Durga Prasad Kar and Others vs Ranjitarani Satpathy

S.C. Datta, J.—This is an application for quashing the proceeding in I.C.C. No. 277/91 pending in the Court, of learned S.D.J.M., Kendrapara.

Briefly stated the case of petitioners is that the petitioner No. 1 was married to the opposite party on 30th June, 1989 according to Hindu rites/customs. Differences and discontentment arose immediately after the marriage and ultimately a suit u/s 13B of Hindu Marriage Act, 1955 was filed in the Court of the Subordinate Judge, Cuttack in O.S. No. 31 of 1990. The suit was eventually decreed on 25.1.1991 and the marriage between the parties was dissolved. According to the petitioners, petitioner No. 1 after the decree of divorce, married again, so also the opposite party. It is the case of the petitioners that at the instigation and encouragement of some enemies of petitioner No. 1, the opposite party as a complainant has filed a complaint case bearing No. I.C.C. 277/91 in the Court of learned S.D.J.M., Kendrapara u/s 498A, IPC. against the present petitioners on the ground that the Civil Court decree dated 25.1.1991 in O.S. No. 31 of 1990 has been obtained by practising fraud upon her. The opposite party who was the complainant there maintained that she was still the married wife of petitioner No. 1 and the petitioners demanded a huge sum of Rs. 25,000/- for a coloured T.V. and a Refrigerator by way of dowry and as she could not provide the same, they assaulted her and finally drove her out of the house on 3.5.1991. On the basis of initial statement of opposite party who was the complainant, the learned S.D.J.M., Kendrapara took cognizance of the offence u/s 498A, IPC., against the present petitioners and issued summons to face the trial. The petitioners'' contention is that since there has been a decree of divorce and which is in force and the same having not been annulled or set aside, the taking of cognizance by the trial Court was bad in law and as such it requires to be set aside. The petitioners filed a petition u/s 203, Cr.P.C. praying for dropping the proceeding but became unsuccessful. Hence this application.

I have heard the learned counsels appearing for the parties. It is not disputed that petitioner No. ] married the opposite party on 30th June, 1989 and subsequently the marriage was dissolved on consent of the parties on 25.1.1991 by a decree of the learned Subordinate Judge, Cuttack, in O.S. No. 31/90. It is not disputed also that the said decree is still in force and it has not yet been set aside or reversed so far. Consequently, the said decree of divorce subsists and operates in full force. The opposite party has filed this petition on 7.9.1991 and cognizance of the case was taken on 12.9.1991 while the decree of divorce was in force. The opposite party did not take any step for setting aside the said consent decree. Therefore, on the day the complaint petition was filed in Court, the marriage between the parties did not subsist. The opposite party has, however, alleged in the complaint petition that the decree of divorce has been obtained by practising fraud upon her but she has taken no steps so far to set it aside. The opposite party has, however, come to the Court on the allegation of torture upon her on account of non-payment of dowry amount. She alleges further that she has been driven out of the house on 3.5.1991. As noticed earlier, the decree of divorced was passed on 25.1.1991. It appears clear therefore, that on the date of filing of the complaint, no legal and valid marriage subsisted between the parties and it has ceased to exist. Therefore it is found that the learned Magistrate was not justified in taking cognizance of the offence and as such the proceeding bearing No. I.C.C. 277/91 should not be allowed to continue. In that view of the matter, this application is allowed and proceeding bearing No. I.C.C. 277/91 pending in the Court of learned S.D.J.M., Kendrapara is quashed.