Madras High Court
T.Moulana Sait @ Mowlana Set vs State Rep. By on 4 January, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 04/01/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.8960 of 2020
and
Crl.MP(MD)No.4205 of 2020
1.T.Moulana Sait @ Mowlana Set
2.T.Rehmat Nisha
3.Asha Parveen : Petitioners/A1 to A3
Vs.
1.State rep. by
Inspector of Police,
All Women Police Station,
Uthamapalayam,
Theni District.
(Crime No.3 of 2020) : R1/Complainant
2.S.Avasiya Banu : R2/De-facto Complainant
Prayer: Criminal Original Petition is filed under Section 482
of the Criminal Procedure Code, to call for the records in Crime No.
3 of 2020 on the file of the respondent police and quash the same.
For Petitioner : Mr.P.M.Vishnuvarthanan
For 1st Respondent : Mr.S.Manikandan
Government Advocate (Crl. Side)
For 2nd Respondent : Mr.M.A.M.Raja
https://www.mhc.tn.gov.in/judis
2
ORDER
This petition has been filed by the petitioners seeking
quashment of the case in Crime No.3 of 2020 on the file of the 1st
respondent police.
2.It is a matrimonial dispute between A1 and the 2nd
respondent, who is the de-facto complainant herein.
3.The 2nd respondent has filed a complaint with the
following allegations:-. On 02/02/2017, the marriage took place
between the 1st petitioner and the 2nd respondent. At that time of
marriage, 41 sovereigns of jewels and Rs.50,000/- was given. Apart
from that, Rs.5,00,000/- worth of sridhana has also given by the
parents of the de-facto complainant. After the marriage, they were
residing at Madhavaram, Chennai. At that time, A1 was working in
ICF, Chennai. A1 ill-treated the de-facto complainant stating that he
is not liking her and only for money and jewels, he married her. A2
and A3 also frequently visited the residence and demanded money.
A1 assaulted the de-facto complainant and also demanded money,
abusing in filthy language. So, within a short span of time from the
date of marriage, 20/1-2 sovereigns of jewels belongs to the de-
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facto complainant was received by A1 to A3. Later, she become
pregnant and a male child was also born. Now, he is aged about 1
year 9 month. Even after the birth of the child, ill-treatment
continued. The matter was taken to Jamath. But A1 and A2 refused
to attend the Jamath. So the de-facto complainant was residing
with her parents in distress. A complaint was given to the ICF
Senior Personal Officer ( Welfare) and counselling was also given.
After the above said counselling, A1 took the de-facto complainant
and the child. Later also, there was no correction in his behaviour
and demanded money. So, the de-facto complainant was driven out
of the house on 16/09/2018. On a promise made by the sister of the
de-facto complainant to transfer of Rs.1.10 Lakhs, the de-facto
complainant was taken back to A1's house. Money was also paid by
the sister of the de-facto complainant. That amount was also
snatched by the accused persons. Again torture continued and even
the child was torched with cigarette. Most of the jewels belongs to
the de-facto complainant pledged by A1 and on 11/09/2019, again,
she was assaulted by A1 to A3. She escaped from the house and
went to Madhavaram Police Station at 7.00 pm. In a taxi arranged
by the Police Officials, she went to her junior uncle house. The
parents were informed that she was taken to Uthamapalayam, on
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30.09.2019. She was also taken to Uthamapalayam Hospital. Since
the occurrence took place in Chennai, she lodged a complaint on
18/09/2019 at Puzhal AWPS and that was forwarded to the
Uthamapalayam Police Station. When such being the position, the
mother of A1 was making arrangement for performing second
marriage to A1. On 26/09/2019, a complaint was given to the
Superintendent of Police, Theni. Both of them were enquired on
18/10/2019. Even though, A1 has promised to take back the de-
facto complainant, he pronounced Talque through whatsapp. Even
after the above said attempt, no proper action was taken. So the
de-facto complainant filed a petition under section 156(3) of Cr.P.C
before the Judicial Magistrate, Theni, which was ordered and on
the basis of the above said order, now the above said case has been
registered.
