Telangana High Court
Dara Sreesailam vs The Director on 4 February, 2025
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No. 24054 OF 2024
ORDER
Heard Mr. Dara Srisailam, learned Party-in-Person, Mr. Srinivas Kapatia, learned Special Public Prosecutor for CBI appearing on behalf of respondent No.1, learned Assistant Government Pleader for GAD appearing on behalf of respondent No.2, learned Assistant Government Pleader for Home appearing on behalf of respondent Nos.3 and 4 and Mr. P. Animi Reddy, learned counsel for respondent Nos.5 and 6.
2. The facts and the reliefs claimed in the present writ petition are rather bizarre. The Petitioner, who appeared as a party-in-person, states that his daughter (Respondent No. 5 herein) eloped and married Respondent No. 6 on 09.04.2024. He alleges that Respondent No. 6 is his mother's sister's grandson and that he is a blood relative of Respondent No. 5. He is brother in relation to respondent No.5. Therefore, the marriage of Respondent No. 5 and Respondent No. 6 falls within the degrees of prohibited relationship and is void.
3. According to the Petitioner, Respondent No. 6 used 'black magic' to entice Respondent No. 5 and got married to her. After marriage, Respondent No. 6 has been threatening Respondent No. 5 to 2 KL,J W.P. No.24054 of 2024 obtain loans for him and his family. Petitioner alleges that his daughter - Respondent No. 5 has obtained loans to the tune of Rs. 85 lakhs from multiple banks and has handed over the same to Respondent No. 6 and his family. Further, it is alleged that Respondent Nos. 7 to 16 are friends and family of Respondent No. 6 and that they have conspired with Respondent No. 6 to help him 'abduct' Respondent No. 5 and marry her. In addition to the allegations of an incestuous marriage and misappropriation of money, the Petitioner also alleged that Respondent No. 6 was involved in murdering his first wife.
4. The Petitioner states that he had lodged a complaint under Sections 23, 24, 25, 34, 107, 109, 119, 120B, 124A, 187, 201, 202, 212, 213, 217, 218, 220, 302, 366, 383, 384, 385, 386, 387, 388, 389, 403, 406, 407, 420, 493, 496, 499 and 500 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 18 of the Hindu Marriage Act, 1955 (hereinafter 'HMA') against Respondent Nos. 6 to 16.However, Respondent Nos. 17 to 19 failed to take any action and did not register the complaint. Therefore, he filed two private complaints before the learned III Additional Junior Civil Judge - cum - III Additional Judicial Magistrate of the First Class (hereinafter 'Magistrate'). The first complaint viz.,Crl. S.R. No. 2794 of 2024 was filed seeking a direction 3 KL,J W.P. No.24054 of 2024 to the police authorities to register the Petitioner's complaint against Respondent Nos. 6 to 16 under Sections 23, 24, 25, 34, 107, 109, 119, 120B, 124A, 187, 201, 202, 212, 213, 217, 218, 220, 302, 366, 383, 384, 385, 386, 387, 388, 389, 403, 406, 407, 420, 493, 496, 499 and 500 of the IPC and Section 18 of the HMA. The second complaint viz., Crl. S.R. No. 2795 of 2024 against Respondent Nos. 17 to 19 under Sections 23, 24, 25, 34, 107, 109, 119, 120B, 124A, 187, 201, 202, 212, 213, 217, 218, 220, 302, 366, 383, 384, 385, 386, 387, 388, 389, 403, 406, 407, 420, 493, 496, 499 and 500 of the IPC, Section 18 of the HMA and Sections 197 & 472 of the Code of Criminal Procedure for failure to take action against Respondent Nos. 6 to 16.
5. The Petitioner had also filed Crl. M.P. No. 451 of 2024 under Article 51A of the Constitution of India seeking a direction to Respondent Nos. 5 and 6 to live separately and not cohabit. He filed Crl. M.P. No. 452 of 2024 under Sections 2 (L) and 168 read with 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking a direction to the Investigating Officer to collect names of Respondent No. 6's friends who have helped him marry Respondent No. 5. Likewise, the Petitioner filed Crl. M.P. No. 453 of 2024 under Sections 367 (1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with 105 of the Mental Healthcare 4 KL,J W.P. No.24054 of 2024 Act, 2017 seeking to send Respondent Nos. 6 to 8 for a 'psychological test'.
