Andhra Pradesh High Court - Amravati
N.Sridhar Reddy vs State Pf Ap on 8 July, 2019
*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ Crl.P.No.348 of 2019
And
Crl.P.No.122 of 2019
% 08-07-2019
Crl.P.No.348 of 2019
# Dr.N.Sridhar Reddy and Smt.Geetha Inturi
... petitioners
Vs.
$ State of Andhra Pradesh and
N.Geetha Prasanthi
... Respondents
Crl.P.No.122 of 2019
# Nallapareddy Krishna Reddy and
Smt. Nallapareddy Vasantha Kumari
... petitioners
Vs.
$ State of Andhra Pradesh and
N.Geetha Prasanthi
... Respondents
! Counsel for the petitioners: Sri K.Srinivas, and
Sri G.Venkateswara Rao
! Counsel for the Respondents: Sri A.T.M.Ranga Ramanujam
and Learned Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
1 (2010) 11 SCC 749
2 2015 (1) MLJ (Crl.) 517
3 (1991) 3 SCC 451
4 (1975) 1 SCC 120
5 II (2010) DMC 190 (DB)
6 (2013) 9 SCC 293
7 AIR 2011 SC 2900
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
Crl.P.No.348 of 2019
And
Crl.P.No.122 of 2019
COMMON ORDER :
Crl.P.No.122 of 2019 is filed by petitioners-A.2 and A.3, who are father-in-law and mother-in-law of the 2nd respondent-complainant under Sec 482 Cr.P.C to quash the proceedings.
Crl.P.No.348 of 2019 is filed by the petitioners-A.1 and A.4 who are the husband and the alleged second wife of Sri N.Sridhar Reddy-A.1 to quash the proceedings under Sec 482 Cr.P.C.
All the four (4) petitioners are accused in CC.No.571 of 2018. Both these cases were heard together.
This Court has heard Sri K.Srinivas, learned counsel for the petitioner in Crl.P.No.122 of 2019, Sri G.Venkateswara Rao, learned counsel for the petitioner in Crl.P.No.348 of 2019 and Sri A.T.M. Ranga Ramanujam, learned senior counsel representing Sri G.V.S.Hari Mehar, learned counsel for the de-facto complainant and the learned Public Prosecutor for the respondent-State.
FACTS: - This case has a long history.
3Sri N.Sridhar Reddy-A.1 was married to the complainant. Their marriage was a troubled marriage. They lived in England for some time and during the wedlock they begot a child.
As per the averments in the petition, A.1 filed an application for divorce under the Hindu Marriage Act bearing No.8 of 2010 on the file of Sattenapalli Court. The said application was dismissed on 09.03.2010. A.1 preferred an appeal before the Hon'ble High Court against the order dated 09.03.2010, but he withdrew the same. Therefore, the complainant alleges that the marriage is subsisting.
As can be seen from the facts, after withdrawing the appeal, A.1 filed a case for divorce from the complainant in the Cambridge County Court vide case No.CB13D01124. The said Court issued a notice as to why the marriage should not be dissolved and thereafter, it is stated that the Court has passed an order on 29.01.2014 dissolving the marriage. Therefore, according to A.1, the marriage is dissolved.
Apart from this, on 12.01.2014, the complainant filed an application for restitution of conjugal rights in HMOP.No.4 of 2014. A decree was passed on 10.03.2014 for restitution of conjugal rights as A.1 did not appear.
The complainant's case is that later, she came to know that A.1 married A.4 in United Kingdom on 03.03.2014. 4 Thereafter, the complaint was lodged under Sections 494, 120-B r/w Section 34 IPC. The complaint was actually registered on 01.02.2016 in Cr.No.28 of 2016. After investigation C.C.No.571 of 2018 was filed on the file of I Additional Junior Civil Judge, Sattenapalli.
Crl.P.No.122 of 2019 was filed by A.2 and A.3 who are the father-in-law and mother-in-law of the de-facto complainant for quashing the proceedings on the ground that they have never encouraged A.1 to go in for a second marriage. They state that they have no knowledge about A.1 marrying A.4. They also state that as A.1 was living far away, they had absolutely no role to play in the marriage. Lastly, they submit that even if the said marriage is true, it occurred in United Kingdom and therefore, the Indian Court has no jurisdiction to entertain the case.
A counter was filed by the complainant, wherein all these facts are denied stating that the present petitioners are actively involved in the marriage of A.1 with A.4.
Crl.P.No.348 of 2019 is filed by A.1 and A.4 on the ground that the marriage between complainant and A.1 was validly dissolved by a Court of competent jurisdiction and that therefore, there is no subsisting marriage on the date of the marriage between A.1 and A.4. Therefore, it is averred that the offence of bigamy is not made out at all. Hence, a prayer for quashing.
5
In this matter also a very detailed counter affidavit is filed opposing the prayer. It is mentioned that the marriage has not been dissolved by a Court of competent jurisdiction and that the English Courts judgment is not binding on the complainant nor is it a valid judgment for this Court to follow the same.
