Delhi court summons wife for cheating husband, causing miscarriage
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of: Criminal Revision No. 167/2013.
Mr. X. ... Revisionist.
Vs.
1. Smt. Y,
D/o Sh. Z,
2. Sh. A,
3. Smt. B,
W/o Sh. A.Delhi110043.
4. State (NCT of Delhi),
Through Commissioner of Police,Delhi Police,PHQ, ITO, New Delhi. ... Respondents.
Date of Institution. : 19.9.2013.
Arguments Advanced On. : 28.2.2014.
Date of Order. : 5.3.2014.
Present: None for revisionistcomplainant (husband).
Respondent no. 1 (wife) is present for herself as well as for her parents i.e. respondents no. 2 and 3.Sh. Pramod Kumar, ld. Addl. PP for State respondent no. 4.
Heard. Perused.
The present criminal revision petition is fixed for order, for today.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 r/w/s 401 CrPC, filed by the revisionistcomplainant (husband), is to the impugned order dated 25.7.2013 of Sh. Sudhir Kr. Sirohi, ld. MM, Dwarka Courts, Delhi, in complaint case no. 171/1/12, titled as “X Vs. Y”, whereby summoning of the respondents no. 1 to 3 was declined and the complaint was dismissed.
2. Arguments on the present criminal revision petition were addressed by Sh. Ayush Gupta, ld. counsel for revisionist complainant (husband) and Sh. B.S. Randhawa, ld. counsel for respondents no. 1 to 3, on 28.2.2014.
3. Perused the entire record, including TCR and written submissions filed on behalf of the revisionist (husband) and respondent no. 1 (wife), carefully.
4. The facts as per statement of revisionist made on oath in pre summoning evidence as CW1 before the ld. Trial Court, necessary for disposal of this revision petition are that with efforts of Mr.Nand Kishore (uncle of respondent no. 1), who was having friendly terms with the father of revisionist, matrimonial talks were initiated and the revisionist and his family members, went to the house of respondent no.1 and both of them (revisionist and respondent no. 1) were not able to talk in private, as mother of respondent no. 1 was constantly objecting for the same and after that, the engagement date was fixed for 25.3.2012 and the marriage was solemnized on 26.4.2012. During this period, the revisionist tried to contact respondent no. 1 on phone, but she, on one pretext or another, was not talking with him properly. After solemnization of marriage, both of them went to honeymoon and during that period, the respondent no. 1 was vomiting and when the revisionist asked the respondent no. 1 to see doctor, she refused the same stating that it is due to food taken in wedding season. After returning from honeymoon respondent no. 1 went to her house on 6.5.2012 and on 12.5.2012, the revisionist was informed on phone that the respondent no. 1 was pregnant. After that the respondent no. 1 came to the house of revisionist and when he asked her about the baby, she was very reluctant to talk about the same. On 26.5.2012, the respondent no. 1 was not well, therefore, both of them went for ultrasound on 27.5.2012, but she refused the same on the ground that she is not having urine pressure for ultrasound and that she had taken the food. After this incident, the respondent no. 1 went to her house and with her family she left for Haridwar and came back on 3.6.2012 and was having swelling in her leg. After that blood test, urine test and ultrasound, were prescribed to her. The ultrasound, mark 'A', was done by National Diagnostic Centre, in which pregnancy of 10 weeks and 6 days has been shown, although only six weeks had lapsed since the marriage and she was having the embryo of ten weeks and 6 days and after that, she went to her house and she telephonically told the revisionist that she wants to tell him something. Thereafter, at the home of the revisionist, the respondent no. 1 had stated that before marriage, she was having affair with a boy and embryo belongs to that boy. The revisionist informed his family members about the same and the respondent no. 1 left his house. The revisionist also informed the family members of respondent no. 1 about the same and a meeting was organized by NGO, namely, Maraydo at Prem Nagar, Najafgarh, Delhi, and they asked both the parties to compromise the matter and that in case the revisionist would not settle the matter, he would be implicated in dowry case, but the revisionist refused to settle the same. The revisionist gave complaint, mark B, to the SHO regarding his apprehension of false complaint against him. After that a dowry case and a maintenance case, was filed against him.5. The relevant portion of the impugned order of the ld. Trial Court, is reproduced below:
“........After going through the evidence on record it is noted that no person has been called to bring on record medical report of the accused at the same point of time it is not on record that report belongs to accused, moreover, there is nothing on record to show that complainant was not having occasion to meet accused before marriage. No DNA test of embryo was done and just a plain statement that accused was having embryo before marriage does not make accused liable, accordingly, there is not sufficient material for summoning accused. Accordingly, complaint is dismissed.....”
