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2019 Supreme(MP) 164
IN THE HIGH COURT OF MADHYA PRADESH
Prakash Shrivastava, J.
Bachchan & others v. State of M. P. & Another
Miscellaneous Criminal Case No. 40377 of 2018 (Indore); Decided on 2.5.2019
Akash Rathi for petitioners; Sandeep Mehta, Public Prosecutor for respondent/State; Abhishek Malviya for respondent No. 2.
Headnote:
(1) Penal Code, 1860 -- S. 498A -- complainant wife stated that marriage is null and void since husband was already married -- such stand of complainant wife would not vitiate proceedings u/s. 498A because marriage has not been declared null and void till now by any Court of competent jurisdiction -- prosecution of petitioners u/s. 498A cannot be quashed on the mere plea that marriage is null and void. (2013)2 SCC 137, (2004)3 SCC 199 and (2011)7 SCC 616 followed. (2012)2 MPHT 270 relied on. (2007)15 SCC 369 and (2015) CrLJ 2479 referred to. [Paras 7 & 14
(2) Penal Code, 1860 -- Ss. 498A, 294, 323, 506 and 34 -- main grievance of complainant wife is against husband who allegedly contracted second marriage with her without disclosing fact of earlier marriage -- allegations are mainly against husband but along with him, father-in-law and mother-in-law also roped in -- are aged persons -- want of any specific allegation or disclosure of precise incident against them -- it would be abuse of process of law to allow their prosecution. AIR 2013 SC 181, (2013)14 SC 374 and (2009)10 SCC 184 followed. [Para 19
¼1½ naM lafgrk] 1860 && ifjokfnuh iRuh dk dFku fd fookg vÑr vkSj 'kwU; gS D;ksafd ifr iwoZ ls fookfgr Fkk && ifjokfnuh ds ,sls i{kdFku ls /kkjk 498d ds v/khu dk;Zokgh nwf"kr ugha gksxh D;ksafd l{ke vf/kdkfjrk ds fdlh Hkh U;k;ky; }kjk vc rd fookg vÑr vkSj 'kwU; ?kksf"kr ugha fd;k x;k gS && èkkjk 498d ds v/khu ;kphx.k dk vfHk;kstu ek= bl vfHkokd~ ds vk/kkj ij vfHk[kafMr ugha fd;k tk ldrk fd fookg vÑr vkSj 'kwU; gSA ¼2013½2 ,l lh lh 137] ¼2004½3 ,l lh lh 199 rFkk ¼2011½7 ,l lh lh 616 vuqlfjrA ¼2012½2 ,e ih ,p Vh 270 voyafcrA ¼2007½15 ,l lh lh 369 rFkk ¼2015½ lh vkj ,y ts 2479 fufnZ"VA ¼iSjk 7 ,oa 14
¼2½ naM lafgrk] 1860 && /kkjk 498d] 294] 323] 506 rFkk 34 && ifjokfnuh iRuh dh eq[; f'kdk;r ifr ds fo#) gS] ftlus vfHkdfFkr :i ls iwoZrj fookg dk rF; izdV fd, fcuk mlls f}rh; fookg fd;k && vfHkdFku eq[;r% ifr ds fo#) gS ijarq mlds lkFk llqj vkSj lkl Hkh vkfyIr fd, x, gSa && o`) O;fDr gSa && muds fo#) fofufnZ"V vfHkdFku vFkok fdlh fuf'pr ?kVuk ds izdVhdj.k dk vHkko && mudk vfHk;kstu gksus nsuk fof/k dh izfØ;k dk nq#i;ksx gksxkA , vkb vkj 2013 ,l lh 181] ¼2013½14 ,l lh lh 374 rFkk ¼2009½10 ,l lh lh 184 vuqlfjrA ¼iSjk 19
JUDGMENT
1. By this revision petition under section 482 of CrPC petitioners have prayed for quashing of FIR as also charge sheet.
2. Petitioners No. 1 & 2 are father-in-law and mother-in-law of complainant and petitioner No. 3 is husband of complainant (respondent No. 2).
3. Respondent No. 2 had lodged complaint on the basis of which FIR dated 30th April, 2018 in police station Mahila Thana Indore was registered relating to commission of offence under sections 498A, 294, 323, 506 and 34 of IPC. The allegation in the FIR is that respondent No. 2 was married to petitioner No. 3 on 23/1/2014 and allegation against petitioners is in respect of demand of dowry of Rs. 5 lakhs and of harassment. On the basis of FIR, investigation has been done and challan has been filed before JMFC Indore in Case No. 23559/18 and charges have been framed against petitioners for commission of offence under sections 498A, 294, 323, 506 Part II of IPC vide order dated 29.11.2018.
4. Learned counsel for petitioners submits that since in the reply respondent No. 2 has taken the stand that marriage is null and void therefore, provisions of section 498A IPC will not be attracted and that in the statement recorded under section 161 of CrPC there is no specific allegation and respondent No. 2 is an educated lady who has falsely implicated all family members including father-in-law and mother-in-law.
5. As against this learned counsel for respondent No. 2 opposing the prayer submits that petitioners had not disclosed that it is a second marriage and marriage subsists till it is declared null and void therefore, offence under section 498A of IPC is made out and that on account of alleged demand of dowry and harassment the FIR against the petitioners has rightly been registered.
6. Learned counsel for State has also supported the stand of respondent No.2.
7. Having heard the learned counsel for parties and on perusal of the record it is noticed that marriage between petitioner No. 3 and respondent No. 2 is not in dispute. Respondent No. 2 in her objections before this Court has stated that marriage between petitioner no. 3 and respondent No. 2 is null and void since petitioner No. 3 was already married to one Ms. Nisha Mishra but such a stand of respondent No. 2 would not vitiate the proceedings under section 498A of IPC because the marriage between petitioner No. 3 and respondent No. 2 has not been declared null and void till now by any Court of competent jurisdiction.
8. Supreme Court in the matter of Deoki Panjhiyara v. Shashi Bhushan Narayan Azad & another reported in (2013)2 SCC 137 while considering the similar issue has held as under :
“19. In the present case, if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra the respondent ought to have obtained the necessary declaration from the competent Court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent Court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent Court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the Courts, including the High Cou
