Shayara Bano v. Union of lndia) and subsequently made illegal and void by the /uslim Women

...PET|T|ONER/ACCUSED No. s l The state of rerangana, rep by pubric prosecutor. High court of Hyderabad. 'it1ffii:Hf .'f fi39:I..y{?,i?xla:Aj?ts3fl f,l.*?'Jffi ,fl??"n, . Respondent / Complainani Malkajigiri District. _-.-_ ...RESPONDENT/ De_facto Complainant Petition under section :82 0! cr.p.c praying that in the circumstances stated in the Memorandum of Grounds Ci,rii"f t"tr]|o1, tle High Court may be pleased to calr for the record^s. pertain-to ttr. i.'c]'r.ro.zsra oF 2o2lon the fire of "t the Hon'bre , Addr. Junior civir LrJgu ir;: iii'noor. Metroporitan Maqistrate and quash tnu "'u ,.',0,," or process or raw-ror the ;J,?,",i:::!of,::h'j;lln''' LA. NO: 20F 2024 Petition under section 4g2 0f cr.p .c praying that in the circumstances stated in the Memorandum of Grounds ot Cr^il"]rp"rj!o1, the High Court ,iy ou preased to stay afl further proceeding of trair oi c.c No zs 18 OF 20210n the fire of the Hon'bre , Addr. Junior cirii r,io!u'-l,i-iii noor. Metroporitan Masistrate Cyberabad at Matkajigiri incruoinj persB;"i;;;";;;."e of the peritioner. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of criminar petition and upon hearing the arguments of sri UMA DEV, PANIDAPU, Advocate for the petitioner and the-pubric prosecutor on beharf of the Respondent No.'l and none appeared for the Respondent No. 2 The Court made the following ORDER: I { THE HONOURABLE SRI JUSTICE N'TUKARAMJI CRIMIN AL PETITION No. 88870F 2024 ORDER This Criminal Petition is filed under Section 528 of Bharatiya Nagarik .the BNSS,), seeking quashment of Suraksha Sanhita, 2023 (For short proceedings against the petitioner in CC No 2318 of 2021' on the file of the learned ll Additionat Junior civil Judge-cum-XlX Additional Metropolitan Magistrate, Cyberabad at Malkajgiri'

2. The petitioner is arrayed as Accused No 5 in the Calendar Case registered for the offences punishable under Sections 420' 494' 495' 498-4 read with Section 34 of the lndian Penal Code' 1860 (hereinafter'lPC')' Sections 3 and 4 of the Dowry Prohibition Act' 1961 and Section 3 of the tvluslimWomen(ProtectionofRightsonlvlarriage)Act,2019. 3 lhaveheardlearnedcounselappearingonrespectiveparties

4. The prosecution alleges that Accused No'1 entered into marrtage with Respondent No.2i de facto complainant on 27 '11'2020' At the time of the marriage, it is claimed that, in response to a demand from the accused' Respondent No.2's parents'provided a dowry consisting of Rs 8'00'0001 in cash, 20 tolas of gold, %kilogram of silver' various household articles' and anadditionalRs.l,00,000lspecificallyforthepurchaseofamotorcycle' resulting in a total expenditure of approximately Rs 10'00'000/-' 2 \ N7\ Cr/.P.No. 88E7 af 2021 Following the marriage, Respondent No.2 was allegedly subjected to physical and mental harassment by all the accused for further dowry demands. This conduct is asserted to amount to cruelty within the meaning of applicable penal provisions. Accused No.1, being employed in the lndian Army, departed for Jharkhand on 22.12.2020 to report for duty. After his departure, Accused Nos.2 to 4 allegedly continued to harass the Respondent No.2, both physically and mentally, ultimately expelling her from the matrimonial home. It is further alleged that on 29.12.2020, Accused No.'1 unilaterally pronounced Triple Talaq, purportedly in accordance with tvluslim personal law, without securing a laMul decree of divorce from a competent Court. Thereafter, he is said to have contracted a second marriage with the petitioner, arrayed as Accused No.5. ln consequence, Respondent No.2 filed a criminal complaint, following which a police investigation culminated in the filing of a charge sheet against all the accused, including the present petitioner 5 Learned counsel for the petitioner submits that she has been falsely implicated as Accused No.S, and that the complaint fails to disclose the essential ingredients of any cognizable offence, particularly with reference to Section 494 of the lndian Penal Code (lPC), which addresses the offence of marrying again during the lifetime of a spouse. The petitioner categorically denies the allegation that Accused No.'1 has not lawfully 3 .\ r'1(./ (.r/.P.Xo. 8887 ol 202J dissolved his marriage with Respondent No 2 through pronouncement of Triple Talaq ln support of her plea for quashing the proceedings' the petitioner relies on a decision rendered by a Coordinate Bench of this Court in Criminat Petition No' 10845 of 2022'wherein proceedings against Accused Nos. 2 to 4 were quashed due to the absence of specific' substantiated allegations against them' Drawing a parallel' the petitioner contends that the present complaint similarly fails to attribute any overt act or culpable conduct to her that would justify her prosecution'

