Tuesday, March 18, 2014

Delhi court summons wife for cheating husband, causing miscarriage

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