6. The learned Magistrate, vide common order dated 07.08.2024, dismissed both the complaints and the three applications filed by the Petitioner. The said common order held that none of the alleged offences were made out. The court noted that no proof has been adduced by the Petitioner in support of his allegation that Respondent No. 5's marriage with Respondent No. 6 falls within the degrees of prohibited relationship.
7. Through the present petition, the Petitioner seeks the following reliefs:
i. A declaration that the marriage between Respondent No. 5 and Respondent No. 6 is void and a direction to them to live separately;
ii. A declaration that the action of Respondent Nos. 17 to 19 in not registering a case against Respondent Nos. 6 to 16 as illegal;
iii. A declaration that the common order dated 07.08.2024 passed by the learned magistrate is illegal and arbitrary and a consequent direction to set aside the same; 5
KL,J W.P. No.24054 of 2024 iv. A direction to the CBI to investigate the case and take necessary action against Respondent Nos. 6 to 19.
8. Respondent Nos. 5 and 6 had filed their reply affidavit denying the allegations of the Petitioner. They stated that the marriage was consensual and not within the degrees of prohibited relationship.
9. Considering the facts of the case and the reasons stated herein below, this Court holds that the present writ petition is not maintainable qua Respondents 5 and 6.
10. It is trite that a writ petition under Article 226 can be filed by a person if his/her fundamental rights or legal rights are violated. Further, such a writ petition can be filed against the State or its instrumentality or a private entity discharging any public function.
11. Even the widest possible interpretation given to Article 226 cannot make the present writ petition maintainable in as much as neither any fundamental right of the Petitioner is violated nor any legal right is vested in him. Admittedly, the Petitioner claims that the marriage between his daughter - Respondent No. 5 and Respondent No. 6 is void as it falls within the degrees of prohibited relationship as defined under the HMA. However, none of the provisions of the HMA confer any legal 6 KL,J W.P. No.24054 of 2024 right on a third party to seek dissolution of marriage on the ground that the marriage is within the degrees of prohibited relationship.
12. It is relevant to note that Section 5 of the HMA speaks of conditions of marriage. Sub-sections (iv) and (v) of Section 5 state that parties contracting a marriage should not be within the degrees of prohibited relationship and cannot be sapindas of each other. Section 5 is extracted below:
5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;7
KL,J W.P. No.24054 of 2024
13. Likewise, it is relevant to refer to Sections 11 and 13 of the HMA which deal with void marriages and divorce. Both these provisions state that only parties to a marriage can file a petition seeking declaration of a marriage as void or a petition seeking dissolution marriage. None of the provisions state that a third party/family person can seek dissolution of marriage or a declaration that a marriage is void. In the absence of any legal right, the Petitioner does not have locus standi to maintain the present writ petition.
14. The relevant portions of Sections 11 and 13 of the HMA are extracted below:
11. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses
(i), (iv) and (v) of section 5.
XXX
13. 1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-.............
15. During the course of hearing, the Petitioner contended that the writ petition would be maintainable as there is no remedy under the HMA. This is a misconceived argument. In the absence of any right in a 8 KL,J W.P. No.24054 of 2024 father/family member to seek dissolution of marriage, no question of a remedy exists. In other words, as no legal right exists in a third party to claim dissolution of marriage or a declaration that a marriage is void, no such remedy in the form of a writ petition will be available.
16. Another reason for the non-maintainability of the writ petition is that a direction is sought against two private individuals. Its unfathomable that a writ against a private person, who does not perform any public duty/statutory duty, will be maintainable.
17. Therefore, the Petitioner cannot seek a declaration to the effect that the marriage between Respondent No. 5 and Respondent No. 6 is illegal and void.
18. In relation to the other contentions regarding the alleged inaction of Respondent Nos. 17 to 19, the dismissal of the petitioner's complaint by the learned magistrate vide common order dated 07.08.2024 and investigation by the CBI, this Court holds that the same are without merit. The disputes between the petitioner and respondent Nos.5 and 6 are matrimonial and, therefore, the petitioner cannot seek to entrust the investigation to CBI as held by this Court in B. Sailesh Saxena v. The Union of India, rep.by its Secretary of Ministry of 9 KL,J W.P. No.24054 of 2024 Home Affairs, New Delhi 1. Therefore, the writ petition is liable to be dismissed qua the other Respondents too.
19. As stated above, the Petitioner has alleged that Respondent No. 6 committed multiple offences. In brief, the allegations against him include murdering his first wife, misappropriating the loans obtained by his wife - Respondent No. 5 and marrying within degrees of prohibited relationship. The allegations against Respondent Nos. 7 to 16 are that they conspired with Respondent No. 6.
