IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32068 of 2007 BINAYAK TIWARY SON OF LATE BASUDEO TIWARY, RESIDENT OF CHAND KOTHI, INFRONT OF ZILA SCHOOL, POLICE STATION CIVIL LINES, DISTRICT GAYA …. PETITIONER Versus 1. THE STATE OF BIHAR 2. VANDANA TIWARY, WIFE OF SRI BINAYAK TIWARY, RESIDENT OF MOHALLA BANK COLONY, POLICE STATION TILKA MANJHI, DISTRICT BHAGALPUR ….. OPPOSITE PARTIES ----------- 9. 10.5.2011 Heard learned Counsel for the petitioner. Nobody appears on behalf of the opposite party. This application has been filed for quashing the order of cognizance dated 1.5.2007 u/ss.467, 468, 471 and 420 of the I.P.C. passed by the Sub-Divisional Judicial Magistrate, Bhagalpur in Complaint case No.1594 of 2006. Briefly stated the facts are that on 24.6.2005 the Complainant Vandana Tiwari was married to petitioner Binayak Tiwari. It is alleged that after the marriage the complainant proceeded to her matrimonial home and the complainant is said to have handed over all her belongings to her husband, the petitioner. The O.P. No.2’s case is that the marriage was consummated and after that, the petitioner asked the complainant to sign on a blank paper, which has now been misutilized by her husband. It is also alleged that the petitioner was earlier married to someone, who had died. The complainant suspects that this petitioner is responsible for the death of his first wife. It is also alleged that the petitioner has wrongly stated in the - 2 - court that the complainant does not have a vagina by alleging that the vagina was inserted by plastic surgery. On the basis of the aforesaid allegation, cognizance has been taken. From the pleadings in the petition, it is clear that the petitioner had filed a case for annulment of marriage u/s.12 of the Hindu Marriage Act, 1955 which is numbered as M.T.C. No.38 of 2005. The complainant had filed an application for transfer of the said case from Gaya to Bhagalpur, by the time the transfer application was taken up in this court the judgment was delivered on 6th July, 2006. The Family Court, on consideration of all the evidence, had come to the conclusion that the complainant was incapable of having a physical relationship with her husband, in as much, as her vagina had been inserted by performing plastic surgery. Thus she could not have children or lead a normal married life with her husband. On the basis of the aforesaid facts the Family Court passed a decree of annulment of the marriage. After the order dated 6th July, 2006 was passed, the complainant Vandana Tiwari filed the present complaint case. Not only has Vandana Tiwari filed this criminal case but she had also filed two cases for maintenance, both of which have been dismissed by the Family Court. Apart from this, the complainant had filed - 3 - another case against this petitioner, which he has challenged before the High Court by filing the quashing application. Notice has already been issued to Vandana Tiwari in that case. This Court shall now consider in the facts of the case to decide whether any offence is made out against the petitioner u/ss.468, 467, 471 and 420 of the Indian Penal Code. It firstly alleged that the petitioner asked the complainant to hand over the attaché which contained her jewellery, on the way from Bhagalpur to go to Gaya, after marriage ceremony. It is said that after they reached Gaya, they consummated the marriage, and on the some pretext or the other the petitioner made her sign a paper, after which he phoned her father and demanded 2 lakhs. The entire sequence of events is unbelievable. In the context of the Indian set up, it is not expected that a bride would be carrying her jewellery, the normal sequence would be that the jewellery of the bride is with the mother-in-law or senior member of the family, who accompanys the barat party. The complaint is silent as how the complainant reached her parents house, after 28.6.2005. Rather, Vandana alleges that she learnt about the divorce from the order on 30.7.2006. It was then that she learnt that the petitioner had misrepresented before the Family Court by producing - 4 - the affidavit signed by her, stating that her vagina had been inserted by plastic surgery. This court finds it to hard to believe that the complainant and her family members had not taken any steps for one year, by approaching the petitioner or his family for resolving the dispute, given the fact that the reason for break-up of the marriage was a demand of 2 lacs of rupees as per the complainant’s case. What is more, the complainant has not challenged the decree of annulment of marriage, rather throught it fit to file this present case. In the circumstances it is hard to believe any part of the allegations leveled against the petitioner, and as such court cannot uphold the order of cognizance. On perusal of the facts of this case, this Court comes to the conclusion that where there is a finding of the court, that the complainant was incapable of having a normal relationship with her husband due to the fact that she had certain short comings, the allegation contained in the complaint petition that there was demand of dowry and for this reason, she has been deserted and left by her husband appears to have been filed in order to create a defence. It may be noted here that the marriage took place on 24.6.2005 and the facts regarding the short comings of the opposite party came to light on 25.6.2005. On 13.7.2005, the husband filed a matrimonial suit. On - 5 - 28.6.2006, the opposite party accepted the fact of her physical short comings in an affidavit signed by her before the Gaya, Notary. It is alleged that the signature on the said affidavit had been obtained by her husband by playing fraud and misleading her. These allegations do not appear to be convincing, as if there was a demand of dowry the relationship could not have broken up within 2 days of the marriage. Usually in cases of demand of dowry that the family and the husband first build a relationship with newly wed bride and thereafter a demand is put forth. In the circumstances above, this court cannot hold that the allegations as contained in Annexure-1 are believable. As such I quash the order dated 1.5.2007 passed by the Sub-Divisional Judicial Magistrate, Bhagalpur in Complaint case No.1594 of 2006. This application is allowed for the reasons stated above. Narendra/ ( Sheema Ali Khan, J. )