Wednesday, May 27, 2009

HC: Litigant can not ride two horses simultaneously

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991

JUDGMENT

1. In the instant application, the substantial question of law, in the
public interest, has been raised and requires decision from this Court.
The substantial question of law raised is as under :

"Whether a Judicial Magistrate First Class trying an application
under Section 125 of Cr.P.C., is obliged under law, to stay the
proceedings, on the ground that a Civil Court of competent
jurisdiction has seized the matter in a suit, in which identical
pleadings are made, and same reliefs are claimed by one and the same
applicant/plaintiff, in whose favour the Magistrate has already
awarded interim maintenance ?"

2. The facts giving rise to the above question of law, in nutshell, are
as under :

The applicant and the non-applicant are the legally married spouses.
Their marriage was solmnised as per the customs and rites of Hindu
Religion, some times in the year 1969 at Buldana. Out of the
wed-lock, they have two issues viz. first issue is a son - Sagar who
is living with the applicant while the second issue a daughter Miss
Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar.
The couple had been to Canada and U.S.A. where they stayed for 12 to
13 years along with their children. Both returned some time in the
year 1984 to India and stayed at Buldana till 1986. During this
period, their relations became strained and ultimately on 19/5/86,
the non-applicant filed an application u/S. 125 of Cr.P.C. against
the applicant for maintenance for her and the daughter. Along with
the application for maintenance, the wife had also filed an
application for interim maintenance @ Rs. 500/- p.m. for both the
non-applicants, on the very day. The learned trial Court, after
hearing the parties and considering the facts, awarded Rs. 250.0
p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim
relief. Since the day of the order, the applicant has paid Rs.
24,000/- to the non-applicants as maintenance allowance and that too
in advance. Mr. Vidwanash, the learned counsel for the applicant
submitted that the applicant has made the payment in advance till
October 1991.

3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed
a regular Civil Suit No. 227/86 for permanent alimony and also for
arrears of maintenance. Along with the plaint, an application for the
attachment of the property before judgment was also filed. On
28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following
order on the said application :

"Perused the application and say at Exh. 64. The prayer of the
applicant is that Order of attachment before Judgment be passed or
direct the defendants to furnish solvent surety of Rs. one lakh. By
way of Exh. 64, the defendants showed their willingness to furnish
surety of one lakh. Hence, the defendants are directed to furnish
solvent surety of Rs. one lakh".

In compliance with the above order, on behalf of the defendants, Shri
W. Y. Godbole, resident of Nagpur has furnished the solvent surety
before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the
applicant has filed his written statement in the said Civil Suit,
denying the claim of the non-applicants. The case is now posted for
filing the documents.

4. The applicant filed an application to stay the proceedings of Misc.
Criminal Case No. 114/86 before the Judicial Magistrate, First Class,
Buldana, till the decision of the Regular Civil Suit No. 227/86. The
application was opposed. After hearing the parties, the learned
J.M.F.C., Buldana, rejected the application filed by the applicant for
stay of the Misc. Criminal Case No. 114/86 vide his order dated
24-1-1991.

5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana
in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant
approached this Court.

6. Mr. Vidwans, the learned counsel for the applicant submitted that
though the non-applicant wife instituted two proceedings, one in the
Criminal Court and another in the Civil Court, but the reliefs are one
and the same. The relief sought in the application u/s. 125 of Cr.P.C.
is to the following effect "to direct the opponent to pay the
subsistence allowance of Rs. 500/- p.m. each to both the applicants
Nos. 1 and 2".

In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause
(i) is that "It is, therefore, prayed that this Hon'ble Court be
pleased to decree the claim of the plaintiffs by passing necessary
orders of maintenance against the defendant, directing him to pay
arrears of Rs. 7000/- to the plaintiffs and further be ordered him
to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs
i.e. total Rs. 1000/- p.m. from the date of filing of this suit and
onwards permanently".

The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg.
C.S. No. 227/86 are one and the same.

7. Mr. Vidwans, the learned counsel for the applicant submitted that
practically pleadings are identical and verbatim in both the cases. He
took me through the pleadings of both cases and demonstrated that
practically the paras are identical as much as they are in verbatim.
Following paras of the application u/S. 125 of Cr.P.C. are identical to
the paras of the plaintiff in Reg. Civil Suit.

Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.

4 6 5 7
6 8 7 9
8 10 9 11
10 12 11 13
12 14 13 15
14 16

Therefore, according to Mr. Vidwans, in both the litigations, the fate
would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal
Court. Therefore, as the matter is seized with the Civil Court i.e. in
respect of the maintenance allowance and that too the similar amount
which she alleged to be entitled in the application u/s. 125 of
Cr.P.C., instead multiplying the litigations and to harass the
applicant to lead the evidence in different two courts, in the interest
of justice, the application pending in the court of J.M.F.C., Buldana
be stayed till the decision in the Reg. C.S. No. 227/86. It is further
submitted that any verdict given by the Criminal Court is not binding
on the Civil Court but it is vice versa. The reliefs being the one and
the same, the evidence will be common, so also the documents, it is the
interest of both the parties to get the verdict from the Civil Court.

