Madhya Pradesh High Court

Purushottam Tiwari vs The State Of Madhya Pradesh on 13 December, 2023

Author: Vivek Rusia

Bench: Vivek Rusia

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                                                     M.Cr.C. No.51065/2018



        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA

               MISC. CRIMINAL CASE No. 51065 of 2018

BETWEEN:-
PURUSHOTTAM TIWARI S/O SHRI RAMESH CHANDRA TIWARI,
AGED ABOUT 47 YEARS, OCCUPATION: SERVICE AM-11, 117
SUKHLIYA, PANDIT DEEN DAYAL NAGAR, INDORE (MADHYA
PRADESH)
                                                    .....PETITIONER
(SHRI SATYENDRA KUMAR VYAS, LEARNED SENIOR ADVOCATE WITH
MS. NEHA YADAV, ADVOCATE FOR THE PETITIONER.)

AND
   THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
1.
   THROUGH P.S. ST/SC DISTT INDORE (MADHYA PRADESH)
   VEENA KADAM D/O SHRI PRATAP SINGH KADAM, AGED ABOUT
2. 45 YEARS, R/O - 77, JAGJEEVANRAM NAGAR, NEAR PATNIPURA
   CHOURAHA, (MADHYA PRADESH)
                                                  .....RESPONDENTS
(SHRI SUDHANSHU VYAS, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
(NONE FOR RESPONDENT NO.2 DESPITE SERVICE OF NOTICE.)


Reserved on              :     04.12.2023
Pronounced on            :     13.12.2023

       This petition having been heard and reserved for order, coming
up for pronouncement this day, this Court pronounced the following:
                             ORDER

1. The petitioner has filed the present petition u/s. 482 of the Cr.P.C. seeking quashment of FIR dated 25.4.2005 registered at Crime No. 13/2005 u/s. 376-A, 294, 506, 34 of the IPC and u/s. 3(1)(10), 3(1) (12), and 3(2)(6) of the Scheduled Caste Scheduled Tribe (Prevention

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of Atrocities) Act [hereinafter referred to as "the SC ST (PA) Act" for short]. The petitioner is also seeking quashment of the further proceedings under the said FIR.

The facts of the case, in short, are as under :

2. The petitioner and respondent No.2/complainant studied in Govt. GSITS Engineering College to pursue a Degree in Engineering subjects. They performed a love marriage on 8.10.1993 in "Arya Samaj Mandir". According to the petitioner, respondent No.2 and her parents & and family members were well aware of the fact cast difference between them. After living some years in India and Dubai as husband and wife The petitioner and respondent No.2 jointly filed the petition for divorce before the Family Court at Indore which was registered as HMA Case No. 929/2003 seeking dissolution of marriage with consent. Vide judgment dated 25.6.2004 after the expiry of the cooling period, the marriage solemnized on 8.10.1993 was dissolved only on the ground that they had been living separately since 2000, and in the future, there would be no possibility of their living together. Since there was a delay in the dissolution of their marriage, both filed a petition for dissolution of their marriage before His Highness Sheikh Maktoom Bin Rashid Al Maktoum, Ruler of Dubai. The Court of First Instance Dubai vide order dated 27.7.2004 dissolved their marriage under the laws applicable in Dubai.

3. According to the petitioner, when he was performing his second marriage in Dehradoon, respondent No.2 made a complaint to the Superintendent of Police, Ram Nagar, Nainital on 20.4.2005 stating that she is legally married wife of the petitioner and lived with him up to February 2005 at Dubai. She was sent back to Indore and now she

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has come to know that he is going to perform a second marriage with one Priyanka on the basis of forged divorce papers, therefore, legal action be taken against him. The Superintendent of Police, Ram Nagar, Nainital conducted an inquiry and submitted the report that both had already taken divorce from the Court at Indore as well as Dubai which the complainant admitted in the Police Station but lodged the report that the signatures were obtained by force and the matter is not liable to be inquired by the police.

4. After she became unsuccessful in Nainital, respondent No.2 came to Indore and lodged the present FIR against the present petitioner and his father, mother, and younger brother viz. Ramesh Chanda Tiwari, Smt. Pushpa Tiwari and Kailash Tiwari allege that despite obtaining a divorce decree she has lived with the present petitioner as a wife in Delhi as well as in Dubai and he made physical relationships with her many times and now she has been subjected to cruelty by accused persons by way of aspiration on her cast as she belongs to Scheduled Caste. The Police Station AJK, Indore registered the FIR for the offence u/s. 376(a), 294, 506, 34 of the IPC and u/s. 3(i) (10), 3(i)(12), and 3(2)(5) of the SC ST (PA) Act and filed the charge sheet showing the petitioner as an absconder. Hence, the present petition u/s. 482 of the Cr.P.C. before this Court.

