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2000 DIGILAW 238 (RAJ)

SUNITA v. STATE OF RAJASTHAN

2000-02-23

J.C.VERMA

body2000
Judgment ( 1 ) THIS is a petition on behalf of the former wife of one Atul Tyagi son of Narendra Singh. The petitioner No. 1 Sunita was so married to said Atul Tyagi on 21-2-1988. The petitioner No. 2 is the second husband of the petitioner No. 1 as per the statement made in the petition. Petitioner No. 3 is the father of the petitioner whereas petitioner No. 4 is the brother of petitioner No. 5 who is also close relative. The petitioner states that the petitioner No. 1 Sunita despite marriage having taken place in February, 1988 was being harassed by her in-laws. It is further stated that the earlier husband of the petitioner No. 1 Atul Tyagi was unable to perform matrimonial obligations and he was not competent to establish relationship of husband and wife despite the medical treatment. Ultimately it is stated that the petitioner No. 1 was turned out of the house on 28-6-1997. It is also alleged that she was being forced to bring more money from her parents. Compelled with the circumstances, ultimately a divorce petition was filed u/s. 13 of the Hindu Marriage Act being petition No. 921/98 before the Additional Civil Judge (C) III, Gaziabad. It is stated that notices were issued to Atul Tyagi, the husband who was a respondent in the divorce petition, he was also represented through his advocate on one date, but thereafter absented. Ex parte proceedings were taken against Atul Tyagi and the marriage was dissolved by a decree of divorce on 25-1-1999. It is the case of the petitioner No. 1 that after the marriage had been dissolved, no relation remained between the petitioner and Atul Tyagi. ( 2 ) THE petitioner No. 1, after obtaining the decree of the divorce remarried with petitioner No. 2 Sunil Tyagi, and ever since they were living together. It is also stated at the bar by the learned counsel for the petitioner No. 1 that she is pregnant after the second marriage having a pregnancy of 5-6 months. ( 3 ) NARENDRA Singh, father of Atul Tyagi resident of Jaipur got registered an FIR on 21-9-1999 reporting to the police that his former daughter-in-law Sunita has entered into a second marriage amounting to adultery. ( 3 ) NARENDRA Singh, father of Atul Tyagi resident of Jaipur got registered an FIR on 21-9-1999 reporting to the police that his former daughter-in-law Sunita has entered into a second marriage amounting to adultery. Further allegations were made in the FIR that her brother Vinod had taken her away along with all gold ornaments and other belongings on the pretext that she was required at her parents house in connection with some marriage of relations. The allegations against respondent Nos. 3, 4 and 5 have been made that they were the persons who had helped the petitioner No. 1 to get remarried. It is the contention of the petitioners that the process of law has been abused grossly in the said case to satisfy the vengeance of the complainant. Element of malice on the part of complainant has also been pleaded. It is also alleged that the investigating officer did not go into the facts of the case, nor he had enquired about the marriage by making any enquiries at Gaziabad. Even the petitioner No. 5 the sister of the petitioner No. 1 who is married at Kurukshetra has also been involved and implicated. ( 4 ) NOTICE was issued. The Investigation Officer was present on the date of the hearing. P. P. was also present. The Investigating Officer had produced the daily diary as well. It is not denied by him that the decree of divorce dated 25-1-1999 has been obtained by the petitioner No. 1 and that the earlier marriage stands dissolved. ( 5 ) THE FIR as recorded is to the effect that Sunita was married to Atul Tyagi on 21-2-1988 and they have been living together for 8 years i. e. upto 1996-97. For the last three years the relations between the husband and wife have got strained. It is further stated that one Sunil Tyagi used to talk on telephone and stated that on 6-6-1999 Vinod the brother of Sunita petitioner No. 1 had taken away her sister on the pretext of some marriage for one month. It is stated that before leaving, Sunita had taken away all gold and silver jewellery, details of which have been mentioned in the FIR and apart from the ornaments 30 sarees, 15 salwars and kurtas, 5 cardigans, watch and an amount of Rs. 35,000/- was also taken away. It is stated that before leaving, Sunita had taken away all gold and silver jewellery, details of which have been mentioned in the FIR and apart from the ornaments 30 sarees, 15 salwars and kurtas, 5 cardigans, watch and an amount of Rs. 35,000/- was also taken away. It is stated in the FIR that they visited the house of Sunita in Gaziabad on 4-9-1999 and found that Sunita is already remarried in Meerut and living with her husband. It was mentioned in the FIR that in the abovesaid conspiracy, the sister of Sunita i. e. Suman wife of Kirpal Singh resident of Kurukshetra is also involved. The police on receipt of the said complaint recorded an FIR u/s. 406 and 497, IPC and started investigations. ( 6 ) FROM the daily diary, I find that the police has not tried to investigate the matter in the manner it should have been done. Only the statements from the complainant side have been recorded. None seems to have visited the Court where the divorce had been allowed even to find whether Atul Tyagi respondent had appeared in the Court or to find out about the decree of divorce. There is no statement recorded by the Investigating Officer from the place where the girl was married. The police has only collected the evidence of earlier marriage of February 1988 which fact is otherwise not denied which is clear from the decree of divorce itself. ( 7 ) THE question which arises is whether in view of the divorce decree already passed on 25-1-1999 and the remarriage having taken place after six months of the dissolution of marriage, i. e. on 11-7-1999, can it be said that any offence has been committed by the petitioner No. 1 after obtaining the divorce petition and whether the offence u/s. 497 is made out. ( 8 ) COUNSEL for the petitioner has also placed on record the certified copy of the proceedings of the Court of the Civil Judge (Sr. Div. ). Gaziabad in case No. 921/98. The divorce petition was filed on 12-8-1998. A certified copy bearing the photograph of Atul Tyagi on the power of attorney in favour of advocate Shri Kanwar Pal Singh has also been placed on record which was submitted to the Court on 29-9-1998 and the presence was marked. Div. ). Gaziabad in case No. 921/98. The divorce petition was filed on 12-8-1998. A certified copy bearing the photograph of Atul Tyagi on the power of attorney in favour of advocate Shri Kanwar Pal Singh has also been placed on record which was submitted to the Court on 29-9-1998 and the presence was marked. On subsequent hearing the petitinoer No. 1 was present in the Court at Gaziabad, but the respondent absented. These were the matters which were to be investigated by the Investigating Officer to find the real truth of the complainant. The investigating officer perhaps was not knowing his duties in making the enquiries. Had he probed the matter properly or had gone into depth and tried to find out the real position, may be the result would have been different. ( 9 ) IN my opinion, it is a case where the abuse of the process of law with the assistance of the Investigating Officer is clearly made out. Petitioner No. 1 is re-married since July, 1999 on the basis of the divorce having been obtained by her, she is pregnant after the second marriage. Till the divorce decree is not set aside which has incidently not been challenged, earlier marriage stands dissolved and no offence has been committed by the petitioner in re-marrying after the said divorce decree. The prosecution story also seems to be improbable in regard to the materials. If the brother of petitioner No. 1 had taken away the petitioner Sunita only for attending the marriage in her parent house, it is un-imaginable that the complainant who was having very strained relations for the last three years would allow her to take all the ornaments, 30 sarees, 15 kurtas etc. etc. as mentioned in the complaint when she was going for only couple of days. The prosecution is not only improbable but I think it is clear case of abuse of process of Court and investigation. ( 10 ) CERTIFIED copies of the proceedings of the Court of Civil Judge (Sr. Div.) Gaziabad in Case No. 291/98 and also the certified copy of the power of attorney said to have been filed by the Former husband Atul Tyagi along with his photograph on it is placed on record of this case. ( 11 ) FOR the reasons mentioned above, I have no hesitation in allowing the criminal misc. Div.) Gaziabad in Case No. 291/98 and also the certified copy of the power of attorney said to have been filed by the Former husband Atul Tyagi along with his photograph on it is placed on record of this case. ( 11 ) FOR the reasons mentioned above, I have no hesitation in allowing the criminal misc. petition and quash the proceedings in FIR No. 312/99 Police Station Vidhayakpuri, Jaipur. Petition allowed. .