2010 ALL MR (Cri) 488
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.S. SHINDE, J.

Manoj Bhimrao Wankhede & Ors.Vs.State Of Maharashtra & Anr.

Criminal Application No.3833 of 2007

1st December, 2009

Petitioner Counsel: Mr. J. Y. GHURDE
Respondent Counsel: Mr. V. A. THAKARE,Mr. S. R. DESHPANDE

Criminal P.C. (1973), S.482 - Penal Code (1860), S.482A - Inherent powers - Quashing of charge-sheet - Prayer - Offence u/s.498-A alleged against husband and other in-laws - Sister-in-law and mother-in-law residing separately in their respective houses - No specific allegation against them - Proceeding against them would be futile - Prosecution having enough materials to proceed against husband - He cannot be relieved - Contention that proceeding u/s.498-A cannot be continued as the marriage between accused and complainant is nullity, not tenable - S.498-A covers every husband committing cruelty whatever be legitimacy of marriage - Even otherwise, legitimacy of marriage being question of fact cannot be gone into by Court u/s.482. AIR 2004 SC 1418 - Rel. on. (Paras 11 to 15)

Cases Cited:
Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, AIR 1988 SC 644 [Para 8]
Ramnarayan Vs. State of M.P., 1998(3) Crimes 147 [Para 8]
Raghothaman Vs. State of Karnataka, 2004 Cri.L.J. 1974 [Para 8]
Reema Aggarawal Vs. Anupan, AIR 2004 SC 1418 [Para 12]


JUDGMENT

JUDGMENT :- This application is filed with prayer to quash and set aside Criminal Proceeding initiated by non-applicant no.1 against the applicant for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code vide Charge Sheet No. 186/2007 dated 10.09.2007 registered as Criminal Case No.892/2007 on the file of Judicial Magistrate First Class Court No.1, Amravati. The facts of the case as disclosed in the application are as under.

2. Applicant nos.1 and 2 are brother and sister and applicant no.3 is their mother. Marriage of applicant no.1 and non applicant no.2 was registered on 20.01.2005 at the office of Sub-Registrar, District Amravati. Thereafter, both cohabited at Yavatmal where applicant no.1 was serving in Agriculture Department as Supervisor till he joined at Taluka Morshi, Dist. Amravati as an Agriculture Officer. It is the case of the applicant that non-applicant no.2 soon after her marriage used to rudely behave with her in-laws as and when they used to visit the applicant's house.

3. Applicant no.1 on 14.05.2007 received a notice dated 09.05.2007 addressed to him and sent by Advocate Pravin Deshmukh on behalf of one Uday Wankhede. On reading the said notice, it reveals that non-applicant no.2 is already married to one Uday Wankhede and documents annexed thereto demonstrate that the first marriage of non-applicant no. 2 is still subsisting.

4. It is the case of the applicant that non-applicant no.2, on enquiry by applicant no.1 about earlier marriage, she instead of discussing with him, abused him in filthy language and left the matrimonial house taking with her all valuables including those gifted by applicant no.1. Thereafter, non applicant no. 2 started residing at her mother's house. Applicant no.1 tried to contact her but there was no response from non-applicant no.2, therefore, applicant no.1 was constrained to issue a legal notice to non applicant no.2 through is counsel Mr. Rajesh Tayade. Applicant no.1 filed complaint on 22.06.2007 under Section 494, 420 read with Section 34 of the Indian Penal Code against non applicant no.1 and her relatives vide Criminal Complaint No. 520/2007.

5. It is the case of the applicants that on 10.06.2007, at about 10 p.m. non-applicant no.2 accompanied with her mother and relatives forcibly entered into his house at Amravati and started abusing him in filthy language and they themselves sent telephonic message to non applicant no.1. Applicant no.1 along with non applicant no.2 and her relatives was taken to Police Station where non applicant no.2 lodged a false and concocted report against applicant no.1. Thereafter, non applicant no.1 issued a notice under Section 149 of the Code of Criminal Procedure to the applicant, which reveals that on the basis of report lodged by non-applicant no.1,case was registered as NC 63/2007.

