Badarudeen vs Raziya
2021 Latest Caselaw 1977 Ker

Mat.Appeal.No.808 OF 2013

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         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                   &

               THE HONOURABLE MR.JUSTICE C.S.DIAS

 TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                      Mat.Appeal.No.808 OF 2013

AGAINST THE ORDER/JUDGMENT IN OP 262/2010 DATED 31-10-2012
               OF FAMILY COURT, THODUPUZHA


APPELLANT/S:

           BADARUDEEN
           S/O.MOHAMMED MUSTHAFA, MUSLIM, FORMER
           BUSINESSMAN, RESIDING AT KANJIRAVILAYIL,
           PAZHAKULAM WEST MURI, PALLICKAL VILLAGE, ADOOR
           TALUK.

           BY ADV. SHRI.P.CHANDY JOSEPH

RESPONDENT/S:

           RAZIYA
           D/O.PATHUKUTTY, MUSLIM ATED COLLEGE LELCTURER,
           RESIDING AT PALATHINKAL VEETTIL, MUVATTUPUZHA,
           ERNAKULAM DISTRICT.

           R1    BY   ADV.   SRI.C.S.AJITH PRAKASH
           R1    BY   ADV.   SRI.PAUL C THOMAS
           R1    BY   ADV.   SRI.M.B.SOORI
           R1    BY   ADV.   SHRI.BABU M.
           R1    BY   ADV.   SMT.ANCY THANKACHAN
           R1    BY   ADV.   SHRI.NIDHIN RAJ VETTIKKADAN

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal.No.808 OF 2013

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                         JUDGMENT

C.S..Dias, J.

The appellant was the petitioner in O.P.

No.992/2009 on the file of the Family Court, Thiruvalla.

The respondent was the respondent in the original

petition.

2. The concise case of the petitioner in the

original petition was that he was married to the

respondent on 16.1.1995 as per the Muslim religious

rites. They are issueless. As the respondent hailed

from a financially backward family, the petitioner had

gifted 50 sovereigns of gold ornaments to the

respondent at the time of marriage. He sent the

respondent for post-graduate studies. However, she

fell in love with a person named 'Juneeth' and refused

to return back to the matrimonial home. The

respondent had filed a complaint before the Judicial

First Class Magistrate Court, Muvattupuzha, pursuant Mat.Appeal.No.808 OF 2013

to which Crime No.332/1998 of the Muvattupuzha

Police Station was registered against the petitioner for

an offence punishable under Section 498-A of the

Indian Penal Code. The petitioner was enlarged on

bail. The allegations made in the complaint maligned

the name of the petitioner and shattered his dreams.

Nevertheless, the learned Magistrate acquitted the

petitioner. The respondent initiated a malicious

prosecution against the petitioner, which has spoiled

his marital life and social recognition. Hence, he is

entitled for a compensation of Rs.5 lakh.

3. The original petition was resisted by the

respondent, who filed a written objection, inter alia,

refuting the allegations in the original petition. The

respondent contended that she was constrained to

lodge the complaint before the learned Magistrate due

to the mental and physical harassment and ill-

treatment meted out on her by the petitioner

demanding more dowry. In the month of 1997, the Mat.Appeal.No.808 OF 2013

petitioner had threatened to murder the respondent

and she was driven away from her matrimonial home.

As the cruelty remained unbearable, the respondent

was compelled to institute the criminal proceedings.

The investigation conducted by the Police revealed that

the petitioner had committed the offence. The

petitioner was charge-sheeted for an offence under

Section 498-A of the Indian Penal Code. The petitioner

refused to maintain the respondent for more than

three years. The marriage between the petitioner and

the respondent was dissolved by performing 'Fazakh',

as per the Muslim Personal Law. Thereafter, the

respondent got married to Juneeth on 5.7.2001.

Before the commencement of trial in C.C No.762/1998,

the disputes between the petitioner and the respondent

were settled out of court. The said fact was brought to

the notice of the learned Magistrate. As the offence

was not compoundable, as advised by the Mediators,

the respondent and her witnesses turned hostile to the Mat.Appeal.No.808 OF 2013

prosecution case. It is in such circumstances that the

petitioner was acquitted. The mere acquittal of the

petitioner in the criminal case, does not give rise to

any cause of action as there is no presumption that the

prosecution was malicious. The petitioner has not

sustained any damages as alleged in the original

petition. Hence, the original petition may be

dismissed.

4. The petitioner and his witnesses were

examined as PW1 to PW3 and Exhibits A1 to A4(b)

were marked through them.

5. The Family Court, after considering the

pleadings and materials on record, by the impugned

judgment dismissed the original petition holding that

the petitioner had failed to establish the case levelled

against the respondent. Therefore, the petitioner was

not entitled to the compensation.

6. It is aggrieved by the said judgment that the

appellant has preferred the appeal.

Mat.Appeal.No.808 OF 2013

7. Even though the appeal was filed on

18.12.2013, this Court had not admitted the appeal.

8. Heard Sri.P.Chandy Joseph, the learned

counsel appearing for the appellant and Sri.C.S.Ajith

Prakash, the learned counsel appearing for the

respondent.

9. The learned counsel appearing for the

appellant vehemently argued that there was sufficient

material to substantiate that the respondent was guilty

for malicious prosecution. The appellant's reputation

in the society was maligned due to the frivolous

complaint lodged by the respondent, which the

learned Magistrate found to be false and the appellant

was honourably acquitted. The dismissal of the

original petition was erroneous. Hence the judgment is

liable to be set aside and the appellant be granted

compensation as claimed in the original petition.

