HARSHAD DOLATRAM GEARIYA Vs. HEENABEN HARSHADBHAI GERAIYA

JUDGEMENT

(1.) The present petition is directed against lodging of F.I.R. being C.R. No.I -86 of 2013 dated 03.05.2013 registered at Gandhidham -A Police Station, Bhuj -Kachchh for the offence punishable under sections 498A and 114 of the Indian Penal Code, and seeking quashing of the said F.I.R. by invoking inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure.

(2.) Brief facts are that applicant no.1 and respondent no.1 - original complainant have entered into wedlock on 06.02.2007 as per the customs and rituals and after their marriage, for about two months, they stayed in India and thereafter, they went to Fujairah in U.A.E. Out of the said wedlock, one daughter, named, Disha, born, who is around 4 years at the time when the complaint came to be filed. Applicants no.2 and 3 are mother -in -law and father -in - law respectively. It is the case of the complainant that after their marriage, they resided together for three months at Bhuj and during that period, mother -in - law and brother -in -law were instigating applicant no.1 -husband and in turn, respondent no.1 was subjected to ill treatment and harassment by applicant no.1. After about three months thereafter, all of them went to U.A.E. as stated above and respondent no.1 thought that position will improve. However, applicant no.1 had continued to harass the complainant. On 17.02.2012, in India, marriage of brother of the complainant was scheduled and respondent no.1 - complainant had requested the applicants to allow her to attend the said marriage. Though respondent no.1 -complainant was allowed, the applicants did not send her daughter to accompany her to India. Later on, it has been averred in the complaint that the applicants brought Disha ­ daughter of the complainant with them to India, but denied custody of the child to respondent no.1 - complainant. So much so, respondent no.1 -complainant was constrained to file a private complaint before the learned Judicial Magistrate, First Class being Criminal Misc. Application No.49 of 2013 under section 97 of the Code of Criminal Procedure seeking custody of her daughter - Disha. In the said complaint filed by respondent no.1 before the learned Judicial Magistrate, First Class, the applicants took stand that respondent no.1 herself left her daughter and she does not want to reside with her and an affidavit to that effect was filed before the learned Magistrate on 17.05.2013. The complainant in the complaint has averred that all the persons, who are named in the complaint, in collusion with each other, were instigating applicant no.1 - husband, which had resulted into mental and physical harassment, but with a hope that at some point of time the situation will improve, respondent no.1 - complainant had tolerated, but then after sending her to India in the year 2012, these applicants have neither returned nor called respondent no.1 - complainant to their place, nor have made any arrangement for daughter -Disha to be seen by respondent no.1 - complainant. It has specially been mentioned that mother in law - Naynaben as well as brother in law, while in India, have specifically conveyed that respondent no.1 - complainant is no longer required and by asserting so, they went back to U.A.E. In this distressed situation, respondent no.1 -complainant was left by the applicants and making such kind of assertion in the complaint the complainant filed the complaint before Gandhidham Police Station in the form of F.I.R., as stated above. It is in this background that when the applicants were to be proceeded with the above proceedings, they approached this Court by way of this Criminal Application seeking quashing of the said complaint. This Court, on 25.06.2013 has admitted the petition and granted interim relief of not taking any coercive steps against the applicants and in the meantime, on 29.07.2013, respondent no.1 has filed an affidavit in reply. Since then the matter was pending final hearing. The matter has come up for final hearing in the month of June 2016 and the same is being taken up for final hearing.

(3.) Learned advocate Shri Hiren Modi had contended that the complaint filed by respondent no.1 is nothing but a clear example of abuse of process of law and therefore, the same may not be maintained in the interest of justice. It was further contended by Shri Modi, learned counsel that the allegations made in the complaint are too general in nature, there is neither specific attribution nor specific allegation levelled against each of the applicants nor minute details were given in the complaint, and therefore, on the basis of such kind of general allegations, criminal law may not be allowed to be put to motion by respondent no.1 - complainant. It was also contended that from a bare reading of the complaint it appears that what had happened with respondent no.1 - complainant is alleged to have happened in U.A.E., and not in India. Therefore, it has been strenuously contended that this Court does not have jurisdiction to entertain the petition, which ultimately tantamounts to be allowing abuse of process of law by respondent no.1 - complainant. It has also been contended that respondent no.1 left U.A.E. on her own volition, it was not because of any ill treatment. In fact, it was contended that the said fact was very much pointed out in the separate proceedings initiated by her under section 97 of the Code of Criminal Procedure and detailed affidavit came to be filed on 17.05.2013 and therefore, in the background of that fact, the learned counsel for the applicants contended that no case is made out against the applicants and allowing the prosecution to investigate into the complaint in question would tantamount to sheer abuse of process of law. The learned counsel further contended that on the contrary, the daughter born out of the wedlock is being taken care of by the applicants and no concrete steps have been taken by respondent no.1 to see the daughter. Even the allegations levelled against the applicants are taken in as it is form, it would not constitute an offence under section 498A read with 114 of IPC. It was also contended that there was an unexplained delay in filing the F.I.R. lodged by respondent no.1. It is in the background of these facts, learned counsel for the applicants has relied on the following decisions: