Jayshreeben W/O Mohanbhai Sumbad vs State Of Gujarat
2023 Latest Caselaw 8395 Guj

Gujarat High Court

Jayshreeben W/O Mohanbhai Sumbad vs State Of Gujarat on 5 December, 2023

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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     R/CR.MA/1340/2022                           ORDER DATED: 05/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 1340 of 2022

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                   JAYSHREEBEN W/O MOHANBHAI SUMBAD
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1,2,3,4,5
MANSI M MULANI(9575) for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                            Date : 05/12/2023

                             ORAL ORDER

1. This quashing petition is filed by the in-laws and relatives of the private respondent whose marriage was solemnized with Nimish Mohanbhai in the year of 2011. The applicant no.1 is mother-in-law, applicant no.2 and 3 are brother-in-law and his wife, whereas, applicant no.4 is married sister-in-law and applicant no.5 is the brother of father-in-law.

2. The respondent no.2 has lodged an FIR on 16.11.2021, which came to be registered with Mahlia Police Station, Kutchh-East being C.R. No.11993012210069 of 2021 for the offence punishable under Sections 498(A), 323, 504, 506(2) and 114 of the Indian Penal Code. In the FIR, it is alleged that, after marriage, she was residing in a joint family and her husband who is by profession Doctor, having extra marital affair with a woman, as a result, she was subjected to mental

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and physical harassment by the husband and his family members. She was mentally harassed and was forced to stay outside the home and asked to give divorce. It is further alleged that, in the year of 2019, she had filed a complaint against the husband and family members and due to intervention of elderly persons of the family, the issue resolved amicably. After the said incident, she came at her matrimonial home and again after some time, she was subjected to harassment by the applicants. It is alleged that, her husband left the house and settled at Ahmedabad as he having extra marital affair with one Vandana Raghav. It is further alleged that, on 12.11.2020, she was thrown out from the matrimonial home by the sister-in-law and others. As a result, she was compelled to call the emergency police and other family members for the rescue. So far as applicants are concerned, it is alleged that, due to their continuous instigation, the husband always misbehaved with her so as to get the divorce from her.

3. In the aforesaid facts, the private respondent lodged an FIR against six persons i.e. husband and relatives of husband. The applicants who are relatives of husband, have preferred this application seeking quashing of the criminal proceedings, inter alia, stating that, the mother-in-law is suffering from cancer and since long, she is staying at her daughter's house. The applicants no.2 and 3 have settled at Bangalore and since long, they are residing separately. The applicant no.4 who is sister-in-law, is living at her matrimonial home and her marriage took place prior to the marriage of the private respondent. The applicant no.5 who is brother of the father-in-

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law is also residing separately. In these background facts, by filing this petition, the applicants pray that, no case is made out against the applicants and they have been falsely implicated with a view to harass them and lower their dignity and prestige in the society and thus, the proceedings may be quashed.

4. This Court has heard learned counsel Mr. Chintan Popat for the applicants and Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent-State. Though called out, Ms. Mansi Mulani, learned advocate for the respondent no.2 did not turn up for hearing.

5. Mr. Chintan Popat, learned counsel for the applicants assailing the allegations made in the FIR has submitted that, the private respondent no.2-wife left the matrimonial home voluntarily and since long, she decided to reside at her parental home. That, in the month of March-2021, the husband Nimish filed H.M.P. Suit for divorce and thereafter, the alleged FIR is being lodged against all the family members which shows the intention of the wife that only with a view to harass the family members and take revenge on them, they have been arraigned as accused without any specific instances of harassment on their part. That, the applicants no.2 and 3 who are brother-in-law and sister-in-laws and they are settled at Bangalore and they have no role to play in the matrimonial dispute and despite of this fact, they have been roped in the alleged offence without any evidence of cruelty. That, the applicant no.5 is brother of father-in-law who at the earlier point of time, performed his duty as an arbitrator to resolve

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the issue and he has nothing to do with the personal life of the private respondent, has been falsely implicated in the alleged offence. The marriage of sister-in-law took place prior to the marriage of the private respondent and since long, she is living at her matrimonial home.

