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Mala Kar And Another ……. … vs State Of Uttarakhand & Another on 22 November, 2018

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application (C-482) no. 26 of 2016

Mala Kar and another ……. Applicants

vs.

State of Uttarakhand another ……. Respondents

Mr. Ramji Srivastava, Advocate for the applicants.
Mr. Pramod Tiwari, Brief Holder for the respondent State.
Ms. Monika Pant, Advocate for respondent no. 2.

[Per: Hon’ble Lok Pal Singh, J.]

By means of present criminal misc.

application filed under Section 482 of Cr.P.C., the
applicants seek to quash the cognizance order dated
05.01.2016, charge sheet dated 17.11.2015, as also
the entire proceedings of criminal case no. 60 of
2016, State vs Jitu Kar and others, under Sections
498A of IPC and Section ¾ of Dowry Prohibition Act,
pending in the court of Addl. Chief Judicial
Magistrate II, Dehradun.

2) Brief facts of the case are that the
marriage of applicant no. 2 was solemnized with
respondent no. 2 at Bhubneshwar (Orissa) on
05.12.2012. Applicant no. 2 was posted as Second
Officer in Merchant Navy and used to remain
onboard for five months in a year. Respondent no.
2 was also a working lady. After sometime, the
relations between applicant no. 2 and respondent
no. 2 turned sour and they started living separately
2

from May 2013. Applicant no. 2 filed a divorce
petition under Section 13 of the Hindu Marriage Act
against respondent no. 2 in the court of Principal
Judge, Family Court, Dehradun. The said suit was
registered as Suit no. 907 of 2013, Jitu Kar vs Smt.
Pallavi Sarangi.

3) Learned Family Court issued summons to
respondent no. 2, but she did not appear before the
court to contest the suit. Thereafter, the court
below passed an order for publication of service of
notice upon respondent in daily newspapers.
Despite that, respondent no. 2 did not turn up to
contest the suit. Ultimately, the Family Court
proceeded ex parte against respondent no. 2 and
passed an ex parte decree vide its judgment and
order dated 18.10.2014, whereby decree of divorce
has been granted in favour of applicant no. 2 and
marriage dated 05.12.2012 between the parties was
dissolved.

4) Subsequently, after obtaining the decree
of divorce, applicant no. 2 got married with Smt.
Smruti on 21.02.2015 at Arya Samaj Mandir, Delhi.
The said marriage was duly registered in the office
of Registrar, Compulsory Registration of Marriages,
Dehradun, Uttarakhand.

5) It is stated in the criminal misc.

application that respondent no. 2 was fully aware
about the ex parte decree of divorce and dissolution
of marriage between the parties and subsequent
3

marriage of applicant no. 2. Despite that, on
06.04.2015, in order to harass the applicant no. 2
and his family members, respondent no. 2 lodged
an FIR, which was registered as case crime no. 103
of 2015, under Section 498A of IPC and Section ¾
of the Dowry Prohibition Act with P.S. Patel Nagar,
Dehradun. It is alleged in the FIR that complainant
/ respondent no. 2 is being continuously subjected
to physical and mental cruelty by applicant no. 2,
applicant no. 1 (mother-in-law of respondent no. 2)
and his other family members. It was also alleged
in the FIR that when the complainant went to
Dehradun, applicants did not permit her to enter
into the house (copy of FIR is annexed as Annexure
no. 4).

6) Against lodgment of aforesaid FIR,
applicant no. 1 preferred criminal writ petition
before co-ordinate Bench of this Court and
applicant no. 1 as well as sister-in-law and brother-
in-law of respondent no. 2 succeeded in getting
interim protection from arrest during investigation
(copy of order dated 17.07.2015 is annexed as
Annexure no. 5). However, another criminal writ
petition filed by applicant no. 2 was dismissed as
withdrawn (copy of order dated 13.10.2015 is also
annexed as Annexure no. 5). The investigation
ultimately culminated into filing of charge sheet
against the applicants. Learned Magistrate vide
order dated 05.01.2016 took cognizance against
both the applicants and summoned them to face the
trial. Aggrieved against the same, present criminal
4

misc. application under Section 482 of Cr.P.C. has
been preferred by the applicants.

7) Learned counsel for the applicants
would submit that the first information report was
lodged against the applicants as a counterblast to
the ex parte decree of divorce obtained by the
husband of respondent No. 2. It is contended that
respondent No. 2 had full knowledge of dissolution
of marriage between the parties and subsequent
marriage of applicant no. 2. Learned counsel for
the applicants would further submit that the
prosecution against the applicants is malicious and,
as such, the charge sheet is liable to be quashed.

8) Per contra, learned counsel for the
respondent no. 2 would submit that respondent no.
2, who is also a working woman, tried her level best
to save her marriage, but applicant no. 2 was very
indifferent with her and never made any effort to
strengthen the bond between the two. Mother-in-
law (applicant no. 1 herein) and married sister of
applicant no. 1 had great interference in their
matrimonial life. Respondent no. 2 made several
attempts for amicable settlement, but to no avail.
Thereafter, respondent no. 2 shifted to Ludhiana
along with her parents in May 2014, on transfer of
her father there. On 27.07.2014, when respondent
no. 2 came to Dehradun to meet the applicants,
both of them did not allow her to enter the house
and flatly refused to have any communication with
her. On 09.08.2014, respondent no. 2 made a
5

complaint with Mahila Helpline, Dehradun for
reconciliation, but applicant no. 2 made no attempt
to settle the matter. Finally, Mahila Helpline
forwarded the matter to P.S. Patel Nagar and the
complaint was re-registered as FIR (as mentioned in
para 5 of the judgment) against the applicants.

9) Learned counsel for respondent no. 2
would further submit that applicant no. 2 had
remarried after fraudulently obtaining an ex parte
decree of divorce against respondent no. 2. It is
contended that respondent no. 2 never stayed in
Bhubaneshwar (Orissa). Respondent no. 2 stayed
in Delhi upto May 2014 and had thereafter shifted
to Ludhiana with her parents. The publication of
notice in Times of India, Bhubaneshwar and Delhi
Edition on 15.07.2014, where her address was
again mentioned as Bhubaneswar, Orissa is not
correct, as the applicants were well aware of
transfer of father of respondent no. 2 to Ludhiana.
The ex parte decree of divorce has been obtained by
applicant no. 2 misleading the Family Court,
Dehradun giving Bhubaneshwar address of
respondent no. 2 in the divorce petition, as such,
the ex parte decree of divorce obtained by applicant
no. 2 from the Family Court, Dehradun is
fraudulent decree and a nullity in the eyes of law.
Respondent no. 2 filed the complaint before the
Mahila Helpline on 09.08.2014, but the applicants
never made any attempt to inform the complainant
and Mahila Helpline regarding the pendency of the
divorce suit. Respondent no. 2 only came to know
6

about passing of ex parte decree of divorce against
her in September 2017 and prior to that she had no
knowledge regarding filing of divorce suit by
applicant no. 2, as such, the service was never
actually effected upon respondent no. 2 and the
learned court below ought not have proceeded ex
parte against her. Lastly it is contended that
applicant no. 2 has deliberately deserted the
respondent no. 2 since 17.05.2013.

10) In reply, it is argued by learned counsel
for the applicants that the allegations levelled in the
FIR are totally false and baseless. It is contended
that respondent no. 2 had never made complaint
regarding said fact to any authority before lodging
the FIR.

11) Having heard learned counsel for the
parties and on perusal of the material available on
record, this court is of the view that the applicants
have made false averment that before lodging the
FIR, complainant / respondent no. 2 did not made
any complaint to the Mahila Helpline. On this
score alone the applicants are not entitled for any
relief from this Court. The learned Magistrate on
perusal of the contents of the FIR, charge sheet and
evidence collected by the Investigation Officer has
taken cognizance in respect of cognizable offences
punishable under Section 498A of IPC and ¾ of the
Dowry Prohibition Act against the applicants. At
the stage of cognizance, Magistrate need not to
7

meticulously examine the material available before
him.

12) From a bare perusal of the FIR and the
material available on record, prima facie, a case is
made out against the applicants. The learned
Magistrate did not commit any mistake in taking
cognizance against the applicants in respect of
offences punishable under Section 498A of IPC and
Section ¾ of the Dowry Prohibition Act. This Court
in exercise of its powers under Section 482 of
Cr.P.C. is not supposed to meticulously examine the
evidence and interfere in the criminal proceedings
in a routine manner. I also do not find it to be a
case of miscarriage of justice with the applicants.
Thus, this Court is not inclined to interfere in the
matter at this stage.

13) In view of the above, the criminal misc.
application under Section 482 of Cr.P.C. is devoid of
merit and is liable to be dismissed. The same is
accordingly dismissed. However, the applicants
will be at liberty to raise all the pleas of their
innocence before the trial court at the time of
framing of charge. Interim order dated 08.01.2016
passed by this Court stands vacated.

(Lok Pal Singh, J.)
Dt. November 22, 2018.

Negi

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