Ladda 1 wp-1639-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1639 of 2009 Sumeet Ramesh Bhoyte .. Petitioner. Versus The State of Maharashtra and Anr ..Respondents. ...... Mr Pradeep M. Patil, Advocate for the Petitioner. Mr Ajay S. Patil, Advocate for Respondent No.2. Mr Y.M. Nakhawa,A.P.P. for the State. CORAM: A.R.JOSHI, J. DATED:- 6th April, 2011. P.C. 1. Rule. Rule made returnable forthwith, by consent of parties. 2. Heard rival submissions at length. By the present writ petition, the Petitioner-husband is praying for quashing and setting aside the F.I.R. No. 164 of 2009 registered at Yerwada Police Station,Pune on the complaint lodged by Respondent No.2 for the offence punishable under Sections 376, 493, 420 of the Indian Penal Code. Ladda 2 wp-1639-09.doc 3. Facts of the present matter are of rather peculiar in nature and certain dates are required to be mentioned as to the happening of the events in order to ascertain the scope of the present writ petition. 4. Respondent No.2 prior to her marriage was known as Mosmi Pralhad Devghare and was residing with her parents at Pune. She married with one Deepak Lakade sometime on 3rd June, 1996 and she delivered a male child out of said marriage. Subsequently, as there was marital discord between Deepak Lakade and Respondent No.2, there was customary divorce taken on 16th February,2004 and as such thereafter again Respondent No.2 started using her maiden name as Mosmi Devghare. Thereafter, she got a job in one office and had fallen in love with the present Petitioner, who was also an employee in the same office. According to the Respondent No.2 – complainant, she had disclosed her earlier divorce to the present petitioner, still inspite of such disclosure, present Petitioner insisted that they should get married as both were in love with each other. On or about 1st June, 2006 the Petitioner and Respondent No.2 married at Pune. According to the present Petitioner, the first marriage and customary divorce taken by Respondent No.2 from her first husband Lakde and having a male child out of the said first marriage were not disclosed to him and as such he filed a petition for nullity of the marriage on relevant grounds available Ladda 3 wp-1639-09.doc under the Hindu Marriage Act. According to the Petitioner, a summons was issued against Respondent No.2 and it was so served on her on 4th November, 2008. It is the submission on behalf of the Petitioner that on receipt of such summons with copy of the petition she had signed as Mosami Devghare by giving her maiden name. Thereafter, by an ex parte order, dated 31st January, 2009 a decree of nullity of marriage was passed by the concerned Court at Pune. However, according to the respondent No.2 - original complainant, she was not aware of such decree of nullity of marriage till 31st March, 2009. 5. As specifically averred in the F.I.R., for the first time she was told by the present Petitioner on 31st March, 2009 in the evening that their marriage has been treated as null and void and there was no relation between them as husband and wife since the date of such order of the competent Court i.e. since 31st January, 2009. According to the Respondent No.2, when this fact was revealed to her by the present Petitioner only on 31st March,2009, on the next day along with her father she went to the Family Court, Pune and obtained relevant information and ascertained that there was a decree of nullity of marriage, passed on 31st January, 2009. As such, on the above premise and still continued the cohabitation with the present Petitioner as his legally wedded wife from 31st January, 2009 till 31st March, 2009, Ladda 4 wp-1639-09.doc Respondent No.2 felt aggrieved, inasmuch, as whatever sexual relations the Petitioner and the Respondent No.2 had, during the said period of three months, now amounts to rape, when the definition of rape is construed in the strict sense. Consequently, the F.I.R. came to be lodged with Yerwada Police Station, Pune and after filing of the charge-sheet criminal case is now pending before the concerned Court and as reported by the parties till date charge is not yet framed. 6. During the arguments, learned Counsel for the petitioner strongly submitted that Respondent No.2 never disclosed regarding her first marriage and customary divorce obtained from one Deepak Lakde. Secondly, it is submitted that she received the summons on the application of the nullity of marriage preferred by the Petitioner, she had falsely mentioned in the F.I.R. though she was not aware of filing of any such application and only for the first time she knew regarding decree of nullity of marriage when it was disclosed to her allegedly on 31st March, 2009. 7. As against the above arguments, learned Counsel for the Respondent No.2 submitted that in the writ jurisdiction a thread bear analysis of the material is not expected, much less there cannot be any ascertainment of finding of facts and in that view of the matter there cannot be any quashing of the complaint under the writ jurisdiction Ladda 5 wp-1639-09.doc when specifically the application is made under the provisions of Section 482 of Cr.P.C. 8. On carefully ascertaining the factual position and the averments in the F.I.R. and the specific factual position as to nullity of marriage by way of ex parte decree obtained by the present Petitioner effective from 31st January, 2009, whether or not from that date till 31st March, 2009 there was any cohabitation between the Petitioner and the Respondent No.2 is question of finding of fact and that can be determined only in trial. Secondly, also whether or not Respondent No.2 had informed the Petitioner regarding her first marriage and customary divorce and whether she had received the notice of the application for nullity of marriage preferred by the Petitioner are also the questions of facts finding and as such this cannot be dealt with when this Court is seized of the matter purported to have been filed under the provisions of Section 482 of Code of Criminal Procedure. 9. Considering the averments in the F.I.R. and considering the factual position as to nullity of marriage effective from 31st January, 2009, suffice it to say that prima facie there is application of provisions of Section 376 as the definition of rape mentioned in Section 375 contemplates the situation that if a woman gives her consent for any sexual act under the bonafide belief that the person is her legally Ladda 6 wp-1639-09.doc wedded husband and if it is found out otherwise, then such alleged consent for the sexual act cannot be taken as free consent of the parties and thus attracts the definition of rape. 10. Considering the above factual position, in the opinion of this Court, it is not a case in which the recourse to Section 482 of Cr.P.C. is required to be taken and hence there are no merits in the present writ petition and same is accordingly disposed of with the following order. ORDER. (1) Writ Petition No. 1639 of 2009 stands dismissed. (2) Rule is accordingly discharged. (3) Any observations and findings made by this Court are in the context of this writ petition and the same shall have no effect or bearing on any other proceeding. (A.R.JOSHI, J.)