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2019 DIGILAW 254 (JK)

Amit Sharma v. Monika Sharma

2019-04-26

SANJAY KUMAR GUPTA

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JUDGMENT : Sanjay Kumar Gupta, J. 1. Since common questions of law and facts are involved in these two petitions, the same are heard together and are being disposed of by this common judgment. One petition is filed by the husband and another by in-laws of respondent. The facts in brief are taken from CRMC No. 174/2011. 2. The petitioner married to the respondent as per Hindu rites and ceremonies on 03.02.2008. It is contended that since the inception of marriage, the conduct of the respondent was indifferent towards the petitioner and his family, and ultimately she left the matrimonial house of the petitioner in July 2009 without assigning any reason. The petitioner persuaded the respondent to come back to home, but she turned a deaf ear to the petitioner's request, which ultimately let the petitioner to institute a petition under Section 09 of the Hindu Marriage Act for restitution of conjugal rights, which is pending disposal in the Court at Kathua. 3. It is further contended that in order to harass the petitioner, the respondent filed a false and frivolous complaint, titled, "Monika Sharma v. Amit Sharma & Ors." against the petitioner and his parents in the Court of Munsiff, Kathua. The process in the said complaint was issued by the learned Magistrate against the petitioner vide order dated 25.03.2011. The petitioner has impugned the said order dated 25.03.2011 in this petition on the ground that the same has been passed in a routine and mechanical manner without recording satisfaction supplemented by reasons and without spelling out the ground on the basis of which process has been issued against the petitioner. That the impugned order is, thus, untenable in the eyes of law and deserves to be quashed. That the allegations made by the respondent in the complaint do not constitute any offence under the Ranbir Penal Code, for which the petitioner could be processed against. 4. Despite service, the respondent has not appeared. 5. I have considered the submissions made by learned counsel for the petitioner and perused the record. 6. From bare perusal of the file, it reveals that the respondent has filed complaint under Section 498-A RPC, read with Section 406 RPC against the petitioner herein before the Chief Judicial Magistrate, Kathua, who transferred the same to the Court of Munsiff, Kathua. I have considered the submissions made by learned counsel for the petitioner and perused the record. 6. From bare perusal of the file, it reveals that the respondent has filed complaint under Section 498-A RPC, read with Section 406 RPC against the petitioner herein before the Chief Judicial Magistrate, Kathua, who transferred the same to the Court of Munsiff, Kathua. The Munsiff Kathua vide order dated 25.03.2011 took cognizance and issued the process against the petitioner herein. The relevant part of the complaint reads as under: "3. That after solemnization of marriage, the complainant went to the house of accused persons for discharging her matrimonial obligations towards the accused No. 1. The relationship of the accused No. 1 with the complainant remained cordial for few days but thereafter the complainant found the accused No. 1 to be a man of arrogant nature. The accused No. 1 started giving cruel and un-affectionate treatment to the complainant and avoided the company of the complainant. The complainant could not understand the reason for the cruel behavior of accused. The accused Nos. 1 and 2 started passing sarcastic remarks of less dowry and less services (Khatadari) to the Baraat. The complainant maintained that she is the daughter of a retired Govt. Employee and her parents could not afford more than whatever they have given in the dowry. The complainant was not provided and kind of maintenance. Even at some occasions, the complainant was given merciless beating by the accused No. 1. The complainant however brought all these facts into the notice of accused Nos. 2 and 3 but all of them paid no heed towards the complainant rather the accused Nos. 2 and 3 also joined hands with the accused No. 1 and started treating the complainant with cruelty. The complainant was not allowed to visit her parents and the accused persons used to keep locked the main Gate of the House at many occasions. The complainant, however, carried on for the sake of happy married life but the accused No. 1 did not mend his attitude and more particularly on dated 07.09.2009, the accused No. 1 and his parents accused Nos. 2 and 3 turned out the complainant from her matrimonial home after giving severe beating. The complainant was not allowed to get her Stridhan or even wearing apparels etc. 2 and 3 turned out the complainant from her matrimonial home after giving severe beating. The complainant was not allowed to get her Stridhan or even wearing apparels etc. Thereafter also, the accused No. 1 did not provide any Kind of maintenance of whatsoever nature to the complainant. Aggrieved of the situation, the complainant approached the J & K State Commission for women for redressing her grievances but the accused No. 1 willfully did not appear. Since then, the complainant has been residing at her parental house at Ward No. 16 Shiv Nagar, Kathua Tehsil and District, Kathua. 4. That the accused persons have been treating the complainant with severe cruelty both mental and physical after making regular demands of Dowry, cash etc. The life of the complainant has become hell on earth. The hopes of the complainant to lead a happy married life have been dashed to ground. Apart at the time of marriage, complainant's parents have given various dowry items which are lying with all the accused persons. The items include T.V., Refrigerator, Washing Machine (Make Samsung) Furniture etc. including Golden Ornaments weighing 10 Tolas and Silver Ornaments weighing 10 Tolas, and wearing apparels. 5. That the above said items include Stridhan and have been entrusted to the accused No. 1 along with accused person Nos. 2 and 3 at the time of marriage of the complainant. The said items are absolute ownership of the complainant and cannot be transferred into co-ownership or partnership. The accused persons are trustees and are bound to return the same to the complainant. But the accused persons are willfully misappropriating and disposing of the said items with dishonest and criminal breach of trust etc." 7. I have considered the contentions of petitioners. From the perusal of divorce deed (customary divorce deed) dated 01.03.2012 attested on 03.03.2012 by Notary Kathua, it is evident that respondent has already entered into agreement that she will withdraw her complaint filed under Section 498-A/406 RPC pending before JMIC Kathua. She has also stated that she has received all the items from petitioner/husband and has been sufficiently compensated. As already held, respondent despite service has not appeared, so inference can be drawn that she has nothing to say and she has impliedly has no objection in case complaint is quashed on account of compromise. 8. She has also stated that she has received all the items from petitioner/husband and has been sufficiently compensated. As already held, respondent despite service has not appeared, so inference can be drawn that she has nothing to say and she has impliedly has no objection in case complaint is quashed on account of compromise. 8. In AIR 2003 SC 1386 in case titled 2003 (2) JKJ 439 [SC] B.S. Joshi & Ors. v. State of Haryana & Anr., it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498-A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary. Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power. 9. Further from perusal of contents of complaint, it is evident that general type of allegations have been leveled without mentioning any date, month, time and year of alleged allegations. Allegations do not show specific acts attributed to the husband and his parents; as already held there is general omnibus allegation that they also harassed the complainant. Except casual reference of names of parents in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. There is no specific mention of articles of dowry items entrusted to accused and allegedly misappropriated by accused. General allegations have been leveled in this regard. In this way, no essential ingredients of Section 498-A/406 RPC have been made out. 10. In case titled G.V. Rao v. L.H.V., Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, the Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordship observed therein with which we entirely agree that: ".......There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of Law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts........." 11. The view taken by the judges in the matter was that the courts would not encourage such disputes. 12. Now it is settled law that calling a person to stand criminal trial is a serious matter, so court should examine the allegations leveled in complaint carefully; court should take cognizance on complaint only when essential elements of alleged offences are made out from reading of complaint and statements of complaint and witness if any. Court should not in casual manner issue the process against alleged accused. 13. In view of above discussion, these petitions are allowed and complaint as well as order of taking cognizance by court below are quashed.