REPORTABLE
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 on 5.10.1999.
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
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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 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
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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
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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 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
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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.
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.
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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:
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"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 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.
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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 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
9
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
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
10
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. 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.
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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.
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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.
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.
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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 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.
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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 bona fides
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
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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 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
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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 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
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declare the said judgment and decree as a nullity is still
pending consideration before the competent court.
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 in
Japani 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 be
18
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
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ITEM NO. 1-A COURT No.8 SECTION IIB
( For Judgment )
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO.1635 OF 2011 @ SLP (Crl) No.7787/2010
INDERJIT SINGH GREWAL .. Appellant(s)
Versus
STATE OF PUNJAB & ANR. .. Respondent(s)
DATE : 23/08/2011 This APPEAL was called
on for pronouncement of judgment today.
For Appellant(s) Mr.Ravindra Keshwarao Adsure, Adv.
For Respondent(s) Mr.Rohit Kumar Singh, Adv.
Ms.Kavita Wadia, Adv.
---
Hon'ble Dr. Justice B.S. Chauhan pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice P.
Sathasivam and His Lordship.
Leave granted. The appeal is allowed.
[ Usha Bhardwaj ] [ Savita Sainani ]
Court Master Court Master
[ Signed reportable judgment is placed on the file ]
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Source :- http://courtnic.nic.in/supremecourt/temp/sr%20778710p.txt
Media report
http://timesofindia.indiatimes.com/india/After-divorce-woman-files-domestic-violence-case-against-ex-husband/articleshow/9726197.cms
