Dennison Paulraj v. Mrs.Mayawinola

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 2.4.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.O.P.No.7156 of 2007andM.P.Nos.1 and 3 of 20071. Dennison Paulraj2. Baby Mercy3. G.Devasagayam4. Johnson Gunaraj Devasagayam5. Jasmine glory6. Jhansi Rani..Petitioners / Respondents 1-6vs. Mrs.Mayawinola..Respondent / PetitionerCriminal Original Petition filed under section 482 Cr.P.C. seekingto call for the records pertaining to the private complaint filed by therespondent in C.M.P.No.1772 of 2007 in unnumbered M.C. Of 2007 pendingon the file of Judicial Magistrate II, Poonamallee and quash the same asagainst the petitioners.For petitioners : Mr.M.Venkataraman, Senior Counsel for Mr.V.KrishnakumarFor respondent : Mr.Ramasubramanian for M/s.Ram & RamORDERThe petition is filed seeking to quash the private complaint takenon file in C.M.P.No.1772 of 2007 pending on the file of the learnedJudicial Magistrate II, Poonamallee. 2. The sum and substance of the petition filed by the respondent,who is the wife of the first petitioner herein, invoking the provisionunder section 23(2) of the Protection of Women from Domestic ViolenceAct 2005 (in short the Act) read with rules 6(4) and 7 of the Rulesframed therein is as follows:-The respondent herein married the first petitioner herein on5.7.2004 at CSI Trinity Church, Avadi. The respondent lived with thefirst petitioner in the matrimonial home. All the petitioners herein https://hcservices.ecourts.gov.in/hcservices/ started harassing the respondent. Having made sarcastic comments on theshortage of cash and jewels and about the quality of the articles givento the respondent during her marriage by her parents, startedpressurising the respondent to bring more money from her parents. Thesecond petitioner who is the mother-in-law of the respondent, ill-treated her without even providing proper food. She was not allowed totake rest. The second petitioner extracted work from morning tillevening and treated her as maid servant. The respondent, therefore,suffered mental agony eversince her pregnancy and got depressed. Shealso underwent psychological and emotional abuse, insults andintimidation from the petitioners herein on a day to day basis. Thepetitioners also made an attempt to abort the pregnancy of therespondent by giving some tablets and papaya fruits. The respondent hadto leave the matrimonial home during her pregnancy with tears. Thefirst petitioner had filed a petition seeking judicial separationsetting out all sorts of baseless allegations against the respondent.The petitioners threatened the respondent and her parents not to contestthe matrimonial proceedings pending before the Family Court, Chennai.They have also warned that if the respondent continue to contest thematrimonial proceedings launched by the first petitioner, thepetitioners would engage mercenaries to kill the respondent and herparents along with her child. For the last six months, the respondentreceived unanimous phone calls threatening her and her family memberswith dire consequences, if she chose to contest the matrimonialproceedings filed by the first petitioner. The respondent and herfamily members were threatened not to interfere with the second marriageof the first petitioner with some other girl The respondent alsosuffered mental agony and on account of which her general health gotdeteriorated. The respondent also has filed application praying forprotection order and residence order to live with the first petitionerin the matrimonial home with her child. Therefore, the respondent hasprayed that the petitioners should be restrained from wielding anythreat or indulge in any violence or giving out intimidation to therespondent and her child and her relatives. She has also sought for re-entry along with her child to the matrimonial life with the firstpetitioner. She has also prayed to restrain the petitioners fromrepeating, abetting or aiding the acts of domestic violence against herand her child. In the alternative, she seeks for residence for herliving with the first petitioner. 3. The petitioners challenge the aforesaid proceedings initiated bythe respondent on three grounds. The first ground is that the presentpetition has been laid by the respondent abusing the process of lawafter the first petitioner filed a petition seeking judicial separationbefore the Family Court. Secondly, it is contended that though theProtection of Women from Domestic Violence Act, 2005 came into force on26.6.2006, the petition under challenge was filed only on 23.2.2007alleging certain acts of domestic violence before she left thematrimonial home in the month of March 2005. Therefore, no petition can https://hcservices.ecourts.gov.in/hcservices/ be laid invoking the provision of the Act seeking protection order andresidence order. The third contention is that the proceedings initiatedby the respondent can be brought to the court of the Family Court atChennai to try the same along with the petition filed by the firstpetitioner seeking judicial separation. 4. Learned Senior Counsel appearing for the petitioners wouldcontend that the present petition has been filed just to harass thefirst petitioner who has already initiated proceedings seeking judicialseparation from the Family Court, Chennai. The present petition is anafter-thought to counter the proceedings initiated by the firstpetitioner for judicial separation. Further, no petition can be filedunder the Act for the act of domestic violence which allegedly tookplace prior to the coming into force of the Act. Any statute with penalconsequences for that matter cannot operate retrospectively. It is hislast submission that in the interest of justice and also for theconvenience of the parties, the present proceedings, if not quashed, canbe tagged with the petition filed by the first petitioner seekingjudicial separation before the Family Court, Chennai.5. Three points arise for determination in this criminal originalpetition. Firstly, the court has to decide whether there is any abuse ofprocess of law by the respondent in filing the petition under theProtection of Women from Domestic Violence Act, 2005. The second pointthat arises for consideration is whether the petition filed invoking theprovisions of the Act is maintainable. Thirdly, whether theseproceedings can be transferred to the Family Court, Chennai to enquireinto the same along with the proceedings initiated by the firstpetitioner for judicial separation. 6. It is true that the first petitioner has filed O.P.No.887 of2005 on 12.4.2005 seeking judicial separation from the respondent. Totake the petition under the Act, the court has to see whether there isprima facie allegation of act of domestic violence levelled against thepetitioners by the respondent. The initiation of the proceedingsseeking judicial separation by the first petitioner is not a bar toinvoke the protection under the Act by the wife. The court whichenquires into the petition will have to ultimately decide whether thepresent petition has been filed by the wife only to counter the petitionseeking judicial separation filed by the first petitioner. Inasmuch asnecessary allegations are found in the petition about the alleged act ofdomestic violence committed by the petitioners herein, the court findsthat the Judicial Magistrate has rightly taken the petition on file. 7. There is no dispute to the fact that the marriage between thefirst petitioner and the respondent was solemnized on 5.7.2004 and therespondent left the matrimonial home in the month of March 2005. TheAct has come into force on 26.6.2006. Firstly, it is found that there isa specific allegation that for about six months prior to the filing of https://hcservices.ecourts.gov.in/hcservices/ the present petition on 23.2.2007, a threat emanated from thepetitioners not to contest the matrimonial proceedings pending beforethe Family Court, Chennai at the instance of the first petitioner. Ithas also been averred in the petition that the respondent was warnedwith dire consequences if she continued to contest the said matrimonialdispute. She has also specifically set out in the petition that shereceived phone calls from unknown callers wielding threat to her withdire consequences if she contested the matrimonial proceedings filed bythe first petitioner. A part of the act of violence has been allegedafter the Act has come into force on 26.6.2006. Therefore, the courtfinds that it is not factually correct to say that the entireallegations of act of violence relate to the period prior to March 2005beforeever the Act came into force on 26.6.2006.8. On a careful perusal of section 31 of the Act, it is found thatthe act of domestic violence does not attract penal consequence as perthe Act. Only if a protection order is passed and the respondent in themain petition violates the protection order passed by the court, thensuch act of breach of protection order is construed as an offence. Thepenal consequence emanates from the date of protection order passed bythe court. But, it does not date back to the act of domestic violencecommitted by the husband and his relatives. Therefore, it is farfetchedto contend that the provisions of the Act can be invoked only if anydomestic violence is committed after the Act came into force. The courtis competent to take cognizance of the act of domestic violencecommitted even prior to the Act came into force and pass necessaryprotection orders. The Act can be applied retrospectively to takecognizance of the act of violence alleged to have been committed evenprior to the coming into force of the Act. 9. Section 26 of the Act gives liberty to the affected person toseek reliefs under sections 18, 19, 20, 21 and 22 of the Act in anylegal proceedings before a Civil Court, Family Court or Criminal Court.It is not necessary for the affected person to invoke only the Act toseek protection from domestic violence. Even part of the reliefs can besought under the Act. There is no bar for the aggrieved person to seekthe other part of the reliefs under the Act before a Civil Court or aFamily Court or a Criminal Court. 10. It is true that the Family Court where the proceedings forjudicial separation initiated by the first petitioner is pending asagainst the respondent is also empowered to address the grievance of actof domestic violence by an aggrieved person. But, the respondentalleged to have been affected by the act of domestic violence wouldcontend that she prefers to conduct the summary proceedings initiated byher under the Act only before the learned Judicial Magistrate II,Poonamallee. After all, the proceedings under the Protection of Womenfrom Domestic Violence Act, 2005 is a summary one in nature. It doesnot require lengthy trial engaging both the parties for quite a long https://hcservices.ecourts.gov.in/hcservices/ time. But, the proceedings initiated for judicial separation will takeits own time. Therefore, transferring this matter to the Family Courtmay not serve the purpose, it is found. 11. In view of the above, the court finds that there is no merit inthe petition seeking to quash the proceedings in C.M.P.No.1772 of 2007on the file of the Judicial Magistrate II, Poonamallee. Therefore, thepetition stands dismissed. Sd/Asst. Registrar/true copy/Sub Asst.Registrarssk. ToThe Judicial Magistrate II, Poonamallee.+1 cc to M/s.Ram & Ram, Advocates, SR.No.18967.+1 cc to Mr.V.Krishnakumar, Advocate, SR.No.18290.Sj (Co)krd / 9.4.08 Crl.O.P.No.7156/2007