Criminal Petition under Domestic Violence Act 2013

 PLJ 2022 Cr.C. (Note) 154

[Sindh High Court, Karachi]

Present: Mrs. Rashida Asad, J.

MUHAMMAD MUNIR--Applicant

versus

ANUM THANVI and 3 others--Respondents

Crl. Misc. Appln. No. 51 of 2020, decided on 24.4.2020.

Domestic violence--

----'Women and children'--Prima facie, it was enacted to provide protection to weakest class of society i.e. 'women and children', as normally, we are presumptively living a 'male dominant society' where aggrieved even does not dare to tell about 'domestic violence', because of threats of being abandoned, killed, hurt, or removed from household--This appears sole reason that legislature enacted Domestic Violence (Prevention and Protection) Act, 2013 in order to provide protection to them.                                              [Para 4] A

Domestic violence (Prevention and Protection) Act, 2013 (XX of 2013)--

----Ss. 7(3), 2(1)(a) & 13--Now I would like to discuss relevant Sections of Act 2013--Section 2(l)(a) of Act, prima facie provides definition of 'aggrieved person', which includes a woman, child or any vulnerable person in a domestic relationship with respondent and who is alleged to be victim of domestic violence, sub-section (1)(d) provides definition of 'Court', which means Judicial Magistrate of First Class--However, Section 7 empowers an aggrieved person or his authorized person or informer to file petition in respect of offence of domestic violence and Section 13 deals with grant of temporary custody of an aggrieved person--Procedure for issuance of notice with or without interim order is provided u/S. 7(3) of Act.

                                                                                             [Para 5] B

Domestic violence (Prevention and Protection) Act, 2013 (XX of 2013)--

----S. 7--Criminal petition--Application of--Production of minor--Very purpose for enactment of The Act, 2013 is to provide protection
to women, children and any vulnerable person from domestic violence--In present case, Respondent No. 1 has leveled specific allegations of domestic abuse in her petition filed under Act 2013 against applicant, which provides a procedure to deal with case--It appears that Magistrate by taking cognizance of matter only issued a notice to applicant with direction to produce child, such order is challenged by applicant--Admittedly applicant has every opportunity to defend and prove his innocence before Magistrate, thus, challenging of said order is nothing but to frustrate proceedings at this very initial stage and therefore, applicant cannot be allowed to defeat very purpose of Act for which it was enacted--Application dismissed.        [Para 6] C

Mr. Imdad Ali Sahito Advocate for Applicant.

Mr. Raj Ali Wahid Kunwar Advocate for Respondent No. 1.

Syed Meeran Shah Bukhari Additional Prosecutor General Sindh for State.

Date of hearing: 11.3.2020.

Order

Through this Cr. Misc. Application, the applicant has assailed an order dated 28.01.2020, whereby the learned XI-Additional Sessions Judge, Karachi South dismissed the revision application filed by the applicant against the orders dated 18.01.2020 and 23.01.2020 passed by learned Judicial Magistrate-VII, Karachi South, in criminal petition, filed by the Respondent No. 1 under Section 7 of the Domestic Violence (Prevent and Protection) Act, 2013 (hereinafter referred to as the Act).

2. The brief facts for disposal of the instant application are that Respondent No. 1/ mother of minor Kian Munir filed an application under Section 7 of the Act, wherein the learned Magistrate issued notice to the applicant (father of minor) for production of minor boy Kian Munir before the Court. The applicant challenged the said order on the ground of jurisdiction, but the same was dismissed vide order dated 23.01.2020, therefore the said orders were assailed by the applicant through revision before the XI-Additional Sessions Judge, Karachi South, which met the same fate, hence this Criminal Misc. Application.

3. I have heard learned counsel for the parties and have gone through the record minutely. The preamble of the Act 2013 is sufficient to describe the importance and vitality thereof which reads as under:

"WHEREAS, it is expedient to institutionalize measures which prevent and protect women, children and any vulnerable person from domestic violence and for matters connected therewith or incidental thereto."

4. Prima facie, it was enacted to provide protection to the weakest class of society i.e. 'women and children', as normally, we are presumptively living a 'male dominant society' where aggrieved even does not dare to tell about 'domestic violence', because of threats of being abandoned, killed, hurt, or removed from household. This appears the sole reason that the legislature enacted the Domestic Violence (Prevention and Protection) Act, 2013 in order to provide protection to them.

5. Now I would like to discuss the relevant Sections of the Act 2013. Section 2(l)(a) of the Act, prima facie provides the definition of 'aggrieved person', which includes a woman, child or any vulnerable person in a domestic relationship with the respondent and who is alleged to be victim of the domestic violence, sub-section (1)(d) provides the definition of 'Court', which means Judicial Magistrate of First Class. However, Section 7 empowers an aggrieved person or his authorized person or informer to file petition in respect of offence of domestic violence and Section 13 deals with grant of temporary custody of an aggrieved person. Procedure for issuance of notice with or without interim order is provided under Section 7(3) of. the Act.

6. The learned counsel for the applicant has contended that learned trial Court wrongly took cognizance of the case as proper course for parties to have custody of the child is provided under the Guardian and Wards Act, which procedure is overridden by filing the criminal petition before the learned Magistrate. It is observed that very purpose for enactment of The Act, 2013 is to provide protection to women, children and any vulnerable person from domestic violence. In the present case, Respondent No. 1 has leveled specific allegations of domestic abuse in her petition filed under the Act 2013 against the applicant, which provides a procedure to deal with the case. It appears that the learned Magistrate by taking cognizance of the matter only issued a notice to the applicant with direction to produce the child, such order is challenged by the applicant. Admittedly the applicant has every opportunity to defend and prove his innocence before the learned Magistrate, thus, challenging of the said order is nothing but to frustrate the proceedings at this very initial stage and therefore, the applicant cannot be allowed to defeat the very purpose of the Act for which it was enacted.

7. For the foregoing reasons, I see no reason to interfere in the impugned order, hence the instant criminal Misc. Application is dismissed.

(A.A.K.)          Application dismissed

Suit for Administration, Partition and Permanent Injunction

 PLJ 2023 Karachi 124 (DB)

Present: Irfan Saadat Khan, and Zulfiqar Ahmed Khan, JJ.

SEHRISH HANIF and others --Appellants

versus

MUHAMMAD AZIZ and others--Respondents

HCA No. 58 of 2023, decided on 21.8.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.XX R. 13--Punjab Partition of Immovable Property Act, 2012,
S. 4--Specific Relief Act, (I of 1877), S. 54--Suit for administration, partition and permanent injunction--Legal heirs--Partition of property--Appointment of Nazir--Private sale--Public auction—Raising of objections--Valuation of property--Potential buyer--Sale offer--Opportunity to bring prospective buyer--Failed to--Since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition subject property, which comprises of 235 Sq.Yds only--It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than appellants, have already withdrawn amounts of their respective share from Nazir--It is also an admitted fact that several opportunities were provided by Single Judge, while hearing matter to appellants on their request to bring any prospective buyer interested in purchasing property for an amount Rs. 03 crores or to match price themselves but appellants have utterly failed to do so--Neither any amount was deposited by appellants with Nazir as required under rules nor have matched sale price offered by Respondent No. 1 or have brought any prospective buyer to purchase property, price offered by Respondent No. 1 was accepted and confirmed--Order of Single Judge, impugned in instant HCA does not warrant any interference and is found to be in accordance with law--The instant HCA is found to be bereft of any merit--Petition dismissed.     [Pp. 128 & 129] A, B & C

Mr. Fateh Muhammad, for Appellants.

Kh. Saiful Islam, Advocate Respondent No. 1.

Nemo for Respondents No. 2 to 9.

Date of hearing: 15.8.2023.

Judgment

Irfan Saadat Khan, J.--This High Court Appeal (HCA) has been filed impugning the order dated 15.02.2023 passed by the learned Single Judge in Suit No. 1080/2014.

