Allowed

Sanjay Jagannate Phagnekar and Anr. v. the State of Maharashtra and Anr.

Bombay HC24 Aug 2023APPLN/2034/2010

Case brief

AI extract

What is this about?

High Court allowed Criminal Application under Section 482 Cr.P.C. quashing proceedings against husband for 498-A. Court held that since wife failed to substantiate serious allegations of cruelty in divorce proceedings culminating in a decree, continuing criminal trial is futile.

What did the court decide?

The order of Sessions Judge dated 11/02/2008 and the order of Judicial Magistrate First Class dated 03/05/2008 in R.C.C.No.587 of 2006 are quashed and set aside.

Sanjay Jagannate Phagnekar and Anr. Vs… — Constitutional and Fundamental Rights | Bombay HC (2023)

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MANDIRAMILINDSALGAONKAR Digitally signed byMANDIRA MILINDSALGAONKARDate: 2023.08.3013:07:04 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.2034 OF 2010

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Sanjay Jagannath Phagnekar & Ors.

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.. Applicants

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Versus

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The State of Maharashtra & Anr.

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.. Respondents

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Mr.P.P.Runwal for the Applicants. Mr.S.R.Samel for the Respondent No.2. Mr.S.R.Agarkar, A.P.P. for the State/Respondent No.1.

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CORAM: BHARATI DANGRE, J. DATED : 24^th AUGUST, 2023

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P.C:-

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The present Application, fled under Section 482 of the Code of Criminal Proceeding, prays for quashing and setting aside the order dated 11/02/2008 passed by the learned Sessions Judge, Kalyan in Cri. Rev. Application No.95 of 2008 as well as the order, passed by the Judicial Magistrate First Class, Ulhasnager on Exh.5 in R.C.C.No.587 of 2006 on 03/05/2008.

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The proceedings came to be instituted on the complaint fled by Respondent No.2, the wife of Applicant No.1 and sisterin-law of Applicant No.2. Applicant No.3 is a friend of Applicant No.1, who is also arraigned as accused in the subject C.R., being C.R.No.I-160 of 2005 registered with Badlapur Police Station.

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M.M.Salgaonkar

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The complaint lodged by Respondent No.2/wife allege that her marriage was solemnized with Sanjay on 06/02/1996 and she started cohabiting with him at Ghatkopar. She allege that after six months of marriage, she faced harassment on the pretext of bringing money from her parents, by the fatherin-law, brother-in-law and friend of her husband, one Mr.Sudhakar Mhaskar. It is alleged that money was even demanded for performing the marriage of a girl, who was treated by the family as their daughter and even for performance of marriage of brother-in-law.

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The complainant specifcally refer to incident dated 18/06/2005, when the family was proceeding towards Dhule for attending a marriage and it is alleged that her father-in-law and the brother-in-law pulled her out alongwith her daughter, in an attempt to throw them, but when she raised alarm for help, they prevented themselves from doing so. It is also alleged that in order to set her ablaze, the father-in-law rushed towards her alongwith kerosene can and she was threatened that, if she disclose the incident to anyone, then it would cost her immensely.

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Several scattered events are also referred in the complaint, which are alleged to have occurred between 12/10/2005 to 25/11/2005. The complaint also states that in furtherance of the demand,some amount was arranged by her parents and made over to the accused persons.

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The aforesaid allegations in the complaint resulted in invocation of Sections 498-A, 352, 504, 506 read with 34 of

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M.M.Salgaonkar

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IPC. Applicant No.1 and his father approached this Court, seeking protection from arrest, by fling Cri. Application No.7 of 2006 and this Court, while conferring the said relief, specifcally recorded a fnding that prima facie case is made out for grant of anticipatory bail and the observations read thus :-

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“In my view, prima facie case is made for grant of anticipatory bail. Admittedly, this is third complaint fled by the wife. The earlier two complaints which were fled by the wife, after investigation by the police it was found that the allegation in the complaint is not correct. This third complaint admittedly has been fled after the divorce proceedings have been fled. Further the complainant is no longer staying in the matrimonial house and is presently residing with her sisters. In this view of the matter, I am of the view that the applicant has made out a case for grant of anticipatory bail.”

