Ganapathy Moturu And Ors vs Madhavilatha Sathyanarayanan ...
2021 Latest Caselaw 9779 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 663 OF 2020

Shri. M. Ganapathy & Ors.                                         ...Petitioners

         Versus

Mrs. M. Madhavi Latha & Ors.                                      ...Respondents
                                 ...
Mr. Doramaan Dalal a/w. Ms. Shaswati Diksha for petitioners.
Mr. Saikumar P.M. for Respondent No. 1.
Smt. S.D. Shinde, APP for State.
                                 ...

                                        CORAM : S. S. SHINDE &
                                                N. J. JAMADAR, JJ.

                                        DATE :         27th JULY, 2021.

P.C.

1. This petition under article 226 of the Constitution of

India and Section 482 of Code of Criminal Procedure, 1973, is filed

to quash and set aside the R.C.C. No. 773/2020 arising out of FIR

No. 0751/2019, pending on the file of learned JMFC, Court No. 6,

Pune, for the offences punishable under Section 498-A, 506, 506

read with 34 of the Indian Penal Code ('the penal code').

2. The substance of the petition is that the marriage of Ms.

Madhavilatha, Respondent No. 1- the first informant was

solemnized with Mr. Sathyanarayanan, the son of Petitioner No. 1

and 2 and brother of Petitioner No. 3 on 12 th February, 2015. There

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was matrimonial discord between the Respondent No. 1 and Mr.

Sathyanarayanan. The matrimonial discord resulted in filing of

number of proceedings. The Respondent No. 1 lodged multiple

complaints with various authorities against the Petitioners and Mr.

Sathyanarayanan. Eventually, husband of Respondent No. 1 filed

the petition for divorce bearing H.M.O.P. No. 246/2017 in the

Family Court at Chennai. The Respondent No. 1 also instituted a

petition for restitution of conjugal rights bearing H.M.O.P. No. 2645

of 2018. The jurisdiction of the Family Court to entertain the

matrimonial dispute was also challenged. The Respondent No. 1

also filed a complaint bearing No. 4247/2017 before the learned

Magistrate under the provisions of Protection of Women From

Domestic Violence Act. The Petitioner No. 1 and 2 were impleaded

as party respondents therein. Eventually, the Petitioner No. 3-Mrs.

Hemalatha was discharged by the learned Magistrate by an order

dated 1st February, 2019.

3. In the backdrop of aforesaid matrimonial disputes, the

petitioners claimed that the Respondent No. 1 lodged the FIR on 21 st

June, 2019 to wreak vengeance after a delay of about two years of

alleged occurrence. The FIR was lodged with a view to give a counter

blast to the proceedings, especially the petition for divorce instituted

by the husband of Respondent No. 1. The FIR and the consequent

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prosecution is an abuse of the process of the Court. No case to

prosecute the petitioner is prima faice made out. Hence, this

petition to quash the FIR and consequent case bearing R.C.C. No.

773/2020.

4. The Respondent No. 1 has appeared and resisted the

prayer for quashing of the FIR and consequent prosecution by filing

affidavit in reply.

5. We have heard Mr. Dalal, the learned counsel for the

petitioners, Smt. Shinde the learned APP for the State and Mr.

Saikumar, the learned counsel for Respondent No. 1. With the

assistance of the learned counsel for the parties we have perused

the report under Section 173 of the Code of Criminal Procedure,

1973 ('the Code'), and the documents annexed with it.

6. Mr. Dalal strenuously urged that the allegations in the

FIR are vague and baseless and have been made only on account of

matrimonial discord between the Respondent No. 1 and Mr.

Sathyanarayanan, the son of Petitioner No. 1 and 2. It was urged

that the allegations in the FIR, even if taken at their face value and

in their entirety, do not make out an offence, for which the

petitioners have been arraigned.

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7. We find it rather difficult to accede to the aforesaid

submission. From the perusal of the allegations in the FIR, it

becomes clear that the first informant has made allegations against

the petitioners of cruelty in two stages. First, while she was residing

at her matrimonial home at Chennai, in the year 2015. The

Petitioner No. 2 allegedly caused mental cruelty to her. She

instigated her son to harass the petitioner. The Petitioner No. 1

allegedly harrassed by restraining her from going out of the home

and using smart phones. The Petitioner No. 1 allegedly abused and

instigated her. The Petitioner No. 3 allegedly made an unlawful

demand of property and obtained cash amount and valuables of Rs.

3 lakhs. At the second stage, the Respondent No. 1 alleged that

when she and her husband shifted to Pune, in the year 2017, the

petitioners had came to her matrimonial home and at that time she

was subjected to cruelty. The Petitioner No. 1 and 2 abused her and

instigated her husband to rake quarrels with her. The Petitioner No.

3 instigated her husband to snap the marital bond with Respondent

No. 1. Eventually, her husband left for Chennai, with all her

ornaments, locking her out of their home. When she went to

Chennai, the Petitioner No. 1 and 2 did not allow her to enter their

home.

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8. In the backdrop of these aforesaid allegations, we are not

persuaded to accede to the submissions made on behalf of the

petitioners that the allegations in the FIR, as they stand, do not

make out the offences alleged against the petitioners. The

allegations are such that they fall within the ambit of clause (a) of

the explanation to Section 498-A of the Penal Code.

9. A useful reference, in this context, can be made to the

judgment of Hon'ble Supreme Court in the case of Rupali Devi Vs.

State of Uttar Pradesh & Ors. (2019 (6) Scale 96) , wherein concept

of 'cruelty' especially 'mental cruelty' was expounded as under:-

"14. "Cruelty"which is the crux of the offence under Section 498A IPC is defined in Black's Law Dictionary to mean "The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (Abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being illtreated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section198A of the Indian Penal Code.

The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to

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traumatize the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress cause by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place."

10. Undoubtedly, the aforesaid observations were made in

the backdrop of the controversy as regards the jurisdiction of the

Courts to try a prosecution for the offence punishable under Section

498-A of the Penal Code, where the woman is forced to leave her

matrimonial home and take shelter at her parental home. However,

enunciation as regards the mental cruelty is in general terms. This

also answers the challenge raised on behalf of the petitioners on the

count of delay in lodging the report.

11. It is trite that at the stage of the consideration of prayer

for quashment of FIR/prosecution, the High Court cannot delve

deep into the correctness or otherwise of allegations in the FIR.

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What is to be appraised is whether the uncontraverted allegations in

the FIR make out a prima facie offnece or not.

12. In the instant case, in the intervening period, the

chargehsheet has also been lodged. The said development also

bears upon the prayer for quashment, as during the course of

investigation, statements have been recorded and transcripts of

conversation have been collected which prima facie substantiate the

allegations of the first informant. Thus, at this stage, we are not

persuaded to entertain the prayer for quashing the prosecution.

Hence, the following order:-

ORDER

1) The writ petition stands dismissed.

2) By way of abundant caution we clarify that the aforesaid observations have been made for the limited purpose of consideration of prayer for quashment of proceedings and they shall not be construed as an expression of opinion on merits of the matter.

     ( N. J. JAMADAR, J.)                              (S. S. SHINDE, J.)




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