Karnataka High Court
Mr. Miraj Mehta vs Mrs. Nidhi Shah on 6 September, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.7987 OF 2017
c/w.
CRIMINAL PETITION NO.5551 OF 2017
IN CRIMINAL PETITION NO.7987 OF 2017
BETWEEN:
MR. MIRAJ MEHTA
S/O MR. VIJAY MEHTA
AGE 34 YEARS,
PERMANENT RESIDENT OF USA
HAVING HIS ADDRESS AT 12618
BRICKELLIA STREET SAN-DIEGO
CALIFORNIA-92129
UNITED STATES OF AMERICA
REPRESENTED BY HIS
GENERAL POWER OF ATTORNEY HOLDER
SRI VIJAY MEHTA
S/O SRI VANDRAVANDAS MEHTA
AGED 60 YEARS,
R/AT 1003
HRISHIKESH APARTMENTS 874
VEER SAVARKAR MARG
PRABHADEVI MUMBAI-400 028
... PETITIONER
(BY SRI: MANMOHAN P N, ADVOCATE)
AND
2
MRS. NIDHI SHAH
W/O MIRAJ MEHTA
AGE 34 YEARS
PERMANENT RESIDENT OF USA
PERMANENT RESIDING AT 12618
BRICKELLIA STREET SAN DIEGO CA
92129 UNITED STATES OF AMERICA
AND
TEMPORARY RESIDING AT FLAT NO.505
"GUL BAHAR APARTMENT"
NO.10, HAREKRISHNA ROAD,
KUMARA PARK EAST
BENGALURU-560 001 ... RESPONDENT
(BY SRI: D PRABHAKAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ENTIRE PROCEEDINGS IN CRL.MISC.NO.178/2014
PENDING BEFORE THE LEARNED ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, TRAFFIC COURT-VI AT BENGALURU FILED BY THE
RESPONDENT UNDER THE PROVISIONS OF SECTIONS 12 R/W
SECTIONS 18,19,20 AND 22 OF THE PROTECTION OF WOMEN FROM
DOMESTIC VIOLENCE ACT, 2005 IN SO FAR AS THE PETITIONER IS
CONCERNED AND PASS SUCH OTHER ORDERS.
IN CRIMINAL PETITION NO.5551 OF 2017
BETWEEN:
1. MR VIJAY MEHTA
S/O VANDRAVANDAS MEHTA
AGED 60 YEARS,
INDIAN INHABITANT,
R/AT 1003,
HRISHIKESH APARTMENT,
874, VEER SAVARKAR MARG,
PRABHADEVI, MUMBAI 400028
3
2. MRS. HEENA VIJAY MEHTA
W/O. MR VIJAY MEHTA,
INDIAN INHABIATANT,
AGED 54 YEARS,
R/AT 1003, HRISHIKESH APARTMENT,
874, VEER SAVARKAR MARG,
PRABHADEVI, MUMBAI 400028
... PETITIONERS
(BY SRI: MANMOHAN P N, ADVOCATE)
AND
MRS NIDHI SHAH
W/O. MIRAJ MEHTA,
AGE 34 YEARS,
PERMANENT R/O. USA,
PERMANENT R/AT 12618,
BRICKELLIA STREET,
SAN DIEGO CA 92129
AND
TEMPORARY R/AT FLAT NO. 505,
GUL BAHAR APARATMENT,
NO. 10, HAREKRISHNA ROAD,
KUMARA PARK EAST,
BENGALURU 560001 ... RESPONDENT
(BY SRI: D PRABHAKAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING
TO QUASH THE ENTIRE PROCEEDINGS IN CRL.MISC.NO.178/2014
PENDING BEFORE THE M.M.T.C.-VI, BANGALORE FILED BY THE
RESPONDENT UNDER THE PROVISIONS OF SEC. 12 R/W SEC.
18,19,20 AND 22 OF PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCES ACT, 2005 IN SO FAR AS THE PETITIONERS ARE
CONCERNED.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
4
ORDER
Whether the provisions of section 188 of Cr.P.C., are applicable to a proceeding under section 12 of the Protection of Women from Domestic Violence Act, 2005?
is the moot question that falls for consideration in these petitions.
2. The contextual facts leading to the above question are as follows:-
Respondent herein presented a petition in Crl.Misc.No.178/2014 under section 12 read with sections 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act") before learned MMTC-VI, Bangalore. According to the respondent, her engagement ceremony was held at Mumbai on 21.06.2009 and her marriage with accused No.1 (petitioner in Crl.P.No. 7987/2017) was solemnized on 29.11.2009 at Palace Grounds, Bangalore and the same was registered with the Registrar of Marriages, Bangalore on 10.12.2009. At the time of marriage, 5 respondent was employed as Interim Assistant Controller at Akamai Technologies, Boston. Her husband was an Engineer employed at San-Diego, California. After marriage, the couple stayed at Mumbai along with the parents of accused No.1 for few days before returning to the US. The respondent who lived in Boston for nine years, moved to San-Diego, where the couple established their matrimonial home. In the petition, respondent narrated the various instances of cruelty and harassment meted out to her in the matrimonial home at San-Diego. Further, it is stated that as her health and well being suffered further, upon her parents' insistence, she returned to Bangalore on 08.11.2013 and having regard to her fragile mental state, her parents took her to a Psychiatrist. She was diagnosed with depression, anxiety and panic disorder and was suggested medication. Upon follow-up, the Doctor opined that she should remain with the family for a period of two months. During this time, accused No.1 wrote letter threatening to initiate proceedings for divorce in the US and in the said circumstances, she was constrained to present the petition for divorce for the 6 very same reason. Thus, she prayed for appropriate orders under sections 18, 19, 20 and 22 of the Act.
3. Accused No.1 (petitioner in Crl.P.No.7987/2017) and accused Nos.2 and 3 (petitioners in Crl.P.No.5551/2017) the in- laws of respondent have sought to quash the aforesaid proceedings on the following grounds:
(i) Respondent is a permanent resident of USA and as such, in view of section 188 of Cr.P.C., learned Magistrate has no jurisdiction to conduct enquiry into the alleged offences and to issue notice to the petitioners.
(ii) The application does not make out the ingredients of sections 18, 19, 20, 21 and 22 of the Act insofar as petitioners are concerned.
(iii) Respondent is a permanent resident of USA and works for gain in USA. She got married in USA and has her permanent residence and permanent residence permit in the USA and as such, respondent cannot invoke the provisions of the Act.7
(iv) She is not an "aggrieved person" as defined under section 2(a) of the Act.
(v) Accused No.1 and respondent are subject to US laws and the domestic relationship between them is only in USA and hence, the Courts at Bangalore have no jurisdiction to pass orders against the petitioners.
4. Heard Sri.Manmohan P.N., learned counsel for petitioners in both the petitions and Sri.D.Prabhakar, learned counsel for respondent.
5. Learned counsel for respondent has filed a synopsis along with citations referred therein. Learned counsel for petitioners has referred to the decisions of this court and decisions of the Hon'ble Apex Court in support of his submission that the application filed by the respondent under section 12 of the Act is not maintainable without prior sanction under section 188 Cr.P.C.
6. In the light of the contentions urged by the parties, the questions that arise for consideration are: 8
(1) Whether the application filed by the respondent under section 12 of the Protection of Women from Domestic Violence Act, 2005 is maintainable without prior sanction of the Central Government as contemplated in section 188 of Cr.P.C.?
(2) Whether the respondent is entitled for the reliefs prayed for in the application?
7. The facts averred in the application go to show that accused No.1 and the respondent were residing in San-Diego ever since the date of marriage. The alleged instances of cruelty and harassment are alleged to have taken place in their matrimonial home at San-Diego. However, there are averments that immediately preceding the filing of the application under section 12 of the Act, respondent was residing in Bangalore and that she is aggrieved by the treatment meted out to her by petitioners herein. These assertions prima facie makes that the respondent an "aggrieved person" within the meaning of the provisions of Act.
