Raju. C vs Sri. Sajan Peter
2021 Latest Caselaw 6574 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

  WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                       Crl.MC.No.4558 OF 2017(H)

AGAINST THE ORDER/JUDGMENT IN CC 1862/2016 OF JUDICIAL MAGISTRATE
                   OF FIRST CLASS, KODUNGALLUR

   CRIME NO.1344/2011 OF KODUNGALLUR POLICE STATION , THRISSUR


PETITIONERS/ACCUSED:

      1      RAJU. C
             TC.NO.10/2055,SANSAR,THOZHUVANCODE LANE,
             VATTIYURKAVU,THIRUVANANTHAPURAM.

      2      SELIN KAMALA RAJA
             W/O.RAJU,SANSAR,THOZUVANCODE LANE,
             VATTIYURKAVU,THIRUVANANTHAPURAM.

             BY ADVS.
             SRI.K.JAJU BABU (SR.)
             SMT.M.U.VIJAYALAKSHMI

RESPONDENTS/COMPLAINANT & STATE:

      1      SRI. SAJAN PETER
             S/O PETER JOSEPH,PALLATH HOUSE,
             KEETHOLI,KODUNGALLUR.P.O,
             THRISSUR DISTRICT-680664.

      2      STATE OF KERALA
             REPRESENTED BY SUB INSPECTOR OF POLICE,KODUNGALLUR-
             THROUGH PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,ERNAKULAM-682031(CRIME
             NO.1344/2011 OF KODUNGALLUR POLICE STATION).

             R1 BY ADV. SRI.RIJO JOY
             R1 BY ADV. SRI.P.N.SASIDHARAN
             R2 BY ADV.SRI.RAMESH CHAND, PUBLIC PROSECUTOR

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD            ON
24.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.4558 OF 2017(H)

                            2



                        ORDER

At the instance of the husband, a crime

alleging the offence under Sections 415, 420

r/w Section 34 IPC against the parents of his

wife was registered, against which they came

up.

2. The allegation is that his wife is a

person of unsound mind and it was concealed

by her parents at the time of solemnization

of marriage and thereby committed the said

offence. Subsequently the marriage was

dissolved by mutual consent under Section 10A

of the Indian Divorce Act. Even after the

divorce, criminal proceedings were proceeded

for the said offence against her parents.

3. It is so unfortunate that no material

or scrap of paper either produced or let in

so as to show the mental illness, impairment

or unsoundness of mind of the wife by the Crl.MC.No.4558 OF 2017(H)

husband. Hence the police, after

investigation, submitted a referred charge to

which the husband opted to file a protest

complaint over which the learned Magistrate

took cognizance.

4. If she is a person of unsound mind,

she cannot give valid consent for a mutual

divorce under Section 10A of the Indian

Divorce Act. The fact that she had consented

for a divorce by mutual consent by submitting

application and it was accepted by the

husband by joining with her for a mutual

divorce would itself show the admission on

the part of husband regarding the sound state

of mind with his wife. If she is a person of

unsound mind, she cannot defend or prosecute

any proceeding without the assistance of a

next friend. This would show the gravity of

the false allegation levelled against her.

Her husband even after a referred charge Crl.MC.No.4558 OF 2017(H)

submitted by the police proceeded with the

case by maintaining a protest complaint. The

learned magistrate overlooked all these

aspects while taking cognizance which has

resulted in miscarriage of justice. Hence,

the protest complaint and the cognizance

taken thereof are hereby quashed.

The Crl.M.C. is allowed accordingly.

Sd/-

P.SOMARAJAN

JUDGE SPV Crl.MC.No.4558 OF 2017(H)

APPENDIX PETITIONERS' EXHIBITS:

ANNEXURE A COPY OF THE JUDGMENT DATED 24.05.2017 IN MAT.APPEAL NO.938/2015 OF THIS HON'BLE COURT

ANNEXURE B COPY OF THE OP NO.1537/2009 DATED 9.11.2009 FILED BEFORE THE FAMILY COURT,THRISSUR

ANNEXURE C COPY OF THE JUDGMENT DATED 3.07.2015 IN OP NO.92/2011 OF THE FAMILY COURT,THIRUVANANTHAPURAM

ANNEXURE D COPY OF THE JOINT PETITION VIDE I.A.NO.3905/2016 IN MAT.APPEAL NO.938/2015 FILED BEFORE THIS HON'BLE COURT ALONG WITH COMPROMISE PETITION VIDE I.A.NO.3906/2017

ANNEXURE E CERTIFIED COPY OF THE COMPLAINT DATED 04.10.2011 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR ALONG WITH SUMMONS ISSUED TO THE PETITIONERS

ANNEXURE F COPY OF THE REFER REPORT DATED 31.12.2011 IN CRIME NO.1344/2011 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,KODUNGALLUR.

RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE