Friday, August 23, 2013

yet another 498a filed 2007 & wife leaves it to die, EVEN notice cannot be served on wife, and finally gets quashed by HC


yet another 498a filed 2007 & wife leaves it to die, EVEN notice cannot be served on wife, and finally gets quashed by HC 


Notes
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* Petitioners original accused Nos.2 and 3 seek quashing of FIR bearing C.R. No.168 of 2007 filed before the Maninagar Police Station, Ahmedabad 
* It appears that wife no longer resides at the last address given by her
* service of notice of rule of this Court could not be effected on her
* In addition, the husband had also filed a petition for divorce. In such petition, public notice was issued since it was not possible to serve the wife through ordinary means. Despite such public notice, since she did not respond to the Court proceedings, decree in the divorce petition was granted in favour of the husband. Though more than two years have passed, there is no challenge to such ex-parte decree !!!!
* considering this and considering that the original FIR does NOT have avermets covered by 498a, the honourable HC quashes the case 
* the Hc also has stated "..............Merely leaving the marital home on account of differences between the parties, cannot be said to be mental torture as is sought to be contended by the learned Advocate for respondent No.2............."


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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 2093 of 2008
HONOURABLE MR.JUSTICE AKIL KURESHI Sd/-
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CHANDRAVADAN AMBALAL BRAHMBHATT & 1....Applicants
Versus
STATE OF GUJARAT & 1....Respondents
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Appearance : 
MR ASIM PANDYA FOR HL PATEL ADVOCATES, ADVOCATE for the Applicants.
MS HANSA PUNANI, APP for the Respondent No.1.
RULE UNSERVED for the Respondent No.2.
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CORAM: HONOURABLE
MR.JUSTICE AKIL KURESHI
Date : 19/08/2013

ORAL JUDGMENT

1. Petitioners original accused Nos.2 and 3 seek quashing of FIR bearing C.R. No.168 of 2007 filed before the Maninagar Police Station, Ahmedabad by respondent No.2 herein. Respondent No.2 who was a wife of Milap Chandravadan Brahmbhatt, she had filed above noted criminal complaint against her husband as well as the husband's parents alleging commission of offences punishable under Section 498-A read with Section 114 of IPC. She also complained of breach under Section 31 of the Domestic Violence Act.

2. It appears that respondent No.2 no longer resides at the last address given by her. Due to this, service of notice of rule of this Court could not be effected on her. However, looking to peculiar facts of the case, it is not necessary to await such service.

3. Previously, the husband had filed Criminal Misc. Application No.8686 of 2007 for quashing of this very complaint. Such petition was allowed by this Court by judgment dated 5.12.2007 making following observations :-

>13. Upon perusal of the allegations made in the
>complaint, it is apparent that definition of cruelty
>under clause (b) of the Explanation to Section 498-A
>is not attracted, as it is nowhere one alleged that
>any unlawful demand as envisaged thereunder was ever
>made by the petitioner or his parents from the
>respondent No.2. Insofar as Clause (a) is concerned,
>none of the allegations made in the complaint appear
>to be of such nature as would be likely to drive the
>complainant to commit suicide or to cause grave injury
>or danger to her life, limb or health (mental or
>physical). In the circumstances, none of the
>ingredients of Section 498 A of the Indian Penal Code
>can be said to have been satisfied. Insofar as the
>provisions of Section 31 of the Domestic Violence Act,
>are concerned, the same pertain to penalty for breach
>of any protection order or of an interim protection
>order. In the facts of the present case, it is not the
>case of respondent No.2-complainant that any
>protection order or any interim direction order had
>been passed much less any breach thereof on the part
>of the petitioner. In these circumstances, the
>provisions of Section 31 of the Domestic Violence Act
>are also not attracted. Upon an overall view of the
>matter, it is apparent that the allegations made in
>the complaint do not constitute the offences alleged
>against the petitioner.
>
>14. Moreover, Mr.Kogje, learned Additional Public
>Prosecutor has also pointed out the statements of
>supporting witnesses which form part of the charge-
>sheet papers. Such statements are in the form of
>statements made by Minaben, mother of the complainant
>and Bipinbhai, father of the complainant. Upon perusal
>of both the aforesaid statements, it is apparent that
>there are no allegations of either mental or physical
>harassment for the period subsequent to the compromise
>between the parties.
>
>15. The main grievance of the complainant appears to
>be that the petitioner has deserted her which amounts
>to mental harassment. The said contention is
>misconceived. The physical harassment envisaged under
>the Indian Penal Code has to be actual physical
>harassment meted out at the time when they are
>residing together or even thereafter, on account of
>some overt act on the part of the husband or his
>family members. Merely leaving the marital home on
>account of differences between the parties, cannot be
>said to be mental torture as is sought to be contended
>by the learned Advocate for respondent No.2.
>
>16. For the foregoing reasons, as the allegations
>made in the F.I.R. / complaint do not disclose
>commission of the offences alleged, permitting further
>investigation to continue pursuant thereto would
>amount to abuse of process of law. This Court is,
>therefore, of the view that the F.I.R. / complaint in
>question deserves to be quashed in the interest of
>justice.
>
>17. The application, therefore, succeeds and is
>accordingly allowed. The F.I.R. registered with
>Maninagar Police Station vide C.R.No.I-168 of 2007 is
>hereby quashed. Rule is made absolute accordingly.

4. From the above quoted passage of the judgment, it emerges that the FIR was quashed without any qualification that such powers were exercised only qua the husband. It would still be possible for the complainant to argue that the quashing would take effect only for the petitioner before the Court and not with respect to the remaining accused. However, one cannot get away from the fact that the FIR was found lacking in any disclosure of commission of criminal offence. This was not peculiar only for the husband, but the situation would cover all the accused. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/   

5. In addition to such conclusions of this Court, learned counsel Shri Asim Pandya for the petitioners stated that the husband had also filed a petition for divorce. In such petition, public notice was issued since it was not possible to serve the wife through ordinary means. Despite such public notice, since she did not respond to the Court proceedings, decree in the divorce petition was granted in favour of the husband. Though more than two years have passed, there is no challenge to such ex-parte decree. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/   

6. Under the circumstances, it can be safely presumed that for whatever personal reasons, wife has lost interest in the litigation. Perhaps it may not be possible for her to incur further expenditure to pursue this litigation.

7. For the above noted reasons, FIR at Annexure A is quashed qua the present petitioners also. It is, however, clarified that it would be open for the respondent No.2 to approach this Court for rectification of this order and to seek revival of the quashing petition.

8. With above rider, the petition is allowed and disposed of accordingly. Rule is made absolute.

Sd/-

(AKIL KURESHI, J.)

Savariya



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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist