IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.5153 of 2016
Arising Out of PS. Case No.-831 Year-2008 Thana- BHAGALPUR COMPLAINT CASE
District- Bhagalpur
1. Md. Mumtaj @ Pappu @ Mumtaj Mansuri, Son of Md. Moinuddin.
2. Mohiuddin Mansuri @ Md. Moinuddin, Son of Late Dost Mohammad.
Both residents of Mohalla-Paras Toli, P.S.-Doranda, District-Ranchi, State-
Jharkhand.
… … Petitioner/s
Versus
1. State Of Bihar.
2. Bibi Nasrin, Wife of Md. Mumtaj, daughter of Taiyab Ali, resident of
Village-Bansitikar, P.O.-Juchow, P.S.-Sabour, District-Bhagalpur, State-Bihar.
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr.Ajit Kumar Singh, Adv
For the Opposite Party/s : Mr.Dashrath Mehta, APP
CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 10-07-2019
Heard counsel for the parties.
2. Petitioners are accused in Complaint Case No.831 of
2008 brought by opposite party No.2-Bibi Nasrin. By order dated
25.02.2010, the learned court below took cognizance and issued
process against the petitioners to face trial for offence under
Section 498A I.P.C. The petitioners are husband and father-in-law
of opposite party No.2. There is allegation of demand of dowry
and torture for the same since 16.04.2006 till the filing of the
complaint petition. On 16.04.2006 marriage was solemnized on
Dain Mehar of Rs.31,000/-, however, the petitioners and others
started pressurizing against non-fulfillment of dowry demand
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which resulted in torture by the accused person to opposite party
No.2.
3. The challenge is on the ground that before Islahiya
Committee divorce was already affected on 28.04.2008 and the
Committee directed to assess the dain and expenses of the period
of iddat and to pay the same through cheque. Thereafter, the
husband obtained an ex parte decree of divorce on 08.08.2012 in
Matrimonial Suit No.09 of 2007 from the court of learned
Principal Judge, Family Court, Ranchi.
4. Contention is that since there was no relationship of
husband and wife, there cannot be any claim of illegal demand and
torture for the same. Hence, criminal prosecution of the petitioner
is abuse of the process of the court.
5. The petitioners had challenged the cognizance order
in Cr. Revision No.173 of 2010 before the learned District Judge,
Bhagalpur and the matter was heard by learned Additional District
Judge-VI, Bhagalpur who dismissed the revision application
considering the material on the record especially the deposition of
witnesses examined during enquiry under Section 202 Cr.P.C. The
learned Sessions Judge observed that the probable defence cannot
be considered at this stage nor the consideration would be the
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inherent probability appearing in the complaint and the evidences
produced in support of the same.
6. In my view also, grant of ex parte decree of divorce
subsequent to the filing of the complaint case would not
deface/erase the prima facie allegation made in the complaint case.
Hence, this application has got no merit.
7. Accordingly, this application stands dismissed.
(Birendra Kumar, J)
Nitesh/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13.07.2019
Transmission Date 13.07.2019