Bombay High Court
Ashish Ankush Kanke And Others vs The State Of Maharashtra And Another on 30 July, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:20012-DB
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1748 OF 2023
1. Ashish Ankush Kanke PETITIONERS
Age - 36 years, Occ - Service
R/o Plot No. 2, Narhar Apartment,
Behind Tirumala Mangal Karyalaya,
Pundlik Nagar Road,
Aurantabad, Taluka & District - Aurangabad
2. Archana Ankush Kanke
Age - 60 years, Occ - Household
R/o Plot No.2, Narhar Apartment,
Behind Tirumala Mangal Karyalaya,
Pundlik Nagar Road,
Aurantabad, Taluka & District - Aurangabad
3. Ankush Devrao Kanke
Age - 68 years, Occ - Agriculture
R/o Plot No.2, Narhar Apartment,
Behind Tirumala Mangal Karyalaya,
Pundlik Nagar Road,
Aurantabad, Taluka & District - Aurangabad
4. Gayatri Umesh Mote
Age - 40 years, Occ - Household
R/o Plot No.121, Tirupati Park
Gurusahani Nagar, N-4, CIDCO
Aurantabad, Taluka & District - Aurangabad
5. Umesh Shrihari Mote
Age - 43 years, Occ - Advocate
R/o Plot No.121, Tirupati Park
Gurusahani Nagar, N-4, CIDCO
Aurantabad, Taluka & District - Aurangabad
6. Priyanka Ajay Pisute
Age - 40 years, Occ - Household
R/o Adarsha Colony,
Burudgaon Road, Manik Nagar
Ahmednagar, Taluka & District - Ahmednagar
7. Ajay Arunrao Pisute
Age - 43 years, Occ - Business
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R/o Adarsha Colony,
Burudgaon Road, Manik Nagar
Ahmednagar, Taluka & District - Ahmednagar
VERSUS
1. The State of Maharashtra RESPONDENTS
Through the Police Inspector,
Pundalik Nagar Police Station
(Aurangabad City)
Taluka & District - Aurangabad
2. Nikita Ashish Kanke
Age - 27 years, Occ - Business
R/o Meharnagar, Behind of K. Point Hospital
Garkheda, Aurangabad
.......
Mr. K. N. Shermale, Advocate for the Petitioners
Mr. S. N. Deshmukh, APP for Respondent - State
Ms. J.S. Aute h/f Mr. K. D. Bhande, Advocate for Respondent No.2
.......
[CORAM : NITIN B. SURYAWANSHI, &
SANDIPKUMAR C. MORE, J. J.]
RESERVED ON : 22nd JULY, 2025
PRONOUNCED ON : 30th JULY, 2025
JUDGMENT (PER NITIN B. SURYAWANSHI, J.):
1. This petition, filed under Articles 226 and 227 of the
Constitution of India read with section 482 of the Criminal
Procedure Code, challenges First Information Report bearing No.
0308 of 2023 registered with Pundalik Nagar Police Station,
Aurangabad for offence punishable under sections 323, 406,
498A, 504, 506 read with 34 of the Indian Penal Code and under
sections 3 and 4 of the Dowry Prohibition Act.
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2. The second Respondent (wife) lodged the FIR in question,
in short alleging that, her marriage with Petitioner No.1
(husband) was solemnized on 7 th May, 2017 as per Hindu rites
and customs. At that time, husband was doing private job at
Mumbai. However, he did not take her to Mumbai for one and
half year after the marriage. During this period, she resided with
her in laws, at Ulkanagari, Aurangabad. During the said period,
the husband used to visit Aurangabad once in a month and was
not talking with her and because of the same, she used to feel
upset. Petitioner Nos. 2 to 4 used to taunt her and used to
mentally harass her. Petitioner Nos. 4 and 5 used to frequently
visit house of her in laws and used to taunt her on the count of
burnt food and used to harass her mentally by uttering bad
words. They used to say that she did not know how to cook. She
was sent to Mumbai with her husband. At Mumbai also, her
husband used to consume excessive liquor and used to abuse
her and slap her and used to physically and mentally harass her.
