Bangalore District Court
Is Not Aware Of The Jewelery And Other ... vs Accompanied By Her Siblings Visited ... on 20 August, 2020
Government of TITLE SHEET FOR JUDGEMENTS IN SUITS
Karnataka
Form No.9
[Civil] Title Sheet
for Judgement
IN THE COURT OF V ADDL.CITY CIVIL COURT AT
in Suits BENGALURU
Present : Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 20th day of August, 2020.
O.S.2650 / 2018
BETWEEN
Mohammed Abid Hussain,
S/o P.N. Nazeer Ahmed,
Aged about 40 years,
R/at House No.87-1060B,
Ganesh Nagar,
Near Ramachandra Mission,
Kallur Mandalam,
Kurnool-518002.
Andra Pradesh. Plaintiff
( By Sri.R.N, Adv. )
AND
Misbah Fathima,
D/o Shaik Abdul Azeem,
Aged about 31 years,
R/at Plot No.80,
Shaiks Mansion,
6th Cross, Balaji Layout Park,
Near Flag Post, Hegde Nagar,
B. Ramaiah's Main Road,
Bengaluru.
And also at:-
No.23/1, 2nd Cross, 3rd stage,
P&T Layout, Pillanna Garden,
K.G. Halli, Bengaluru.
And also at:-
No.8/4, 1st Floor,
Above Suraina Medicals,
Besides Punjab National Bank,
Wheelers Road, Bengaluru.
(D. Ex-parte) Defendant
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O.S. No.2650/2018
Date of institution of the Suit : 07/04/2018
Nature of the Suit : Damages/Compensation
Date of commencement of recording
: 22/01/2020
of evidence
Date on which the Judgment was
: 20/08/2020
pronounced
Year Months Days
Total Duration :
02 04 13
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
-: J U D G M E N T :-
This is a suit filed by the plaintiff seeking direction to the
defendant to pay a sum of Rs.1,00,00,000/- (Rupees One Crore) as
damages and to return the gold ornaments or its equivalent value
along with costs of the suit.
2. Brief facts are as under;
That the defendant was given in marriage to the plaintiff on
01/04/2010 at AKS convention center, Bengaluru. The parties are
governed by Sunni Muslims/Hanafi school amongst whom marriage
is treated as contract. The said Nikah was attended by the friends
and relative of both the parties and maternal grandfather of the
defendant was the vakil for the marriage and nikahnama and
nikahnama was drawn, wherein plaintiff agreed to pay mahar of 30
grams gold. The defendant was then pursuing her masters degree
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O.S. No.2650/2018
in Biochemistry, accordingly mediators felt that plaintiff's educational
background and employment status in Dubai would match and
except the aforesaid fact there was no talk about dowry in the form
of cash and kind either by the plaintiff or his parents, but on the
contrary plaintiff had given 25 thola gold ornaments to the defendant
at the time of marriage. The plaintiff refused to accept the dowry that
was offered to him by the parents of the defendant as witnessed by
the witnesses, later on it came to know that the parents of defendant
had deposited Rs.7,00,000/- as FD in the name of defendant and
plaintiff is not aware of the jewelery and other articles given by the
parents of the defendant. Father of the defendant was employed at
Saudi Arabia and thus he, befitting his status presented a Rado
watch and finger ring to the plaintiff which was a customary gift at
the time of marriage. Further it is averred that, the plaintiff stayed at
Bengaluru in the house of parents of defendant for three days and
thereafter on 04/04/2010 he left to Dubai. In the meanwhile the
defendant accompanied by her siblings visited matrimonial home at
Kurnool and stayed with plaintiff's parents for a day and left back to
Bengaluru. Further the defendant traveled for the first time to Dubai
with plaintiff on 24/04/2010 and stayed at Dubai with all amenities
provided by the employer of the plaintiff. The plaintiff had immense
love and affection towards the defendant, though defendant
responded to the emotions at she was forlorn which left the plaintiff
puzzled, accordingly plaintiff left no opportunity to keep the
defendant happy, thereafter she expressed her desire to travel to
Bengaluru to meet her parents, accordingly she return back at the
cost of plaintiff on 28/05/2010 and thereafter returned to Dubai on
21/06/2010. Then the plaintiff came to know that during her stay
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O.S. No.2650/2018
defendant had withdrawn FD of Rs.7,00,000/- and transferred to the
account of plaintiff's father, thereafter the plaintiff re-transferred
Rs.7,00,000/- in two installments to the account of defendant's
mother. Thereafter the defendant had been to Bengaluru on several
time and return back to Dubai. During the said period she was
found pregnant, though the defendant was entitled for the treatment
under the policy of employer, yet she desired to go to Bengaluru,
again she return back and on several times underwent regular check
up and delivered the baby at Bengaluru on 16/07/2011 at Manjunath
Maternity Home, Bengaluru. Thereafter the plaintiff came to
Bengaluru and gave a 100 gram gold biscuit for defendant and son
in front of her relatives, a 20 gram gold coin was also given to the
mother of defendant for her services in helping the defendant during
child birth. Again the plaintiff also gifted a 100 gram gold biscuit to
defendant at the time of naming ceremony, after getting passport of
the child again they left to Dubai on 04/11/2011, where the plaintiff
and defendant spent memorable time which were all captured in
photos. Again the defendant return back to Bengaluru along with the
child. So due to frequent travel of the defendant the plaintiff pleaded
that he could not meet the said expenses of the travel and cost of
gifts, but her parents insisted that either the plaintiff keep her happy
or give divorce. Thereafter the defendant had packed all her
belongings and valuables and left Dubai. Further the plaintiff made
efforts to settle the issue amicably during January 2013. In the
meanwhile he received a call from a person named Mohammed
Qurashi who threatened the plaintiff to divorce the defendant and
give her money else the plaintiff would be harmed. The plaintiff
came to know from the relatives of the defendant that she was in a
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O.S. No.2650/2018
relationship with the said person even as a school going girl and had
aborted once and thereafter she continued said relationship and
when the plaintiff called him back the said person accepted the illicit
relationship with the defendant even before and after marriage, then
only the plaintiff realized the whole game plan of forcing him to send
the defendant to Bengaluru when ever she desired and allow her to
be in the company of said person. The plaintiff after scanning
through her telephone call records found that such calls were
innumerable and estimated to be 10000 calls and 16000 SMS were
exchanged. The said Mohammed had also visited the house of
plaintiff at Dubai when he was out for work, so when the plaintiff
unearthed the immoral life led by the defendant, the defendant and
her parents without any loss of time filed C.Misc.No.371/2012 before
the Magistrate Court, Mayo Hall, Bengaluru under the provisions of
Domestic Violence Act with the following allegations that were
untrue, false and defamatory.
a. The the parents of the defendant gave gold jewelry
household articles, furniture worth more than 15 lakhs as
demanded by plaintiff.
b. That the parents of the plaintiff harassed the defendant
mentally and physically when she was at matrimonial
home for 15 days.
c. That parents of the defendant paid a sum of Rs.7 lakhs
to the plaintiff as the dowry as demanded by the plaintiff
and his parents.
d. That in Dubai the plaintiff use to harass the defendant
physically, mentally and sexually and that he behaved
violently and abused the defendant and her family
members.
e. That he doubted the fidelity of the defendant and that
he forced her to under go DNA test.
