respondent vide the judgment and decree dated 14.03.2016 passed in Civil Suit No. 257-A of 2015. He submitted that petitioner No.1 divorced the respondent as per Muslim law on 13.05.2014.
The Family Court granted divorce to petitioner No.1 against the respondent vide the judgment and decree dated 14.03.2016 passed in Civil Suit No. 257-A of 2015. He submitted that petitioner No.1 divorced the respondent as per Muslim law on 13.05.2014. Thus, it is crystal clear that petitioner No.1 has obtained the divorce against the respondent after the filing of the application by her before the court on 24.03.2014. He submitted that petitioner No.1 divorced the respondent with an ulterior motive to save himself and his parents (petitioners No. 2 and 3) from the rigours of the provisions of the Act. Thus, the divorce between petitioner No.1 and the respondent has no material bearings upon the case. On the basis of the afore stated contentions, he submitted that the petition is misconceived and, therefore, it is liable to be dismissed. 5. I have considered the rival submissions made across the Bar and perused the impugned order and material on record. 6. This Court in the case of Ravi Kumar Bajpai (supra) has interpreted the word 'any order' appearing in the proviso to sub- Section 1 of Section 12 of the Act and held that it is not mandatory for a Magistrate before the registration of the application under Section 12 of the Act to call for the report from the Protection Officer or the Service Provider. On the basis of the said interpretation, it is held that the law laid down in the cases of Ajay Kant Sharma and others v. Smt. Alka Sharma (2008 Cr.L.J. 264 and Tehmina Qureshi v. Shazia Qureshi ( 2010 (1) MPHT 133 ), do not describe the correct proposition of law regarding the interpretation of word 'any order' appearing in the proviso. Therefore, these judgments are held as per incuriam. Since in the case of Rama Singh (supra), the word 'any order' is interpreted relying upon the aforesaid two judgments, the interpretation of word 'any order' in the said case is not correct. On the basis of the law laid down in Ravi Kumar Bajpai (supra), I hold that the learned Magistrate has not committed any error of law by registering the case against the petitioners upon the respondent's application without calling first the report from the Protection Officer or the Service Provider. 7. The Supreme Court in Sou.
On the basis of the law laid down in Ravi Kumar Bajpai (supra), I hold that the learned Magistrate has not committed any error of law by registering the case against the petitioners upon the respondent's application without calling first the report from the Protection Officer or the Service Provider. 7. The Supreme Court in Sou. Sandhya Manoj Wankhade's case (supra) and Hiral P. Harsora and Ors.'s case (supra) has concluded the law that in definition of 2(q) of the Act female adult members of the husband are also included. Thus, the learned Magistrate has not erred in registering the case against petitioner No.2 Smt. Imamunabi. 8. Upon the perusal of the objects and reasons behind the enactment of the Act and the provisions of the Act, I am confirmed view that the proceedings initiated by an aggrieved woman under the Act is quasi criminal and quasi civil like the proceedings under Section 125 of the Cr.P.C., therefore, the cause of action with specific date, month and year is not required to be mentioned in the application under Section 12 of the Act. A cause of action to an aggrieved woman arises every time when she is subjected to the domestic violence. Moreover, the expression cause of action has been universally understood to mean the bundle of facts upon which the reliefs have been sought from a court. 9. From the perusal of the application, I hold that a cause of action accrued every time to the respondent when she was subjected to domestic violence by any of the petitioners. Therefore, it is not necessary for the respondent to mention in the application exact date, month and year for arising out of the cause of action to her against the petitioners. Hence, the objection raised by the learned counsel for the petitioners in this regard is totally unacceptable. 10. From the perusal of entire material on record, I find that the respondent had filed the application before the learned Magistrate on 24.03.2014, whereas petitioner No.1 divorced her as per Muslim Personal law on 13.05.2014 and through the court proceedings on 14.03.2016. It is also pertinent to note that petitioner No.1 filed the divorce petition on 09.03.2015 before the court of Principal Judge Family Court, Bhopal.
It is also pertinent to note that petitioner No.1 filed the divorce petition on 09.03.2015 before the court of Principal Judge Family Court, Bhopal. From the above mentioned facts, it is crystal clear that petitioner No.1 has divorced the respondent after the institution of the case against him and her parents. In this view of the matter, I hold that the respondent may prosecute the petitioners for domestic violence which they caused to her before petitioner No.1 divorced her. Thus, the grant of divorce by the said petitioner to the respondent has no material bearings on merits of the case. 11. For the preceded discussion, I hold that this petition filed by the petitioners seeking quashment of the order dated 10.10.2014 and consequent proceedings in MJC-R/2688 of 2014 is devoid of merits. Consequently, it is dismissed. In the facts of the case, the petitioners shall bear the expense of the respondent which is quantified at Rs.10,000/- (only ten thousands rupees). Accordingly, this petition is finally disposed of.