Writ Petition under Article 226 of the Constitution of India

IN THE HIGH COURT OF JUDICATURE AT …………….
Criminal Misc.  Writ Petition No ……………..of 20……
(Under Article 226 of the Constitution of India)

District …………………………..

All residents of …………………………                              ….Petitioners

Versus

1. The Station Officer, …………………. City, …………...

2. The Investigating Officer of Crime No. 222 of 1990 of ……………… City ………….

3. The State of U. P.

4. ……………………..D/o …………………………… R/o …………………….
..... Respondents 

To,

The Humble Chief Justice and his other companion Judges of the aforesaid Court.

The humble petition of the abovenamed petitioners most respectfully showeth :

1. That an F.I.R. has been lodged against the petitioners as well as Sri ……………… and some ladies under Section 498A./494, 1. P. C. at ………………. City, ………….., vide Crime No. ………….of 20………..

2. That the petitioners are law abiding citizens and petitioners …………………….. and …………………….are Advocate at ……….. while petitioner …………………….. is Manager in ……………… Bank District ………………. and petitioner ………………………….. is doing business at ……………….  Petitioner …………………. is on old man of over 70 years of age.  The co-accused …………………. is also practicing as advocate at …………..

3. That the F.I.R. of the case has been lodged by respondent ………………...  In 20….. respondent ………………… was studying in ……………….. Degree College, ………………and it is alleged that she was kidnapped and was later on covered 10 to 15 days after.  Two girls and two boys who were residing in the same house as ………………. were prosecuted and ……………….. come back to reside with her parents.

4. That respondent ………………….. entered into a love marriage with one ………………….r/o.  ……………………….., …………….. and the said marriage was solemnized at ……………. in the year 20………..  By this time …………………..had become an Advocate and had started practice in …….….(Date) at …………..

5. That ……………….. lodged report on ………20…………. against her own -father and mother is her own handwriting of being beaten and subjected to criminal intimidation.

6. That on ……….20……… respondent ………………….. Advocate gave an application against her own presents to the District Magistrate.  In the application she imputed immorality and cruelty to them besides several other allegations.  A correct copy of the said application is being filed as Annexure-I herewith.

7. That respondent …………………… filed a suit for divorce against …………………. stating that her marriage was love marriage and she made several allegations.  Ultimately a decree of divorce was granted in August, 1988.

8. That respondent ……………….. trapped petitioner No. 1 ………………………….. son ……………………… who is also is address in love affair even though he was already married with Smt.  …………….. on ………20………. at ………….. itself.  The petitioners objected to the same but in vain.

9. That later on differences arose between ……………… and ……………………..and she got a false and concocted application to S. S. P., …………..on ……. 20………. and the said application was sent by the S. S. P. to …………………. City where a case under Section 498-A/494, I. P.C. was registered against …………………. as well as the petitioners.  A correct copy of the said F. I. R. is being filed as Annexure-II herewith.

10. That it may not be out of place to mention here that …………………….. fully knew that ………………….. was a married to Smt.  ………………. who was a School teacher in the same town (…………).

11. That so far as the petitioners are concerned they were opposed to any marriage of ………………… with …………………as the same would ruin the family.

12. That the F.I.R. does not disclose any offence under Section 498-A and 494, I. P.C. against the petitioners.

13.  That so far as the Section 498-A, I. P. C. is concerned, the petitioners are advised to state that in view of the fact that the alleged so called second marriage of accused …………………..with the complainant is concerned, on the own case set out in the F.I.R., the so-called second marriage would be	null and void and it does not create relationship of husband and wife between ……………………….. and ……………………...

14. That the petitioners are further advised to state that after coming into force Hindu Marriage Act, 1955, the marriage with a person having a living spouse is null and void and not merely voidable.  So-called marriage of ……………………. with ………………….. was also null and void because the own case of the F.I.R. is that ………………………. has a living wife.  The said marriage being a complete nullity does not create relationship of husband and wife in the eyes of law.  The marriages covered by Section 11 of the Hindu Marriage Act are void ipso jure, i.e. void from very inception, and have to be ignored.  As such the provisions of Section 498-A, I. P.C. are not applicable.

15. That the petitioners are further advised to state that Section 498-A, I.P.C. was added by Criminal Law Amendment Act, 1983 (Act No. 46 of 1983).  However, Act No. 46 of 1983 has been repealed by Repealing Amendment Act of 1988.  As such Section 498-A, I. P.C. also stands released.

16. That the petitioners are further advised to state that the offence under Section 494, I. P.C. cannot be investigated and as such it is non-cognizable offence and further that a second wife is not competent to prosecute her so called husband under Section 494, I. P.C.

17. That, therefore, the petitioners are filing the present writ petition, amongst others, on the followings:

GROUNDS

1. Because no offence either under Section 498-A, I. P.C. or Section. 494, I.P.C. are disclosed against the petitioners from the F.I.R.

2. Because the F.I.R. is mala fide and has been lodged against the petitioners for ulterior purposes.

3. Because the offence under Section 494, I. P.C. is non-cognizable offence and cannot be investigated without order of the court.

4. Because a second wife cannot prosecute her so-called husband for bigamy under Section 494, I. P.C.

5. Because Section 494-A, I. P.C. does not apply to a marriage which is bigamous and as such the relationship of husband and wife is not created in law.

6. Because at any rate Section 498-A, I.P.C. stands repealed by Repealing and Amending Act, 1988.

7. Because the F.I.R. and investigation are illegal and liable to be quashed.

PRAYER

It is, therefore, respectfully prayed that the Hon'ble Court be pleased to issue:

(a) a writ of certiorari and writ, direction or order in the nature of certiorari quashing the F.I.R. and investigation is Crime No. 222 of 1980, under Section 498-A/494 I.P.C., …………. City, …………...

(b) to any other writ direction or order which the Hon'ble Court deems fit and proper in the circumstances of the case.

(c) an order awarding costs to the petitioners.

Date………….	

Advocate for the Petitioner