- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.543 OF 2001 WRIT PETITION NO.543 OF 2001 WRIT PETITION NO.543 OF 2001 Mr.Krishna Dinkar Kadam & Others ...Petitioners vs. Mrs.Sunita Krishna Kadam & Anr. ...Respondents Mr.Deepak Jadhav for the Petitioners Mr.D.P.Adsule A.P.P. for State None for the Respondents CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 22,2008 : JULY 22,2008 : JULY 22,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned counsel for the petitioners. None appears for the first Respondent though notice is served. Heard learned A.P.P for State of Maharashtra. 2. The first Respondent filed a private complaint against the petitioners and the second respondent in the court of Judicial Magistrate (First Class) at Vashi alleging commission of offence under section 494 read with section 109 of the Indian Penal Code. Process was issued on the said complaint by the learned Magistrate. The present petition has been filed invoking Article 227 of Constitution of India read with section 482 of the Code of Criminal Procedure,1973 for quashing the complaint filed by the first Respondent. 3. The learned Counsel for the Petitioners invited my attention to the averments made in the complaint. He pointed - 2 - out that in the complaint filed by the first Respondent,she has referred to the petition for divorce filed by the first petitioner husband against the first Respondent. He pointed out that the first Respondent made a false statement in the complaint that the said petition was withdrawn by the first petitioner. Inviting my attention to the document at Exh.D, he pointed out that the said petition filed by the first Petitioner was converted into a petition under section 13-B of the Hindu Marriage Act,1955 and on 5th July 1999 a decree of divorce by mutual consent has been passed by the Family Court. He pointed out that this order has been suppressed by the first Respondent in her complaint which was filed on 29th November 2000. In the complaint it is alleged by the first Respondent that the first Petitioner married to second Petitioner and therefore the first Petitioner has committed an offence under section 494 read with section 109 of the Indian Penal Code as the marriage between the first Petitioner and the first Respondent was subsisting on 13th November 2000. He pointed out that in fact after filing of the complaint, the first Respondent made an application before the Family Court for setting aside the decree of divorce by mutual consent passed on 5th July 1999. He pointed out the averments made in the petition in that behalf. He stated that after filing of this petition, on 25th October 2007, the said application made by the first Respondent has been dismissed. He has placed on record a copy of order dated 25th October 2007 passed by the - 3 - Family Court. He submitted that the criminal proceeding initiated against the petitioner is nothing but abuse of process of law. 4. I have considered the submissions. I have also perused the documents annexed to the petition. There is no reply filed by the first Respondent. It is not in dispute that the first Petitioner married to the first Respondent on 21st May 1995. Admittedly the first Petitioner filed a petition for divorce being Petition No.A/43 of 1999 before the Family Court at Bombay. 5. The petitioners have annexed a true copy of the Judgment dated 5th July 1999 passed by the Family Court on the said Petition. The said Judgement discloses that the first Petitioner and the first Respondent herein filed the consent terms in writing and on the basis of the consent terms, the petition filed by the first Petitioner was converted into a petition under section 13 (B) of the Hindu Marriage Act, 1955 and a decree of divorce was passed by the Family Court. As stated earlier, the decree of divorce was passed on 5th July 1999. 6. The allegation in the private complaint is that the Petitioner No.1 and the Petitioner No.2 got married on 13th November 2000. The said decree of divorce dated 5th July 1999 - 4 - has been suppressed by the first Respondent in her complaint filed on 29th November 2000. In paragraph 5 of the complaint, she has stated that the said petition No.A/43 of 1999 was withdrawn by the first Petitioner. In fact, in this petition, it is pointed out that the application No.45/2000 has been filed by the first Respondent for setting aside the decree passed on 5th July 1999. Now, it is pointed out that the said application has been dismissed. 7. The Criminal complaint filed by the first Respondent proceeded on an erroneous assumption that on 13th November 2000 the marriage between the first Petitioner and first Respondent was subsisting. However, as pointed out earlier, by the consent of the first Petitioner and the first Respondent, a decree of divorce by mutual consent was passed on 5th July 1999. The fact of passing of decree of divorce was completely suppressed by the first Respondent in her complaint. It is, thus, obvious that filing such a complaint by the first Respondent is nothing but a gross abuse of process of law. Therefore, this is one of the rare cases in which power under section 482 of the said Code has to be exercised for quashing the proceeding of the complaint filed by the first Respondent. 8. Accordingly, rule is made absolute in terms of prayer clause (b). There will be no order as to costs. - 5 - JUDGE JUDGE JUDGE