Muhammed Shafi vs Jasna on 7 August, 2018

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Kerala High Court

Muhammed Shafi vs Jasna on 7 August, 2018

Bench: Sunil Thomas

        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT:

                 THE HONOURABLE MR. JUSTICE SUNIL THOMAS

         TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940

                                Crl.MC.No. 5198 of 2018


    ( TO QUASH THE PROCEEDINGS IN MC.NO.8 OF 2018 ON THE FILE OF THE
         JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ATTINGAL)

          CRIME NO. 3272/2016 OF KOTTIYAM POLICE STATION , KOLLAM



PETITIONER(S)/RESPONDENT:


  MUHAMMED SHAFI,
  S/O. ASSANARU KUNJU, AGED 36 YEARS, SHAFI MANZIL,
  MYLAKKADU P.O., ADICHANELLOOR VILLAGE,
  KOTTIYAM, KOLLAM TALUK.


   BY ADV.SRI.T.H.ABDUL AZEEZ


RESPONDENT(S)/PETITIONER & STATE::

1. JASNA.,
   D/O. LATE ABDUL BUHARI, AGED 33 YEARS,
   JASNA MANZIL, MANKONAM, MADAVOOR VILLAGE,
   VARKALA TALUK, THIRUVANANTHAPURAM DISTRICT-695141.

2. STATE OF KERALA,
   REPRESENTED BY PUBLIC PROSECUTOR,
   HIGH COURT OF KERALA, ERNAKULAM-682 031.

   R2 BY PUBLIC PROSECUTORSMT.SREEJA.V.


 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 5198 of 2018 ()

                      APPENDIX

PETITIONER(S)' EXHIBITS

ANNEXURE 1:       TRUE COPY OF THE O.P.161/2016 FILED BY THE
                  PETITIONER BEFORE THE FAMILY COURT, KOLLAM ON
                 09.02.2016 FOR RESTITUTION OF CONJUGAL RIGHTS
                 AGAINST THE 1ST RESPONDENT.

ANNEXURE II:     TRUE COPY OF THE O.P.NO.894 OF 2016 FILED BY THE
                  1ST RESPONDENT BEFORE THE FAMILY COURT,
                  ATTINGAL.

ANNEXURE III:      TRUE COPY OF THE FINAL REPORT IN C.C.NO.4143/2016
                   OF JFMC-II KOLLAM IN FIR NO.3272/2016 OF KOTTIYAM
                   POLICE STATION.

ANNEXURE IV:      TRUE COPY OF O.P.NO.74 OF 2016 FILED BY THE 1ST
                   RESPONDENT BEFORE THE FAMILY COURT, ATTINGAL.

ANNEXURE V:       TRUE COPY OF THE O.P.NO.261 OF 2016 FILED BY THE
                   1ST RESPONDENT BEFORE THE FAMILY COURT,
                     ATTINGAL

ANNEXURE VI:      CERTIFIED COPY OF THE M.C.NO.8 OF 2018 BEFORE THE
                  JUDICIAL FIRST CLASS MAGISTRATE COURT-III,
                  ATTINGAL FILED BY THE 1ST RESPONDENT AGAINST
                  THE PETITIONER UNDER SECTIONS 12(1),18,19,20,22 AND
                  23 OF THE PROTECTION OF WOMEN FROM DOMESTIC
                  VIOLENCE ACT,2005.


RESPONDENT(S)' EXHIBITS                           NIL




R.AV                              //TRUE COPY//


                                  PA TO JUDGE

                 SUNIL THOMAS, J.
           ----------------------------------
             Crl.M.C.No.5198 of 2018
            ------------------------------
       Dated this the 7th day of August, 2018

                             ORDER

The petitioner herein, who is the respondent in MC.No.8 of 2018 on the files of the Judicial First Class Magistrate Court-III, Attingal, assails the proceedings, as an abuse of process of law. It was contended by the learned counsel for the petitioner that the respondent left the matrimonial home on 2.8.2015 and there was no matrimonial relationship thereafter. It is further contended that thereafter the petitioner herein pronounced Talaq on 25.3.2017, 3.5.2017 and 7.10.2017 and communicated it to the respondent. However, she moved the Family Court by filing Annexure-IV application as OP.No.74/2016, seeking exactly the same relief as sought in Annexure-VI MC proceedings. On the above premise, it was contended that the proceeding before the court below is absolute misuse of the procedure and hence liable to be quashed.

Crl.M.C.No.5198 of 2018

2. It emerges that in Annexure-IV O.P, the respondent herein has sought for divorce. It seems that according to her, the relationship of husband and wife still continues. Mere seeking of identical relief as sought in the Family Court proceedings is not a ground for quashing the DV proceedings. Under the DV Act, there is no bar in seeking identical reliefs in a pending proceeding in civil court, family court or other courts. Section 26 obliges that if any relief has been granted, it shall be reported to the jurisdictional Magistrate, where DV Act proceeding is pending. Here, no such relief has been granted. Having regard to this, I feel that the contentions now raised by the petitioner herein cannot be considered in a proceeding under section 482 Cr.P.c. Hence I am inclined to dismiss the Crl.M.C. However, the petitioner herein will be entitled to raise all the above contention before the Magistrate court. It is made clear that there is no finding of fact is entered into by this court on both the contentions raised by the petitioner herein in this proceeding, which is only for the Crl.M.C.No.5198 of 2018 3 limited purpose of considering the scope of invoking section 482 Cr.P.C Crl.M.C fails and is dismissed.

Sd/-

SUNIL THOMAS, JUDGE R.AV //True Copy// PA to Judge

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