2. Briefly stated the facts of the case are that the Respondent No. 1 filed a suit for administration, partition and permanent injunction in respect of the property bearing House No. A-462, Block-8, Karachi Administration Employee’s Cooperative Housing Society, measuring 235 sq.yds. The said property was in the name of Mst. Ghulam Fatima w/o Muhammad Suleman, who had expired on 29.01.1993. Mst. Ghulam Fatima left the present Respondent No. 1 and Muhammad Hanif, her two sons as her legal heirs at the time of her death. The present Appellants and the Respondents No. 2 to 9 are the legal heirs of Muhammad Hanif (son of late Ghulam Fatima) who also has expired on 27.12.2013. Due to difference amongst the present Respondent No. 1 and the legal heirs of Muhammad Hanif, the above referred suit Bearing No. 1080/2014, was filed. The matter proceeded before the learned Single Judge who vide order dated 22.12.2016 appointed Nazir as Administrator of the property and was also directed to make an attempt for private sale amongst the parties and if not, then sell out the same through public auction. Objections were raised time and again by the parties with regard to the valuation of the property. The Nazir in his report dated 16.09.2021 pointed out that the Respondent No. 1 has agreed to purchase the property at Rs. 3 crore however the appellants have objected to the same. The appellants before the learned Single Judge submitted that the property is worth Rs. 4,25,00,000/-. The learned Single Judge then vide order dated 11.08.2022 directed the Appellant No. 1, (who was Defendant No. 12 in the suit) to prepare a pay-order of Rs. 4,25,00,000/- in the name of the Nazir of this Court to show her keenness to purchase the property and to bring the same on the next date of hearing. Thereafter a number of opportunities were given to the appellants to either deposit the amount of Rs. 4,25,00,000/- or to bring some potential buyer, if they were of the view that the property was worth
Rs. 4,25,00,000/- or more, so that the suit with regard to partition could be disposed of and proper and respective share of each legal heir, in accordance with law and shariah, may be distributed accordingly. It is an admitted position that inspite of giving several chances, the present appellants have failed to either abide by the instructions of the Court or to bring any prospective buyer of the suit property in respect of the amount, which according to them would fetch if sold in open market. It is under these circumstances that the learned Single Judge vide impugned order confirmed the sale offer as given by the Respondent No. 1 and dismissed all the listed and pending applications, as having become infructuous, by confirming the sale at Rs. 3 crore offered by the Respondent No. 1.

3. Mr. Fateh Muhammad, attorney of all the Appellants, has appeared and stated that as per Nazir’s report dated 19.5.2022 the property was considered to be between Rs. 3,75,00,000/- to
Rs. 4,25,00,000/-, hence confirmation of the sale at Rs. 3 crore by the learned Single Judge was not in accordance with law. He stated that the order may be set aside and the Nazir may be directed to cancel the sale certificate as the value of the property is more than Rs. 3 crore, which was incorrectly accepted by the learned Single Judge and some time may be given to the appellants to bring some prospective buyer for purchase of the property at a higher figure then that of Rs. 3 crore.

4. He next stated that serious monetary prejudice would be caused to the appellants, if respective share of each legal heirs is worked out at Rs. 3 crore. He stated that no doubt the appellants have failed to bring any prospective buyer for above Rs. 3 crore and have not complied with the order dated 11.8.2022, passed by the learned Single Judge, but if some time is granted to them they are willing to bring some prospective buyer of the property, which according to him is worth approximately Rs. 5 crore. He therefore, request that the order of the learned Single Judge may be set aside and some time may be given to the appellants in respect of the prayer made by them in the interest of justice.

5. Khawaja Saif-ul-Islam, Advocate has appeared on behalf of the Respondent No. 1 and vehemently opposed the present appeal. He stated that several opportunities were provided to the appellants to bring a purchaser, who is ready and willing to purchase the property above Rs. 3 crore, but the appellants have miserably failed to do so. He stated that though it has been averred time and again by the appellants that the property is more than Rs. 3 crore and at one stage has shown their willingness either to purchase the same or to match the price but have failed to do so despite the fact that a number of opportunities were given to them by the learned Single Judge, which clearly proves that the appellants were only interested in delaying the process and to linger on the same unnecessarily. Whereas, according to him, the Respondent No. 1 has duly deposited Rs. 83,00,000/- with the Nazir, which has been acknowledged by the Nazir in his report dated 22.10.2022 and a substantial amount deposited by the Respondent
No. 1 has already been distributed among a number of legal heirs of late Muhammad Hanif, who are either brothers or sisters of the present appellants.

6. He stated that from the record, it would be seen that despite given several chances to the appellants they have not deposited any amount with the Nazir in respect of the value, which according to them is the true market price of the said property. He stated that it was under these circumstances that the learned Single Judge quite rightly passed the order by confirming the sale in favour of the Respondent No. 1 on the amount offered by him. He therefore, finally prayed that in view of the above facts the instant HCA, alongwith the listed applications, may be dismissed by imposing cost upon the present appellants.

