IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35539 of 2006 NAND KISHORE MADHUKAR, Son of Murlidhar Poddar, R/o Lohianagar, P.s. Town, District Begusarai, presently residing at Betwan Bazar, Munger, P.s. Town, P,O. Munger, District Munger …… Petitioner Versus 1. STATE OF BIHAR 2. Smt. Indu Kumari, D/o Sri Bhagwan Poddar, R/o Daudpur Kothi, P.S. Brahmpura, P,O. M.I.T. Town, District Muzaffarpur. ….. Opp. Parties ----------- For the petitioner : M/s Pramod Kumar Sinha, N.K.Sinha, R.K.Sinha and A.K.Sharma No. I, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : M/s Prabhakar Jha & Chandra Shekhar Azad, Advocates O R D E R The petitioner herein, the husband of the complainant and one of the arrayed accused of Complaint Case No. 805 of 2006, through this application, has prayed for the quashing of the entire proceeding arising therefrom including the order dated 3.7.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Muzaffarpur (West), whereby he has taken cognizance for commission of offences punishable under sections 494, 498A IPC as also sections 3 / 4 of the Dowry Prohibition Act against all the arrayed accused including the petitioner and directed for issuance of summons. The complainant, one Indu Kumari, wife of the petitioner herein, impleaded as O.P. No. 2 in this application, preferred the Complaint Case No. 6.5.2006 alleging commission of offences under sections 323, 379, 498A and 494 IPC and sections 3/4 of the Dowry Prohibition Act from 28.4.1996 onwards at the hands of the impleaded accused who are her husband and his close 2 relatives. According to the complainant her marriage with the petitioner herein was solemnized on 27.4.1996 at her parental home in Daudpur Kothi within Brahmpur P.S. in the District of Muzaffarpur whereat costly gifts including ornaments and clothes were given to the bride, bridegroom and his family members. It is alleged that on the day following the marriage her husband ordered her to tell her father to provide him with a motorcycle and Rs, 50,000/- in cash to enable him to set up a business and even as the complainant kept quiet she was showered with an acidulous wrath and abuses. Her entry into the matrimonial home at Munger was mundane and reprehensible and two years later when she was blessed with a female child it appears to have annoyed her in-laws and the relatives by marriage whose behaviour towards her suddenly was transformed into one inviting premonition and she was addressed and abused as an impious lady which caused her immense mental agony. The demand for the motorcycle and cash persisted and when she reminded them of her father’s inability to meet the demands she was abused in filthy an vituperative tongue and was also assaulted. It is further alleged that in the meanwhile the husband petitioner was transferred to Buxar whereupon the complainant’s father took her to Buxar to live with the husband but here too she was abused and assaulted in presence of the father. Her father advised her to bear the suffering and left her with the petitioner who oft and on resorted to assaulting her and occasionally would also 3 stop her food and water. Overwhelmed with fear she returned to her parents. It is alleged that in the meanwhile her husband developed illicit relationship and even brought the other lady into the home and when she remonstrated all the accused assaulted her mercilessly. On receiving information about her predicament her brother Arun Kumar and his friend Sushil Sahi went to the residence of the accused to settle all differences through a panchayati which ended in a fiasco and she was taunted in front of Arun and Sushil. Her torture in the matrimonial home continued unabated and eventually she was assaulted and ousted from matrimonial home on 15.4.2006 after all her belongings had been confiscated as her husband had already contacted a second marriage by then. Assailing the impugned order it was submitted on behalf of the petitioner that the falsity of the case would be apparent from the fact that the complainant had suppressed material facts and had not approached the court with clean hands. In this connection it was submitted that the matrimonial relationship between the petitioner and the complainant had become so strained three years after the marriage that she refused to live with him and for this the petitioner had approached the Bihar Pradesh Vaishya Mahasabha, the supreme caste Association of the petitioner, for settlement of their differences and all efforts of the Joint Secretary of the Association to settle the differences having failed, the Association at its meeting dated 18.6.2000 allowed the petitioner 4 to take divorce from the complainant and accordingly by a joint deed of Talaknama dated 20.11.2002 a divorce was obtained by the petitioner out of court and since then he was living separate from the complainant and as a matter of fact since then there has been no meeting amongst them. On this premises it is submitted that the demand for dowry and the complainant being ousted from the matrimonial home on 15.4.2006 does not appear to be correct and is ill founded. It has further been submitted that to give legal sanction to the divorce the petitioner had preferred Matrimonial Suit No. 10 of 2001 in the court of District Judge, Munger which was disposed of ex parte vide order dated 24.1.2008 by the Principal Judge, Family Court, Munger. It would appear from the said order that although the complainant herein had initially entered appearance in the said matrimonial suit she subsequently stopped pairvi and did not file any written statement and as such the suit proceeded ex parte and was decreed whereby the petitioner was granted a decree of divorce. No counter affidavit or show cause has been filed by the complainant – O.P. No. 2 and her learned counsel merely attempted to justify the impugned order. Admittedly the divorce case was filed in 2001 and the complaint case came to be filed on 6.5.2006. Therefore, at the time of filing of the complaint case the complainant was fully aware of the fact that her husband had already filed a suit for divorce being Matrimonial Case No. 10 of 5 2001 but she has completely suppressed this material fact in her complaint petition and has also suppressed the fact that in the said complaint she had not mentioned that one of grounds for divorce was that the wife - complainant had deserted the petitioner since 1999. This merely goes to show that the complainant while filing the complaint petition had not approached this Hon’ble Court with clean hands and had suppressed material facts and had attempted to make out a false case to the detriment of the petitioner. In other words the complaint case had been filed with ulterior motive on frivolous facts to harass the petitioner and other co-accused, who all are the family members of the petitioner with vexatious litigation which apparently is an abuse of the process of the court and cannot be sustained in law. In view of the discussions made above the impugned order taking cognizance against the petitioner is set aside and the application is allowed. Since the cognizance has also been taken against other co-accused who are family members of the petitioner and in view of the finding that the complaint case is a frivolous and vexatious litigation the impugned order in respect of the other accused who have not preferred the application is also quashed. Patna High Court, Patna. Dated : The 22nd of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)