Punjab & Haryana HC: Wife misuse 498A to grab In-Law’s property- Quashed

Punjab-Haryana High Court

Smt.Sunita Goyal & Ors.

vs

State Of Punjab & Anr. on 21 February, 2012

 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CRM No.M-18643 of 2008

Date of Decision:- 21.2.2012

Smt.Sunita Goyal & Ors. …Petitioners Vs.

State of Punjab & Anr. …Respondents CORAM: HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR

Present:- Mr.Akshay Bhan, Advocate for the petitioners.

Mr.Palwinder Singh, Senior DAG Punjab for respondent No.1.

Mr.Ashok Singla, Advocate for

Mr.Ravish Bansal, Advocate for respondent No.2.

Mehinder Singh Sullar, J. (Oral)

Petitioners Smt.Sunita Goyal, Vijay Goyal, unfortunate parents-in- law and Abhishek Goyal, brother-in-law (Devar) of complainant Soni Goyal, wife of Mahavir Goyal respondent No.2 (for brevity “the complainant”), have directed the instant petition for quashing the impugned FIR, bearing No.246 dated 15.9.2007 (Annexure P5), registered against them, on accusation of having committed the offences punishable under Sections 406, 498-A, 323, 506 and 120- B IPC by the police of Police Station Division No.5, Ludhiana.

2. Concisely, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the present petition and emanating from the record, are that the marriage of the complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery, weighing 80 Tolas, cash and dowry beyond his capacity at the time of  her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. It was claimed that although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She and her husband also apprehend danger to their lives at the hands of the petitioners. On 30.8.2007 at 8 A.M., they were stated to have given severe and merciless beatings to the complainant and her husband Mahavir Goyal. The matter was reported to the police, where DDR No.12 dated 31.8.2007 was entered, but no action was taken by the police against them.

3. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the petitioners have harassed, treated her with cruelty in connection with and on account of demand of dowry and gave severe beatings to her as well as to her husband on 30.8.2007. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioners-accused, by virtue of FIR (Annexure P5) in the manner indicated hereinabove.

4. The petitioners did not feel satisfied with the initiation of criminal prosecution against them and preferred the instant petition, for quashing the FIR (Annexure P5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC inter-alia on the grounds (i) that the impugned FIR (Annexure P5) has been registered ostensibly on the complaint of Soni Goyal in furtherance to the oblique motive of aforesaid Mahavir Goyal, Soni Goyal and Chuhar Lal Garg by misusing the provisions of Sections 406 and 498-A of I.P.C. The impugned FIR was got registered as a counter-blast and in retaliation to the aforesaid complaint dated 30.08.2007 (Annexure P1) lodged by petitioner no.2 with P.S. Division No.5, Ludhiana under Section 384 read with section 120-B of I.P.C. against Mahavir Goyal, Soni Goyal and Chuhar Lal Goyal and also as a counter-blast to the disassociation and de-linking of Mahavir Goyal by petitioner no.2 from their property and the filing of the civil suit (Annexure P4) by petitioner  no.1 against Mahavir Goyal and Soni Goyal; (ii) the criminal case was lodged by the complainant with the sole intention to pressurize and blackmail them to transfer their property in the name of her husband Mahavir Goyal; (iii) the allegations in the FIR are absolutely concocted, false, frivolous and evince the element of malafide, after thought and maliciously & vexatiously registered against the petitioners in order to wreak vengeance and the incident of 30.8.2007 and story of payment of Rs.2,50,000/- were concocted by the complainant party; (iv) the complainant has concealed the fact that the Zen car has already been transferred in the name of Soni Goyal (complainant) on 22.4.2008, as per the transfer report/documents (Annexure P9 colly); (v) the dowry articles given at the time of marriage have already been given to the complainant, vide letter (Annexure P10). She did not make any grievance against the petitioners during five years after her marriage. As soon as, petitioner No.2 refused to part and disowned the husband of the complainant from his property, then she filed the false criminal case against them in order to take the revenge and no offence whatsoever is made out against the petitioners. On the strength of aforesaid grounds, the petitioners sought to quash the criminal prosecution against them, as depicted hereinbefore.

5. The complainant-respondent No.2 did not file any reply to deny the specific personal allegations contained in the petition. However, the DSP Crime filed the reply on behalf of State of Punjab (respondent No.1), taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the prosecution that as per the inquiry report (Annexure R1/T) and during the course of investigation, both the parties were called and the complainant’s father-in-law agreed to give the share of Rs.25 lacs from his property to Mahavir Goyal, husband of the complainant, out of which, Rs.10 lacs were already taken by him (husband) and the remaining amount was to be paid subsequently. Consequently, the complainant and her husband agreed to shift to residential HIG Flat No.11-FF, opposite Khalsa College, Ludhiana, as per report (Annexure P13). Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has reiterated the allegations contained in the impugned FIR (Annexure P5). However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.

6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.

7. Ex facie, the celebrated argument of learned counsel that since there are direct allegations of cruelty, maltreatment and harassment to the complainant by the petitioners, so, no ground for quashing the criminal prosecution against them is made out, is neither tenable nor the observations of Hon’ble Supreme Court in case Central Bureau of Investigation v. K.M.Sharan2008(4) S.C.C. 471, are at all applicable to the facts of the present case, wherein a criminal case was registered against the then Vice Chairman of the Delhi Development Authority and other senior officials for entering into conspiracy with Dharmbir Khattar and others to give undue favour to M/s DLF Universal Limited, New Delhi in the matter of allowing 300 Floor Area Ratio (FRA) in respect of one of the projects of DLF Universal by charging rates much below the prevailing rates and obtained or agreed to obtain illegal gratification from M/s DLF as quid pro quo. The total bribe amount was 1.10 crores. During the course of investigation and subsequent search conducted at the residence of son of one of the accused A.M.Sharan, who was at that time, Commissioner (Land Disposal, DDA), certain papers/documents relating to assets acquired/expenses incurred by him and his family members besides the cash amount of Rs.36 lacs were recovered and seized by the CBI. The CBI collected sufficient oral as well as documentary evidence constituting the grave offences. On the peculiar facts and in the special circumstances of that case, it was observed that “where there are direct allegations and evidence to support the criminal offence, the High Court was not justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under Section 482 Cr.PC.”

8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the complainant in the present controversy, particularly when the Hon’ble Apex Court in cases Dhariwal Tobaco Products Limited and others v. State of Maharashtra and another, 2009(2) SCC 370; M/s Pepsi Foods Limited v. Special Judicial Magistrate 1998(5) SCC 749; Ashok Chaturvedi v. Shitul H.Chanchani 1998(7) SCC 698 andCentral Bureau of Investigation v. Ravi Shankar Srivastava (2006)7 SCC 188 has ruled that “whenever the High Court comes to the conclusion that allowing the criminal prosecution to continue would be an abuse of the process of court and that, the ends of justice require that the proceedings should be quashed, it would not hesitate to do so, in exercise of inherent powers irrespective of other factors.”

9. Such thus being the legal position and material on record, now the short and significant question, though important that, arises for determination in this petition is, as to whether the criminal prosecution initiated against the petitioners deserves to be quashed or not under the present set of circumstances?

10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the affirmative and the criminal prosecution cannot be permitted to continue in this respect.

