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.

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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

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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

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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

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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 –