Petitioner No. 4 used to instigate her husband and on her
instigation, her husband used to abuse her. Husband used to
come in drunken condition and used to abuse her in filthy
language and beat her.
3. In the year 2018, her husband abused and beat her at the
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instance of Petitioner No.4. Thereafter, he was called at
Aurangabad. He left her alone at Mumbai. Her parents brought
her at Aurangabad. Thereafter, she stayed at her maternal home
for about one year in 2019. Thereafter, there was meeting
between her maternal relatives and in laws and her husband
took her back for cohabitation. Again her father in law beat her
because of breaking of cupboard. She was confined in a room
and kept starved. Since there were constant quarrels between
her and her in laws, her husband, along with her, started residing
separately from his parents. Her sisters in law used to abuse and
used to give threat to beat her. On 24 th March, 2020, she
delivered a girl child. Expenses of the delivery were borne by her
father. Thereafter, her husband told her to bring remaining
amount of dowry of Rs.50 lakhs for purchasing new house. When
she refused, her husband slapped her and abused her and he
told her that he does not like her and she should leave him. On
1st April, 2023, he drove her out of the house. She came to her
parents and informed them about the ill-treatment. Thereafter,
again, her father convinced her and brought her back on 15 th
May, 2023 at her husband's house. Her parents were trying to
convince her husband and in laws, at that time, they all
quarreled with her and her parents and abused them. At that
time, she told her parents that her husband has illicit relations
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with one girl and since last one and half year there are no
physical relations between them. Because of this, her husband
got angry. Thereafter, on 4th June, 2023, her husband left her.
Though she repeatedly tried to call him, he did not pick up her
call. Since daughter was crying to meet him, she, along with her
daughter, went to Collector Office, where her husband was
serving. There also her husband abused her and threatened to
beat her if she again comes to meet him. He also lodged a false
complaint against her that she beats him.
6. After filing of this FIR, investigation was conducted. During
the pendnecy of the present Petition, charge sheet came to be
filed and the case is numbered as RCC No. 679 of 2024 and is
pending before learned Judicial Magistrate, First Class,
Chhatrapati Sambhaji Nagar.
5. The petition, to the extent of Petitioner No.1 - Ashish
Ankush Kanke (husband) is disposed of as not pressed, vide order
dated 6th January, 2025.
6. Petitioner No.2 is mother in law, petitioner No.3 is father in
law and Petitioner Nos.4 and 6 are sisters in law of the second
Respondent. Petitioner No.5 is husband of Petitioner No.4, and
Petitioner No. 7 is husband of Petitioner No.6.
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7. Heard learned Advocate for the Petitioners, learned APP for
the State and learned Advocate for Respondent No.2. With their
assistance, we have perused the petition memo, documents
annexed along with it and the charge sheet.
8. Learned Advocate for the Petitioners submitted that
husband and wife both are making allegations of extra marital
affair against each other. Before Bharosa Cell, both of them have
levelled allegations of adultery against each other. Vague and
general allegations are levelled against Petitioner Nos. 2 to 7 and
they are implicated in the present crime only with an ulterior
motive of wrecking vengeance. In the FIR itself, it is stated by the
second Respondent that, she and her husband were residing
separately from her in laws. Afterthought allegations are levelled
against the Petitioners with a view to pressurize the husband,
who has lodged complaint against the second Respondent on 5 th
June, 2023. It is further submitted that the husband has filed
Hindu Marriage Petition for divorce on 18th June, 2023 and the FIR
in question is lodged on 17 th August, 2023, with a view to give
counter blast to the Hindu Marriage Petition filed by the husband
for divorce, making afterthought allegations. By relying on
"Achin Gupta V/s State of Haryana and Another 1" and
AIR 2024 SC 2548
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"Abhishek V/s State of Madhya Pradesh 2" he seeks
quashing of the FIR and proceedings of RCC No. 679 of 2024
against the Petitioners.
