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Gulab Yadav And Ors vs State Of Bihar And Anr on 4 April, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 33076 of 2016
Arising Out of Complaint Case No.-4C Year-2011 Thana- MUNGER COMPLAINT CASE
District- Munger

1. Gulab Yadav, S/o Late Hari Yadav.

2. Tara Devi W/o Gulab Yadav.

3. Ajay Kumar Yadav @ Bablu Kumar Yadav S/o Sri Gulab Yadav. All resident
of Village- Champachak, P.S. Tentia Bumper, District-Munger.

… … Petitioner/s
Versus

1. The State of Bihar

2. Renu Devi W/o Bablu Kumar Yadav @ Ajay Kumar Yadav D/o Rajendra
Yadav Presently residing at Bangawan, P.S.- Harpur, District-Munger.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Altamish, Advocate
For the State : Mr. Suresh Prasad Singh, A.P.P.

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL JUDGMENT
Date : 04-04-2019

Heard learned counsel for the petitioners and learned

A.P.P. for the State.

2. The petitioners have moved the Court under Section

482 of the Code of Criminal Procedure, 1973 for the following

relief:

“That this application is being filed for
quashing of the order taking cognizance dated
15.12.11 passed in Complaint Case No. 04C/11 by
the Sub Divisional Judicial, Magistrate Munger by
which the Sub Divisional Judicial, Magistrate
Munger has been pleased to take cognizance Under
Section 498A I.P.C. and 3/4 of Dowry Prohibition
Patna High Court CR. MISC. No.33076 of 2016 dt.04-04-2019
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Act and the said case is pending before the learned
Sub-Divisional Judicial Magistrate, Munger.”

3. The opposite party no. 2, who is the wife of the

petitioner no. 3 has filed the complaint case in which the Court

below has taken cognizance under Section 498A of the Indian

Penal Code and 3/4 of the Dowry Prohibition Act.

4. The allegation is that the petitioners were consistently

torturing the opposite party no. 2 for dowry and that her signature

was forcibly taken by them along with other persons and that the

husband had solemnized second marriage.

5. Learned counsel for the petitioners submitted that the

allegations are totally false. It was submitted that prior to the

filing of the complaint, the opposite party no. 2 had executed an

affidavit on 22.09.2010, in which she has accepted that she was

living happily with the petitioners and that she was not having

good health and also that because of the same she could not bear a

child and she insisted that her husband marry again. Learned

counsel submitted that soon thereafter, this false complaint has

been filed on 03.01.2011. It was submitted that the petitioner no. 3

has filed Matrimonial Dispute Case No. 7 of 2016, before the

Principal Judge, Family Court, Munger on 08.01.2016 under

Section 9 of the Hindu Marriage Act for Restitution of Conjugal

Rights. It was submitted that in the said case, the order dated
Patna High Court CR. MISC. No.33076 of 2016 dt.04-04-2019
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19.04.2016 records that both had agreed to live happily and that

the wife would file a joint petition in the criminal case praying not

to proceed with the case till further application.

6. Learned A.P.P. submitted that the cognizance taken by

the Court below is fully justified. It was submitted that in the

complaint, there is specific allegation of torture and demand of a

motorcycle and chain, and of forcibly getting blank papers signed

by her. Learned counsel submitted that four witnesses have

supported the prosecution case and, thus, there is no infirmity in

the order taking cognizance.

7. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

does not find any merit in the present application.

8. From the materials brought on record in the present

application itself, the entire defence of the petitioners gets

demolished. First of all, the affidavit which is alleged to have been

affirmed by the opposite party no. 2 dated 22.09.2010 paints a rosy

picture of her matrimonial life where she states that she was very

happy living with her husband and her in-laws and because of her

illness she could not conceive and also that she had asked her

husband to marry again. This type of an affidavit itself exposes the

mala fide on the part of the petitioners, as no wife is required to
Patna High Court CR. MISC. No.33076 of 2016 dt.04-04-2019
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give an affidavit before any authority with regard to she being

treated well and being happy with her husband and in-laws. Thus,

it clearly shows that a record was being created. This compared to

the statement made in Matrimonial Case No. 7 of 2016 filed

seeking Restitution of Conjugal Rights by the husband of the

opposite party no. 2 i.e., petitioner no. 3 makes the said case

totally an eyewash for creating a record to show that his intention

is to keep the opposite party no. 2. However, the true intention gets

exposed upon going through the averments made in the petition. In

the whole petition, the entire responsibility and blame is put on the

opposite party no. 2 and she is said to have behaved badly and also

abused the petitioners and even her parents and other relatives

were involved in such bad behaviour and that she never waned to

live in the matrimonial home. These two things cannot exist at the

same time. Moreover, the affidavit being made in the matrimonial

home and kept by the petitioners, clearly indicates that there was

threat and coercion. Also, in the order dated 19.04.2016, on which

learned counsel for the petitioners has placed much emphasis,

itself speaks of the claim of the opposite party no. 2 that her

husband has performed second marriage. This has not been denied

in the present application. Thus, there cannot be any question of

the opposite party no. 2 going back to the matrimonial home and
Patna High Court CR. MISC. No.33076 of 2016 dt.04-04-2019
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living there as a 2nd lady when her husband has already married

another lady, as it is but natural, that the opposite party no. 2 shall

not be treated well.

9. Thus, from the entire facts and circumstances, the

Court finds that the allegation of torture and maltreatment of the

opposite party no. 2, not only appears to be correct, but it is also

clearly indicative that the petitioners had a well laid out strategy,

inasmuch as, before the second marriage an affidavit was got

affirmed by the opposite party no. 2 praising the petitioners and in

fact showing that it was the opposite party no. 2, who had forced

her husband to marry again, but when such marriage took place

and she was turned out of the matrimonial home, she has filed the

present complaint case, and, as a counterblast, a petition has been

filed for Restitution of Conjugal Rights, in which the opposite

party is shown in a completely different picture. Thus, the Court

finds that by subsequent conduct and in view of what has been

stated hereinabove, prima facie and tentatively, the allegations

made against the petitioners cannot be said to be either false or

frivolous or without any basis. On the contrary, in the opinion of

the Court, such allegations, to a large extent stands corroborated

by the conduct of the petitioners themselves and the materials on

record, and, thus, all the more matters are required to be gone into
Patna High Court CR. MISC. No.33076 of 2016 dt.04-04-2019
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in a full fledged trial where all the parties shall have full

opportunity to place materials in support of their case.

10. As far as the contention of learned counsel for the

petitioners that in the matrimonial case she has agreed not to

proceed further in the criminal case, is of absolutely no value, for

the reason, that even if she had agreed to give a chance to the

petitioners, as per the order recorded, such agreement of the

opposite party no. 2 was only till her further application. This does

not compel her not to proceed with the present case or to withdraw

the same.

11. In any view of the matter, such observation in the

order dated 19.04.2016 cannot be of any help to the petitioners and

of any disadvantage to the opposite party no. 2.

12. For reasons aforesaid, the application stands

dismissed.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR
U
T

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