11. As is evident from the record, that the marriage of complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery,weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing,  maltreating her and demanded more dowry articles. Although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She is working as a teacher in National College, Dakhan. Petitioner Nos.1 and 2 are her parents-in-law, whereas petitioner No.3 is her brother-in-law (Devar). She has not intentionally arrayed her husband Mahavir Goyal in a dowry related case in the array of the accused. According to the petitioners that on 30.8.2007, Mahavir Goyal and his wife (complainant) created nuisance in the house, broke the crockery & centre table and threatened the petitioners that in case the half share of the property and the money were not given to them, they would falsely implicate them in some false criminal case. Petitioner No.2 objected to it, then his son Mahavir Goyal, husband of the complainant, slapped him (his father petitioner No.2). The matter was reported to the police by petitioner No.2, through the medium of complaint of same date (Annexure P1). So much so, he disowned his son Mahavir Goyal from his whole movable and immovable properties and published the notice dated 1.9.2007 (Annexure P2) in Hindustan Times, Chandigarh in this connection. At the same time, in order to avoid the possibility of false implication, Sunita Goyal (petitioner No.1) wrote a UPC letter dated 3.9.2007 (Annexure P3 colly), asking her daughter-in-law (complainant) to take all the dowry articles and her other belongings.

12. Not only that, petitioner No.1 filed a civil suit for a decree of permanent injunction restraining the complainant and her husband Mahavir Goyal from interfering in the peaceful possession of their residential house, by way of plaint (Annexure P4 colly). Admittedly, in civil suit, bearing No.206 dated 13.9.2007 filed by petitioner No.1, counsel for the complainant and her husband (defendants therein) suffered a separate statement that they shall not interfere in the possession of the plaintiff in the suit property and they have no objection in case her (petitioner No.1) suit is decreed to that extent. In this manner, on the basis of statements of the parties, the suit of petitioner No.1 was decreed and the  complainant and her husband were restrained from interfering in her possession over the suit property, vide order dated 28.7.2010 (copy taken on record as Annexure P14).

13. It is not a matter of dispute that neither the complainant nor her husband made any complaint, raising any accusing finger towards the petitioners at any point of time before lodging the FIR (Annexure P5) nor made any such averment/statement during the course of pendency of the civil suit between them. Therefore, the arguments of learned counsel that the petitioners have been falsely implicated to pressurize and blackmail them to transfer the property and the complainant has lodged the false criminal case against them (intentionally excluding her husband in dowry related matter) vexatiously and maliciously in order to wreak vengeance, have considerable force.

14. The matter did not rest there. Even as per the FIR (Annexure P5), the father of the complainant gave a Maruti Zen Car and gold jewellery, weighing 80 Tolas besides cash. It was also alleged that the petitioners demanded more dowry articles and her father gave Rs.2,50,000/- in cash to them. That means, very very vague allegations of demand of dowry and payment of indicated amount are assigned to the petitioners. Above-all, the mere fact that the complainant did not name her husband as accused that the dowry articles were entrusted to him at the time of marriage or he has also demanded the more dowry articles, is indicative of the fact that she colluded with her husband and lodged a false complaint, on the basis of which, the FIR (Annexure P5) was registered against the petitioners without any material/evidence muchless cogent in this behalf.

15. Moreover, the indicated Zen car has already been transferred in the name of complainant, by means of transfer of ownership report/documents (Annexure P9 colly). The petitioners have specifically mentioned in their petition that whatever dowry articles were given at the time of marriage of complainant, have already been given to her, vide Annexure P10 (colly). That is the only reason  that the complainant intentionally did not file any reply to controvert all these vital personal aspects of the matter contained in the main petition, for the reasons best known to her. In this manner, no overt act or specific role, except one minor incident of 30.8.2007, which appear to have been concocted after the complaint (Annexure P1) of petitioner No.2 and notice (Annexure P2), are attributed to the petitioners. It is very highly impossible to believe that the petitioners would treat the complainant with cruelty or demand the dowry articles from her in the absence of her husband. She appears to have intentionally colluded with her husband in order to grab the property in this regard as discussed hereinabove.

16. It is now well settled proposition of law that, in order to attract the penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioners to indicate that the dowry articles were actually entrusted to them and they have misappropriated the same or they further demanded any dowry articles and evidence in support thereof. All other relatives of the husband cannot, in all cases, be held to be involved in the demand of dowry, especially when in this case, the husband of the complainant is not an accused. In cases, where such accusation is made, the overt acts attributed to persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences related to demand of dowry. As all the essential ingredients to constitute the offences and complicity of petitioners are totally lacking, therefore, to me, no criminal prosecution can legally be permitted to continue against them.

17. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if  not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction.

18. An identical question came to be decided by this Court in cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of section 498-A IPC.”

19. Sequelly, if the crux of the allegations levelled against the petitioners as discussed hereinabove, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R.(Criminal) 92. Such malafide prosecution if allowed to continue, it will inculcate and perpetuate injustice to the petitioners and is nothing else, but sheer and deep misuse/abuse of process of criminal law in this relevant connection, which is not legally permissible. Therefore, the contrary submissions of learned counsel for complainant “stricto sensu” deserve to be and are hereby repelled  under the present set of circumstances, as the indicated Bench mark and the ratio of law laid down in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Thus, seen from any angle, to my mind, no offences whatsoever are made out against the petitioners, in the obtaining circumstances of the case.

20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.

21. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR (Annexure P5) and all other subsequent proceedings arising therefrom are hereby quashed and the petitioners are discharged from the indicated criminal case registered against them. (Mehinder Singh Sullar)

Judge

21.2.2012

AS

HC: 498A filed with oblique motive to harass husband and his parrent and hence quashed

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA

DATED THIS THE 06T11 1)AY OF JUNE 201 1
BEFORE
THE HONBLE MR.JUSTICE K.SREEDHAR AO
CRIMINAL PETITION NO.15356/2011
BETWEEN:
1. SANTOSH Sb KALLLPPA FALASKAR AGE:37 YEARS.
2. KALLAPPA Sb. AGE:67 YEARS.
3. KRISHNABAI W/O KALLAPPA AGE:(30 YEARS.
4. PAJ U S/O KALLAPPA AGE:35 YEARS.
ALL RIG NAGSHE1T KOPPA
KESHAVPUPA. HUBLI
DIST: DHARWAD.
PETITIONERS
BY SRI.SACHIN M MAHAJAN, ADV.)
AND
1.  ThE STATE OF KARNATAKA ANR
BY SADAR BAZAR POLICE STATION
RAICHUR THROUGH ITS PSI

