Punjab-Haryana High Court
Satnam Puri And Anr vs State Of Punjab And Anr on 15 September, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
CRM-M-15583-2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-15583-2012 (O & M)
Date of Decision: 15.09.2014
Satnam Puri and another
... Petitioner(s)
Versus
State of Punjab and another
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. R.S.Cheema, Sr. Advocate with
Mr. S.S.Behl, Advocate for the
petitioner.
Mr. B.S.Cheema, DAG, Punjab.
Mr. R.S.Rai, Sr. Advocate with
Mr. Namit Gautam, Advocate for
respondent no.2.
Paramjeet Singh, J.
Petitioner no.2 and respondent no.2 were schoolmates and known to each other. Both decided to get married perhaps following the adage that "Marriages are settled in heaven, but celebrated on earth." They performed love-cum-arranged marriage and thereafter proceeded to Australia. It is considered that marriage between two Hindus is a sacred relationship because their karmas are intertwined. Relationship between couple is essentially relationship of the souls. It is an obligatory and a PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -2- CRM-M-15583-2012 sacrament. Early stages of marriage are make or break situation in the case of many. When two individuals are in love, they are at their best to impress each other. They behave, talk and wear the way the other likes. Although marriage is solemnized after many years of courtship, but after the marriage, they come to know the real person and partners start realizing and ultimately say that partner is not suitable and are up in break up.
Instant petition filed under Section 482 of the Code of Criminal Procedure for quashing of FIR No.14 dated 21.03.2012, registered at Police Station Women, Ludhiana, under Sections 406 and 498-A of the Indian Penal Code (in short 'IPC') along with the consequential proceedings arising therefrom, appears to have arisen in such circumstances.
The brief facts, as pleaded by the petitioners in the petition, are to the effect that respondent no.2-Ricky got registered the aforesaid FIR. Petitioner no.2 is permanent resident of Australia since 2006 and petitioner no.2 and respondent no.2 were schoolmates and known to each other. Both of them intended to get married and notice of intended marriage was given by petitioner no.2 on 17.06.2008 in Australia. Petitioner no.2 sent a sponsorship dated 22.06.2008 to respondent no.2 to facilitate grant of visa for migration. Thereafter, Roka ceremony of respondent no.2 was performed in India on 29.11.2008. After 13 days of ceremony, petitioner no.2 and respondent no.2 left for Australia on PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -3- CRM-M-15583-2012 12.12.2008 and got married there on 31.12.2008. At the time of sending respondent no.2 to Australia, her father, uncle and grand-father filed affidavits before the Australian High Commission to the effect that respondent no.2 is the fiancee of petitioner no.2 and they will perform their marriage in Australia. In the beginning, parties stayed together peacefully, but subsequently respondent no.2 started indulging in wayward activities. Petitioner no.2 approached the Magistrate's Court and got an intervention order on 24.11.2009, but respondent no.2 after realizing her mistake entered into a compromise with petitioner no.2 in the presence of her own friend-Harpreet Bhasin. It is further pleaded that when respondent no.2 was in an advanced stage of pregnancy, she insisted to visit India, petitioner no.2 opposed the same, but to no avail and ultimately she left for India on 17.12.2009 against the wishes of petitioner-husband. She wrote in her handwriting that she was leaving Australia at her own risk. On 12.02.2010, a male child was born to respondent no.2, but petitioner no.2 was never informed about it and he came to know about it from his parents. Thereafter, respondent no.2 came back to Australia on 13.04.2010 leaving behind their son with her parents. Even after reaching Australia, respondent no.2 never informed petitioner no.2 about her stay in Australia. Due to the efforts made by petitioner no.2, the matter was reconciled and both of them started living together in October, 2010. On 06.02.2011, respondent no.2 got her permanent residency in Australia and after getting the same, she again PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -4- CRM-M-15583-2012 left the house of petitioner no.2 on her own accord on 13.02.2011 and came back to India to stay with her parents.
It is further pleaded in the petition that respondent no.2 came back to Australia without informing petitioner no.2 and started living separately. Petitioner no.2 and his parents were shocked to receive a legal notice dated 13.09.2011 sent by respondent no.2 through her counsel levelling false allegations not only against petitioner no.2 but also against his parents. The said legal notice was replied by petitioner no.2. After coming back to Australia, respondent no.2 got an intervention order from the Magistrate's Court at Moorabbin JC. Petitioner no.2 tried to reconcile the matter and to persuade estranged wife to come back, but to no avail. Petitioner no.2 was left with no other remedy but to file divorce application before the Magistrate's Court in Melbourne, Australia. Respondent no.2 did not oppose the divorce application and no response was filed to the said application and ultimately, the marriage was dissolved on 03.04.2012. Prior to that, she got registered the aforesaid FIR not only against petitioner no.2 but also his parents. Hence, this petition.
