Telangana High Court
Mohd. Yousuf vs The State Of Telangana on 30 September, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.2864 OF 2024
Between:
Mohd. Yousuf
... Petitioner
And
The State of Telangana & 2 others
... Respondents
JUDGMENT PRONOUNCED ON: 30.09.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
___________________________
MRS JUSTICE SUREPALLI NANDA
2 SN,J
wp_2864_2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.2864 OF 2024
% 30.09.2024
Between:
# Mohd. Yousuf
... Petitioner
And
$ The State of Telangana & 2 others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri B. Shyam Sundar Rao
^ Counsel for Respondents : G.P. for Women and Child
Welfare for R1 and R2
Smt. J.Seetha, for R3
? Cases Referred:
(1) 1972 (3) SCC 424
(2) Crl.O.P.SR.Nos.31852, 28394 of 2022 and batch
(in total 32 cases)
3 SN,J
wp_2864_2024
THE HON'BLE MRS. JUSTICE SUREPALLI NANDA
W.P. No.2864 OF 2024
ORDER:
Heard Sri B.Shyam Sundar Rao, learned counsel appearing on behalf of the petitioner, learned Government Pleader for Women and Child Welfare appearing on behalf of respondent Nos.1 and 2 and Smt. J.Seetha, learned counsel for respondent No.3.
2. The petitioner approached the court seeking prayer as under:
"...to issue a Writ, order or direction more in the nature of Writ of Certiorari quashing the proceedings in the DVC No.131/2022 on the file of Spl. Judicial 1st Class Magistrate (Excise)-cum-Vth Addl MM Court, R.R. District at L.B.Nagar declaring the same to be without jurisdiction and illegal and the proceedings of the 2nd respondent forwarding the complaint of the 3rd respondent without any application of mind as being illegal and mechanical and declare the same to be illegal and pass such other order..."
3. The case of the petitioner as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present writ petition in brief, is as under:
4 SN,J wp_2864_2024
(i) It is the case of the petitioner that, the 3rd respondent herein was married to the petitioner in the year 1995 where by the 3rd respondent had converted her religion into Muslim and the marriage was performed as per the rituals of Muslim religion. However, both the petitioner and the 3rd respondent had been living apart since 2016. Moreover, the 3rd respondent had been causing mental agony and harassing the petitioner herein by filing various cases against the petitioner.
(ii) While things stood thus, the 3rd respondent had submitted a complaint dated 01.11.2022 against the petitioner alleging that the petitioner had been inflicting domestic violence on the 3rd respondent. The said complaint was filed before the 2nd respondent and the 2nd respondent had registered a Domestic Incident report and forwarded the same to the Spl. Judicial 1st Class Magistrate (Excise)-cum- Vth Addl. MM Court R.R District vide DVC No. 131/2022. However, the said domestic violence case is illegal.
(iii) It is the specific case of the petitioner that, since the petitioner and 3rd respondent had been living apart since 2016, the question of domestic violence does not arise. Therefore, the said domestic violence case is illegal and same must be quashed.
5 SN,J wp_2864_2024 Therefore, aggrieved by the said DVC No. 131/2022, the present Writ Petition is filed.
4. PERUSED THE RECORD.
5. The interim order dated 12.02.2024 passed in W.P.No.2864 of 2024, in favour of the petitioner which is in force as on date are extracted hereunder:
"Notice before admission.
Learned counsel for the petitioner is permitted to take out personal notice on the respondent No.3 through Registered Post with Acknowledgment Due and file proof of service in the Registry by the next date of hearing.
List on 14.03.2024.
There shall be interim stay as prayed for."
6. The counter affidavit filed on behalf of the 3rd respondent, in particular, paragraph Nos.4 and 10 are extracted hereunder:
"4. In reply to Para Nos.4 to 8, under reply, I submit that the petitioner is making false and baseless allegations against me in the said paras. In fact, the petitioner started disturbing my professional life by interfering with the functioning of the 6 SN,J wp_2864_2024 schools and other institutions. The petitioner started sending legal notices to me by different ways with all false and baseless allegations by alleging that I am misusing the society funds and I am misguiding the charted accountant, etc., the entire allegations made against me are false, but with a malafide intention to harass me mentally making such allegations against me and giving false notices through advocates by disturbing my day to day life. I came to know that petitioner is womanizer, he is having several contacts with other ladies, by knowing the same I kept him away, but he started harassing me by sending messages, letters by making false allegations against me.