10. The learned counsel appearing for the

respondent contended that the appellant was trying to Mat.Appeal.No.808 OF 2013

take advantage of his own wrong. In fact, he had ill-

treated and harassed the respondent, which compelled

her to file a complaint before the learned Magistrate.

Subsequently, on a consensus arrived at between the

parties in a mediation talk, the respondent and her

witnesses deposed before the learned Magistrate that

they were no longer desirous of prosecuting the

complaint in view of the harmonious settlement. It

was in such circumstances that the appellant was

acquitted in the crime. Had the respondent

prosecuted the crime, certainly the petitioner would

have been convicted and sentenced to maximum

punishment. The petitioner is estopped from

reprobating on the consensus that was arrived at

between the parties. Even in law, the petitioner has not

proved any malice on the part of the respondent, in

order to sustain his claim in the original petition, which

is mandatory in law. Hence the original petition may

be dismissed.

Mat.Appeal.No.808 OF 2013

11. The sole question that emerges for

consideration in this appeal is whether the impugned

judgment passed by the Family Court in dismissing the

original petition is correct or not.

12. The law in respect to suit for damages for

malicious prosecution is fairly well settled in catena of

precedents of this Court.

13. In Krishnan v. Govindan [1988 (1) KLT 687],

this Court has held that the four essential elements to

find a cause of action for malicious prosecution are (i)

institution of criminal proceedings by the defendant,

(ii) termination of the proceedings in favour of the

plaintiff if from the nature they were capable of

termination (iii) absence of reasonable probable cause

and (iv) malice or a primary purpose other than of that

of carrying the law into effect.

14. The above legal position has been reiterated

by this Court in M.Bhaskara Menon v.

Mat.Appeal.No.808 OF 2013

Puthuparambil Ayyappan [2007 (3) KHC 202],

Kunhikannan Nambiar K.K. v. M.V.Prabhakaran

[[2009 (3) KHC 114] and Joseph George v. K.John

[2014 (1) KHC 648].

15. In light of the above declaration of law, it is

necessary that a petitioner in a suit for damages for

malicious prosecution has to prove the aforesaid

ingredients.

16. In the case on hand, it is admitted by the

respondent that she had filed CMP 5176/1998 before

the learned Magistrate and the complaint was referred

to the Police under Section 156(3) of the Code of

Criminal Procedure, pursuant to which Crime

No.332/1998 was registered. The Police after

investigation filed a final report, finding that the

appellant had committed the offence. Accordingly, CC

No. 762/1998 was registered.

Mat.Appeal.No.808 OF 2013

17. It was the specific case of the respondent in

CMP 5176/1998 that the appellant/petitioner had ill-

treated and harassed her for want of dowry. It is on

record that the marital relationship between the

appellant and the respondent was strained. It is also

not disputed that the marriage between the appellant

and the respondent was dissolved by declaring

'Fazakh'. Thereafter, the respondent got re-married.

18. On going through Ext.A1 order passed by the

learned Magistrate in CC 762/1998, it is seen that the

respondent and her witnesses had turned hostile to

the prosecution. It was only due to the said

circumstance, that the appellant was acquitted in the

above case. Therefore, we find a ring of truth in the

defence put forth by the respondent that there was a

settlement arrived at between the petitioner and the

respondent, prior to the commencement of trial.

19. The termination of the criminal proceedings

in favour of the appellant is found to be on the basis of Mat.Appeal.No.808 OF 2013

an out of court settlement arrived at between the

parties. Thus, it cannot be said that institution of the

criminal proceedings by the respondent was without

any cause. Similarly, the criminal proceedings were

not terminated after a full-fledged trial. Hence, the

first two elements laid down in Krishnan v. Govindan

(supra), is found in favour of the respondent.

20. Coming to the third element that is essential

for sustaining a suit for damages for malicious

prosecution.

21. It is on record that the respondent had lodged

the complaint specifically imputing that the appellant

had harassed and ill-treated her for want of dowry,

which is a reasonable and probable cause of action,

which is more than sufficient to satisfy the third

element. Thus, it cannot be said that there is absence

of any reasonable or probable cause.

22. Likewise, it is seen that the respondent had

lodged the complaint before the learned Magistrate Mat.Appeal.No.808 OF 2013

due to the harassment that was meted out on her by

the petitioner. However, later, due to the harmonious

settlement that was arrived at between the parties,

with the aid and assistance of the Mediators, the

respondent and her witnesses turned hostile to the

prosecution and the appellant was acquitted. In the

facts and circumstances of the case, it can never be

held that the act of the respondent in filing the

complaint before the learned Magistrate was with

malice, as contended in the original petition.

23. On an overall re-appreciation of the

pleadings and materials on record and after hearing

the respective counsel for the parties and also in light

of the law laid down by this Court in the aforecited

precedents, we are of the considered opinion that there

is no error or illegality in the findings and conclusions

arrived at by the Family Court. Hence, the appeal does

not deserve to be admitted.

Mat.Appeal.No.808 OF 2013

Resultantly, the appeal is dismissed. In the facts

and circumstances of the case, the parties are directed

to bear their respective costs.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

ma/21/01.2021                C.S.DIAS, JUDGE
                       /True copy/