20. Ex facie, the allegations levelled by the Petitioner are exaggerated and highly improbable. The Petitioner cannot allege that Respondent No. 6 had murdered his first wife without any basis is not supported by any material. Likewise, the allegation of Respondent No. 6 threatening Respondent No. 5 to obtain loans also appears to be false in as much as Respondent No. 5 obtained the loan in her own name and has not lodged any complaint to that effect. In fact, she had an opportunity before this Court to make any such allegations. However, as no complaint of misappropriation of the alleged loan amount was lodged by Respondent No. 5, the allegations of theft, extortion misappropriation, etc. cannot be accepted.
1 . AIR OnLine 2021 TEL 122 10 KL,J W.P. No.24054 of 2024
21. Learned Party-in-person has filed a memo vide USR No.121299, dated 07.12.2024 stating his daughter, respondent No.5 herein, sent a text message from her mobile No.8341443452 to her elder brother mobile No.8008990384 on 03.12.2024 at about 12.08 AM mid- night. He has filed screen shot of the same. Perusal of the same would reveal that she has informed the petitioner herein, her mother and elder brother that in their absence she cannot live, intending to die and she is intending to speak to her mother. Therefore, she requested them to permit her to speak to her mother.
22. As regards the allegation that the Petitioner has committed an offence under Section 18 of the HMA by marrying within the degrees of prohibited relationship, this Court holds that the same cannot be raised by the Petitioner. As stated above, the HMA does not confer a right on a third party/family member to raise a dispute about validity of a marriage. An offence under Section 18 of the HMA can be registered only where a court of competent jurisdiction, on a petition filed by either of the parties to the marriage under Section 11 of the HMA, declares that a marriage is void on account of contravention of conditions prescribed under Section 5 of the HMA. Unless a competent court declares that the marriage was within degrees of prohibited relationship, no offence under Section 18 of 11 KL,J W.P. No.24054 of 2024 the HMA can be registered. In the present case, the Petitioner has no locus to allege that the marriage of Respondent Nos. 5 and 6 was within degrees of prohibited relationship and a criminal case under Section 18 of the HMA ought to have been registered.
23. In view of the above discussion, the decisions relied upon by learned Party-in-Person in Udai Shankar Awasthi v. State of U.P. 2, State Bank of India v. Rajesh Agarwal3, K.K. Saksena v. International Commission on Irrigation and Drainage 4, M/s. Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. The State of Maharashtra 5, S.R. Sukumar v. S. Sunaad Raghuram6, Suresh Chand Jain v. State of M.P. 7, State of Bihar v. Deokaran Nenshi8, Sakiri Vasu v. State of U.P. 9, Om Prakash Sharma v. State of M.P. 10 and Alok Kumar v. Harsh Mander 11 are not applicable to the facts of the present case as the facts and principle laid down therein are different to the facts of the present case.
2 . Crl.A. No.61 of 2013, decided on 09.01.2013 (SC) 3 . Civil Appeal No.7300 of 2022, decided on 27.03.2023 (SC) 4 . Civil Appeal No.11499/2014, decided on 18.12.2014 (SC) 5 . Crl. A. No.680 of 2021, decided on 26.07.2021 (SC) 6 . Crl.A. No.844 of 2015, decided on 02.07.2015 (SC) 7 . Crl.A. No.43 of 2001, decided on 10.01.2001 (SC) 8 . AIR 1973 SC 908 9 . Crl.A. No.1685 of 2007, decided on 07.12.2007 (SC) 10 . Misc. Crl.Case No.44485 of 2020, decided on 25.03.2021 (MPHC) 11 . Crl.M.C. No.1463 of 2020 & Crl.M.A. No.5732 of 2020, decided on 21.07.2023 (Delhi HC) 12 KL,J W.P. No.24054 of 2024
24. This Court holds that none of the allegations raised by the Petitioner make out any offence as alleged. Therefore, the learned Magistrate was justified in passing the common order dated 07.08.2024.
25. As this Court holds that prima facie no offence against Respondent Nos. 5 to 16 is made out, no action can be sought against Respondent Nos. 17 to 19. Likewise, no offence exists for the CBI to investigate. Therefore, this Court holds that no relief against Respondent Nos. 17 to 19 and the CBI can be sought.
26. In light of the aforesaid discussion, the present writ petition is liable to be dismissed and accordingly the same is dismissed. In the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 4th February, 2025 Mgr