IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2010 CORAM: THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.O.P.No. 25823 of 2006 and M.P.No.1 of 2006 Madeswaran @ Ganesamoorthy .. Petitioner Versus Suganya represented by her father and Natural Guardian Rajamanickam .. Respondent Petition filed under Section 482 Cr.P.C to call for the records pertaining to the proceedings in C.C. No.146 of 2006 pending on the file of the Judicial Magistrate No.I, Sangagiri and quash the same as not maintainable. For Petitioner : Mr.T.Gowthaman For Respondent : Mr.R.Tholgappian O R D E R The petitioner/1st accused has filed the above Criminal Original Petition, to call for the records pertaining to the proceedings in C.C. No.146 of 2006 pending on the file of the Judicial Magistrate No.I, Sangagiri and quash the same. 2.The Respondent/Complainant represented by her father and Natural Guardian has filed the C.C.No.146 of 2006 against the petitioner/1st accused and 10 other accused persons. The ingredients of the complaint is that the petitioner is the husband of the Respondent. Accused No.2 & 3 are parents of 1st petitioner. The 4th accused is the illegal wife of the 1st petitioner. The 5th and 6th accused are the parents of the 4th accused. Other accused persons are relatives of 1st accused and 4th accused. The respondent is living with her father. The complainant and the 1st accused married each other on 29.11.1998. The said marriage was an arranged one. After some time, the 1st accused, on the instigation of his parents filed a petition in H.M.O.P. No.21 of 1999 against the complainant for divorce. The said case was transferred to Namakkal Sub-Court and renumbered as H.M.O.P.No. 137 of 2002. In the relevant time, the 1st https://hcservices.ecourts.gov.in/hcservices/ accused changed his mind and joined with the complainant and led married life in the complainant's parents house. In the relevant time, the 1st accused did not proceed with the divorce case against the complainant and hence the divorce petition was dismissed. In the relevant time, the accused and the complainant had sexual intercourse, when they were living in the complainant's parents house. Under the circumstances, the 1st accused married the 4th accused for which other accused supported the marriage. The said marriage was conducted on 13.11.2005 at Murugan Temple, Pallipalayam. Regarding the marriage the complainant sent a legal notice to the accused persons. Further, the complainant lodged the complaint before the All Women Wing Police Station. The Inspector of Police conducted enquiry on the said complaint when the 1st accused gave a statement stating that he will not marry second time. Further, the accused submitted a decree in H.M.O.P.No. 51 of 2004 before the said Inspectress of Police, stating that the respondent had filed a divorce case against the accused and got divorce from the principal Sub-Court, Erode. The copy of the decree also was produced before the concerned Inspectress of Police. The accused No.1,2 and 3 had fraudulently obtained the said "decree" from the Court. The complainant is not at all a party in the said divorce case. Further, the complainant verified all details regarding H.M.O.P.No. 51 of 2004, but the case was not bonafide and the accused had fraudulently approached the Court and obtained decree. The complainant also had given a legal notice to the accused and a complaint was lodged with the Inspectress of Police to prevent the second marriage. Even then, the marriage was solemnised between the 1st and 4th accused with the help of the other accused. The complaint further alleged that the accused has paid a sum of Rs.2,350/- as hiring charges of Marriage Hall. Hence, the complainant filed a case against accused person on an alleged offence under Section 494 and 109 of IPC and also offence under Rule 17 of Hindu Marriage Act. Supporting the complaint, the complainant had filed 19 documents and mentioned three witnesses. 3.Now, the 1st accused/petitioner has filed the above quash petition to quash the proceedings in C.C.No.146 of 2006 on the file of the Judicial Magistrate-I, Sangagiri and quash the same. In the said petition, the petitioner's contention is that he has admitted that he married the respondent Suganya, Daughter of Rajamanickam on 29.11.1998. Further, the petitioner filed H.M.O.P.No. 21 of 1999, against the respondent herein for divorce, before the Sub-Court, Sangagiri, which was later transferred to the Sub-Court, Namakkal and renumbered as H.M.O.P.No. 137 of 2002. The respondent herein has filed H.M.O.P.No. 51 of 2004 against the petitioner before the Sub- Court, Erode praying for divorce and the same was allowed after due enquiry. Further, the petitioner has alleged that the respondent herein had filed the said petition with the full knowledge and connivance of her parents. Further, about one year and seven months from the divorce order, the petitioner married one Indrayani, who is ranked 4th accused in the above said C.C.No.146 of 2006. After that, https://hcservices.ecourts.gov.in/hcservices/ the respondent and her parent started to give problems like complaint and legal notice etc. Further, the petitioner alleges that the said complaint is a false one. The petitioner has further alleged that the respondent herein was divorced as per order passed in H.M.O.P.No. 51 of 2004 by the principal Subordinate Court, Erode dated 30.04.2004. The said Judicial order is in force. As such, the petitioner has no encumbrance to marry second time. Hence, the above complaint is not maintainable. 4.The petitioner, in support of his case, has filed three document, including sworn statement of the respondent, order and decreetal order passed in H.M.O.P.No.51 of 2004 including complaint copy. 5.Considering the facts and circumstances of the case, and arguments advanced by the learned counsel for the petitioner and learned counsel for the respondent and also after a perusal of synopsis and typed set of papers given by the respondent, and after going through two citations produced by respondent counsel in (1) AIR 2002 SC 3372 (K.G.Premshankar ..vs.. Inspector of Police) (2) 2008 (5)SCC 765 (P.Swaroopa Rani ..vs.. M.Hari Narayana alias Hari Babu); the Court is of the view that the quash petition cannot be allowed for the following reasons: 1. As the respondent has filed the petition only through her father, who is a natural guardian and as the petitioner has alleged mental instability of the respondent as a cause for him to seek divorce, it becomes all the more necessary for the court to examine the doctor. It is an important evidence in the instant case. 2. The H.M.O.P.No.51 of 2004 is an exparte order, which, the respondent has alleged, had been obtained in a fraudulent manner, by impersonation. 3. The petitioner filed a divorce petition in H.M.O.P.No.137 of 2002 and when it was pending on the file of the Sub-Court, Namakkal, it has been alleged that the petitioner had lived with the respondent in his in-laws house and had sexual relationship with the respondent for a short period. So, necessarily these facts have to be determined as to their veracity to come to a correct conclusion. 6. Hence, the proceedings in C.C.No.146 of 2006 pending on the file of Judicial Magistrate No.I, Sangagiri has to be tried, in the interest of Justice. https://hcservices.ecourts.gov.in/hcservices/ 7.So, the Criminal Original Petition No.25823 of 2006 has got to be dismissed. Accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar krk To 1. The Judicial Magistrate No.I, Sangagiri 2. -DO- Through The Chief Judicial Magistrate, Salem. 3. The Subordinate Judge, Namakkal. 4. The Public Prosecutor, High Court, Madras-104. + 1 CC to Mr.T.Gowthaman,Advocate,SR.27844 + 1 CC to Mr.R.Tholgappian,Advocate,SR.27589 Crl.O.P.No. 25823 of 2006 KK(CO) EM/30.4.10 https://hcservices.ecourts.gov.in/hcservices/