9. Mr. Vidwans, the learned counsel for the applicant relied upon the
case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported
in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in
para 7 as follows (at page 348) :

"I fail to understand what is the qualitative difference between the
two stands. The parties are merely formulating the same propositions
in the two proceedings in different words. The distinction made by
the learned Judge is without any difference, as observed by the
learned Magistrate and as is also apparent from the record, the
dispute in the criminal complaint also revolves on the pivot whether
or not respondents are the sole agents of the petitioners for sale
and export of the petitioner's goods to the countries concerned. The
learned Addl. Sessions Judge's interpretation is clearly wrong so
far as this aspect is concerned".

In para 8, Their Lordships observed that :

"The other two reasons given by the learned Magistrate and indicated
in para 6 supra, are also sound and the learned Addl. Judge has not
bothered himself to consider them. The learned Magistrate's order
staying the prosecution was eminently just and the learned Addl.
Sessions Judge should not have interfered with it in revision".

The reliance also been placed on the case of William J. W. Ross v.
Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri
LJ 548). In that case before their Lordships, the wife instituted the
proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already
instituted the proceedings for divorce in the Divorce Corut. Their
Lordships observed that -

"I am of opinion that the learned Magistrate would have exercised a
better discretion on receiving an application u/s. 488 against a
husband who had already instituted proceedings in the divorce Court,
if he had referred the applicant for her remedy to the Civil Court.
I do not think that it was the intention of the legislature in S.
489 to encourage applicants to resort to criminal Courts up to the
very time when an order was passed by a competent Civil Court. As
the Civil Court was seized of the matter, it seems to me clear, it
is better that the Civil Court should dispose of it, and in the
circumstances which have arisen in the present case, I am of opinion
that a High Court would stay proceedings in a criminal Court until
the conclusion of the divorce petition. We accordingly direct the
learned Magistrate to stay the hearing of the application u/s. 488,
Cr.P.C., by adjournment from time to time until the conclusion of
the divorce petition".

10. On behalf of the non-applicants, Mr. Khapre, the learned counsel,
opposed the application and submitted that the remedies in the criminal
Court and Civil Court are altogether different. According to him, the
proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are
the summary proceedings for the immediate relief to the wife and other
dependents. In the proceedings u/s 125 Cr.P.C. the Court has
jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to
each claimant. If this amount is inadequate according to clainming
spouse or other claimants, the only remedy available is Civil Suit or
petition u/s. 25 of the Hindu Marriage Act, 1955.

11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila
Karmarkar, entered in the witness box and now the case is posed for her
cross-examination. He further submitted that the principles of res
judicata are not applicable in the instant case because though the
reliefs claimed in both the proceedings are one and the same, the
effect is not one. He further submitted that this Court has no power
under any statute to stay the proceedings. To substantiate his
submissions, he placed reliance on the case of Mohanlal v. Sau.
Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the
case before his Lordship, the wife instituted the proceedings u/s. 125
of Cr.P.C. and also husband filed an application for Judicial
Separation and alimony in the Civil Court against the applicant under
the provisions of the Hindu Marriage Act. An ex parte order was passed
against the husband and she was awarded maintenance of Rs. 300/- p.m.
The Civil Court granted Rs. 100/- p.m. as permanent alimony to the
wife. In that case, the issue was raised to the effect that the
principle of res judicate is applicable. His Lordship held that the
Section 11 of the C.P.C. as such, is not, in terms, applicable to the
proceedings u/s. 125 of Cr.P.C.

12. In the instant case before me, the question of res judicata is not
involved. Shri Vidwans, the learned counsel for the applicant also has
not raised this issue. Therefore, the observations made in the case
supra are not of any assistance to the non-applicants.

13. Reliance also been palaced on the case of In re Taralakshmi
Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91).
In that case their Lordships observed that :

"The mere existence of a decree of a Civil Court directing a certain
sum to be paid for maintenance does not oust the jurisdiction of a
Magistrate in a proper case to make an order u/s. 488. Of course the
existence of such a decree is relevant when the Magistrate is
considering what form of order he should make u/s. 488 and the
Magistrate should make it clear in his order that anything paid
under the decree of the Civil Court will be taken into account
against anything which he may order to be paid".

In the instant case before me, there is no decree passed by the Civil
Court. For the same relief, the non-applicant wife knocked the doors of
the Civil Court as well as of Criminal Court. So, the facts of the case
which was before their Lordships of the Bombay High Court are
altogether different having no relation with the facts and
circumstances before me and, therefore, it is also not of any
assistance.

14. Reliance has also been placed on the case of A. Joseph Fernando v.
Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held
that :

"The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier
though the order in the civil suit was passed earlier. In such
circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is
perfectly maintainable notwithstanding a Civil Court's order for
maintenance. The criminal proceedings can not be quashed".

In the instant application, the applicant has not prayed for quashing
the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C.
The only limited prayer is that the matter being seized with the Civil
Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings
instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the
case decided by the learned Court in the case supra and the facts
before me, being altogether different, this case is also not of any
assistance to the non-applicants.

15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt.
Ltd. (DB), in respect of the same subject matter,
there were two suits instituted though the relief was based on
different cause of action. The subject-matter in controversy in both
the suits being the same, arises out of the same contract and from the
same transaction, the later suit was stayed till the decision of the
earlier suit.

16. Considering the facts and circumstances and the submissions made by
the learned counsel for the parties, the relief in both the cases,
being one and the same, and the Civil Court being seized with the
matter, in the interest of justice, the proceeding pending in the court
of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No.
277/86.

17. The non-applicants could not be allowed to ride two horses at a
time (two simultaneous proceedings in two different Coruts) and could
not be permitted to continue the maintenance proceedings u/s. 125 of
Cr.P.C. when they had already chosen the alternative remedy in Reg.
C.S. No. 227/86. It is well settled law that the judgment of Civil
Court shall prevail over the judgment of Criminal Court. The natural
justice demands that parallel proceedings cannot be allowed to continue
in different Courts.

18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the
matter. Staying the proceedings pending in the Court of J.M.F.C.,
Buldana, will not cause any pre-judice to the non-applicants because
they are already receiving the maintenance allowance @ Rs. 250/- p.m.
for wife and Rs. 150/- p.m. for the daughter.

19. In these terms the application is allowed. Rule made absolute.

20. Ordered accordingly.

HC: Interim order passed under DV Act is revisable and any final order is Appealable

Punjab-Haryana High Court 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Crl. Misc. No.31518-M of 2008.
Date of Decision: 3.12.2008.
***
Balwinder Kaur & Anr.
.. Petitioners
Vs.

Mahan Singh & Ors.
.. Respondents.

CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,

Present:- Mr. Arun Takhi, Advocate
for the petitioner.
***

ARVIND KUMAR, J.

Through the instant- petition, the petitioner has sought
quashing of orders dated 3.10.2007 and 20.9.2008 passed by learned Sub
Divisional Magistrate Nawanshahr and learned Additional District and
Sessions Judge, Nawanshahr.
It emerges out from the paper book that the petitioners, who are
wife and son respectively of respondent No.1 Mahan Singh filed a
complaint with the Chief Judicial Magistrate, Nawanshahr under the
Protection of Women from Domestic Violence Act, 2005 (for short, the Act)
against Mahan Singh and other in-laws. Along with the said complaint, they
also filed an application under Section 12 of the Act and sought interim
reliefs as provided under Sections 18 to 22 read with Section 23 of the Act.
After the contest, the application for interim reliefs was declined by the trial
court vide order dated 3.10.2007 and against that order, the petitioners
preferred a Crl. Misc. No. 51178-M of 2007 seeing quashing of the said
order, however, that petition was withdrawn with a liberty to avail
appropriate remedy under the law. Thereafter, the petitioners preferred a
revision before the Court of learned Sessions Judge, but the learned
Additional District and Sessions Judge, vide impugned order dated
20.9.2008 holding that the only relief available to the petitioners is to file an
appeal against the said order and that too within a period of thirty days and
hence doubting the maintainability of the revision, dismissed the same,
2

without touching the merits of the case
Learned counsel for the petitioners has contended that the
learned revisional court has fallen into error of law by misinterpreting the
provisions of the Act and that Sections 12, 18 to 23 of the Act are governed
by the provisions of Code of Criminal Procedure, 1973 and as such the
revision was very much maintainable and Section 29 of the Act attracts only
when there is final order passed by the Magistrate and an appeal would lie
for the same..
There is force in the contention of learned counsel for the
petitioners. A conjoint reading of Section 12 of the Act and Rule 6(5) of
The Protection of Women from Domestic Violence Rules, 2006 (for brevity,
the Rules) leaves no manner of doubt that the order passed on an application
for interim relief is very much revisable before the Court of Session and as a
consequence thereof, obviously, with the limitation as stipulated in the Code
of Criminal Procedure for the purpose.
At this stage, learned counsel has contended that if the order
passed by the revisional Court is set aside, he shall put up his case in respect
of legality and propriety of order dated 3.10.2007 passed by the Magistrate,
before that forum, on merits.
In view of this, the impugned order dated 20.9.2008 passed by
the Revisional Court is set aside and the matter is remitted back to it with a
direction to admit the revision of the petitioners and disposed it of
expeditiously, after hearing the parties on merit, that too without insisting
on the point of limitation.
The instant petition is disposed of without issuing any notice to
the opposite party, since in the considered opinion of this Court they have to
unnecessarily bear heavy expenses to contest this litigation. However,
liberty is given to the respondents to file an application for recalling of this
order, if they are dis-satisfied with the same.


(ARVIND KUMAR)
JUDGE
December 3,2008
Jiten

Documents ref:
The Protection Of Women From Domestic Violence Act, 2005
Section 12 in The Protection Of Women From Domestic Violence Act, 2005
Section 18 in The Protection Of Women From Domestic Violence Act, 2005
The Indian Penal Code, 1860
Section 29 in The Indian Penal Code, 1860

Tuesday, May 26, 2009

HC: Cognizance under DV Act taken for period before 26-10-06 is illegal

Smt.Gita vs Smt.Raj Bala & Others on 26 November, 2008


Punjab-Haryana High Court Criminal Misc.-M No.47145 of 2007 :1 :

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH


DATE OF DECISION: November 26, 2008



Smt.Gita

.....Petitioner

VERSUS



Smt.Raj Bala & others

....Respondents



CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?



PRESENT: Mr.Manoj Kaushik, Advocate,
for the petitioner.

Mr.Rohit Ahuja, Advocate,
for respondent No.1.

****

RANJIT SINGH, J.

Smt.Gita seeks quashing of notice/summoning order

dated 19.7.2006 passed by ACJM, Faridabad. She is a married

sister-in-law of the complainant and is separately residing at her

matrimonial home at Palwal, but is summoned to face prosecution

under the provisions of Protection of Women from Domestic Violence

Act, 2005. (for short "the Act").

The primary submission made on behalf of the petitioner
Criminal Misc.-M No.47145 of 2007 :2 :

is that she has wrongly and illegally been summoned for an offence

under the provisions of the Act, which was not even applicable on the

date the cognizance of the offence was taken. It is accordingly

pleaded that ACJM, Faridabad erred in taking cognizance of the

offence which was not an offence on the date he took cognizance of

the same.

The averment in the petition would show that the Act was

notified and came into effect w.e.f. 26.10.2006. The Magistrate,

however, has summoned the petitioner and his co-accused on

19.7.2006. The petitioner and her co-accused were summoned for

offences under Sections 12, 19, 20, 21, 22 and 23 of the Act. This is

stated to be an illegality as on 19.7.2006, the Act was not in force

and hence the so-called alleged offences under the Act, as noticed,

were not the offences on the Statute Book. Though other

submissions on merits have also been made, but need not be

noticed. The fact that this Act is enforced w.e.f. 26.10.2006 is not in

any serious dispute. Section 1(3) of the Act provides that the Act

shall come into force on such date as the Central Government may

by notification in the official Gazette appoint. The Central

Government has appointed 26 day of October, 2006 as the date on

which the said Act shall come into force as per Notification

No.S.O.1776(E) dated 17th October, 2006. It is, thus, clear that the

Act came into force w.e.f.26.10.2006. The learned counsel for

respondent No.1 did not dispute this factual position, but still insisted

in submitting that the Magistrate had rightly taken cognizance of

offence in this case as the Act is of the year 2005, i.e., prior to the

date, the Magistrate took cognizance on 19.7.2006. Without much
Criminal Misc.-M No.47145 of 2007 :3 :

justification, the counsel referred to a case of Pt.Rishikesh & Anr.

Vs. Smt.Salma Begum, 1995(3) RRR 429 in support of his plea. In

this case, the Hon'ble Supreme Court has observed that the

commencement of the Act is distinct from making the law. As per the

Hon'ble Supreme Court, as soon as the assent is given by the

President to the law passed by the Parliament it becomes law and

the commencement of the Act may be expressed in the Act itself,

namely, from the moment the assent was given by the President and

published in the Gazette, it becomes operative. However, it is also

observed that the operation may be postponed giving power to the

executive or delegated legislation to bring the Act into force at a

particular time unless otherwise provided. It is not understood as to

how this ratio of law would benefit the plea raised by the counsel for

the respondents. As already noticed, it is clearly provided in the Act

that it shall come into force on such date as the Central Government

may by notification in the official Gazette appoint. This Act came into

force on 26.10.2006, as already noticed. Thus, the legislature had

given power to the Central Government, delegated authority to notify

the date from which the Act was to come into force. This course is

permissible in terms of the law laid down in Pt.Rishikesh's case

(supra). There is no need, thus, to pursue further the argument

raised by the counsel for the respondent that the Act is of 2005 and,

so the Magistrate could take cognizance on 19.7.2006. This, if

permitted would violate the provisions of Article 20 of Constitution of

India. Article 20 grants protection in respect of conviction for

offences by providing that no person shall be convicted of any

offence except for violation of law in force at the time of the
Criminal Misc.-M No.47145 of 2007 :4 :

commission of the act charged as an offence. As per this Article,

when a certain act is not an offence according to law in force at the

time when the act is done, the person who does that act must not be

held guilty of an offence merely because subsequently a law is made

making such act an offence. When the petitioner is alleged to have

committed the offences under various sections of the Domestic

Violence Act, which is not in force on the date of such acts, then the

charge framed under the said sections would not be maintainable in

view of Art. 20(1) of the Constitution as the said penal provisions

were not in existence when the alleged offences were committed. In

fact, there was no law in force at the time when the petitioner

allegedly committed these acts and, therefore, would be entitled to

the protection of Art.20(1) of the Constitution. Once the Act came

into operation on 26.10.2006, the various provisions of the Act

creating offences would not be an offences for which the petitioner

can be put to trial. The action of the court in taking cognizance on the

basis of this complaint on 19.7.2006, as such, cannot be sustained.

The summoning order, thus, cannot be sustained and the same is

set-aside.

The petition is allowed.