7. Nobody has appeared on behalf of the Respondents No. 2
to 9.

8. We have heard the Attorney of the appellants as well as the learned counsel for Respondent No. 1 at some length and have also perused the record.

9. Perusal of the record reveals that since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition the subject property, which comprises of 235 Sq.Yds only. When the matter filed by the present Respondent No. 1 proceeded before the learned Single Judge in respect of partition it was agreed between all the contesting parties before the Court that let the property be sold out to a prospective buyer, be that any one of the parties, and to distribute the shares out of the sale proceeds of the property amongst all the legal heirs as per sharia. Though a compromise application was also filed by the parties with the understanding that the property would be sold out and thereafter respective shares would be distributed amongst the legal heirs; however it is an admitted position that since the rates, which were as per the legal heirs would fetch in the open market if the property is sold, could not be obtained in spite of several attempts, the plaintiff as well as the defendants in the suit were given the chance either to purchase the property by themselves, or to bring some prospective buyer in this regard. Record also reveals that the Nazir in his report has also opined that the value of the property ranges between the Rs. 3,75,00,000/- to Rs. 4,25,00,000/-. It is also submitted in the report that despite making hectic efforts and giving advertisement in the newspapers no one approached the Nazir of this Court to show interest in purchasing the said property. Under these circumstances the Respondent No. 1 offered to purchase the property at Rupees 03 crores and to show his bona fides substantial amount was also deposited by him with the Nazir.

10. It may be noted that the present appellants have miserably failed to either purchase the property by themselves or to bring any prospective buyer who could purchase the property for an amount above Rs. 03 crores offered by the Respondent No. 1. It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than the appellants, have already withdrawn the amounts of their respective share from the Nazir. It is also an admitted fact that several opportunities were provided by the learned Single Judge, while hearing the matter to the appellants on their request to bring any prospective buyer interested in purchasing the property for an amount above Rs. 03 crores or to match the price themselves but the appellants have utterly failed to do so.

11. It is in this background that the learned Single Judge came to the conclusion that since neither any amount was deposited by the appellants with the Nazir as required under the rules nor have matched the sale price offered by the Respondent No. 1 or have brought any prospective buyer to purchase the property, the price offered by the Respondent No. 1 was accepted and confirmed. Hence under these facts and circumstances, we are of the view that the order of the learned Single Judge, impugned in the instant HCA does not warrant any interference and is found to be in accordance with law. The instant HCA is found to be bereft of any merit which stands dismissed along with the listed and pending application. No order as to cost.

(J.K.)   Petition dismissed

Judgment on Domestic Violence (Prevention and Protection) Act 2013

 PLJ 2022 Cr.C. (Note) 154

[Sindh High Court, Karachi]

Present: Mrs. Rashida Asad, J.

MUHAMMAD MUNIR--Applicant

versus

ANUM THANVI and 3 others--Respondents

Crl. Misc. Appln. No. 51 of 2020, decided on 24.4.2020.

Domestic violence--

----'Women and children'--Prima facie, it was enacted to provide protection to weakest class of society i.e. 'women and children', as normally, we are presumptively living a 'male dominant society' where aggrieved even does not dare to tell about 'domestic violence', because of threats of being abandoned, killed, hurt, or removed from household--This appears sole reason that legislature enacted Domestic Violence (Prevention and Protection) Act, 2013 in order to provide protection to them.                                              [Para 4] A

Domestic violence (Prevention and Protection) Act, 2013 (XX of 2013)--

----Ss. 7(3), 2(1)(a) & 13--Now I would like to discuss relevant Sections of Act 2013--Section 2(l)(a) of Act, prima facie provides definition of 'aggrieved person', which includes a woman, child or any vulnerable person in a domestic relationship with respondent and who is alleged to be victim of domestic violence, sub-section (1)(d) provides definition of 'Court', which means Judicial Magistrate of First Class--However, Section 7 empowers an aggrieved person or his authorized person or informer to file petition in respect of offence of domestic violence and Section 13 deals with grant of temporary custody of an aggrieved person--Procedure for issuance of notice with or without interim order is provided u/S. 7(3) of Act.

