Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 769 (PAT)

Md. Asfar Towheed v. State Of Bihar

2006-08-28

REKHA KUMARI

body2006
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure for quashing the order dated 30.11.2004 passed by the Sub-divisional Judicial Magistrate, Patna in complaint case No. 2523(0/2004 by which he has ordered to issue summons against the petitioner and others for facing trial under Sections 498-A, 406 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act. 2. Heard both the parties. 3. The case of the complainant (O.P. No. 2) is that she was married to the petitioner on 24.10.1999 at Patna according to Muslim law. The other two accused are his father and mother. After marriage, on the same day she went to her matrimonial house. At the time of marriage several articles, ornaments, cash etc. amounting to Rs. 5 lacs were given as gift. The petitioner and his parents were not happy with the same and wanted more dowry. The parents of the petitioner, however, taunted her for insufficient dowry. After 15 days of the marriage, the petitioner went to America where he was doing a job of Software Engineer and in the meantime the complainant on 9.11.1999 returned to her parental house as the parents of the petitioner compelled her to leave the matrimonial house by their misbehavior and cruel attitude. The petitioner thereafter sent a visa to the complainant and the complainant went to America on 18.4.2000. There she found her husband having illicit relationship with an American girl "Dolly". She seriously objected to this relationship. The petitioner told her that in America it was a status symbol to have a girl friend and he demoralised her saying that she belongs to an orthodox and backward family. The complainant anyhow stayed there for about a year and returned to India with the petitioner on 19.8.2001. During their stay at Patna her parents tried to convine the petitioner to refrain from such relationship with another girl for cordial conjugal life. The petitioner promised to mend himself. Both of them again went to USA after staying for five weeks in Patna. During this stay all the accused persons asked the complainant to bring 12 lacs from her parents for purchase of a flat in the name of the complainant herself. The father of the complainant promised on 19.9,2001 to give Rs. 7 lacs provided the flat was purchased in the name of the complainant. During this stay all the accused persons asked the complainant to bring 12 lacs from her parents for purchase of a flat in the name of the complainant herself. The father of the complainant promised on 19.9,2001 to give Rs. 7 lacs provided the flat was purchased in the name of the complainant. Subsequently her father out of love and affection gave Rs. 7 lacs to the parents of the father of the petitioner as per direction of the petitioner in various instalments. Despite this all the accused were adament for further 5 lacs and for non-fulfilment of that amount the accused persons brutally assaulted her both mentally and physically. 4. It is further alleged that after going to America the petitioner despite his promise tried to establish her relationship with the above girl and on protest assaulted and demorlised her. He developed the habit of taking wine and wasting time in club and on objection she was subjected to cruelty. As a result of multi dimentional tension she suffered miscarriage on 13.5.2003. She was also not allowed to meet any of her relatives residing in USA. 5. The petitioner then on request of the complainant brought her to India. On 30.8.2003 the petitioner after reaching India want to Hydrabad and asked the complainant to go to her parental house at Patna. During this stay the petitioner did not come to Patna. So the complainant herself went to Hydrabad and in spite of atrocities on her she along with the petitioner on 14.9.2003 returned to America with the petitioner where the petitioner continued his torture and on 22.3.2004 she was forcibly sent to India and since then she has been living in Patna. It is also alleged that when she returned to India the petitioner sent E- mail to her not to return to America without his permission and also directed her to cancel the return ticket. The complainant on 2.7.2004 through E-mail requested the petitioner to reconsider his decision but to no effect and suddenly replied that unless his parents desire was fulfilled no question of sympathy arises and on 10.9.2004 asked her father to make payment of Rs. 5 lacs to his parents by the next month positively and on that date her father talked to the father and mother of the petitioner and showed his inability. 6. 5 lacs to his parents by the next month positively and on that date her father talked to the father and mother of the petitioner and showed his inability. 6. It is also alleged in the complaint petition that during his stay in America, the petitioner had pressurised her at several occasions to collect at least Rs. 50,000/-American dollers from her Phuphi and Phupha residing there and on refusal by her the petitioner himself told her Phupha on phone to send Rs. 50,000/- dollers otherwise the complainant would be in trouble. 7. After filing of the complaint, the complainant was examined on S.A. She also examined witnesses in enquiry under Section 202 Cr PC. The learned SDJM after perusing the complaint petition, the statement of the complainant on S.A. and the statement of the witnesses examined by the complainant, passed the impugned order. 8. Learned counsel for the petitioner submitted that the entire allegation against the petitioner is false. The petitioner divorced the complainant (O.P. No. 2) on 12.9.2004 (Vide certificate Annexure 4) and hence, O.P. No. 2 brought this case on 13.10.2004 to feed back her personal grudge with a malafide motive. He further submitted that the alleged torture committed by the petitioner on O.P. No. 2 in America even if accepted as true the same was due to his relationship with an American girl and was not related to any demand of dowry. Then though in the complaint petition it is stated that all the accused persons assaulted O.P. No. 2 and mentally and physically harassed her for non-payment of the remaining Rs. 5 lacs, the complainant in her statement on S.A. has even not made such statement. Therefore, no offence under Section 498-A. IPC is made out against the petitioner. There is also no allegation of breach of trust punishable under Section 406, IPC against the petitioner. 9. His submission further is that though in the complaint petition it is mentioned that during her stay at Patna all the accused persons pressurised the complainant to bring Rs. 15 lacs for purchase of flat, the complainant in her statement on S.A. has herself stated that her parents-in-law had demanded that amount. Her father also in his statement under Section 202 had stated that the father, mother of the petitioner had demanded the amount. Then though the complainant has stated that her father gave Rs. 15 lacs for purchase of flat, the complainant in her statement on S.A. has herself stated that her parents-in-law had demanded that amount. Her father also in his statement under Section 202 had stated that the father, mother of the petitioner had demanded the amount. Then though the complainant has stated that her father gave Rs. 7 lacs at the instance of the petitioner, her father has not even whispered about it. Again that the statement of the complainant is that on 10.9.2004 the petitioner threatened her on phone but her father in his statement has not stated anything abut it. So, there is no material against the petitioner for demand or receipt of any dowry and only to make out a case false allegations have been made out in the complaint petition. 10. He then submitted that though in the complaint petition it is mentioned that the petitioner asked the complainant to bring from her Phupha Rs. 50,000/- dollers and in her statement she has stated that this amount was for purpose of flat. it is inherently improbable and patently absurd that the amount would be demanded from phupha of the complainant. 11. Learned counsel for O.P. No. 2 defended the order. 12. I find force in the submission of the learned counsel for the petitioner and on the reasons mentioned by him I also find that the alleged demand or receipt of dowry by the petitioner is false and malafide on account of divorce of the complainant by the petitioner and that the alleged torture by the petitioner was not in connection with unlawful demand of Rs. 15 lacs and was not such as to drag O.P. No. 2 to commit suicide and that there is no allegation of breach of trust against the petitioner. 13. In the result, this application is allowed. The impugned order as regards the petitioner is set aside.