Deenadayalan @ Subash Deena and Others vs Sumathi @ Sumathi Jega

C.S. Karnan, J.—The petitioners have filed the above Criminal Original Petition to call for the records in C.C. No. 160 of 2007 on the file

of the learned Judicial Magistrate, Gudiyattam and quash the same.

The respondent/complainant has filed the complaint before the learned Judicial Magistrate, Gudiyattam, stating that the marriage was solemnised

between the respondent and the first petitioner on 27.12.1998 as per Hindu Rites and Customs. The said marriage was an arranged one and

relatives, friends and family of both sides participated. The complainant contended that at the time of marriage, the complainant''s parents provided

her valuable gold ornaments, silver ornaments and house hold articles and cash as Sridhana. After marriage, the complainant was not taken to

Australia by the first petitioner upto 17.03.2000. From 17.03.2000 to 04.11.2002, she co-habited with the first accused in Melbourne, Australia

and gave birth to a male child, named Shiva, on 13.03.2002. On 05.11.2002, the complainant was brought back to India by the first petitioner to

attend the funeral of his mother. The complainant further contended that from the date of marriage till 10.11.2002, the first petitioner and the

complainant''s in-laws had demanded dowry from her.

The complainant further contended that the first petitioner had instituted divorce proceedings against her in Australia, without any valid ground or

reason, and without her knowledge. Further, the complainant had alleged that, A3 to A10, A20 and A23 persuaded her to go to Australia,

concealing the fact of the divorce proceedings instituted against her. So, she left for Australia on 21.01.2004. So, the complainant has alleged that

only for purpose of playing this fraud of making her live in Australia during the relevant period, the first petitioner had brought her back to Australia.

Further, the complainant contended that the Federal Magistrate Court of Australia granted only an ex parte decree for divorce. Even when the

ex parte decree was in force, the complainant and the first accused shared conjugal relationship with each other.

Further, due to dowry demands, it was alleged by the complainant that she was sent back to India by first accused/first petitioner on

13.09.2004. Thereafter, the complainant could not join her in-law''s family due to other unavoidable reasons. On 14.02.2006, the first petitioner

married the second petitioner, for which A2 to A25 abetted the said marriage. The said marriage was registered on the files of Sub-Registrar

Office, Kannamangalam, Thiruvannamalai District. So, the complainant has filed this complaint against the 25 persons who have abetted the said

marriage of first and second petitioner.

The complainant, in support of her complaint has filed three documents and mentioned ten witnesses. The learned Magistrate, Gudiyattam has

taken the case on his file as C.C. No. 160 of 2007 and issued summons to the petitioners herein.

The petitioners have contended that the marriage was solemnised between the first petitioner and the complainant, that out of wedlock, a male

child was born. Further, the petitioners have totally denied the allegation of the complainant regarding dowry demand.

The petitioners further contended that the allegations against all the petitioners/accused are false. A7 and A8 are residing at New Delhi, A9 and

A10 are residing at Faridabad; A11 to A24 are residing in Arani. So, the petitioners had not at all interfered in the wedlock of the first accused

and the complainant.

Further, the first petitioner submits that the notice on the divorce application was also served on the complainant and she had also sent an

objection to the same from India and divorce was granted by the Australian Federal Court. In view of the same, the respondent herein cannot

claim that the divorce was an ex-parte one. The petitioners submit that the present complainant is not maintainable u/s 182(2) of the Code of

Criminal Procedure and the same is liable to be quashed.

Further, the learned Counsel for the petitioners pointed out that the marriage was celebrated at Chittoor in Andhra Pradesh, and the same was

registered at Tiruvannmalai and the husband and complainant, lastly, resided at Australia and the wife by the first marriage has taken up permanent

residence at Krishnagiri. And as such, the present complaint before the learned Magistrate, Gudiyattam is not maintainable.

The first petitioner submits that he had obtained valid divorce from the Federal Magistrate Court, Australia, Dandenong on 21.01.2004 and

the same was made absolute on 20.02.2004 and as such the second marriage was performed only after the valid dissolution of the first marriage

and as such the present complaint does not stand scrutiny in the eye of law.

Further, the petitioners submit that already the respondent had initiated a police case in C.C. No. 187 of 2006 under Sections 498-A and

506(ii) of IPC and the same is pending trial before the learned Magistrate, Gudiyattam. The respondent had also filed a petition for the custody of

the child before the Bangalore District Court and the same is pending consideration. And now the present complaint has been filed after the lapse

of one year which is nothing but harassment caused by the respondent and as such the said proceedings are liable to be quashed.

Considering the contentions of both the sides and the arguments of the learned Counsels for their respective parties, the Court is of the view

that the case is fit to be tried for the following reasons:

(1) Even though, ex-parte decree of the Australian Court is a judicial order, it was not disposed on merits. The complainant was not made aware

of the contents of the divorce petition.

(2) At the time of divorce proceedings pending in the Australian Court, the first petitioner and the respondent had lived in the same shelter as

husband and wife.

(3) In the instant case, the question of law does not carry much force, it is only the force of facts, which is higher.

(4) The complainant is an aggrieved person and this Court feels that she has to be given an opportunity so that Justice is not denied to her.

Hence, the Criminal Original Petition is not maintainable and has got to be dismissed. Accordingly, this Criminal Original Petition is dismissed.

Consequently, connected Miscellaneous Petition is closed.