Gurdeep Singh vs State of Punjab

Satish Kumar Mittal, J.—In this criminal revision, the petitioners have challenged three orders passed by the learned Chief Judicial Magistrate, Kapurthala, i.e. order dated 2.9.2003 (Annexure P-17), vide which the application filed by petitioner No. 1 (husband) for directing respondent No.2 (wife) to get her medically examined from the Medical Board of Doctors of PGI, Chandigarh, has been dismissed; order dated 2.9.2003 (Annexure P-18), vide which the application of the petitioners for discharging them from the charges framed against them, has been dismissed and the order dated 15.4.2002

(Annexure P-13), vide which charge has been framed against the petitioners.

The brief facts of the case are that petitioner No. 1 was married to respondent No.2 -Harpreet Kaur on 18.2.2001. Petitioner Nos.2 and 3 are the natural parents of petitioner No. 1 and petitioner Nos.4 and 5 are the brother and sister of petitioner No. 1. According to the petitioners, the marriage between petitioner No. I and respondent No.2 could not be consummated as respondent No.2 was not fit to lead a normal married life. Petitioner No. 1 alleged that the respondent-wife is not a woman and actually she is an eunuch and a fraud was played with him. He further alleged that after ten days of the marriage, respondent No.2 left his house with all her clothes and jewellery. Thereupon, he filled a petition u/s 9 of the Hindu Marriage Act (for short ''the Act'') for a decree of restitution of conjugal rights. Subsequently, the said petition was withdrawn. As a counter blast to the said petition, respondent No.2 lodged FIR No.237 dated 14.7.2001 against the petitioners under Sections 498-A and 406 IPC at Police Station Kotwali, Kapurthala. It is further averred in the petition that after withdrawal of the petitioner u/s 9 of the Act, petitioner No.1 filed a petition for nullity of the marriage u/s 12 of the Act on the ground that at the time of marriage, a fraud was played as respondent No.2 is an eunuch and she is not a woman. The said petition is pending in the Court of District Judge, Ambala. The petitioners also filed a petition u/s 482 of the Cr.P.C. in this Court for quashing of the aforesaid FIR No.237 dated 14.7.2001. During the pendency of the said petition before this Court, the challan was filed against the petitioners under Sections 498-A and 406 IPC on 15.4.2002 (Annexure P-13). Subsequently, the quashing petition filed by the petitioners was dismissed by this Court on 14.1.2003 while observing as under: -

"The matrimonial troubles between husband and wife, differences between them, difficulties that they may experience in consummating marriage, unfitness of either party to consummate the marriage are all valid grounds to be set up in defence at the trial but are not good grounds to challenge the F.I.R. or seeking its quashment. The above grounds can always be pleaded by the accused in defence but to investigate them in a petition u/s 482 Cr.P.C. can be grossly unjust to the complainant."

It is submitted here that the order of charge and framing of the charge-sheet dated 15.4.2002 was never challenged by the petitioners by filing a revision petition before the Sessions Judge or in this Court within the prescribed period of limitation. However, on 21.3.2003, petitioner No.1 filed an application before the Chief Judicial Magistrate for medical examination of the respondent-wife from the Medical Board of Doctors of PGI, Chandigarh. After come time, on 29.7.2003, petitioners filed another application for acquitting them from the charges framed against them and to prosecute the complainant and her witnesses for malicious prosecution. Both these applications were heard by the learned Chief Judicial Magistrate and the same were dismissed vide order dated 2.9.2003.

Thereafter, the instant petition has been filed in which the aforesaid two orders as well as the order of framing the charge and charge-sheet dated 15.4.2002 have also been challenged. The respondent: wife filed detailed reply to the averments made in this criminal revision. She has denied the fact that she did not appear before the Medical Board of Doctors of PGI, Chandigarh. She averred that she actually appeared before the Medical Board and as per the certificate which has been annexed as Annexure R-2/2, respondent No.2 was found by the Medical Board of doctors as a normal woman. In her reply, the respondent-wife alleged that the petitioners are making baseless allegations against her. Actually, she has been harassed by the petitioners and for that purpose, the trial Court has rightly framed the charge against the petitioners.