9
8. The term "Aggrieved person" is defined under section 2(a) of the Act as "any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent." Since there are clear averments in the application that the respondent was in domestic relationship with accused No.1, and she has been subjected to acts of domestic violence by accused No.1, I hold that she is entitled to invoke the jurisdiction of the learned Magistrate under section 12 of the Act.
9. Though it is vehemently argued by the learned counsel for accused No.1 that at the time of marriage and subsequently, accused No.1 and the respondent have been residing together in San-Diego and their matrimonial home was beyond the limits of Bangalore Courts, yet the expression "domestic relationship" as defined under section 2(f) of the Act does not disentitle her from invoking the jurisdiction of learned Magistrate. The term "domestic relationship" is defined under section 2(f) of the Act as "a relationship between two persons who live or have, at any point of time, lived together in a shared 10 household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family". There is nothing in the said definition or in the definition of the term "shared household" as defined under section 2(s) of the Act to mean that "shared household" or "domestic relationship" should have been within the limits of the courts wherein the application is filed seeking reliefs under section 12 of the Act. The jurisdiction of the Courts to entertain the application under the provisions of the Act is circumscribed by section 27 of the Act which specifically provides that the court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which a person aggrieved permanently or temporarily resides or carries on business or is employed; or the respondent resides or carries on business or is employed; or the cause of action has arisen shall be competent to grant an appropriate relief under sections 18 to 21 of the Act.
10. As there are clear averments in the petition that at the time of filing the application, respondent was residing within 11 the jurisdiction of the learned Magistrate and there being clear averments that she is an "aggrieved person" and was in domestic relation with accused No.1, the contention of the learned counsel for the petitioner that the respondent and petitioner/husband being the US citizens and permanent residents of USA are not entitled to seek relief under the provisions of the Act cannot be accepted. The said contention is accordingly rejected.
11. This takes us to the next question, as to whether in the facts and circumstances of the case, learned Magistrate was entitled to assume jurisdiction without prior sanction of the Central Government as contemplated under section 188 of Cr.P.C.?
12(i) Referring to section 28 of the Act, learned counsel for petitioner has built up an argument that by virtue of this provision, the Code of Criminal Procedure, 1973 is made applicable to all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 of the Act by the statutes and since the alleged offences were committed outside India without complying with 12 the precondition stipulated in section 188 Cr.P.C., the learned Magistrate could not have inquired into the said offence except with the previous sanction of the Central Government. To buttress this argument, the learned counsel has placed reliance on the decision of this court in the case of KRISHNA MURTHY NOOKULA vs. Y.SAVITHA, 2009 SCC Online Kar 769, wherein it is held that:
"All actions in a proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and also under Section 31, the procedure for enquiry as prescribed by the Cr.P.C. 1973 shall be followed."
(ii) Further, in a later decision, in VINCENT SHANTHAKUMAR vs. CHRISTINA GEETHA RANI & Ors., (2015) 1 AIR Kant R 834, this court has observed, This particular provision empowers the court to invoke the procedures under Cr.P.C. for the purpose of implementing or enforcing the orders passed under Sections 12, 18, 19, 20, 21, 22, 23 and 31 of the Act. The second provision to sub-clause (2) of 20 also empowers the court irrespective of the procedures contained in Cr.P.C. the court itself 13 can lay down its own procedure for disposal of the application u/s.12 or sec.2 of section 23. The intention of the legislature must be that, in order to protect the rights of the aggrieved women and to provide a speedy and real justice, the Magistrates are also to be given power to adopt their own procedure where no other procedure is contemplated in this act in spite of certain procedures are provided under Cr.P.C. but without violating the principles of natural justice. Therefore, it goes without saying that in order to implement the order passed u/s.23, the court can have recourse to the Cr.P.C. virtually for the purpose of executing its order. It is in that manner it is to be understood. Sec.125 of the Cr.P.C. can be invoked by the learned Magistrate for the purpose of enforcing the orders passed u/s.23 of this particular Act, that means to say that the provisions contained u/s.125(3) of Cr.P.C. are made applicable as far as possible only for enforcing the orders u/s.23. Section 125(3) in fact reads as follows:
"If any person so ordered fails without sufficient cause to comply with the order, any 14 such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of Proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:"
(iii) Learned counsel has also referred to the decision of the Hon'ble Supreme Court in INDERJIT SINGH GREWAL vs. STATE OF PUNJAB & Another, (2011) 12 SCC 588 with emphasis to the following portion of the judgment which reads:
32. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 CrPC, that the complaint could be filed only within a 15 period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of CrPC applicable and stand fortified by the judgments of this Court in Japani Sahoo v.