6. Ld. counsel for revisionist has strongly contented that the ld. Trial Court ignored the statement of the revisionist/CW1 in his pre summoning evidence and had passed the impugned order on surmises and conjectures. He has further submitted that the ld. Trial Court had to only prima facie consider the said statement of revisionist/CW1 on face value and to decide as to what offences were disclosed from the same and whether there are sufficient grounds to proceed against the respondents no. 1 to 3 or not and instead of doing that the ld. Trial Court assumed the fact that there is nothing on record to suggest that the revisionist had no occasion to meet the respondent no.1,before marriage. He has further submitted that revisionist nowhere stated so in his statement in pre summoning evidence and the ld. Trial Court ought not to have stepped into the shoes of the respondents no. 1 to 3, as no version or defence of thesaid respondents can be considered at the time of order on point of summoning as the said respondents had no right to participate in proceedings before passing of summoning order by the ld. Trial Court. He has further submitted that the ld. Trial Court ought to have considered the ultrasound report dated 11.6.2012, mark 'A', of the respondent no. 1, issued by National National Diagnostic Centre, New Delhi, at the stage of summoning, as there was no need to formally prove the same at the stage of summoning and also there was no reason or occasion for the ld. Trial Court to hold that it is not on record that the said report belongs to respondent no. 1, specially in view of the fact that the said report mentions the name and age of respondent no. 1. He has further contented that the ld. Trial Court ought to have taken the said medical expert opinion on the face value at the stage of summoning and should not have ventured into further inquiry on the said point since revisionist (CW1) categorically stated on oath that the said report belongs to the respondent no. 1 and further the respondent no. 1 would have got sufficient opportunity to cross examine the revisionist and concerned doctor regarding the said medical report, after summoning. He has further submitted that the respondents no. 1 to 3, had dishonest intention from the very start and that they had suppressed the material fact that the respondent no. 1 was pregnant, as is clear from her ultrasound report, on the date of her marriage with the revisionist and had this fact been known to the revisionist, he would not have married the respondent no. 1 and would not have incurred expenses on arrangements relating to marriage and on gifts etc. and further that the said acts of the respondents no. 1 to 3 have resulted into wrongful loss to the revisionist and wrongful gain to the respondents no. 1 to 3. He has further submitted that the respondents no. 1 to 3 had conspired with each other in cheating the revisionist defined u/s 420 IPC and for causing miscarriage of respondent no. 1 defined u/s 312 IPC, in furtherance of the said conspiracy. He has lastly prayed that the respondents no. 1 to 3 are liable to be summoned u/s 120B IPC, u/s 420 IPC r/w/s 120B IPC and u/s 312 IPC r/w/s 120B IPC, for cheating and dishonestly inducing delivery of property and for causing of miscarriage of respondent no. 1. He has lastly prayed that the impugned order suffers from illegality and infirmity and is liable to be set aside and the respondents no. 1 to 3 be summoned for the aforesaid offences. He has relied upon the following case laws:
i. Sarita Dode Vs. State, 2013 (1) AD (Delhi) 462.
ii. Madan Lal Vs. Sudesh Kumari & Another, 1 (1987) DMC 528.
iii. Swapan Kr. Mandal Vs. NCT of Delhi, 2011 (123) DRJ 306.
iv. Moideenkutty Haji & Others Vs. Kunhikoya & Others, AIR 1987 Kerala 184.
v. Dr. Meeru Bhattia Prasad Vs. State, 94 (2001) DLT 597.
vi. Suresh Vs. State of Maharashtra & Another, 1 (1990) DMC 426.
7. Per contra, ld. counsel for respondents no. 1 to 3 had opposed the arguments advanced on behalf of the revisionist and had denied all the allegations made. He had also tried to bring his side of the story, but I am of the considered opinion that at the stage of summoning, the same cannot be taken into consideration and the said respondents could address arguments before this Court as per Section 401 (2) CrPC in this revision petition, only on the basis of material produced on record by the revisionist.
