A divorcee is entitled to initiate a criminal proceeding against her ex-husband for torture for demand of dowry committed while she was living with her husband in the wedlock.

Rakesh Kumar and j. JJ.

1. Two petitioners, while invoking inherent jurisdiction of this Court under Sec.482 of the Criminal Procedure Code, have prayed for quashing of the order dated 01.09.1999 passed in C A No 649 of 1999 by Shri B K Sinha, Judicial Magistrate, Purnea. By the said order, the learned Magistrate has taken cognizance of the offence under Sec.498a of the Indian Penal Code.

2. Short fact of the case is that opposite party No 2 filed a Complaint vide Complaint Case No 649 of 1999 alleging therein that she was wife of petitioner No 1 and after solemnization of marriage for some time, she led a peaceful conjugal life. However, subsequently the accused persons started torturing her for the purpose of bringing buffalo and Rs 5,000/- in cash from her parents. It was alleged that after she shown inability, she was physically and mentally misbehaved and tortured. Many other allegations have also been levelled in the complaint petition. After filing the complaint, the complainant was examined on solemn affirmation and three witnesses were examined in support of the complainant as enquiry witnesses. The learned Magistrate, after being satisfied that materials available on the record, by order dated 01.09.1999 took cognizance of the offence under Sec.498a of the Indian Penal Code.

3. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition and this court on 23.2.2000 directed for issuance of notice to opposite party no.2. Subsequently on 24.7.2000 the petition was admitted and again a notice was directed to be issued to opposite party no.2. While admitting the case, this court directed that during the pendency of this application further proceeding in the court below, so far as the petitioner is concerned, shall remain stayed.

4. Mr Shabbir Ahmad, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, has argued that the present petition was maliciously filed by opposite party No 2 that too after the decree of dissolution of marriage was already passed by Qazi on 16.08.1998. It was further submitted that at least one of the witnesses Fayyaz Alam, who was examined in support of the complainant, was also examined in the proceeding before the Qazi and in the entire proceeding he has not made any allegation of torture on opposite party No 2. It was submitted that this shows that the present complaint petition was filed in a designed manner. Learned counsel for the petitioners have referred to paragraph-12 and 15 of the petition to corroborate his submission that marriage in between petitioner No 1 and the complainantopposite party No 2 was dissolved on 16.08.1998 by qazi and also enquiry witness No 1 Fayyaz Alam, who had supported the complainant, was also examined before the Qazi, Darul Qaza, Badi Eidgah, Purnea in Case No 115 of 1499 Hijri. Accordingly, he has prayed for quashing of the order of cognizance on the ground of malicious prosecution.

5. Mrs Indu Bala Pandey, learned Addl. P. P appearing on behalf of the State has opposed the prayer of the petitioners.

6. Besides, hearing learned counsel for the parties, I have also examined the complaint petition and the impugned order of cognizance. Along with the present petition, a typed copy of the complaint petition and certified copy of the impugned order with a typed copy of the impugned order have been brought on record. The petitioners have not even bothered to bring on record the decree of the so called Darul Qaza. Moreover, in the complaint there was allegation of torture both physical and mental for non-fulfillment of demand of dowry. At this stage, it is difficult for this court to record a finding on the basis of assertion made by the learned counsel for the petitioners that opposite party no.2 was divorcee of petitioner no.1. Even then it cannot be said that a divorcee is not entitled to initiate a criminal proceeding against her ex-husband on the allegation of