Chandra Sekhar Mohanty and NOIDA Entrepreneurs Assn. v. NOIDA.
(iv) On the question of obtaining a prior sanction under section 188 Cr.P.C., learned counsel has referred to the decision of the Hon'ble Supreme Court in THOTA VENKATESWARLU vs. STATE OF ANDHRA PRADESH through Principal Secretary and Another, (2011) 9 SCC 527 and has emphasized that,
14. The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal's case (supra), it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial 16 begins. Even in his concurring judgment, R.M. Sahai, J., observed as follows :-
"29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one -- commission of an offence; second -- by an Indian citizen; and third -- that it should have been committed outside the country."
In the said decision, it is further held in para 16 as under:-
16. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.
13. I have gone through the above decisions. There can be no dispute with regard to the proposition of law laid down in the above decisions that the procedure for inquiry as prescribed 17 by Cr.P.C. is required to be followed in a proceeding under sections 12, 18 to 23 and 31 of the Act. It is not laid down in any of the above decisions that the provisions of Cr.P.C. in its entirety are required to be followed in a proceeding under sections 12, 18 to 23 and 31 of the Act. Considering the object of the Act and the various provisions thereof, the intention of the Legislature is not to make all the provisions of Cr.P.C. applicable to these proceedings.
14. In this context, it may be pertinent to refer to Section 28 of the Act. It states, "all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973." The section does not say that the Code of Criminal Procedure is applicable to the proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31.
15. Sub-section (2) of section 28 even permits the court to lay down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. Chapter 18 IV of the Protection of Women from Domestic Violence Act, 2005 wherein section 12 is engrafted provides procedure for obtaining the orders of reliefs under sections 18, 19, 20, 21 and 22 of the Act. The above provisions by themselves provide for an elaborate procedure to grant the relief sought for by the petitioner. A reading of the said provisions makes it clear that when an application is filed before the Magistrate, the Magistrate is not required to take cognizance of the matter unlike in a complaint or a report submitted before the Magistrate in respect of a criminal offence. As a matter of fact, the reliefs claimed under sections 18, 19, 20 are in the nature of civil reliefs.
16. Section 31 prescribes that a breach of protection order or an interim protection order by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description which may extend to one year or with fine. These provisions make it clear that the intendment of the Legislature was not to treat the applications filed under section 12 of the Act as a complaint under section 2(d) of Cr.P.C.
nor does it require the learned Magistrate to enquire and try the 19 application in accordance with the procedure prescribed under the Code of Criminal Procedure. It is obviously for this reason, the Legislature in its wisdom has not made the provisions of the Code of Criminal Procedure applicable to the proceedings under section 12 of the Act en masse rather an independent procedure is prescribed under the Act with regard to the procedure to be followed in obtaining the orders of reliefs under sections 18 to 21 of the Act. The provisions of the Act do not prescribe any limits on the jurisdiction of the learned Magistrate while granting the relief under section 12 of the Act nor does the Act prescribes any pre-conditions for exercise of jurisdiction by the learned Magistrate in dealing with the application under section 12 of the Act. That being the intendment of the Legislature, the condition prescribed under section 188 of Cr.P.C., in my opinion, if applied to the proceedings under section 12 of the Act, it would run counter to the provisions of section 12 of the Act and would defeat the very purpose of the Act. The Act is designed to grant speedy and real justice to the aggrieved person. The nature of the reliefs granted under Part 4 of the Act are in the nature of distress reliefs and the purpose of the relief would be frustrated 20 if the aggrieved is driven to secure the sanction of the Government before approaching the court. Except in cases where the learned Magistrate has no jurisdiction to consider the applications, no limitation could be imposed on the powers of the learned Magistrate in granting the said reliefs. If the averments made in the complaint prima facie disclose that the applicant is an "aggrieved person" and is in "domestic relationship" with the respondent, the relief under the provisions of the Act could be granted by the Magistrate.