R/BY ThE SPP, HONBLE HIGIl COURT OF KARNATAKA CIRCUIT BENCH, GULBARGA
2. SMT.SR1DEVI W/O SANTOSI-I KALASKAR
AGE: 28 YEARS.
RIO : H.NO.3-7-23. BEROON KI-JILLA
RAICHUR.
RESPONDENTS
(BY SRLSUBHASH.MALLAPUR, HCGP)
ThIS CRLP IS Filed U/S. 482 OF CR.P.C BY THE
ADVOCATE FOR ThE PETITIONERS PRAYiNG THAT ThIS
HONBLE COURT MAY BE PLEASED 10, CALL FOR ThE
RECORDS AND QUASH THE CHP.RGE SHEET DATED
22.02.2010 FILED BY THE SADAR BAZAR POLICE STATION
AT RAICHUR AGAINST THE PETITIONERS HEREIN FOR
ThE ALLEGED OCFENCES P/L1/S. 498(A). 504. 506(2) R/W
SEC. 34 OF IPC AND SECTIONS 3 & 4 OF THE DOWRY
PROHIBiTION ACT. 1961 AND CONSEQUENTLY QUASH
THE ENTIRE PROCEEDINGS IN C.C. NO. 1444/2010
PENDING ON THE FILE OF THE J.M.F.C.-II AT RAICHUR.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE ThE FOLLOWING:
ORDER
One Srnt.Sridevi CW- 1, is the wife of petitioner No.1. Petitioner Nos.2 and 3 are the parents of ptitioner No.1. Petitioner No.4 is the brother of Petitioner No.1. The Petitioner No.1 and CW- 1 were married on 17.04.2000. The family disputes arose. It is

the case of CW- 1 that the petitioner started abusing CW- I to bring additional dowry from her parents and she was subjected to cruelty and harassment by the petitioner No.1, CW— I unable to bring additioiai dowry, left her matrimonial home and lived with her parents.
2. The CW- I says that, she was no aware of the
petition filed in Conjugal Rights and petition for divorce. The CW- 1 had filed a case for seeking maintenance before the Family Court, Raichur on 11.08.2009 and
18.08.2009. When she attended to Family Court at Raichur, the 1st petitioner along with his friends abused CW- 1 and threatened with dire consequences. if CW- 1 does not wlthdravrn the maintenance case. CW- 1 aggrieved by criminal conduct filed a private complaint under Section 200, J.M.F.C. Raichur who referred the complaint to police. The case is registered. A charge sheet Is filed for the offence punishable under Sections 498A, 504. 506. 34 IPC and Section 3 and 4 of D.P Act.

2. The Counsel for the petitioners strenuously submitted that, the complaint flied by CW- 1 is only counter blast. The petitioner No. I in fact has tiled petition seeking constitute conjugal rights The said petition was allowed. The CW- 1 refused to cohabit with petitioner No. 1.
3. The petitioner No. 1 later on filed a petition seeking divorce on the ground of desertion. In the said petition. CW- I s exparte, the divorce petition is allowed. The petitioner thus contends that, the case is registered agaiist them Ofl tile instant of CW— I is false and a concocted version
4. The counsel appearing for the petitioner submits that, there are two instance of cruelty alleged. The first instance of cruelty, that all the petitioners some time after the marriage started harassing ew- 1 to get more dowry. The said complaint does riot refer to nature, overt acts and date and time of the overt acts.

The complaint refers to a latest of criminal acts on the part of petitioner No. 1 and his friends. It is said tnat on 11.08.2009 and 18.08.2009. when CW-1 came tO the Family Court., petitioner No.1 and his fritd threaten and tire consequence and directed her to withdraw her petition filed by her.

5. In respect of 2T’ld instance, the allegation is only against petitioner No. 1. There is no allegation against the pctitioner Nos.2 to 4. In the further statement. CW- I states thai she does not know who the friend were. Petitioier No.1 threatened her with dire consequence at tne Family Court Raichur. In respect of 1 instance, the allegations are vague. The CW– 1 has not stated why she has not filed complaint immediately alleging cruelty and dowry harassment at the earliest. The conduct of CW- 1 in filing the complaint after grant of divorce suggests dubious intention on the part of CW- 1. The averment in the complaint discloses that CW- 1 was aware of petition filed for conjugal rights and petition for divorce. CW- I could have contested the said case and prove her theory. The facts reveal that, the petitioner No.1 is paying maintenance to CW- I and the said case is still pending. In the context of the facts stat.ed above, it is inferable that the ‘ornpIaint is gi cii with oblique motive oniy to harass the’ accuscd.In that view, the proceedings in C.C No. 144/2010 on the file of J.M.F.C lind Court at Raichur, are quashed.

Delhi HC quashes FIR after man agrees to pay Rs 1,000 monthly to son

 * IN THE HIGH COURT OF DELHI AT NEW DELHI*

+ CRL.M.C.457/2012

Judgment delivered on:07th February, 2012

FIRASAT & ORS ….. Petitioners                                                                                  Through : Mr.Javed Khan, Adv.                                                                                                   versus                                                                                                                                                STATE & ANR ….. Respondents                                                                                                   Through : Ms. Rajdipa Behura, APP for the State Mr. D.K. Singh, Adv.for R-2

CORAM: HON’BLE MR. JUSTICE SURESH KAIT SURESH KAIT,

J. (Oral)

Crl. M.A. 1585/2012 Exemption allowed subject to all just exceptions. CRL.M.C.457/2012

1. Notice.

2. Ld. APP accepts notice on behalf of the State.

3. Ld. Counsel for respondent No.2, Mr. D.K. Singh accepts notice on behalf of respondent No.2.

4. With the consent of the parties, the matter is taken up for final hearing.

5. Vide the instant petition, the petitioners have sought to quash FIR No. 103/2009 registered at PS Welcome, Delhi under Section 406/498-A/34 of the Indian Penal Code, 1860 read with Sections 3&4 of the Dowry Prohibition Act and the proceedings pending before the trial court.

6. Ld. Counsel for the petitioners has submitted that during the pendency of the case before the trial court, the respondent No.2 has amicably settled all the issues qua the aforesaid FIR with the petitioners vide MOU dated 25.01.2012.

7. Ld. Counsel for the petitioner, on instructions, submitts that it was agreed in the aforesaid MOU that the petitioner No.1 (husband) shall pay Rs.90,000/- towards full and final settlement. The petitioner No.1 has paid the said amount to the respondent No.2. However, the petitioner No.1 has come forward to pay Rs.1,000/- p.m. for bringing up of his son Mohd. Mouz, aged 4 years. It is further submitted that the respondent no.2 is no more interested to pursue the aforesaid FIR. Therefore, the FIR mentioned above and the proceedings before the trial court be quashed.

8. Respondent No.2 is personally present in the Court with her counsel Mr. D.K. Singh.

9. On instructions, ld. Counsel for the respondent No.2 has submitted that since the matter has been settled amicably vide the aforesaid MOU dated 25.01.2012 and the petitioner No.1 has further agreed to pay Rs.1,000/- p.m. in favour of his son, therefore, she is no more interested in pursing the instant case and has no objection if the above mentioned FIR and proceedings emanating therefrom are quashed.

10. Ld. APP on the other hand submits that the State has already filed the charge sheet and the charges are yet to be framed. She has prayed that if this court is inclined to quash the FIR, heavy costs should be imposed upon the petitioners, as the government machinery has been used and precious time of the Court has been consumed.

11. I find force in the submissions of ld. APP for the State. Therefore, I direct the petitioners No.1, 4 and 5 to pay Rs.5,000/- each to be paid within six weeks from today in favor of Mohd. Mouz, son of the petitioner No.1 and the respondent No.2.

12. I, therefore, direct respondent No.2 to keep the aforesaid amount of Rs.15,000/- in the form of FDR initially for five years, to be renewed periodically, and the maturity amount shall be utilized for the welfare of the child Md. Mouz.

13. Keeping in view the above discussion and the statement of respondent No.2, in the interest of justice, I quash FIR No. 103/2009 registered at PS Welcome, Delhi and all the proceedings emanating therefrom.

14. Criminal M.C. 457/2012 is allowed.

15. I further make it clear that if the petitioner No.1 fails to pay the aforesaid amount of Rs.1,000/- p.m. even for once, he shall be liable for contempt proceedings.

16. Dasti. SURESH KAIT,

J FEBRUARY 07, 2012

RS

After divorce, woman files domestic violence case against ex-husband. Gets Quash

Inderjit Singh Grewal vs State Of Punjab & Anr on 23 August, 2011

Author: . B Chauhan

Bench: P. Sathasivam, B.S. Chauhan

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1635 of 2011

(Arising out of SLP(Crl.) No. 7787 of 2010)

Inderjit Singh Grewal …Appellant Versus

State of Punjab & Anr. …Respondents J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaint before the competent court to initiate criminal proceedings against her husband alleging that they had obtained decree of divorce by playing fraud upon the court without realising that in such a fact-situation she herself would be an accomplice in the crime and equally responsible for the offence. More so, the appeal raises a substantial question of law as to whether the judgment and decree of a competent Civil Court can be declared null and void in collateral proceedings, that too, criminal proceedings.

3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O&M) passed by the High Court of Punjab & Haryana at Chandigarh, by which the High Court has dismissed the application filed by the appellant under Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.’) for quashing the complaint No. 87/02/09 dated 12.6.2009 filed by respondent no. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called the `Act 2005′).

4. Facts and circumstances giving rise to present case are as under:

A. That the appellant and respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on5.10.1999. The parties to the marriage could not pull on well together because of temperamental differences and decided to get divorce and, therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under  Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955′) for dissolution of marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the issue.

B. The parties again appeared before the court on 20.3.2008 on second motion and their statements were recorded and both of them affirmed that it was not possible for them to live together and, therefore, the learned District Judge, Ludhiana vide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.

C. Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorce obtained by them was a sham transaction. Even after getting divorce, both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry. The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to the effect that the parties had been living 3
separately after divorce and, no case was made out against the present appellant. However, he suggested to seek legal opinion in the matter. D. Accordingly, legal opinion dated 2.6.2009 was sought, wherein it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent no. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant.

E. Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrieved of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.

F. In the meanwhile, respondent no. 2 filed Civil Suit on 17.7.2009 in the court of Civil Judge (Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008, i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is still pending.

G. Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.

H. Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of the Indian Penal Code, 1860 (hereinafter called `IPC’) against the appellant and his mother and sister.

I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application filed by the appellant. Hence, this appeal.

5. Shri Ranjit Kumar, learned senior counsel appearing for the appellant has submitted that the High Court erred in rejecting the application of the appellant under Section 482 Cr.P.C., as none of the reliefs claimed by the respondent no.2 could be entertained by the criminal court while dealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could not take cognizance thereof. The complaint has been filed because of malice in order to extract money from the appellant. More so, the plea of fraud alleged 5
by the respondent no.2 in the complaint for obtaining the decree of divorce before the Civil Court as per her own version, succinctly reveals that she herself had been a party to this fraud. The High Court failed to appreciate as to what extent her version could be accepted as she herself being the accomplice in the said offence of fraud committed upon the court. Even if the allegations made therein are true, she is equally liable for punishment under Section 107 IPC. More so, the reliefs claimed by the respondent no. 2 in the civil suit for declaring the decree of divorce as null and void and in another suit for getting the custody of the child referred to hereinabove, would meet her requirements. Thus, the appeal deserves to be allowed.

6. On the contrary, Shri Manoj Swarup, learned counsel appearing for the respondent no.2 has vehemently opposed the appeal contending that decree of divorce is a nullity as it has been obtained by fraud. The relationship of husband and wife between the appellant and respondent no.2 still subsists and thus, complaint is maintainable. The court has to take the complaint on its face value and the allegations made in the complaint require adjudication on facts. The issue of limitation etc. can be examined by the Magistrate Court itself. The appeal lacks merit and is liable to be dismissed. 6

7. We have considered the rival submissions made by learned counsel for the parties and perused the record.
8. Before we proceed to determine the case on merit, it is desirable to highlight the admitted facts of the case:
I. Appellant and respondent no.2 are highly qualified persons. Both of them are employed and economically independent. Appellant is an Assistant Professor and respondent no. 2 is a Lecturer. The appellant is Ph.D and respondent no.2 has registered herself for Ph.D. They are competent to understand the complications of law and other facts prevailing in the case.
II. Both of them got married in year 1998 and had been blessed with a son in year 1999. There was no complaint by respondent no.2 against the appellant of any cruelty, demand of dowry etc. before getting the decree of divorce dated 20.3.2008 by mutual consent.                                                                                                III. The decree of divorce has been obtained under Section 13-B of the Act 1955. Respondent no.2 was examined by the court on first motion on 19.9.2007 wherein she stated, inter-alia, as under: "We are living separately from each other since 23.9.2005. Now there is no chance of our living together as husband and wife."                                                                                                            IV. Respondent no.2 was examined in the second motion by the learned District Judge, Ludhiana on 20.3.2008, wherein she stated as under:

"My statement was recorded on 19.9.2007 alongwith the statement of my husband Inderjit Singh Grewal. Six months time was given to us to ponder over the matter but we could not reconcile. One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been handed over by me to my husband Inderjit Singh Grewal and he shall look after the welfare of the said child. We have settled all our disputes regarding dowry articles and past and future permanent alimony. Now there is nothing left out against each other. A draft of Rs.3,00,000/- ….has been received by me towards permanent alimony and maintenance and in lieu of dowry articles left by me in the matrimonial home. We are living separately since 23.9.2005. After that there is no co-habitation between us. There is no scope of our living together as husband and wife. I will remain bound by the terms and conditions as enshrined in the petition. I have left with no claim against petitioner No.1. Our marriage may be dissolved by passing a decree of divorce by mutual consent." V. The learned District Judge, Ludhiana granted the decree of divorce dated 20.3.2008 observing as under:
"They have settled all their disputes regarding dowry articles, past and future alimony….They are living separately from each other since 23.9.2005…The petitioners have not been able to reconcile….The petitioners have settled all their disputes regarding dowry, stridhan and past and 8
future permanent alimony….The custody of the son of the petitioners is handed over to Inderjit Singh Grewal by Amandeep Kaur. The petition is
allowed. The marriage between the petitioners is henceforth declared dissolved…."
VI. The complaint dated 4.5.2009 filed by respondent no. 2 before the Senior Superintendent of Police, Ludhiana was investigated by the Superintendent of Police, City-I, Ludhiana. He recorded statements of several neighbours and maid servant working in appellant’s house and submitted the report to the effect that as the husband and wife could not live together, they obtained the decree of divorce by mutual consent. However, the complainant Amandeep Kaur had alleged that she was induced by her husband to get divorce for settling in the United States and it was his intention to kick her out from the house. However, the husband stated that she had been paid Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash for which the husband Inderjit Singh Grewal had entered into an agreement to sell his ancestral property. The complainant had not been living with the appellant after the decree of divorce and they were not having physical relationship with
each other. It was further suggested in the report that legal opinion may also be taken.
VII. Legal opinion dated 2.6.2009 had been to the effect that the parties had taken divorce by mutual consent due to their differences. The allegation to the extent that they had been living together even after divorce were false and baseless and had been labelled only to harass the appellant.

