(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
Prohibition Act, 1961 pending on the file of I Addl. JMFC,
2. The second respondent/wife lodged a complaint
incident said to have occurred on 16.01.2021. It is
months after the alleged incident. The said complaint was
culminated in the registration of a crime. Upon completion
a charge sheet. It is also pertinent to note that, though
3. This Court has heard the learned counsel
Government Pleader representing the State.
4. Before adverting to the allegations of cruelty as
between petitioner/husband and respondent No.2/wife.
The records disclose that petitioner had instituted M.C.
conjugal rights. The said petition came to be allowed by
judgment and order dated 19.06.2024. Since the findings
"17. In this case the petitioner has contended that
even now also he is confident that if once they
resumed their matrimonial life then marital life will
be come on right path. The respondent though
appeared through her counsel and even attended the
conciliation sitting but the respondent has not offered
any explanation for her withdrawal from the society
of her husband nor shown any reasonable excuse.
On the other hand the petitioner husband is
desperate to marital life with the respondent-wife
even though she filed maintenance and police
complaint against him and his family members.
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When the petitioner being the husband is ready to
continue his matrimonial life with the respondent,
the respondent has to lead marital life with him as a
dutiful wife. Further she has not shown any
reasonable or excusable grounds to refuse to live
with the petitioner. After going through the entire
material on record and evidence of the parties, I am
of the opinion that the petitioner has made out
sufficient grounds and proved that the respondent
being his wife has withdrawn from the society of the
petitioner without having any reasonable excuse. As
such the petitioner is entitled for the relief as sought
for. Hence, I answer the point No.1 in the
affirmative."
5. It would be also apposite to advert to the
findings recorded by the Family Court in MC No.399/2023.
In MC No.399/2023, second respondent/wife sought
dissolution of marriage on the ground of cruelty and
desertion, which was dismissed vide judgment and order
dated 27.02.2025. Paragraph Nos.15, 20 and 21 of the
said judgment would be relevant and same are extracted
below:
"15. In this case, the petitioner has contended that
after the marriage on 06-05-2018, she had lived in
the house of the respondent for about two months
and thereafter, she lived with the respondent for
another one month in November 2018. The
respondent has denied this contention of the
petitioner. According to him, he and the petitioner
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lived together only for about 25 days. It is the case
of the respondent that after issuance of notice on 11-
12-2018, the petitioner had given a reply to the said
notice and as per the said reply notice, he has
brought the petitioner to his house, but she has not
stayed with him and within four days, she had went
back to her parents' house. It is the case of the
respondent that he has again got issued another
notice on 23-02-2019 asking the petitioner to join his
company within 15 days from the date of service of
notice and thereafter, the petitioner given a reply to
that notice on 06-03-2019 by making false
allegations and also stated that she is ready to
perform marital obligation, but she has not lived with
him. Further, it is the case of the respondent that he
has filed MC No.08/2023 before the Court of Senior
Civil Judge & JMFC, Jewargi, seeking for restitution of
conjugal rights decree. He has contended that the
petitioner has filed this petition after coming to know
the filing of said MC No.08/2023 by him. It is the
case of the respondent that the petitioner has
willfully refused to perform the marital obligation and
she has filed a false case without there being any
grounds.
20. POINT NO.2: As per the provision under Section
13(1)(ib) of the Hindu Marriage Act, 1955, "any
marriage solemnized, whether before or after
commencement of this Act, may, on a petition
presented by either the husband or the wife, be
dissolved by decree of divorce on the ground that the
other party has, after the solemnization of marriage,
deserted the petitioner for a continuous period of not
less than two years immediately preceding the
presentation of the petition. Further, as per the
explanation provided to this Sub-Section, the
expression "desertion" means the desertion of the
petitioner by the other party to the marriage without
reasonable cause and without the consent or against
the wish of such party, and includes the willful
neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
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expressions shall be construed accordingly. In the
judgment of the Hon'ble Apex Court in case of
Bipinchandra Jaisinghbai Shah v. Prabhavati,
AIR 1957 SC 176, it is held that "if a spouse
abandons the other in a state of temporary passion,
for example, anger or disgust without intending
permanently to cease cohabitation, it will not amount
to desertion. It is further held that, "For the offence
of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there,
namely (1) the factum of separation, and (2) the
intention to bring cohabitation permanently to an end
(animus deserendi). Similarly two elements are
essential so far as the deserted spouse is concerned:
(1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary
intention aforesaid."
