*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.PETITION NOS.549 of 2007 & 4167 OF 2008 % 19-02-2010 CRL.PETITION NO.549 of 2007 Syed Wasiullah Hussaini and 5 others …..Petitioners And: State of A.P., rep. by S.H.O, R.R. District through the PP and another …..Respondents. CRL.PETITION NO.4167 of 2007 Syed Wahidullah Hussaini …..Petitioner And: State of A.P., rep. by S.H.O, R.R. District through the PP and another …..Respondents. !Counsel for the Petitioners : Sri T. Jagadish (for both matters) Counsel for the 1st Respondent: Public Prosecutor Counsel for the 2nd respondent: Sri C. Praveen Kumar (for both matters) <Gist : >Head Note: ? Cases referred: 1.2002 (1) ALD (Crl.) 339 2.2004(2) ALT (Crl.) 635 3.2002(7) Supreme 39 4.2004(1) ALT (Crl.) 483 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOS.549 of 2007 & 4167 OF 2008 Date:19.02.2010 CRL.PETITION NO.549 of 2007 Between: Syed Wasiullah Hussaini and 5 others …..Petitioners And: State of A.P., rep. by S.H.O, R.R. District through the PP and another …..Respondents. CRL.PETITION NO.4167 of 2007 Between: Syed Wahidullah Hussaini …..Petitioner And: State of A.P., rep. by S.H.O, R.R. District through the PP and another …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOS.549 of 2007 & 4167 OF 2008 COMMON ORDER: These two petitions are filed by the accused Nos.1,2, 4 to 6, 8 and 9 (A-1, A-2, A-4 to A-6, A-8 and A-9) under Section 482 Cr.P.C., for quashing proceedings in C.C.No.2077 of 2002 on the file of Additional Judicial Magistrate of the First Class, (East and North), Ranga Reddy District relating to offence punishable under Section 498A I.P.C. The 2nd respondent/defacto-complainant is wife of A-1. A-2 is father of A-1. A-4 to A-6 are sisters of A-1. A-8 is husband of A-6. A-9 is husband of A-7. A-7 is another sister of A-1. A-3 is mother of A-1. It is stated that A-3 and A-7 are no more. A-4 is an Advocate. A-5 and A-6 are working as teachers. A-9 is in Government service. Marriage of A-1 with the 2nd respondent took place on 20.08.1998. It is alleged in the charge sheet that for about one month the 2nd respondent was looked after well by A-1 and that thereafter A- 1 started harassing the 2nd respondent for the sake of additional dowry and registration of flat on instigation of A-2 to A-9. A-1 and 2nd respondent went to United State of America in June, 2000. It is alleged during her stay at U.S.A also the 2nd respondent was harassed by A-1 physically and mentally on instigation of A-2 to A- 9. Both of them returned to India in June, 2001 and subsequently A-1 alone went to U.S.A and came back in December, 2001. It is further alleged that A-1 to A-9 again subjected the 2nd respondent to physical and mental torture for want of additional dowry and that on 24.12.2001 they tried to kill her by pouring kerosene, but the 2nd respondent managed to escape and took shelter with her parents. It is contended by the petitioner’s counsel that omnibus allegations were made against A-1 to A-9 and no specific allegations are made against each of the accused separately. No doubt allegations of physical and mental cruelty against A-2 to A- 9 are omnibus in nature, to the effect that they were instigating A-1 to harass the 2nd respondent. The alleged incident dated 24.12.2001 is also equally omnibus in nature. Apart from the said general allegations in the charge sheet, in First Information Report, the 2nd respondent made specific allegations of abusing by her father-in-law and mother-in-law specifically for the sake of additional dowry and registration of flat. It may be noted at this stage itself that except A-4 who happened to be un-married sister of A-1, A-5 to A-9 were not residing with A-1 to A-3. A-5 to A-9 who are married sisters and brother-in-law of A-1 were living separately at different places. There are no allegations against A- 4 to A-9 specifically. Therefore, this Court is of the opinion that A- 4 to A-6, A-8 and A-9 were implicated in this case even though they have no specific participation in that offence against the 2nd respondent. It is nothing short of abuse of process of law. It is contended by the petitioner’s counsel that A-1 pronounced triple ‘talaq’ to the 2nd respondent as per Mohammed Law and communicated the same to 2nd respondent and that therefore, the present case cannot be allowed to be proceeded with because of termination of marital relationship between A-1 and the 2nd respondent as husband and wife. Reliance was placed on Syed Hyder Hussain v. State of