Arun Kumar Yadav and Others vs State of Bihar and Another

Abhijit Sinha, J.—Heard M/s B.K. Shukla and A.K. Shukla, learned counsel for the petitioners and Sri Jharkhandi Upadhaya, learned A.P.P. for the State. Although notice appears to have been validly served on O.P. No. 2 and she appeared by filing vakalatnama, yet at the time of hearing of the case neither O.P. No. 2 nor her accredited counsel was present in Court. The four petitioners have been made to figure as accused in Complaint Case No. 853-C/2006 and are aggrieved by order dated 5.2.2007 passed by the learned Sub-Divisional Judicial Magistrate, Khagaria, whereby he has taken cognizance of offences under Sections 498A and 323 I.P.C. and Section 4 of the Dowry Prohibition Act.

The primary grievance of the petitioners is that notwithstanding a decree of the Court of the District Judge at Barasat. North-24, Parganas, dated 22.11.2005, in Matrimonial Suit No. 633/2005 dissolving the marriage by decree of divorce on mutual consent u/s 13B of the Hindu Marriage Act, which is Annexure-2 to the application, the learned Sub-Divisional Judicial Magistrate has taken cognizance under the aforesaid sections on the basis of a complaint petition filed on 7.11.2006 which was almost one year after the aforesaid decree of divorce.

Since O.P. No. 2 has not appeared in Court to contest the application, it would only be trite to accept the submissions advanced by the learned counsel for the petitioners more so when the same is supported by certified copy of the decree of divorce granted by the Court of District Judge, Barasat in Matrimonial Suit No. 633/2005.

Where the marriage between petitioner no. 1 and O.P. No. 2 stands dissolved by a decree of the Court, then there is no relationship subsisting between the husband and the wife. Therefore, the filing of the complaint petition and the Court taking cognizance thereupon appears to be an abuse of the process of the Court moreso when the fact of dissolution of marriage by an order of the Court at Barasat had already severed the relationship between the husband and the wife for all practical purposes and this fact was suppressed in the complaint petition. Due regard being had to the facts and circumstances of the case continuance of the instant criminal proceeding would be an abuse of the process of the Court. Accordingly the impugned order dated 5.2.2007 taking, cognizance against the petitioners is hereby quashed and the application is allowed.