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Delhi District Court

In Re vs L. State Of Nct Of Delhi on 9 March, 2017

                                                  Crl. Revision No.56355/2016 

                IN THE COURT OF MS. SMITA GARG, 
              ADDITIONAL SESSIONS JUDGE­FTC, WEST, 
                    TIS HAZARI COURTS, DELHI. 

Crl. Revision No.56355/2016 

In re:
         Sh. Ajay Chopra
         S/o late Sh. Raj Kumar Chopra,
         R/o Flat No.A­134, Ground Floor,
         LIG Flats, Rajouri Garden, 
         New Delhi.                                            ....... Revisionist
                                       Versus

         l.   State of NCT of Delhi. 

           2.  Sh. Sumit Bhushan
                R/o House No.478, Second Floor,
                Orchild Island Society, 
                Second­52, Gurgaon, Haryana.                     ...... Respondents
 

              Date of filing of revision petition                : 24.10.2016
              Date on which judgment was reserved                : 27.02.2017
              Date of pronouncement of judgment                  : 09.03.2017

JUDGMENT:

1. This revision petition under Section 397 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') impugns the order dated 14.09.2016 passed by the Ld. Metropolitan Magistrate whereby the complaint case filed by the revisionist was dismissed Ajay Chopra v. State & Anr.  Page No. 1 /  6     Crl. Revision No.56355/2016  under Section 203 Cr. P. C. 

2. The brief background which led to the present proceedings is that the revisionist instituted a complaint case under Section 200 Cr. P. C. against his ex­wife and her second husband (i.e. the respondent herein) alleging the commission of offence under Section 497/34 IPC on 04.03.2015. The revisionist averred that the marriage between him and his ex­wife was solemnized on 20.09.2003 as per Hindu rites and ceremonies and from their wedlock, a female child was born on 30.06.2008. Due to temperamental differences between them, they started residing separately w.e.f. 30.01.2013 and there was no cohabitation between them. They filed the first motion petition for divorce by mutual consent under Section 13­B (1) of Hindu Marriage Act which was allowed by the Family Court on 17.04.2014. Thereafter, second motion petition for divorce by mutual consent under Section 13­B (2) of Hindu Marriage Act was filed wherein the revisionist as well as his ex­wife submitted their respective affidavits affirming that they had been living separately and that there was no chance of resumption of cohabitation between them. After recording their joint statement, the petition under Section 13­B (2) was allowed by the court on 20.10.2014. Later on, the revisionist came to know that his ex­wife had given birth to a female child on 14.01.2015 and that in the birth certificate of the child his ex­wife was shown as the mother and the respondent was shown as Ajay Chopra v. State & Anr.  Page No. 2 /  6     Crl. Revision No.56355/2016  the father of the child. Alleging that his wife and the respondent were living in adultery prior to the dissolution of marriage without his consent and also gave birth to a female child from their adulterous relations, the revisionist sought that they both were liable to be summoned and prosecuted for the offence under Section 497/34 IPC.  2.1     In  support  of  his  case,  the  revisionist examined three witness. Sh.  

Rajesh Kumar, Record Keeper from the office of Sub­Registrar (Birth and Death), South Delhi Municipal Corporation West Zone was examined as CW1. He produced on record the online record of birth of the child as Ex.CW1/A. CW2 Dr. Saeed Ahmed from Sehgal Neo Hospital where the child was born produced on record the entire admission and discharge record of the ex­wife of the revisionist w.e.f. 14.01.2014 to 16.01.2014 and the pre admission record of the child as Ex.CW2/1 (Colly) and Ex.PW2/2 (Colly). The revisionist also appeared in the witness box as CW3. 

2.2     By  observing  that  the  ex­wife  of  the  revisionist,  being  a woman,   can not be guilty of adultery and that the allegations against the respondent were vague, the trial court dismissed the complaint case. Aggrieved therefrom, the revisionist is before this court. 

3. Though the revisionist had also arrayed his ex­wife as one of the respondents but on 27.02.2017, he made a statement confining the revision petition against the respondent Sumit Bhushan only. 

4. The counsel for the revisionist has submitted that since the revisionist and his ex­wife had not cohabited after 30.01.2013 and the child had been born on 20.10.2014 i.e. within three months of the dissolution of their marriage, it is clear that the wife of the revisionist was living in adultery and as the respondent has been mentioned to be the father of the child in the birth certificate, the offence of adultery was made out. While assailing the impugned order, the counsel for the revisionist has contended that in view of the material produced on record by the revisionist, the order of dismissal of the complaint passed by the Ld. M. M. by observing that the allegations are vague is completely erroneous and is liable to be set aside.    Per contra, the counsel for the respondent has submitted that the sole purpose of filing the complaint case by the revisionist was to spoil the matrimonial life of his ex­wife and the respondent and therefore, the complaint case was rightly dismissed by the Ld. M. M. He has argued that after the dissolution of marriage on 20.10.2014, the revisionist ceased to be the 'person aggrieved' within the meaning of Section 198 Cr. P. C. and therefore, he was not competent to lodge the complaint. 

5. Section 497 of Indian Penal Code defines adultery and provides punishment thereof. The essentials of the offence of adultery are: 

(i) That accused must have sexual intercourse with a woman;

(ii) That woman must be a married woman;

(iii) The accused must be aware or had reason to believe that she was the wife of another person;

(iv) The sexual intercourse must not amount to rape; and 

(v) Such sexual intercourse must be without consent or connivance of the husband. 

  In the case on hand, the revisionist had produced on record the copy of joint statement recorded on 18.10.2014 (Mark 'A') and the judgment dated 20.10.2014 (Mark 'C') passed by the Family Court whereby the marriage between the respondent and his wife was dissolved by a decree of divorce by mutual consent. In the statement recorded on 18.10.2014, the wife of the revisionist had not only affirmed the factum of her marriage with the revisionist on 20.09.2003 but also that there was no cohabitation between them since 30.01.2013. As per the birth details (Ex.CW1/A), the ex­wife of the revisionist gave birth to the child on 14.01.2015. At the time when the child could have been conceived, the ex­wife of the revisionist was not in conjugal relations with him. Record produced by Dr. Saeed Ahmed shows that in the admission form, the respondent had been mentioned as the father of the child. In the birth details of the child maintained by the office of the Sub­Registrar also, the name of the respondent finds mention as the father of the child. All the above documents coupled with the statement of the revisionist (CW3) and the averments of the complaint, there was sufficient material on record for proceeding with the complaint case Ajay Chopra v. State & Anr.  Page No. 5 /  6     Crl. Revision No.56355/2016  against the respondent for the offence under Section 497 IPC.    The contention of the counsel for the respondent that the revisionist was not competent to file the complaint case is misconceived. The husband, who is a 'person aggrieved' on the date the offence is committed, does not cease to be so merely because on the date of filing of the complaint he has already obtained a divorce. I am fortified in taking this view by the judgments in "Dhanna Singh and others v. Emperor, AIR 1922 Lahore 477 & Balarani Kali v. Jagannath Kali and another, AIR 1967 Calcutta 203".    For the foregoing reasons, the impugned order can not be sustained in the eyes of law and is liable to be set aside. The revision petition is accordingly allowed. Ld. M. M. shall proceed with the complaint case against the respondent Sumit Bhushan for the offence under Section 497 IPC in accordance with law. 

  The revisionist shall appear before the Ld. M. M. on 10.04.2017 at 02:00 pm.          File of the revision petition be consigned to record room.  

Announced in the open court                            (Smita Garg)
on 09.03.2017                             Addl. Sessions Judge­FTC,(West)
                                                 Tis Hazari Courts, Delhi.




Ajay Chopra v. State & Anr.                                    Page No. 6 /  6