1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.25600/2017
(Dinesh Baraiya vs. State of M.P. Anr.)

Gwalior, Dated : 17.01.2018
Ms. Shabnam Bano Khan, Counsel for the applicant.
Shri R.K. Awasthi, Public Prosecutor for the
respondent No.1/State.

This application under Section 482 of Cr.P.C. has been
filed for quashing the FIR registered in Crime No.88/2017
by Police Station Mahila Police Station, Padav, District
Gwalior and the criminal proceedings in Criminal Case
No.5354/2017 pending in the Court of JMFC, Gwalior.

The necessary facts for the disposal of the present
application in short are that the applicant is the husband of
respondent No.2. The respondent No.2 lodged a FIR on
24.8.2017 on the allegations that she was married to the
applicant on 22.4.2004, who is posted on the post of
Constable 14th Bn. Kampoo, District Gwalior. Immediately
after the marriage, her husband started harassing her
physically and mentally. On the false pretext of ill health,
he is in the house for the last three months and under the
influence of liquor, he always creates unhealthy situation in
the house in the presence of her two daughters and he also
use abusive language. The applicant has filed a case for
divorce and everyday uses abusive language and pass
taunts. He even did not give money for bearing day to day
expenses. On 17.8.2017 at about 9:30 in the evening the
applicant and his relative Lakhan Jatav consumed liquor
outside the house and when the respondent No.2 went
outside the house to give Chapati to the cow, then Lakhan
Jatav started abusing her and when she did not respond,
2
THE HIGH COURT OF MADHYA PRADESH
MCRC No.25600/2017
(Dinesh Baraiya vs. State of M.P. Anr.)

then after catching hold of her hand he tried to beat her
and took away her Chunni and also extended threat to her
life. She somehow managed to come inside the house and
after 30 minutes thereafter, Lakhan Jatav entered inside the
house and outraged her modesty and assaulted her by fists
and blows and abused her and while going back he also
extended a threat that she should immediately give divorce
to the applicant, otherwise she would be killed. On this
report, the police registered the FIR against the applicant
and co-accused Lakhan Jatav for offence punishable under
Sections 498-A, 354, 504, 294, 34 of IPC. The police after
concluding the investigation has filed the charge sheet for
the said offences.

Challenging the FIR as well as the charge sheet and
the criminal proceedings pending before the JMFC, Gwalior,
it is submitted by the counsel for the applicant that since
the applicant has filed a petition under Section 13 of Hindu
Marriage Act for grant of divorce, therefore, a false FIR has
been lodged by way of counterblast. However, it is admitted
by the counsel for the applicant that although a petition for
divorce is pending before the Court of competent
jurisdiction, but still the applicant is residing along with the
respondent No.2 in the same house. It is further submitted
that there are material contradictions and omissions in the
FIR as well as the statements recorded under Section 161
of Cr.P.C. and, therefore, the criminal proceedings pending
against the applicant may be quashed.

Per contra, it is submitted by the State Counsel that
3
THE HIGH COURT OF MADHYA PRADESH
MCRC No.25600/2017
(Dinesh Baraiya vs. State of M.P. Anr.)

although the applicant might have filed a petition under
Section 13 of Hindu Marriage Act, but it cannot be a ground
to quash the criminal proceedings for the simple reason
that the findings given by the Civil Court are not binding on
the criminal Court. It is further submitted that the
meticulous appreciation or marshaling of material available
on record at this stage is not permissible and the
allegations made against the applicant prima facie make
out an offence warranting his prosecution for offence under
Section 498-A, 354, 506, 294, 34 of IPC.

Heard the learned counsel for the parties.
The undisputed fact is that the applicant and
respondent No.2 are the legally wedded husband and wife
and even today they are living together along with the
children. Although the applicant has filed a petition under
Section 13 of Hindu Marriage Act for grant of divorce, but it
is well established principle of law that merely because a
petition under Section 13 of Hindu Marriage Act is pending
and the FIR was lodged subsequent thereto, the pendency
of the petition for divorce cannot be a ground to quash the
FIR lodged under Section 498-A of IPC and for other
offences.