9. Per contra, learned Advocate for the second Respondent
strenuously opposed the petition. She, by relying on the affidavit
in reply filed by her, submitted that, all the Petitioners have ill-
treated the second Respondent. Her parents have spent Rs.70
lakhs for her marriage and have given 51 tola gold in the
marriage. The gold is still in the custody of the Petitioners. She,
therefore, submits that in view of specific allegations against the
Petitioners, the FIR and the proceedings are not liable to be
quashed.
10. Learned APP adopted the arguments of the second
Respondent. She submitted that in view of the specific
allegations of ill-treatment against the Petitioners, no case is
made out by the Petitioners for quashing of the FIR.
11. Perusal of the record reveals that both, the husband and
the wife, have made allegations of adultery against each other,
which is clear from their statements recorded before Bharosa Cell
on 5th August, 2023. On 5th June, 2023, the husband has lodged
complaint with the Police Commissioner, Aurangabad
AIR 2023 SC 4209
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complaining about physical and metal torture by his wife. He has
alleged that, the wife had an affair with another boy and she was
not willing to marry with him. Her parents deceived him and
performed their marriage, still he had forgiven her and accepted
her. During the six years of their married life, she ill-treated him
physically and mentally. She compelled him to live separately
from his parents. Even while residing separately, she used to
harass him. She used to say that he should only listen to her
otherwise, she will file various cases against him and his family
members. His father in law and mother in law had arrived at his
home on the previous day and on 4th June, 2023 at 11.30 a.m.
when he was at home, they started quarreling with him and
abused him in filthy language and his wife slapped him and
pushed him by catching his collar. They asked him to give
divorce to his wife and they do not need him. They pushed him
out of the house and closed door.
12. Thereafter, on 18th June, 2023, husband filed proceedings
bearing No. A-393 of 2023, under section 13 (1) (i) (I a) of the
Hindu Marriage Act for divorce, in the family Court at
Aurangabad. In the said petition, he has alleged that wife was
indulging in adultery.
13. There appears substance in the contention of the learned
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Advocate for the Petitioners that after the wife got knowledge of
filing of the divorce proceedings by her husband - Petitioner
No.1, the FIR in question is lodged, afterthought, making vague
and general allegations against the Petitioners. Admittedly, as
has been stated in the FIR, the husband and wife were residing
separately from the Petitioners. Petitioner Nos. 4 and 6, sisters of
husband, are married prior to the marriage of Petitioner No.1
with the second Respondent. Petitioner Nos. 4 and 5 are residing
at N-4 CIDCO and Petitioner Nos. 6 and 7 are residing at
Ahmednagar (Ahilyanagar). It is not disputed that both the
sisters of Petitioner No.1 are residing with their husbands at their
respective matrimonial houses.
14. In the FIR, vague and general allegations are levelled
against the Petitioners. No specific instance, date and time of
alleged offence committed by the Petitioners is disclosed. It is
clear from the FIR and the record that, the Petitioners are
implicated in the present crime afterthought, mala fide, with the
ulterior motive of wrecking personal vengeance and to pressurize
Petitioner No.1.
15. Law, on the point of quashing of complaint under section
498-A of the Indian Penal Code, against family members /
relatives of wife is well settled. While laying down this law, the
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Apex Court has made certain pertinent observations in "Preeti
Gupta V/s State of Jharkhand"3. It is observed as follows :
"30. It is a matter of common knowledge that unfortunately
matrimonial litigation is rapidly increasing in our country. All the
courts in our country including this Court are flooded with
matrimonial cases. This clearly demonstrates discontent and unrest
in the family life of a large number of people of the society.
31. The courts are receiving a large number of cases emanating
from Section 498-A of the Penal Code, 1860 which reads as under:
498-A. Husband or relative of husband of a woman
subjecting her to cruelty.-Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section, 'cruelty'
means:
(a) any willful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is with
a view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her
to meet such demand.
(2010) 7 SCC 667
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32. It is a matter of common experience that most of these
complaints Under Section 498-A Indian Penal Code are filed in the
heat of the moment over trivial issues without proper deliberations.
We come across a large number of such complaints which are not
even bona fide and are filed with oblique motive. At the same time,
rapid increase in the number of genuine cases of dowry harassment
are also a matter of serious concern.
33. The learned members of the Bar have enormous social
responsibility and obligation to ensure that the social fiber of family
life is not ruined or demolished. They must ensure that exaggerated
versions of small incidents should not be reflected in the criminal
complaints. Majority of the complaints are filed either on their
advice or with their concurrence. The learned members of the Bar
who belong to a noble profession must maintain its noble traditions
and should treat every complaint Under Section 498-A as a basic
human problem and must make serious endeavour to help the
parties in arriving at an amicable resolution of that human problem.
They must discharge their duties to the best of their abilities to
ensure that social fiber, peace and tranquility of the society remains
intact. The members of the Bar should also ensure that one
complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the
implications and consequences are not properly visualized by the
complainant that such complaint can lead to insurmountable
harassment, agony and pain to the complainant, Accused and his
close relations.
35. The ultimate object of justice is to find out the truth and punish
the guilty and protect the innocent To find out the truth is a
herculean task in majority of these complaints. The tendency of
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implicating husband and all his immediate relations is also not
uncommon. At times, even after the conclusion of criminal trial, it is
difficult to ascertain the real truth. The courts have to be extremely
careful and cautious in dealing with these complaints and must take
pragmatic realities into consideration while dealing with
matrimonial cases. The allegations of harassment of husband's close
relations who had been living in different cities and never visited or
rarely visited the place where the complainant resided would have
an entirely different complexion. The allegations of the complaint
are required to be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal trials
lead to rancour, acrimony and bitterness in the relationship amongst
the parties. It is also a matter of common knowledge that in cases
filed by the complainant if the husband or the husband's relations
had to remain in jail even for a few days, it would ruin the chances
of amicable settlement altogether. The process of suffering is
extremely long and painful".
16. In "Achin Gupta" (supra), it is observed;
"32. Many times, the parents including the close relatives of the wife
make a mountain out of a mole. Instead of salvaging the situation
and making all possible endeavours to save the marriage, their
action either due to ignorance or on account of sheer hatred towards
the husband and his family members, brings about complete
destruction of marriage on trivial issues. The first thing that comes
in the mind of the wife, her parents and her relatives is the Police, as
if the Police is the panacea of all evil. No sooner the matter reaches
up to the Police, then even if there are fair chances of reconciliation
between the spouses, they would get destroyed. The foundation of a
sound marriage is tolerance, adjustment and respecting one another.
Tolerance to each other's fault to a certain bearable extent has to be
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inherent in every marriage. Petty quibbles, trifling differences are
mundane matters and should not be exaggerated and blown out of
proportion to destroy what is said to have been made in the heaven.
The Court must appreciate that all quarrels must be weighed from
that point of view in determining what constitutes cruelty in each
particular case, always keeping in view the physical and mental
conditions of the parties, their character and social status. A very
technical and hyper sensitive approach would prove to be disastrous
for the very institution of the marriage. In matrimonial disputes the
main sufferers are the children. The spouses fight with such venom in
their heart that they do not think even for a second that if the
marriage would come to an end, then what will be the effect on their
children. Divorce plays a very dubious role so far as the upbringing
of the children is concerned. The only reason why we are saying so is
that instead of handling the whole issue delicately, the initiation of
criminal proceedings would bring about nothing but hatred for each
other. There may be cases of genuine ill-treatment and harassment by
the husband and his family members towards the wife. The degree of
such ill-treatment or harassment may vary. However, the Police
machinery should be resorted to as a measure of last resort and that
too in a very genuine case of cruelty and harassment. The Police
machinery cannot be utilised for the purpose of holding the husband
at ransom so that he could be squeezed by the wife at the instigation
of her parents or relatives or friends. In all cases, where wife
complains of harassment or ill-treatment, Section 498A of the IPC
cannot be applied mechanically. No FIR is complete without Sections
506 (2) and 323 of the IPC. Every matrimonial conduct, which may
cause annoyance to the other, may not amount to cruelty. Mere
trivial irritations, quarrels between spouses, which happen in day-to-
day married life, may also not amount to cruelty".