6. On the other hand, the learned Additional Public Prosecutor opposes the petition, contending that the legality of the alleged pronouncement of Talaq by Accused No 1 and the validity of his subsequent marriage to the petitioner/Accused No'5 are matters that require judicial determination during the course of trial' lt is therefore submitted that the quash petition is premature and merits dismissal at this stage' -

7. I have perused the materials on record'

8. The charge sheet and accompanying prosecution records allege that Accused No.1 entered into a second marriage with the petitioner/Accused No.5 without first obtaining a valid and lawful divorce from Respondent No.2, the de facto complainant The divorce certificate dated 03'01'2021 indicates that Accused No' 1 had pronounced Talaq-e-Bain (irrevocable 4 N O/.PNa 8887 of 2021 divorce) on 29.12.2020. However, this form of divorce was declared unconstitutional by the Supreme Court of lndia in August 2017 (Shayara Bano v. Union of lndia) and subsequently made illegal and void by the [\/uslim Women (Protection of Rights on Marriage) Act, 20'19 9 Be that as it may, for Muslim men, the second marriage is not void und& personal law, so they are not liable for bigamy under Section 494 IPC as long as they have not exceeded the prescribed limit of four concurrent wives and the marriages are valid under [Vluslim law. The petitioner/Accused No.5 is allegedly second wife of the Accused No.1. Regarding the second wife, she is not liable under Section 494 IPC simply for marrying a Muslim man who already has a wife. Further the allegations of cruelty are not against the petitioner and there is no prima facie material establishing the petitioner's active involvement in the commission of other alleged offences, or demonstrating the fulfillment of the essential ingredients constituting such offences. '10. Thus this Cou( is of the considered view that allowing the criminal proceedings to continue against the petitioner would amount to an abuse of the judicial process. Accqrdingly, the criminal proceedings pending against the petitioner in the present Calendar Case are liable to be quashed

11. ln view of the above, the Criminal Petition is allowed. Consequently, all further proceedings in C.C. No.2318 of 2021, pending before the 5 \tR./ Cr/-P.No. 8887 tt 2021 learnedllAdditionalJuniorCivilJudge-cum-XlXAdditionalMetropolitan Nlagistrate, Cyberabad at t\4alkajgiri' hereby quashed against the petitioner/Accused No 5 Pending miscellaneous applications, if any' shall stand closed SD/. N.SRIHARI DEPUTY REGISTRAR \ //TRUE COPY// SECTION OFFICER To 1.

3. 4 5 The ll Additional Junior civil Judge -cum- XIX Additional Metropolitan Maoistrate. Cvberabad at Malakjigiri . iiiJdtitiii" H'ouse officer , Ner6dment Police Station, Medchal Malkajigiri District. i*"'dcl topublic prosecutor , High court for the state of Telangana at Hyderabad (OUT) ij;;-CCt bnr. urun DEVI PANIDAPU, Advocate [oPUc] Two CD Copies kul/PSL I a\ /1t,- \ .t !- 21 [U$ 2u[ '..-Sl,ATCH gO HIGH COURT DATED:30/04/2025 ORDER CRLP.No.8887 ot 2024 ALLOWING THE CRIMINAL PETITION