USHA JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are spouses. There is acrimony in their marriage. Both of them have come before this Court to invoke the powers of this Court to quash the action taken by the learned Magistrate on a final report submitted by the police after due investigation.

(2.) The parties to these petitions (for the sake of convenience, they are referred to as husband and wife) started living together allegedly on the basis of an agreement dated 8.2.1993. On 19.10.1997, a child was born in the relationship. The husband had a wife by an earlier marriage. She filed a petition for divorce. The Family Court granted divorce. The said divorce was confirmed by this Court as per confirmation order dated 4.8.1995. It is the case of the petitioner that on 28.11.1996, after the said divorce, the parties entered into valid matrimony afresh as per Annexure-1 marriage certificate. The marriage was allegedly performed in a local Church. Harmony did not last long. On 7.12.1999 the wife made a complaint before the police alleging commission of the offence punishable under Section 498A of the IPC by the husband. Final report was filed by the police after due investigation on 9.1.2001. The learned Magistrate, on receipt of the final report, perused the same and proceeded to pass orders. The learned Magistrate felt that cognizance of the offence under Section 498A of the IPC cannot be taken inasmuch as the relationship was founded originally on an agreement to marry and not a legally valid marriage. However, the learned Magistrate did not refuse to act on the final report. The learned Magistrate took cognizance of the offences punishable under Sections 352 and 323 of the IPC. Admittedly, the wife was not heard before the final report submitted confirming the guilt of the husband for the offence punishable under Section 498A of the IPC was not accepted in full and cognizance was taken only for different/lesser offences under Sections 352 and 323 of the IPC. Both the husband and wife are now before this Court, complaining about the course adopted by the learned Magistrate.

(3.) When this matter ultimately came up for hearing today, there is no representation on behalf of the husband i.e., the petitioner in Crl. M.C. No. 3129/2001. The learned Counsel for the petitioner-wife in Crl. M.C. No. 4208/2001 has advanced detailed arguments.