Karnataka High Court
Hussaina Begum W/O Md Aslam Sirajuddin vs The State Of Karnataka And Ors on 22 November, 2023
Author: K Natarajan
Bench: K Natarajan
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NC: 2023:KHC-K:8759
CRL.P No. 200237 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE K NATARAJAN
CRIMINAL PETITION NO.200237 OF 2023 (482)
BETWEEN:
HUSSAINA BEGUM W/O MD. ASLAM SIRAJUDDIN
AGE: 39 YEARS OCC: HOUSEHOLD,
R/O: H.NO.5-993/61D/3 RING ROAD,
NEAR MOGHAL GARDEN FUNCTION HALL,
MAHEBOOB NAGAR KALABURAGI-585102
...PETITIONER
(BY SRI. SYED FAYAZUDDIN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH ROZA PS KALABURAGI
REPTD. BY ADDL. SPP. HIGH COURT OF KARNATAKA
KALABURAGI-585103.
(DELETED AS PER ORDER
DATED 31.10.2023)
2. MD. ASLMA SIRAJUDDIN S/O SIRAJUDDIN
AGE: 40 YEARS OCC: POINTSMAN-A,
WORKING IN THE RAILWAY DEPARTMENT,
CENTRAL RAILWAY WADI JUNCTION
Digitally
signed by R/O MIRZA BUILDING, MARATA GALLI WADI (JN)
KHAJAAMEEN
L MALAGHAN TQ: CHITAPUR, DIST: KALABURAGI
Location: High
Court Of
Karnataka 3. QAZI MOHD AZAM MUQTADIR SIDDIQUI
S/O QAZI MOHD ABDUL BASHEER SIDDIQUI
AGE: 29 YEARS OCC: QAZI OFFICE OF QAZAT
CHITTAPUR,
TQ: CHITTAPUR DIST: KALABURAGI
...RESPONDENTS
(BY SRI. GANESH NAIK, ADVOCATE FOR R2 AND R3
R-1 IS DELETED AS PER ORDER DATED 31.10.2023)
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NC: 2023:KHC-K:8759
CRL.P No. 200237 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO MODIFIED THE ORDER DATED
27.10.2021 PASSED IN P.C.R.NO.88/2021 C.C.NO.21720/2021
OF ROZA P.S. KALABURAGI BY THE PRL JMFC KALABURAGI.
AND DIRECT THE TRIAL COURT TO TAKE COGNIZANCE
AGAINST THE ACCUSED NO.2 AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner - complainant under Section 482 of Cr.P.C. for challenging the order of taking cognizance by the Magistrate against the respondent No.2 - accused No.1, but not taking any cognizance against the respondent No.3 as accused No.2.
02. Heard the learned counsel for the petitioner and the learned counsel for the respondents No.2 and 3. -3-
NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023
03. The case of the complainant before the Trial Court is that she has filed a petition under Section 125 of Cr.P.C. against the respondent No.2 - husband for granting maintenance in Crl.Misc.No.72/2015 before the District Judge, Family Court, at Kalaburagi . The said Court has granted Rs.6,000/- as maintenance to the wife and the minor children. Feeling aggrieved with the said order, she has also filed a RPFC.No.200022/2018 before the High Court. The High Court enhanced the maintenance from Rs.6,000/- to Rs.14,000/- per month to the petitioner and children. Subsequently, she has filed an application for recovery of the arrears of maintenance. During the pendency of the proceedings the respondent No.2 - husband said to be produced a fabricated document alleging that there is a divorce certificate issued by the respondent No.3 being Khazi. Based upon the said document, a consent Khula / divorce has been granted. The said document is produced for denying the maintenance. Therefore, it is contended by her that the accused Nos.1 and 2 - respondents No.2 and 3 colluded -4- NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023 with each other created a false and concocted Khula / Talak certificate dated 12.03.2018. Therefore, she has filed a private complaint for taking cognizance. Based upon the private complaint, the petitioner herself examined by giving sworn statement and marked 08 documents. After considering her evidence, the learned Magistrate took the cognizance against the respondent No.2 - accused No.1, but no cognizance taken against the respondent No.3 - acused No.2 Khazi. Hence, the petitioner is before this Court.
04. The learned counsel for the petitioner strenuously contended that though the Trial Court came to the conclusion that there is a creation of document, the Khula / Divorce Certificate without the consent of the petitioner, but he was mentioned as consent, which reveals that there is collusion between the accused Nos.1 and 2 - respondents No.2 and 3. Though, the Trial Court rightly taken the cognizance against the accused No.1, but failed to take cognizance against accused No.2, who is the -5- NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023 main person, who has issued the Khula Certificate. Hence, prayed for modifying the order and taking cognizance against the accused No.2 - respondent No.3.
05. Per contra, the learned counsel for the respondents objected the petition and contended that the respondent No.2 insisted the petitioner for divorce continuously. The notice has been issued against her and she has not appeared. Finally the certificate has been issued. The petitioner herself has filed a original suit for canceling the Khula / Divorce Certificate issued by the respondent No.3. The ex-parte decree has been obtained, which was already challenged by the respondent No.2 - accused No.1 in the High Court and MFA.No.200657/2023, which is pending for consideration. Therefore, prayed for dismissing the petition.
06. Having heard the arguments and on perusal of the records it reveals that it is not in dispute that the petitioner obtained the maintenance before the Family Court, which was enhanced by the High Court from -6- NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023 Rs.6,000/- to Rs.14,000/- per month in RPFC. During the recovery proceedings under Section 128 of Cr.P.C. the respondent No.2 filed a certificate stating that a divorce has been granted by the respondent No.3 - Khazi. Subsequently, she has also filed suit for canceling the divorce certificate issued by him and thereafter filed a private complaint before the Magistrate stating that the accused Nos.1 and 2 colluded with each other created a fake divorce certificate. Even though, the petitioner - complainant not appeared before him, but the respondent No.3 has issued the divorce certificate stating that there was a consent divorce has been given. Even though, she was not participated in the proceedings, it is a created documents to nullify the granting the maintenance by the Court. Hence, prayed for taking cognizance for creating and filing the false documents.
07. Considering the same, the Trial Court on the sworn statement of the petitioner took the cognizance against the accused No.1 who is the respondent No.2 -7- NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023 herein. But the Trial Court has stated that there is no evidence since the Khazi issued notice to her, she was not appeared, therefore, the divorce certificate has been issued and hence, it is stated no case is made out against him.
08. The finding of the Trial Court for not taking cognizance and reason assigned is not in accordance with law. The said Khazi himself is no authority to give any divorce certificate or issuing divorce, when the petitioner not at all appeared before him. The very certificate produced before the Court which reveals that while certificate issued it is stated that "This is to certify that the Consent Divorce has been occurred between Sri. Mohammad Aslam s/o Sirajuddin and Smt. Hussana Begum d/o of Basheer Ahmed." Later it was signed by the respondent No.3 on 12.03.2018. When the petitioner herself not appeared before the Khazi - respondent No.3 for giving any consent for divorce, the question of issuing divorce certificate as consent divorce, does not arises at all, which prima-facie reveals that the certificate has been -8- NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023 obtained by the accused No.1 in collusion with the accused No.2. If at all he has not colluded with accused No.1 and certificate was issued with bonafide reason, with following all the procedure, the respondent No.3 required to appeared before the Court and take any such defence or seeking discharge from the case.
09. On the other hand, there is a prima-facie material placed on record to show that the certificate issued by the respondent No.3 in favour of respondent No.2 as consent divorce. Though, the Civil Court already declared and cancelled the consent divorce certificate and MFA is pending before the High Court. The case is for creation of false document and producing the same before the Court, which amounts to a fake or false document created by the accused. Once the cognizance taken against the accused No.1, the question of deleting the accused No.2 from taking cognizance is not correct. Therefore, I am of the view that the Trial Court has committed an error in not taking cognizance against the -9- NC: 2023:KHC-K:8759 CRL.P No. 200237 of 2023 accused No.2 - respondent No.3 herein. Therefore, the order of the Trial Court is required to modify and direct the Trial Court to re-consider the same and take cognizance against the accused No.2 - respondent No.3. Accordingly, I proceed to pass the following;
ORDER i. The petition filed by the petitioner is allowed. ii. The matter is remitted back to the Trial Court for re-
considering the case and taking cognizance against the respondent No.3 - accused No.2.
iii. However, the liberty is granted for the respondent No.3 for seeking any discharge, if certificate issued by him is bonafidy or in accordance with law.
Sd/-
JUDGE KJJ CT:SI List No.: 1 Sl No.: 24