17. Even otherwise, reading of section 188 Cr.P.C., gives an indication that the requirement of prior sanction of the Government under section 188 Cr.P.C. would arise only when an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India. In the instant case, petitioner/husband is not sought to be prosecuted for any "offence" committed outside India or on any ship or aircraft registered in India rather the relief claimed in the petition is for protection order and incidental reliefs. 21 Proceedings under the Act cannot be construed as prosecution for criminal offence. As long as the averments made in the petition make out that petitioner is entitled for the reliefs on account of her domestic relationship with the respondent, the application cannot be defeated on the ground of prior sanction of the Government under section 188 of Cr.P.C. Therefore, the contention urged by learned counsel for petitioner that the proceedings initiated against the petitioners are hit by section 188 Cr.P.C. and the learned Magistrate had no jurisdiction to enquire into the application without prior sanction of the Central Government is liable to be rejected and is accordingly, rejected.
18. Though learned counsel for the petitioners has strenuously contended that the averments made in the complaint do not prima facie entitle the respondent for the relief under sections 18 to 21 of the Act against the petitioner is concerned, on going through the application and the averments made therein, I find that petitioner in Crl.P.No.7987/2017 namely the husband was in domestic relationship with respondent within the meaning of provisions of the Protection of 22 Women from Domestic Violence Act and the allegations made in the complaint prima facie make out the ingredients of sections 18 to 21 of the Act.
19. The term "domestic relationship" is defined under section 2(f) of the Act meaning as "a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family". No doubt, the averments made in the petition go to show that the shared household of petitioner and respondent was in USA, but the Act does not make distinction as to the place of shared household. For the purpose of this Act, it suffices if parties were in domestic relationship at any point of time or lived together in a shared household wherever it may be, as per the provisions of the Act, at the time of presentation of petition, the "aggrieved person" should either be permanently or temporarily residing or carrying on business or the cause of action has arisen within the limits of jurisdiction of the Judicial 23 Magistrate of First Class or Metropolitan Magistrate. As there are clear averments that at the time of presentation of the application, the respondent was residing within the jurisdiction of the learned Magistrate and that she was in a domestic relationship with the petitioner and lived with him in a shared household, in my view, the petition before the Trial Court is well maintainable. Therefore, the contention of the learned counsel for petitioners that the averments made in the complaint do not prima facie disclose the ingredients of sections 18 to 21 of the Act and that respondent is not entitled to the relief claimed in the complaint is liable to be rejected insofar as accused No.1 is concerned. Accordingly, Crl.P.No.7987/2017 filed by the accused No.1 being devoid of any merits is liable to be dismissed.
20. However, insofar as petitioners in Crl.P.No.5551/ 2017 namely accused Nos.2 and 3 are concerned, the material on record clearly indicate that they were not in domestic relationship with the respondent and did not reside in a shared household with the respondent, as such, the implication of 24 accused Nos.2 and 3 being contrary to the provisions of sections 18 to 21 of the Act, cannot be sustained. For the said reasons, the respondent is not entitled to seek any relief against accused Nos.2 and 3. Hence, the proceedings initiated against accused Nos.2 and 3 being opposed to the provisions of the Act are liable to be quashed. To this extent, Crl.P.No.5551/2017 filed by accused Nos.2 and 3 deserves to be allowed.
Accordingly, Criminal Petition No.7987/2017 filed by accused No.1 is dismissed.
Criminal Petition No.5551/2017 filed by accused Nos.2 and 3 is allowed. The proceedings initiated against accused Nos.2 and 3 in Crl.Misc.No.178/2014 on the file of learned Metropolitan Magistrate, Traffic Court-VI, Bangalore, under section 12 read with sections 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 are hereby quashed.
Sd/-
JUDGE Bss