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The Applicants moved an application for discharge, as the ingredients of the offence were not made out, but the Magistrate by order dated 03/05/2008 rejected the application, by recording that the complainant has made grievance about physical and mental ill-treatment accorded to her and she also made complaint about demand of money at the hands of the accused persons.

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The Magistrate, therefore, recorded that unless the complainant is given an opportunity to prove her case, it would not be proper to discharge the accused persons. Moreover, the accused would have an opportunity to crossexamine the complainant and at this stage, it cannot be said that the charge against the accused persons is groundless. Hence, the Magistrate refused to discharge the accused persons, by order dated 03/05/2008.

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M.M.Salgaonkar

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This order is challenged by fling the Revision Application before the Sessions Court at Kalyan, which met the same fate on 11/02/2009, as the Additional Sessions Judge, concurred with the Magistrate and recorded that whether the charge stand proved or not shall be determined only when the evidence is recorded and, since, the stage has not arrived to dissect the accusations levelled in the complaint, and the Revision was dismissed.

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Being aggrieved by the concurrent fnding rendered by the two Courts below, the present Application came to be fled under Section 482 of Cr.P.C. in the year 2010 and to be precise, on 06/04/2010, with the relief of setting aside the order passed by the J.M.F.C., Ulhasnagar and the order passed by the Sessions Court, upholding the same.

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There are certain subsequent developments, which have occurred in the interregnum and my attention is invited to the same. Applicant No.1/husband had fled a petition seeking divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, which came to be registered as Marriage Petition No.451 of 2005 and the cruelty on part of the wife was pleaded in the wake of the false allegations levelled by her against the entire family on multiple occasions.

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Upon the written statement fled by the wife, the 5^th Jt.Civil Judge, Senior Division, settled the issue, as to whether the petitioner has been able to prove that the respondent, after

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M.M.Salgaonkar

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1 APPLN-2034-10.odt

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solemnization of marriage, treated him with cruelty and whether on that ground, he is entitled for decree of divorce.

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On consideration of the evidence brought on record, a specifc fnding is recorded to the following effect :-

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“23. If the allegations of such level is made against the spouse and those are eventually found to be not proved and unsubstantiated, the person against whom such wild allegations are made would suffer huge mental as well as physical cruelty in its all forms. Such allegations especially unsubstantiated allegations are bound to affect the mental equilibrium of the said person.

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“24. In fact, these are the allegations in response to the marriage petition. However, this is very much necessary to see pattern of behaviour of the respondent towards her husband and his family members. This is exactly what the petitioner has contended and deposed in his petition as well as his testimony. All the allegations made by the petitioner are merely denied during his cross examination. There is nothing more to draw from his cross examination. The claims or allegations made by the petitioner were not disproved. Except general denial of each and every allegations, there is nothing in his cross-examination. Therefore, there is suffcient material on record to substantiate the claim of the petitioner that the conduct of the respondent was such that he was suffering right from beginning of his marriage, mental and physical cruelty at the hands of the respondent and, therefore, he is entitled to seek dissolution of marriage by way of this petition. The petitioner succeeds in proving that he suffered cruelty at the hands of the respondent and thus, I answer issue no.1 in the affrmative.”

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In the wake of the aforesaid, the petition fled by the husband was allowed on 03/02/2018 and the marriage solemnized between the couple on 06/02/1996 was dissolved by decree of divorce, on the ground of cruelty w.e.f. 03/02/2018. Certain directions were also issued as regards the maintenance to the daughter, till she attain the majority.