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O.S. No.2650/2018
f. That the plaintiff use to watch porn movie and wanted to
the defendant to act accordingly and to have sex in an
unnatural way, and when refused the plaintiff use to beat,
hit and slap the defendant and that she sustained injuries.
g. That even when the defendant was not well, the
plaintiff use to forcibly have sex and that he had sex
always in his mind.
h. That the plaintiff use to check the phone of the
defendant and that he never allowed her to watch
television or use the computer or laptop and he never
allowed the defendant to speak to her relatives and
restrained her from venturing out of the house.
i. That she was not given proper food and was given one
week old bread to eat.
j. That the plaintiff demanded defendant to get a property
share from her parents and use to demand dowry.
k. That the plaintiff never treated the defendant with love
and affection.
l. That the plaintiff use to take her to his sister house
where she was forced to wash the clothes, utensils and
do house hold work.
m. That the plaintiff is a sexual maniac and many other
unsubstantiated and bald/vague allegations.
Further it is averred that, the plaintiff came down to Bengaluru and
lodged PCR No.51417/2013 against the defendant and her brothers
along with her paramour for the offence punishable under Section
497 and 498 of IPC along with the provisions of I.T. Act. In turn the
defendant also lodged a complaint with the Frazor Town police on
21/08/2013 for the offence punishable under Section 498(A) of IPC
r/w Section 3 and 4 of D.P. Act containing the following false and
defamatory allegations.
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O.S. No.2650/2018
a. During her stay in Kurnool the defendant was tortured
by her in-laws stating that she was not beautiful and did
not bring much dowry and that the plaintiff would have
got more dowry if had married elsewhere.
b. During her stay in Dubai, the plaintiff tortured her
scolded her for no reason and forced her to have
unnatural sex with him. He watches sex movies and
forced her to perform sex like that.
c. That the plaintiff sent defendant to Bengaluru on
28/05/2010 to transfer the money in the F.D. to the
account of the father of the plaintiff and threatened that
the plaintiff would not call her back to Dubai if she did not
transfer the money.
d. That the plaintiff tortured her kept her locked inside a
room and prevented her from talking on telephone. The
plaintiff never allowed her to have a mobile phone.
Whenever she talked to her parents the plaintiff used to
keep the speaker phone on and listen to the
conversation.
e. That the parents and siblings of the plaintiff demanded
money from the defendant and to get her share in the
property. That when she refuses the plaintiff bet her with
slipper and belts and forced her to commit suicide.
f. That the plaintiff sent the defendant to Bengaluru for
treatment at the cost of her parents on 23/09/2010. That
the plaintiff used to suspect the character and conduct of
the defendant and used to suspect the paternity of the
child. The plaintiff got a DNA test done to confirm the
paternity.
g. That at the naming ceremony the parents of the
plaintiff demanded Rs.5 lakhs as gift and that the parents
of the defendant gave gold coins weighing 20 grams to
the plaintiff.
h. That the plaintiff took the defendant to his sister's
house and beat her in front of his sister and that the
plaintiff's sister and her husband lock the defendant
inside a room and threatened her go back to India and
get her share in the property.
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O.S. No.2650/2018
Further the aforesaid fact was followed by C.Misc
No.109/2013 filed by the defendant before the Family Court,
Bengaluru for maintenance, O.S. No.51/2013 for permanent
injunction and O.S. No.48/2013 for dissolution of marriage. Due to
the said act of the defendant the parents of the plaintiff stopped
venturing out even to the mosque and later he suffered a heart
attack and underwent a surgery. The plaintiff then contested the
aforesaid proceedings. The said paramour spoke to the plaintiff over
the phone stating that he would have sex with defendant when ever
he liked and plaintiff could do nothing, by the said act the defendant
has violated the contract of marriage which demanded her to be
polite/dutiful/chaste and obedient, on the contrary she has lodged
cases one after the other based on false allegations which are perse
defamatory and has sullied the image of the plaintiff amongst his
relatives, friends and colleagues. The aforesaid litigations came to
be ended in favour of plaintiff. As such, the defendant has indulged
in verbal slander against the plaintiff in court proceedings without
any proof thereof and as a result of such defamatory statement his
entire family members are put to great loss of reputation and image
in the society and unable to secure any marriage alliance due to the
aforesaid litigations. Apart from this the defendant is also holding 65
thola of gold ornaments purchased at Dubai. The near and dear
relatives of the defendant are all witness to the said fact. Cause of
action arose to file the suit during November 2012 when C.Misc.