After hearing the learned counsel for the parties and perusing the record of the case, I do not find any force in this petition. The learned Chief Judicial Magistrate dismissed the application of petitioner No. I for medical examination of the respondent-wife by the Medical Board of Doctors of PGI. Chandigarh, while observing that for the criminal proceedings under Sections 498-A and 406 IPC, the question regarding womanhood of the complainant-wife is not necessary and relevant. I do not find any infirmity or illegality in this observation of the trial Court. In the matrimonial proceedings before the learned Sessions Judge, this question may be relevant and those proceedings are still pending. Up till now, it has not been proved that respondeat No.2 was not a woman and the marriage between petitioner No.1 and respondent No.2 is liable to be declared a nullity. The petition for nullity of the marriage is till pending. Even otherwise, respondent No.2 has placed on record the report of the Medical Board of Doctors of PGI, Chandigarh, which indicates that the respondent-wife is a normal woman.

The counsel for the petitioners raised the contention that the criminal proceedings u/s 498-A IPC can only be initiated by a woman and since respondent No.2 is not a woman, therefore, no complaint can be filed by her against the petitioners under Sections 498-A IPC. I do not find any fore in this contention of the learned counsel. Section 498-A of the IPC provides that "whoever, being the husband or the relatives of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." Therefore, petitioner No.1 being the husband of respondent Nos.2 and the other petitioners being relatives of the husband of a woman are liable to be punished if they commit cruelty to such woman. Since respondent No.2 is the lawful wife of petitioner No.1 as the marriage between petitioner No.1 and respondent No.2 is till subsisting, it cannot be held that respondent No.2 is not a woman. The petitioners want to proceed on the assumption that respondent No.2 is an eunuch. That position cannot be accepted. In my opinion, the application of petitioner No. 1 for the medical examination of respondent No.2 has been rightly rejected by the trial Court. Regarding the order of framing of the charge and dismissal of the application of the petitioners for acquitting them from the charge, there is no infirmity or illegality in those orders. The petitioners have been charged under Sections 406 and 498-A IPC vide order dated 15.4.2002. Thereafter, the case was fixed for prosecution evidence, but the said order was not challenged by the petitioners by filing a revision petition before the Sessions Judge u/s 397 Cr.P.C. The petition for quashing the FIR filed by the petitioners in this Court was dismissed on 14.1.2003 and the petitioners were permitted to raise all valid grounds to be set up in defence at the trial.

After considering the specific allegations levelled against the petitioners in the FIR and the statements made by the witnesses to the police during investigation, the trial Court framed the charges against the petitioners under Sections 406/498-A IPC. I do not find any infirmity against framing of the charge against the petitioners under the aforesaid Sections. The application of the petitioners for discharging or acquitting them has also been rightly dismissed as at the stage of framing of the charge, there was no material on the basis of which the petitioners-could have been discharged. After discharge, the prosecution has yet to examine its witnesses to prove the allegations levelled against the petitioners. Thereafter, the petitioners will have a right of defence and also to lead evidence in defence. This Court while dismissing the quashing petition of the petitioners has already liberty to the petitioners to plead all the grounds available to them in their defence. Therefore, 1 do not find any reason for setting aside the aforesaid three orders passed by the learned Chief Judicial Magistrate, Kapurthala, i.e. order dated 2.9.2003 (Annexure P-17), vide which the application filed by petitioner No. 1 (husband) for directing respondent No.2 (wife) to get her medically examined from the Medical Board of Doctors of PGI, Chandigarh has been dismissed; order dated 2.9.2003 (Annexure P-18), vide which the application of the petitioners for discharging them from the charges framed against them, has been dismissed and the order dated 15.4.2002 (Annexure P-13), vide which charge has been framed against the petitioners.

In view of the above, I find no merit in this petition and the same is hereby dismissed. However, it is made clear that any observations made by me in the instant case shall have no bearing on the merits of the case.