21. In this case, the petitioner has alleged that since
February, 2019 she is residing in her parents house
and the respondent has not her brought back to his
house. The petitioner has contended that immediate
cause of action was arisen on 15.11.2023, when the
respondent has denied to take her back. This petition
has been filed on 22.11.2023, within two years from
the date of the alleged desertion. In addition to this,
on careful evaluation of the pleadings and evidence
while appreciating the case of the petitioner regard
to alleged cruelty, I am of the view that the
petitioner has not proved any willful desertion by the
respondent. In fact, the petitioner only has not
joined the company of the respondent even after the
decree for restitution of the conjugal rights in MC
08/2023 filed by the respondent. In my considered
view, the petitioner has not made out a case to grant
divorce decree on the ground of desertion. Therefore,
I have answered the point No.2 in negative."
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6. On a careful perusal of the extracted portions
from both the divorce and restitution proceedings, it
becomes manifestly evident that the second
respondent/wife, in her pleadings before the Family Court,
has categorically admitted that she has been residing at
her parental home since February 2019. Her sole
grievance, as reflected in those proceedings, was that the
petitioner/husband had allegedly failed to bring her back
to the matrimonial home. However, the record in M.C.
No.08/2023 (petition for restitution of conjugal rights)
unmistakably reveals that the husband had made bona
fide efforts to resume cohabitation, which were met with
consistent refusal by the wife. Despite a decree for
restitution of conjugal rights having been granted in favour
of the husband, the wife did not choose to comply with the
decree and continued to reside separately.
7. The findings recorded by the Family Court in
the divorce proceedings, particularly paragraph No.15,
further demonstrate that the marital cohabitation between
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the parties lasted for only about 25 days after marriage.
The Family Court, upon appreciation of evidence, came to
the conclusion that the wife had voluntarily withdrawn
from the company of her husband without reasonable
cause and that she had failed to substantiate her
allegations of cruelty and ill-treatment. These concurrent
findings of fact recorded by a competent court of civil
jurisdiction are significant and bear directly upon the
present criminal prosecution.
8. In the backdrop of these unequivocal findings, if
the complaint lodged by the second respondent/wife on
21.07.2021 is examined in its proper perspective, this
Court is of the considered opinion that the allegation of
cruelty under Section 498-A IPC cannot be re-agitated in a
criminal forum. The Family Court, in two independent
proceedings one seeking restitution of conjugal rights and
the other concerning dissolution of marriage has, after
full-fledged adjudication, negated the allegations of cruelty
and recorded a categorical finding that it was the wife who
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had deserted the husband without any justifiable cause.
Once the competent Family Court has determined that the
wife was the defaulting spouse and that no act of cruelty
stood proved, the continuation of a criminal prosecution on
the same set of facts would amount to re-litigation of an
issue already settled by judicial determination.
9. On the contrary, the findings in the restitution
proceedings specifically record that the wife had deserted
her husband without reasonable cause, while the findings
in the divorce case reinforce that the allegations of ill-
treatment and harassment were unsubstantiated.
Therefore, the twin findings, first, that the wife is guilty of
desertion, and second, that the charge of cruelty is
unfounded clearly demolish the substratum of the
prosecution case. When such judicial determinations by a
competent Family Court subsist, the continuation of the
criminal proceedings under Section 498-A IPC, read with
Sections 323, 504, 506 IPC and Sections 3 and 4 of the
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Dowry Prohibition Act, would not only be redundant but
would also constitute a gross abuse of the process of law.
10. It is also relevant to note that the petition filed
by the in-laws seeking quashing of the proceedings on
identical allegations has already been allowed by this
Court, and the proceedings against them have been
quashed. In view of these developments, and particularly
in the light of concurrent findings of the Family Court
holding that the wife was at fault and that there was no
cruelty attributable to the husband, permitting the
prosecution to proceed further would serve no legal
purpose and would only subject the petitioner/husband to
unwarranted harassment, humiliation, and hardship. This
Court, therefore, finds it a fit case to exercise its inherent
powers under Section 482 of the Code of Criminal
Procedure to prevent the abuse of the process of law and
to secure the ends of justice.
11. For the foregoing reasons, the following order is
passed:
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ORDER
i. The Criminal Petition is allowed.
ii. The proceedings pending against the
petitioner in C.C. No.281/2022, arising out of
Crime No.172/2021 of Kalaburagi City Women
Police Station, Kalaburagi, for the offences
punishable under Sections 498-A, 323, 504,
506 read with Section 34 of the Indian Penal
Code and Sections 3 and 4 of the Dowry
Prohibition Act, 1961, pending on the file of
the I Additional JMFC, Kalaburagi, are hereby
quashed.
iii. Consequently, all interlocutory applications, if
any, stand disposed of.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NJ
CT:SI
