Bombay High Court
Sudhakar Balkrishna Dalvi & Anr vs State Of Mah & Anr on 15 November, 2016
Bench: V.K. Jadhav
1 cri appln 677.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 677 OF 2005
1. Sudhakar Balkrishna Dalvi,
age 54 yrs, Occ. Service.
2. Nalani Sudhakar Dalvi,
age 46 yrs, occ. Service,
Both R/o Chaitrban Colony,
Gulmohar Road, Ahmednagar.
..Applicants..
(orig accused no. 3 and 4.)
VERSUS
1. The State of Maharashtra.
2. Surekha Mahesh Dhend,
age 35 yrs, Occ. Service,
R/o Plot no.7, Vrundavan Apartment,
Satbhai Lane, Ahmednagar. ...Respondents..
(orig complainant)
...
APP for Respondents: Mr S W Mundhe
Advocate for Respondent 2 : Mr N B Patekar h/f P R
Katneshwarkar
...
CORAM : V.K. JADHAV, J.
Dated: November 15, 2016
...
ORAL JUDGMENT :-
1. None present for the applicants. Heard learned
counsel for respondent no.2-original complainant and
learned APP for the State.
2. Brief facts, giving rise to the present criminal
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application are as follows :-
The marriage of respondent no.2 complainant was
performed with Mahesh on 9.5.1984 as per Hindu rites
and said marriage is still in subsistence. However, after
marriage differences were cropped in and therefore
various matrimonial proceedings initiated and pending
before the different courts. Respondent no.2
complainant has filed complaint bearing no. 181/2003
before the Chief Judicial Magistrate, Ahmednagar
against the present applicants and against husband
Mahesh for having committed an offence punishable
under section 494, 109 read with 114 of Indian Penal
Code. By order dated 19.7.2003 learned Magistrate was
pleased to issue process against the present applicants
and other co-accused persons for the offence punishable
under section 494, 109 read with 114 of Indian Penal
Code.
On appearance, the applicants preferred an
application at exh.18 requested therein to recall order of
issuance of process, however, by order dated 13.5.2004
the learned Magistrate has rejected the same. Even, the
learned Sessions judge has confirmed the said order in
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3 cri appln 677.2005.odt
the revision. Hence, this criminal application.
3. It has alleged in the complaint that, original
accused Mahesh had performed second marriage with
original accused no.2 Savita in the month of June,
1998, however, complaint came to be filed on 26.5.2003
without explaining the delay. Order of issuance of
process passed by the learned Magistrate is also
challenged on the ground that there are absolutely no
allegations as against the present applicants and no role
what so ever ascribed to the applicants in the alleged
performance of second marriage.
4. Learned counsel for respondent-original
complainant submits that the present applicants have
abetted the second marriage and the applicant no.2
Nalini Dalvi is real sister of husband Mahesh. Learned
counsel submits that both the applicants had
participated in performance of second marriage and
considering the same, the learned Judge has rightly
issued the process against the applicants under section
494, 109 r/w 114 of Indian penal Code.
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5. On careful perusal of the complaint, it appears
that, after marriage, respondent no.2-original
complainant was subjected to ill-treatment by her
husband Mahesh and his family members. On
12.1.1985 respondent no.2-original complainant was
sent to her parents house and thereafter her husband
Mahesh did not take her to his matrimonial home for
further cohabitation. Consequently, respondent-original
complainant has filed HMP bearing No.214/1985 for
restitution of conjugal rights against husband Mahesh
and the same was decided in her favour. Being
aggrieved by the same her husband Mahesh had
preferred RCA 7/1989 and District Judge, Ahmednagar
also dismissed said appeal. Meanwhile, husband
Mahesh had also filed a divorce petition against
respondent no.2 - original complainant and same came
to be dismissed by the trial Court. Being aggrieved by
the same, husband Mahesh has preferred RCA
No.115/1992 which also came to be dismissed. It has
further alleged in the complaint that in the month of
June, 1998 Mahesh had performed a second marriage
with original accused no.2 Savita and even she gave
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birth to one male child out of their marital wedlock. It
has simply alleged in the complaint that present
applicants have assisted husband Mahesh in performing
second marriage, except this allegation, no specific role
is ascribed to the present applicants. It is also not clear
from the contents of the complaint as well as from the
verification statement as to in what manner present
applicants assisted husband Mahesh in performing
second marriage illegally.
6. In view of this, the order of issuance of process
against the present applicants under section 494 read
with 109 and 114 of Indian Penal Code is improper,
incorrect and illegal. Hence, following order.
O R D E R
I. Criminal Application is hereby allowed in terms of
prayer clause 'B'.
II. Rule is made absolute in the above terms.
III. Criminal Application is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
aaa/- ...