November 26, 2008 ( RANJIT SINGH )
ramesh JUDGE

documents ref:
The Protection Of Women From Domestic Violence Act, 2005
Article 20 in The Constitution Of India 1949
Section 12 in The Protection Of Women From Domestic Violence Act, 2005
Section 23 in The Protection Of Women From Domestic Violence Act, 2005
Section 19 in The Protection Of Women From Domestic Violence Act, 2005

Landmark SC Judgments on S. 125 CrPC

Landmark SC Judgment on S. 125 CrPC

Chaturbhuj Vs. Sitabai, (2008) 2 Supreme Court Cases 316

Dismissing the appeal, the Court

HELD: 1.1. The object of the maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy by compelling those who can
provide support to those who are unable to support themselves and who have a
moral claim to support. The phrase "unable to maintain herself" would mean that
means available to the deserted wife while she was living with her husband and
would not take within itself the efforts made by the wife after desertion to
survive somehow. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It
provides a speedy remedy for the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights and natural duties of a man
to maintain his wife, children and parents when they are unable to maintain
themselves. [Para 5] [586-B, C,
D, E]

Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2
Supreme 503, relied on.

1.2. Under the law, the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case, there is
no dispute that the appellant has the requisite means. But there is an
inseparable condition which has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his wife. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the personal
income of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.
The test is whether the wife
is in a position to maintain herself in the way she was used to at the place of
her husband.
[Paras 6, 7 and 8] [583-F, G; 584-A, B, C]

Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated.

2. The trial Court, the Revisional Court and the High Court analysed the
evidence and held that the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse. That being so
there is no scope for interference in this appeal. [Para 9] [584-D, E]

Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant.

Shashi Bhushan Kumar for the Respondent.

Code of Criminal Procedure, 1973:

s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136.

s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,
1950-Articles 15(3) and 39-Social justice.

Words and phrases: "unable to maintain herself"-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973.

The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself.

The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent.

Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant's monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself.

Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal.

2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1
)JT78

CASE NO.:
Appeal (crl.) 1627 of 2007

PETITIONER:
Chaturbhuj

RESPONDENT:
Sita Bai

DATE OF JUDGMENT: 27/11/2007

BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.


1. Leave granted.



2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.'). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.


3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant's monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.


4. Section 125 Cr.P.C. reads as follows:


"125. (1) If any person having sufficient means
neglects or refuses to maintain
(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being
a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the First Class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly
rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to
time direct:
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Explanation .For the purposes of this Chapter,
(a) 'minor' means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875), is deemed not to have attained his
majority;
(b) 'wife' includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried."
["(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.";]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month's allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife's
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order."

5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase "unable to maintain herself" in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
'Constitution'). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.

7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife. It is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.


8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself in the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression "unable to maintain herself" does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.


9. In the instant case the trial Court, the Revisional Court
and the High Court have analysed the evidence and held that
the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal
which is dismissed.

Saturday, May 16, 2009

Complainant cannot seek remedy under two different enactments for same cause: HC

Complainant cannot seek remedy under two different enactments for same cause: HC
Mohamed Imranullah S.
As a police complaint had already been filed, cognisance cannot be taken under Domestic Violence Act
MADURAI: Judicial Magistrates cannot take cognisance of a complaint under the Protection of Women from Domestic Violence Act, 2005 if the victim had already lodged a complaint with the police under the provisions of the Indian Penal Code, the Madras High Court has ruled.
Disposing of a petition filed in the Madurai Bench by a family from Dindigul, Justice V. Periya Karuppiah held that a victim could not seek remedy under two different enactments for the same cause of action as it would amount to double jeopardy which was prohibited under the Constitutional law.
The Judge also said that a woman could not demand action, under the Act, against her in-laws for writing a letter to her husband’s office seeking his employment details. He agreed with petitioners’ counsel N. Veera Kathiravan that the complainant would not be in anyway aggrieved by such a letter.
An aged woman, her daughter and son-in-law had filed the present petition seeking to quash an order passed by the Dindigul Judicial Magistrate-II who took cognisance of a complaint lodged by the former’s daughter-in-law alleging that the petitioners assaulted her and also wrote letters to her office and that of her husband.
“Apply mind”
Stating that the mother-in-law alone could be prosecuted for writing a letter to her daughter-in-law’s office, Mr. Justice Karuppiah said: “When a complaint is filed under the Act, the lower court must apply its mind and ensure if the allegations attract provisions of the special enactment. But in this case, it has been taken on file abruptly.”
The Judge quashed the case with respect to the victim’s sister-in-law and brother-in-law on the ground that there was no evidence to prove that they assisted in writing the letter.
In so far as the allegation of assault was concerned, a complaint was pending with the police and hence the victim could not invoke the 2005 Act,
The Hindu




####################################################################
COURT JUDGEMENT:
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28/04/2009
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH

Crl.O.P.(MD)No.11066 of 2008
And M.P.(MD)No.1 of 2009

1.K.Kamala
2.K.Pasungili
3.C.Vasantharaja
... Petitioners
Vs.

1.M.Parimala
2.The District Social Welfare Office cum
The District Dowry Prohibition Officer,
Dindigul.
... Respondents

PRAYER

Petition filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to the impugned order in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul, and to quash the same.

