D.Gowthaman Babu & ors. vs State & anr.

The petitioners have come up with this Criminal Original Petition to quash the final report laid against them in C.C.No.1121 of 2010 before

Chief Metropolitan Magistrate at Egmore, Chennai.

The sum and substance of the petitioners'' case is that the 1st petitioner is the son of petitioners 2 and 3 herein. The marriage of the 1st petitioner

was solemnized with the 2nd respondent herein namely M.R.Dhivya on 03.06.2001 as per Hindu Rites and Customs at Peravallur, Chennai. The

1st petitioner''s wife Dhivya is none other than the 1st petitioner''s aunt''s daughter. Out of their marital life, they were gifted with a female child.

However misfortunately the child died in a week from birth. Thereafter they had a son. The 2nd respondent Dhivya who went to her parental home

for 2nd delivery has not turned up to petitioner''s house after delivery.

The 2nd respondent was very adamant to isolate from the family of the petitioners by way of living in a separate house. But the said proposal

was refused by 1st petitioner as his parents the 2nd and 3rd petitioners are aged persons as such they cannot be left lonely. Thereupon the 2nd

respondent deserted the 1st petitioner and she is living separately for the past 7 years. She also filed a divorce petition before the Principal Judge,

Family Court at Chennai in O.P.No.1291 of 2005 for dissolution of marriage. Whereas the 1st petitioner herein filed O.P.No.1517 of 2015 for

Restitution of Conjugal Rights and both O.Ps are pending.

While so, the 2nd respondent gave a complaint against the petitioners and 3 others alleging that they have demanded dowry and thereby

committed the offence of cruelty. According to the 2nd respondent/ defacto complainant the 1st petitioner married the 4th accused in the above

crime number during the subsistence of his marriage with 2nd respondent. Therefore, all the accused have committed the offence under Sections

498(A), 494, 506(ii) IPC and Section 4 and 6 of D.P. Act r/w 34 of IPC, whereby a complaint was lodged by the 2nd respondent and the same

came to be registered in Crime No.7 of 2009 for the above said offences. The 1st respondent police laid the corresponding charge sheet on the

file of the 5th Metropolitan Magistrate Court, Egmore, Chennai and the same was taken on file C.C.No.1121 of 2010.

It is the contention of the petitioners that charge sheet fled by the 1st respondent police against the petitioners under Section 494 IPC is not at all

maintainable and the 1st respondent police have no power or authority to register a case under Section 494 of IPC. That apart to attract Section

494 IPC the certain ingredients must be available in the complaint. For better appreciation of the same, Section 494 of IPC is extracted hereunder:

Marrying again during lifetime of husband or wife.-Whoever, having a husband or wife living, marries in any case in which such marriage is void by

reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine. (Exception) - This section does not extend to any person whose marriage with such husband

or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former

husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space

of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent

marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the

same are within his or her knowledge.

Per contra, the respondents herein strenuously contended that in so far as the allegation of dowry demand and cruelty are concerned, it is a

matter for trial and all the allegations could be proved only at the time of trial and the same cannot be quashed at the threshold itself. The 2nd

respondent/de-facto complainant has made a specific allegation that there was a dowry demand and she was cruelly treated by the 1st petitioner in

intoxicated mood. All the above said averments have to be gone into only after adducing oral evidence.

I heard Mr.K.P.Chandrasekaran, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate (Criminal Side) for

the 1st respondent and Mr.C.Prabakaran, learned counsel for the 2nd respondent and perused the entire records.

In so far as Section 494 IPC is concerned, the provision is very clear that no case could be registered by the police and that the parties alleging

bigamy will have to file a private complaint under Section 200 Cr.P.C. Therefore, this Court finds that the registering of the F.I.R. against the

petitioners herein by the 1st respondent police and subsequent charge sheet laid for the offence under Section 494 IPC is not maintainable and

therefore, the charge under Section 494 IPC against the petitioners herein is quashed hereby.

The records before this Court disclose that the 1st petitioner and 2nd respondent are living separately for the past 7 years prior to filing the

subject complaint. Further, the 2nd respondent also had filed a divorce petition against the 1st petitioner. Being as such the circumstance, this

Court finds that since the 1st petitioner and 2nd respondent are living separately for a quiet long time, offences under Section 498(A) is not

attributable towards the petitioners. In fact at the first instance on receipt of complaint, the matter has to be referred to the District Social Welfare

Officer for enquiry and the 1st respondent police should have obtained report from the District Social Welfare Officer.

Admittedly in the case on hand, the 1st respondent police failed to refer the matter to the concerned District Social Welfare Officer and get a

report as to whether any dowry harassment is made by the petitioners. In the absence of the adherence to such Mandatory procedures, offences

of Section 4 and 6 of Dowry Prohibition Act cannot be imputed.

At this juncture this Court finds that though the alleged occurrence is said to have taken place long back and that the 2nd respondent having

initiated divorce proceeding against the 1st petitioner after unexplainable delay has lodged the above complaint. Therefore this Court is of firm view

that it cannot form a basis for criminal prosecution as against the petitioners 2 and 3. That apart the allegations against them are very blurred and

manifestly attended with malafide intention for wreaking vengeance. The allegations made against the 2nd and 3rd petitioner are so absurd and

inherently improbable on basis of which it is not possible to proceed with criminal prosecution against the 1st and 2nd petitioner.

Before parting with the case, this Court likes to hold that the case on hand too is a classical example of abuse of process of law and misuse of

a protection measure envisaged for a real victim wife.

In the result, this criminal original petition is allowed and the proceedings in C.C.No.1121 of 2010 before the learned Chief Metropolitan

Magistrate at Egmore, Chennai is hereby quashed in so for as the 2nd and 3rd petitioners are concerned. As against the 1st petitioner offence

under section 494 and Section 4 and 6 of Dowry Prohibition Act alone are quashed and the other charges against the 1st petitioner are not

quashed and the same has to be decided only after trial. It is made clear that this Court has not expressed any opinion on the merits of the case.

Consequently, connected miscellaneous petitions are closed.