SHAMMIL Vs. STATE OF KERALA

JUDGEMENT

(1.) The point to be decided in this case is that, whether a prosecution initiated under Sec. 498A of the Indian Penal Code can be quashed because there is a finding by the Court in a proceeding initiated under Sec. 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'Act 2005') to the effect that there is no domestic violence as defined in the Act 2005.

(2.) The brief facts in this case can be narrated first: Petitioner is an accused in C.C.No.4071/2013 on the file of the Judicial First Class Magistrate Court, Chalakudy. The above case is charge-sheeted against the petitioner alleging the offence punishable under Sec. 498A IPC. The prosecution case is that the accused married CW1 on 3/9/2000 in accordance with the Hindu Religious customs and after the marriage, when the accused and CW1 were residing in the house of the accused, 30 sovereigns of gold given to CW1 was misappropriated by the accused. It is also the prosecution case that the accused said that, to live with CW1, 30 sovereigns of gold ornaments is insufficient and he demanded 5 lakh rupees and another 50 sovereigns of gold ornaments. It is also the case of the prosecution that the accused told CW1 that he married her because of the compulsion from his family even though he is not interested in the marriage. The crux of the allegation is that, the petitioner without maintaining CW1 and the children mentally ill-treated her. Hence it is alleged that the accused committed the offence.

(3.) It is submitted that, there are two children in the matrimonial relationship between the petitioner and the defacto complainant. The petitioner is a B.Tech holder and the 3rd respondent is a Diploma holder. It is the case of the petitioner that he wants the company of the 3rd respondent, who is the defacto complainant herein. But the 3rd respondent is not interested in continuing the relationship. It is also the case of the petitioner that the 3rd respondent preferred complaints before different authorities without any basis. It is submitted that, on 20/1/2011 she preferred O.P. No. 135/2011 before the Family Court, Thrissur under Sec. 13(1)(ia) of the Hindu Marriage Act for divorce alleging that, after solemnization of the marriage, she was treated with cruelty. She also filed O.P.No.139/2011 for return of 30 sovereigns of gold ornaments or its equal value. It is further submitted that, on 8/2/2011, the petitioner filed M.C.No.15/2011 under Sec. 12 of the Act 2005 before the Judicial First Class Magistrate Court, Chalakudy alleging dowry harassment by the petitioner and his parents, not to alienate the landed property and the house owned by the petitioner, and to give maintenance to her children. It is submitted by the petitioner that, on 27/3/2011, the 3rd respondent on her own accord, vacated the parental house of the petitioner with children and all her belongings. Annexure - I is alleged to be the letter sent by the 3rd respondent, in which, she stated that she is leaving on her own will. It is the case of the petitioner that, he resigned from his job in the Gulf and came back to his native place hoping for a reunion. But the 3rd respondent was not ready for the same, is the submission. It is also submitted that, O.P.No.139/2011 filed by the 3rd respondent for return of gold ornaments was dismissed by the Family Court. It is also submitted that, as per Annexure - III order, the learned Magistrate dismissed M.C.15/2011 rejecting the contention of the 3rd respondent that there was harassment from the side of the petitioner. It is the case of the petitioner that, knowing that M.C.No.15/2011 will be dismissed, criminal prosecution was initiated against the petitioner with the same set of facts. The contention raised by the petitioner is that, when there is a finding in Annexure - III order that there is no cruelty from the side of the petitioner, the continuation of the prosecution under Sec. 498A IPC is an abuse of the process of the court. Annexure - VI is the final report filed against the petitioner alleging the offence punishable under Sec. 498A IPC. Hence this Criminal Miscellaneous Case is filed.