Madras High Court
M.A.Rafi Ahamed vs The Inspector Of Police on 22 March, 2022
Crl.O.P.(MD)No.21827 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/03/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.21827 of 2018
and
Crl.MP(MD)Nos.10139, 2018 and 4306 and 4307 of 2019
1.M.A.Rafi Ahamed
2.Abdul Majith : Petitioner/A1 and A2
Vs.
1.The Inspector of Police,
AWPS-Palayamkottai Police Station,
Tirunelveli District.
(Crime No.14 of 2017) : R1/Complainant
2.Vaseela Banu : R2/De-facto Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in CC No.344
of 2018 on the file of the Judicial Magistrate, Tirunelveli.
For Petitioner : Mr.K.C.Maniyarasj
For 1st Respondent : Mr.P.Kottai Chamy
Government Advocate
(Criminal side)
For 2nd Respondent : Mr.D.Srinivasaragavan
1/10
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.21827 of 2018
O R D E R
This criminal original petition has been filed by the
petitioners seeking quashment of CC No.344 of 2018 on the
file of the Judicial Magistrate, Tirunelveli.
2.The case of the prosecution in brief:-
The marriage between the de-facto complainant and A1
took place, on 14/03/2010 at Idhaya Thirumana Mahal,
Tirunelveli, as per the customary rites. At the time of
marriage, they have provided with 100 sovereigns of gold
jewels and Rs.2,00,000/- worth sridhana articles and other
house-hold articles. The de-facto complainant was working
as Doctor in the Primary Health Centre and A1 was working
as Cardiologist in a private hospital. After the marriage,
they lived in Vannarapettai, Tirunelveli. During their
joint living, the entire salary was taken by A1. A2 also
ill-treated the de-facto complainant. Continuous trouble
was made by A1. On 02/07/2017, A1 left the house to attend
the marriage at Kadayanallur, but did not return and also
pronounced talaqe through phone. The second accused also
criminally intimidated the de-facto complainant and did not
permit her to enter into the house. So based upon the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.21827 of 2018
complainant given by the de-facto complainant, a case in
Crime No.14 of 2017 was registered for the offence under
section 498-A IPC and after completing the investigation
process, final report has been filed in CC No.344 of 2018
before the Chief Judicial Magistrate, Tirunelveli.
3.This petition has been filed by both the accused
persons mainly on the ground that with the very same
allegation, the second respondent filed DVC No.2 of 2018
before the Judicial Magistrate No.1, Tirunelveli. For the
past two years, from the date of marriage, there was a
problem between them and the respondent refused to have
relationship with the 1st accused. Negotiations were held
several times. Even though the de-facto complainant
expressed her regret for the same, she did not turn to the
matrimonial home.
4.Heard both sides.
5.It is an usual matrimonial dispute between the
husband and wife, who are in the Medical Professional. It
is unfortunate that trouble arose between them, after two
years of marriage. For the first two years, there was no
problem between them. But later, trouble has arisen.
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Crl.O.P.(MD)No.21827 of 2018
6.The learned counsel appearing for the petitioners
would submit that because of the refusal on the part of the
2nd respondent for having relationship with A1, trouble has
started and actually this must be construed as 'cruelty'
upon the first petitioner by the 2nd respondent.
7.Now it is the turn of the 2nd respondent to make
allegation against the petitioner stating that she
requested the first petitioner to go for higher study and
working. But the petitioner refused to accede to the same
and because of that only, trouble has arisen between them.
8.The learned counsel appearing for the petitioner
would straightway rely upon the report of the Social
Welfare Officer, dated 15/06/2018.
9.Reading of the report shows that continuous trouble
exists between the de-facto complainant and A1 regarding
their professional issue. Twice negotiation was conducted
by the elders. In the meantime, the first petitioner
appears to have sent talaq notice to the de-facto
complainant and the de-facto complainant gave a complaint
seeking a direction to the first petitioner to resume the
matrimonial life. Because of the matrimonial issue, it is
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Crl.O.P.(MD)No.21827 of 2018
seen that how the petitioner took the 100 sovereigns of
jewels and house hold articles, apart from the Car, when
the de-facto complainant was not available in the house.
Over which, a case was registered and during the course of
investigation, all the above said gold jewels and other
things were returned to the de-facto complainant. Again
request was made by the de-facto complainant for reunion.
But later, on 20/04/2018 she has stated that she is not
willing to live with A1 and also requested to maintain and
custody of the child. So it has been observed by the
Social Welfare Officer that right from the marriage, when
the de-facto complainant went for higher education were not
cordial relationship between the husband and wife. The de-
facto complainant also refused to have a conjugal
relationship with A1. But the first accused insisted for
conjugal relationship. But it was found that there was no
dispute with regard to the demand of dowry etc. But the
domestic violence was reported to be registered.
10.By pointing out this piece of document, the
contention of the petitioners is that only the 2nd
respondent committed cruelty upon the first petitioner and
absolutely, there is no material on record to show that the
petitioners committed the offence of cruelty upon the
second respondent.
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Crl.O.P.(MD)No.21827 of 2018
11.To show the definition of cruelty, the learned
counsel appearing for the petitioners has relied upon the
judgment of the Hon'ble Supreme court in the case of Vidhya
Viswanathan Vs. Kartik Balakrishnan (AIR 2015 SUPREME COURT
285), wherein it has been observed that refusal on the part
of the wife to have a conjugal relationship will amount to
cruelty.
12.Section 498-A IPC reads as follows:-
S.498-A.Whoever, being the husband or the
releaive of husband of a woman, subjects
such woman to cruelty shall be punished
with imprisonment for a term which may
extend to three years and shall also be
liable to fine.
13.Reading of the above said provision shows that a
married woman is subject to cruelty, causing the mental or
physical harm, then the offence under section 498-A IPC
will be attracted. Here as per the case of the second
respondent, right from the marriage, the first petitioner
was not attending to his job properly, even her salary was
taken by him. Even at one point of time, he took away all
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Crl.O.P.(MD)No.21827 of 2018
the house articles and Car and the jewels when he was in
the house. Whether this will amount to cruelty or not, is
a matter for consideration by the trial court. So the
petitioners cannot take advantage of the report of the
Social Welfare Officer to the effect that there was no
dowry demand.
14.But however, from the fact and circumstances of
this case, it is seen that the second petitioner is no way
in the matrimonial dispute between the husband and wife. A
bald allegation has been made against him, which it does
not warrant a criminal apprehension against him. So the
criminal proceedings against him is liable to be quashed.
15.In the result, this criminal original petition is
allowed in respect of the 2nd petitioner/A2 alone and the
impugned CC No. 344 of 2018 pending on the file of the
Chief Judicial Magistrate, Tirunelveli is quashed as
against him. In respect of the 1st petitioner/A1, this
criminal original petition is dismissed. But however,
considering the fact that the 1st petitioner is a Doctor,
his personal appearance before the trial court is dispensed
with. Within 15 days from the date of receipt of a copy of
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Crl.O.P.(MD)No.21827 of 2018
this order, the 1st petitioner/A1 must appear before the
trial court and file an undertaking affidavit that he will
appear as and when required by the court and he must ensure
that he is properly represented by an Advocate.
Consequently, connected Miscellaneous Petitions are closed.
22.03.2022
Internet:Yes/No
Index:Yes/No
er
Note: In view of the
present lock down owing
to COVID-19 pandemic, a
web copy of the order may
be utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.21827 of 2018
To,
1.The Chief Judicial Magistrate,
Tirunelveli.
2.The Inspector of Police,
AWPS-Palayamkottai Police Station,
Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.21827 of 2018
G.ILANGOVAN,J.,
er
Crl.O.P.(MD)No.21827 of 2018
22/03/2022
https://www.mhc.tn.gov.in/judis
