Uttarakhand High Court
Mala Kar And Another ....... Applicants vs State Of Uttarakhand & Another on 22 November, 2018
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application (C-482) no. 26 of 2016
Mala Kar and another ....... Applicants
vs.
State of Uttarakhand & another ....... Respondents
Mr. Ramji Srivastava, Advocate for the applicants. Mr. Pramod Tiwari, Brief Holder for the respondent State. Ms. Monika Pant, Advocate for respondent no. 2.
[Per: Hon'ble Lok Pal Singh, J.] By means of present criminal misc.
application filed under Section 482 of Cr.P.C., the applicants seek to quash the cognizance order dated 05.01.2016, charge sheet dated 17.11.2015, as also the entire proceedings of criminal case no. 60 of 2016, State vs Jitu Kar and others, under Sections 498A of IPC and Section ¾ of Dowry Prohibition Act, pending in the court of Addl. Chief Judicial Magistrate II, Dehradun.
2) Brief facts of the case are that the marriage of applicant no. 2 was solemnized with respondent no. 2 at Bhubneshwar (Orissa) on 05.12.2012. Applicant no. 2 was posted as Second Officer in Merchant Navy and used to remain onboard for five months in a year. Respondent no. 2 was also a working lady. After sometime, the relations between applicant no. 2 and respondent no. 2 turned sour and they started living separately 2 from May 2013. Applicant no. 2 filed a divorce petition under Section 13 of the Hindu Marriage Act against respondent no. 2 in the court of Principal Judge, Family Court, Dehradun. The said suit was registered as Suit no. 907 of 2013, Jitu Kar vs Smt. Pallavi Sarangi.
3) Learned Family Court issued summons to respondent no. 2, but she did not appear before the court to contest the suit. Thereafter, the court below passed an order for publication of service of notice upon respondent in daily newspapers. Despite that, respondent no. 2 did not turn up to contest the suit. Ultimately, the Family Court proceeded ex parte against respondent no. 2 and passed an ex parte decree vide its judgment and order dated 18.10.2014, whereby decree of divorce has been granted in favour of applicant no. 2 and marriage dated 05.12.2012 between the parties was dissolved.
4) Subsequently, after obtaining the decree of divorce, applicant no. 2 got married with Smt. Smruti on 21.02.2015 at Arya Samaj Mandir, Delhi. The said marriage was duly registered in the office of Registrar, Compulsory Registration of Marriages, Dehradun, Uttarakhand.
5) It is stated in the criminal misc.
application that respondent no. 2 was fully aware about the ex parte decree of divorce and dissolution of marriage between the parties and subsequent 3 marriage of applicant no. 2. Despite that, on 06.04.2015, in order to harass the applicant no. 2 and his family members, respondent no. 2 lodged an FIR, which was registered as case crime no. 103 of 2015, under Section 498A of IPC and Section ¾ of the Dowry Prohibition Act with P.S. Patel Nagar, Dehradun. It is alleged in the FIR that complainant / respondent no. 2 is being continuously subjected to physical and mental cruelty by applicant no. 2, applicant no. 1 (mother-in-law of respondent no. 2) and his other family members. It was also alleged in the FIR that when the complainant went to Dehradun, applicants did not permit her to enter into the house (copy of FIR is annexed as Annexure no. 4).
6) Against lodgment of aforesaid FIR, applicant no. 1 preferred criminal writ petition before co-ordinate Bench of this Court and applicant no. 1 as well as sister-in-law and brother- in-law of respondent no. 2 succeeded in getting interim protection from arrest during investigation (copy of order dated 17.07.2015 is annexed as Annexure no. 5). However, another criminal writ petition filed by applicant no. 2 was dismissed as withdrawn (copy of order dated 13.10.2015 is also annexed as Annexure no. 5). The investigation ultimately culminated into filing of charge sheet against the applicants. Learned Magistrate vide order dated 05.01.2016 took cognizance against both the applicants and summoned them to face the trial. Aggrieved against the same, present criminal 4 misc. application under Section 482 of Cr.P.C. has been preferred by the applicants.
7) Learned counsel for the applicants would submit that the first information report was lodged against the applicants as a counterblast to the ex parte decree of divorce obtained by the husband of respondent No. 2. It is contended that respondent No. 2 had full knowledge of dissolution of marriage between the parties and subsequent marriage of applicant no. 2. Learned counsel for the applicants would further submit that the prosecution against the applicants is malicious and, as such, the charge sheet is liable to be quashed.
