Patna High Court
Md. Shamsher @ Shamsher AlamversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The marriage was held to be illegal, the prosecution was deemed mala‑fide, and the order rejecting the petition was quashed, resulting in the petitioner’s discharge.
Summary
The petitioner, Md. Shamsher Alam, sought to quash an order that had rejected his Section 239 Cr.P.C. petition for discharge in a dowry‑related case filed by his wife, Kahkashah Parveen. He alleged that the marriage was illegal because the wife was already lawfully married to Jabir Hussain and had not obtained a divorce, rendering the alleged second marriage void. The High Court examined the earlier judgment (Cr. Revision No. 1506 of 2019) and found that the wife admitted her first marriage and that there was no evidence of a divorce, making the second marriage illegal and the prosecution mala‑fide. Consequently, the Court held that the petitioner could not be held liable for dowry or related offences. The application to quash the lower court’s order was allowed, the order dated 03‑11‑2018 was set aside, and the petitioner was discharged of all charges.
Issues considered
- Whether the order of the Sub‑Divisional Judicial Magistrate rejecting the petition under Section 239 Cr.P.C. should be quashed.
- Whether the marriage between the petitioner and the informant is legally valid.
- Whether the prosecution is mala‑fide and warrants discharge of the petitioner.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 239
- Dowry Prohibition Act — s. 3, 4
- Indian Penal Code — s. 494, 498A, 506
Subjects
- dowry harassment
- illegal marriage
- Section 239 CrPC
- quash order
- mala fide prosecution
- maintenance
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.5171 of 2019
Arising Out of PS. Case No.-32 Year-2017 Thana- MAHILA P.S. District- Sheikhpura
======================================================
Md. Shamsher @ Shamsher Alam Late Habibullah Resident of Village-
Asthana, P.S.- Sheikhpura, District - Sheikhpura
... ... Petitioner/s
Versus
1. The State of Bihar Bihar
2. Kahkashah Parveen Md. Sadab R/O-Tarchha Pahartalli P.O.P.S-Sheikhpura
Dist-Sheikhpura
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Najmul Hodda, Advocate
Mr. Binay Kumar, Advocate
For the Opposite Party/s : Mr. Shyam Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
5 20-01-2026 Heard the learned counsel for the petitioner and the
learned counsel for the State. None had appeared on behalf of
the O.P. No. 2 despite valid service of notice.
2. This application has been filed for quashing the
order dated 03.11.2018 passed in G.R. NO. 1081/2017 arising
out of Sheikhpura Mahila P.S. Case No. 32 of 2017 passed by
the learned S.D.J.M., Sheikhpura rejecting the petition dated
09.08.2018 filed under Section 239 Cr.P.C.
3. The prosecution case, in brief, is that the informant,
Kahkasha Parween, was married to the petitioner, Md.
Shamsher Alam, in the year 2006 at village Asthana. After some
time, the petitioner began demanding dowry and started to
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assault the informant. Subsequently, the petitioner left the
informant two years ago and began living separately. The
informant has one child from the marriage.
4. The learned counsel for the petitioner submits that
the petitioner has been falsely implicated in this fabricated case
due to the personal motives of the informant. He further submits
that after investigation, the police submitted charge sheet under
Sections 498A, 494, 506 of the Indian Penal Code (IPC) and
Section 3/4 of the Dowry Prohibition Act and cognizance was
taken by the learned Court under the same sections. He further
submits that the petitioner has been falsely implicated in this
case due to the ongoing civil and criminal disputes, particularly
with one Md. Islam, the cousin brother of the informant, arising
out of T.S. No. 26 of 2009, Case No. 153C of 2009, and
Sheikhpura P.S. Case No. 01 of 2016.
5. The learned counsel for the petitioner has further
submitted that the first marriage of the informant was
solemnized with Jabir Hasan in the year 2000 in accordance
with Muslim law and rites. From this marriage, the informant
has two children. He further submits that it is alleged in the
F.I.R. that the informant remarried the petitioner in 2006,
concealing the fact of her first marriage. He further submits that
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when the first husband, Jabir Hasan, came to know about the
second marriage, he protested. Subsequently, within five days of
the alleged second marriage, the informant resumed living with
her first husband, Jabir Hasan. Thus, the second marriage was
effectively ended in 2006. It is further submitted that after some
years, the petitioner married one Seema Khatoon, a widow.
