In cases related to matrimonial disputes, a preliminary inquiry must be conducted before the FIR is filed : HC

The High Court of Jammu and Kashmir recently comprising of a bench of Justice Vinod Chatterji Koul observed that in Matrimonial or family disputes, a preliminary enquiry must be conducted before the FIR is filed to determine whether a cognizable offence has been committed while safeguarding the rights of the complainant and accused. (Syed Rafie ul Akmal Andrabi v Irshad Ahmad Kamili & others).

Facts of the case

The petitioner’s nephew was living and working in Dubai long before his marriage to respondent no.2 on the 16th of July 2016. Post marriage, respondent no.2 also joined the petitioner’s nephew in Dubai but she soon returned to Srinagar where she gave birth to their son on June 10th 2017 and then allegedly returned to Dubai on 5th May 2018.

The FIR filed by the respondents claimed that the petitioner’s nephew had deserted his wife since April 2018, whereas the petitioners contend that they were living together in Dubai less than a month after this date.

According to the petitioner neither he nor his nephew was aware of any kind of grievance that the respondents had until 3rd February 2020, when respondent no. 1 who is respondent no. 2’s father began to threaten the petitioner’s nephew and his relatives.

The present petition was filed by Irshad Kamili for the quashing of FIR registered for the offence of cruelty towards a woman and criminal intimidation which are punishable under Section 498A and 506 of the Indian Penal Code.

Contention of the Parties

The counsel for petitioner stated that impugned FIR has been lodged not by the lady, who has been projected to be victim of cruelty but by her father, respondent no.1 herein, which is not permissible in law as the person who has been subjected to cruelty can only seek registration of an FIR for being subjected to cruelty and any other person, who has not been eye witness to occurrence of such offence, has no locus to seek registration of an FIR as the same would be based on hearsay and not the knowledge of actual occurrence. He further contended that impugned FIR has been lodged after inordinate and unexplained delay.

The counsel invited the attention of the Court to provisions of Section 498A of the Indian Penal Code, to contend, and rightly so, that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty and such willful conduct, which is likely to cause grave injury or danger to life, limb or health, whether mental or physical, of a woman would also amount to cruelty. According to him cruelty would mean harassment of a 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, would also constitute cruelty for the purpose of Section 498A IPC. It was also averred that every harassment does not amount to cruelty within the meaning of Section 498A IPC.

After saying that, he correctly insisted that impugned FIR does not specify a single incident of harassment on the part of petitioner to attract clause (a) or clause (b) to Explanation of Section 498A IPC, nor there has been any mental torture or physical abuse, inasmuch as FIR is silent to that extent.

Courts Observation and Judgment

The bench taking note of the submissions of the counsel for the petitioner noted, “There is a substance in submissions of learned counsel for petitioner that contents of FIR do not specify any incident of harassment on the part of petitioner. FIR, on its bare perusal, does not relate or connect petitioner with the allegations made mention of therein. In the backdrop of facts and circumstances of the case as also case set up by petitioner and submissions made by learned counsel, it would be appropriate to consider the settled principles of law laid down by the Supreme Court in the case of Lalita Kumari (201) 2 SCC 1.”

The bench quashing the FIR remarked, “From the above quoted passage of the judgement passed in Lalita Kumari’s case, it is clear that preliminary inquiry is to be conducted, amongst others, in the cases relating to matrimonial or family disputes. When case in hand is looked into within the parameters of law laid down in Lalita Kumari’s case, it becomes self-evident that preliminary inquiry has not been conducted as was required to be conducted and petitioner has been unnecessarily arraigned as accused in impugned FIR. To this extent impugned FIR is liable to be quashed.”

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