6. On 13.06.2007, when applicant no.1 was present at the Women's Cell at Police Commissionarate, Amravati as he was directed in lieu of the report lodged on 10.06.2007 he came to know that on the basis of another report lodged on 11.06.2007, by non-applicant no.2 offence punishable under Section 498-A r/w 34 of the Indian Penal Code is registered against applicant no.1 as also applicant nos. 2 and 3. It is the case of applicants that in the second report dated 11.06.2007, applicant no.2 is implicated for the first time. It is the case of applicant that on 11.06.2007, applicant nos. 2 and 3 were not present and had already left for Pune on 08.06.2007. Applicant nos.1 and 2 preferred pre-arrest bail application before the Sessions Court, Amravati. The anticipatory bail came to be granted to them. Applicant no.2 also applied for pre-arrest bail and the same was granted even to applicant no.2.

7. Non-applicant no.1 herein filed charge-sheet on 10.09.2007 in the Court of Judicial Magistrate First Class Court No. 1, Amravati. It is the case of applicants that perusal of the charge-sheet reveals that no offence muchless any offence under Section 498-A is committed by the applicants. Hence, this application under Section 482 of the Code of Criminal Procedure is filed.

8. Learned counsel appearing for the applicants submitted that the first marriage of non applicant no.2 with one Uday Wankhede being subsisting the marriage of non-applicant no.2 with applicant no.1 is void ab initio and in view of this, provision of Section 498-A of the Indian Penal Code is not at all attracted. Therefore, the proceedings against applicants are liable to be quashed and set aside as continuation of the same would amount to abuse of process of law. Learned counsel further submitted that the criminal proceeding initiated against applicants at the behest of non applicant no.2 is tainted with the malice and vengeance inasmuch as the same were initiated solely because the fraud committed by non-applicant no. 2 came to light and applicant no.1 had issued legal notice in respect of the same to non applicant no.2. It is further submitted that since non-applicant no.2 is only interested in the property of applicant no.1 inasmuch as she has forcibly occupied a part of the residential house of the applicants at Amravati and is continuing to harass the applicants by filing litigations under the provisions of Protection of Women From Domestic Violence Act, 2005. It is further submitted that provision of Section 498-A of the Indian Penal Code which clearly envisages and presupposes existence of valid marriage and if not accused cannot be prosecuted for the same. It is further submitted that applicant no.2 sister and applicant no.3 mother of applicant no.1 have been unnecessary roped. They have no concern with the dispute between applicant no.1 and non-applicant no.2. They are residing separately and have been roped in merely because they happen to be related to applicant no.1. It is further submitted that though allegations of demands are there in the complaint, no specific incident is mentioned and only vague and general allegations are made. It is further submitted that non applicant no.2 has no regard for truth. On the one hand, she says that there is customary divorce in between Uday Wankhede and herself and on the other hand in her written statement in Special Marriage Petition No. 8/2007 filed by applicant no.1 she claims that she was residing along with said Uday Wankhede as his wife, though no legal marriage was ever solemnized. Thus, she is blowing hot and cold at the same time and adopted convenient stance just to harass the applicants. Therefore, the applicants would submit that the proceeding initiated against the applicants deserves to be quashed and set aside. Learned counsel, in support of his contention, placed reliance in the case of Smt. Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and another; AIR 1988 Supreme Court 644 and invited my attention to para 8 of the said judgment and submitted that marriage of a man in accordance with Hindu rites with a woman having living spouse is complete nullity in the eye of law and the wife is not entitled to benefits of Section 125 of the Code of Criminal Procedure. Learned counsel further invited my attention to the reported judgment of the Madhya Pradesh High Court in Ramnarayan & Ors. Vs. State of M.P.; 1998(3) Crimes 147; and more particularly para 5 and 8 of the said judgment. Learned counsel further placed reliance in the case of Raghothaman and ors Vs. State of Karnataka and anr.; 2004 Cri.L.J. 1974 and submitted that cruelty and dowry demand and offence, presuppose existence of valid marriage. If wife is married to some other person at the time of her marriage with accused husband, her marriage with accused husband is void ab initio and proceedings against accused are liable to be declared null and void and liable to be quashed. Learned counsel further invited my attention to para 11 and 12 of the said judgment. Therefore, learned counsel submitted that any further continuation of proceedings against applicants would be abuse of process of law and abuse of process of Court, therefore, the same deserves to be quashed.

