Badarudeen s/o Mohammed Musthafa v. Raziya d/o Pathukutty

**Mat.Appeal.No.808 OF 2013** **1** **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** **2** ## **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** **3** 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 illtreatment meted out on her by the petitioner demanding more dowry. In the month of 1997, the **Mat.Appeal.No.808 OF 2013** **4** 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 **5** **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** **6** 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** **7** take advantage of his own wrong. In fact, he had illtreated 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** **8** 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 this Court in **M.Bhaskara Menon v.** by **9** **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** **10** 17. It was the specific case of the respondent in CMP 5176/1998 that the appellant/petitioner had illtreated 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** **11** 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** **12** 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** **13** 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/**