Imputing sections without substance: A form of abuse of process of law

X v. Y

Criminal Petition 9992/2022

Before High Court of Karnataka at Bengaluru

Criminal petition of the Petitioner-Husband was allowed and FIR lodged by wife was quashed by Hon’ble Mr. Justice M Nagaprasanna J on 20.12.2023.

?Facts:

1.????? The petitioner-husband and the complainant-wife got married and their relationship turns sour.

2.????? On turning sour, Divorce proceedings were initiated before Family Court at Delhi.

3.????? The marriage was dissolved by mutual consent and a decree of divorce was granted on mutual consent under Section 13b(2) of the Hindu Marriage Act, 1955.

4.????? The term of compromise for divorce by mutual consent was that the parties would agree with the right of the husband to visit the daughter on every Saturday from 3 p.m. to 5 p.m. either at the residence of the wife or at a neutral place like the activity zone, or mall inter alia.

5.????? Based upon the said compromise the two part-ways on 21.09.2020 and the custody of the daughter was with the wife.

6.????? The petitioner alleges that the wife had intermittently breached the undertaking of visitation as available to the petitioner in terms of the compromise.

Incident blown out of the proportion

1.????? On 19.08.2022 respondent wife communicated through mail to the husband petitioner to reschedule his visit for next Saturday i.e.27.08.2022 instead of 20.08.2022.

2.????? Husband reverted as ‘noted’.

3.????? But, despite rescheduling, the petitioner husband entered the wife’s building on 20.08.2022 and despite being denied permission by wife three times on the mygate app, he still tried to somehow meet her daughter.

4.????? As the husband managed to enter the building and the house, led wife to initiate criminal law in motion.

5.????? Incident took place on 20.08.2022 but FIR was registered u/s 504/506/448 IPC on 07.09.2022.

6.????? The petitioner approached the High Court under section 482 Cr P C against the aforesaid crime.

Observation of the Court

1.????? The condition of divorce by mutual consent was that the custody of the daughter would be with the wife & the husband will have visitation rights every Saturday from 3 p.m. to 5 p.m. either at the residence of the wife or at a neutral place like the activity zone or mall.

2.????? The husband did have valid visitation right on 20.08.2022 by an order of the Competent Court.

3.????? The decree of divorce was drawn up on the basis of the aforesaid compromise.

4.????? The petitioner had visitation right on every Saturday.

5.????? Communication of the wife took away the visitation right of the petitioner-husband.

6.????? The anxiety of the petitioner was to meet his daughter and if he would lose the time of visitation on this Saturday, he would not be able to meet her that day& have to wait for a week, as the visitation was only for one day in a week.

7.????? When security at gate chased him, he went into the garbage van in the building, where garbage was placed and with the garbage collection he went to the house of the wife & tried to meet his daughter and come back.

8.????? Entering the house by the husband has triggered the entire incident & of FIR against the husband that too for offences punishable under Sections 448, 504 and 506 of the IPC.

9.????? It is not understandable from where the ingredients of the offence for criminal trespass can spring in the case at hand.

10.?? Anxiety of the father to meet the daughter is dubbed by the wife to be a criminal trespass into the house with a criminal intent to intimidate the daughter.

11.?? Criminal intimidation requires threatening another person by the accused with an injury to his person, reputation or property.

12.?? Where from the husband has criminally intimated the daughter is again not understandable.

13.?? If any further investigation is permitted to continue, it would become, on the face of it, an abuse of the process of law and misuse of the provisions of law by the wife against the husband to settle her scores.

Order

To avoid patent injustice and ultimate miscarriage of justice, I deem it appropriate to exercise my jurisdiction under Section 482 of the CrPC and obliterate the proceedings against the petitioner.

Seema Bhatnagar