17. In "Abhishek" (supra), it is observed:
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"16. Of more recent origin is the decision of this Court in
Mahmood Ali and Others V/s State of U.P and Others (Criminal
Appeal No. 2341 of 2023 decided on 08.08.2023) on the legal
principles applicable apropos Section 482 Cr.P.C. Therein, it was
observed that when an accused comes before the High Court,
invoking either the inherent power under Section 482 Cr.P.C. or the
extraordinary jurisdiction under Article 226 of the Constitution, to
get the FIR or the criminal proceedings quashed, essentially on the
ground that such proceedings are manifestly frivolous or vexatious
or instituted with the ulterior motive of wreaking vengeance, then in
such circumstances, the High Court owes a duty to look into the FIR
with care and a little more closely. It was further observed that it
will not be enough for the Court to look into the averments made in
the FIR/complaint alone for the purpose of ascertaining whether the
necessary ingredients to constitute the alleged offence are disclosed
or not as, in frivolous or vexatious proceedings, the Court owes a
duty to look into many other attending circumstances emerging from
the record of the case over and above the averments and, if need be,
with due care the circumspection, to try and read between the
lines."
18. Applying aforesaid ratio to the facts of the present case
and taking into consideration the material collected during the
investigation, in the form of charge sheet, which does not make
out any case against Petitioner Nos. 2 to 7, continuation of
prosecution against them will be an abuse of process of law. We
find that, in the FIR, mainly allegations are levelled against the
husband - Petitioner No.1 and vague and general allegations are
levelled against Petitioner Nos. 2 to 7. Implication of the
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Petitioners in the crime is clearly afterthought and appears to be
with a view to give counter blast to the divorce proceedings filed
by the husband. The allegations against Petitioner Nos. 2 to 7 are
wholly insufficient and prima facie do not make out case against
them. Allegations appear to be so farfetched and improbable that
no prudent person can conclude that there are sufficient grounds
to proceed against the Petitioners.
19. The case of the Petitioners is squarely covered by Category
No.1, 3, 5 and 7 laid down by the Apex Court in "State of
Haryana and Others V/s Bhajan Lal and Others," 4 wherein
extraordinary power under Article 226 of the Constitution or
inherent powers under section 482 of the Criminal Procedure
Code can be exercised either to prevent abuse of process of
court or to secure ends of justice. Categories No.1, 3, 5 and 7 are
as follows:
"1. Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or made out a case against the accused.
3. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused
5. Where the allegations made in the FIR or complaint are s
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
(1992) Supp (1) SCC 335
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sufficient ground for proceeding against the accused.
7. Where a criminal proceeding is manifestly attended with mala
fide and / or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and
person grudge."
21. In the backdrop of above, we are of the considered view
that continuation of prosecution against Petitioner Nos. 2 to 7 will
be an abuse of process of law. Hence, the Petition deserves to be
allowed.
22. In the result, following order:
ORDER
A. Criminal Writ Petition is allowed.
2. First Information Report in Crime No. 308 of 2023
registered with Pundalik Nagar Police Station (Aurangabad
City) and proceedings of RCC No. 679 of 2024, pending
before learned Judicial Magistrate, First Class, Chhatrapati
Sambhaji Nagar are quashed and set aside, to the extent
of Petitioner Nos. 2 to 7.
[ SANDIPKUMAR C. MORE ] [ NITIN B. SURYAWANSHI ]
JUDGE JUDGE
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