IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.MC.No. 3836 of 2008() ------------------------- CC.86/2008 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... PETITIONER(S): --------------- 1. ASSANARUKUNJU ABDUL HAMEED, S/O.ASANARUKUNJU, SAMMERA MANZIL, WARD NO.3 THAMALLAKKAL POST, KUMARAPURAM VILLAGE, KARTHIKAPPALLY TALUK, PRESENTLY AT P.O.BOX NO. 14065, DUBAI, UAE, REP. BY HIS POWER OF ATTORNEY & WIFE NAJEERA BEEVI, SAMEERA MANZIL, WARD NO.3, THAMALLAKKAL POST, KUMARAPURAM VILLAGE, AS PER POWER OF ATTORNY NO.7534/V & S/08 DATED 7/8/008 ATTESTED BY VICE CONSUL, CONSULATE GENERALA OF INDIA, DUBAI (UAE). 2. NAJEERA BEEVI, W/O.ASSANARUKUNJU ABDUL HAMEED, SAMEERA MANZIL, WARD NO.3, THAMALLAKKAL POST, KUMARAPURAM VILLAGE, KARTHIKAPPALLY TALUK. 3. KHADEEJA, W/O.ABDUL SATHAR, SAMEERA MANZIL, WARD NO.3, THAMALLAKKAL POST, KUMARAPURAM VILLAGE, KARTHIKAPPALLY TALUK. BY ADV. SRI.P.K.JOSEPH RESPONDENT(S): --------------- 1. AYSHATH, D/O.ABDUL REHMAN, KOLLAPPALLY, PADINJATTETHIL, THOTTAPPALLY MURI, WARD NO.X, PURAKKAD PANCHAYATH, THOTTAPPALLY P.O 2. SUB INSPECTOR OF POLICE, AMBALAPUZHA POLICE STATION. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3836 of 2008 ------------------------------------------------- Dated this the 16th day of October, 2008 ORDER The petitioners face indictment in a prosecution for offences punishable under Sec.498A read with Sec.34 IPC. Altogether, there are 5 accused persons. The petitioners are accused 2, 3 and 4. Accused No.2 is the brother-in-law of the de facto complainant and accused No.3 is his wife. Accused No.4 is the sister-in-law of the de facto complainant. The crime was registered on the basis of a complaint made to the police by the de facto complainant on 8/11/07. In such complaint she had alleged that all the accused persons are guilty of matrimonial cruelty against her. Investigation was conducted. Final report was filed. Cognizance has been taken against all the 5 accused persons. Accused No.1 is not available in India. He has not entered appearance before the Crl.M.C. No. 3836 of 2008 -: 2 :- learned Magistrate. Accused Nos.3 and 4 (petitioners 2 and 3) have already entered appearance before the learned Magistrate and have been enlarged on bail. The petitioners at this stage have come before this Court with a plea that the prosecution against them may be quashed invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. 2. What is the ground? Two specific grounds are raised. First of all, it is contended that the marriage between the de facto complainant and her husband had been dissolved with effect from 20/8/06 and the complaint filed after the divorce was effected is only an attempt to vex and harass the accused persons. I have perused the complaint. The de facto complainant has filed the complaint asserting that she continues to be the wife of her husband. At this stage and with the available inputs I do not want to embark on a detailed discussion as to whether Annexure-4 relied on by the petitioners is sufficient to constitute a valid divorce in the light of the decision in Shamim Ara v. State of UP (2002 (3) KLT 537). Be that as it may, it is for the petitioners to substantiate their contention that there has been a valid divorce on the date of complaint. Even the fact that there has been a valid divorce on the date of the complaint would not disentitle an aggrieved wife to Crl.M.C. No. 3836 of 2008 -: 3 :- complain about anterior matrimonial cruelty at a point of time subsequent to the divorce. That contention cannot, in these circumstances, persuade me to invoke the extraordinary inherent jurisdiction. 3. The learned counsel for the petitioners then contends that in any view of the matter, going by the nature of the allegations, the allegations, in so far as they relate to the petitioners, must be held to be barred by limitation. I am of opinion that the petitioners must be relegated to raise and substantiate this contention at the stage of discharge or trial as the case may be. It is not possible for this Court, at the moment and with the available inputs, to record any authentic finding on that question. With the observation that the petitioners can press this contention and attempt to claim discharge under Sec.239 Cr.P.C., this matter can be closed. 4. In the result: (a) This Crl.M.C. is dismissed. (b) It is made clear that the dismissal of this Crl.M.C. will not in any way fetter the rights of the petitioners to raise all relevant contentions including the plea of limitation before the learned Magistrate at the stage of Sec.239/240 Cr.P.C. or later at the stage of trial. Crl.M.C. No. 3836 of 2008 -: 4 :- 5. The learned counsel for the petitioners submits that petitioners 2 and 3 are women and they have already been enlarged on bail. If unnecessary insistence were made on the personal appearance of petitioners 2 and 3 before the learned Magistrate on all dates of posting, that would work out great prejudice and hardship to the said petitioners. I find no reason why any criminal court should ritualistically insist on the personal presence of the accused persons when the matter stands posted only for considering the plea of discharge of the accused. Petitioners 2 and 3 can claim exemption from personal appearance. They can stake a claim for discharge and only if the learned Magistrate finds that the charges are liable to be framed against them need the personal presence of petitioners 2 and 3 be insisted. Until then, they can be permitted to be represented by their counsel, unless otherwise directed for any specific reasons. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 3836 of 2008 -: 5 :-