Madhya Pradesh High Court

Yashwant Singh vs The State Of Madhya Pradesh on 15 March, 2021

Author: Gurpal Singh Ahluwalia

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         THE HIGH COURT OF MADHYA PRADESH
                    MCRC No.44258/2020
         Yashwant Singh & Ors. vs. State of M.P. & Ors.

Gwalior, Dated : 15.03.2021

       Shri B.D. Mishra, Counsel for the applicants.

       Shri   Inder   Singh   Asthana,   Panel    Lawyer    for   the

respondents/State.

This application under Section 482 of Cr.P.C. has been filed

for quashment of FIR in Crime No.0562/2020 registered at Police

Station Bhind Dehat, District Bhind, for offence under Sections

498-A, 323, 34 of IPC and under Section 3/4 of Dowry Prohibition

Act.

The applicant No.1 is the father-in-law whereas the

applicant No.2 is the mother-in-law. The applicant No.4 is husband

and the applicant No.3 is the younger brother of the husband

(Devar) of the complainant.

The necessary facts for disposal of the present application in

short are that the respondent No.3 has lodged a FIR against the

applicants on the allegations that she got married to the respondent

No.4 on 24.6.2011 in accordance with Hindu rites and rituals. Her

father had given sufficient dowry as per his financial capacity

including one motorcycle, silver and gold ornaments and other

household articles. The moment respondent No.3 reached her

matrimonial house, the applicants started demanding additional

dowry from her. They also started harassing her physically and

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

mentally on the allegation that less dowry has been given,

therefore, her father should get a house constructed for the

applicants and the respondent No.3 must bring Rs.50,000/- towards

her expenses. On 5.9.2020, the respondent No.3 was beaten by the

applicants, as a result of which, she lost her consciousness. The

entire incident was narrated by her daughter to the mother of

respondent no.3 and thereafter, she was shifted by her parents to

the District Hospital, Bhind where she was treated. The entire

atrocities were informed to her parents who also tried to convince

the applicants but they did not agree and, accordingly, the FIR was

lodged.

Challenging the FIR, it is submitted by the counsel for the

applicants that the applicant No.3 had filed an application under

Section 9 of Hindu Marriage Act for restitution of conjugal rights.

Although the respondent No.3 was served but she did not appear

and, accordingly, by judgment dated 28.3.2018 passed by Principal

Judge, Family Court, Bhind in Case No.221/2017 (HMA), a decree

for restitution of conjugal rights was passed, however, the

respondent No.3 did not return back. Accordingly, the applicant

No.1 gave an application to the Collector, Bhind against the FIR

lodged by the respondent No.3 and, accordingly, it was prayed that

free and fair investigation be conducted as the FIR has been lodged

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

after nine years of marriage and a closure report may be filed.

Although it is submitted by the counsel for the applicants

that a similar application was given to the Director General of

Police, State of M.P., Inspector General of Police, Chambal

Division, Gwalior, Superintendent of Police, District Bhind, CSP,

Bhind, SHO Police Station Dehat, District Bhind but no

acknowledgment of receipt has been filed. It is further submitted

that a Panchnama was also prepared on 28.11.2013 by the Panchas

that the marriage of the respondent No.3 was performed with the

applicant No.4 and the applicant No.4 has tried to take his wife

back on four occasions but she did not agree and, accordingly, the

Panchnama was prepared so that the same can be used in case if

any offence is registered. Similarly, an application on 30.5.2015

was made to Superintendent of Police, Bhind mentioning that in

fact, the respondent No.3 is not doing any household work and

every time Panchayat is required to be called for bringing

respondent No.3 back to her matrimonial house and the respondent

No.3 is in habit of making false report and she also frequently

threatens the applicant No.2 that she would falsely implicate the

applicants in a criminal case and, accordingly, it was prayed that

action be taken against the respondent No.3 and her parents and a

prayer was also made that arrangement be made for sending the

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

respondent No.3 with the applicant No.4.

Per contra, it is submitted by the counsel for the State that

the FIR clearly discloses commission of cognizable offence. The

applicants are relying upon an ex parte decree passed under

Section 9 of Hindu Marriage Act against the respondent No.3. The

Collector or any authority has no jurisdiction to enforce the ex

parte decree of restitution of conjugal rights.

Heard the learned counsel for the parties.

It is the case of the applicants that an ex parte decree of

restitution of conjugal rights was passed in favour of the applicant

No.4 and against the respondent No.3 by judgment dated 28.3.2018

passed in Case No.221/2017(HMA) by Principal Judge, Family

Court, Bhind. It is not the case of the applicants that after the ex

parte decree for restitution of conjugal rights was passed, he had

ever made any attempt to bring respondent No.3 back to her

matrimonial house. It is also not the case of the applicants that they

had ever filed an application for execution of decree of restitution

of conjugal rights under Order 21 Rule 32 of CPC. It is also not the

case of the applicants that after the decree for restitution of

conjugal rights was passed, they have ever filed an application for

grant of divorce on the ground of desertion. Thus, it is clear that

after obtaining an ex parte decree for restitution of conjugal rights,

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

the applicants did not try to bring respondent No.3 back to her

matrimonial house nor they took any steps for execution of the

said decree under Order 21 Rule 32 of CPC. Further, they also did

not file any petition for divorce.

Section 13(1A) of Hindu Marriage Act reads as under:-

''[(1A)Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]''

Thus, the applicants had two options after obtaining decree

for restitution of conjugal rights (i) to file an application for

execution of the same under Order 21 Rule 32 of CPC and (ii) to

file an application for grant of divorce under Section 13(1A)(ii) of

Hindu Marriage Act. Nothing was done by the applicants after

obtaining an ex parte decree of restitution of conjugal rights. Thus,

it is clear that the applicants were merely interested in taking a

paper decree in their favour without any intention to get it

enforced.

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

The Supreme Court in the case of Savitri Pandey vs. Prem

Chandra Pandey reported in (2002) 2 SCC 73 has held as under:-

''8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v.

Prabhavati [AIR 1957 SC 176] 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 further held: (AIR pp. 183-84, para 10) "For the office 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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years' period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may

THE HIGH COURT OF MADHYA PRADESH MCRC No.44258/2020 Yashwant Singh & Ors. vs. State of M.P. & Ors.

be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."

It is also not the case of the applicants that the ex parte

decree was ever put for execution under Order 21 Rule 32 of CPC.

It is also not the case of the applicants that the respondent no.3 was

ever informed by them about the ex parte decree of restitution of

conjugal rights and the applicants had ever tried to bring the

respondent no.3 back to her matrimonial home. If the wife is

residing separately due to valid reasons, then it cannot be said that

she has deserted her husband. The husband cannot take advantage

of his own wrong.

If the allegations made in FIR are considered, then it is clear

that because of cruel behaviour of the applicants, she is residing

separately. Further, it appears that the applicants did not file a