No.371/2012 was filed and continued to be even after dismissal of
the miscellaneous petitions and suits every day. On these grounds
plaintiffs prayed for decreeing the suit with cost.
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O.S. No.2650/2018
3. Records reveal that summons issued by this court
returned with an endorsement as defendant not residing/vacated,
but despite summons issued by substitute service in a daily news
paper dated 15/06/2019 the defendant remained absent on
10/07/2019 and 13/08/2019, accordingly placed as exparte, and
case was posted for plaintiffs' evidence.
4. In order to prove his case, plaintiff examined himself as
PW.1 and got marked the documents at Ex.P1 to 18.
5. Heard the arguments through V.C. and perused the
material on record.
6. Points arise for my consideration are;
1) Whether the plaintiff proves that the defendant
with an intention to harm the reputation and feelings
of himself and family/relatives has made alleged
defamatory statements in criminal and civil
proceedings ?
2) Whether the plaintiff further proves that he gave
65 tholas of gold at the time of marriage and
subsequently to the defendant?
3) Whether the plaintiff is entitled for damages of
Rs.1,00,00,000/- (Rupees One Crore) along with
interest?
4) Whether the plaintiff is entitled for 65 tholas of
gold or its equivalent value from the defendant?
5) Whether suit of the plaintiff in the present form is
maintainable in the eye of law?
6) Whether the plaintiff is entitled for the reliefs as
sought for?
7) What Order or Decree ?
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O.S. No.2650/2018
7. My findings on the above points are as under :
Point No.1 In the negative
Point No.2 In the negative
Point No.3 In the negative
Point No.4 In the negative
Point No.5 In the negative
Point No.6 In the negative
Point No.7 As per final orders for the
following :
-: R E A S O N S :-
8. Point Nos.1 to 5 :- I take these points altogether for
my discussion as the facts overlap and for the sake of convenience.
9. It is worth to note that the plaintiff has filed the above
numbered suit seeking direction to the defendant to pay a sum of
Rs.1,00,00,000/- (Rupees One Crore) as damages and to return
the gold ornaments or its equivalent value along with costs of the
suit. In this regard the plaintiff has filed an affidavit in lieu of oral
evidence and examined himself as PW.1 by reiterating entire
averments of plaint as stated in para 3 supra. As such I feel that
again it is not necessary to reproduce the same. In order to
support his oral testimony PW.1 got marked documents at Ex.P-1 to
P-18.
10. Records reveal that despite substitute service of suit
summons the defendant remained exparte. In such circumstances
this Court has to appreciate the oral evidence of PW.1 along with the
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O.S. No.2650/2018
documentary evidence available on record only. It is settled that
according to section 101 of Evidence Act- burden lies on the
plaintiff to prove his case on basis of material available, as such he
cannot rely on weakness or absence of defense of defendant to
discharge the onus. So, on careful evaluation of the aforesaid oral
and documentary evidence, we can find that so far as in respect of
parties to the suit are governed by Mohammedan Law is concern
there is no dispute. It is also not in dispute that marriage of the
plaintiff with defendant was solemnized on 01/04/2010 at AKS
Convention Center, Bengaluru as per Sunni Muslims governed by
Hanafi school, which can be treated as contract between the parties.
It is an admitted fact that as per the said Nikaha the plaintiff along
with defendant had been to Dubai, where they stayed and during
that period the defendant gave birth to a male child.
11. As could be seen from the perusal of evidence of P.W. 1
along with Ex.P.1 to 18 i.e. certified copies of application in
C.Misc.No.371/2012, 'B' report, order sheet in C.C. No.57253/2017
and in C.Misc.No.109/2013, judgment in O.S. No.51/2013, order
sheet in Cr.No.252/2013, complaint, translated marriage certificate,
FIR in Cr.No.252/2013, application in Crl.Misc.No.109/2013, plaint in
O.S. No.51/2013, judgment in O.S. No.48/2013, decree passed in
O.S. No.48/2013, evidence/cross-examination of P.W. 1 in
Crl.Misc.No.371/2012, order sheet in Crl.No.252/2013 and in C.C.
No.57253/2017, orders passed in Crl.Misc.No.109/2013 and
judgment passed in O.S. No.51/2013 that the defendant wife filed
several criminal and civil proceedings against plaintiff husband for
the alleged offence of cruelty, dowry harassment i.e. physical and
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O.S. No.2650/2018
mental harassment including maintenance and domestic violence
before different courts of law at Bengaluru. It is evident from the
perusal of Ex.P.12 that lastly on 12/02/2014 marriage of the
defendant with the present plaintiff which was performed on
01/04/2010 came to be dissolved and the same has not been
disputed by either side in the aforesaid proceedings.
12. But it is the specific case of the plaintiff that, the
defendant has made false and baseless allegations in all civil and
criminal proceedings and thereby defamed him, accordingly he
sought direction to the defendant to pay damages and to return
golden ornaments or its equivalent value along with interest and cost
of the suit. The relevant statements or allegations said to have been
made by the defendant in all the aforesaid proceedings are as
under:-
a. The parents of the defendant i.e. wife gave gold
jewelry household articles, furniture worth more than
15 lakhs as demanded by plaintiff.
b. That the parents of the plaintiff i.e. husband
harassed the defendant mentally and physically
when she was at matrimonial home for 15 days.
c. That parents of the defendant i.e. wife paid a sum
of Rs.7 lakhs to the plaintiff as the dowry as
demanded by the plaintiff and his parents.
d. That in Dubai the plaintiff i.e. husband use to
harass the defendant physically, mentally and
sexually and that he behaved violently and abused
the defendant and her family members.
e. That he doubted the fidelity of the defendant i.e.
wife and that he forced her to under go DNA test.
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O.S. No.2650/2018
f. That the plaintiff i.e. husband use to watch porn
movie and wanted to the defendant to act
accordingly and to have sex in an unnatural way,
and when refused the plaintiff use to beat, hit and
slap the defendant and that she sustained injuries.
g. That even when the defendant I.e wife was not
well, the plaintiff use to forcibly have sex and that he
had sex always in his mind.
h. That the plaintiff i.e. husband use to check the
phone of the defendant and that he never allowed
her to watch television or use the computer or
laptop and he never allowed the defendant to speak
to her relatives and restrained her from venturing out
of the house.
i. That she was not given proper food and was given
one week old bread to eat.
j. That the plaintiff i.e. husband demanded defendant
to get a property share from her parents and use to
demand dowry.
k. That the plaintiff i.e. husband never treated the
defendant with love and affection.
l. That the plaintiff I.e husband use to take her to his
sister house where she was forced to wash the
clothes, utensils and do house hold work.
m. That the plaintiff i.e. husband is a sexual maniac
and many other unsubstantiated and bald/vague
allegations.
n. During her stay in Kurnool the defendant i.e. wife
was tortured by her in-laws stating that she was not
beautiful and did not bring much dowry and that the
plaintiff would have got more dowry if had married
elsewhere.
o. During her stay in Dubai, the plaintiff i.e. husband
tortured her scolded her for no reason and forced
her to have unnatural sex with him. He watches sex
movies and forced her to perform sex like that.
p. That the plaintiff i.e. husband sent defendant to
Bengaluru on 28/05/2010 to transfer the money in
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O.S. No.2650/2018
the F.D. to the account of the father of the plaintiff
and threatened that the plaintiff would not call her
back to Dubai if she did not transfer the money.
q. That the plaintiff i.e. husband tortured her kept
her locked inside a room and prevented her from
talking on telephone. The plaintiff never allowed her
to have a mobile phone. Whenever she talked to her
parents the plaintiff used to keep the speaker phone
on and listen to the conversation.
r. That the parents and siblings of the plaintiff i.e.
husband demanded money from the defendant and
to get her share in the property. That when she
refuses the plaintiff bet her with slipper and belts and
forced her to commit suicide.
s. That the plaintiff i.e. husband sent the defendant
to Bengaluru for treatment at the cost of her parents
on 23/09/2010. That the plaintiff i.e. husband used
to suspect the character and conduct of the
defendant and used to suspect the paternity of the
child. The plaintiff got a DNA test done to confirm the
paternity.
t. That at the naming ceremony the parents of the
plaintiff i.e. husband demanded Rs.5 lakhs as gift
and that the parents of the defendant gave gold
coins weighing 20 grams to the plaintiff.
u. That the plaintiff i.e. husband took the defendant
to his sister's house and beat her in front of his sister
and that the plaintiff's sister and her husband lock
the defendant inside a room and threatened her go
back to India and get her share in the property.
In this connection Section 73 of the Contract Act reads thus:-
When a contract has been broken, the party who suffers by such
breach is entitled to receive, from the party who has broken the
contract, compensation for any loss or damage caused to him
thereby, which naturally arose in the usual course of things from
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O.S. No.2650/2018
such breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it. Such
compensation is not to be given for any remote and indirect loss or
damage sustained by reason of the breach.
13. A plain reading of Section 499 of IPC reads thus:-
Defamation:- Whoever by
words either spoken or intended to
be read, or by signs or by visible
representations, makes or publishes
any imputation concerning any
person intending to harm, or
knowing or having reason to believe
that such imputation will harm, the
reputation of such person, is said,
except in the cases hereinafter
excepted, to defame that
person".
Explanation 4 reads thus:-
No imputation is said to harm
a person's reputation, unless that
imputation directly or indirectly in
the estimation of others, lowers the
moral or intellectual character of
that person, or lowers the character
of that person in respect of his
caste or his calling, or lowers the
credit of that person, or causes it to
be believed that the body of that
person is in a loathsome state, or in
a state generally considered as
disgraceful.
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O.S. No.2650/2018
In this connection, fifth exception reads thus:-
Merits of case decided in court or
conduct of witnesses and others concerned-
It is not defamation to express in good faith
any opinion whatever respecting the merits of
any case, civil or criminal, which has been
decided by a court of justice, or respecting
the conduct of any person as party, witness
or agent, in any such case, or respecting the
character of such person, as far as his
character appears in that conduct, and no
further.
14. It is also worth to note that, Article 19(2) of the
Constitution provides that, nothing in sub-clause (a) of clause (1) of
Art. 19 shall affect the operation of any existing law, or prevent the
state from making any law, in so far as such law imposes a
reasonable restriction on the exercise of the right conferred by such
sub-clause in the interest of security of state, friendly relations with
foreign states, public order, decency of morality or in relation to
contempt of court, defamation or incitement to an offence. So though
freedom of speech and expression is regarded as a fundamental
right of every citizen of India, the same is subject to reasonable
restrictions that may be imposed under Art.19(2) of the Constitution.
15. In 'Salmond on the Law of Torts' says, a defamatory
statement is a statement which tends to lower a person in the
estimation of right-thinking members of society generally and in
particularly to cause him to be regarded with feelings of hatred,
contempt, ridicule, fear, dislike or disesteem.
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O.S. No.2650/2018
16. So in the light of aforesaid proportion on the nature of
defamatory statement and relevant provisions of law, this court has
to see that whether publication of such statements in the judicial
proceedings requires civil action or will get absolute privilege is to
be considered.
