Friday, February 6, 2015

woman allgdly marries sister's husband files 498A n husband, mothr n law, sistr n law! all run 4 quash


This is a classic. According to what we understand this woman filed a 498a etc, got a consent divorce from her hubby and married her own sister's husband !!! Now the accused run to High court for quash of 498a, almost 10 years after the case !!


the Hon court states and we quote phraphrase
********
* ... Hindu Marriage Petition ... No.326 of 2001  ... for a decree of divorce by mutual consent under the provisions of Section 13 Clause (b) of the Hindu Marriage Act, 1955.
* wife, on account of matrimonial dispute, gone to extent of levelling reckless allegations against her husband aged mother­ in­law and her sister­in­law.
* and then in 2003 i.e. two years after divorce petition files a 498a !!!!".......First Information Report, registered as Inquiry Case No.258 of 2003 before the Fatehgunj Police Station, Vadodara for the offence punishable under Section 498­A read with Section 114 of the Indian Penal Code......."

the harassed husband states that she married her own sister's husband after divorcing this guy !!

] Memorandum of Marriage which is registered, Darshanaben as well
] as her husband are shown to be divorcees. I further say that the
] bridegroom Patel Subhashchandra Umedbhai happens to be the
] husband of sister of Darshanaben and this I am saying by way of
] information which I have to the best of my knowledge.



*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO. 9073 of 2003 With CRIMINAL MISC.APPLICATION NO. 9423 of 2004

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

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JATINBHAI YASHWANTRAI SHUKLA & 2....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s)
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Appearance: MR AR MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 3
MR SP HASURKAR, ADVOCATE for the Respondent(s) No. 2
MR A.N.SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 24/12/2014


COMMON ORAL JUDGMENT

1. Since the issues involved in the captioned applications are interrelated, those were heard analogously and are being disposed of by this common judgment and order.

2. The Criminal Misc. Application No.9073 of 2003 has been filed by the applicants - original accused seeking quashment of the First Information Report, registered as Inquiry Case No.258 of 2003 before the Fatehgunj Police Station, Vadodara for the offence punishable under Section 498­A read with Section 114 of the Indian Penal Code.

3. The applicant No.1 is the husband of the respondent No.2 - original informant. The applicant No.2 aged 80, is the mother­in­law of the first informant and the applicant No.3 is the sister­in­law of the first informant.

4. The case of the first informant may be summarized as under : ­

4.1 The applicant No.1 got married with the first informant on 08.03.1996 and in the wedlock, a son was born. It appears that on account of matrimonial disputes, a Hindu Marriage Petition No.326 of 2001 was filed, praying for a decree of divorce by mutual consent under the provisions of Section 13 Clause (b) of the Hindu Marriage Act, 1955. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4.2 The said application was allowed vide decree dated 24.07.2002.

4.3 The case of the first informant and her husband while seeking divorce by mutual consent was that, there was a irretrievable break down of marriage on account of differences of opinion in all respects. It was decided that the son would remain in the custody of the mother. It was also made clear that all issues relating to the maintenance and alimony were also mutually resolved.

4.4 It appears that in the year 2003, the wife filed a complaint alleging incessant harassment at the end of the applicants herein, including the demand for dowry. By filing an affidavit opposing this petition, the respondent No.2 has alleged that the decree of divorce said to have been obtained by mutual consent, was a fraud. She has disputed filing of such petition and has alleged that the husband committed fraud by filing an application for divorce by mutual consent without her knowledge. In such circumstances, according to the respondent No.2, the application for quashing deserves to be rejected.

5. I shall now look into the facts of the connected application. It appears that on 13.07.2004, the respondent filed a complaint, which was registered as the Inquiry Case No.230 of 2004 filed before the Fatehgunj Police Station, Vadodara of the offence punishable Sections 420, 465, 467, 468, 471, 120­B read with 114 of the Indian Penal Code. It is her case that her husband i.e. the applicant No.1 herein created false documents for the purpose of obtaining divorce. It is alleged by the wife that she had never remained present before the Court in the Hindu Marriage Petition proceedings. It is her case that she had never consented for divorce. In such circumstances, the respondent No.2 wants that  her husband be punished for the offence of forgery and cheating.

6. This appears to be a case of a long drawn litigation. The parties are fighting past almost a decade. Number of attempts were made for the purpose of an amicable settlement, however, without any fruitful result.

7. It appears that the wife, on account of the matrimonial dispute, has gone to the extent of levelling reckless allegations not only against her husband but she has not spared her aged mother­ in­law and her sister­in­law.

8. I have noticed something very important while going through the materials on record. In Criminal Misc. Application No.9073 of 2003, the applicant No.1 - husband has filed an affidavit, inter alia stated as under : ­ "I, Jatinbhai Y. Shukla, applicant No.1 in the aforesaid Criminal Misc. Application , do hereby solemnly affirm and state on oath as under :

] 1. That after filing of the aforesaid application challenging
] the impugned complaint, the present respondent No.2 Darshanaben
] filed Regular Civil Suit in the Court of learned Civil Judge,
] Senior Division, Baroda. That in the said suit, she also
] preferred injunction application below Ex.5 under Order XXXIX
] Rule 1 and 2 of the Civil Procedure Code. In the said injunction
] application, she has stated that there was a petition filed for
] mutual divorce under section 13(1)(b) being Hindu Marriage
] Petition No.326 of 2001 wherein she was there as one of the
] petitioners and it was averred in the said application below
] Ex.5 that she did remain present before the Court at the time
] of passing of the conent decree in HMP No.326 of 2001.
]
] Annexed hereto and marked as Annexure I is the copy of the said
] application under Order XXXIX Rule 1 and 2 of the Civil
] Procedure Code filed by Darshanaben.
]
] 2. I further say that the respondent No.2 Darshanaben has
] remarried after getting consent divorce from the concerned
] applicant and there is a Memorandum of Marriage which is
] registered with the Registrar of Marriages. In the said
] Memorandum of Marriage which is registered, Darshanaben as well
] as her husband are shown to be divorcees. I further say that the
] bridegroom Patel Subhashchandra Umedbhai happens to be the
] husband of sister of Darshanaben and this I am saying by way of
] information which I have to the best of my knowledge. Annexed
] hereto and marked as Annexure II is the copy of the Memorandum
] of Marriage.
]
] Solemnly declared at Ahmedabad on this 3 rd day of November,
] 2004."

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9. The aforesaid affidavit filed by the applicant No.1 has been rebutted by filing a rejoinder inter alia stated as under : ­ "I Darshanaben Jatin Shukla, aged about 33 yrs., the respondent No.2 herein solemnly affirm and state on oath as under :

] 1. I say and submit that the investigation of the present
] offence in question is almost completed and as per my best of
] the information, the neighbors and other independent witness
] have stated before the Investigating Officer that the petitioner
] and the respondent No.2 herein were co­habiting and residing
] together till November 2003 i.e. till the FIR was filed.
]
] 2. I further state that I was never divorced by the petitioner
] and I reiterate my stand and submissions already advanced
] earlier. I further state that the petitioner has filed false
] affidavit at page 51 of this petition. I submit that the
] petitioner had forcibly obtained my signatures, this fact is
] also borne out/in para 4 of the Regular Civil Suit No.656/04
] filed before learned Civil Judge(S.D.), Vadodara at page 54 of
] this petition. I further say and submit that the petitioner has
] reached its zenith in malgning me by producing a memorandum of
] marriage at page 60 which state that ­ I am married to Patel
] Subhashchandra who infact is happily married to my sister
] Bhanaben. Thus, the petitioner has made one made one more
] attempt to mislead this Hon'ble Court.
]
] That the present petitioner has criminal antecedents and the
] trial against him are already pending. Thus, the petitioner is
] habitual offender and therefore no discretion is required to be
] exercised in favour of the petitioner.
]
] The contents of above affidavit are readover to me and
] explained in Gujarati. Its contents in para 1 and 3 are true and
] correct to the best of my knowledge and belief.
]
] Solemnly affirmed in this 15th day of September, 2005."

10. Thus, although it is the stance of the applicant No.1 - the husband that after the marriage was dissolved with mutual consent, the first informant got married with one another person i.e. with the husband of her own sister, yet the same has been denied on oath. The wife has also disputed the genuineness of the certificate of Memorandum of Marriage dated 17.03.2002, which is at page 60 of the paper­book.

11. In such circumstances, I am of the view that some investigation needs to be undertaken as regards the allegations levelled by the first informant. However, as usual the wife has also tried to implicate her aged mother­in­law and her sister­in­law. In my view, the FIR lodged against the mother­in­law and sister­in­ law deserves to be quashed and is accordingly quashed.

12. The Inquiry Case No.258 of 2003 pending before the Fatehgunj Police Station, Vadodara is ordered to be quashed so far as the applicant No.2 Hasumatiben Yashwantrai Shukla and the applicant No.3 Rakshaben Prakashbhai Shukla is concerned. The investigation shall proceed against the applicant No.1 in accordance with law, however, without taking any coercive steps against the applicant No.1. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13. In the result, the Criminal Misc. Application No.9073 of 2003 is partly allowed and the Criminal Misc. Application No.9423 of 2004 is ordered to be rejected. I once again clarify that it will be open for the police to complete the investigation, however, without taking any coercive steps against the applicant No.1 - husband.

14. Ad­interim relief granted earlier stands vacated forthwith.

(J.B.PARDIWALA, J.)

Amar


R/CR.MA/9073/2003 JUDGMENT






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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist