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2018 Supreme(AP) 596
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
U. DURGA PRASAD RAO, J.
Challa Sivakumar and Two Others - Appellant
Vs.
Challa Anita and Two Others - Respondent
Criminal Petition No. 13188 of 2013
Decided On : 24-10-2018
V. Narayan Reddy, Adv., M. Venkata Narayana, Adv.
Headnote:
Criminal Law – Criminal Trial – Criminal Produce Code, 1973 – Section 482 – Domestic Violence Act, 2005 – Section 28(2) – Demand of Dowry – Sought for quash of Proceedings – Respondent No.1 who is the wife of 1st petitioner, filed DVC alleging that during marriage, her parents agreed to give Rs. 6 lakhs cash to 2nd petitioner towards dowry to 1st petitioner for purchase of gold ornaments; some time they lived happily and out of wedlock, they were blessed with a male child after birth of child, 1st petitioner came to her parental house and beat her unnecessarily; while so, separate family was put up at Chennai and expenses were borne by her father; 1st petitioner raised an issue and picked up quarrel with her family members and abused her in filthy language; when her parents came to Chennai for celebrating 1st birthday day function, 1st petitioner abused her and her mother in vulgar and un-parliamentary language and beat her black and blue; on coming to know of same, her father took her and children when elders intervened and mediated the matter; 1st petitioner agreed to return dowry amount and to pay lump sum amount towards maintenance and demanded for dissolution of marriage; contrary to same, he issued lawyer notice with all false allegations and sought for restitution of conjugal rights which was suitably replied; to avoid paying agreed amount of Rs. 9 lakhs, he filed HMOP before Senior Civil Judge for dissolution of marriage and same is pending for disposal; she also filed HMOP for same relief, wherein 1st petitioner remained ex parte and Court after enquiry granted decree of divorce thereafter she filed the present DVC against petitioners/respondents for various relief’s mentioned in petition – Held, Court observed that in view of the remedies enlisted in the D.V Act, which are civil in nature and enquiry is not a trial of criminal case, the quash petitions under Section 482 Cr.P.C are not generally maintainable except in exceptional cases like, without there existing any domestic relationship as laid under Section 2(f) of the D.V Act between the parties, the petitioner filed D.V case against the respondents or a competent Court has already acquitted the respondents of the allegations which are identical to the ones levelled in the Domestic Violence case etc – It is categorical plea of the 1st respondent that during the subsistence of the marital tie between herself and 1st petitioner, all petitioners have subjected her to domestic violence and they necked her and her child out of matrimonial home and therefore, she took shelter in her parental home and efforts made by elders did not fructify and though the 1st petitioner wanted divorce on the promise of paying Rs. 9,00,000/- but betrayed her and hence she was constrained to file divorce application and obtained decree and later filed D.V case to obtain the relief’s. In view of the judgment in Juveria Abdul Majid Patnis case (4 supra), subsequent decree of divorce will not interdict her from filing the D.V case in respect of the act of domestic violence allegedly caused by petitioners. Therefore plea of non-existence of domestic relationship at present cannot be taken as an exception to entertain quash petition – Criminal Petition dismissed. (Paras 9 and 10)
U. Durga Prasad Rao, J.
In this petition filed under Section 482 Cr.P.C, the petitioners/respondents 1 to 3 seek to quash the proceedings against them in D.V.C. No. 6 of 2013 on the file of Judicial Magistrate of First Class, Sullurpet, SPSR Nellore District.
2. (A) Petitioners 2 and 3/respondents 2 and 3 are parents of the 1st petitioner/respondent No.1.
(b) Respondent No.1 herein, who is the wife of 1st petitioner, filed DVC No.6 of 2013 alleging that her marriage with 1st petitioner was performed on 02.12.2009 at Sullurpet; during marriage, her parents agreed to give Rs. 6 lakhs cash to the 2nd petitioner towards dowry and Rs. 80,000/- to the 1st petitioner for purchase of gold ornaments; some time they lived happily and out of wedlock, they were blessed with a male child on 29.08.2010; after the birth of child, 1st petitioner came to her parental house and beat her unnecessarily; while so, in January, 2011 separate family was put up at Chennai and the expenses were borne by her father; in April 2011, 1st petitioner raised an issue and picked up quarrel with her family members and abused her in filthy language; when her parents came to Chennai for celebrating 1st birthday day function, 1st petitioner abused her and her mother in vulgar and un-parliamentary language and beat her black and blue; on coming to know of the same, her father took her and children to Sullurpet in September, 2011; when the elders intervened and mediated the matter on 21.06.2012; the 1st petitioner agreed to return the dowry amount of Rs. 6 lakhs and to pay lump sum amount of Rs. 3 lakhs towards maintenance and demanded for dissolution of marriage; contrary to same, he issued lawyer notice dated 04.07.2012 with all false allegations and sought for restitution of conjugal rights which was suitably replied; to avoid paying the agreed amount of Rs. 9 lakhs, he filed HMOP No.71/2012 before Senior Civil Judge, Gudur for dissolution of marriage and the same is pending for disposal; she also filed HMOP No. 92/2012 for the same relief, wherein the 1st petitioner remained ex parte and the Court after enquiry granted decree of divorce on 18.12.2012; thereafter she filed the present DVC against petitioners/respondents for various relief’s mentioned in the petition.
Hence, the instant quash petition.
3. Heard arguments of Sri V. Narayana Reddy, learned counsel for petitioners; Sri M. Venkata Narayana, learned counsel for respondents 1 & 2 and learned Additional Public Prosecutor for the State (Andhra Pradesh).
4. I heard both the learned counsel about the maintainability of DVC in view of judgment of this Court in Giduthuri Kesari Kumar and Others vs. State of Telangana and Others, (2015) 2 ALD(Cri) 470 wherein this Court observed thus: Para14. To sum up the findings:
(i) Since the remedies under D.V. Act are civil remedies, the Magistrate in view of his powers under Section 28(2) of D.V. Act shall issue notice to the parties for their first appearance and shall not insist for the attendance of the parties for every hearing and in case of non-appearance of the parties despite receiving notices, can conduct enquiry and pass ex parte order with the material available. It is only in the exceptional cases where the Magistrate feels that the circumstances require that he can insist the presence of the parties even by adopting coercive measures.
(ii) In view of the remedies which are in civil nature and enquiry is not a trial of criminal case, the quash petitions under Sec. 482 Cr.P.C. on the plea that the petitioners are unnecessarily arrayed as parties are not maintainable. It is only in exceptional cases like without there existing any domestic relationship as laid under Section 2(f) of the D.V. Act between the parties, the petitioner filed D.V. case against them or a competent Court has already acquitted them of the allegations which are identical to the ones levelled in the Domestic Violence Case, the respondents can seek for quashment of the proceedings since