For Petitioners ... Mr.Veera Kathiravan
For Respondents ... Mr.R.R.Kannan for R1
Mr.L.Murugan for R2
Govt. Advocate (Crl.Side)

:ORDER
This petition has been filed by the petitioners seeking to quash the cognizance order passed by the learned Judicial Magistrate No.II, Dindigul, in C.C.No.465 of 2008 as illegal and abuse of process of law and misuse of provisions of the Protection of Women from Domestic Violence Act, 2005 (herein after called as 'Act').

2. The brief facts of the case are as follows:-

The first petitioner is the mother-in-law, the second petitioner is the sister-in-law and the third petitioner is the husband of the sister-in-law of the first respondent. The first respondent preferred a complaint against the petitioners under the said Act. The allegation against the first petitioner/mother-in-law is that she wrote a letter to the Secretary, L.I.C. Employees Association, Dindigul, where the first respondent is working and a second letter to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Commercial Tax Office, Dindigul, where the first respondent's husband is working, with some allegations against the petitioner, under the guise of seeking for certain informations. The only allegation as against the petitioners 2 and 3 is that the 2nd petitioner/sister-in-law had written complaint where the first petitioner/mother-in-law had put her signature.
Further, on 09.05.2008 the petitioners 2 and 3 were attacked the first respondent and based on which, a complaint has been given and based on the complaint a case has been registered in 128 of 2008 which is pending on the file of the Police. Further, the first respondent claimed compensation of Rs.10 lakhs under the Act. The learned Judicial Magistrate concerned has also taken cognizance of the same, as if the complainant is entitled for compensation. The offence said to have committed by the petitioners are under Sections 18, 20, 21, 22 and 23 of the Act. Based on the complaint, the 2nd respondent has forwarded it to the trial court for prosecution and a criminal case was registered in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul and they were arrayed as respondents/accused.
The learned Judicial Magistrate No.II, Dindigul has taken cognizance and issued summons in the said complaint. Challenging the same, the petitioners have come forward with the present Criminal Original Petition for the relief as stated supra.

3. Heard Mr.Veera Kathiravan, learned counsel appearing for the petitioner and Mr.R.R.Kannan, learned counsel appearing for the first respondent and Mr.L.Murugan, learned Government Advocate(Crl.Side) appearing for the second respondent.

4. The learned counsel for the petitioner would submit in his argument that the petition given by the first respondent against the petitioners herein, who are the mother-in-law, sister-in-law and husband of the sister-in-law of the first respondent, was without any verification to be submitted by the protection Officer before the learned Judicial Magistrate No.II, Dindigul and the same was taken cognizance and summons were issued in contravention of the provisions of the Act and therefore, the order of cognizance passed by the learned Judicial Magistrate No.II, Dindigul, in C.C.No.465 of 2008 has to be quashed.

5. The learned counsel for the petitioners would further submit in his argument that the first respondent's husband was not included as respondent and therefore, it cannot be said that the petitioners are liable to be proceeded under the provisions of the said Act. The said inclusion of female members, as the relatives of the husband, as respondents, is not sustainable under Section
2(q) of the Act. He would further submit that the allegations said to have been made against the petitioners in Form-I under the Act, are not adequate, to take cognizance and on the face of it, the offence against the petitioners pertaining to the 3 days' cause of action viz., 26.04.2008, 30.04.2008 and 09.05.2008 are not sustainable and admittedly, on 09.05.2008, a complaint has been already lodged before the Police, North Police Station, Dindgul Town, Dindigul, and the Police have also given the receipt in C.S.R.No.128 of 2008. Now, the very same cause of action, has been repeated here and it would amount to 'double jeopardy' against the petitioners.

6. The learned counsel would further submit that the allegations as against the 2nd and 3rd petitioners in the said complaint would be that they helped the first petitioner to write the petition against the first respondent on 26.04.2008 and another petition against the husband of the first respondent on 30.04.2008 to their respective offices. He would state that no material has been produced for the purpose of incriminating the 2nd and 3rd petitioners and merely because they are living with the first petitioner, it cannot be said that they have instigated the first petitioner to write so. Moreover, he would also submit that the dispute between the first petitioner and her son namely, the husband of the first respondent and another younger son, in respect of the property, bequeathed by her husband in her favour for enjoying the property till her lifetime and the vested remainder to the sons. The first petitioner is in possession of the said property, situated in Salem, in pursuance of her life interest, the first respondent wanted her to get out of the property and immediately she caused disturbances by harassing the first petitioner by giving this complaint. He would further submit that the allegations in the letter dated 26.04.2008, written by the first petitioner to the Secretary, L.I.C.
Employees Association might not have been disclosed to the first respondent for warranting a cause of action. For this, an enquiry has to be conducted by the L.I.C. Employees Association, where the first respondent is working and therefore, there could not be any mental stress or domestic violence as told by the first respondent in the petition.

7. He would further submit that the letter dated 30.04.2008 written by the first petitioner seeking for information about the particulars of the employment of her son from his employer, and her son was not in any way prejudiced by the first petitioner and absolutely there was no cause of action for the aggrieved person. If any stress is emanating out of the letter dated 30.04.2008, it would be the first petitioner's son and the second cause of action is also not sustainable both in law and on facts. Without following of the legal formalities, the learned Judicial Magistrate No.II, Dindigul, has taken the complaint on file, which has to be quashed.