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The aforesaid judgment was assailed before the District Judge, Kalyan, by fling Regular Civil Appeal No.24 of 2018 by the wife and by judgment dated 21/04/2023, the decree passed by the Magistrate was confrmed and the Appeal came to be

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M.M.Salgaonkar

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dismissed. The Appellate Court confrmed the fnding of the frst Court as regards the physical and mental cruelty meted out to the husband, which made him entitled for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

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The Appellate Court specifcally reproduced para 21 of the judgment of the trial Court and supplemented the fndings in the following words :-

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“19] So far as allegations as regards to the bad company of appellant, the allegations of theft, attempted to kill her by pouring kerosene and by throwing her out from a running vehicle, the conduct of father-in-law of respondent so far as regards to her, are concerned,should have substantiated by the respondent by leading cogent and convincing evidence, but respondent not only failed to lead evidence in support of these allegations but she has given up these allegations at the time of fnal argument. The aforesaid allegations are very serious in nature. After making such complaints one can not expect that appellant would not have suffer any cruelty. In fact, making such allegations against the appellant in the given set of circumstances appears to be suffcient ground to constitute cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.”

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As a sequel to this, the position as stand today is, the marriage between Applicant No.1 and Respondent No.2 stands dissolved. The fnding rendered by the Magistrate and confrmed by the District Judge are relevant, to the extent that when the Court recorded a fnding of cruelty being meted out to the husband at the instance of the wife, a specifc reference is made to the evidence of the wife, which covered the two instances in specifc, where she had levelled accusations against the family and, particularly, in respect of the two incidents i.e. the incident highlighted in the complaint that on 18/06/2005, there was an attempt on part of the husband and father-in-law to push her alongwith her daughter,

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M.M.Salgaonkar

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out of the running vehicle and also an attempt to set her ablaze. She did not fortify the said incidents in the examination-in-chief, but in the written statement, she referred to the said accusations. Since, these accusations were not proved, though levelled at the stage of written statement, responding to the stand of cruelty by husband, the learned Civil Judge recorded that making such allegations against the spouse and and if eventually, they are not proved or substantiated, this defnitely result into huge physical and mental cruelty to other spouse, disturbing his mental equilibrium.

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The complaint which has resulted in invocation of Sections 498-A, 352, 504, 506 read with 34 of IPC, except for specifcation of the two incidents, are general and vague in nature. The complaint fled in the year 2005, has vaguely referred to her disturbed relationship with the family and specifcally with the husband and the allegations levelled as regards the demand of money are vague in nature. The omnibus allegations, without attributing specifc role, would have warranted suffcient evidence to prove them. The wife had an opportunity to corroborate the said accusations, when she stepped into the witness box, when the husband fled divorce petition, but she chose not to do so, which has resulted in decree of divorce, being granted in favour of the husband, on the very same ground of making baseless and groundless accusations and, a fnding was recorded that, this amount to cruelty on her part and for which, the husband was held entitled for decree of divorce.

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M.M.Salgaonkar

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Pertinent to note that the complaint is fled, after the husband fled proceedings for divorce in the competent court and this act of wife to institute a complaint at such a belated stage, speaks for itself and I do not intend to comment anything more upon it.

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By passage of time, the complaint being instituted in the year 2005 with the intervening development to which I have made reference, I do not think that the fndings rendered by the Magistrate and the Sessions Judge in refusing discharge, deserve confrmation. At the relevant stage, the Magistrate may be justifed in recording that accusations are levelled and will have to be proved, but now this possibility has become unfeasible, since the wife has failed to avail the opportunity in the divorce proceedings to support the said accusations and rather, she deposed that she do not remember/recollect the said incidents.

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If this is her stand, then after almost two decades, when she would stand for trial, it would be highly impossible for her to recollect the said incidents and for that purpose, I do not think that it is necessary to continue the proceedings against the present Applicants, on a hope of it’s fruitful culmination.

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For the reasons recorded above, the Application deserve to be allowed and is accordingly allowed.

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The order dated 11/02/2008 passed by the learned Sessions Judge, Kalyan in Cri. Rev. Application No.95 of 2008 as well as the order passed by the Judicial Magistrate First

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M.M.Salgaonkar

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Class, Ulhasnager on Exh.5 in R.C.C.No.587 of 2006 on 03/05/2008 are quashed and set aside.

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No order as to costs.

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( SMT. BHARATI DANGRE, J.)

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M.M.Salgaonkar

Sanjay Jagannate Phagnekar and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sanjay Jagannate Phagnekar and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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