Arun Paryadath v. State of Kerala and Lakshmi Arun

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **Crl.MC.No.3434 OF 2015** ## **CRIME NO.1169/2014 OF VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **ARUN PARYADATH AGED 36 YEARS S/O.P.SUDHAKARAN, DEVI, 29/117, JANATHA ROAD,KOCHI.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS/STATE/COMPLAINANT:** - **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.(CRIME NO.1169/2014 OF VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM DISTRICT).** - **2 LAKSHMI ARUN, D/O.SHOBHANA TC NO.29/42/2 SOUPARNIKA CHELLAM VEEDU, M.K.K.NAIR ROAD, PALKULANGARA WARD, PETTAH, VANCHIYOOR, THIRUVANANTHAPURAM.** **R2 BY ADV. SRI.BASANT BALAJI** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.3434 of 2015 2 # **ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C.No.3434 of 2015** **===========================** Dated this the 23[rd] day of September, 2020 ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : _“................... to quash all further proceedings in Crime No.1169/14 of Vanchiyoor Police Station, Thiruvananthapuram, as it is an abuse of process of court.”_ 2. Heard Sri.S.Rajeev, learned counsel appearing for the petitioner/sole accused, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Sri.Basant Balaji, learned Advocate appearing for the contesting respondent No.2 (lady de facto complainant). The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure-I First Information Report (FIR) in Crime No.1169/2014 of Vanchiyoor Police Station, Thiruvananthapuram for offences punishable under Sec.498A of the Indian Penal Code, on the basis of the First Information Statement (FIS) given by the 2[nd] respondent lady de facto complainant on 04.10.2014 in respect of the alleged incidents, Crl.M.C.No.3434 of 2015 3 which happened for the period from 10.05.2013 to 04.10.2014. 3. The allegations made out in Annexure-I FIS of the 2[nd] respondent is as follows : That both the 2[nd] respondent and the petitioner herein had previous marriage which was lawfully dissolved. Further that, the 2[nd] respondent has a son in her previous marital relation and the petitioner herein has a daughter in his previous marital relationship. That the parties after obtaining dissolution of their respective first marriages has solemnized the marriage on 10.05.2013 at Thiruvananthapuram. That the 2[nd] respondent is a highly educated lady, who is having a qualified Post Graduate degree in Masters in Human Resource Management and was working as a Human Resource Department of a company in Technopark, Thiruvananthapuram and she was also interested in academics and she had got herself registered for Ph.D in the National Institute of Technology, Kozhikode. That both the parties after their marriage had lived together as husband and wife in Kerala only for 14 days and within the day, the petitioner had left to the Gulf country, where he is employed (Qatar) and that he had assured the 2[nd] respondent that he would secure family via, so as to take the 2[nd] respondent and her son to the Gulf country. That after Crl.M.C.No.3434 of 2015 4 reaching the Gulf country, the petitioner has not taken any interest to take the family visa for the 2[nd] respondent and that this constrained the 2[nd] respondent to make enquiries with the employer of the petitioner in the Gulf country and that the 2[nd] respondent would then reliably learnt from the said company officials in the Gulf country that the petitioner has not even intimated them about the marriage with the 2[nd] respondent and that he has not taken any steps for securing family visa for the 2[nd] respondent and her son, etc. That on account of the assurance given by the petitioner, the 2[nd] respondent had even cancelled her Ph.D registration and also resigned the job and that later she came to know that the petitioner is still having some contacts with his first wife and that he had come down from the Gulf country to Kerala without intimating the 2[nd] respondent and that he has taken his minor daughter to the Gulf country without the knowledge and permission of the 2[nd] respondent, etc. and that when she had questioned the petitioner on that score, the petitioner had threatened her of dire consequences, etc. Further that, in a website showing the family genealogy of the petitioner, he has shown that his divorced wife is his wife, etc. Crl.M.C.No.3434 of 2015 5 4. Further, it is an admitted fact that the petitioner herein had filed original petition seeking divorce in respect of his marital relationship with the 2[nd] respondent by filing O.P No.450/2015 before the Family Court, Ernakulam seeking divorce on the ground of cruelty. The Family Court has now passed Annexure-II judgment dated 14.06.2018 allowing O.P No.450/2015 and granting dissolution of the marriage between the petitioner and the 2[nd] respondent. The Family Court has also found that the petitioner is entitled to get divorce on the ground of cruelty committed by the 2[nd] respondent. It will be pertinent to refer to paragraph No.22 of Annexure-II judgment of the Family Court, which reads as follows : “22. PW1 has sought for divorce only because Rw1 was not prepared