6. The learned counsel for the petitioner has further
submitted that after twelve years, Md. Islam allegedly conspired
and traveled to Patna to pressure Jabir Hasan (the first husband),
urging him to file this false case. As a result, a fabricated and
forged case was instituted against the petitioner. It is further
submitted that on 09.08.2018, the petitioner filed a petition
under Section 239 of the Cr.P.C. seeking his discharge from this
case. However, the learned Court below, without considering the
merits and available evidence, rejected the petition for discharge
vide order dated 03.11.2018 in G.R. No. 1081/2017.
7. The learned counsel for the petitioner, in support of
his submission, has relied upon a judgment of a Co-ordinate
Bench of this Court passed in Cr. Revision No. 1506 of 2019
(Md. Shamser @ Md Shamsher Mansoori V/s The State of
Bihar & Kahkasha Parveen Mansoori).
8. The learned APP for the State has opposed the
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application of the petitioner.
9. I have heard and considered the submissions of the
parties.
10. The relevant paragraphs of the aforesaid judgment
are as follows:
6. In paragraph 8 of her cross examination,
opposite party No 2 categorically
admitted the fact that she got married
with one Jabir Hussain and out of their
wedlock, two sons were also born and
they are aged 17 and 15 years
respectively. In paragraph 9 of the cross
examination, she further deposed that
her youngest daughter, i e, Al Shifa
Daniya is aged about 13 years and
according to opposite party No 2, she
filed the maintenance case six months
prior. In paragraph 10 of her cross
examination, she further admitted that in
the year 2006 when she got married with
the petitioner herein, at that time, she
was unaware of the whereabouts of her
first husband Jabir Hussain. There is no
evidence available on record which
shows that opposite party No 2 took
divorce from her first husband Jabir
Hussain and after obtaining divorce
from her first husband, she got married
with the petitioner herein. Thus, it is
clear that opposite party No 2 is the
legally wedded wife of Jabir Hussain
only and the marriage performed by her
with the petitioner herein, if so, is an
illegal marriage. Thus, on this ground
alone, opposite party No 2 is not entitled
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to get any maintenance from the
petitioner herein.
7. So far as the younger daughter of opposite
party No 2 Al Shifa Daniya is concerned,
perusal of the evidence further shows that
there is no evidence available on record
which establishes the fact that both
petitioner and opposite party No 2 have
resided jointly as husband and wife at any
point of time. However, the learned Family
Court, on the basis of the photostat copy of
the passbook of Bihar Gramin Bank and
photostat copy of ration card arrived on
the conclusion that Al Shifa Daniya is the
daughter of the petitioner herein as name
of the petitioner is mentioned as the father
of Al Shifa Daniya in the said documents.
But the documents, relied upon by the
learned Family Court, were not confronted
with the petitioner herein during his
examination or cross examination nor the
said documents were exhibited by the
concerned Family Court. Otherwise also,
the said documents were only the photostat
copies, therefore, were also not admissible
in the evidence. Thus, finding of the
learned Family Court that Al Shifa Daniya
is the daughter of the petitioner is also
perverse.
11. After considering the aforesaid judgment, it is
clear that the O.P. No. 2 is the legally wedded wife of one Jabir
Hussain only and the marriage performed by her with the
petitioner herein is an illegal marriage.
12. In view of the aforesaid discussions, it appears
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that the petitioner is being harassed by the O.P. No. 2 by filing a
mala-fide prosecution to wreck vengeance.
13. Considering the facts and circumstances of the
case, the application stands allowed. Accordingly, the order
dated 03.11.2018 passed by the learned S.D.J.M., Sheikhpura, in
G.R. No. 1081/2017 is hereby quashed. The petitioner is
discharged from all the charges.
14. Pending application(s), if any, shall also stand
disposed of.
(Sandeep Kumar, J)
Shishir/-
U T
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