Saturday, June 1, 2013

husband forced unnatural sex frm first night & continued dowry demands @USA! book all family! Husband and family assail jurisdiction. HC quashes cases ONLY against sisters, leaves it open against husband and parents

Notes from the detailed judgement below
  • Husband and family seem to be very respectable doctors
  • Husband father and sister are also doctors.
  • Many of family are settled in USA
  • Husband (also a doctor ) gets married in June 2010
  • They have lived at USA for most of the time and hardly ever lived together in Madras
  • Wife alleges that husband demanded UN natural sex right from first night
  • She also alleges that he continued with his unnatural sex demand while living together at USA
  • Wife ALSO alleges that husband took nude photos of her and threatens to publish them in USA
  • Wife files some cases in USA
  • She also alleges that she had NO access to phones or e mail or any communication while in USA
  • Wife alleges that husband tortured her and kept in a room and forced to take contraceptive pills which developed adverse affect of her health
  • so the wife has filed a 498a and 406 case against the husband and many others in the family - the usual list - father in law, mother in law, sisters in law etc :-(
  • Bizzaire as they may sound, none of the allegations are backed by any proof
  • Husband and co also show contradictory proof like normal e mail exchanges etc etc
  • Husband and family try JURISDICTIONAL quash saying all allegations of torture are at USA , so outside India
  • However HC says that since the sex torture started from the first night !! which happened in India, the HC feels there is sufficient jurisdiction and so quashes the case ONLY against the daughters and leaves it open against the husband and parents



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:      04.09.2012

CORAM:

THE HON'BLE MR.JUSTICE A.ARUMUGHASWAMY

Criminal Original Petition No.14656 of 2012

1.  Dr.Harihar Narasimha Iyer
2.  Dr.Narasimha Iyer
3.  Prof. Krishnakumari Ammal Rajammal
4.  Dr.Indulekha Gopal
5.  Anuradha Narasimhan           ...    Petitioners/Accused

Versus

1.  State of Tamilnadu rep. by
     Inspector of Police, W.19,
     All Women Adayar Police
     Station, Chennai-20.                ... Respondent/Complainant

2.Mrs.Krupanjana Ananth      ...  Respondent/Defacto Complainant

    Petition filed under Section 482 of Cr.P.C., praying to call for the records in the F.I.R. No.10 of 2012 on the file of the W19-All Women Police Station, Adayar, Chennai-20 and quash the same.


    For petitioners       ..    Mrs.Nalini Chidambaram, Sr. Cl.
                for Mr.R.Nadanasabapathy.

    For 1st Respondsent..    Mr.C.Emilias,
                Govt. Adv. (Crl.side)

    For 2nd Respondent ..    Mr.T.K.Sai Krishnan.


O R D E R


     The first petitioner is the husband of the second Respondent/Defacto Complainant, petitioners 2 and 3 are the parents of the first petitioner and petitioners 4 and  5 are the sisters of the first petitioner.  They are arrayed as Accused No. 1 to 5 in FIR No.10 of 2012 on the file of the  All Women Adayar Police Station, Chennai-20 for the alleged offence under Sections 498A and 406 of IPC.  They have come forward with this petition seeking to quash the FIR No.10 of 2012 on the file of the first Respondent. 

    2. The allegations in the complaint are:-  On 2nd June, 2010, the marriage between the first petitioner and the second respondent took place at Chennai.   Right from the date of marriage, the husband has forced the wife to do unpleasant sexual acts.  The day after the wedding there were accusations and gossips about the insufficient gold ornaments and other dowry articles brought by the wife from her parents during marriage.   Even  during physical intimacy, whenever the wife refused to part with his unpleasant demands, the husband used to abuse her with filthy words and physically harass her very badly.  The husband used to behave with his wife in an unusual manner.  The husband ensured that the complainant don't have any communication with any of her friends, relatives by denying her a telephone access, computer and any sort of communication device while she was at USA.  The wife had no access to mail box or other household keys and no telephone connection was allowed to use she was like a caged bird.  Most of the times the phone cable would be unplugged or disconnected  so she would not be able to receive any calls from her family. The wife had no privacy or privilege of freedom to hear communications amounting to a Human Rights Violation. 

      3.  Further in her complaint, she has stated that the remaining Accused persons encouraged all the sexual extortion acts of the first petitioner.  The first petitioner forcibly capturing several nude and obscene pictures of her and threatening her that it would be published on line in the social networking and pornographic sites in USA if she is not meeting their demands of dowry. 

    4.   From the perusal of the complaint it is seen that the first petitioner has vitiated the sex behaviour on the complainant which she could not bear with.  The first accused  tortured her and kept in a room and forced to take contraceptive pills which developed adverse affect of her health.  It has been opined by the Doctor at USA when she went for medical examination.  Even she was not allowed to convey to Doctor about her personal sufferings.  Her personal life was such a precarious position commenced from India and proceeded to up to United States.  

    5.  On 26.10.2011, Diwali day, the accused demanded from the complainant to bring the amount worth about Rs.25.00 lakhs and gold ornaments of not less than 50 sovereigns.  This was facilitated by her father who ensured making available a single return ticket as demanded by the first petitioner, so that they will allow her to go to India.  With the above allegations the complaint was given by the complainant against the accused i.e. the present petitioners.  

    6.  The learned senior counsel appearing for the petitioners has raised three grounds to quash the FIR against the petitioners:

     (i)   The occurrence took place only at the jurisdiction of  United States of America, therefore, the first Respondent has no jurisdiction to register the case.

     (ii)  As the petitioners are the residents of United States of America, the FIR registered by the first respondent against the petitioners is not maintainable for want of sanction from the Central Government as provided under Section 188 of Cr.P.C. To substantiate the said contention, the learned senior counsel appearing for the petitioners relied upon the judgment in the case of  Mohandoss and four others Vs.State rep. by   Inspector of Police, All Women Police Station,Thallakulam, Madurai and another reported in 2003 (3) CTC 54 wherein it has been held that this Court has enormous power to quash the complaint.

    (iii)  There is no specific allegation against the other family members regarding the demand of dowry as well as harassment.   Hence, she prayed that the FIR against the petitioners has to  be quashed.

    7.  From the perusal of the complaint, it is seen that the marriage had taken place at Chennai on 02.06.2010 and thereafter, the complainant lived with her husband at United States of America is not in dispute.  On the marriage day evening itself the behaviour  of the first petitioner was abnormal one and he behaved like a perverse manner, not as an ordinary person and his request could not tolerated by a wife.   In the complaint, she has further stated that in spite of his ill-health viz., stomach viral infection, he has forced her to do unpleasant sexual acts.  On the same day evening the parents of the first petitioner  demanded and expected more gold ornaments and sridhana articles from the parents of the complainant.  These are the wild allegations made in the complaint.
     
    8. The contention of the learned senior counsel appearing for the petitioners is that that there is no such harassment as contended by the complainant, as it is seen from the E.Mail sent by the complainant to the first petitioner from Japan as well as  in India as soon as she landed at Chennai the correspondence was normal one.  The said E.Mails will disclose that of course  on  29.11.2011 she has very casually gave an E.Mail from Japan and thereafter  on 30.11.2011 an E.Mail from India.  Thereafter  only after meeting the Gynecological Doctor, on 16.12.2011 the  father of the complainant sent an  E.Mail to the first petitioner.  In that it has been mentioned the father of the complainant was curious to know about the problem which was faced by his daughter at United States of of America.  Even though he mailed this and tried to contact his son-in-law over phone A3 the mother of the first petitioner alone picked up the phone and she refused to give it to A1-the petitioner.  In such way E.Mail message has been sent on 16.12.2011 and 17.12.2011 by the father of the complainant.  The above correspondence has been produced by the second respondent by way of typed set.   On 24.12.2011 the Complainant sent a E.Mail message to her husband regarding the threat made by her husband that the nude photographs will be published in the Face book to tarnish her image. There was no such effective response from A1-husband.  Thereafter the complainant  made a written complaint to California Court praying relief under Domestic Violence Restraining Order.

