Ashish Jagdish and Others vs Smt. Nandita Joshi and Another

Sudhanshu Dhulia, J.—Heard Mr. Pradeep Lohani, Advocate for the applicants, Ms. Pushpa Joshi, Advocate for respondent No. 1 and Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent No. 2.

This application u/s 482 of Cr.P.C. was dismissed in default on 10.8.2010 and the stay order dated 25.5.2006 was also vacated. Now a recall/restoration application (MCRC No. 785 of 2010) has been filed by the applicants. The reasons assigned for recalling the order dated 25.5.2006 appear to be just and bonafide. In view of the judgment of the Apex Court in Madhumilan Syntex Ltd. and Ors. v. Union of India and Anr. reported in AIR 2007 SCW 1971 and in order to secure the ends of justice, present restoration application is allowed. The order dated 10.8.2010 is recalled and the case is restored to its original number.

Heard parties.

This application u/s 482 of Cr.P.C. has been filed by the applicants challenging the order dated 3.3.2006 passed by the Judicial Magistrate, Haldwani, district Nainital in Misc. Case No. 74 of 2004 (Criminal Case No. 595 of 2006 State v. Ashish Joshi and Ors.), whereby cognizance has been taken against the applicants u/s 498A I.P.C. and Section 3/4 of Dowry Prohibition Act.

Brief facts of the case are as follows:

An FIR was lodged by respondent No. 1 i.e. Smt. Nandita Joshi inter alia against all the applicants, which was registered as Case Crime No. 186 of 2001 u/s 323, 316, 406, 498A and 506 I.P.C. and 3/4 of Dowry Prohibition Act. Applicant No. 1 is the husband, applicant No. 2 is the brother-in-law, applicant No. 3 is the sister-in-law, applicant No. 4 is father-in-law and applicant No. 5 is the mother-in-law of respondent No. 1 / complainant. Consequent to the filing of the FIR, a Final Report was submitted by the Police before the Judicial Magistrate, Haldwani. The said final report was not rejected by the Judicial Magistrate, Haldwani and cognizance was taken against the present applicants u/s 498A I.P.C. and 3/4 of Dowry Prohibition Act. Consequently, summons were issued to the present applicants in Misc. Case No. 74 of 2006 u/s 498A I.P.C. and 3/4 of Dowry Prohibition Act. This application has been filed u/s 482 of Cr.P.C., challenging the summoning order and the proceedings before the Court below.

As per the FIR, applicant Nos. 1 and respondent No. 1 were married at Haldwani in the year, 2000 and thereafter started residing at Banglore. In laws of the complainant/respondent No. 1 reside somewhere in Gujarat. Within a year of marriage the relationship between applicant No. 1 and respondent No. 1 was strained. There were allegations of cruelty, demand of dowry, etc, etc. Consequently after filing of the FIR, proceedings were initiated, reference of which has already been made in the preceding paragraphs.

A statement has been made at the bar by Mr. Pradeep Lohani, Advocate for the applicant that during the pendency of the trial, a suit for dissolution of marriage was filed by the husband before the Principal Judge, Family Court, Banglore, which was subsequently transferred to the Family Court, Haldwani, in which on an application of compromise moved by the parties, a decree of divorce was passed on 12.2.2008, and the marriage stood dissolved.

This is an admitted case of both the parties that the marriage between applicant No. 1 and respondent No. 1 stands dissolved by a decree of divorce dated 12.2.2008. The counsel for the applicant Shri Lohani also states that a permanent alimony of Rs. 10,00,000/ - (Ten Lacs) and stridhan of Rs. 3,00,000/ - (Three Lacs), respectively have also been paid to respondent No. 1.

Learned Counsel for respondent No. 1 states that though she is aware that the decree of divorce has been passed but she is not aware of the remaining as her client has not contacted her since 2008.

Based on the aforesaid facts that since now a decree of divorce has been passed and marriage has already been dissolved between applicant No. 1 and respondent No. 1, there is no plausible logic for the criminal proceedings to remain pending, as it would be an unnecessary torture and strain on both the parties. The fact that a permanent alimony has also been paid by the husband is also a relevant factor before this Court. Although there is no specific denial or admission by the respondents'' counsel. This being a matrimonial matter, primarily what goes to the root of the matter is the strained relations of the parties, which resulted in bringing the criminal machinery into motion.

The Apex Court in B.S. Joshi and Others Vs. State of Haryana and Another, has held that in such matters where the marriage has already been dissolved and a decree of divorce has already been passed, criminal cases should not be allowed to continue as it causes unnecessary hardships to the parties.

Based on the aforesaid settled law, this C-482 application is allowed. Impugned order dated 3.3.2006 is hereby set aside. The proceedings in Misc. Case No. 74 of 2004 Criminal Case No. 595 of 2006 State v. Ashish Joshi and Ors. are also hereby set aside.

No order as to costs.

The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.