Submissions: Learned counsel argued that the petitioners in Crl.P.No.122 of 2019 are the parents of A.1. Therefore, he submits that Section 494 cannot be applied at all. He submits that the offence under Section 494 IPC is a personal offence limited to the person who marries another during the subsistence of a valid marriage and the spouse is living. Therefore, he argues that an offence under Section 494 IPC cannot be attributed to the parents. He also submits that they had no role to play in the so called second marriage and that therefore, they cannot be charge sheeted. He also relies upon the judgment reported in Pashaura Singh v. State of Punjab1 of the Hon'ble Supreme Court of India, wherein the Apex Court has held that the offence under Section 494 IPC is only attracted when a second marriage is contracted; when the first marriage is subsisting and the spouse is living. The counsel points out that in view of the divorce granted by the Cambridge Court, Section 494 IPC is not attracted. Learned counsel raises an important point and 1 (2010) 11 SCC 749 6 states that as the alleged offence of bigamy was committed in England, permission under Section 188 Cr.P.C. is necessary for pursuing the case. He relies upon a judgment of Madras High Court reported in Dr.S.Karthikeyan v. E.Vedavanam2 and argues that without the permission of the Central Government the trial cannot proceeded. Hence, the contention of the learned counsel is that the petition should be allowed and that in the alternative, if the Court holds otherwise, the issuance of summons to the accused should be quashed.
In Crl.P.No.348/2019, the learned counsel relies upon the judgment of the Court at Cambridge and argues that a preliminary order was passed on 29.01.2014 asking the respondent/complainant/wife to show cause as to why the earlier marriage should not be dissolved. He submits that thereafter a final order was passed on 29.01.2014. Learned counsel also points out that only after the first marriage was dissolved, the second marriage was performed. He relies upon the marriage entry in the marriage register dated 04.03.2014 to show that the petitioner disclosed the fact that the previous marriage was dissolved before marrying A.4. Learned counsel submits that therefore, the essential ingredients under Section 494 IPC are not satisfied at all and that the application should be quashed. He also points out 2 2015 (1) MLJ (Crl.) 517 7 that in the charge sheet the police have deleted the name of A.4 as can be seen from plain reading of the charge sheet itself; yet he submits that the lower Court issued NBW to A.4 without application of mind. Therefore, learned counsel submits that the petition should be allowed.
In reply to this, learned senior counsel appearing for the complainant in both the cases argues that the complainant/wife never appeared before the English Court unconditionally. He relies upon the reply submitted by the complainant/wife filed along with the counter affidavit wherein in Col.No.1, she has protested against the jurisdiction of the Court. It is clearly mentioned that foreign Courts have no jurisdiction and that Section 13 C.P.C., would apply to the facts of the case. The learned counsel then argues that the decree that is passed by the English Court is not binding as the decree is also granted on the ground of "irretrievable breakdown" which is not a ground that is recognized by the Hindu law, more specifically the Hindu Marriage Act. Learned counsel relies upon Y.Narasimha Rao v. Y.Venkata Lakshmi3 and argues that as per Section 13 of CPC., the English Courts judgment is not binding. He lays stress on Section 13 (c) of CPC., and argues that a foreign judgment is not binding if it refuses to recognize the law of India, which is applicable to the facts of the case. He 3 (1991) 3 SCC 451 8 clearly points out in that case also before the Hon'ble Supreme Court, the Circuit Court of St.Louis County granted divorce on the ground of irretrievable break down. He submits that irretrievable break down is not a ground to dissolve the marriage. He relies upon para 16 and 17 of the said judgment and argues that the said judgment is not binding. He also relies upon the Hon'ble Supreme Courts judgment in Smt. Satya v. Shri Teja Singh4 and states that there is fraud as to jurisdiction and that the application was filed before a Court which has no territorial jurisdiction to entertain the application. He states that complainant/wife was not residing in England when the case was filed. He also relies upon R.Sridharan v. Presiding Officer, Principal Family Court5, wherein a Division Bench of the Madras High Court held that the provisions of the Hindu Marriage Act, with regard to jurisdiction will also come into play and that a petition presented in any other Court more so a foreign Court cannot be entertained or decided. Learned counsel submits that the question of jurisdiction is determined by Section 19 of the Hindu Marriage Act, and therefore, the Cambridge Court has no jurisdiction.
In view of the rival contentions, this Court is of the opinion that the crux of the matter therefore is whether the 4 (1975) 1 SCC 120 5 II (2010) DMC 190 (DB) 9 decree granted by the Court at Cambridge is a valid decree? If the decree is a valid decree of divorce, the marriage between A.1 and A.4 is valid. If it is held that the said decree is not binding, whether the offence of bigamy is attracted?
Both the applications that are filed are under section 482 Cr.P.C. to quash the proceedings. The law on the subject is very well settled. Although the power of the Court to quash the proceedings are very vide, the same should be exercised with care and caution. Only if the Court is satisfied that the proceedings are an abuse of process of Court, the extraordinary power should be exercised. The Hon'ble Supreme Court of India in the case reported in Prashant Bharti v. State of NCT of Delhi6 clearly held as follows:
"Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?6
(2013) 9 SCC 293 10
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant;
and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal-proceedings, in exercise of power vested in it under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." If the present case is examined against the backdrop of this settled case law on the subject, the facts that would be 11 clear are (a) divorce was granted by the Court at Cambridge on 29.01.2014 holding that marriage has irretrievably broken down but such a ground is not recognized under Indian law/Hindu Marriage Act, as a ground for dissolution of the marriage (b) the petitioner has never submitted to the jurisdiction of the Court. In the reply filed to the counter affidavit in (IA.No.3 of 2019 in Crl.P.No.122 of 2019) the written statement filed by the complainant/wife in the foreign Court was filed. In paras 15 to 18, it is clearly specified that appropriate Court to deal with this case is the Indian Court and that A.1 has adopted forum shopping and filed the case in a Court which does not have jurisdiction. It is also visible at the very initial stage itself that before filing the written statement on 28.08.2013, the objection as to jurisdiction was taken. Thus, both in the initial application made on 28.08.2013 and in the subsequent written statement dated 24.11.2013 which are filed along with IA.No.3 of 2019, the complainant raised an issue about jurisdiction and the competency of the Cambridge Court. It is also pointed out that if a divorce was granted in England on the ground of irretrievable break down, it would lead an anomalous situation where the marriage was treated as divorced in England while it is subsisting in India. The records do not show if this important issue has been answered by the English Court.
12
Of all the judgments that are relied upon, this Court is of the opinion that the judgment of the Hon'ble Supreme Court of India in Y.Narasimha Rao's case (3 supra) is most appropriate to the case on hand. In that case also, it was held that the decree is not binding.
The second issue raised about a fraud being committed as far as the jurisdiction of the English Court is concerned, is also an arguable point. The Judgment of the Hon'ble Supreme Court of India reported in Smt.Satya's case (4 supra) is also applicable. It is also clear from the record that the complainant/wife has raised an objection more than once about the jurisdiction of the Court to entertain the matter. The English Court did not answer the matter.
The law is well settled that once a party appears under protest and contests the jurisdiction of the Court, then it cannot be said that the party has submitted unconditionally to the Courts jurisdiction.
Therefore, this Court is of the opinion that the power under Section 482 Cr.P.C. cannot be exercised at this stage. The material relied upon by the accused is not in the words of the Hon'ble Supreme Court of India of "sterling or impeccable"
character. The material filed by the complainant also raises a doubt of the date of the alleged bigamous marriage. The assertion is that the said marriage took place earlier but was registered later in March 2014.13
The material relied upon by the accused thus would not lead to the irresistible conclusion that the accusations in the complaint are false. It would not also cannot lead to a conclusion that the trial would result in an abuse of process of Court.
Therefore, in view of all of above, this Court is of the opinion that this is not the stage to quash the proceedings in their entirety. The issues about the orders passed by the Cambridge Court; the issue whether the defense of jurisdiction has been answered by the Court properly or not, whether such judgment is binding on the complainant and also on the Indian Courts are all matters which have to be decided during the trial of the Court. The role of A.2/A.3 in the alleged second marriage, whether the second marriage was in March. 2014 etc., are all matters to be established during the trial.
This Court also notices that the respondent in her written statement requested for transfer of the matter to the high Court/family division. It is not clear what happened to this plea.
Many of the issues raised are thus matters which have to be decided during the course of the trial. The entire application cannot be dismissed. Prima facie material is available for proceeding further.14
Therefore, both these grounds (a) whether the decree of the English Court is valid and binding (b) whether A.2 and A.3 have played an active role in encouraging the second marriage while the first marriage is subsisting and spouse is living are matters to be determined during the course of the trial.
The extra ordinary remedy of quashing the entire proceedings thus cannot be granted.
One fact however, remains i.e the argument advanced by the learned counsel on Section 188 Cr.P.C.. The judgment of the Madras High Court which is passed in S.Karthikeyan's case, the issue of Section 188 Cr.P.C, was discussed is of importance. The learned counsel argued that unless permission is obtained from the Central Government the case should not proceed further as the alleged offence of bigamy was committed in England. In the case of Thota Venkateswarlu vs. State of A.P. tr. Princl Secretary7 at para 29, the Hon'ble Supreme Court held as follows:
"29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one
- commission of an offence; second - by an Indian citizen; and third - that it should have been committed outside the country.7
AIR 2011 SC 2900 15 Hence, a plain reading of the section and the judgment of the Apex Court makes it clear that the ingredients are not satisfied as it is not clear if A.1 is a citizen of India or not. In fact, the description of A.1 in the charge sheet is that he is a "BRITISH CITIZEN". This is again a matter to be looked into and decided.
In the result, Crl.P.Nos.122 and 348 of 2019 are dismissed.
In view of the long arguments on legal and factual aspects, certain opinions are expressed by this Court. All these conclusions are for the purpose of the present applications only and they should not come in the way of the lower Court in dealing with the case. The trial Court shall decide the matter without being influenced by what is stated in this order.
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
------------------------------- D.V.S.S.SOMAYAJULU,J Date : 08.07.2019 Note: L.R. copy be marked.
KLP