Karnataka High Court: While considering the instant case wherein a father sought quashment of FIR registered against him by his wife for offences punishable under Sections 504, 506 and 448 of Penal Code, 1860, as he had tried to meet his daughter by entering into a garbage van; the Bench of M. Nagaprasanna, J.*, exercising the jurisdiction under Section 482, CrPC, quashed the impugned FIR holding that the anxiety of the father to meet the daughter was dubbed by the wife to be a criminal trespass into the house with a criminal intent to intimidate the daughter. the Court further found that all offences against the father had been loosely laid, hence if any further investigation is permitted to continue, it would become, prima facie, an abuse of the process of law and misuse of the provisions of law by the wife against the husband to settle her scores.
Background: The husband (petitioner) and wife in the instant case had their marriage dissolved under Section 13-B(2) of the Hindu Marriage Act, 1955 by the competent Court at Delhi. 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. Based upon the afore said compromise the two parted ways on 21-09-2020 and the custody of the daughter being with the wife.
On 19-08-2022, the wife communicated a mail to the husband rescheduling the visitation to 27-08-2022. The petitioner confirmed of having received the communication. However, despite rescheduling, the petitioner entered the wife’s building on 20-08-2022. He was denied permission to enter the wife’s house on Mygate App 3 times. Then the husband got into the apartment contending that he wants to park his car and accordingly escapes the security. When the security chased him, the husband got into the garbage van at the tailgate where the garbage was placed. He reached the house of the wife along with the people who collect garbage, and tried to meet the daughter and comes back.
During this incident the wife was not at home and hence the father’s attempts to meet the daughter the daughter forcefully led the wife to register a complaint before the jurisdictional police under the abovementioned penal provisions.
Counsel appearing for the petitioner vehemently contended that the petitioner had visitation rights. Visitation was set to happen on 20-08-2022. Re-scheduling was done by the wife. The husband had noted the rescheduling but did not accede to it. In the regular visitation hours, the father wanted to visit the daughter, but he was not let in. Therefore, he had to forcibly get in, not into the house but to the apartment complex and interact with the daughter.
Per contra, the allegation from the respondents’ side was that the daughter went into trauma as the father suddenly barged into the house therefore, the act of the husband amounted to criminal trespass under Section 448 of Penal Code, 1860. Since he intimidated the daughter, it amounts to criminal intimidation under Sections 504 and 506 of Penal Code, 1860.
Court’s Assessment: Perusing the facts and contentions of the case, the Court noted that the husband did have valid visitation rights. The parting of ways happened on 21-09-2020 and the decree of divorce was drawn up on the basis of the aforesaid compromise. Visitation continued when the family shifted to Bangalore, both the husband and wife, at different intervals.
The Court noted that the visitation was to happen on 20-08-2022 on a Saturday. On 19-08-2022 the wife communicates a mail rescheduling the visitation to 27-08-2022, the next Saturday. Therefore, the wife took away the right of visitation on 20-08-2022. The Court noted that the anxiety of the petitioner was to meet his daughter and if the husband had lost the visitation on Saturday, the next visitation would be next week’s Saturday only.
It was further pointed out that the complaint was registered after about 15 days of the incident and the Police straight away registered the crime.
Perusing the provisions under which the crime had been registered against the petitioner, especially Section 448, the Court pointed that it is not understandable from where the ingredients of the offence of Criminal Trespass can spring in the instant case as Section 448 states that “Whoever enters into or upon property in the possession of another with an intention to commit an offence is said to be committing criminal trespass”. The husband had valid visitation right on the day that he wanted to visit the daughter. Therefore, he had a right in law by an order of the competent Court, to visit the daughter.
Amid the anxiety caused by the rescheduling of visitation date, the petitioner entered into a garbage van and meets the daughter. “This is the anxiety of the father to meet the daughter”.
The Court further stated that it was no understandable as to where the husband has criminally intimated the daughter. Section 503 criminal intimidation requires threatening another person by the accused with an injury to his person, reputation or property.
With the afore-stated assessment, the Court in order to avoid patent injustice and ultimate miscarriage of justice, deemed it appropriate to obliterate the proceedings against the petitioner-father.
[X v. State, 2023 SCC OnLine Kar 96, decided on 20-12-2023]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case :
For Petitioner- Pallava R., Advocate
Fr respondents- K.P. Yashodha, HCGP for R1 and Rosa Paramel, Advocate for R2
Buy Penal Code, 1860 HERE
