1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2742 OF 2010 Rohidas S/o Vitthal Hase ..APPLICANT -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mr. V.D. Sapkal, advocate for applicant. Mr. B.J. Sonawane, A.P.P. for respondent no.1/State. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 20 th October, 2010. PER COURT : 1. By this application, the applicant seeks quashing of a private complaint bearing Criminal Case No. 314/2009 pending on the file of learned Judicial Magistrate (F.C.), Rahata for the offence punishable under Section 497 of the Indian Penal Code. The respondent no.2 is the original complainant and has remained absent at the time of hearing of the present application which is taken up for hearing at the stage of admission and is being disposed of finally, by consent of learned Advocate of the applicant and the learned A.P.P. since there is no consent of the respondent no.2, who has not appeared all alone inspite of service. 2. The respondent filed the private complaint case alleging that he was married to one Nilam on 1st January, 1998 in 2 accordance with rites and customs of Hindu religion. He alleged that though the applicant was knowing that Nilam is his wife yet he developed illicit sexual relationship with her. The respondent no.2 received information about the extra marital affairs. He kept vision on the movements of wife-Nilam. On 05.12.2009, his wife boarded in S.T. bus and went to Rahuri. She contacted the applicant on public phone booth and waited for his arrival. He came there on a motor cycle. The wife of the complainant thereafter got mounted herself on the pillion seat. They went together to lodge and obtained a room by giving false names. In the noon time between 3.00 to 3.30 p.m. they committed sexual intercourse and when the complainant himself went to room no.5 of the lodge, he witnessed such incident. He thereafter lodged a private complaint case against the applicant and his wife i.e. Nilam, who was original accused no.2. The learned Magistrate issued process on basis of the complaint. The order of issuance of process was challenged by the present applicant by filing Criminal Revision application no. 4/2010. The learned Sessions Judge held that the Revision Application was merit less, and therefore, dismissed it. The applicant challenges the order regarding issuance of process and also the order of the learned Sessions Judge. 3. It is important to notice that the applicant has filed on 3 record the copy of the decree in H.M.P. No. 255/2002, which purports to show that the respondent no.2 (complainant) had filed divorce petition against wife-Smt. Nilam. The Hindu Marriage Petition No.255/2002 was allowed and the marriage was held as dissolved with effect from the order of trial Court. The dissolution of the marriage thus took effect on 05.07.2003. In other words, Smt. Nilam could not be regarded as wife of the respondent no.2 (complainant) after 05.07.2003. He lost the status as her husband and she lost her status as his wife. The matter does not stop here. It appears that earlier one Dr. Rajkumar and said Smt. Nilam had filed divorce Petition by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 vide H.M.P. No. 229/1997. Their joint application for divorce purported to show that they were married on 25.03.1997 and were seeking divorce by consent due to matrimonial disputes and for the reason that they were imcompatible. That application for divorce by consent was dismissed by the Matrimonial Court on 2nd May, 1999. Obviously, Smt. Nilam could not have legally married the respondent no.2 nor there could continuation as her status as his lawfully wedded wife as on the date of filing of the private complaint case. The private complaint case was filed on 10th December, 2009. 4. The learned Sessions Judge seems to have placed 4 reliance on the complaint filed by the alleged wife-Smt. Nilam against the respondent no.2 under the provisions of Prevention of Domestic Violence Act. It appears that the respondent no.2 did not make any reference in the complaint about the earlier divorce decree. 5. Unless there exists relationship between the complainant and his alleged wife as a husband and wife, in eye of law, he can not file complaint for the alleged offence of adultery. The offence punishable under Section 497 of the Indian Penal Code contemplates that a man would indulge in adulterous relationship with a woman, who is legally wedded wife of the complainant, notwithstanding his knowledge about existence of such matrimonial relationship between them. Once it is found that there existed no matrimonial relationship between the respondent no.2 and said Smt. Nilam, when the private complaint case was instituted, the learned Magistrate could not have taken cognizance of so called offence and merely on basis of statement of the respondent no.2 about his role as "self detective" in order to find out extra marital relationship. Needless to say that the impugned orders of issuance of process and the confirmation thereof by the Revisional Court are perverse and amount to abuse of process of Court. 5 6. In the result, the application is allowed. The impugned orders are quashed and proceedings of the private complaint be deemed as terminated. (V.R.KINGAONKAR) JUDGE gas/cri2742.10