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2019 DIGILAW 168 (ORI)

Papu @ Satyabrata v. State of Orissa

2019-03-01

A.K.MISHRA

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JUDGMENT : A.K. Mishra, J. Prayer has been made to quash the entire proceeding as well as the order of cognizance dated 2.5.2013 in C.T. Case No.87 of 2013 pending in the court of SDJM, Balasore. 2. Heard learned counsel for the petitioner, learned Addl. Standing Counsel and learned counsel for the opposite party no.2-informant. 3. Case of the petitioner is that the opposite party no.2 married to opposite party no.3 and both of them were serving as School Teachers. On 7.1.2013, the wife went to the School and did not return. The husband searched but failed to trace out as such he filed F.I.R. suspecting that the present petitioner Papu @ Satyabrata Behera had abducted his wife. The F.I.R. was registered under Section 366 and 364 of IPC vide Khantapada P.S. Case No.12 of 2013. 4. In course of investigation, statement of the victim was recorded under Section 164 Cr.P.C., 1973 and she had stated therein that on her own volition she was staying with her uncle's house and the present petitioner had no relation with her and her husband had filed this false case to avoid divorce petition filed by her. 5. Learned counsel for the petitioner files the photocopy of the order dated 23.11.2017 of the Judge, Family Court, Cuttack dissolving the marriage between them by decree of divorce. He submits that the wife-opposite party no.3 was a major and has attributed no fault to anybody for staying separately, as such filing of F.I.R. was mala fide and cognizance order needs to be quashed to prevent harassment. It is also submitted that the O.P. No.3 has also filed affidavit in this Court in the above manner. 6. Learned counsel for the opposite party no.2 submits that even if wife is a major, she cannot stay separately without consent of her husband and the offences under section 366 and 364 of IPC are made out. 7. Learned Addl. Standing Counsel submits that offence under section 498 of IPC is made out against the present petitioner as he had taken away the wife of opposite party no.2 knowingly. 8. It is not disputed that wife-opposite party no.3 had married O.P. No.2 and was serving as a Teacher. She was major. 7. Learned Addl. Standing Counsel submits that offence under section 498 of IPC is made out against the present petitioner as he had taken away the wife of opposite party no.2 knowingly. 8. It is not disputed that wife-opposite party no.3 had married O.P. No.2 and was serving as a Teacher. She was major. When she states that on her own volition she left her husband's house and has not attributed the culpability of the petitioner for commission of any offence, it cannot be said that she was abducted or kidnapped as defined under section 359 and 362 of IPC. 9. Further the Hon'ble Apex Court has reiterated that a major woman on her own will can select her abode and if such exercise of will is lawful, none can attribute fault to her. In the decision reported in AIR 2018 SC 1933 in the case of Shafin Jahan v. Asokan K.M. and others, Hon'ble Apex Court has been stated as follows:- "xxx xxx xxx What is seminal is to remember that song of liberty is sung with sincerity and choice of individual is appositely respected and conferred its esteemed status as Constitution guarantees. xxx xxx xxx Expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and ultimate action emanating therefrom on conceptual structuralism of obeisance to societal will destroy individualistic entity of person. Social values and morals have their space but they are not above constitutionally guaranteed freedom. xxx xxx xxx Intrinsic to liberty which Constitution guarantees as fundamental right is ability of each individual to take decisions on matters central to pursuit of happiness. Matters of belief and faith, including whether to believe are at core of constitutional liberty. Constitution exists for believers as well as for agnostics. Constitution protects ability of each individual to pursue way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within central aspects of identity. Law may regulate (subject to constitutional compliance) conditions of valid marriage, as it may regulate situations in which marital tie can be ended or annulled. These remedies are available to parties to marriage for it is they who decide best on whether they should accept each other into marital tie or continue in that relationship. Law may regulate (subject to constitutional compliance) conditions of valid marriage, as it may regulate situations in which marital tie can be ended or annulled. These remedies are available to parties to marriage for it is they who decide best on whether they should accept each other into marital tie or continue in that relationship. Society has no role to play in determining our choice of partners." 10. In that view of the matter, this Court is of the opinion that the continuance of the proceeding against the petitioner in C.T. Case No.87 of 2013 will be an abuse of the process of the Court and the chance of conviction is so bleak that it needs to be quashed. 11. Accordingly, the entire proceeding as well as the order of cognizance dated 2.5.2013 passed in C.T. Case No.87 of 2013 pending in the court of SDJM, Balasore is quashed. 12. The CRLMC is allowed.