A.P,[1] of this Court on this aspect. In that reported decision, the husband pronounced ‘Talaq’ on 09.04.1997 and it was communicated to the police on 15.04.1997 along with divorce certificate issued by the A.P. Wakf Board. Allegations in the charge sheet in that case was that there was demand for dowry of Rs.3,00,000/- on 28.04.1997. Counsel appearing for the wife in that case contended that even after the so-called divorce, the parties were residing under the same roof as husband and wife and therefore, Section 498A I.P.C and Section 4 and 6 of the Dowry Prohibition Act are attracted. This Court while repelling the said contention held that in ‘Shias’ after the husband divorced his wife by pronouncing triple ‘talaq’, he is prevented from marrying the same woman again and therefore, provisions of Section 498A I.P.C and that of the Dowry Prohibition Act do not apply. This decision has absolutely no application to facts of the present case. In the case on hand, the alleged divorce was on 01.07.2001. Physical and mental harassment for the sake of additional dowry and registration of flat is stated to have taken place from September, 1998 onwards. If the alleged divorce dated 24.12.2001 is true and valid, then, at best, the alleged incident dated 24.12.2001 may not be taken into account in this case. On the other hand, this Court in Md. Yousuf v. State of A.P,[2] held that matrimonial offences committed prior to ‘talaq’ are not wiped out by reason of pronouncing of ‘talaq’. This Court observed:- “Thus, the incidents of ill-treatment and harassment for dowry by the petitioners of the second respondent, are long prior to the first respondent pronouncing triple talaq and obtaining a divorce certificate. It should be kept in view that divorce is not a panacea of matrimonial offences. Therefore, merely because the husband divorces his wife marital offences committed by him prior to the divorce would not get wiped out. I am unable to agree with the contention of the learned counsel for the petitioners that in Syed Hyder Hussain’s case (1supra) is held that by divorcing the wife, husband would be absolved of the offence under Section 498-A IPC committed prior to the divorce.” The husband viz., A-1 cannot unilaterally absolve himself of marital offences committed by him and by his family members by subsequently pronouncing ‘talaq’ to the wife. The 2nd respondent’s counsel contended that the 2nd respondent is disputing truth as well as validity of ‘talaq’ said to have been pronounced by A-1. It is contended for the 2nd respondent that alleged ‘talaq’ pronounced by A-1 is not in accordance with requirements of Mohammad Law as noted in Shamim Ara vs. State of U.P[3] of the Supreme Court of India. The petitioner’s counsel contended that talaq pronounced by A-1 is in accordance with law laid down in Shaik Apsar v. State of A.P.,[4] of this Court. Truth and validity of talaq are questions of fact which have to be decided by the trial court after recording evidence to be let in by both the parties during trial. But, at the same time, I would like to caution the lower court that head note in ‘Shamim Ara’ is misleading and before application of the said decision, it is incumbent to go through entire text of the decision. This Court cannot go into and decide truth and validity of divorce between A-1 and the 2nd respondent in this petition under Section 482 Cr.P.C. From the above discussion, this Court finds that there is no prima facie case against other petitioners except A-1 and A-2. Criminal Petition No.549 of 2007:- In the result, the petition is partly allowed quashing proceedings in C.C.No.2077 of 2002 on the file of Additional Judicial Magistrate of the First Class (East and North) Ranga Reddy District in so far as the petitioners 3 to 6 (A-4 to A-6 and A-8) are concerned; and the petition is partly dismissed in so far as the petitioners 1 and 2 (A-1 and A-2) are concerned. Criminal PetitionNo.4167 of 2008:- In the result, the petition is allowed quashing proceedings in C.C.No.2077 of 2002 on the file of Additional Judicial Magistrate of the First Class (East and North) Ranga Reddy District in so far as the petitioner/A-9 is concerned. ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date:19.02.2010. Note:- L.R. Copy to be marked. //By Order// Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOS.549 of 2007 & 4167 OF 2008 Date: .02.2010 Gk. [1] 2002 (1) ALD (Crl.) 339 [2] 2004(2) ALT (Crl.) 635 [3] 2002(7) Supreme 39 [4] 2004(1) ALT (Crl.) 483