Sri. Harish B G vs Smt. Nomala Devi
2021 Latest Caselaw 1207 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH DAY OF JANUARY, 2021

                         BEFORE

         THE HON'BLE MR.JUSTICE H.P.SANDESH

           CRIMINAL PETITION NO.7450 OF 2019

BETWEEN:

Sri. Harish B.G S/o Gangappa B.G.
Aged about 39 years
Residing at @ 1403/B
Bhuvaneshwari Nagar
10th Cross, Dasarahalli
Bangalore North
Bangalore-560057.
                                               ... Petitioner
(By Sri. Mohan Kumar H.G, Advocate)

AND:

  1. Smt. Nomala Devi
     W/o Babu @ Uday Bhaskar
     Aged about 41 years
     Residing at No.407 E 199-3
     10th Cross, T Dasarahalli
     Buhavaneshwari Nagar
     Near Shanimahathama Temple
     Dasarahalli
     Bangalore North
     Bangalore-560057.

  2. Sinchina
     D/o Smt. Normala Devi
     Aged about 9 years
     Since minor into care and
     Custody of her mother
     Respondent No.1 residing at
     No.407 E 199-3, 10th Cross
     T Dasarahalli
     Buhavaneshwari Nagar
                                     2



      Near Shanimahathama Temple
      Dasarahalli
      Bangalore North
      Bangalore-560057.
                                                   ... Respondents

(By Sri. Chetan G.J &
Sri. Sampath Kumar, Advocate)

                               -----
      This Criminal Petition is filed under Section 482 of Cr.P.C.
pleased to quash the entire proceedings initiated by the
respondent No.1 in Crl.Misc.No.55/2019 now pending before
M.M.T.C-III, Bengaluru and etc.,

      This Criminal Petition coming on for Admission, this day,
the court made the following through video conference:

                             ORDER

Heard learned counsel for the petitioner. Respondent

though served through personally as well as personally, did

not choose to appear before this Court.

2. The factual matrix of the case is that

respondent No.1 has filed an application under Section 12

of Domestic Violence Act, 2005 before the Court of the

Metropolitan Magistrate Traffic Court-III at Bengaluru,

hence, the present petition is filed by the petitioner before

this Court contending that respondent No.1 has already

married one Babu having one child as per Annexure-F but

respondent No.1 by suppressing the earlier marriage and

having child had fraudulently married the petitioner

herein. Learned counsel for the petitioner would submit

that marriage between this petitioner and respondent No.1

is not valid unless earlier marriage is dissolved by the

competent Court. Learned counsel brought to the notice of

this Court that a private complaint has been filed by the

petitioner in PCR No.2845/2019 against respondent No.1

for the offences punishable under Sections 420, 494, 495,

496 & 120(B) r/w Section 34 of IPC. Learned counsel

brought to the notice of this Court that suit has been filed

by the petitioner in O.S.No.41/2019 praying the Court to

declare their marriage as null and void and also child

namely Sinchana born through said void wedlock as

illegitimate child. Learned counsel also brought to the

notice of this Court order passed in Crl.R.P.No.856/2010

and para No.13 of the judgment of Hon'ble Apex Court in

the case of D. Velusamy Vs. D. Patchaiammal reported in

AIR 2011 SC 479 particularly at para No.33(c) which

reads as under:

33.(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

34. In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence.

3. Having perused the grounds urged in the

petition and decision of Hon'ble Apex Court, it is the case

of the learned counsel for the petitioner that respondent

No.1 suppressed the earlier marriage, as a result suit has

been filed and also complaint is filed against respondent

No.1. Respondent No.1 no doubt has initiated proceedings

under Section 12 of D.V. Act. Annexure-A discloses that

there was an order directing to the petitioner herein to pay

maintenance of Rs.6,000/- per month from the date of

petition till further orders. Learned counsel also submits

that there is appeal before the Sessions Court, Bengaluru

wherein the Court has stayed order of payment of

maintenance in respect of respondent No.1 and payment of

maintenance in respect of respondent No.2 is continued.

4. Learned counsel for the petitioner submits that

respondent No.1 also admitted her earlier marriage and

hence, she cannot continue proceedings under Section 12

of D.V. Act. The question whether having full knowledge,

respondent No.1 has suppressed her earlier marriage or

not is a matter to be decided by the Trial Court.

Proceedings under Section 12 of D.V. Act is not only

initiated by respondent No.1, respondent No.2 who is child

is also party to the said proceedings, hence the same

cannot be quashed.

5. Having perused the grounds urged in the

petition, this petitioner is seeking relief of quashing the

proceedings on the ground that there was fraud made by

respondent No.1 by suppressing her earlier marriage with

one Babu and having child. In petition under Section 482

of Cr.P.C., this Court cannot go into the matter whether

fraud has occurred or not and this Court cannot sit and

observe and take a decision with regard to fraud as alleged

in the petition. The matter has to be adjudicated by the

Competent Court. Hence, I do not find any reason to quash

the proceedings.

With the above observations, I pass the following:-

ORDER

The petition is rejected.

Sd/-

JUDGE

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