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Judgment
T.K. Kaushal, J.—Petitioners have filed this petition u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Code) seeking a relief for quashing the criminal proceedings of Criminal Case No. 1171/2010 pending in the Court of J.M.F.C. Sihora, District-Jabalpur, u/s 498A/34 IPC against the petitioners. Facts giving rise to this petition, in short, are that on 17.2.2005, petitioner No. l was married to respondent No. 2. Having some doubt regarding age of respondent No. 2, petitioner obtained mark sheet of respondent No. 2 from Government Middle School, Majholi in which her date of birth was mentioned as 1.1.1967. It was revealed that at the time of marriage respondent No. 2 was aged 38 years whereas petitioner No. 1 was only 26 years old. Fact of actual age was concealed by the wife.
Having felt cheated by marrying with a lady 11 years elder to him, respondent No. 1 on 26.4.2005 filed a petition u/s 12(1)(c) of the Hindu Marriage Act to declare the marriage a nullity.
During pendency of that matter in Family Court, on 5.8.2006, F.I.R. was lodged at Police Station Majholi, District-Jabalpur. A case u/s 498A/34 IPC and 3/4 of Dowry Prohibition Act was registered against the petitioners.
On 24.4.2009, petition filed by the petitioner No. 1 in the Family Court was allowed and marriage dated 17.2.2005 was declared nullity on the ground that overage of the wife was suppressed deliberately by her. Aforesaid judgment of the Family Court was assailed by the wife in the High Court. Vide judgment dated 14.12.2008, appeal No. 341/07 was dismissed holding that marriage was a result of fraud practice adopted by the wife by showing her less age and concealing her real age.
It is submitted by the petitioners that Police Majholi, District-Jabalpur found no case is made out against the appellant and sent a Khatma report u/s 169 of the Code but J.M.F.C. Sihora did not agree with the khatma report and charge sheet was filed in the court of J.M.F.C. Sihora and bailable warrant against the petitioners were issued.
Learned counsel for petitioners placing reliance on Kailash Chandra Maheshwari and Others Vs. State of Madhya Pradesh and Others, submitted that FIR. is lodged after a period of 15 months from the date of incident and as a counter blast of divorce petition filed by the husband hence such abuse of process of court of law should be stopped.
Per contra it is submitted by the counsel for respondents that findings of Civil Court is not at all come in the way of the trial court while a criminal case is registered and charge sheet is submitted on the basis of FIR.
According to respondent No. 2, petitioner No. 1 while was working as a Salesman of Dabar Company came into her contact at her Kirana shop at Majholi. Intimacy was developed and marriage was solemnized with the consent of parties with full understanding that she is elder to the husband. About Rs. 10 lacs were spent in the marriage. From the next day of the marriage petitioners expressed their dissatisfaction and were expecting more cash from her family members. At the time of marriage, she stayed for about 10 days in the matrimonial house. She came back to her parents house. After about 8 days, petitioners, came to her parents house and demanded Rs. 5.00 lacs more to open a Readymade Garments shop but parents of respondent No. 2 were not in a position to fulfill the demand. She visited her matrimonial house 4-5 times but was subjected to harassment by the petitioners.
Husband filed application in the Family Court just after a period of 21/2 months of the marriage. Husband and wife visited Parivar Paramarsh Kendra repeated times but was of no avail. Whether there had been a demand of Rs. 5.00 lacs for starting Readymade Garments business from the wife so that she can be permitted to live as a wife with husband is the main question which required to be decided in the criminal trial. Whether any such demand was raised by him or not is a question of fact and requires evidence.
Case diary reveals that in view of the judgment of the Civil Court, khatma was proposed because no case u/s 498A/34 IPC and 3/4 of Dowry Prohibition Act would be made out against the petitioners. Even then, the charge sheet has been submitted in the trial Court.
Taking entire facts in totality and judgment of the Civil Court into consideration, it appears that over age of the wife remained the point of controversy always. Since Rs. 10.00 lacs were spent in the marriage. Whether husband demanded Rs. 5.00 lacs from the wife or not is the question to be decided in the trial. Then, cause of fifteen months delay in lodging the FIR. may also be explained.
Prima facie allegations of harassment of wife leveled against the husband. As against other relatives, facts of cruelty and harassment is exaggerated and seems to be not well founded hence in respect of other relatives of husband, like father, mother, sister and jija ji, continuing of this criminal trial, will certainly abuse of the process of the court of law. Husband and wife remained litigants in civil case, in Parivar Paramarsh Kendra. F.I.R. and charge sheet against the husband can not be quashed. Truthful and genuiness of the F.I.R. cannot be seen by this Court at this stage. Scope of the inherent power is only to prevent the abuse of the process. Continuance of the criminal trial against the petitioners, except husband, will be abuse of process of law hence criminal proceedings in the trial Court are quashed in respect of petitioners No. 2 to 5. In respect of petitioner No. 1, criminal proceedings are allowed to be continued.
Petition is partly allowed as indicated above.