I sacrificed my entire life for the welfare of the petitioner and his children only. I with my hard earned money got purchased several properties to him. He did not tolerate when I talked and moved with my relatives, he did not allow me to perform pooja being Hindu, he forced to do Namaz and other customary obligations in his muslim community. Originally I belong to "Reddy" community, he used to raise my caste name and insult me by saying that I am having pride of my caste and warned me several times that I have to be in his control only, otherwise he will see my end and the MD. Yousuf also threatened to file criminal cases against me before the Court of law and will send me to jail. I vexed with the adamant attitude of my husband I have no interest to continue the marital relationship with him due to harassment and mental torture in his hands. Hence I filed the petition 7 SN,J wp_2864_2024 seeking divorce against my husband i.e., MD. Yousuf petitioner herein, which is pending. While pending the said divorce FCOP No. 244 of 2022 and even he didn't stop his harassment towards me, he used to send threatening messages and used to send notices to me with all false and baseless allegations and started damaging my reputation in the society by filing one or other cases against me and made my life miserable without giving divorce to me. There is no protect to my life from my husband. The acts of petitioner is highly illegal which are grave in nature that caused me not only physical but also mental agony. The petitioner herein is trying to mislead this Hon'ble court by suppressing the real facts.
10. I submit that the petitioner doing various business and running the Noble School of Nursing at Kamalanagar and getting handsome amount. The petitioner is well settled having movable and immovable assets. The petitioner is also not having any dependents on him. The petitioner used to spend the amount lavishly. The petitioner deserted me in the month of November, 2018 without any reasonable cause and has been neglecting to provide any maintenance to me. Hence, the Writ Petition is not maintainable and on this Ground alone, the present Writ Petition is liable to be dismissed. The Petitioner is only seeking to grind his personal ego and show himself as busybody, and gain mileage out of it, for personal and oblique purpose. Thus there are no merits nor any bonafides in the writ petition, and the interim order is 8 SN,J wp_2864_2024 causing grave hardship and inconvenience to subject temple and the respondents."
DISCUSSION AND CONCLUSION:
7. It is the specific case of the petitioner that on perusal of the contents of the complaint dated 01.11.2022 of the 3rd respondent lodged against the petitioner addressed to the 2nd respondent, which had been the basis for the 2nd respondent to submit Domestic Incident Report to the V Metropolitan Magistrate, L.B.Nagar, it would be evident that no definite incidents of harassment with details of date and time have been made out in the complaint dated 01.11.2022 filed by the 3rd respondent against the petitioner before the 2nd respondent, nor the complaint indicates details of actual abuse, or threat or abuse that is physical, sexual, verbal, emotional meted out to 3rd respondent by the petitioner and further that the said complaint dated 01.11.2022 clearly indicates that the same is based on vague allegations levelled against the petitioner, by the 3rd respondent. It is further the specific case of the petitioner that it is borne on record that the 3rd respondent filed F.C.O.P.No.244 of 2021 on the file of Judge, Family Court, R.R.District at L.B.Nagar for dissolution of marriage on 06.01.2022 and has filed the present 9 SN,J wp_2864_2024 complaint before the 2nd respondent on 01.11.2022 on vague allegations, very clearly stating at para '10' of the counter affidavit filed by the 3rd respondent that the petitioner deserted the 3rd respondent in November, 2018, hence the present DVC proceedings initiated against the petitioner by the 3rd respondent need to be quashed.
8. Few Relevant provisions under the DVC Act-2005 are extracted hereunder:
Section 2 (a) "aggrieved person" means 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;
Section 3: The act, whether committed or omitted, constitutes domestic violence when- it harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse or coerces the aggrieved party or any other person related to them to meet any unlawful demand for any dowry or other property or valuable security.
10 SN,J wp_2864_2024 Section 9. Duties and functions of Protection Officers.--(1) It shall be the duty of the Protection Officer--
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having 11 SN,J wp_2864_2024 lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed. (2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
9. A bare perusal of the above referred provisions indicates that the 3rd respondent who falls under the definition Section 2 (a), admittedly being the wife of the petitioner herein had addressed a complaint dated 01.11.2022 to the 2nd respondent alleging domestic violence being meted out to the 3rd respondent by the 12 SN,J wp_2864_2024 petitioner as defined under Section 3 of the DVC Act, 2005 and the 2nd respondent forwarded the same to the concerned Metropolitan Magistrate discharging 2nd respondent's duty as mandated under Section 9 (1) (a) and (b) of the DVC Act, 2005.
10. This Court duly considering the above referred provisions of the Act opines that there is no illegality in the 2nd respondent forwarding the complaint of the 3rd respondent dated 01.11.2022 to the concerned Magistrate discharging the 2nd respondent's duty as per Section 9 of the Domestic Violence Act, 2005.
11. This Court opines that the present writ petition filed by the petitioner under Article 226 of the Constitution of India is not maintainable since the petitioner herein failed to convince this Court that the subject DVC proceedings initiated by the 3rd respondent against the petitioner before the concerned Magistrate suffer from a patent lack of jurisdiction.
12. The Apex Court Judgment reported in 1972 (3) SCC 424 in "D.N. Bhattacharjee v. State of W.B., in particular, at para 55, observed as under:
13 SN,J wp_2864_2024 "55. For the reasons stated above let me summarize the findings herein below:-
(i) Respondent(s) can challenge maintainability of an application under Section 12 of the said Act filed by the aggrieved person before the Court of the learned Magistrate immediately after appearance in the proceeding by filing appropriate petition.