    9.  In the complaint before the  Superior Court of California, at Almeda she has stated that on 28.11.2011 on her birth day, her husband had taken nude photographs of her in his digital camera when she was coming out of the bathroom.  Further she has stated that  when her husband was in German in the month of October 2011, he called on her to participate in phone sex.   On 04.05.2012 the complainant has preferred the complaint narrating all those things, before California Federal Forum.   On 03.12.2011 the complainant came to India.  On 14.05.2012, the first petitioner husband filed a divorce petition at USA.  Later on she has filed the present complaint on 24.05.2012 before the All Women Police at Adayar, Chennai.  With this backdrop the case has been presented before this Court.  There is no much dispute regarding the above sequences. 

    10.  Considering the rival submissions and perusal of the documents it is seen that the marriage between the petitioner and the second respondent taken place at Chennai and on the same day evening itself problem had started regarding dowry demand as well as sexual abuse suffered by her.  This torture extended upto United States of America.  Thereafter she comes over to India and then she proceeded to a Gynecologist  and on examination the doctor informed the complainant about  the irregular gynecological cycle and further it came to the light that the complainant had taken contraceptive pills also continuously for very long time that leads to the gynecological problem.  After reaching India only she gave a complaint before the  Superior Court of California, at Almeda and a Request for Domestic Violence Restraining Order requesting to pass an order against her husband.   Therefore, from this allegations prima facie wild allegations have been made against the husband as well as his parents. 

    11.  Now, the point for my consideration is as to whether the complaint filed by the  wife  before the first respondent police attracts the jurisdiction to register the complaint?

    12.  As I have already discussed the husband started committing the offence immediately after of the marriage on the same day evening and it continued till her return to India. Since it is a matrimonial dispute between the husband and wife and further both the persons are Indians, there is no need for any previous sanction as provided under Section 188 of the Cr.P.C.  Therefore, I am of the view that the present complaint is maintainable in law.  It does not require any sanction since it is a day to day domestic quarrel.  While considering the other contentions of the learned senior counsel appearing for the petitioners it is seen that already two complaints have been given by the spouse at USA.

    13.   No doubt, in the judtgment relied upon by the learned senior counsel for the petitioners in the case of  Mohandoss and four others Vs.State rep. by   Inspector of Police, All Women Police Station,Thallakulam, Madurai and another reported in 2003 (3) CTC 54 it has been held that:-

" There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."

This Court is not different opinion regarding the proposition laid down by the Hon'ble Supreme Court of India in the judgment reported in 2003(3) CTC 54 (supra).  But the facts and circumstances of the present case is in a different footing.    Therefore, from any angle I am of the view that the complaint against the petitioners 1 to 3 before the first respondent is maintainable in law and it has to be enquired into.

    14.  Regarding the allegations against the petitioners 4 and 5 is concerned, even though they are the residents of USA in the same house.  Further, they never came to Madras.  There is no specific allegation has been made against the petitioners 4 and 5 regarding any demand of dowry  or any inducement regarding the dowry harassment.  Since there is no specific allegation as against the petitioners 4 and 5 no case is made out against the petitioners 4 and 5.  Therefore, I hold that the FIR against the petitioners 4 and 5 is abuse of process of law as per the law laid down in the  Bhajanlal's case reported in  State of Haryana Vs. Bhajan Lal (1992 Supp (1) SCC 335). Hence, the FIR as against the petitioners 4 and 5 are quashed. 

    15.  This Criminal Original Petition is partly allowed.  The FIR as against the petitioners 4 and 5 are quashed.  Regarding the other Accused viz., petitioners 1 to 3 the first respondent is directed to go further to avoid abuse of process of law and to have thorough investigation and proceed with the mater according to law.


Index:Yes/No                    04.09.2012.

Internet:Yes/No

gr.                       

To

The  Inspector of Police, W.19,  All Women Adayar Police Station, Chennai-20.     

A.ARUMUGHASWMY, J

gr.
   







PRE DELIVERY ORDER IN Crl.OP.No.14656 of 2012





04.09.2012