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Judgment
P.K. Deb, J.—This petition u/s 482 of the Code of Criminal Procedure has been preferred for quashing of the entire criminal proceeding including the order of cognizance dated 25.9.1995 passed by the then judicial magistrate, 1st class, Patna, in complaint case No. 757 of 1995.
Opposite party No. 2 filed the above-mentioned complaint case with the allegations that she was legally married wile of Petitioner No. 2, Shiv Nandan Singh and the marriage had taken place about 40 to 42 years back according to Hindu rites and rituals. They lived as husband and wife for long time and three daughters, namely, Manju Kumari, Renu Kumari and Shila Kumari were born to them in the said wed-lock. Manju Kumari had already been married. Petitioner No. 2, when the complaint was filed, was an employee of Bihar State Co-operative Bank, Patna. According to the complainant, Petitioner No. 2 had developed illicit relationship with Petitioner No. 1 Meena Devi and as a result of which he started misbehaving with the complainant and ultimately she came to know that on 28.9.1983 Petitioner No. 2 had married Petitioner No. 1 before the Special Marriage Registrar, Patna. According to the complainant as the said marriage was held in the life time of the complainant then the Petitioners are liable for (sic)ting offence as punishable u/s 494 of the Indian Penal Code, After the complaint was filed on the ground of torture and humiliation Section 498A of the Indian Penal Code was also included. During the course of enquiry besides the complainant being examined, her two daughters Manju Kumari and Renu Kumari were also examined as witnesses and then cognizance was taken as already mentioned above.
It is the contention of the Petitioners that Petitioner No 2. had (sic) a divorce case No. 41 of 1977 against the complainant before the District Judge Patna, on the ground of adultery with one Ramashraya Singh. It was also stated that for long time the complainant was not having conjugal life with the Petitioner No 2. The complainant did not contest the divorce case and ultimately vide order dated 4.1.1983 divorce decree was granted and on 28.9.1983 marriage was solemnized between the two Petitioners and a son was also born in that wed-lock about nine months after the decree of divorce between the two. The complainant had also filed a maintenance case u/s 125 of the Code of Criminal Procedure in the year 1977 being case No. 460 of 1977 and the judicial magistrate vide order dated 16.5.1978 dismissed the maintenance case and then a criminal revision No. 375 of 1978 was preferred by the complainant before the District Judge, Patna and by order dated 19.9.1979 maintenance was granted at the rate of Rs. 250/ - per month to the complainant. The complainant admitted in her petition for maintenance that she was not having conjugal life with the Petitioner No. 2 for the last eight years since the filing of the petition u/s 125 of the Code of Criminal Procedure. All these facts, as is stated for and on behalf of the Petitioners, had been admitted from the side of the complainant opposite (sic) 2 but it has been alleged that before to so called marriage between the two Petitioners they were having (sic) relationship beforehand and the complainant and to suffer humiliation and mental torture for more than two to three decades.
During the course of argument it could be understood that the grievance of the complainant is mainly for shirking of the responsibilities by the Petitioner No. 1 in getting his marriage of the daughters in giving marriage according to the status it has been urged from the side of the opposite party No. 2 that both the complainant and Petitioner No. 2 had reached at old age and practically there is no scope of any mutualisation between the two but an old lady having been two daughters in her custody facing much difficulty and sufficient taboo is there on her head for which she is not in a position to get good bridegrooms for her well-educated two daughters. On the other hand. Mr. Parbat appearing for and on behalf of the Petitioners has submitted that the father is ready to give in marriage of his two daughters but the daughters must abide by his choice of bridegrooms and not to go by the whims of the claims of the mother and daughters. It has further been submitted by Mr. Parbat that the retrial benefits of Petitioner No. 2 had also been attempted by the complainant to take the lion share and practically by filing so many cases already Petitioner No. 2 has been harrased but still then he is ready to discharge his responsibilities towards giving marriage of the two daughters. Regarding the criminal case, it appears that the same has been filed only to keep pressure on Petitioner No. 2 because it was within the knowledge of the complainant regarding their second marriage which was solemnized long back but she had not taken steps earlier and the delay has not been explained in any way whatsoever. Moreover, it we go to the factual aspect then it appears that the divorce decree was passed ex parte and the second marriage was solemnized and as such there cannot be any scope of application of Section 494 of the Indian Penal Code. It is submitted that against the ex parte decree of divorce already a petition under Order 9 Rule 13 of the CPC was filed from the side of the complainant and the same had been allowed in the revisional court and the ex parte decree is not bad in the eye of law at present. Only because the ex parts decree has been set aside at a subsequent stage the second marriage solemnized after the ex parte decree of divorce cannot be said to be an illegal one and may not attract the provisions for inviting criminal offence u/s 494 of the Indian Penal Code. Moreover, it is admitted fact that the parties are living separately since two decades back. In that way Section 498A of the Indian Penal Code may not be applicable. Moreover, at the time when torture and humiliation being alleged Section 498 A of the Indian Penal Code was not included in the Code of Criminal (sic) and as such, when the penal provision has got no retrospective effect, cognizance taken u/s 498A of the Indian Penal Code is definitely bad in the eye of law. In this connection reference may be made by the Petitioner as reported in Renu and Others Vs. State of Haryana and Another, .
It has been submitted by the learned Counsel for and on behalf of the opposite party No. 2 that the offence u/s 498 of the Indian Penal Code is continuing one and still these days there may not be physical torture but mental torture is going on the complainant. After fighting so many cases between the parties when the spouses had reached at old age, I do not think that at this stage Section 498A of the Indian Penal Code can be applicable. Moreover, at the time of filing of the complaint case the said section was not there and afterwards the same had been included. The criminal case, in the facts and circumstances, is nothing but an abuse of the process of the court and hence the whole of the criminal case including the order of cognizance is hereby. quashed but as undertaken from the side of the Petitioner No. 2 this Court also observes that being father of two marriageable daughters, Petitioner No. 2 must make all efforts to give in marriage of the marriageable daughters so that they may not suffer for the differences between the parents. The petition is thus allowed with the observation as mentioned above.