Karamjit Singh and others vs Balwinder Kaur

V.K. Bali, J.

Karamjit Singh, husband of respondentBalwinder Kaur and Mohinder Singh and Smt. Gurdial Kaur, father and motherinlaw respectively of respondent, through present petition filed by them under Section 482 of the Code of Criminal Procedure seek quashing of complaint dated 20.12.1991, Annexure P2, under Sections 406/498A read with Section 102B of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act.

The facts as disclosed in the petition reveal that Karamjit Singh and Balwinder Kaur were married according to Sikh rites on 29.5.1986 at village Sataur, Police Station Sadar Hoshiarpur. They lived as husband and wife at Ropar for about one month. The wife thereafter joined the husband at district Sidhi, where the latter was posted. After some time, Satnam Singh, brother of respondent, came Jayant for taking her for performing the festival of Karwa Chauth as according to custom and family traditions, first festival of Karwa Chauth was to be performed at her parental house. He, however, later learnt through a letter that his wife was on the family way and would be staying at her parental house till delivery. On 17.6.1987 respondent gave birth to a child who expired on 17.7.1987. After the death of the child, husband was keen to bring back the respondentwife to Jayant but Harbans Singh, her father, flatly refused. Petitioner came to know of the same through a letter written by her father. Petitioner, however, sent a letter to the respondent to take her back but her brother refused. There are further averments in the petition with regard to petitionerhusband endeavoring to seek company of his wife which, however, proved abortive. He was, thus, constrained to file a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act which was filed on 25.4.1988 in the Court of Addl. District Judge, Sidhi (MI). It was contested by the respondent but the Court after resultant trial passed a decree for restitution of conjugal rights in favour of the petitioner vide judgment and decree dated 4.5.1991. Being aggrieved, respondentwife filed an appeal which is pending in the Madhya Pradesh High Court. Petitionerhusband also filed an application for execution of the decree of restitution of conjugal rights as envisaged under JUDGMENT 21 Rule 32 CPC which is still pending in the executing court. However, the wife meanwhile, it is pleaded, as a matter of counterblast filed an application under Section 125 Cr.P.C. on 11.11.1988 in the Court of Addl. Chief Judicial Magistrate, Hoshiarpur. It is averred that husband was not served in those proceedings and still was proceeded against ex parte and a monthly maintenance of Rs. 500/ was fixed to be paid to respondentwife by the Addl. Chief Judicial Magistrate, Hoshiarpur. However, an application for setting aside the ex parte order was filed by petitionerhusband which was dismissed resulting into revision against the said order in the Court of Sessions Judge. The wife then filed a complaint, subject matter of challenge in this petition under Sections 406/498/120B IPC read with Sections 4 and 5 of the Dowry Prohibition Act, 1961. This complaint is not only against the petitionerhusband but there are eight other persons arrayed as coaccused in the said petition.

Mr. Mahajan, learned counsel appearing on behalf of the petitioners from the sequence of events as have been enumerated above, contends that it is evident that complaint, Annexure P2, came to be filed after a long period of not only the marriage but also after filing of petition under section 9 of the Hindu Marriage Act as a counterblast as also with a view to harass the husband and his family members. He further contends that the long trial emanating from the complaint aforesaid would, out of necessity, compel the petitioners to travel a thousand of kilometers so as to attend that Court at Hoshiarpur as petitioners for their livelihood are putting up at Madhya Pradesh. He further contends that for taking cognizance in the case, bar created by Subsection (2) of Section 7 of the Dowry Prohibition Act was completely ignored by the Magistrate concerned. He further contends that as per the provisions of Section 7(2) of the Act aforesaid, no Court could take cognizance of any offence punishable under Sections 3, 4 and 4B except upon a complaint made within one year from the date of the offence by some person aggrieved by the offence and that it was apparent from reading of the complaint in question that the same was filed after many years from the alleged date of commission of offence. He also contends that there was no permission of the District Magistrate as envisaged by Section 8A of the 1961 Act and in the absence thereof the complaint was not maintainable.

In pursuance of notice issued by this Court, reply has been filed by the respondentwife controverting the allegations noted above.

I have heard learned counsel for the parties and gone through the records of the case. In so far as contentions of learned counsel for the petitioners with regard to applicability of Section 7(2) of 1961 Act and necessity of prior sanction of District Magistrate, are concerned, the same appear to be, prima facie, correct. However, no definite opinion is required to be given as even if the said contentions are accepted, the same would at the most result into quashing of complaint under various Sections of Dowry Prohibition Act. That would not serve the purpose of petitioners as, obviously they have been accused of other offences under Indian Penal Code as well. It shall, thus, be for the Magistrate concerned to consider the points raised by learned counsel.

In so far as other arguments of learned counsel for the petitioners are concerned and which have been noted above, there may be some truth therein as it is only after the decree of restitution of conjugal rights was granted against respondentwife that complaint, subject matter of challenge herein, came to be filed. However, without recording evidence in the matter, giving of definite opinion on the aforesaid issue would be neither fair nor legal. Such an opinion in confirmed view of this Court, should be given only after the evidence of parties is recorded which is exclusively in the domain of the trial Court. That being the situation, no occasion arises to quash the complaint.

However, in peculiar facts and circumstances of the case inclusive of that petitioners are living at a far off distance as also that a decree for restitution of conjugal rights has already been passed in favour of the husbandpetitioner and on the basis of which it shall always be open to him to even obtain a decree for divorce as also that the complaint came to be lodged after quite a few years since the husband and wife parted company, it will be a fit case where all the petitioners should be granted exemption from personal appearance before the trial Court as Hoshiarpur. Thus, it is ordered that if the petitioners apply for grant of their personal exemption the same shall be granted subject, of course, to their giving undertaking to the trial Court that the lawyer engaged by them shall appear on their behalf on each date of hearing as also that as and when called for some specific purpose, they shall come present and that the evidence recorded in their absence, but in the presence of their lawyer shall be binding upon them.

Disposed of accordingly.