9. On the other hand, learned counsel for the non-applicant no.2 invited my attention to the contents of complaint and also reply filed on behalf of non-applicant no.2. It is further submitted that the fact whether the earlier marriage is subsisting or not is disputed question of fact and the same cannot be gone into in a criminal case under Section 482 of the Code of Criminal Procedure. Learned counsel further submitted that the mother of non-applicant no.2 was examined on 04.09.2001 and she has specifically stated that there was customary divorce between Uday Wankhede and Sandhya. Learned counsel, placing reliance on the evidence of mother of non-applicant no.2 submitted that if the applicants dispute about customary divorce, then it becomes disputed question of fact. It cannot be entertained in a proceeding under Section 482 of the Code of Criminal Procedure. Learned counsel submitted that there was abetment by applicant nos.2 to 3 for the activities for applicant no.1. Applicant no.1 has given cruel treatment to non applicant no.2-wife and applicant nos.2 and 3 instigated applicant no.1. It is further submitted that all the three applicants have criminal conspiracy against the complainant. It is further submitted that documents brought on record and contents of complaint are yet to be proved by oral evidence. Learned counsel invited my attention to the deposition of witnesses, which are placed on record. Learned counsel invited my attention to the affidavit-in-reply filed on behalf of non applicant no.2 which is at page no.69 to 77 of the compilation. It is submitted that the applicants have admitted the factum of marriage with non-applicant no.2 and thus offence under Section 498-A read with Section 34 of the Indian Penal Code is being committed when the marriage still is in subsistence. Hence, the act of applicants come under the ambit of Section 498-A of the Indian Penal Code. It is further submitted that applicant no.1 was already knowing the previous relations of non applicant no.2 and Uday Wankhede of Nagpur and also aware of the fact that said Uday Wankhede has got job at Dubai and he had left Nagpur forever.

10. Learned counsel invited my attention to para 4 of the affidavit-in-reply and submitted that the applicants concocted and created story by sending false notice to applicant no.1. Learned counsel further submitted that under the interim protection order passed by Judicial Magistrate First Class, Court No.1, Amravati in Misc. Criminal Application No.203/2007, the applicants are directed not to evict non applicant no.2 from matrimonial house. Learned counsel further invited my attention to the remaining paragraphs of the affidavit-in-reply in support of his contention. Learned counsel invited my attention to the copy of the oral report of the complainant and submitted that the applicant no.1 used to beat her and was forcing the complainant to agree for divorce. Applicant no.1 used to assault and use filthy language to the complainant. Applicant no.1 used to demand money and used to torture the complainant by asking her to bring money from her mother else agree for divorce. It is further submitted that applicant nos.2 and 3 also used to instigate applicant no.1 and also abuse non applicant no.2 by using filthy language. Learned counsel further invited my attention to further submission of the complainant dated 12.06.2007 at page no.58 of the compilation and submitted that applicant no.2 sister-in-law on every Sunday used to invite her husband and mother-in-law. However, she used to be excluded by the present applicants. Applicant no.1 used to come at late in the night on Sunday and upon query by the complainant about late coming in the night, the husband used to assault and further abuse the complaint. It is further submitted that applicant nos.2 and 3 also use to trouble and complainant by quarreling with her. Learned counsel, on the basis of contents of the complaint and other material placed on record and also on the basis of affidavit-in-reply would submit that even applicant nos.2 and 3 cannot go free without trial. It is further submitted that the mother used to instigate all the applicants to hatch conspiracy and thus applicant nos. 2 and 3 abated the crime in question. Therefore, the application deserves to be rejected. Learned counsel further submitted that allowing the application filed by the applicants means there is no opportunity to the complainant or the prosecution to even lead the evidence and prove that case. It is further submitted that the point, which is raised by applicants that there was no customary, divorce between previous husband of complainant, becomes disputed question of fact and the same may not be adjudicated in the instant case. Learned counsel further invited my attention to the maintenance proceedings between the parties and submitted that applicant no.1 is directed to pay maintenance to the complainant. The same can substantiate all the arguments of learned counsel for the complainant is that this application under Section 482 of the Code of Criminal Procedure may be rejected.