to treat his daughter Ardra as her own. From the evidence adduced it is very clear that PW1 was treating Rw1's son as his own. It is pertinent to note that Rw1 even did not like Pw1 to have any contact with his only daughter in any manner. When he did not concede to her illegal demands Rw1 has done everything to harass him. She has written letters to his company Directors requesting them to terminate him from his job. All these would go to show that the marital relationship cannot be continued. After having 14 days married life, they are living separately for more than five years. From the evidence on record, it is found that Rw1 has subjected Pw1 to mental cruelty while they were living together and thereafter. There is no pleadings or proof to grant any reliefs on the ground of desertion. In such circumstances, the petitioner is entitled for a decree as prayed under section 13(1) (ia) of the Act. The points found accordingly.” ## 5. It is also beyond any dispute that Annexure-II judgment has become final and conclusive and the 2[nd] respondent has not chosen Crl.M.C.No.3434 of 2015 6 to challenge Annexure-II judgment by filing any matrimonial appeal. From a reading of the impugned FIS, this Court has no hesitation to hold that none of the vital ingredients of the offence as per Sec.498A of the IPC are made out in the instant case. 6. Sec.498A of the IPC reads as follows : ## “ **498A. Husband or relative of husband of a woman subjecting her to cruelty** _Whoever, being the husband or the relative of the 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._ _Explanation : For the purposes of this section, “cruelty” means -_ - _(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or_ - _(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”_ 7. It is also profitable to refer to the judgment of the Apex Court in the case in _**Mangat Ram v. State of Haryana**_ [2014 (12) SCC 595], wherein the Apex Court has dealt with a case of similar nature and it was held therein that a failure on the part of the husband to take the wife to his place of posting, cannot amount to a wilful conduct of such a nature which is likely to drive the woman to commit Crl.M.C.No.3434 of 2015 7 suicide and that living a married woman at her parental home would not by itself constitute cruelty as understood in Sec.498A of the IPC. It will be profitable to refer to paragraph No.23 of the judgment of the Apex Court in **Mangat Ram’s case (supra)** [2014 (12) SCC 595], which reads as follows : “23. Explanation to S.498A gives the meaning of 'cruelty', which consists of two clauses. To attract S.498A, the prosecution has to establish the wilful conduct on the part of the accused and that conduct is of such a nature as is likely to drive the wife to commit suicide. We fail to see how the failure to take one's wife to his place of posting, would amount to a wilful conduct of such a nature which is likely to drive a woman to commit suicide. We fail to see how a married woman left at the parental home by the husband would by itself amount to a wilful conduct to fall within the expression of 'cruelty', especially when the husband is having such a job for which he has to be away at the place of his posting. We also fail to see how a wife left in a village life “in the company of rustic persons”, borrowing language used by the Trial Court, would amount to wilful conduct of such a nature to fall within the expression of 'cruelty'. In our view, both the Trial Court as well as the High Court have completely misunderstood the scope of S.498A IPC read with its explanation and we are clearly of the view that no offence under S.498A has been made out against the accused appellant.” 8. Taking note of the aspects that no ingredients as per Sec.498A of the IPC and the admitted allegations made by the 2[nd] respondent in Annexure-I FIS are made out and also taking note of the fact that the findings and orders of the Family Court in Annexure-II judgment has become final and conclusive, inasmuch as it is found Crl.M.C.No.3434 of 2015 8 therein that it is the 2[nd] respondent herein, who has committed cruelty on the petitioner, etc., this Court has no hesitation to hold that the initiation and continuance of the impugned criminal proceedings at Annexure-I would amount to an abuse to the process of the court. In that view of the matter, it is ordered that the impugned Annexure-I FIR in Crime No.1169/2014 of Thiruvananthapuram Vanchiyoor Police Station, in which the petitioner had been arrayed as accused under Sec.498A and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 9. The petitioner will produce certified copies of this order before the Judicial First Class Magistrate’s Court-11, Thiruvananthapuram as well as the Investigating Officer concerned, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd Crl.M.C.No.3434 of 2015 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE-I** **CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT AND FIRST INFORMATION REPORT IN CRIME NO.1169/2014 OF VANCHIYOOR POLICE STATION.** ## **ANNEXURE-II** **THE TRUE COPY OF THE JUDGMENT PASSED BY THE FAMILY COURT, ERNAKULAM IN OP NO.450/2015 DATED 14.06.2018**