SHEEJA Vs. K.T. ANILKUMAR AND OTHERS

JUDGEMENT

(1.) The petitioner herein was married to the first respondent herein on 22.8.2004. During their matrimonial relationship, a girl child was born to them. Thereafter, the matrimonial relationship gradually deteriorated, ultimately leading to legal proceedings. She started residing at her house pursuant to alleged matrimonial cruelty meted out by her husband and the inlaws. She initiated proceedings under the Protection of Women from Domestic Violence Act, 2005, seeking various reliefs. The learned Magistrate, by order in M.C.No.91/2008 of the Judicial First Class Magistrate Court, Vatakara, dated 15.3.2010, granted several reliefs in accordance with the reliefs sought by her. This was carried in appeal by the first respondent - husband in Crl.A.No.210/2010 before the Additional District and Sessions Judge, Vatakara. The learned Additional Sessions Judge, by judgment dated 17.1.2013, confirmed a part of the relief granted by the court in relation to the maintenance ordered and all other reliefs were set aside by the court. The appeal was allowed in part to that extent. This is assailed in these proceedings.

(2.) Heard the learned counsel for the petitioner and the learned Public Prosecutor. The first respondent though served with the service, remained absent and did not contest the proceedings.

(3.) The learned counsel for the petitioner herein, Ms.Athira.A.Menon invited my attention to the crux of the Appellate Court judgment as seen at paragraph 13 of the judgment. The court below held that the petitioner herein had initiated proceedings under Section 498A against the husband as C.C.No.162/2007 before the Judicial First Class Magistrate, Payyoli. Four witnesses were examined as PWs 1 to 4 to support the prosecution case. On an evaluation of the evidence, the Magistrate held that offence under Section 498A was not made out and acquitted the husband and the co-accused invoking section 248(1) of Cr.P.C., 1973 The learned Sessions Judge while considering the appeal under the Domestic Violence Act, referred to Ext.D11 certified copy of the judgment in C.C.No.162/2007 and held that, in the light of the acquittal of the accused on the basis of the materials placed before him for an offence under Section 498A acts as an issue estoppel, in relation to further findings on the same set of facts considered in other judicial proceedings. It was held that in the above circumstances, applying the principle of 'autrefois acquit' or 'double jeopardy' as embodied in Section 300 Cr.P.C., 1973 that finding cannot be disturbed in another proceedings and the party making the allegation is estopped from denying the arrival of such conclusion by the court below.