                                                                                             [Para 5] B

Domestic violence (Prevention and Protection) Act, 2013 (XX of 2013)--

----S. 7--Criminal petition--Application of--Production of minor--Very purpose for enactment of The Act, 2013 is to provide protection
to women, children and any vulnerable person from domestic violence--In present case, Respondent No. 1 has leveled specific allegations of domestic abuse in her petition filed under Act 2013 against applicant, which provides a procedure to deal with case--It appears that Magistrate by taking cognizance of matter only issued a notice to applicant with direction to produce child, such order is challenged by applicant--Admittedly applicant has every opportunity to defend and prove his innocence before Magistrate, thus, challenging of said order is nothing but to frustrate proceedings at this very initial stage and therefore, applicant cannot be allowed to defeat very purpose of Act for which it was enacted--Application dismissed.        [Para 6] C

Mr. Imdad Ali Sahito Advocate for Applicant.

Mr. Raj Ali Wahid Kunwar Advocate for Respondent No. 1.

Syed Meeran Shah Bukhari Additional Prosecutor General Sindh for State.

Date of hearing: 11.3.2020.

Order

Through this Cr. Misc. Application, the applicant has assailed an order dated 28.01.2020, whereby the learned XI-Additional Sessions Judge, Karachi South dismissed the revision application filed by the applicant against the orders dated 18.01.2020 and 23.01.2020 passed by learned Judicial Magistrate-VII, Karachi South, in criminal petition, filed by the Respondent No. 1 under Section 7 of the Domestic Violence (Prevent and Protection) Act, 2013 (hereinafter referred to as the Act).

2. The brief facts for disposal of the instant application are that Respondent No. 1/ mother of minor Kian Munir filed an application under Section 7 of the Act, wherein the learned Magistrate issued notice to the applicant (father of minor) for production of minor boy Kian Munir before the Court. The applicant challenged the said order on the ground of jurisdiction, but the same was dismissed vide order dated 23.01.2020, therefore the said orders were assailed by the applicant through revision before the XI-Additional Sessions Judge, Karachi South, which met the same fate, hence this Criminal Misc. Application.

3. I have heard learned counsel for the parties and have gone through the record minutely. The preamble of the Act 2013 is sufficient to describe the importance and vitality thereof which reads as under:

"WHEREAS, it is expedient to institutionalize measures which prevent and protect women, children and any vulnerable person from domestic violence and for matters connected therewith or incidental thereto."

4. Prima facie, it was enacted to provide protection to the weakest class of society i.e. 'women and children', as normally, we are presumptively living a 'male dominant society' where aggrieved even does not dare to tell about 'domestic violence', because of threats of being abandoned, killed, hurt, or removed from household. This appears the sole reason that the legislature enacted the Domestic Violence (Prevention and Protection) Act, 2013 in order to provide protection to them.

5. Now I would like to discuss the relevant Sections of the Act 2013. Section 2(l)(a) of the Act, prima facie provides the definition of 'aggrieved person', which includes a woman, child or any vulnerable person in a domestic relationship with the respondent and who is alleged to be victim of the domestic violence, sub-section (1)(d) provides the definition of 'Court', which means Judicial Magistrate of First Class. However, Section 7 empowers an aggrieved person or his authorized person or informer to file petition in respect of offence of domestic violence and Section 13 deals with grant of temporary custody of an aggrieved person. Procedure for issuance of notice with or without interim order is provided under Section 7(3) of. the Act.

6. The learned counsel for the applicant has contended that learned trial Court wrongly took cognizance of the case as proper course for parties to have custody of the child is provided under the Guardian and Wards Act, which procedure is overridden by filing the criminal petition before the learned Magistrate. It is observed that very purpose for enactment of The Act, 2013 is to provide protection to women, children and any vulnerable person from domestic violence. In the present case, Respondent No. 1 has leveled specific allegations of domestic abuse in her petition filed under the Act 2013 against the applicant, which provides a procedure to deal with the case. It appears that the learned Magistrate by taking cognizance of the matter only issued a notice to the applicant with direction to produce the child, such order is challenged by the applicant. Admittedly the applicant has every opportunity to defend and prove his innocence before the learned Magistrate, thus, challenging of the said order is nothing but to frustrate the proceedings at this very initial stage and therefore, the applicant cannot be allowed to defeat the very purpose of the Act for which it was enacted.

7. For the foregoing reasons, I see no reason to interfere in the impugned order, hence the instant criminal Misc. Application is dismissed.

(A.A.K.)          Application dismissed

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