The Supreme Court in the case of Pratibha vs.
Rameshwari Devi Ors. reported in 2007(12) SCC 369
has held as under:

“16. It is pertinent to note that the
complaint was filed only when all efforts to
return to the matrimonial home had failed
and Respondent 2 husband had filed a
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THE HIGH COURT OF MADHYA PRADESH
MCRC No.25600/2017
(Dinesh Baraiya vs. State of M.P. Anr.)

divorce petition under Section 13 of the
Hindu Marriage Act, 1955. That apart, in
our view, filing of a divorce petition in a
civil court cannot be a ground to quash
criminal proceedings under Section 482 of
the Code as it is well settled that criminal
and civil proceedings are separate and
independent and the pendency of a civil
proceeding cannot bring to an end a
criminal proceeding even if they arise out
of the same set of facts. Such being the
position, we are, therefore, of the view
that the High Court while exercising its
powers under Section 482 of the Code has
gone beyond the allegations made in the
FIR and has acted in excess of its
jurisdiction and, therefore, the High Court
was not justified in quashing the FIR by
going beyond the allegations made in the
FIR or by relying on extraneous
considerations.”

Thus, merely because the applicant has filed a petition
under Section 13 of Hindu Marriage Act, the same cannot
be a ground to quash the FIR.

So far as the omissions or contradictions in the FIR as
well as the case diary statement of the complainant is
concerned, that cannot be a ground to quash the charge
sheet because marshaling or appreciation of material
available on record at this stage is not permissible. The
Court has to see that whether the allegations made against
the accused persons primarily make out an offence or not.
To quash the proceedings in exercise of powers under
Section 482 of Cr.P.C., this Court has to consider the
allegations made by the complainant as a gospel truth and
thereafter it has to be determined that whether the
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THE HIGH COURT OF MADHYA PRADESH
MCRC No.25600/2017
(Dinesh Baraiya vs. State of M.P. Anr.)

allegations made against the accused prima facie make out
an offence or not. In the present case, there are specific
allegation of physical and mental harassment by the
applicant. In order to make out an offence under Section
498-A of IPC, it is not necessary that the harassment
should be because of demand of dowry.

Section 498-A of IPC reads as under:-

“498A. Husband or relative of husband
of a woman subjecting her to cruelty.–
Whoever, being the husband or the relative
of the husband of a woman, subjects such
woman to cruelty shall be punished with
imprisonment for a term which may extend
to three years and shall also be liable to
fine.

Explanation.-For the purposes of this
section, “cruelty” means-

(a) any wilful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether
mental or physical) of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her
or any person related to her to meet any
unlawful demand for any property or
valuable security or is on account of failure
by her or any person related to her to meet
such demand.”

Thus, it is clear that if any wilful conduct which is of
such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman, it would
fall within the definition of cruelty. Abusing, beating the
wife would also fall within the definition of cruelty, as
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THE HIGH COURT OF MADHYA PRADESH
MCRC No.25600/2017
(Dinesh Baraiya vs. State of M.P. Anr.)

defined under Section 498-A of IPC. In the present case,
further allegations are that the applicant had consumed
liquor along with his relative Lakhan Jatav and the co-
accused Lakhan Jatav not only outraged the modesty of the
respondent No.2, but had also extended threat to her life
and had beaten her. Whether, the applicant was sharing the
common intention with Lakhan Jatav or not is a disputed
question of fact which cannot be determined at this stage
and it is for the Trial Court to adjudicate upon the
correctness of the allegations.

Considering the facts and circumstances of the case,
this Court is of the view that the allegations made in the
FIR as well as in the case diary statement of the respondent
No.2, prima facie make out an offence punishable under
Sections 498-A, 354, 506, 294, 34 of IPC and, therefore,
the prosecution of the applicant cannot be quashed.

Before parting with this order, this Court finds it
apposite to mention that the submissions made by the
counsel for the applicant have been considered in the light
of the limited scope of interference at this stage. The Trial
Court is directed to decide the trial on the basis of the
evidence tested on the anvil of cross examination.

Accordingly, the application fails and is hereby
dismissed.

(G.S. Ahluwalia)
(alok) Judge

ALOK KUMAR
2018.01.20 12:23:03 +05’30’