8) Per contra, learned counsel for the respondent no. 2 would submit that respondent no. 2, who is also a working woman, tried her level best to save her marriage, but applicant no. 2 was very indifferent with her and never made any effort to strengthen the bond between the two. Mother-in- law (applicant no. 1 herein) and married sister of applicant no. 1 had great interference in their matrimonial life. Respondent no. 2 made several attempts for amicable settlement, but to no avail. Thereafter, respondent no. 2 shifted to Ludhiana along with her parents in May 2014, on transfer of her father there. On 27.07.2014, when respondent no. 2 came to Dehradun to meet the applicants, both of them did not allow her to enter the house and flatly refused to have any communication with her. On 09.08.2014, respondent no. 2 made a 5 complaint with Mahila Helpline, Dehradun for reconciliation, but applicant no. 2 made no attempt to settle the matter. Finally, Mahila Helpline forwarded the matter to P.S. Patel Nagar and the complaint was re-registered as FIR (as mentioned in para 5 of the judgment) against the applicants.
9) Learned counsel for respondent no. 2 would further submit that applicant no. 2 had remarried after fraudulently obtaining an ex parte decree of divorce against respondent no. 2. It is contended that respondent no. 2 never stayed in Bhubaneshwar (Orissa). Respondent no. 2 stayed in Delhi upto May 2014 and had thereafter shifted to Ludhiana with her parents. The publication of notice in Times of India, Bhubaneshwar and Delhi Edition on 15.07.2014, where her address was again mentioned as Bhubaneswar, Orissa is not correct, as the applicants were well aware of transfer of father of respondent no. 2 to Ludhiana. The ex parte decree of divorce has been obtained by applicant no. 2 misleading the Family Court, Dehradun giving Bhubaneshwar address of respondent no. 2 in the divorce petition, as such, the ex parte decree of divorce obtained by applicant no. 2 from the Family Court, Dehradun is fraudulent decree and a nullity in the eyes of law. Respondent no. 2 filed the complaint before the Mahila Helpline on 09.08.2014, but the applicants never made any attempt to inform the complainant and Mahila Helpline regarding the pendency of the divorce suit. Respondent no. 2 only came to know 6 about passing of ex parte decree of divorce against her in September 2017 and prior to that she had no knowledge regarding filing of divorce suit by applicant no. 2, as such, the service was never actually effected upon respondent no. 2 and the learned court below ought not have proceeded ex parte against her. Lastly it is contended that applicant no. 2 has deliberately deserted the respondent no. 2 since 17.05.2013.
10) In reply, it is argued by learned counsel for the applicants that the allegations levelled in the FIR are totally false and baseless. It is contended that respondent no. 2 had never made complaint regarding said fact to any authority before lodging the FIR.
11) Having heard learned counsel for the parties and on perusal of the material available on record, this court is of the view that the applicants have made false averment that before lodging the FIR, complainant / respondent no. 2 did not made any complaint to the Mahila Helpline. On this score alone the applicants are not entitled for any relief from this Court. The learned Magistrate on perusal of the contents of the FIR, charge sheet and evidence collected by the Investigation Officer has taken cognizance in respect of cognizable offences punishable under Section 498A of IPC and ¾ of the Dowry Prohibition Act against the applicants. At the stage of cognizance, Magistrate need not to 7 meticulously examine the material available before him.
12) From a bare perusal of the FIR and the material available on record, prima facie, a case is made out against the applicants. The learned Magistrate did not commit any mistake in taking cognizance against the applicants in respect of offences punishable under Section 498A of IPC and Section ¾ of the Dowry Prohibition Act. This Court in exercise of its powers under Section 482 of Cr.P.C. is not supposed to meticulously examine the evidence and interfere in the criminal proceedings in a routine manner. I also do not find it to be a case of miscarriage of justice with the applicants. Thus, this Court is not inclined to interfere in the matter at this stage.
13) In view of the above, the criminal misc. application under Section 482 of Cr.P.C. is devoid of merit and is liable to be dismissed. The same is accordingly dismissed. However, the applicants will be at liberty to raise all the pleas of their innocence before the trial court at the time of framing of charge. Interim order dated 08.01.2016 passed by this Court stands vacated.
(Lok Pal Singh, J.) Dt. November 22, 2018.
Negi