8. From the statement of revisionist/CW1, it is prima facie clear that he had no occasion or reason to meet the respondent no. 1, prior to his marriage on 26.4.2012, as he has categorically stated that during the period of engagement and marriage, he had tried to talk with respondent no. 1, but she did not talk to him properly on one pretext or the other. Further, CW1 nowhere stated that he had met the respondent no. 1 even once between the period of engagement and marriage.Further, once the revisionist had stated on oath in his pre summoning evidence that the ultrasound report dated 11.6.2012 mark 'A', of the respondent no. 1 was got conducted from National Diagnostic Centre, New Delhi, and the said ultrasound report mentioning the name and age of respondent no. 1 was produced on record, the ld. Trial Court ought to have taken the same on face value and should have accordingly considered the same relevant at the stage of order on summoning and further, the contents of ultrasound report being an expert opinion report, should have been prima facie believed, although, the said ultrasound report was formally not proved on record as there was no need for the same to be proved formally at the stage of summoning. Further, in case the ld. Trial Court would have decided to summon the respondents no. 1 to 3, the respondents no. 1 to 3 would have got ample opportunity to cross examine the concerned doctor regarding the said ultrasound report. Thus, if the said ultrasound report is taken on its face value, then the respondent no. 1 was pregnant for 10 weeks and 6 days on 11.6.2012, although, her marriage took place only about 6 weeks prior to the said ultrasound i.e. on 26.4.2012 and prima facie, it appears that she did not get pregnant due to sexual intercourse with the revisionist and in view of the categorical deposition of revisionist/CW1, it is prima facie clear that he had no reason or occasion to meet the respondent no. 1, prior to his marriage and that respondent no. 1 (wife) admitted before him that she was having an affair with another boy before her marriage and embryo belongs to him, it can be safely prima facie inferred that the said embryo did not belong to the revisionist. Once that embryo did not belong to the revisionist, then I find force in the arguments of the revisionist that had the revisionist knew the said fact that the respondent no. 1 was already pregnant prior to marriage, he would not have married her.Further,prima facie the respondent no. 1 was knowing about her pregnancy and had not disclosed the said fact to the revisionist before marriage and thus, had prima facie deceived the revisionist and induced him to marry her and the said act of the respondent no. 1 had caused damage and harm or same is likely to cause harm to the revisionist in body, mind and reputation. Consequently, the acts of the respondent no. 1 clearly fall under the definition of cheating, as defined u/s 415 IPC, punishable u/s 417 IPC. However, there is no material to further make the said alleged acts an offence u/s 420 IPC, as there was no dishonest delivery of property. Further, from the case of revisionist/CW1, it is prima facie clear that the said embryo was got aborted by the respondent no. 1, although the claim of the respondent no. 1 is that the same was got aborted on 12.6.2012 (next day of her ultrasound), due to some medicines given by the family members of the revisionist, but at the stage of summoning, only the allegations of the complainant (revisionist herein), is to be considered and no new version of the respondents no. 1 to 3, can be considered.Since prima facie the said miscarriage was caused by the respondent no. 1 without the consent of the revisionist, therefore, prima facie an offence u/s 312 IPC (as a woman who causes herself to miscarry is also punishable under that Section) was also committed by the respondent no. 1. However, there is no material brought on record to show that the respondents no. 2 and 3 were prima facie aware about the factum of pregnancy of the respondent no. 1 or that they had conspired in any manner in deceiving the revisionist or in taking place of the said marriage or that they had played any role in carrying out miscarriage of respondent no. 1. Hence, no offence against the respondents no. 2 and 3, is made out. However, from the material on record of the ld. Trial Court, clearly offences u/s 417 IPC and u/s 312 IPC were made out against the respondent no. 1 (wife) and there were sufficient grounds to proceed against her for the said offences.
9. In view of the aforesaid discussions, it is clear that the ld. Trial Court had not correctly appreciated the material on record and had not correctly interpreted the statement of revisionist/CW1. Hence, there is illegality and infirmity, in the impugned order of the ld. Trial Court and accordingly the same is set aside.
10. After setting aside the impugned order of the ld. Trial Court, this Court has stepped into the shoes of the ld. Trial Court. Accordingly, the respondent no. 1 (wife) be summoned for the aforesaid offences before the ld. Trial Court on filing of PF/RC by the revisionist (husband).
11. The revision petition is disposed of, accordingly.
12. A copy of this order alongwith TCR be sent to the ld. Trial Court, for information and further proceedings, as per law, for 1.4.2014 for 2.00 pm.
13. Revision petition file be consigned to record room.
Announced in the open Court on 5.3.2014.
(ASHUTOSH KUMAR)
ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI
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