8. The learned counsel for the first respondent would submit in his argument that after taking cognizance of the complaint, about 39 hearings have passed and the petitioners have appeared for 5 hearings only and now, they have come forward with this case at the belated stage only. He would further submit that the petitioners are certainly attracted under the definition of 'domestic relationship' as per Section 2(f) of the said Act and the first respondent is entitled to give such a complaint against the petitioners, who are defined as 'respondents', as per Section 2(q) of the said Act and this petition has been filed only for prolonging the case so as to defeat the provisions of Section 12(5) of the Act, regarding the disposal of the case made under Sub-Section (1) within a period of 60 days from the date of taking cognizance. Therefore, he requests the Court to dismiss the petition as not sustainable.

9. The learned Government Advocate (Criminal Side) would reiterate the argument of the first respondent and he would also submit that the Protection Officer has promptly filed the application in time and it has been taken cognizance and there is no infirmity in the order passed by the learned Judicial Magistrate No.II, Dindigul in taking cognizance of the case and therefore, the petition may be dismissed.

10. I have carefully considered the submissions made on either side.

11. The foremost contention of the petitioners would be that the implication of the petitioners, as respondents in C.C.No.465 of 2008 on the file of the learned Judicial Magistrate No.II, Dindigul, cannot be sustained as female relatives of the husband are not attracted under the definition of the respondents under Section 2(q) of the said Act. For the better understanding the meaning of the term 'respondent', we have to extract the said provision itself.
Section 2(q) runs as follows:
"(q)"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;"

12. According to the main part of the said Section, the respondent in any case means any adult male person who must be in a domestic relationship with the aggrieved person. However, the proviso to Section 2(q) of the said Act, would go to show that an aggrieved wife or a female partner may also file a complaint against a relative of husband or male partner. Whether the term 'a relative' will spread its ambit to attract the petitioners, who are the female relatives of the husband, is a question to be decided. No doubt, the first petitioner is the mother and the second petitioner is the sister and the 3rd petitioner is the bother-in-law of the husband of the first respondent. Therefore, a relative in a 'domestic relationship', shall be the 'respondent' in a case. The definition of domestic relationship under Section 2(f) runs as follows:
"(f)"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;"

13. According to the said Section, two persons should live at any point of time together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or as members of the joint family. This domestic relationship qualification is given to a relative member of her husband, to be impleaded as 'respondent'. According to the petitioners they are not attracted by the said provisions.The insistence of the learned counsel for the petitioners would be that when the term 'respondent' is defined with a qualification as to be an adult male person in the Section, the reference "a relative" should also be a male relative of the husband or male partner and therefore, the case against the 1st and 2nd petitioners, who are the female members, cannot be sustained. For the purpose of determining as to whether a female relative of the husband cannot be a respondent in view of the mentioning of any adult male person in the Section, and therefore it would also apply to the proviso of 2(q), we have to necessarily to apply our mind to find the intention of the legislation, from the Statement of Objects and Reasons for enactment of this Act. In the sub Section
(i) of the 4th paragraph of the Statement of Objects and Reasons, it has been categorically mentioned as follows:
"4.The Bill, Inter alia, seeks to provide for the following:
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the make partner to file a complaint against the wife or the female partner."

14. The objects and reasons would categorically show that the aggrieved wife or female partner can file a complaint against any relative of the husband or male partner. Thus it helps us to understand the word 'a relative' mentioned in the proviso to section 2(q), could be construed as any relative. Will the words any relative include both female and male relatives? is an important question to be decided at this juncture. According to 'Concise Oxford English
Dictionary - Eleventh Edition', "any" means, to refer to one or some of a thing or number of things, and it does not matter how much or how many. As regards, the meaning of 'any', it does not restrict to a singular and a particular category, it applies to all categories or classes of persons. In this background, when we approach the object and reasons, it has been categorically mentioned that the bill was prepared to enable the wife or the female partner living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, even though, it does not enable any female relative of the husband or of the male partner to file a complaint against the wife or the female partner. Therefore, the Act has been enacted to protect the wife or the female partner, who is living with her husband or a male partner in a relationship in the nature of marriage from the harassment or violence emanated from any of the relative of her husband or male partner living in a relationship in the nature of marriage, including the adult female persons of the family. The benefits and protection given under this Act is not available to other female members of the family.
Therefore, the meaning given in the proviso of Section 2(q) would be against any relative of the husband or male partner which includes, the petitioners 1&2 being the adult female persons as per the allegations made by the first respondent.

15. As regards, the maintainability of the allegations, we have to see the ingredients of the complaint made by the first respondent against the petitioners as 'respondents' in the said case which is pending before the court below. The allegations against the 2nd and 3rd petitioners would be that they helped the first petitioner to write and send a petition to the Secretary, L.I.C. Employees Association, where the first respondent is working and to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Commercial Tax Office, Dindigul, where the first respondent's husband is working. Except the said allegations, nothing was mentioned against the petitioners in respect of cause of action dated 26.04.2008 and 30.04.2008.