11. Heard learned counsel for the applicants and complainant as well as A.P.P. for the State. On careful perusal for the complaint and entire material placed on record, I find substance in the arguments advanced by learned counsel for the complainant so far applicant no.1 is concerned. However, on careful perusal of the contents of the complaint and also other documents place on record it appears to me that applicant nos.2 and 3 are unnecessarily roped in the case. In fact, applicant no.2, who is sister of applicant no.1 is residing separately and, therefore, even if the allegations are taken as it is from the First Information Report, no offence can be attributed against applicant no.2. It is further admitted position that applicant no.1 and complaint were staying at Yavatmal and they have shifted to Amravati. Where applicant no.1 and complainant are residing is the house of the mother. Therefore, nobody prevented the couple i.e. applicant no.1 and complainant to have their separate residence. In fact, the mother, who is old aged person is staying in her house and on reading allegations in the First Information Report or complaint, I do not find any case is made out against even the applicant no. 3-mother.

12. Learned counsel appearing for the applicants has placed reliance on various judgments cited supra, in support of his contention that subsisting earlier marriage, the subsequent marriage between applicant no.1 and complainant is void ab initio and, therefore, no further proceeding under Section 498-A and other Sections of the Indian Penal Code can be continued and on this ground alone, the proceedings are required to be rejected in view of the pronouncement of Hon'ble Supreme Court in the case of Reema Aggarawal Vs. Anupan and others; AIR 2004 Supreme Court 1418. The Hon'ble Apex Court, in para 18 held as under:-

"It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B, IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as "husband" is no ground to exclude them from the purview of S.304-B or 498-A, IPC viewed in the context of the very object and aim of legislations introducing those provisions."

On reading above paragraphs from the said judgment and also other part of the said judgment, the submissions of learned counsel for the applicants is unsustainable.

13. Apart from above, there are specific allegations against the husband-applicant no.1 in the complaint about cruel treatment of the complainant and also about demands and also beating and torturing. There are also specific allegations about forcing the complainant to agree for the divorce. There is enough material to proceed against applicant no.1. The point, which is raised by applicant no.1 that there is no divorce between the earlier husband of complainant and herself, becomes disputed question of fact and it cannot be adjudicated upon in an application, which is filed under Section 482 of the Code of Criminal Procedure.

14. On careful scrutiny of contents of application, annexures thereto and other material, I am of the considered view that so far as the case of applicant no.1 is concerned the same is required to be rejected. Hence, so far as applicant no.1 is concerned, the application stand rejected. It means criminal proceedings would proceed further so far as applicant no.1 is concerned.

15. So far as applicant nos.2 and 3 are concerned, as stated hereinabove, applicant no.2 who is sister of applicant no.1 and she is staying separately and also a married woman, therefore, on careful scrutiny of the allegations levelled against her, I do not find any substance in the said allegation and it appears to be concocted. Hence, any continuation of further proceeding or investigation against applicant no.2 would be futile exercise and would be resulting in wastage of time and abuse of process of law and courts. Therefore, so far as case of applicant no.2 is concerned, the same deserves to be allowed.

So far as applicant no.3 is concerned, she is an old aged person. She is mother of the applicant no.1 staying in her own house and applicant no.1 and complainant on transfer they came from Yavatmal and staying in the house of applicant no.3, who is mother of applicant no.1. On careful perusal of the entire material placed on record, I do not find, by any stretch of imagination, that further proceedings can be continued against applicant no.3. Hence, any further investigation or proceeding would be the futile exercise and wastage of time and would be abuse of the process of law and Court. Therefore, even in respect of applicant no.3, further proceedings and investigation needs to be quashed and set aside.

16. In the result, the application is partly allowed.

The Criminal Application is rejected insofar as applicant no.1 is concerned and allowed in respect of applicant nos.2 and 3.

Criminal proceeding initiated by non applicant no. 1 against applicant nos.2 and 3 for the offence punishable under Sections 498-A read with Section 34, being charge-sheet no. 186/2007 dated 10.09.2007 registered as Criminal Case No. 892/2007 on the file of Judicial Magistrate First Class, Court No.1, Amravati is quashed and set aside. The concerned Court can proceed against applicant no.1-Manoj.

Rule made absolute in the above terms.

Application partly allowed.