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Judgment
The matrimonial dispute between the husband and the wife has led to the above proceedings.
Niyas had married Shahitha on 27/11/2005. Two female children were born in the matrimonial relationship. Matrimonial disputes arose between
the parties, ultimately leading to pronouncement of talak on 31/12/2013. Matrimonial disputes had resulted in the several litigations involving the
parties to the marriage as well as the relatives.
In Crl.M.C.No.7139/2016, the dispute revolves around a complaint dated 18/4/2013 addressed by Niyas to a Jamath. The said letter is
produced as Annexure A8. Along with Annexure A8, Annexure A9 covering letter of another Jamath dated 20/5/2013 was enclosed. It was
alleged in the complaint that, Shahitha was a highly suspicious character, was dishonest, had abused the husband and others in filthy language and
had taken away the gold and cash from Crl.M.C.No.5660/2016 & others 2 the house of the husband with the aid of goondas. Niyas sought
interference of Jamath into the issue and requested to solve it. It is alleged that, pursuant to the receipt of the above letter, Jamath discussed the
contents. Alleging that, this was given wide publicity, adversely affecting the reputation of Sahitha and that it was calculated to lower her reputation
among the public, she laid private complaint as CC No. 6363/2013 before the CJM, Kollam. She was examined along with two other witnesses in
her support. Cognizance was taken under section 500 IPC as ST No. 302/2014 and process was issued to Niyas and three others, who are his
father, brother and brother-in-law.
It was contended by the petitioner challenging the above proceedings that, it is an abuse of the process of law and is liable to be quashed. It was
contended that, the purport of the letter was only to request the jamath to intervene in the issue and to settle the dispute. He also requested for
saving the children. It was stated that, there was no defamatory matter involved and none of the comments made by the petitioner/husband were
intended to defame her. There was no publication of the letter and the Jamath had discussed the contents of the letter with its members only. It was
also not intended to cause harm to the defacto complainant. The facts mentioned in Annexure A8 letter were substantially true. It was also pointed
out that, in O.P.N0.1359/2009 of the Family Court, Kollam, all the disputes were settled by Annexure A-11. It was recorded on 16/1/2013 and
hence, no further grievance of the defacto complainant survive.
It is pertinent to note that authorship of the letter is not disputed. It is also not in dispute that on receipt of the letter, Jamath discussed the issue
and definitely all the members of the Jamath came to know about the contents of the letter. It is clear that certain adverse comments were made
against the defacto complainant in Annexure A8. Whether it is per se defamatory publication or whether it was intended to or calculated with the
intention of lowering the reputation, is a matter to be considered on the basis of the evidence to be let in. This Court, in exercise of this jurisdiction
under section 482 Cr.P.C.should not venture into an exercise as to whether the words mentioned in the letter amounts to defamation or not. It is
also to be considered whether the statutory defences are available to the petitioner. Essentially, this is a matter to be considered after a full-fledged
trial. Hence, I feel that there is no scope for interference at this stage.
In Crl.M.C.No.5660/2016, the accused in Crime No.55/2014 of West Police Station for offences punishable under under sections
354,385,294(b), 506(ii) read with section 34 IPC, now pending as CC No. 2192/2015 of the files of Judicial First Class Magistrate Court,
Kollam, has sought to quash the above criminal proceedings. The criminal proceedings were initiated by the mother of Shahitha. It was alleged
that, pursuant to the direction of a court in favour of the husband to exercise the visitorial right in relation to the children, on 4/1/2013 the defacto
complainant and her daughter had gone to the court and presented the children before the Sheristadar. The first accused took the elder child and
when the child refused to go with the first accused father, he dragged the child. The child started crying and when the defacto complainant
requested the first accused not to make the child cry, the first accused abused her and threatened her. In the meanwhile, the second and third
accused who are his parents intervened. The second accused caught hold of the arm of the defacto complainant with the intention of outraging the
modesty and abused her. Pursuant to the complaint lodged, crime was registered against the husband of the Shahitha and his parents. After
investigation, final report was laid for offences punishable under sections 354,385,294(b) ,506(ii) read with section 34 IPC. Offences under
sections 385 and 506 (ii) which were alleged in the complaint were found to be not sustainable.
The contention of the accused is that, it is absolutely false case and the facts are distortedly mentioned. It was submitted that, accused 2 and 3,
who are the aged parents of the husband of Shahitha, was at their home and they did not attend the court on that day. It was further stated that,
earlier, all the disputes with Shahitha was settled. Even if the entire allegations are believed, they do not prima facie constitute any offence as
alleged. It was also asserted that, accused had no intention to commit any offence.
