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Madhya Pradesh High Court · body

2019 DIGILAW 456 (MP)

Minakshi Johari v. Sanjay Johari

2019-06-27

S.K.AWASTHI

body2019
ORDER : 1. The applicant has preferred this petition under Section 397/401 of Cr.P.C. against the order dated 14.08.2018 passed by Special Judge and Vth Additional & Sessions Judge, Indore in Session Trial No. 665/2017 whereby the respondent No. 1 has been discharged from the offence under Section 376 of I.P.C. 2. Brief facts of the case are that the applicant is legally wedded wife of the respondent No. 1/accused and the marriage of the applicant and respondent No. 1 was solemnized on 15.02.2004 at Mhow. Two sons was born out of their wedlock. After the marriage the respondent No. 1 and his parents persistently demanded dowry from the applicant and ill-treated her. On 20.06.2015 she was beaten by her husband and thrown out from matrimonial house. Thereafter, she contacted her sister and matter was reported to the police and also filed complaint. Meanwhile a legal notice was also sent to the husband. In reply to the notice for the first time, she has come to know that on 27.01.2012 a decree of divorce has been passed against her. However, intention to divorce of the respondent No. 1 has not been disclosed and deceitfully causing a false belief in the existence of a lawful marriage sexually intercourse with her. Thereafter, she lodged FIR against the respondent No. 1 and on the basis of which offence under Section 376 (b) has been registered against the applicant. After completion of the investigation, charge sheet was filed. 3. After considering the material available on record, the learned trial court was of the view that the documents submitted by the respondent No. 1 shows that both the parties moved an application under section 13-B of Hindu Marriage Act before the family court on 09.05.2012 for taking divorce with mutual consent and after recording the statements of the applicant and respondent No. 1 family court passed the consent decree for divorce on 27.11.2012. Therefore, it is clear that the applicant was having knowledge about the proceedings filed before the family court for taking divorce with mutual consent and having knowledge that she is not legally wedded wife since 27.11.2012, the applicant remained with the respondent No. 1 and made physical relation with him, therefore, it cannot be said that respondent now made sexual relation with the applicant and on these ground respondent No. 1 was discharged from the offence. Being aggrieved by the aforesaid order, applicant has preferred this petition. 4. Learned counsel for the applicant has submitted that although the behaviour of the respondent No. 1 was cruel towards the applicant but the applicant has always been willing to reside with the respondent No. 1 for the sake of future of minor sons and she never intended nor desired to file a petition for divorce or give consent for mutual divorce. Therefore, even after the incident dated 20.06.2015 she had dispatched a legal notice through his advocate on 04.07.2015 seeking restitution of conjugal rights and after service of the notice, when the respondent No. 1 through his advocate has replied to the aforesaid notice then she was first time came to know about the decree passed by family court. Had the divorce with mutual consent taken place, the applicant would not have resided with the respondent No. 1 assuming him as her husband, which shows that the respondent No. 1 had played a fraud upon the applicant. The applicant has filed first appeal under section 28 of Hindu Marriage Act before the High Court and vide order dated 29.04.2016 the Division Bench of this Court has granted stay the operation of the impugned judgment and decree dated 27.11.2012. It is further submitted that for the purpose of framing of charge, the evidence collected by the investigating agency is required to be seen and the documents submitted by the accused respondent could not been looked into at the time of framing of charge but the trial court erred in law in considering the documents of defence at the stage of framing the charge and considering these documents passing the order of discharge. It has further been submitted that from the perusal of charge sheet, it was apparent that prima facie the respondent No. 1 not only committed offence of rape but also offence of Section 493 of I.P.C. therefore, it is prayed that the order of discharge is deserves to be quashed against the respondent No. 1. 5. Learned Public Prosecutor for the respondent No. 2/State also supported the submission of the learned counsel for the applicant and prayed that impugned order be set aside and trial court is directed to frame the charges for the offence under Sections 376 (b) and 493 of I.P.C. 6. 5. Learned Public Prosecutor for the respondent No. 2/State also supported the submission of the learned counsel for the applicant and prayed that impugned order be set aside and trial court is directed to frame the charges for the offence under Sections 376 (b) and 493 of I.P.C. 6. On the other hand learned counsel for the respondent No. 1 opposes the prayer and submitted that the applicant has taken divorce with respondent No. 1 by mutual consent and knowing the fact that she is not legally wedded wife of the applicant she resided with the applicant and co-habited with the respondent No. 1 which clearly indicates that she has given consent for the sexual intercourse, therefore, no offence under Sections 376 (b) and 493 of I.P.C. is not made out against the applicant No. 1. It is further submitted that the order passed by family court has already been stayed by the High Court, therefore, learned trial court has not committed any error in discharging the respondent for the aforesaid offence. 7. Having heard learned counsel for the parties and perused the records. 8. It is not disputed that the marriage of the applicant was solemnized with the respondent No. 1 on 15.02.2004 and two sons was born from their wedlock. It is alleged that the applicant and respondent No. 1 filed an application under Section 13(B) of Hindu Marriage Act for divorce by mutual consent and after making enquiry, the family court passed the decree of divorce by mutual consent vide order dated 27.11.2012. However, from the contents of charge sheet, it appears that the applicant was residing with the respondent No. 1 till 20.06.2015 and this fact has not been denied by the respondent No. 1, therefore, the question arose that had the divorce with mutual consent taken place, the applicant would not have resided with the respondent No. 1, therefore, the allegation made by the applicant is prima facie appears to be correct that she never filed an application for divorce by mutual consent and the respondent fraudulently has taken decree of divorce by mutual consent. Therefore, at this stage, it cannot be said that knowing the fact that applicant has taken divorce with the respondent No. 1 she continued to reside with him and made physical relationship with the respondent by giving her consent. Therefore, at this stage, it cannot be said that knowing the fact that applicant has taken divorce with the respondent No. 1 she continued to reside with him and made physical relationship with the respondent by giving her consent. The said decree of divorce has been challenged by the applicant before this Court and operation of the impugned decree has already been stayed by this Court vide order dated 29.04.2016, therefore, the said decree is not in operation. If the allegation made by the applicant is accepted in entirety, then, it is clear that she has not taken divorce with the respondent No. 1 otherwise after passing the decree of divorce by the Family Court, she has no occasion to live with the respondent No. 1, which indicates the fraud has been played by the respondent No. 1. The conduct of respondent No. 1 shows that he intents to take divorce with the applicant and he was very well aware with the fact that the decree of divorce has been passed by the family court vide order dated 27.11.2012 and now the applicant is not legally wedded wife in spite of that he made sexual relationship with the applicant, which clearly indicates that the respondent has committed offence under Sections 376 (b) and 493 of I.P.C. Whether the applicant was aware about the fact of divorce or not this question can be decided only after recording the evidence before the trial court, however at the stage of framing of charge, this disputed question cannot be decided by the Court, therefore, this court is of the view that trial court has committed error in discharging the applicant for the aforesaid offence. 9. In view of aforesaid discussion, this court is of the view that the order of trial court is set aside and trial court is directed to frame the charge under Section 376 (b) of I.P.C. against the respondent No. 1 and proceed further in accordance with law.