Sadique P.A. v. The State of Kerala and Noorjahan B.M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933** **OP(Crl.).No. 3412 of 2011(Q)** **--------------------------------------** **MC.110/2011 of J.M.F.C., MANNARKAD** **....................** ## **PETITIONER :-** **-----------------------** **SADIQUE.P.A,S/O.LATE ABDUL KAREEM.P.K, PALLACHI HOUSE,ARAKKAKADAVU,VENNALA.P.O, KOCHI-682028.** **BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE** **SRI.ALAN PAPALI** **SRI.SOJAN MICHEAL** **SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S.** **RESPONDENT(S) :-** **--------------------------** **1. THE STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. NOORJAHAN.B.M,D/O.B.H.MAMMI,BEHIND NESTLE GODOWN,RAHATH MANZIL,CHERANELLOOR, KOCHI-682034.** **ADV. SRI.E.A.BIJUMON FOR R2 PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** **OP(Crl.).No. 3412 of 2011** **APPENDIX** **PETITIONER(S) EXHIBITS :-** **EXT.P1: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE PALARIVATTOM POLICE STATION DATED 21.09.2010.** - **EXT.P2: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE PALARIVATTOM JANAMAITHRI POLICE STATION ON 02.07.2011** **EXT.P3: TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 21.07.2011.** **EXT.P4: TRUE COPY OF THE ACKNOWLEDGMENT OF THE RECEIPT OF EXT.P3 NOTICE BY THE 2ND RESPONDENT ON 25.07.2011.** **EXT.P5: TRUE COPY OF THE PETITION SENT BY THE 2ND RESPONDENT'S FATHER B.H.MAMMI TO THE PONNURUNNI JAMA ATH COMMITTEE DATED 11.08.2011.** **EXT.P6: TRUE COPY OF THE APPLICATION FILED BY THE 2ND RESPONDENT BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS,MANNARKKAD ,DATED 22.08.2011. EXT.P7: TRUE COPY OF THE PETITION FILED BY THE 2ND RESPONDENT BEFORE THE DISTRICT PROTECTION OFFICER,PALAKKAD DATED 20.08.2011. EXT.P8: TRUE COPY OF THE APPLICATION FILED BY THE 2ND RESPONDENT BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, MANNARKKAD AS C.M.P.NO.3562/2011 DATED 13.09.2011. EXT.P9: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, MANNARKKAD IN C.M.P.NO.3562/2011 DATED 21.09.2011.** **EXT.P10: TRUE COPY OF THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,MANNARKKAD IN C.M.P.3562/2011 IN M.C.NO.110/2011 DATED 26.09.2011.** ## **RESPONDENTS' EXHIBITS :- NIL** **//True Copy//** **P.A. to Judge** **N.K.BALAKRISHNAN, J. -------------------------------O.P.(Crl). No.3412 of 2011 ------------------------------------Dated this the 18[th] day of November 2011** ## **J U D G M E N T** Petitioner is the respondent before J.F.C.M., Mannarkkad. The 2[nd] respondent herein filed M.C.No.110/2011 before that court under the provisions of Protection of Women from Domestic Violence Act, 2005. The petitioner contended before the court below that marriage was dissolved by pronouncing 'Talaq'. The fact that talaq was pronounced as evidenced by Ext.P3 was intimated to the 2[nd] respondent as evidenced by Ext.P4. The letter sent by the father of the woman would also show that the talaq was pronounced by the petitioner herein. Hence, the learned counsel for the petitioner would submit that there was no 'domestic relationship' between the petitioner and the 2[nd] respondent and as such the 2[nd] respondent cannot approach the learned Magistrate under the provisions of Protection of Women from Domestic Violence Act, 2005 (herein after ## O.P.(Crl). No.3412 of 2011 ## -: 2 :- ## referred as “the Act”). Sec.2(a) of the Act defines :- “(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;” So, we have to see the definition of “domestic relationship”. It reads :- “2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” 2. The learned counsel for the petitioner would submit that since the marriage was dissolved by pronouncing talaq there can be no relationship in the nature of marriage so as to enable the Magistrate to exercise the jurisdiction under the provisions of the Act. In this connection, the decision of the Apex Court in **Velusamy** v. **Patchaiammal** reported in [2010 (4) KLT 384 (SC)] has been relied upon by the learned counsel. By referring to the provisions of the Act, it was held by the Apex Court : O.P.