9. The instant case is required to be considered in the aforesaid factual backdrop.
So far as the complaint dated 12.6.2009 is concerned, there had been allegation of mis-behaviour against the appellant during the period of year 2005. Respondent no. 2 alleged that during that period she had not been treated well by the appellant, thus, she had to take shelter in the house of her parents; all her belongings including the dowry articles were kept by the appellant and his parents. She has further given details how both of them have obtained decree of divorce by mutual consent as they wanted to settle in United States and therefore, they had decided to get divorce on paper so that the appellant may go to U.S.A. and get American citizenship by negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry the complainant. She further alleged that even after decree of divorce she had been living with the appellant till 7.2.2009 1
and continued co-habitation with him. They had visited several places together during this period. The child had been forcibly snatched from her by the appellant. Therefore, she was entitled to the custody of the minor child along with other reliefs.
10. The question does arise as to whether reliefs sought in the complaint can be granted by the criminal court so long as the judgment and decree of the Civil Court dated 20.3.2008 subsists. Respondent no.2 has prayed as under:
"It is therefore prayed that the respondent no.1 be directed to hand over the custody of the minor child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent no.1 be directed to pay to her a sum of Rs.15,000/- per month by way of rent of the premises to be hired by her at Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to her all the dowry articles as detailed in Annexure A to C or in the alternative they be directed to pay to her a sum of Rs.22,95,000/- as the price of the dowry articles. Affidavit attached."
Thus, the reliefs sought have been threefolds:
(a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles.
11. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud 1
upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law". It is a trite that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. "Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine". An act of fraud on court is always viewed seriously. (Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383)
12. However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court.
The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and Tayabbhai M. 1
Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).
13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.
14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-
"It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof." (Emphasis added)

Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.
From the above, it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings.
15. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime. A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim "allegans suam turpetudinem non est audiendus". No one should have an advantage from his own wrong (commondum ex injuria sua memo habere debet). No action arises from an immoral cause (ex turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuria). The statements/allegations made by the respondent no.2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief. 1
16. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. (Vide: Faguna Kanta Nath v. The State of Assam, AIR 1959 SC 673; and Jamuna Singh v. State of Bihar AIR 1967 SC 553). If more than one person combining both in intent and act, commit an offence jointly, each is guilty, as if he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43 IPC defines illegality. Making false statement on oath before the court is an offence under Section 191 IPC and punishable under Section 193 IPC.
17. While granting the decree of divorce, the statement of respondent no.2 had been recorded in the first as well as in the second motion as mentioned hereinabove. Period of more than 6 months was given to her to think over the issue. However, she made a similar statement in the second motion as well.
18. As per the statutory requirement, the purpose of second motion after a period of six months is that parties may make further efforts for reconciliation in order to save their marriage. There is also obligation 1
on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bring about a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be "much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire". The court should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation or one party or the other says that there is no possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.
19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this Court held that mere filing the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The court must be satisfied about the bonafides and the consent of the parties for the reason that court gets jurisdiction to make a decree for divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be unilateral prior to second motion. The Court further observed:
"The ‘living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ‘living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The. parties may be living in different houses and yet they could live as husband and wife. What seems
to be necesssary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they ‘have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved." (Emphasis added)
20. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual consent between the parties on some 1
tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637).
21. Respondent no.2, who did not change her stand in the second motion and obtained a sham decree of divorce as alleged by her asked the criminal court to sit in appeal against the judgment and decree of the competent Civil Court. The complaint was filed before the Magistrate, Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of another district. Therefore, it is beyond our imagination as under what circumstances a subordinate criminal court can sit in appeal against the judgment and order of the superior Civil Court, having a different territorial jurisdiction.
22. In the facts and circumstances of the case, the submission made on behalf of respondent no.2 that the judgment and decree of a Civil Court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by the respondent no.2 to declare the said judgment and decree dated 20.3.2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school 1
diary of the child cannot be taken into consideration so long as the judgment and decree of the Civil Court subsists. On the similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the Act 2005 is maintainable, is not worth acceptance at this stage.
23. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this Court considered the expression "domestic relationship" under Section 2(f) of the Act 2005 placing reliance on earlier judgment in Savitaben Somabhai Bhatiya v. State of Gujarat & Ors., (2005) 3 SCC 636 and held that relationship "in the nature of marriage" is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
The said judgments are distinguishable on facts as those cases relate to live-in relationship without marriage. In the instant case, the parties got married and the decree of Civil Court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court. 1
24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court inJapani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would 2
be travesty of justice. Thus, interest of justice warrants quashing of the same.
26. The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. Complaint No. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.
Before parting with the case, we clarify that respondent no.2 shall be entitled to continue with her other cases and the court concerned may proceed in accordance with law without being influenced by the observations made herein. The said observations have been made only to decide the application under Section 482 Cr.P.C. filed by the appellant.
………………………………….J.
(P. SATHASIVAM)
…………………………………..J.
(Dr. B.S. CHAUHAN)
New Delhi
August 23, 2011

498A Quashed against minor Girls: Justice SN Dhingra

Equivalent citations: I (2007) DMC 542

Bench: S N Dhingra

Smt. Neera Singh vs The State (Govt. Of Nct Of Delhi) And Ors. on 21/2/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. This petition under Section 482 of Cr.P.C. read with Section 397 and 401 of Cr.P.C. has been made on behalf of the petitioner for quashing/settingaside order dated 25th April, 2006 passed by, Additional Sessions Judge wherebythe learned ASJ observed that no charge was made out against two minor girlsnamely Kamlesh and Mamta Rani, sister in laws of the complainant (husband’ssisters) under Section 498A of the IPC.

2. A perusal of the FIR would show that the allegations against the twominor girls are that on the directions of their mother they stopped doinghousehold work and they used to tell her “bhabhi you have not brought gold itemsfor us, how we will give reply to our friends”. Complainant after narrating The words used by respondent stated that it had become clear to her that her in -laws were greedy and they were making demands of gold ring, gold chain etc. fromher.

3. Considering the allegations made by complainant in her statement to The police and in the FIR, the learned ASJ observed that the ingredients under section 498A of the IPC were not made out against the minor girls Kamlesh andMamta. The complainant had also not stated as to on which date such remarks asalleged were made by the two girls. There were no allegations of eitherphysical or mental torture by these two girls and, therefore, he considered thatno case was made out against the two minor girls under Section 498A of the IPC.

4. It is submitted by the petitioner that the learned ASJ has failed toappreciate that there were sufficient allegations in the complainant/FIR toconstitute offences under Section 498A of the IPC. Section 498A IPC reads asunder:

498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative or the husband of a woman, subjectssuch woman to cruelty shall be punished with imprisonment for a term which mayextend to three years and shall also be liable to fine.Explanation.-Fro the purpose of this section, “cruelty” means-

(a) any willful conduct which is of such a nature as is likely to drivethe woman to commit suicide or to cause grave injury or danger to life, limb orhealth (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view tocoercing her or any person related to her to meet any unlawful demand for anyproperty or valuable security or is on account of failure by her or any personrelated to meet such demand.]

5. Cruelty as defined in Section 498A of the IPC must meet the following requirements:

1. There should be harassment of the woman.

2. Harassment should be with a view to coercing her or any person related to herto meet the unlawful demand of a property or valuables security.

3. The harassment may be even where on account of failure by woman or any personrelated to her to meet any such demand earlier made.

6. The cruelty perpetuated on a woman may be physical or mental. However,not doing household work by minor girls either of their own or at the instanceof their mother, as alleged, cannot be stated to be cruelty to the woman or theutterances as assigned to these two minor girls that she had not brought anygold item for them would amount to harassment being made by minor girls for thepurpose of coercing her or her relatives to meet the unlawful demands.

7. Now-a-days, it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under Section 498A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the Courts to carefullys crutinize the allegations and to find out if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of complainant and there after observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations madeby the complainant, no other role was assigned to these two minor girls(respondents).

8. In view of the my foregoing discussion, I find no infirmity in the order passed by learned ASJ. The petition is hereby dismissed being devoid ofmerits.

Courts are being used as a tool in 498A-Justice Shiv Narayan Dhingra, Delhi HC

Equivalent citations: 138 (2007) DLT 535

Bench: S N Dhingra

Smt. Sangeeta Kalra vs State on 2/3/2007

JUDGMENT

Shiv Narayan Dhingra, J.

1. This is a petition under Section 482 Cr. P.C. for quashing of FIR No. 518/2000, under Sections 498A/406/34 IPC.

2. Complainant in this case married petitioner’s brother on 11.3.99. She lived in matrimonial home for two weeks and left the matrimonial home. She wrote a letter to her husband giving reasons of her leaving matrimonial home, which reads as under:

Dear Raju,

There are several other things which I wanted to tell but I could not tell you, so I have gathered courage to write the same. I have now learnt that you are a good human being and you have condoned my several draw backs. Thus, I shall always be grateful to you. Raju, like any other girl, I also had dreams, which I could not tell you but I would like to tell you the same today, so that we can understand each other better and can give happiness and love to each other. My dreams were there should be light music in my room and my partner should shower love on me and should accept me from core of his heart fully. I should be attractive and we should be able to possess each other. Raju, I know there were some mistakes on my part that I could not seduce you completely. While preparing you mentally I forgot to prepare you physically. I am sorry. Henceforth I shall make full efforts that you get satisfaction from me and not from yourself. You must be understanding what I am trying to say. Raju, the relationship of husband and wife is not only of body but it is of heart and soul as well. I understand your all problems and I shall give company to you in all times. So far as babies are concerned, we will not have babies till you do not want them and I will not make any demand from you howsoever long it may take. Raju, I am going today, you should come to my parental house to take me back if you consider that I am not a useless thing. Raju, please destroy this letter after reading it so that it does not fall into the hands of others and we become laughing matter. And lastly thank you very much for all your affection, concern, care and love ( I hope so) ” I love you very much dear and will always do so even if you accept me or not it doesn’t matter”. Always your and only yours. Summi.

Post Script. – Raju I have disturbed you for several nights and now you should sleep properly. I know if you wanted you could have forcibly established relationship with me but you left me thinking as if I was a child. I would not get better husband than you in this world. I am very lucky that I got a husband like you and I thank god for giving such a wonderful husband.

3. This letter is undisputedly in the hands of complainant. After this letter, she never lived at the matrimonial home. This letter was written about two weeks after the marriage when she left the matrimonial home. First complaint thereafter was made to the police by her father on 24.6.1999 and in that complaint he specifically wrote that his daughter was at his home for more than three months which also shows that complainant had not lived with her husband for more than 10 days or so, since marriage had taken place on 11.3.99. In the complaint written by the father of the girl, he did not give the date of leaving of matrimonial home by his daughter and made all vague allegations without specifying any demand of dowry and any incident of cruelty. He wrote that few days after marriage of the girl, the boy, mother, father sometime accompanied by sister troubled the girl. The sister mentioned herein is the sister who was married much before the marriage of the complainant and was living in her house at New Friends Colony, which is almost 20 kilometer away from the matrimonial home of the complainant, with her husband and children. It is not alleged in this complaint or in the statement made by the girl that the sister of the boy left her matrimonial home and started living at her parental home. The sister who is married and having children, obviously has to look after her home. Thus, there was no occasion for her to live at the matrimonial home of the complainant.

4. It seems that the complainant, who left the matrimonial home due to failure of physical relationship and resultant dissatisfaction, later on thought of implicating every member of the family in an anti-dowry and cruelty case. Initially, she made vague allegations against everybody and thereafter made a supplementary statement under Section 161 Cr. P.C. supplementing her earlier statement. In the supplementary statement it is stated that her father spent more than Rs. 22,00,000/- on her marriage while there was no such claim made by her father even in his own complaint made to the police on 24.6.1999.

5. It is true that while considering the quashing of criminal proceedings under Section 482 Cr. P.C, the Court should not embark upon an enquiry into the truthfulness of the allegations made by complainant but where the charges are framed by the lower court without considering the material, with closed mind and charges amount to gross misuse of criminal justice system and trial is an abuse, it becomes the duty of the High Court to intervene in such cases, under Section 482 Cr. P.C so that there is no miscarriage of justice and faith of people remains intact in the judicial system. In this case, charges have been framed against the petitioner, sister of the husband, without their being an iota of evidence of any cruelty or entrustment of any property by the complainant in the intial complaint or in the later complaint. Even in subsequent complaint made by the complainant herself there are no specific allegations and only vague allegations are there involving every family member.

5. In G. Sagar Suri v. State of UP , Supreme Court observed that criminal proceedings should not be allowed to be resorted to as a short cut to settle the score. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under Section 482 Cr. P.C has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 Cr.P.C or Article 227 of the Constitution of India. In Indian Oil Corporation v. NEPC Indian Limited Supreme Court deprecated the tendency of using criminal justice system as a tool for arms twisting and to settle the score and laid down that High court can intervene where the criminal justice system is used as a tool.

6. In Ramesh and Ors. v. State of Tamil Nadu 2005 CRI.L.J 1732 in a similar case the married sister of husband living at her matrimonial home was roped in under Section 498A/406 IPC. In that case she had stayed at her parents house, for some days. In the present case, there are no allegations that petitioner stayed at her parents house even for one day after the marriage. Allegations against the petitioner in that case were that she directed complainant to wash W.C and sometimes made some imputations against her. Supreme Court observed that all these do not amount to harassment with a view to coercising informant or her relations to meet an unlawful demand. In the present case the complainant left house after leaving a letter to her husband giving reasons of leaving the matrimonial home. However, she turned colour after she started living at her parental house. She who showered praises on her husband for his understanding, love and affection, without living with him a day further, suddenly made allegations of dowry demand and cruelty and used language which is not used by the civilized persons. In her complaint she used abusive language for her father-in-law like ‘kameena’ and ‘zaleel’ etc. Simultaneously she claimed that she belonged to a well educated family.

7. I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed. I, therefore, hereby quash criminal proceedings against the petitioner under Sections 498A/406/34 IPC, in FIR No. 518/2000 Police Station Shalimar Bagh, Delhi. dusty.

Petition stands disposed of.

UTTARAKHAND HC: Far relatives implicated in 498A Falsely, Quashed against respondent 3 to 6

Radha Kant Adhikari & Others vs State Of Uttaranchal & Another on 2 August, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION No. 891/2007 (Under Section 482 of the CrPC)

Radha Kant Adhikari & Others …….Applicants Versus

State of Uttaranchal & Another ……Respondents

Mr. M.K. Ray, Advocate, for the applicants. Mr. P.S. Bora, Brief Holder, for the State/respondent no. 1. Mr. Yogesh Pandey, Advocate, for the complainant/respondent no. 2.

2nd August, 2011

Hon’ble Servesh Kumar Gupta, J.

By way of this criminal miscellaneous application, moved under Section 482 CrPC, the applicants have challenged the summoning order dated 15.12.2006, passed by the Judicial Magistrate, Khatima in Criminal Case No. 1100/2006, Smt. Reena Adhikari v. Radha Kant Adhikari, whereby the applicants have been summoned to face the trial for the offences punishable under Section 498A, 323, 504, 506 IPC and one punishable under Section 3/4 of the Dowry Prohibition Act.

2. Brief facts of the case are that respondent no. 2 Smt. Reena Adhikari lodged a complaint on 28.8.2006 before the Judicial Magistrate, Khatima stating that she got married to the applicant no. 1 Radha Kant Adhikari on 5.9.2004. Her parents gifted articles and ornaments in the marriage as per their status. After sometime of marriage, differences cropped up between the two families on the question of dowry. Radha Kant Adhikari (husband), Anand Adhikari (father-in-law), Namita Adhikari (mother-in-law), Km. Jayanti Adhikari (unmarried sister-in-law), Dhruv Adhikari (younger brother-in- law) and Smt. Sushma (aunt {Bua} of the husband of the 2

respondent no. 2 and is working as a Nurse in Community Health Centre, Sitarganj), who are the prospective accused, started taunting Smt. Reena Adhikari for bringing insufficient dowry. It is further alleged that father of the complainant tried to resolve the matter and, accordingly, gave a plot of land in village Bakunthpur as well as sewing machine, interlock machine and rupees twenty thousand cash to Radha Kant Adhikari (husband of the respondent no. 2) in order to open a tailoring shop on the said plot. But it did not satisfy the hunger of dowry being nurtured by the in-laws of the complainant, and they started harassing her for more dowry. Finally the complainant was ousted from her in-laws’ house along with her girl child. It is further alleged that on 24.8.2006, at about 6 am, all the applicants came at the parental house of the complainant and demanded rupees thirty thousand and started abusing her for the same. When the complainant and her parents expressed their inability to fulfill the said demand, then all the applicants assaulted Smt. Reena Adhikari (complainant) at her parental house. On her raising the alarm, Shivpad Mandal, Gaur Chand Sarkar and many other people of the same village came at the place of occurrence and rescued the complainant and her parents. The applicants allegedly threatened that if the complainant shall be sent to her in-laws’ house without fulfilling their demand of dowry, then she shall be burnt alive.

3. The learned Magistrate, after recording the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC, summoned the accused applicants as stated above.

4. Heard learned Counsel for the parties and perused the materials available on record.

3

5. It has been contended on behalf of the applicants that on the alleged date of incident, that on 24.8.2006, Radha Kant Adhikari (husband) was in Gujarat in search of job. Smt. Sushma, who is aunt (Bua) of Radha Kant Adhikari (husband of the complainant) is working as Nurse and she stays at a distance of 18 kms from the alleged place of occurrence. Furthermore, she was on duty on the alleged date of incident. In support, copy of attendance sheet has also been annexed, albeit the same is illegible. It is further contended that applicants have been falsely implicated in this case

6. All told, the allegations made by the complainant Smt. Reena Adhikari in her complaint, do not, prima facie, inspire the confidence at least against the applicants no. 3 to 6, who are respectively mother-in-law, unmarried sister-in- law, younger brother-in-law and aunt (sister of her father-in- law) of the complainant. It appears to be highly improbable that these persons would accompany Radha Kant Adhikari (husband) and Anand Adhikari (father of Radha Kant Adhikar) and together abused and beat the complainant, that too at her parental house. Furthermore, Smt. Namita Adhikari is an old lady. Applicant no. 6 Smt. Sushma, who is aunt (Bua) of the complainant, is a married woman and she is living separately and she is not at all the beneficiary of demand of dowry. As such, applicants no. 3 to 6 appear to be falsely implicated being the relatives of the complainant and her husband. Hence, the impugned summoning order is liable to be quashed so far as it relates to the applicants no. 3 to 6.

7. For the reasons stated above, the present miscellaneous application under Section 482 CrPC is partly allowed. Impugned summoning order dated 15.12.2006, passed by the Judicial Magistrate, Khatima in Criminal Case No. 1100/2006, is quashed only in respect of applicants no. 3 4

to 6, namely, Smt. Namita Adhikari, Km. Jayanti Adhikari, Dhruv Adhikari and Smt. Sushma, However, learned trial court shall proceed with the trial against the applicant no. 1 Radha Kant Adhikari and applicant no. 2 Anand Adhikari. Accordingly, interim order dated 29.11.2007 stands vacated so far as it relates to applicants no. 1 & 2.

(Servesh Kumar Gupta, J.)

2.8.2011

Prabodh

UTTARAKHAND HC-IPC 498A Quashed-Mutual Compromise-Complainant(Wife)living with Accused(husband) now

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Compounding Application No.1209 of 2010 In

Criminal Misc. Application No.1021 of 2010 (U/s 482 of Cr.P.C.)

Nitin Gupta

Applicant

Versus

State of Uttarakhand and another

Respondents

Dated: October 26, 2010

HON. DHARAM VEER, J.

Heard Mr. Amish Tiwari, Advocate holding brief of Mr. A. Rab, Advocate for the applicant, Mr. M.A. Khan, Brief Holder for the State and Mr. G.K. Verma, Advocate for respondent no.2.

By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the applicant has sought quashing of charge sheet submitted in Crime No.119/10 under Sections 323, 406 and 498-A of The Indian Penal Code, 1860 (for short, IPC) and 3/4 of Dowry Prohibition Act, 1961 (for short, the Act) and also prayed for quashing of proceedings of Case No.5224/2010, State v. Nitin Gupta, pending in the court of A.C.J.M., Ist, Dehradun.

Today both the parties are present in person before the Court. They have also filed a compounding application no.1209 of 2010 along with which a joint affidavit of the applicant Nitin Gupta and respondent no.2/complainant Priyanka Gupta has been annexed. In the application, it is stated that the applicant and respondent no.2 has entered into a compromise and they are living together peacefully as husband and wife and now no grudge is remained pertaining to the same dispute. Now, learned counsel appearing for both 2

the parties jointly submitted that the instant petition may be disposed of in terms of the compromise arrived at in between the parties and the impugned charge sheet and the proceedings pending before the court below may be quashed.

Reliance has been placed on the judgment delivered by the Hon’ble Apex Court in case of B.S. Joshi & others v. State of Haryana & Another reported in (2003) 4 SCC P675 and further in the case of Ruchi Agarwal v. Amit Kumar Agarwal & others reported in 2005 SCC (Cri.) 719.

Keeping in view the enunciation of law as referred to above and applying the same to the facts and circumstances of the present case, once the matter has been compromised between the parties, no useful purpose will be served by proceeding with the prosecution. Therefore, the compounding application is allowed and impugned charge sheet filed in Crime No.119/2010, under Sections 323, 406 and 498A IPC and 3/4 of the Act as well as the entire proceedings of Case No.5224/2010, State v. Nitin Gupta, pending in the court of Addl. C.J.M., Ist, Dehadun, are hereby quashed.

The petition u/s 482 Cr.P.C. is disposed of accordingly.

(Dharam Veer, J.)

26.10.2010

 

 

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Kerala HC-IPC 498a Quashed-Mutual Compromise

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4149 of 2010()

 

1. NOUSHAD

… Petitioner

Vs

1. ZULAIKABI C.H

… Respondent

For Petitioner :SRI.T.B.SHAJIMON For Respondent :SRI.SIJU MATHEW The Hon’ble MR. Justice V.RAMKUMAR Dated :11/10/2010

O R D E R

M.SASIDHARAN NAMBIAR, J.

————————-

Crl.M.C No.4149 of 2010

————————–

Dated this the 11th October, 2010 O R D E R

Petitioner is the accused and 1st respondent the de facto complainant in C.C No.426/2009 on the file of the Chief Judicial Magistrates Court, Kasaragod taken cognizance for the offences under Sections 341, 323 and 498 A of I.P.C on Annexure A1 final report. Petitioner and 1st respondent are husband and wife. Petition is filed under Section 482 of Cr.P.C contending that the entire matrimonial disputes were settled and consequent to the settlement, 1st respondent has no subsisting grievance against the petitioner and therefore the case is to be quashed.

2. First respondent appeared through counsel and filed a joint petition along with the petitioner stating that the entire matrimonial disputes were settled and consequent to the settlement, 1st respondent has compounded the offence and therefore the case pending before Chief Judicial Magistrate Court, Kasaragod is to be quashed.

3. Learned counsel appearing for the petitioner, 1st respondent and learned Public Prosecutor were heard.

4. The offences under Section 341 and 323 of Indian Penal Code are compoundable offences. First respondent the injured who was allegedly restrained by the petitioner is therefore competent to compound the offence though an offence under Section 498A is not compounded. As held by the Apex Court in B.S Joshi and others Vs. State of Haryana and another ( 2003 (4) SCC 675) when matrimonial disputes are settled amicably it is not in the interest of justice to stand on technicalities and continue the prosecution and jeopardise the settlement of matrimonial disputes. Hence the joint statement filed by the 1st respondent establishes that she has already compounded the compoundable offences and settled the matrimonial disputes also. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C No.426 of 2009 on the file of Chief Judicial Magistrates Court, Kasaragod is quashed. M.SASIDHARAN NAMBIAR

JUDGE

ma

Kerala HC- IPC 498a Quashed-Mutual Compromise (ERNAKULAM)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4034 of 2010()

 

1. SIVARAJAN, S/O.CHELLAPPAN NADAR … Petitioner

2. VIKRAMAN, S/O.CHELLAPPAN NADAR

3. ALBERT JOSE, S/O.DEVARAM

4. BABU, S/O JOHNSON

Vs

 

1. STATE OF KERALA, REPRESENTED BY ITS … Respondent

2. LENI MOL, D/O.SUBHASHINI

For Petitioner :SRI.G.SUDHEER

For Respondent :SRI.S.K.VINOD

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :04/10/2010

O R D E R

M.SASIDHARAN NAMBIAR,J.

——————————————————– CRL.M.C.NOs.4034 & 4035 OF 2010 ——————————————————- Dated 4th October, 2010 O R D E R

Petitioners in Crl.M.C.4034/2010 are accused 1 to 4 in C.C.384/2008 on the file of Judicial First Class Magistrate’s Court-II, Neyyattinkara. Petitioners in Crl.M.C.4035/2010 are the accused 1 to 3 in C.C.525/2008 before the same Court. Petitioners 1 and 2 in Crl.M.C.4034/2010 are the same petitioners in Crl.M.C.4035/2010. Third petitioner in Crl.M.C.4035/2010 is the wife of second petitioner therein. Crl.M.C.4035/2010 is filed to quash the cognizance taken in C.C.525/2008 on Annexure-A2 final report for the offences under Section 498 A read with Section 34 of Indian Penal Code.

Second respondent is the de facto complainant, who is the wife of first petitioner. Second respondent in Crl.M.C.4035/2010 is the same second respondent in Crl.M.C.4034/2010. As is clear from Annexure-A2 final report taken cognizance in C.C.525/2008, the case is that first petitioner husband and second petitioner the brother of first petitioner and third petitioner, the wife of second petitioner, treated second respondent with cruelty. Crime No.26/2008 of Pozhiyoor Police Station was registered under Annexure-A1 FIR based on the complaint filed by the second respondent before Judicial First Class Magistrate’s Court-II, Neyyattinkara and sent for investigation under Section 156(3) of Code of Criminal Procedure. Case of the petitioner in Crl.M.C.4035/2010 is that entire matrimonial disputes were settled amicably and consequent to the settlement second respondent has no grievance against the petitioners and therefore, it is not in the interest of justice to continue the prosecution.

2. Prosecution case in C.C.384/2008 as is clear from Annexure-A2 final report taken cognizance by the learned Magistrate for the offence under Sections 451, 354, 323 and 506(i) read with Section 34 of Indian Penal Code is that due to enmity with second respondent, who filed a complaint against petitioners 1 and 2 alleging that they along with the wife of second petitioner, committed offence under Section 498A of Indian Penal Code, the four petitioners in furtherance of their common intention trespassed into the residential house of the second respondent on 1/5/2008 at about 10 p.m and threatened second respondent that unless she withdraw the case, she will be murdered and will cause hurt to the second respondent and thereby committed the offences. Crl.M.C.4034/2010 is filed contending that entire disputes were settled amicably and consequent to the settlement second respondent has no grievance against the petitioners and therefore, pending prosecutions are to be quashed.

3. Second respondent appeared in both cases through a counsel and filed separate affidavits stating that entire matrimonial disputes were settled before the Family Court in O.P.1122/2008 and consequent to the settlement, she has no grievance against the petitioners and therefore, she has no objection for quashing the cases pending before the learned Magistrate.

4. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard.

5. Affidavit filed by the second respondent, the de facto complainant in C.C.525/2008 and 384/2008 establish that the offences alleged against the petitioners in C.C.525/2008 are matrimonial offences and offences alleged against the petitioners in C.C.384/2008 are purely personal in nature and all the disputes were settled amicably. As held by the Apex Court inB.S.Joshi and others v. State of Haryana and another (2003(4) SCC 675) when matrimonial disputes are settled amicably, it is not in the interest of justice to continue the prosecution and proceed with the cases and endanger the cordial relationship between the husband and wife and their relatives. Similarly, as held by the Apex Court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19 (SC) when the offences alleged against the petitioners in Crl.M.C.4034/2010 are purely personal in nature against second respondent and second respondent has settled the dispute with petitioners, it is not in the interest of justice to continue the prosecution as consequent to the settlement there is no likelihood of a successful prosecution. Petitions are allowed. C.C.384/2008 and 525/2008 on the file of Judicial First Class Magistrate’s Court-II, Neyyattinkara are quashed.

M.SASIDHARAN NAMBIAR,

JUDGE.

uj.