(ii) The Learned Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 of the said Act after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the said Act against the order passed by the learned Magistrate under the provision of Section 29 of the said Act before the learned sessions judge.
(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 of the Code shall lie.
(iv) Alternatively, a respondent may file an application under Section 482 of the Code of Criminal Procedure challenging maintainability of a proceeding under Section 482 of the Code for quashing of the proceedings immediately on receipt of notice before the High Court.
14 SN,J wp_2864_2024
(v) An order upon an application challenging maintainability under Section 12 of the said Act shall not be assailed under Article 227 of the constitution."
13. The Full Bench of Madras High Court in its recent Judgment dated 17.11.2022 in Crl.O.P.SR.Nos.31852, 28394 of 2022 and batch (in total 32 cases) held that a petition under Section 12 of the Domestic Violence Act can be challenged under Article 226 of the Constitution of India praying the Court to exercise the power of Superintendence under Article 227 of the Constitution of India only on a limited ground of patent lack of jurisdiction and not otherwise.
Paras 40 and 41 of the said Judgment is extracted hereunder:
"40. The next question is whether the proceedings under Chapter IV of the D.V. Act can be assailed by way of a petition under Article 227 of the Constitution, Indubitably, the power of judicial review under the said provision is a part of the basic structure of the Constitution. After the decision of the Constitution Bench in L.Chandra Kumar v Union of India, it is no longer open to doubt that the power of judicial review 15 SN,J wp_2864_2024 under Articles 226/227 cannot be taken away even by a constitutional amendment, let alone by a statute. Nevertheless, the existence of power is one thing and the exercise of power is quite another. Though the power of superintendence under Article 227 over the proceedings of the Magistrate under the D.V. Act exists, its exercise would, no doubt, be conditioned on certain very salutary principles one of which is that a High Court will not exercise its power of superintendence if there exists an efficacious alternative remedy.
41. As has been adverted to, supra, the legislature has very thoughtfully provided an appellate remedy, under Section 31 of the D.V. Act, before the Court of Session against an order of the Magistrate. The existence of an appellate remedy would almost always be a "near total bar"
for exercising power under Article 227, as has been pointed out by the Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society. An exception to the aforesaid rule is where the proceedings before the Court below are patently lacking in jurisdiction. An illustrative instance of such a case is where a Magistrate, who does not possess jurisdiction under Section 27, entertains an application under the D.V. Act or where the reliefs sought are outside the scope of the Act, etc. Such instances would, no doubt, be few and far between. We only reiterate that the policy of the D.V. Act is expedition, which cannot be achieved if all and sundry orders 16 SN,J wp_2864_2024 are called into question before the High Court. This aspect must necessarily weigh with the learned single judges while exercising jurisdiction under Article 227 in a challenge to proceedings under the D.V.Act."
14. The Apex Court in DN Bhattacharjee Vs. State of West Bengal reported in 1972 (3) SCC Page 424 held that in view of the legal provisions and statutory right of revision, appeal etc. contained in the said Act as well as the code, invocation of Article 227 of the Constitution is illusory because of the existence of specific alternative remedy provided by the said Act and Code.
15. This Court opines that the petitioner herein can challenge the maintainability of an application under Section 12 of the said Act filed by the petitioner/aggrieved person before the Court of the learned Magistrate immediately after appearance in the proceedings by filing appropriate petition.
"The Learned Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 of the said Act after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the said Act against the order passed by the learned Magistrate under the provision of 17 SN,J wp_2864_2024 Section 29 of the said Act before the learned sessions judge. Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 of the Code shall lie. Alternatively, a respondent may file an application under Section 482 of the Code of Criminal Procedure challenging maintainability of a proceeding under Section 482 of the Code for quashing of the proceedings immediately on receipt of notice before the High Court."
16. Taking into consideration:
(a) The aforesaid facts and circumstances of the case,
(b) The relevant provisions of the DVC Act, 2005 referred to and extracted above,
(c) The view of the Apex Court in the Judgment reported in 1972 (3) SCC 424 in "D.N. Bhattacharjee v.
State of W.B. (referred to and extracted above),
(d) The view of the Full Bench of Madras High Court in its recent Judgment dated 17.11.2022 in Crl.O.P.SR.Nos.31852, 28394 of 2022 and batch (in total 32 cases) (referred to and extracted above), 18 SN,J wp_2864_2024 And in the light of the discussion and conclusion arrived at paras 9 to 15 of the present Judgment, The Writ Petition stands dismissed and the interim orders dated 12.02.2024 passed in W.P.No.2864 of 2024 stand vacated. However, there shall be no order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
___________________________ MRS JUSTICE SUREPALLI NANDA Date: 30.09.2024 Note : L.R. Copy to be marked.
B/o.Yvkr