Mohammed Rafi Alias Kalilur v. S. Sameena Begam

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:24.08.2017

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR CRL.O.P.(MD)No.11178 of 2017 and CRL.M.P.(MD)Nos.7685 & 7686 of 2017

1. Mohammed Rafi @ Kalilur Rahuman

2. Thilsath Begam

3. Azees Banu

4. Jerina Begam ... Petitioners/Accused 1 to 3 & 5 -Vs1. S.Sameena Begam

2. Minor K.Afrin (Minor second respondent is represented through her mother, first respondent herein) ... Respondents/Complainants PRAYER: Criminal Original petition is filed under Section 482 of Criminal Procedure Code, to call for records pertaining to the case in D.V.No.32 of 2016 on the file of the learned Judicial Magistrate No.I, Tuticorin, and quash the same. For Petitioners : Mr.S.A.Ganapathyraman ***

O R D E R

This Criminal Original petition is filed for quashing the case in D.V.No.32 of 2016 on the file of the learned Judicial Magistrate No.I, Tuticorin.

2. Heard the learned counsel appearing for the petitioners.

3. It is stated that the first petitioner is the husband of the first respondent and the second respondent is the daughter of the first petitioner through the first respondent.

4. It appears that the first petitioner married the first respondent on 27.01.2013 and out of wed-lock, the second respondent was born to them. It is admitted that there was some dispute between the first petitioner and the first respondent. It is stated that after living a happy married life for some time, there was difference of opinion and the first petitioner and first respondent were living separately for some time. In the said circumstances, mainly on the ground that the first petitioner has refused to maintain the first respondent and his minor daughter, a complaint has been filed by the first respondent before the learned Judicial Magistrate No.I, Tuticorin, under Section 12 of Protection of Women from Domestic Violence Act, 2005.

5. The petitioners stated that the first petitioner has divorced the first respondent by saying "Thalak" on 28.02.2016. It is further submitted that the first petitioner also has filed a Suit in O.S.No.58 of 2016 before the I Additional District Munsif Court, Ambasamudram, declaring that the marriage was dissolved by "Thalak" and for consequential injunction. It was only after receiving the summons in the said suit, the petitioners state that a complaint was lodged by the first respondent. Even after the matter was referred to Lok Adalat, there was no settlement and that the pendency of the proceedings before the trial Court causes hardship to the petitioners. It is in the said circumstances, the petitioners have come forward to file the present petition to quash the petition filed by the first respondent.

6. Except stating that the allegation found in the petition are false and did not attract the provisions of Protection of Women from Domestic Violence Act, 2005 in view of the dissolution of marriage, there was no other serious contentions found in the petition. This is not a case of Dowry Harassment, but the petition is filed under the provisions of Protection of Women from Domestic Violence Act, 2005. In such circumstances, the truth or otherwise of the allegations found in the petition cannot be decided on the basis of the self serving statement of the husband alone. The contention of the petitioners with regard to factual issues can be resolved only by the Court after considering the entire materials on record. In this case, even the Suit filed by the first petitioner is yet to be disposed of. This Court does not find any merits in this petition. Hence, the Criminal Original petition is dismissed.

7. However, the learned counsel for the petitioners submitted that the presence of the petitioners, except the first petitioner may be dispensed with.

8. Considering the fact that the nature of the offence alleged against the petitioners, this Court is inclined to dispense with the presence of the petitioners before the lower Court, unless or until it is specifically required by an order of Court. Consequently, connected Miscellaneous petition is closed. Sd/- Assistant Registrar(CS-II) /True Copy/ Sub Assistant Registrar

To The Judicial Magistrate No.I, Tuticorin.

+1cc to M/S.S.A.GANAPATHY RAMAN, Advocate SR.No.74536 pmu MAS/MR-KKR/SAR3:18.09.2017:3P-3C CRL.O.P.(MD)No.11178 of 2017 24.08.2017