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Judgment
Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State. Even after valid service of notice upon opposite party No.2, she did not choose to appear before this Court and contest the present application.
The petitioners have filed this application seeking quashing of the order dated 03.08.2017 passed in G.R. No. 619 of 2017, arising out of Mahila P.S. Case No. 08 of 2017, by the learned Sub Divisional Judicial Magistrate, Bhagalpur, whereby cognizance has been taken against the petitioners for the offences punishable under Sections 341, 323, 406, 494, 498(A), 504, 506 and 34 of the Indian Penal Code (IPC).
The prosecution case, as put forth by the informant, is that her marriage was solemnized with petitioner No. 1 on 12.06.2005 and, after five years of marriage, as she was being tortured by the accused persons, she came to her parental house. It has further been alleged that she is living in her parental house under constant fear as several unknown persons come there, abuse her and threat her to kill. It has also been alleged that the husband of the informant has performed his second marriage.
Learned counsel for the petitioners has submitted that the petitioners are respectively the husband, younger brother-in-law (devar), father-in-law and the mother-in-law of the informant.
It has further been submitted on behalf of the petitioners that an application under Section 13(B) of the Hindu Marriage Act, 1995, has also been jointly filed by the petitioner No.1 and the informant before the Principal Judge, Family Court, Bhagalpur, on 02.11.2012. In the said joint petition, it has been admitted by opposite party No.2 that since August, 2010, she was living separately from petitioner No. 1 at her parental house and that the couple do not have any issue as the marriage could not be consummated between them. It was also agreed between the parties that rupees two lakhs would be paid as a permanent alimony in lieu of future maintenance of opposite party No.2.
Learned counsel for the petitioners has submitted that when it is an admitted position that the parties are living separately since 2010 and a joint petition under Section 13(B) of the Hindu Marriage Act, having been filed in 2012, the present case came to be filed on 19.02.2017, which is nothing, but a serious attempt to falsely implicate the petitioners.
Learned counsel for the petitioners has placed reliance upon the judgments of the Hon’ble Supreme Court in the cases of Preeti Gupta vs. State of Jharkhand reported in (2010) 7 SCC 667, Geeta Mehrotra v. State of U.P., reported in (2012) 10 SCC 741, Rajesh Sharma v. State of U.P., reported in (2018) 10 SCC 472 and Kahkashan Kausar @ Sonam v. State of Bihar, reported in (2022) 6 SCC 599, and has submitted that where allegations under Section 498A IPC against the relatives of the husband are general, vague and omnibus in nature without specific allegations of overt acts, continuation of the criminal proceeding amounts to gross abuse of the process of the Court.
Learned counsel for the petitioners has further placed reliance upon a judgment of the Hon’ble Supreme Court in the case of Nitin Ahluwalia Vs. the State of Punjab reported in 2025 SCC OnLine SC 2013, and has submitted that when the parties have agreed to proceed further with a petition under Section 13(B) of the Hindu Marriage Act, then the present case having been filed after five years is nothing but a retaliatory counter-blast and constitutes abuse of process of the Court.
It has further been submitted on behalf of the petitioners that the timing and surrounding context are decisive markers of mala fide intent, while a retaliatory FIR constitutes abuse of process.
Learned counsel for the petitioners has, thus, lastly submitted that the order taking cognizance has been passed in a mechanical manner without application of judicial mind.
Learned Additional Public Prosecutor for the State has opposed the prayer of the petitioners.
Heard learned counsel for the parties and perused the records.
What emerges from the entire records is that a petition under Section 13(B) of the Hindu Marriage Act was filed jointly in a family court proceeding in the year 2012; there was no relationship between the parties since 2010 as admitted in the joint 13(B) application and considering the judgments of the Hon’ble Supreme Court, as discussed above, the continuance of the proceeding against the petitioners would amount to abuse of the process of the Court.
Resultantly, the impugned order taking cognizance dated 03.08.2017 passed in G.R. No. 619 of 2017, arising out of Mahila P.S. Case No. 08 of 2017, by the learned Sub Divisional Judicial Magistrate, Bhagalpur, is hereby quashed.
This application is accordingly allowed.