16. On 26.04.2008, the first petitioner was stated to have written a complaint to the Secretary, L.I.C.Employees Association, Dindigul Branch I, 45, New Agraharam, Palani Road, Dindigul. Similarly, on 30.04.2008, the first petitioner is said to have sent a letter seeking for information under the Right to Information Act, to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Dindigul. These letters were signed by the first petitioner only.
Either the letters were neither signed nor attested by the second and third petitioners or nothing is available to show that both the letters were prepared by the 2nd and 3rd petitioners.

17. In the aforesaid circumstances, it cannot be said that there is a prima facie case against the petitioners 2 and 3 in respect of the cause of action dated 26.04.2008 and 30.04.2008.

18. So far as the second cause of action dated 30.04.2008 is concerned, it was a letter alleged to have been written by the first petitioner to the Public Relation Officer, Deputy Commercial Tax Officer-IV, Dindigul seeking for certain information from the said office regarding the employment of the first petitioner's son. The allegations in the said letter is in respect of the first petitioner's son's employment and he is a male member and the first respondent is in no way aggrieved as it was not addressed to her office. Moreover, the son of the first petitioner, who is the husband of the first respondent, is the aggrieved person and not the first respondent. The said letter would in any way affect or harm the first respondent to give a complaint against the petitioners under the provisions of the said Act.

19. Regarding the third cause of action dated 09.05.2008, it has been categorically mentioned in the complaint that the petitioners 1 and 2 and two other persons had come to the office of the first respondent and the second petitioner had abused the first respondent, slapped on her cheek and twisted her hand. It was also alleged that the first petitioner had criminally intimidated the first respondent and for that the first respondent had given a complaint to North Town Police Station, Dindigul and she was given with a receipt in C.S.R.No.128 of 2008. It has been also told that the Police is yet to take action against the petitioners. It has not been averred by the first respondent that the Police, North Town Police Station, Dindigul had dropped the action.
When the said case is pending for the same cause of action, the complaint given by the first respondent in the third cause of action is not sustainable. It has been taken cognizance by the learned Judicial Magistrate No.II, Dindigul, which would be certainly amounting to 'double jeopardy', as prohibited by the Constitutional Law. Whenever a complaint is given by the Protection Officer before the Court, the Court must apply its mind and go through the provisions of the special enactment and to take cognizance of the cases, if the allegations are attracting the provisions of the said Act. But, in this case, it is evident that it had abruptly taken the complaint without going through the provisions of the said Act.

20. For the foregoing discussion, I am of the considered view that the complaint does not disclose any cause of action against the petitioners 2 and 3 even though they are the relatives of the husband of the aggrieved wife and no case is made out in all the three causes of action namely, 26.04.2008, 30.04.2008 and 09.05.2008. As regards, the first petitioner is concerned, the first respondent, who is said to be the aggrieved wife, had chosen to file complaint against the first petitioner being the closest relative of her husband for all the three cause of action. It is found that the cause of action dated 30.04.2008 and 09.05.2008 can not be sustained against the first petitioner.
The second cause of action dated 30.04.2008 had pointed out only at the husband of the first respondent and not against the first respondent. Regarding the third cause of action dated 09.05.2008 already a Police complaint is pending before the Dindigul North Police and the present complaint based on the same cause of action dated 09.05.2008 would be certainly amounting to a 'double jeopardy'. The cause of action dated 26.04.2008 could alone be taken cognizance by the court and that too only against the first petitioner. It is already considered that an adult female relative of the husband of the aggrieved person may also be proceeded under the provisions of the Act. For the foregoing discussions, it has become necessary for this Court to quash the entire case against the 2nd and 3rd petitioner and the case in respect of causes of action dated 30.04.2008 and 09.05.2008 against the first petitioner. Accordingly the cognizance taken by the learned Judicial Magistrate No.II, Dindigul, in C.C.No.465 of 2008 has been partially quashed and the learned Judicial Magistrate No.II, Dindigul is competent to proceed against the first petitioner alone in respect of the cause of action dated 26.04.2008 only and nothing-else.

21. The submission of the learned counsel for the petitioner at this juncture regarding the claim for compensation of Rs.10 lakhs should have been referred to. According to the provisions of the said Act, only the penalty has been envisaged under Section 31 of the Act. Therefore, there is no provision for awarding compensation.

22. According to the provisions of the Act, there is no reference as to the awarding of compensation. Therefore it is open for the learned Judicial Magistrate No.II, Dindigul, to apply his mind at the time of trial and to pass appropriate orders in accordance with law.

23. With the aforesaid observation, the petition is ordered partially and the cognizance taken by the learned Judicial Magistrate No.II, Dindigul in C.C.No.465 of 2008 is quashed in respect of the case taken on file against the petitioners 2 and 3 and in respect of the causes of action namely, 30.04.2008 and 09.05.2008 against the first petitioner. The learned Judicial Magistrate No.II, Dindigul is competent to proceed with the case against the first petitioner in respect of the cause of action dated 26.04.2008 alone. Petition is ordered accordingly. Consequently, connected M.P. is closed.

nbj
To
1.The District Social Welfare Office cum
The District Dowry Prohibition Officer,
Dindigul.
2.The Judicial Magistrate No.II,
Dindigul.


[SOURCE] = http://judis.nic.in/judis_chennai/qrydispfree.aspx?filename=54954