IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3052 OF 2013 BETWEEN:
1. SRI K S ANANDRAM GUPTHA S/O LATE SRI. SRINIVASA SETTAR AGED ABOUT 73 YEARS 2. SMT.K.A.LAKSHMI W/O SRI.ANANDRAM GUPTHA AGED ABOUT 68 YEARS BOTH R/AT NO.148, 3RD CROSS, RAJYOTSAVA NAGAR, KUMARASWAMY LAYOUT BANGALORE-560078 ... PETITIONERS (BY SRI: BHARGAV GOPALASWAMY, ADVOCATE FOR SRI: C.R.GOPALASWAMY, ADVOCATE) AND 1. STATE BY KUMARASWAMY LAYOUT POLICE BANGALORE, REPT. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING-560001. BENGALURU-560 001.
2. SMT.MAMATHA W/O LATE SRI.K.A.GOUTHAM AGED ABOUT 38 YEARS R/AT C/O SRI.PRAKASH KUMAR BUS DRIVER, NEAR ASHARAMA SCHOOL II CROSS, S.N.NAGAR SAGAR SHIMOGA DISTRICT PIN-577401 ... RESPONDENTS (BY SRI: NASRULLA KHAN, HCGP FOR R1 SRI: I.THARANATH POOJARY, ADVOCATE FOR R2-ABSENT) THIS CRL.P IS FILED U/S.482 CR.P.C. PRAYING TO QUASH THE CRIMINAL PROCEEDINGS INITIATED IN C.C.NO.8029/2011 (CR. NO.558/2010 OF KUMARASWAMY LAYOUT POLICE) PENDING ON THE FILE OF THE V A.C.M.M., BANGALORE IN PURSUANCE OF THE COGNIZANCE TAKEN BY THE LEARNED JUDGE VIDE ORDER DATED 07.03.2011 SO FAR AS PETITIONERS ARE CONCERNED.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for the petitioners and learned HCGP for respondent No.1-State.
Learned counsel for respondent No.2 is absent. Perused the records.
2. Petitioners are accused Nos.2 and 3 in C.C.No.8029/2011 on the file of V Addl. CMM, Bengaluru. Respondent No.2 initiated criminal action against the petitioners and accused No.1 on the allegation that she was subjected to cruelty and ill-treatment in the matrimonial home by the petitioners and her husband. In the complaint, it is alleged that at the time of marriage, a sum of Rs.10,000/- was paid as dowry and thereafter additional demand of Rs.2.00 lakhs was made and on account of failure of the second respondent to meet said demand, she was subjected to ill-treatment and cruelty in the matrimonial home.
3. Records disclose that the marriage between the second respondent and accused No.1 was performed on 09.06.2010. Within four months after marriage, respondent No.2 lodged a complaint against her husband as well as petitioners herein making allegations of cruelty and dowry demand. On the heel of it, she filed a divorce petition under Section 13(1) (ia) of Hindu Marriage Act before Senior Civil Judge and JMFC in M.C.No.16/2011. The order passed therein discloses that her husband viz., accused No.1 also presented a petition for divorce in M.C.No.4255/2011 on the ground of failure of consummation of marriage. Though in the complaint as well as in the proceedings before the Matrimonial Court, respondent No.2 has alleged that dowry demand was made subsequent to marriage and that she was subjected to cruelty and ill-treatment by the petitioners and her husband in the matrimonial home, the matrimonial Court which passed the decree for divorce in M.C.No.16/2011 has recorded in its order dated 31.01.2013 as under:-
“Thus it is undisputed fact that after the marriage, there is no co-habitation between the parties. It is the allegation of the wife that since husband is impotent and this fact was not disclosed by him prior to the marriage, there is no co-habitation and she is leading depressed and miserable life without experiencing sexual enjoyment and as such, she is entitled for divorce. In the same way in M.C.No.4255/2011 respondent/husband has also sought for divorce on the same ground of non- consummation of marriage and making allegations against wife for non-consummation and he has also made further allegations against the wife about alleged cruelty.”
4. This finding clearly suggests that after marriage, parties did not live together and therefore there was no co- habitation between the parties on account of the alleged impotency of accused No.1. In the backdrop of this finding, it cannot be believed that after marriage, respondent No.2 was subjected to cruelty and ill-treatment by her husband and the petitioners with the mens rea as contemplated in Section 498(A) of the Indian Penal Code. When the grievance of the second respondent appears to be failure of consummation of marriage on account of alleged impotency of her husband and not on account of dowry demand or cruelty by the petitioners, these allegations appear to have been made solely with a view to foist criminal case against the petitioners so as to pressurize the petitioners as well as her husband to agree for the divorce which was filed by her simultaneously with lodging of the criminal complaint. All these circumstances therefore indicate that the real grievance of the second respondent was with regard to alleged non-consummation of marriage and not on the ground of cruelty. It is also submitted that after the decree of divorce, accused No.1 died on 11.02.2013. The matter is pending since 2011. Petitioners are aged 75 years. Having regard to the nature of the allegations made against the petitioners and in view of the findings recorded by the matrimonial court, in my view, no purpose would be served in continuing the prosecution against the petitioners. Hence, to prevent further abuse of process of Court, in my view, proceedings initiated against the petitioners require to be quashed.
Accordingly, the petition is allowed. The proceedings initiated against the petitioners in C.C.No.8029/2011 pending on the file of V Addl. Chief Metropolitan Magistrate, Bengaluru is hereby quashed.
Sd/- JUDGE *mn/-