IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10879 of 2005 1. HARI PRASAD SAH SON OF LATE CHEDI SAH 2. CHINTA DEVI WIFE OF HARI PRASAD SAH 3. DASRATH SAH SON OF HARI PRASAD SAH 4. RAJU SAH @ RAJ KUMAR SAH SON OF HARI PRASAD 5. ANCHAL SAH SON OF HARI PRASAD SAH 6. ANIL SAH SON OF HARI PRASAD SAH ALL RESIDENT OF VILLAGE MONHANPUR, P.S. MANIHARI, DISTT. KATIHAR Versus 1. STATE OF BIHAR 2. GEETA DEVI DAUGHTER OF LATE JHARI URAON, RESIDNET OF VILLAGE RAMBAGH, P.S. SADAR (PURNEA), DISTRICT PURNEA ______ For the Petitioners: M/s P.K.Jaipuriyar, Anshuman Jaipuriar For the State : Mr. Jharkhandi Upadhyay- A.P.P. 9 4.1.2010 In the instant application the petitioners pray for quashing the order dated 20.8.2004 passed by the Judicial Magistrate, Ist Class, Katihar in Complaint Case No.CA 425/2004 whereby cognizance has been taken under section 498A of the Penal Code. Learned counsel for the petitioners submits that Opposite party no.2 namely Geeta Devi was not competent to file a case under section 498A of the Penal Code as she was not legally wedded wife of the petitioner. He further submits that Geeta Devi in her Solemn Affirmation under section 200 Cr.P.C. has herself admitted that co- accused Chinta Devi is the first wife of petitioner no.1. The submission of counsel for the petitioners is well founded and is covered by a bench decision of this court in the case of Kishore Kumar & Ors Vs Ritu Kumari, reported in 1999(3) P.L.J.R. 531. In the aforesaid case, this court held that the provision of section 498A of the Penal Code for its applicability predicates a valid and subsisting marriage between the parties. The basic ingredient of a legally wedded wife is completely absent in the present case on her own admission. As such the Opposite party no.2 would not have any competence to file the prosecution under section 498A of the Penal KHAN Code against the accused persons. In the result, this application succeeds and the impugned order dated 20.8.2004 taking cognizance of offence under section 498A of the Penal Code in Complaint Case No.CA 425 of 2004 pending in the court of Judicial Magistrate Ist Class, Katihar is quashed. (S.P.Singh,J)