4.Seeking quashment of the above said FIR, this petition has
been filed by the above said accused persons mainly on the ground
that the earlier complaint given by the de-facto complainant before
the Madhavaram Police Station was closed, after due enquiry and
suppressing the above fact, a false complaint has been given by
way of filing a petition under section 156(3) of Cr.P.C.
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5.Heard both sides. Intervener is also heard. Both of them
also filed typed set of papers, narrating the entire dispute between
them.
6.The entire CD file has been called for and the counter
affidavit has also been filed by the 2nd respondent.
7.Narration of the events that has been mentioned in the
complaint shows that there was continuous harassment to the de-
facto complainant. The photograph of the child with an injury has
also been produced by the intervener/de-facto complainant.
According to the learned counsel appearing for the petitioners, that
injury was not caused by A1. Regarding the assault on the de-facto
complainant also, during the course of investigation, the accident
registers have been collected, which is dated 30/09/2019. Before
the Doctor, the de-facto complainant has stated that she was
assaulted by known persons on 11/09/2019 in No.16, Thansingh
Mastery Street, Madhavaram, Chennai. No external injury was
found, but she was complaining about pain on the left hand. She
was treated as out-patient in the Government Hospital at
Uthamapalayam, Theni District. It has been brought to the notice of
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this court that A1 has performed second marriage with one lady on
13/07/2019. The talaque message, which was sent by A1 through
whatsapp has also been enclosed in the typed set of papers.
8.According to the learned counsel appearing for the
intervener, as per the Muslim Protection of Marriage Act, 2019,
proper procedure has not been followed before performing the
second marriage. On knowing about the second marriage proposal,
continuous complaint has been given by the 2nd respondent to the
higher officials of her husband. The whatsapp message, dated
04/10/2019 is also enclosed, wherein we find that talaque was
pronounced by A1. But however, even then he continued to call the
de-facto complainant as his wife. A1 has expressed some fear
about the activities of the father of the 2nd respondent/de-facto
complainant. Even before the whatsapp message between them,
the second marriage took place on 03.07.2019. So what was the
real problem between the husband and wife is a matter for
investigation. Now the investigation has also been over and
materials have been collected and final report is also made ready
on 23/02/2021.
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9.Further perusal of the case diary shows that continuous
proceeding that has been undertaken by the Social Welfare
Committee did not find any result, since both the A1 and the 2nd
respondent did not attend the enquiry. The de-facto complainant
has given a statement before the Social Welfare Committee that
she must be restored with her jewels, which was taken by the
accused persons. A counter allegation has been made by A1 before
the Social Welfare Department. During the above said conciliation
process, it has been made allegation that because of the
matrimonial dispute, continuous false case has been given by the
de-facto complainant and her father to the Department. He has also
made some allegations against the second respondent with regard
to her conduct.
10.Whether the allegation made by the de-facto complainant
is true or not, can be a matter for trial. It is also seen that in spite
of best efforts, no conciliation was possible between the parties.
Since allegations and counter allegations have been made, it may
not be proper on the part of this court to veracity complaint, since
the final report is also made ready. Unless strong ground is made in
the petition, this petition cannot be entertained.
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11.The learned counsel appearing for the petitioners relied
upon the judgment of the Hon'ble Supreme Court in the case of
Rajesh Sharma & others Vs. State of U.P & another [2017(4)
CTC 667], which is a celebrated judgment on the typic of
matrimonial issue. A detailed guideline has been given. According
to the petitioners, those procedures are not followed before the
registration of the FIR or final report. But on perusal of the entire
records and CD file shows that all sayings are well within the
husband and wife. Even during the existence of the first marriage,
by pronounced Talaque, the 2nd marriage has been performed by
A1.
12.As mentioned earlier, so far no strong ground has been
made out by the petitioners. The argument of the petitioners that
the earlier complaint given by A1 before the Madhavaram Police
station came to be closed is also not established. It is also a matter
for trial. As mentioned earlier, reading of the complaint shows that
much effort was taken by the 2nd respondent to lodge a complaint
before the Madhavaram Police Station. But that was transferred to
Uthamapalayam Police Station only on jurisdiction point. More-
over, closing of the earlier complaint in a matrimonial proceedings
may not be a bar for giving the second complaint.
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13.As mentioned earlier, the complaint has been lodged by
invoking section 156(3) Cr.P.C of the jurisdictional Magistrate.
When that being the position, the argument of the learned counsel
appearing for the intervener/de-facto complainant that the second
petition is not maintainable is without any substance and cannot be
accepted. From the allegations, it is seen that now the jewels
belongs to the 2nd respondent also lies with the hands of A1 and A2
and no proper explanation has been given by them with regard to
the above said jewels. Regarding the enquiry by the above said
Madavaram police, only xerox copy is available. The enquiry was
undertaken in CSR No.359 of 2020. During the course of enquiry,
A1 also appeared and given a statement that he will work out his
remedy by filing a petition before the concerned court for
restitution of conjugal rights, wherein it has been mentioned that
the 2nd respondent also made a quarrel and left the matrimonial
home, on 11/09/2019. In spite of best efforts made by him, the
second respondent refused to come to the matrimonial home. He
has also mentioned that when the de-facto complainant was six
months pregnancy, without his consent, she was taken to the
parental home by her father. Later refused to come to the
matrimonial home. After a lapse of one year, she came to the
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matrimonial home. This piece of statement shows that effort was
also made by A1 at one point of time to bring peace to the issue.
But what happened after that, is a matter for trial. In a
matrimonial issue, it is always possible to make allegation against
one party, that is why conciliation and mediation process are being
undertaken to resolve the issue. Here, as mentioned earlier, in spite
of best efforts, possibility of settlement between the parties could
not be achieved.
14.But however, the learned counsel appearing for the
petitioners would submit that the 3rd petitioner/A3 is no way
connected in conducting the 2nd marriage to the 1st petitioner/A1.
According to him, she was married in 2011 itself and was residing
separately and she has been wrongly roped in the above said issue.
15.In the light of the above submission, now we will go to the
issue of allegation or overtact that has been attributed against A3.
This petitioner/A3 also joined with her husband and mother-in-law
and the caused assault and beaten. Similarly, on 11/09/2019 also,
all the three accused persons joined together and assaulted her.
But, how the 3rd petitioner came to the matrimonial home has not
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been clearly stated by her. So the allegation that the 3rd petitioner
was in the matrimonial home is highly doubtful.
16.The Hon'ble Supreme Court in more than one occasions,
cautioned the courts, while entertaining dispute involving the
matrimonial issue. When there is a possibility of roping in-laws. To
show the residential address of the 3rd petitioner, she produced the
Aathar card, Indane Gas connection card, wherein it has been
shown that she is residing in No.19, 1st Street, Sowrastra Nagar, 9th
Street, Choolaimedu City, Chennai.
17.As mentioned earlier, the Hon'ble Supreme Court starting
from the case of Preeti Gupta Vs. State of Jharkand [2010(7) SCC
667] and Rajesh Sharma and others Vs. State of UP and another
[2017(4) CTC 667, has stated that the possibility of roping the in-
laws in the matrimonial issue, the court must very cautious in its
approach. When we take advise from the judgments apply to the
factual issue against the 3rd petitioner, no materials are available.
Only bald allegation has been made, which is also inherently
improbable against the 3rd petitioner. But however, final report
has been filed in CC No.277 of 2021 and taken cognizance on the
file of the Judicial Magistrate, Uthamapalayam, Theni District.
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18.Considering the above facts and circumstances of this
case, this criminal original petition is allowed in respect of the
3rd petitioner alone and accordingly (the FIR in Crime No.3
of 2020) CC No.277 of 2021 as against the 3rd petitioner
alone is quashed. In respect of the petitioners 1 and 2, this
criminal original petition is dismissed. Consequently, connected
Miscellaneous Petition is closed.
04/01/2022
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
To,
1.The Judicial Magistrate,
Uthamalapalam,
2.The Inspector of Police,
All Women Police Station,
Uthamapalayam,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.OP(MD)No.8960 of 2020
04/01/2022
https://www.mhc.tn.gov.in/judis
