Provision Of Appeal U/S 29 Of Domestic Violence Act Not Bar On Filing Application For Quashing U/S 482 CrPC: Karnataka High Court

Justice HP Sandesh, sitting at Kalaburagi bench, said,

"Section 29 of the DV Act not takes away the right of the petitioners seeking an order under section 482 of Cr.P.C wherein the petitioners have attributed that very initiating of the DV Act against them is an abuse of process. Under such circumstances, the Court can exercise the powers under section 482 of Cr.P.C."

The court allowed the petition filed by Marepa and others seeking to quash the cases registered against them under sections 12, 18 (A) (f), 19 (f), and section 22 of the DV Act and the summons issued by the magistrate court dated November 21, 2020.

It said, "The power under section 482 of Cr.P.C. includes the powers to quash FIR, investigation or any criminal proceedings pending before any Court subordinate to it. It has got a very broad definition of such powers under Section 482 of Cr.P.C can be exercised to meet the ends of justice to prevent abuse of process of any Court and make necessary to give effect to any order in the Court depending upon the facts of each given case."

Background:

The respondent (Pushapanjali) filed the complaint under DV Act against the petitioners and also against her husband invoking the aforesaid offences. She sought protection against committing any act of domestic violence, and other reliefs. The Trial Court after considering the contents of the complaint, issued notice against these petitioners and also against her husband.

Petitioner's submissions:

Advocate K M Ghate appearing for the petitioners submitted that these petitioners are not residing in a common shelter or they are not sharing common mess. Hence, the Magistrate totally committed an error in issuing the summons.

Further, it was contended that the story of ill-treatment, influence on the husband of the complainant demanding of additional dowry is totally false and the allegations are based upon malafide intention of the complainant to drag the petitioners to the Court of law.

Respondent's submissions:

The Respondent had argued that the petition for quashing is not maintainable. Reliance was placed on a judgement of the Delhi High Court in Maya Devi W/O Sh.Hari Kishan Bhendwal v. State Of N.C.T. Of Delhi, wherein in reference to Sections 25, 29 of the DV Act, it was held that when specific remedy by way of appeal or by way of alternation, modification or revocation of any order has been provided under the Act, prima facie, a petition under Article 227 of the Constitution of India or Section 482 CrPC is not maintainable.

Findings:

The High Court relied on a Division Bench judgment in Prakash and Other v. Sarita, where it was held that even though revisional remedy is available, the petition under Section 482 of CrPC is maintainable.

Accordingly, the Bench ruled:

"Petition under section 482 of Cr.P.C. is maintainable and need not invoke section 29 of the DV Act."

As regards to the other contention of petitioners that they are not members of the family and thus the complaint is not maintainable, the Court said,

"Section 2(f) which 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. But the complaint filed by the respondent does not disclose that they are living together as a joint family."

Further, it said, "No doubt while filing the complaint they arrayed as respondents, the Court has to take note of the meaning of "respondent" as defined under Section 2(q) of the DV Act."

Lastly, it added

"I have pointed out that they are not living together and the question of relief sought for protection order and also for monetary benefit does not arise. I have already pointed out that they are not enjoying any joint family property and they are not living along with the respondent and her husband. Hence, there is a force in the contention of the petitioners' counsel that the Court has to take note of the relief prayed in the petition."

Accordingly it allowed the petition and quashed the proceedings initiated against the petitioners.

Case Title: Mareppa v. Pushapanjali

Case No: Criminal Petitioner 200009/2021

Date of Order: 10th December 2021

Appearance: Advocate K M Ghate for petitioners; Advocate V M Ashrit for respondents