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2013 DIGILAW 709 (GUJ)

Aarifuddin Shahbuddin Pathan v. State of Gujarat

2013-12-05

K.J.THAKER

body2013
JUDGMENT : K.J.THAKER, J. 1. This petition is taken up final hearing. Even in the fourth round, Mr.H.A.Shah, learned advocate for the respondent is absent. 2. The facts of the present case are that the applicant is the elder brother inlaw of the complainant. The marriage of the complainant had taken place with Ejajkhan. Initial period of 3½ years of her marriage life, she lived happily with her inlaws and there was no dispute between them. 2.1 It is case of the applicant that he was not present in India when the marriage took place as he was serving at Saudi Arabia. 2.2 As per the say of the complainant, after 3½ years of her marriage, she was tortured by her inlaws as she could not give birth to a child. She alleged that her inlaws had demanded lakh rupees failing which she would be driven from the home. 2.3 The case of the applicant is that he was not present in India during the period of 13.12.2006 to 17.01.2009 in which the alleged incident as stated by the complainant is taken place. 2.4 It is stated by the applicant in his application that entire career of the applicant is ruined due to present complaint, though he was abroad is borne out from the document produced. Hence, the present petition. 3. Having heard Mr.H.S.Soni, learned APP appearing for the State and going through the record, it appears that it is an admitted position of the fact that Aarifuddin Shahbuddin Pathan was abroad during the period when these allegations are made against him. While referring to page 17, looking to his passport and looking to his visa and the averments in the complaint also, he is brother inlaw of the complainant - wife and the averments made in the complaint do not disclose any offence against this accused under 498A IPC. Provision of Section 498A of IPC reads as follows : " "498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." 4. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." 4. The applicant is arraigned as one accused in the complaint filed by Hajrabanu who happens to be the wife of applicant's brother Ejaj and hence, in relation the applicant is brother-in-law of the complainant. 5. The marriage of the complainant Hajrabanu had taken place with the Ejajkhan. It is pertinent to note that the applicant was not present in India when the marriage took place as he was serving at Saudi Arabia. 6. As per the complaint it is alleged that during initial period of 3½ years of marriage life she lived happily with her inlaws and there was no dispute with any members of the family. 7. It is alleged that during this period the inlaws including the present applicant had tortured and had also demanded dowry and hence the complaint came to be filed against the family members. However interestingly the husband is not made accused. 8. The husband of the complainant has already sent talaknama at Annexure - C to Hajrabanu due to differences between them and the present complaint is filed with ulterior motive to pressurise the family members to settle the issue. 9. The applicant was not present in India during the above period as per the passport at Annexure - B, hence, there is no question of committing the alleged offence by the applicant when he was not present in India during the said period. As per the complainant herself she is staying at her father's home since last 2 years in that event there cannot be any occasion for the applicant to commit the offence as alleged on the complainant. 10. The complainant Hajrabanu had send a notice dated 26.03.2009 to her husband Ejajuddin wherein there is no allegation against any of the family members for demanding dowry and subsequent filing of complaint alleging dowry demand is clear abuse of process of law. 11. 10. The complainant Hajrabanu had send a notice dated 26.03.2009 to her husband Ejajuddin wherein there is no allegation against any of the family members for demanding dowry and subsequent filing of complaint alleging dowry demand is clear abuse of process of law. 11. The entire career of the applicant is ruined as the applicant is not able to go abroad for job due to the present complaint and the complainant has succeeded in abusing the process of law by filing complaint against the applicant when he was not present in India. 12. The applicant's passport on Ex.B, which shows that at the relevant time his present in India is also very doubtful whether there was any communication from him is also not proved, rather a Talaqnama was already given. Even in the notice given by learned advocate Mr.Malik Abbasbhai Yasinbhai, name of present petitioner is nowhere mentioned and hence, looking to these facts and circumstances, this petition requires to be allowed. 13. The complaint does not disclose commission of offence under Section 498A read with 506 of IPC, the ingredients are not satisfied which would permit this Court to quash the complaint qua petitioner and rather after the talaqnama, which was altered into in the year 2008, this is a belated complaint. Criminal complaint bearing C.R.No.43 of 2009 filed in Balasinhore police station, Distt. Kheda for the offence punishable under Section 498A, 504 & 114 of Indian Penal Code and under Section 3 & 7 of Dowry Prohibition Act is quashed under 482 of Cr.PC. 14. Rule is made absolute. The complaint is not quashed qua other accused persons. Petition Allowed.