V. Mahendran v. Vigneswari
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 29/08/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN Crl.OP(MD)Nos.17729 and 18807 of 2018 and Crl.MP(MD)Nos.7849 and 8399 of 2018 (1)Crl.OP(MD)No.17729 of 2018:- 1.V.Mahendran 2.M.Veerasamy 3.Saroja 4.V.Mangaiyarkarasi : Petitioners/A1 to A4 Vs.
Vigneswari : Respondent/Petitioner Prayer: Criminal Original Petition has been filed under section 482 of the Criminal Procedure Code, to call for the records relating to MC No.28 of 2014 on the file of the Judicial Magistrate No.II, Kumbakonam and quash the same.
For Petitioners : Mrs.P.Yasmin Begum For Respondent : Mr.D.Ramesh Kumar (2)Crl.OP(MD)No.18807 of 2018:- V.Mahendran : Petitioner/A1 Vs.
1.The State rep. through Inspector of Police, All Women Police Station, Kumbakonam.
(Crime No.07/2016) : R1/Complainant 2.Vigneswari : R2/De-facto Complainant Prayer: Criminal Original Petition has been filed under section 482 of the Criminal Procedure Code, to call for the records relating to CC No.550 of 2015 on the file of the Judicial Magistrate No.II, Kumbakonam and quash the same.
For Petitioner : Mrs.P.Yasmin Begum For 1st Respondent : Mr.S.S.Madhavan Government Advocate (Criminal side) For 2nd Respondent : Mr.D.Ramesh Kumar COMMON ORDER Crl.OP(MD)No.17729 of 2018 is filed seeking quashment of the case in MC No.28 of 2014 on the file of the Judicial Magistrate No.II, Kumbakonam, whereas Crl.OP(MD)No.18807 of 2018 has been filed seeking quashment of the case in CC No.550 of 2015 on the file of the Judicial Magistrate No.II, Kumbakonam.
2.The facts in brief in Crl.OP(MD)No.18807 of 2018:- The de-facto complainant is the wife of the petitioner herein. She lodged a complaint stating that the marriage between them took place, on 08/06/2011 with the consent of both side parents and elders. At the time of marriage, she was provided with sufficient sreedhana and 10-1/2 sovereigns of gold jewels. After that, they started their life in the matrimonial home, which is the joint family. After that, they got a child by name Kayalvili. There are some petty quarrel, after the marriage. So failing her life, she was driven out of the house and later, the husband filed HMOP No.15 of 2014 for divorce and that petition is still pending. Suppressing the earlier marriage, on 16/09/2015, he married one Lakshmi and they were living together.
When that was brought to the notice of the complainant, she made an enquiry. At that time, on 16/11/2015, at about 08.00 am, all the accused persons joined together and abused her in filthy language and also made assault with hands. She was also criminally intimidated. With the above said allegations, she lodged a complaint, based upon which, the case in Crime No.
offences under sections 294(b), 352, 494, 506(ii) IPC. After completing the formalities of investigation, final report was filed and it was taken in CC No.550 of 2015 only against this petitioner and other accused persons were deleted from array of the parties.
3.Seeking quashment of the same, this petition has been filed by the petitioner on very many grounds. 4.The facts in brief in respect of Crl.OP(MD)No.17729 of 2018 is that the complainant has filed a petition in MC No.28 of 2014 before the Judicial Magistrate No.2, Kumbakonam under section 23(2) of Prevention of Domestic Violation Act. In addition to the above said fact that has been mentioned in the above said petition, further averment has been made to the effect one two wheeler worth about Rs.54,000/- and house-hold articles worth about Rs.1,00,000/- were also provided. All the above said house-hold articles and gold jewels and Hero Honda Bike were not returned by the petitioners. When that were demanded back, she was drive out of the house and caused assault. On 04/11/2003, she lodged a complaint. But there was a compromise at the instance of
the Superintendent of Police. Again, they demanded Rs.2,50,000/- and also driven out of the house. The first petitioner, who is the husband is working as a Driver in the Taml Nadu State Transport Corporation. He earned Rs.35,000/- per month as monthly salary. Being the husband and father of the child, the first petitioner is bound to maintain them. For their maintenance, they required Rs.10,000/- per month. Apart from that, the household articles as well as the gold jewels must be returned to her.
5.Seeking quashment of the same, this petition has been filed by the petitioners.
6.Heard both sides.
7.Let us take Crl.OP(MD)No.18807 of 2018 for consideration first, because that case has been registered against A1 under sections 498(A), 494, 406 and against A2 registered under section 109 IPC and only A1 is before this court and A2 has not filed any petition.
8.The learned counsel appearing for the petitioner/A1 would submit that the de-facto complainant demanded separate residence, but the petitioner/A1 wants joint living along with his parents. When the de-facto complainant went for delivery, she did not return back. So because of the above said issue, a divorce petition in HMOP No.223 of 2012 was filed and that was withdrawn, due to compromise reached between the parties. Even though withdrawal of the matrimonial proceedings, the defacto complainant did not change her attitude. Expressing her unwillingness to live with the petitioner/A1, she left the matrimonial home, on 13/10/2015. On 18/12/2013, before the panchayat, the petitioner/A1 returned all the sridhana articles, gold jewels, etc. to the de-facto complainant. Only on that basis, another petition in HMOP No.
15 of 2014 was filed before the Principal Sub Judge, Kumbakonam, for divorce and that was allowed, on 25/03/2015. Subsequent to the passing of the decree, restitution petition was filed by the second respondent. Even after receiving the house-hold articles and gold jewels, a false complaint has been made. So on that ground, this petition came to be filed.
9.The learned counsel appearing for the petitioner/A1 has also relied upon the judgment of the Hon'ble Supreme Court in the case of Mohammad Miyan and others Vs. The State of Uttar Pradesh and another (Criminal Appeal No.1048 of 2018, dated 21/08/2018); the famous case of Neelu Chopra Vs. Bharti (2010 CRL.I.J.448) and the judgment of Kerala at Ernakulam in the case of Manoj Vs. State of Kerla, represented by Public Prosecutor, High Court of Kerala (Crl.MC No.2077 of 2017, dated 10/08/2021) for the purpose of argument that section 494 IPC is not at all made out, since only after the decree of divorce, second marriage was performed. Similarly to show that on the date of the alleged marriage, the de-facto complainant and the petitioner/A1 were not husband and wife. So the offence under section 498-A IPC is not made out.
10.As mentioned earlier, on which this petition came to be filed is that divorce was granted, on 25/03/2015 and even as per the allegation that has been made by the de-facto complainant, the second marriage was performed on 16/09/2015, which according to the learned counsel appearing for the petitioner/A1, much after the period of
expiry of the appeal or filing the application to set aside the ex-parte decree. For that purpose, he would rely upon the above said judgments.
11.No doubt that as per section 15 of the Hindu Marriage Act, second marriage can be performed, after the expiry of the appeal period is over, when the decree of divorce has been granted and this law has been clearly stated by the High Court of Kerala at Eranakulam in the above said case in Crl.MC No.2077 of 2017, dated 10/08/2021. When we apply the same principle to the facts of this case, we can conclude that no prima facie case is available to law that the petitioner/A1 performed the second marriage.
12.Regarding the second aspect of 498-A IPC, as has been stated earlier, the deed of divorce has been signed between the parties, on 22th December 2013. The copy of which is made available to the Court, wherein it has been stated that all the articles as well as the two wheeler were returned back to the de-facto complainant, on 18/02/2013. It has been corrected by the de-facto complainant to the effect that she has consented for the
divorce. But even before that, the petitioner has filed a petition seeking divorce, on 28/01/2014 itself. When the decree was granted, on 25/03/2015, de-facto complainant failed to appear during the course of enquiry. The complaint has been filed much after the period of divorce. The complaint has been filed much after the period of divorce of decree, on 08/12/2015. So on the date of the complaint, there was no subsistence of marriage between the de-facto complainant with the petitioner/A1.
13.More over, reading of the Deed of divorce that was entered into between the parties shows that only the de-facto complainant was not willing to live with the petitioner. So the contention on the part of the de-facto complainant to the effect that she was driven out of the matrimonial home, demanding and ill-treating her is without any basis.
14.It appears that the complaint has been lodged with mala fide intention, the allegations are so inherently improbable in nature. So what happened after the above said decree, that was granted by the concerned court is not clear on record.
15.But the learned counsel appearing for the second respondent/de/facto complainant would submit that as per the allegation made and as per the undertaking given by the petitioner, jewels and other articles have not been returned back. But as mentioned earlier, in the Deed of divorce, the de-facto complainant has signed. There is no denial on her part that it was signed by her. So on that ground, Crl.OP(MD)No.18807 of 2018 filed by the husband is liable to be allowed and accordingly, it is allowed. The impugned proceedings in CC No.550 of 2015 on the file of the Judicial Magistrate No.II, Kumbakonam is hereby quashed as against the petitioner/A1.
16.In so far as Crl.OP(MD)No.17729 of 2018 is concerned, the maintenance petition in MC No.28 of 2014 has been filed by the respondent/wife seeking maintenance amount and return of the sreedhana articles, jewels etc. The date of presentation of the petition is 10th September, 2014. On the date of the petition, there was subsistence of marriage between the first petitioner and the respondent. As mentioned in the petition, divorce has been granted in the month of September, 2015. As per the Deed of divorce, as mentioned above, all the articles
and jewels have been returned back to the respondent herein, which was also acknowledged by her. So the prayer to the effect that petitioners must be returned back with the articles is nothing, but abuse of the process of the court and it is also a false case.
17.In so far as the maintenance amount is concerned, even though the decree of divorce is granted, since child is also available to them, the first petitioner/A1 being the husband and father of the child is bound to maintain her. The amount of maintenance, which has been claimed by the respondent is only Rs.10,000/-, which appears to be reasonable one. But so far as the other petitioners are concerned, second petitioner reported to be dead. The petitioners 3 and 4 are concerned, it appears that they were noway involved in the dispute between the husband and wife. So as stated above, this petition is liable to be allowed in respect of the petitioners 3 and 4. In so far as the 2nd petitioner is concerned, since he is reported to be dead, this petition is dismissed against him as abated. So far as the first petitioner is concerned, qushment of the proceedings in MC No.28 of 2014 is not possible and the first petitioner has to undergo the trial process.
18.Accordingly, Crl.OP(MD)No.17729 of 2018 is partly allowed in respect of the petitioners 3 and 4 and dismissed as against the 2 nd petitioner as abated. In so far as first petitioner is concerned, this petition is dismissed. Since the case in MC No.28 of 2014 is of the year 2014 and still, it is pending, there shall be a direction to the concerned court to expedite the trial process and complete the same within a period of three months from the date of receipt of a copy of this order. The compliance report must be submitted to the Registry. 19.In the result,Crl.OP(MD)No.18807 of 2019 is allowed and Crl.OP(MD)No.17729 of 2018 is disposed of as indicated above. Consequently, connected Miscellaneous Petitions are closed.
29/08/2022 Index:Yes/No Internet:Yes/No er
To, 1.The Judicial Magistrate No.II, Kumbakonam.
2.The Inspector of Police, All Women Police Station, Kumbakonam, Thanjavur District.
G.ILANGOVAN, J er Crl.OP(MD)Nos.17729 and 18807 of 2018 29.08.2022