Nahid Akthar vs State Of Rajasthan

Arun Monga, J

Quashing of FIR No. 35/2024, dated 16.03.2024, lodged at Police Station Jamsar, District Bikaner, for offences under Sections 420, 406, 494 and 120-B of IPC, is sought herein. FIR is at the instance of respondent no.2 husband against his wife/petitioner herein alleging inter alia that she has remarried for the second time during subsistence of her marriage with him.

Briefly stated, the relevant facts as pleaded in the petition are that the complainant (husband-repondent.2 herein) lodged the FIR, stating that he married the petitioner (wife) on 22.10.2008 under Islamic law. They have two daughters from their wedlock. Since their marriage, the petitioner (wife) allegedly dominated him, forced him to live with her family and mistreated him. Their marriage fell on the rocks. At one stage they settled the matter by executing a compromise deed on 15.03.2017 whereby the complainant (husband) paid ₹5,30,000/- to the petitioner (wife) for her and their daughters as one time settlement/compensation.

2.1 After the compromise, the complainant has also remarried without taking divorce from petitioner. The petitioner filed a divorce suit on 06.07.2018, registered as Case No. 87 of 2018, which is still pending. The petitioner (wife) then allegedly started living with one Aslam after marrying him. She filed an application for maintenance under Section 125 Cr.P.C., concealing her marriage to Aslam. Interim maintenance was awarded but since the complainant/respondent no.2 did not pay, petitioner filed another application for enforcement of maintenance order under Section 125(3) Cr.P.C. Petitioner’s case is that the FIR is nothing but a tactic to avoid compliance of orders passed under Sections 125 and 127 Cr.P.C. Hence the instant petition.

In the aforesaid factual backdrop, I have heard the rival contentions and perused the case file.

Learned counsel for the petitioner submits that the FIR in question against the petitioner appears to be a tactic by respondent No.2 to exert undue pressure on the petitioner with malicious intent. The parties are already in litigation regarding the dissolution of marriage and maintenance. The FIR seems designed to harass the petitioner and force her into compliance with illegal demands.

4.1. Learned counsel further submits that the matrimonial dispute of the petitioner and respondent No. 2 is under adjudication and during its pendency, the FIR was filed by respondent No. 2. Vide an interim maintenance order dated 01.03.2019, the complainant was directed to pay Rs. 16,000 to the petitioner and her daughters. The FIR is to undermine a binding maintenance order passed by the family court which has attained finality. If the complainant is aggrieved of family court order, he should challenge it before the competent court rather than lodging a false FIR as a counter blast.

4.2. Learned counsel also submits that the FIR is liable to be quashed due to a six-month delay in its filing after the complainant claims to have allegedly discovered the purported second marriage. This delay, without explanation, indicates a strategy to harass the petitioner. In fact, it is the complainant himself who has contracted a second marriage on 07.06.2018.

The aforesaid contentions are vehemently opposed by the learned Public Prosecutor and learned counsel for respondent No.2.

Concededly, the complainant claims that he is lawful husband of the petitioner herein. His allegation is that since his wife had married for the second time and the said fact was since not disclosed to the Court, granting the interim maintenance, therefore, he filed a police complaint that she is committed the offence of 406 of IPC. It is unfathomable, as to how, the offences under Sections 420 and 406 of IPC are attracted merely because the husband thinks, without any proof, prima facie or otherwise, that his wife has married for the second time. At the most, even if it were to be believed that the husband is correct in nurturing the notion- whether right or wrong- the petitioner wife had married for the second time at worst if attracts the offence of bigamy under Section 494 of IPC.

Trite law it is that Section 420 of IPC arises out of cheating and inducement to deliver of property and Section 406 of IPC arises out of entrustment of property in trust followed by breach of such trust. None of these essential ingredients in the present case are made out to attract those provisions. The inclusion of offences under section 406 and 420 of the IPC in the impugned FIR is thus ex-facie a complete abuse of the process of law. Qua these offences (under section 406 and 420 of the IPC),the FIR is not sustainable.

Accordingly, the instant petition is partly allowed and FIR No.35/2024 dated 16.03.2024, lodged at Police Station Jamsar, District Bikaner for offences under Sections 420 and 406 against the petitioner is partly quashed with consequences to follow.

In the parting I may hasten to add that it is expected of the Investigating Officer to strictly follow the guidelines rendered by Supreme Court in Arnesh Kumar Vs. State of Bihar and Anr (2014) 8 SCC 273

Petitioner is directed to join the investigation. If during the investigation, in case any incriminating material of such nature is found against the petitioner, which prima facie is suggestive of any cognizable offence committed by her, warranting her arrest, then a prior notice of one week under Section 35 of BNSS shall be given to her so as to enable her to seek legal remedy in accordance with the law.

Pending application(s), if any, also stand disposed of.