HC orders on domestic violence set aside

The Supreme Court on Monday set aside two orders passed by the Karnataka High Court, first allowing a Bengaluru man to file a complaint against his wife under the Protection of Women from Domestic Violence Act, and then subsequently withdrawing it.

“The High Court should not have first allowed such a plea and then withdrawn it under Section 362 of the Criminal Procedure Code which can be used for a clerical or an arthematic mistake,” a bench of Justices Kurian Joseph and Sanjay Kishan Kaul said.

The court agreed to the submission by advocate Gopal Sankaranarayanan, acting as amicus curiae, who said the high court could not have recalled its earlier order.

Mohammed Zakir had relied upon an apex court’s ruling in ‘Hiral P Harsora vs Kusum Narottamdas Harsora’, (2016) that stated any person, whether male or female, aggrieved and alleging violation of the provisions of the Act could invoke its provisions. He sought action against his wife, her brothers and others on his complaint that on November 17, 2013, they attacked him and decamped with jewellery and cash worth Rs 20 lakh, leaving him penniless. “All their acts were caught in CCTV,” he claimed.

The high court had on April 18, 2017 ordered that “the petitioner’s complaint could not have been trashed on the ground that the Domestic Violence Act does not contemplate provision for men and it could only be in respect of women.”

However, within days on April 28, 2017, the judge on his last working date withdrew the order, forcing Zakir to approach the top court.

On Monday, the top court quashed both the orders passed by the high court, and asked Zakir to pursue his appeal pending before the sessions court.

Advocate Aristotle Joseph, representing the wife, sought time to file her response, but the court disposed of the matter.

In his plea, Zakir contended that the order passed by the HC on April 28, 2017 was “patently erroneous” in view of the provision of Section 362 of the Criminal Procedure Code.