Bombay High Court
Anita W/O Nitin Panchal vs The State Of Maharashtra And ... on 15 February, 2021
Bench: R.V. Ghuge, B. U. Debadwar
-1-
6APEAL15.2021.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 15 OF 2021
Anita w/o Nitin Panchal .... Appellant
Versus
The State of Maharashtra & Anr. ... Respondents
......
Shri. P. P. Mandlik, Advocate h/f Shri. Amol S. Gandhi, Advocate for
the appellant
......
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ
DATE : 15.2.2021
PER COURT :-
1. We have heard the learned Counsel for the appellant,
original victim and the learned Prosecutor on behalf of respondent
no. 1. With their assistance, we have gone through the record
available.
2. This is a classic case of litigants abusing the process of
law. As the facts unfold, it would support our said prima facie view,
as under : -
SG Punde
6APEAL15.2021.odt
[a] The appellant (alleged victim) filed a complaint against
respondent No. 2 on 15.07.2013 at the Georai Police
Station alleging that, from the year 2010, she was
residing with her aunt for education. Her birth date as
stated in the complaint as 01.07.1996. The son of the
aunt, respondent no. 2 herein, was a teacher in Ashram
School at Georai. It is alleged that, the accused had
forcibly committed sexual intercourse with her and on
doing so repeatedly, she became pregnant. On
25.10.2013, she delivered a girl child.
[b] The testimony of the appellant was recorded on
05.06.2018 before the Special Judge at Beed in Special
(POCSO) Case No. 5 of 2017, below Exh.58. The
appellant stated in her testimony that she was having a
love affair with the accused and both indulged in sexual
intercourse by choice and out of their free will. The
accused never abused her and has committed no offence
against her. A daughter was delivered, and by consent of
both the persons, the accused has married the appellant
on 03.06.2018. Prior thereto, the mother of the accused
executed a gift deed in favour of the appellant's daughter
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on 01.06.2018, for land ad-measuring 40 Are.
[c] In view of the above, the Special Court delivered an
acquittal judgment on 13.06.2018, which is impugned in
this appeal.
[d] The accused preferred HMP No. 106/2018 on
04.12.2018 contending therein that he is not the father
of the girl child, the DNA report that was called for
during the pendency of the Special (POCSO) Case,
indicated that he was not the biological father of the girl
child and hence he sought dissolution of the marriage.
[e] The appellant and accused entered into a compromise in
which the appellant admitted that she had physical
relations with another male person from village Raj
Pimpri, Tq. Georai, Dist. Beed, who impregnated her.
The accused is not the father of the girl child and the
accused never had any physical relations with her. She
therefore consented for allowing the HMP for dissolving
her marriage.
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(f) The compromise purshis / terms dated 18.12.2018 were
drafted in Marathi and the appellant is stated to be
educated upto the 10th std., and is conversant with the
Marathi language, both writing and reading.
(g) It is on the above compromise terms, that the learned
Court passed an order on 08.04.2019 thereby disposing
off HMP No. 106/2018 and by concluding that the
Compromise Deed Exh.09 is accepted, is a part and
parcel of the order and the marriage is dissolved.
[h] This appeal is preferred on 07.01.2020 and the appellant
(original complainant / prosecutrix) submits on internal
page no. 5 of the appeal memo that, the accused had
prepared a forged document for projecting the consent
of the appellant for dissolution of marriage or that the
accused never had sexual relations with her or that the
girl child is not his biological daughter or that the
accused never performed the marriage with the
appellant and that she would never claim any
maintenance from the accused for herself and her
daughter.
6APEAL15.2021.odt
[i] The accused states that he is already married and has
twins and, therefore, could not have married the
appellant and therefore the marriage is null and void.
3. The learned Advocate for the appellant submits that, she
has already preferred appropriate judicial proceedings for
challenging the disposal of the HMP No. 106/2018 and, therefore,
R&P may be called for only in the Special (POCSO) Case.
4. In view of the above, we request the learned Special
Court at Beed to transmit the R&P in Special (POCSO) Case No.
5/2017 decided on 13.06.2018, by a special messenger by
15.03.2021.
5. Issue notice to the respondents, returnable on
19.03.2021. The learned Prosecutor waives service of notice for
respondent No. 1.
6. We preempt the appellant as well as respondent no. 2
that as, prima facie, we find this case to be an example of abuse of
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the process of law and an attempt to use the courts for favourable
orders with self-serving purposes, we would be taking a strict view
while we take this matter to its logical end.
( B. U. DEBADWAR ) ( RAVINDRA V. GHUGE )
JUDGE JUDGE
SG Punde