It appears that, after investigation, the investigating agency has prima facie found materials and some substance in the allegation raised.
Prosecution is arraying five witnesses as eye witnesses. It is also seen that the parties were fighting against each other.
However,it appears that there was no reasonable possibility of aged parents of the first accused being present in the court for any reason. The
possibility of accused 2 and 3 being roped in with motive, cannot be ruled out. It is also pertinent to note that, allegations against accused 2 and 3
are not very serious. However, the statements of the various witnesses have not been produced to enable this Court to clearly ascertain whether
the allegations against accused 2 and 3 are prima facie sustainable. Hence, I feel that this matter should be considered by the trial court before
framing charges. If application for discharge is filed, the trial court should ascertain whether there are prima facie materials to prosecute accused 2
and 3. Having considered the fact that they are aged persons, the court below shall also consider exemption of their personal appearance before
the court below, If appropriate application is filed. I do not find any merit in the Crl.M.C.since these are all facts, which should be established in
evidence.
Crl.M.C.No.8352/2016 is filed by the husband Niyas challenging the prosecution in CC No.1309/2014 arising from Crime No.1509/2013 of
Chavara Police station. It is alleged by the defacto complainant Shahitha that, the accused had taken away the passport, Adar card, dress
materials and household articles. It was alleged by the wife that, to restrain her from leaving to Maldives, the husband, on some day in between
5/4/2013 and 16/4/2013 removed the passport, adhar card, dresses and utensils of the defacto complainant and her children. Pursuant to the
private complaint laid,crime was registered and after investigation, final report was filed. It was contended by the learned counsel for the petitioner
that, originally allegations were raised against two other accused who were omitted at the time of filing the final report. Contention of the learned
counsel for the petitioner is that, he is absolutely innocent of the allegations and even after the filing of the complaint, search was conducted and
nothing was recovered from his house. It was also stated that O.P.No.1359/2012 dated 7/11/2010 was filed before the Family Court, Kollam for
return of the gold ornaments. It was settled and by Annexure A8 in Crl.M.C.No.8352/2016, it was admitted that all the gold ornaments were with
the wife. It was, hence, contended that this covers the entire allegations of the defacto complainant. It was also found that even though several
allegations were raised against other persons, investigating agency did not find any truth in that. This affects the credibility of the entire case of the
defacto complainant , it was contended.
It is pertinent to note that the parties are at logger heads. After investigation, investigating agency also found some prima facie materials.
Allegations are essentially based on factual details. This is a matter to be established at the time of trial. Having considered the above facts, I find
no legal ground to interfere in the final report laid and there does not appear to be no merit in this Crl.M.C.
W.P.(C) No.6306/2016 is filed by the husband alleging that the wife had filed innumerable frivolous complaints against him. It was contended
that, all the cases were baseless, frivolous and also the misuse of the jurisdiction of the court. Hence, the writ petition was filed seeking a relief to
declare that respondents 4 to 6 who are Shahitha and her parents are habitually instituting frivolous litigations against the husband and his parents
without any reasonable ground even after the execution of Ext.P1 compromise and, are intended to harass them.
The respondents appeared and contested the proceedings. Evidently, there are several litigations between the parties. All of the above cases
arose from the matrimonial discord, which is not in dispute. The wife and the parents seems to have taken recourse the judicial proceedings with
specific allegation. In certain cases , even though private complaints are filed, the police after investigation found prima facie materials and the
accused were chargesheeted. Having considered this, I feel that the writ petition is without any merits and no relief can be granted as sought for.
Definitely, the petitioner herein is entitled to work out his remedies before the concerned courts.
Having considered the above facts, I am satisfied that there is absolutely no merit in Crl.M.C.Nos. 7139/2016, 8352/2016 and W.P.(C) No.
6306/2016. They are dismissed reserving the right of the petitioners therein to raise all their contentions before the court below seeking discharge
appropriately.
In Crl.M.C.No.5660/2016, the court below shall specifically consider the question whether materials on record establishes any case against the
accused 2 and 3 therein and shall pass appropriate orders. The petitioners in the Crl.M.C will be entitled to raise all their objections before the
court below and to seek appropriate reliefs. With this observations, the Crl.M.C.is disposed of.