(Crl). No.3412 of 2011 ## -: 3 :- “S.26(1) provides that the relief mentioned in S.20 may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression 'domestic relationship' includes not only the relationship of marriage but also a relationship 'in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression 'a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.” The decision of the Apex Court in **Inderjit Singh Grewal** v. **State of Punjab and Another** reported in [2011 (2) KLD 411 (SC)] has also been relied upon by the learned counsel for the petitioner to fortify his submission that the relief sought for in O.P.(Crl). No.3412 of 2011 -: 4 :- the complaint filed by the 2[nd] respondent before the court below is unsustainable. That was a case where the marriage was already dissolved but thereafter they lived together as husband and wife. Subsequently the wife filed a petition seeking reliefs under the Act. After enquiry it was found that the marriage had already been dissolved and as such the woman was not entitled to the protection under the Act. Thereafter she approached the court. Ultimately it reached the Apex Court. The Apex Court held : “In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same. The appeal succeeds and is allowed. The impugned judgment and order dated 09/08/2010 is hereby set aside. O.P.(Crl). No.3412 of 2011 -: 5 :- Petition filed by the Appellant under Section 482 Code of Criminal Procedure is allowed. Complaint No.87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.” 3. The learned counsel for the petitioner submits that in view of Exts.P3 and P4 which is further supported by Ext.P5, there can be no doubt that there is no domestic relationship between the petitioner and the 2[nd] respondent and as such, further proceeding in M.C.No.110/2011 cannot be sustained. It is also argued that as the petition filed before the learned Magistrate (M.C.No.110/2011) is unsustainable, all the interim orders passed by that court also should be unsustainable. The learned counsel for the 2[nd] respondent would submit that she did not actually admit that a talaq was validly pronounced; in the sense; that the husband had pronounced talaq three times. According to her the information received was that he had pronounced talaq only twice. But there is nothing to support that submission made by the learned counsel. In such circumstances, the contention that there was no legal divorce cannot be sustained. O.P.(Crl). No.3412 of 2011 -: 6 :- 4. There is force in the submission made by the learned counsel for the petitioner that if the petition (MC) before the learned Magistrate cannot be sustained at all, Ext.P10 order as per which interim custody was given to the mother also cannot be sustained. But the court has to consider the sentiments of the mother who will be always eager to see her son. Endeavour should be to do justice to the party. The interim order passed by the learned Magistrate, in paragraph 7 says : “Hence, temporary custody of Muhammed Sayed Ali during holidays and weekends is allowed in favour of petitioner. Respondent shall let the child in the custody of petitioner on all weekends and holidays. Petitioner can take the child from the custody of respondent as ordered above. Petition is disposed accordingly.” 5. Now, the learned counsel for the 2[nd] respondent submits that the 2[nd] respondent is intending to approach the Family Court for appropriate reliefs. The learned counsel further submits that it may take some time to obtain an order for interim custody or for other directions with regard to the custody of that boy, aged 5 years. Therefore, I find that it is O.P.(Crl). No.3412 of 2011 **==> picture [30 x 10] intentionally omitted <==** just and proper that the operation of the order for interim custody passed by the learned Magistrate should remain in force for a period of two months from today so that she (mother) can move the learned Judge, Family Court for appropriate reliefs. Further proceeding in M.C.No.110/2011 pending before J.F.C.M., Mannarkkad will remain quashed, except to the extent of the interim order which will remain in force for two months from today as mentioned above. **N.K.BALAKRISHNAN, JUDGE.** Jvt