5. Apart from the present petitioner in the aforesaid crime, Rameshchandra Tiwari ( father-in-law ), Smt. Pushpa Devi Tiwari( mother-in-law ) and Kailash Tiwari (brother-in-law )i.e. father, mother, and younger brother of the petitioner were also made accused in the above FIR. They faced the session trial by declaring the petitioner as absconding vide judgment dated 17.12.2009 passed in

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Special Case No. 3/2006 learned Additional Session Judge acquitted them from all charges, against which neither the complainant nor the State preferred any leave to appeal and the said judgment had attained finality long back. In the said trial, the complainant appeared and was examined as P.W.8.

6. Shri Satyendra Kumar Vyas, learned senior counsel appearing for the petitioner, submits that before the Superintendent of Police, Nainital, respondent No.2 did not make any allegation about cruelty under the SC/ ST (PA) Act or making of the sexual relationship without her consent. Respondent No.2 is an Engineer and working in abroad. She knows every procedure of divorce and the end of the relationship after divorce. She has duly been examined as P.W.8 before the Special Court in Special Case No. 3/2006 and the Court has disbelieved her evidence and acquitted all the accused. It is further submitted that respondent No.2 appeared in person before the Family Court at Indore and agreed to take divorce by way of mutual consent and the decree of divorce was passed. Since at that time, both were living in Dubai, therefore, the Dubai Court also granted the decree of divorce. She challenged the order dated 14.10.2005 passed by the Family Court by way of Civil Revision No. 303/2005 but withdrew on the order dated 20.5.2010. Therefore, the divorce between the petitioner and respondent had attained finality, hence the impugned FIR is nothing but sheer abuse of the process of law to harass and blackmail the present petitioner.

7. The notice of this petition was served to the brother of respondent No.2 who undertook to inform her about the present proceedings and despite that, she did not appear, hence proceeded ex-

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parte.

8. Shri Sudhanshu Vyas, learned Govt. Advocate appearing for the respondent/State opposes the prayer by submitting that the petitioner is avoiding his arrest and appearance before the learned trial Court, therefore, he is liable to appear before the trial Court and face the trial, especially under section 376 of I.P.C. which has nothing to do with the acquittal of other accused, hence the M.Cr.C. is liable to be dismissed.

After having heard the learned counsel for the parties I have perused the material available on record.

9. The parents and younger brother of the petitioner have already faced the trial in Special Case No. 3/2006 in which the complainant and all other relatives duly appeared, examined, and cross-examined. Except for the charge under section 376(a) of IPC, all other allegations are identical against the petitioner and other co-accused persons and they have not been found proven, hence for the charges under sections 294, 506, 34 of the IPC and u/s. 3(1)(10), 3(1)(12), and 3(2)(6) of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act the petitioner cannot be forced to face the trial hence all the charges under section.

10. So far as the allegation of rape against the petitioner is concerned, according to respondent No.2, she performed the marriage with the petitioner in Sanwer in the year 1993 and after the marriage, she lived with him in Indore. During service in Mhow, she lived in his house along with other family members. Thereafter the petitioner got a job in Mumbai and later on the complainant was also shifted to Mumbai where she lived with the petitioner. Thereafter, the petitioner got a job in Dubai, and from Mumbai, she came to Indore and started

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living with her in-laws. After some time she also went to Dubai and she lived with the petitioner for a period of 3 years up to February 2005. During the said period, they both used to travel to India. According to the complainant in the month of August 2003 when she came to Indore, the parents of the petitioner told her that they were feeling insulted in the society as she belongs to the lower caste which is also creating hurdles in the marriage of their younger son Kailash, therefore, a sham decree of divorce be obtained to show the society and despite that sham divorce, they may both live married life in Dubai. The petitioner came to India and she informed him above plan of his parents, he replied that he had knowledge of the said plan and assured her that nothing wrong would be done with her. Accordingly, they both applied and obtained the decree of divorce. Thereafter, the petitioner purchased the dollars from the bank for traveling to Canada with her. The petitioner took her to Delhi from where they went to Canada and lived together. They had a joint account and they lived as husband and wife. After a period of one month, they came to Dubai. Since there was a delay in obtaining the decree of divorce, therefore, they obtained a decree of divorce from the Dubai Court. On 25.6.2004 the decree of divorce was granted by the Family Court at Indore. She lived from 24.6.200 to 26.4.2004 in Hotel Rama-In with the petitioner as husband and wife. The entries were made in the Register by the petitioner. After the decree of divorce, the behavior of the parents of the petitioner changed and they started torturing in the name of caste.

12. According to the complainant, she was cheated in the name of a fake divorce, and thereafter she was sexually abused by the petitioner many times, therefore it is rape. On these grounds, respondent No.2

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tried to challenge the decree of divorce by way of Civil Revision but the same was dismissed as withdrawn by her by way of filing I.A. No.3464/2010. Therefore, the decree of divorce had attained finality. Had the decree of divorce been obtained by fraud the complainant/respondent No.2 would have seriously pursued to challenge the same. As observed above, she withdrew the revision by filing an Interlocutory Application. Hence now she cannot averred that no divorce was given by her.

13. The complainant is not an illiterate lady who is unable to understand the effect of signing the divorce papers. She is an Engineering from a reputed institution like GSITS, Indore. She has been living abroad. She is not an illiterate lady who can be misled to obtain a decree of divorce for the sake of the marriage of the younger brother of the petitioner for showing in society. The petitioner performed the second marriage in the year 2005. His second wife has given an affidavit in support of this petition. Respondent No.2/complainant has not appeared before this Court since 2018. Shri Vyas learned senior counsel for the petitioner, submitted that respondent No.2 has also been settled abroad and not coming to India.

She only appeared in the year 2008 in the Special Case before the Special Court and thereafter, she did not make any effort to get the divorce decree set aside or to apply for restoration of conjugal rights. In Para 41 of her cross-examination, respondent No.2 admitted that the application before the Family Court was filed by her and the petitioner by consent. She admitted her photograph and signatures in the application. Para 41 of the cross-examination of respondent No.2 before the Special Judge is reproduced below :

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"41. ;g ckr lgh gS dh bankSj ds ifjokj U;k;ky; esa esjh vkSj iq:"kksRre dh lgerh ls rykd dh vthZ fn- 14&11&03 dks gh yxk;h x;h Fkh vkSj ml ij esjk Nk;k fp= pLik gS vkSj gLrk{kj Hkh gSA uksV % lk{kh }kjk iq:"kksRre ds lkFk rykd gsrq la;qDr :i ls izLrqr ,Slk vkosnu i= dh izekf.kr izfrfyfi dks ns[kdj mls Lohdkj fd;kA bl ij vfHk;kstu dks dksbZ vkifRr ugh gS] vr% ,Sls vkosnu i= dks izn'kZ Mh 8 ls iznf'kZr fd;k x;k ftl ij , ls , Hkkxksa ij lk{kh Lo;a ds gLrk{kj gksuk Lohdkj fd;kA blds lkFk gh tks la;qDr 'kiFk&i= fn;k x;k Fkk mldh izekf.kr izfrfyfi dks Hkh lk{kh }kjk Lohdkj fd;k x;k] mls Hkh lk{; esa xzkg~; djrs gq, izn'kZ Mh 9 ls iznf'kZr fd;k x;kA ;g dguk xyr gS dh izn'kZ ih 19 vuqlkj 91 gtkj ds ;w-,l-MkWyj eq>s iq:"kksRre us fn;s Fks vkSj mUgs izkIr djus ds ckn gh eSus izn'kZ Mh 8 vkSj Mh 9 ij vius gLrk{kj FksA"

14. In the present case, as the decree of divorce has attained finality, therefore, it cannot be said that it was obtained by way of fraud. There are oral allegations that after the divorce, the petitioner and respondent No.2 lived in the hotel as well as in Canada and Dubai as husband and wife which is not sufficient to establish the charge u/s. 376 of the I.P.C. against the petitioner. As observed above the complainant being a highly educated lady lived as a wife with the petitioner and permitted him to make physical relations on the belief that a decree of divorce is a sham decree. In view of the above, the present petition deserves to be allowed and the impugned FIR and all other proceedings under it deserve to be quashed.

15. Accordingly, this petition filed u/s. 482 of the Cr.P.C. is allowed and the impugned FIR under sections 376, 294, 506, 34 of the IPC and

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u/s. 3(1)(10), 3(1)(12), and 3(2)(6) of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act registered at Crime No. 13/2005 at Police Station AJK, Indore, and all the further proceedings pursuant thereto are hereby quashed.