Andhra Pradesh High Court - Amravati
Chittibomma Veera Venkata Raju vs The State Of Andhra Pradesh, on 17 December, 2019
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HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL PETITION No.11695 of 2017
ORDER:
This Criminal Petition is filed for quashing the case in C.C.No.659 of 2016 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam, for the offence under Section 498-A IPC.
Sri P.S.P. Suresh Kumar, learned counsel entered appearance for the petitioner and argued the case. Certain additional documents were also filed for arguing the case.
As per the proceedings dated 04.12.2019, despite service of notice the 2nd respondent did not appear. It is recorded that there is adequate service.
Learned Public Prosecutor appeared for the State and argued the matter.
The essential ground that is urged by the learned counsel for the petitioner for quashing the proceedings are that the complainant and the petitioner are no longer husband and wife. According to him, the marriage between parties was dissolved by the Hon'ble Family Court at Auckland, New Zealand on 11.01.2011. Therefore, he submits that Section 498-A IPC is not at all applicable as the petitioner is no longer the husband of the complainant. He also submits that the application is barred by time since it is filed long after the alleged incidents took place. Learned 2 counsel also relied upon the decision reported in Shlok Bhardwaj v Runika Bhardwaj and Others1, and argued that the complainant is not entitled to continue the legal proceedings on the ground that the she did not disclose these proceedings taken before the Court at Auckland and suppressed the facts. Learned counsel for the petitioner relied upon Amit Kumar Yadav and Others v State of Telangana2and RashmiChopta and others v State of Uttar Pradesh and Another3, to argue that complaint was maliciously initiated.
As the complainant did not appear, the learned Public Prosecutor argued the matter and stated that the issues of fact are being raised. He submits that whether the judgment passed by the Court at New Zealand is a valid or binding judgment, is a matter which is required to be established during the course of the trial. He points out that a reading of the impugned judgment, which is filed with the additional material papers, shows that the notice itself states if the party is not domiciled in New Zealand the decree may not be recognised as valid outside New Zealand. Therefore, learned Public Prosecutor submits that whether the said divorce is valid or not is the matter that only can be decided during the course of trial. Hence, he submits that quashing is not called for.
1 2014 LawSuit (SC) 1053 2 2016 Crl.J 1809 3 2019 (7) Scale 152 3 This Court after hearing both the learned counsel notices that in the additional material papers, apart from the warning pointed out by the learned Public Prosecutor in the notice, the counter affidavit of the complainant is filed, which shows that the complainant has raised an issue about the jurisdiction of the Court at New Zealand to grant divorce. She raised an issue about Section 13 of the Hindu Marriage Act and clearly states that the Family Court at New Zealand has no jurisdiction to try the case. She prayed for an opportunity for hearing.
The order that is relied upon by the learned counsel for the petitioner does not show that this issue was considered by the trial Court in granting the decree. It is settled law that when a party protests about the jurisdiction of the Court and appears under protest, the Court should answer that issue and come to a conclusion that it has power and jurisdiction to decide the matter. Foreign decrees are not always treated as a conclusive. Section 13 of the Code of Civil Procedure states that all foreign decrees are not conclusive. Before a decree is accepted as a conclusive, the applicability of the provisions of Section 13-e to f of C.P.C. should be established. In the case on hand it has not been proved that the judgment is given by a Court of competent jurisdiction; that it has been given on the merits of the case or that Hindu Marriage Act etc., and the other objections raised were considered. The judgment of 4 the Hon'ble Supreme Court of India reported in Y. Narasimhav Y.Venkatalakshmiis also relevant.
In that view of the matter, this Court is of the opinion that in an application under section 482 of Cr.P.C, this Court cannot with the limited material filed come to a conclusion that there is conclusive decree of divorce. This matter is left upon to the lower Court to decide. The opinions expressed by this Court are for the purpose of deciding this petition only and shall not preclude the lower Court from coming to a different conclusion.
This Court holds that the essential grounds urged by the learned counsel for the petitioner are not enough grounds to quash the proceedings. By virtue of this order the petitioner is not precluded from establishing the validity of the decree of divorce in the trial Court. Hence for these reasons, this Court holds that there are no merits.
Accordingly, this Criminal Petition is dismissed. Miscellaneous petitions, if any, pending shall stand dismissed.
__________________________ D.V.S.S. SOMAYAJULU, J Date:17.12.2019.
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