17. It may be noted that, in a civil action for defamation,
Privilege is of two kinds:-
'Absolute' privilege and 'Qualified' privilege. Absolute privilege
protects a statement as no action would lie for it, however false and
defamatory it may be, even though it was made maliciously with
improper motive. As such, when the law of torts has not been
codified, then cases of such civil liability of damages have to be
decided according to the rule of justice, equity and good conscience.
18. It is to be noticed that, it is no doubt true that marriage of
the plaintiff and defendant performed in accordance with their
personal law can be treated as contract between the parties, so
when the plaintiff husband claiming damages as a result of alleged
malicious abuse of civil or criminal proceedings with defamatory
statements, then the cause of action is similar to the cause of action
for malicious prosecution, as such plaintiff has to prove firstly malice,
secondly he must allege and prove that the defendant wife acted
without reasonable and probable cause and entire proceedings
against him have either terminated in his favour or process
complained of has been superseded or discharged.
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O.S. No.2650/2018
19. It is pertinent to note here that, on careful evaluation of
the evidence of P.W. 1 along with contents of exhibits referred
supra I do not find that because of the said allegations, statements
and imputations made in the judicial proceedings the plaintiff's
reputation had been lowered in the estimation of his family
members, relatives or general public. On the other hand it can be
said that the alleged statements or making unfounded indecent and
defamatory allegations against spouse or his relative in the judicial
proceedings certainly constitute cruelty only. It is evident that, based
on these allegations only the defendant wife filed divorce petition,
wherein the present plaintiff husband remained ex-parte, accordingly
she has obtained a decree of divorce as per Ex.P.12 judgment from
the concerned family court. Therefore, it can be held that, the
plaintiff has failed to prove the fact that the defendant with an
intention to harm the reputation and feelings of himself and
family/relatives has made alleged defamatory statements in criminal
and civil proceedings so as to grant damages as sought for.
Moreover, though the plaintiff has claimed return of 65 tholas of gold
said to have given by him to the defendant at the time of marriage
and subsequent dates or else its equivalent value, but in this regard,
absolutely there is no cogent oral and documentary evidence so as
to consider the claim of the plaintiff on this aspect.
20. It has been held in the case of Royal Aquarium v/s.
Parkinson (1892) 1 QB 431, 451 as referred in chapter XII of The
Law of Torts by Ratanlal and Dhirajlal that, no action of libel or
slander lies whether against Judges, Counsel, Witness, or Parties
for words written or spoken in the course of any proceedings,
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O.S. No.2650/2018
before any court recognized by law and this though the words
written or spoken maliciously, without any justification or excuse and
from personal ill-will and agent against the person defamed.
21. Similarly the Hon'ble High court of Bombay has also
held in the case Templeton v/s. Laurie ILR 25 Bom 230 that, no
action lies against a witness in respect of words spoken by him in
the witness box although they are false.
22. So now it is clear that, in a civil suit for defamatory
statements courts in India have recognized and applied the principle
of absolute privilege to attach to the statements made in the course
of judicial proceedings and statements contained in the documents
made in judicial or quasi judicial proceedings on the ground that, it is
a public policy that, a litigant approaching the court enjoys absolute
freedom in making a charge and contesting a charge, as such a
litigant must not suffer from any inhibition or threat of further
prosecution or labour under any apprehension of the consequences
of the statement made by such litigant in the course of a judicial
proceedings. For these reasons it can be held that, a litigant must
be protected from further litigations for having made statement
perceived to be defamatory, in the course of a judicial proceeding.
23. Apart from these aspects whether this court has
jurisdiction to try the present suit or barred by any law is to be looked
into.
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O.S. No.2650/2018
24. In this regard Section 7 of the Family Courts Act reads
thus:-
7. Jurisdiction:- (1) Subject to the other provisions of
this Act, a family court shall
(a) have and exercise all the jurisdiction exercisable
by any district court or any subordinate civil court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
explanation and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or as
the case may be, such subordinate civil court for the
area to which the jurisdiction of the family court
extends.
Explanation:- The suits and proceedings referred to in
this sub-section are suits and proceedings of the
following nature, namely:-
a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may
be, annulling the marriage) or restitution of conjugal
rights or judicial separation or dissolution of marriage;
b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status
of any person'
c)a suit or proceeding between the parties to a
marriage with respect to the property of the parties or
of either of them;
d) a suit or proceeding for an order or injunction
in circumstances arising out of a marital
relationship;
e) a suit or proceeding for a declaration as to the
legitimacy of any person;
f) a suit or proceeding for maintenance;
g) a suit or proceeding in relation to the guardianship
of the person or the custody of, or access to any
minor.
21
O.S. No.2650/2018
25. From a reading of aforesaid provisions make it clear
that, the present case also falls squarely under explanation (d) to
section 7 of the Act, as the dispute arising out of a marital
relationship of the plaintiff and defendant only. So on this ground
also suit of the plaintiff is not maintainable and barred by law.
Therefore, having regard to the facts and circumstances of the case,
I am of the opinion that, any amount of arguments addressed by the
learned counsel for the plaintiff do not have weight and cannot be
accepted. Hence, I answer Point Nos. 1 to 5 raised for are in the
"Negative".
26. Point No.6:- In view of my discussion made supra while
dealing with Point No.1 to 5, I am of the opinion that, suit of the
plaintiff is liable to be dismissed without cost. Hence, I answer Point
No.6 in the negative.
27. Point No.7 :- For the foregoing reasons, I proceed to
pass the following;
ORDER
The suit of the plaintiff is hereby dismissed. No order as to costs.
Draw decree accordingly. [ Dictated to the Stenographer directly on computer, corrected by me and then passed in the office on 20th day of August, 2020 ] [ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU **** 22 O.S. No.2650/2018 ANNEXURE List of witnesses examined on behalf of Plaintiffs :
PW.1 Mohammed Abid Hussain List of witnesses examined on behalf of Defendant :
- Nil -
List of documents marked on behalf of Plaintiffs :
Ex.P1 Certified copy of application in C.Misc.No.371/2012 Ex.P2 Certified copy of 'B' report Ex.P3 Certified copy of order sheet in C.C. No.57253/2017 Ex.P4 Certified copy of order sheet in C.Misc.No.109/2013 Ex.P5 Certified copy of judgment in O.S. No.51/2013 Ex.P6 Certified copy of order sheet in Crime No.252/2013 Ex.P7 Certified copy of complaint Ex.P8 Certified copy of translated marriage certificate Ex.P9 Certified copy of FIR in Cr.No.252/2013 Ex.P10 Certified copy of application in Crl.Misc.No.109/2013 Ex.P11 Certified copy of plaint in O.S. No.51/2013 Ex.P12 Certified copy of judgment in O.S. No.48/2013 Ex.P.13 Certified copy of decree passed in O.S. No.48/2013 Ex.P.14 Certified copy of evidence/cross-examination of P.W. 1 in Crl.Misc.No.371/2012 Ex.P.15 Certified copy of order sheet in Cr.No.252/2013 Ex.P.16 Certified copy of order sheet in C.C. No.57253/2017 Ex.P.17 Certified copy of orders passed in Crl.Misc.No.109/2013 Ex.P.18 Certified copy of the judgment passed in O.S. No.51/2013 List of documents marked on behalf of Defendants
- Nil -
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU 23 O.S. No.2650/2018 In view of the general instructions of the Hon'ble High Court of Karnataka dated 03/05/2020 and 29/05/2020(VC) and as per the Circular of the Office of City Civil court dated 23/05/2020, above numbered case which was reserved for judgment today is called for passing orders in this office.
Today is non sitting day. Accordingly, the judgment passed in this office vide separate order and also uploaded the same in CIS:-
ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 24 O.S. No.2650/2018 25 O.S. No.2650/2018