6. In the aforesaid contention, learned counsel Mr. Popat submitted that, this is a fit case where the Court must ensure that, the criminal proceeding is not used as an instrument or for seeking private vendetta or with ulterior motive to pressurize the applicants and the proceeding shall not be used as a weapon of harassment. Thus, in the facts of the present case, the FIR is filed to harass and humiliate the relatives of the husband and allegations made against them are extremely general in nature and no specific role being assigned to them so far act of cruelty is concerned. In such circumstances, he prays that, the criminal proceeding has been initiated maliciously and with ulterior motive as due to marital discord with the husband, to pressurize him, to arrive at a settlement, the applicants have been falsely implicated in the alleged offence and thus, considering the allegations in the FIR, if accepted on their face value, then, it do not constitute an offence of cruelty against the applicants and in that view of the matter, continuation of criminal proceeding would amounts to misuse of the process of law and Court which deserves to be quashed and set aside by exercising inherent powers of this Court.

7. Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent-State has submitted that, the disputed

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questions of facts as raised in the present application cannot be considered at this stage and therefore, no any exceptional case is made out to exercise inherent powers.

8. Having heard the learned counsel for the respective parties and on perusal of the allegations made in the FIR, the issue falls for consideration of this Court is whether the impugned FIR and consequential proceedings qua the applicants are liable to be quashed in exercise of extraordinary and inherent jurisdiction?

9. Having carefully examined the allegations made in the FIR, this Court is of considered view that, the FIR as it stands, does not make out the essential ingredients of Section-498(A), nor, prima facie case is made out for the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code against the present applicants. It is not in dispute that, due to cancer disease, the mother-in-law-applicant no.1 is residing with the daughter-applicant no.4. The applicants no.2 and 3, since long, are residing at Bangalore, whereas, after the marriage, the sister-in-law has never resided with the respondent no.2. The applicant no.5 who is brother of father- in-law is also living separately with his family. In these background facts, this Court is of prima facie view that, there are serious differences and disputes between the husband and wife as the husband is doing his practice as a Doctor at Ahmedabad and according to say of the wife, he is having extra marital affair. Since long, the husband and wife are living independently in the same premises. During the marriage span, attempt was made to reconcile the dispute but somehow

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it could not resolved. In such circumstances, the FIR being lodged arraigning the entire family members without there being any specific instances of harassment on their part. Thus, the allegations made against the applicants do not constitute the offence alleged qua the applicants and this Court is convinced that the FIR being lodged with a view to harass the applicants. Reference can be made to the case of Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors. reported in (2022) 6 SCC 599 held and observed that, in recent times, matrimonial litigation in the country has increased significantly which led in an increased tendency to employ provision such as 498A Indian Penal Code as instruments to settled personal scores against the husband and his relatives. In para-17 of the judgment, it is observed that:

"17. ..... this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analyzing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and inlaws of the husband when no prima facie case is made out against them.".

10. In light of the settled principles and considering the peculiar facts and circumstances of the present case, the case is fully covered by the categories (1) and (7) as enumerated by the Apex Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Suppl. (1) SCC 335.

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11. For the foregoing reasons, I hold that, if the criminal proceedings is allowed to continue, so far applicants are concerned, then, it will nothing but sort of abuse of process of law and travesty of justice and this is the fit case wherein, the inherent powers needs to be exercised for the purpose of quashing of the FIR and proceedings of the criminal case as referred above. Hence, the application is allowed. The FIR being C.R. No.11993012210069 of 2021 registered with Mahila Police Station, Kutchh-East, District: Kutchh East- Gandhidham as well as other consequential proceedings are hereby quashed and set aside qua present applicants. Direct service permitted.

(ILESH J. VORA,J) TAUSIF SAIYED