Deenadayalan @ Subash Deena v. Sumathi @ Sumathi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.07.2009CORAM:THE HONOURABLE MR.JUSTICE C.S.KARNANCrl.O.P.No.17124 of 2007andM.P.No.1 of 20071.Deenadayalan @ Subash Deena2.B. Savithiri3.Sridhar4.Bharathi5.Purushothaman6.P.Kamalavani7.Thirumoorthy8.Bhuvaneswari9.D.K.Ashokan10.Loganayaki11.Saraswathi, w/o.Karunanithy12.Karunanithy13.Saraswathi, W/o.Balasubramaniya Chetty14.M.Lakshmi15.C. Murugan16.G. Meena17.P.R.Govindasamy18.Perumal Chetty19.Jayalakshmi20.D.S.Muralidharan21.Prakash22.D.K.Soundararajan23.D.K.Shivaji24.R. Mohan25.V. Balaji ..PetitionersVersusSumathi @ Sumathi Jega ..Respondent Petition filed under Section 482 Cr.P.C to call for the records in C.C.No.160 of 2007 on the file of the learned Judicial Magistrate, Gudiyattam and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : M/s. R.KarthikeyanFor Respondent : (No appearance)

O R D E RThe petitioners have filed the above Criminal Original Petitionto call for the records in C.C.No.160 of 2007 on the file of the learned Judicial Magistrate, Gudiyattam and quash the same.

The respondent/complainant has filed the complaint before the learned Judicial Magistrate, Gudiyattam, stating that the marriage was solemnised between the respondent and the first petitioner on 27.12.1998 as per Hindu Rites and Customs. The said marriage was an arranged one and relatives, friends and family of both sides participated. The complainant contended that at the time of marriage, the complainant's parents provided her valuable gold ornaments, silver ornaments and house hold articles and cash as Sridhana. After marriage, the complainant was not taken to Australiaby the first petitioner upto 17.03.2000. From 17.03.2000 to04.11.2002, she co-habited with the first accused in Melbourne, Australia and gave birth to a male child, named Shiva, on 13.03.2002.On 05.11.2002, the complainant was brought back to India by the first petitioner to attend the funeral of his mother. The complainant further contended that from the date of marriage till 10.11.2002, the first petitioner and the complainant's in-laws had demanded dowry from her.

The complainant further contended that the first petitioner had instituted divorce proceedings against her in Australia, without any valid ground or reason, and without her knowledge. Further, the complainant had alleged that, A3 to A10, A20 and A23 persuaded her togo to Australia, concealing the fact of the divorce proceedings instituted against her. So, she left for Australia on 21.01.2004.So, the complainant has alleged that only for purpose of playing this fraud of making her live in Australia during the relevant period, the first petitioner had brought her back to Australia.

Further, the complainant contended that the FederalMagistrate Court of Australia granted only an ex parte decree for divorce. Even when the ex parte decree was in force, the complainant and the first accused shared conjugal relationship with each other.

Further, due to dowry demands, it was alleged by the complainant that she was sent back to India by first accused/firstpetitioner on 13.09.2004. Thereafter, the complainant could not join her in-law's family due to other unavoidable reasons. On 14.02.2006,the first petitioner married the second petitioner, for which A2 toA25 abetted the said marriage. The said marriage was registered on the files of Sub-Registrar Office, Kannamangalam, ThiruvannamalaiDistrict. So, the complainant has filed this complaint against the https://hcservices.ecourts.gov.in/hcservices/ 25 persons who have abetted the said marriage of first and second petitioner.

The complainant, in support of her complaint has filed three documents and mentioned ten witnesses. The learned Magistrate, Gudiyattam has taken the case on his file as C.C.No.160 of 2007 and issued summons to the petitioners herein.

The petitioners have contended that the marriage was solemnised between the first petitioner and the complainant, that out of wedlock, a male child was born. Further, the petitioners have totally denied the allegation of the complainant regarding dowry demand.

The petitioners further contended that the allegations against all the petitioners/accused are false. A7 and A8 are residing at New Delhi, A9 and A10 are residing at Faridabad; A11 toA24 are residing in Arani. So, the petitioners had not at all interfered in the wedlock of the first accused and the complainant.

Further, the first petitioner submits that the notice on the divorce application was also served on the complainant and she had also sent an objection to the same from India and divorce was granted by the Australian Federal Court. In view of the same, the respondent herein cannot claim that the divorce was an ex-parte one. The petitioners submit that the present complainant is not maintainable under Section 182(2) of the Code of Criminal Procedureand the same is liable to be quashed.

Further, the learned counsel for the petitioners pointed out that the marriage was celebrated at Chittoor in Andhra Pradesh, and the same was registered at Tiruvannmalai and the husband and complainant, lastly, resided at Australia and the wife by the first marriage has taken up permanent residence at Krishnagiri. And as such, the present complaint before the learned Magistrate, Gudiyattamis not maintainable.

The first petitioner submits that he had obtained valid divorce from the Federal Magistrate Court, Australia, Dandenong on21.01.2004 and the same was made absolute on 20.02.2004 and as such the second marriage was performed only after the valid dissolution of the first marriage and as such the present complaint does not stand scrutiny in the eye of law.

Further, the petitioners submit that already the respondent had initiated a police case in C.C.No.187 of 2006 under Sections 498-A and 506(ii) of IPC and the same is pending trial before the learnedMagistrate, Gudiyattam. The respondent had also filed a petition for the custody of the child before the Bangalore District Court and the same is pending consideration. And now the present complaint has https://hcservices.ecourts.gov.in/hcservices/ been filed after the lapse of one year which is nothing but harassment caused by the respondent and as such the said proceedings are liable to be quashed.

Considering the contentions of both the sides and the arguments of the learned counsels for their respective parties, the Court is of the view that the case is fit to be tried for the following reasons:-(1) Even though, ex-parte decree of the Australian Court is ajudicial order, it was not disposed on merits. The complainant was not made aware of the contents of the divorce petition. (2)At the time of divorce proceedings pending in the Australian Court, the first petitioner and the respondent had lived in the same shelter as husband and wife. (3)In the instant case, the question of law does not carry much force, it is only the force of facts, which is higher. (4)The complainant is an aggrieved person and this Court feels that she has to be given an opportunity so that Justice is not denied to her.