Upon notice, respondents put in appearance. Respondent no.1 filed reply by narrating the contents of FIR and prayed for dismissal of the petition.
Respondent no.2 filed reply with the averments that the petitioners have not come to the court with clean hands and have PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -5- CRM-M-15583-2012 concealed the material facts and made false and wrong averments in the petition. In fact, Roka ceremony of petitioner no.2 with respondent no.2 was held on 14.01.2008 at Hotel Friends Residency, Ludhiana. Thereafter, marriage was solemnized on 29.11.2008 at Club Nirvana according to Hindu rites and ceremonies. The reception was celebrated at Blessing Resorts, Pakhowal Road, Ludhiana on 03.12.2008. The petitioners have wrongly mentioned the date of marriage in India. Photographs showing that marriage was attended by Satnam Puri and her husband and others have been attached with the reply as Annexure R-4. The notice of intended marriage and sponsorship for a partner to migrate to Australia was sent by petitioner no.2 in Australia without any knowledge of respondent no.2. Petitioner no.2 on his own gave the notice of intended marriage in Australia and requested the father of respondent no.2 to give an affidavit in the Australian High Commission to the effect that she was willing to join her fiance in Australia before her marriage. Petitioner no.2 stated that these were mere formalities and kept respondent no.2 in dark regarding the marriage on 31.12.2008 in Australia. No such marriage ceremony ever took place on 31.12.2008 in Australia, but it was a mere get together of the friends of petitioner no.2. The alleged affidavits were given merely on the asking of petitioner no.2, who kept not only respondent no.2 but also her entire family in dark. It is further pleaded that both the petitioners used to hit respondent no.2 which caused a threat to her and her child's life. It is further PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -6- CRM-M-15583-2012 pleaded that respondent no.2 was forced to sign the said compromise, as petitioner no.2 threatened respondent no.2 that she would be allowed to enter the house only if she would sign the same. Since it was very late in night at about 2.00 A.M, respondent no.2 had no option but to sign on the said papers on asking. Petitioner no.2 had been torturing respondent no.2 at her advanced stage of pregnancy and was also giving beatings to respondent no.2. In fact, it was petitioner no.2 who insisted upon respondent no.2 to go back to India during pregnancy. He also threatened respondent no.2 with dire consequences if she would not go back to India. She was also compelled to give in writing that she was going to India at her own risk and responsibility. Petitioner no.2 got signatures of respondent no.2 on certain blank papers also. Respondent no.2 and her parents tried to contact and inform petitioner no.2 regarding the delivery of child and also called her parents in India, but they did not pay any heed to the same. Respondent no.2 even e-mailed petitioner no.2 regarding the birth of their child, but no response was received from the side of petitioner no.2. Thereafter, respondent no.2 was left with no option but to reach Australia in order to reconcile the matter with petitioner no.2 and also gave him call on reaching Melbourne Airport, but petitioner no.2 refused to attend respondent no.2 and stated that she might go anywhere. Petitioner no.2 also got an intervention order against respondent no.2 whereunder she had to maintain the distance of at least 200 metres from her husband otherwise she would be arrested. PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -7- CRM-M-15583-2012 Thereafter, due to consistent request of her (respondent no.2), petitioner no.2 agreed to reconcile the matter and both of them started living together. But the attitude of petitioner no.2 never changed and he and his family members started harassing her on account of less dowry. Being fed up with the harassment caused by the petitioners, respondent no.2 started living separately.
Petitioner no.2 in divorce proceedings clearly stated that he did not want to keep any relationship with her and their son. It is the law in Australia that if the parties live separately for last one year or more than divorce is granted automatically. The dowry articles were duly entrusted to the petitioners in India at the time of marriage. It is also pleaded that cruelty is a continuous act and petitioners treated respondent no.2 with cruelty not only in Australia but also in India. The petitioners demanded the money from the parents of respondent no.2 in India. Other averments in petition have been denied and dismissal of the petition has been prayed for.
The petitioners also filed replication controverting the averments in the reply.
I have heard learned counsel for the parties and perused the record.
Learned senior counsel for the petitioners vehemently contended that in fact, marriage was performed in Australia and just after 13 days of 'Roka' ceremony, respondent no.2 left for Australia. PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -8- CRM-M-15583-2012 Thereafter, petitioner no.2 has never visited India and complainant also stayed most of the time in Australia, therefore, alleged offence of torture, harassment etc. if at all committed, the same was in Australia and not in India. Learned senior counsel further contended that ordinary place of inquiry and trial shall be at the place within whose local jurisdiction alleged overt act has been committed. No offence was committed within the territory of Ludhiana, therefore, the FIR has been wrongly registered. The question of breach of trust and commission of cruelty in Ludhiana does not arise as respondent no.2 remained in Australia. Learned senior counsel further contended that no specific allegation has been made with regard to entrustment of Istridhan. The alleged items given to various persons fall within the definition of 'gift', as such no offence under Section 406 IPC is made out specifically against petitioner no.1 as well as petitioner no.2. Learned senior counsel further contended that respondent no.2 has got permanent residency of Australia and now she is living in Australia. The divorce has been granted by the Australian Court. The FIR is a counter-blast to the divorce granted by the Australian Court on 03.04.2012. Learned senior counsel further relied upon the factum of compromise dated 26.11.2009 (Annexure P-7) wherein respondent no.2 admitted her fault and gave undertaking that she would not do such act again and sought forgiveness. Learned senior counsel further contended that false allegations have been levelled against the petitioners. The documents (Annexures P-14 to PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -9- CRM-M-15583-2012 P-16) clearly indicate that allegations are false and frivolous.
Per contra, learned State counsel as well learned senior counsel for respondent no.2 have vehemently opposed the contentions raised by learned senior counsel for the petitioners and contended that the petitioners have not approached this court with clean hands, rather concealed the material facts. In fact, 'Roka' ceremony was performed on 14.01.2008 at Hotel Friends Residency, Ludhiana, marriage was solemnized on 29.11.2008 at Club Nirvana, Ludhiana and reception was celebrated at Blessing Resorts, Pakhowal Road, Ludhiana on 03.12.2008, as is evident from Annexures R-1 to R-9. The marriage ceremony performed in Australia was a mere formality. Learned senior counsel further contended that cruelty is a continuous process. Petitioner no.2 got the alleged writing under duress taking the advantage of the fact that respondent no.2 was new in Australia and her signatures were obtained on blank papers on various grounds which respondent no.2 had bonafidely believed to be true. When the differences arose between the couple, petitioner no.2 had misused those papers. Learned senior counsel further contended that as per the customary practice, delivery of first child generally takes place at the parental home of girl and on this account, respondent no.2 came to India, but petitioner no.2 misused the blank signed papers and also got her writing under duress. The alleged compromise was also got signed under undue pressure as otherwise she would have to stay out in the night in a foreign country. PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -10- CRM-M-15583-2012 Since marriage was performed in India, the police authorities and the Court in India have jurisdiction to inquire into and try the case.
I have considered the rival contentions of learned counsel for the parties.
In the last few decades, there is a rapid increase in NRI marriages due to the increased migration of Indians abroad. However, many of the marriages are conducted in haste or without verifying the antecedents of the groom properly. In the present case, marriage between the couple was a love-cum-arranged marriage as they were known to each other being classmates. The solemnization of marriage appears to be a pre-decision taken by the couple which was subsequently converted into arranged marriage, meaning thereby petitioner no.2 and respondent no.2 got married according to their own wishes. The 'Roka' ceremony was performed on 14.01.2008 at Hotel Friends Residency, Ludhiana, marriage was solemnized on 29.11.2008 at Club Nirvana, Ludhiana, reception was celebrated at Blessing Resorts, Pakhowal Road, Ludhiana on 03.12.2008, the couple left for Australia on 12.12.2008 where some ceremony in the nature of marriage was performed on 31.12.2008 as well for the purpose of registration of marriage in Australia. The argument of learned senior counsel for the petitioners that everything has happened in Australia, FIR cannot be registered and investigated in India, is devoid of merit. Sections 178 (b) and (c), 179 and 181(4) Cr.P.C are reproduced herein below:
PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -11-
CRM-M-15583-2012 "178. Place of inquiry or trial.--
(a) xxx xxx xxx
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or......
179. Offence triable where act is done or consequence ensues.-When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
181. Place of trial in case of certain offences-
xxx xxx xxx
4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person." On reading of the relevant provisions of Cr. P.C. cited above, I am of the view that though Section 177 Cr P.C. states that every offence shall ordinarily be enquired into and tried by a court within whose local jurisdiction it was committed, Sections 178 (c) and 179 of Cr. P.C. make it clear that the court within whose local jurisdiction the consequences of the acts complained of have ensued, also has the territorial jurisdiction to enquire into and try the case.
It is relevant to note here that from Sections 4 and 188 of the Criminal Procedure Code it is clear that even if the offence is PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -12- CRM-M-15583-2012 committed by a citizen of India outside the country the same is subject to the jurisdiction of courts in India.
The Supreme Court in A.V. Mohan Rao and Another v. M. Kishan Rao and Another (2002) 6 SCC 174 has held as under:-
"Reading of the complaint petition and the materials produced by the complainant with it in the light of provisions in the aforementioned sections it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since any observation in that regard may effect one party or the other. The allegations made are serious in nature and relate to the power company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis. It is relevant to note here that from Sections 4 and 188 of the Criminal Procedure Code it is clear that even if the offence is committed by a citizen of India outside the county the same is subject to the jurisdiction of courts in India. [See Central Bank of India Ltd. v. , Mobarik Ali Ahmed v. The State of Bombay, and Ajay Aggarwal v. Union of PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -13- CRM-M-15583-2012 India.The Supreme Court in the case of Thota Venkateswerlu Versus State of A.P. (2011)9 SCC 527 held that for offences committed out side India and within India requirement of previous sanction of Central Government for inquiring into or trying such offences in India, however, such fetters are imposed only when stage of trial is reached, which clearly indicates that no sanction is required till commencement of trial - Accordingly, up to stage of taking cognizance, no previous sanction would be required from Central Government in terms of S. 188 proviso -
However, trial cannot proceed beyond cognizance stage without such previous sanction - Therefore, Magistrate is free to proceed against accused in respect of offences committed in India and to complete trial and pass judgment therein,without being inhibited by other offences committed outside India, for which sanction would be required before trial can commence."
The Hon'ble Supreme Court in Thota Venkateswarlu vs. State of A.P. Tr. Princl. Section and another 2011 AIR (SC) 2900 has held in para nos.10 and 11 as under:
"10. The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal's case (supra), it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -14- CRM-M-15583-2012 cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M. Sahai, J., observed 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."
Although the decision in Ajay Aggarwal's case (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188 Cr.P.C. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.
11. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -15- CRM-M-15583-2012 free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required."
The Supreme Court in Lee Kun Hee, President, Samsung Corporation, South Korea and others v. State of Uttar Pradesh and others (2012) 3 SCC 132 has held as under:-
"32...............In Section 179 aforesaid, two phrases need to be noticed: firstly, "anything which has been done", with reference to the offence; and secondly, "consequence which has ensued", also with reference to the offence. Both the aforesaid phrases substantially enlarge and magnify the scope of jurisdiction contemplated under Section 179 aforesaid, so as to extend the same over areas contemplated by the two phrases.
33. Insofar as the present controversy is concerned, the offence(s) alleged in the complaint emerge from the fact, that even though the complainant faithfully performed its obligations under the agreement/contract dated 1-12-2001, the accused dishonestly/fraudulently/falsely denied/avoided the reciprocal obligation(s) which they were obliged to perform thereunder. In our view, the words "anything which has been done", for the present controversy, would extend to anything which has been done in furtherance of the execution of the agreement dated 1- 12-2001. The facts constituting the performance of obligations by the complainant actually constitute the foundational basis for the criminal accusation levelled PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -16- CRM-M-15583-2012 against the accused (in refusing to honour the corresponding obligation). The instant foundational basis for establishing the commission of the offence, in our view, would fall within the ambit of the words "anything which has been done" used in the aforesaid provision. In the absence of the instant affirmation of the factual position, in the present controversy, the culpability of the accused cannot be established.
34. In the complaint it is asserted that the contracted goods/product were/was supplied by JCE Consultancy from Ghaziabad in India. The factum of having supplied the goods/product to Samsung, Dubai through Sky Impex Ltd., is sought to be established not only through a delivery receipt dated 28-1-2002 (issued by the intermediary buyer, Sky Impex Ltd.), but also, on the basis of the bill of exchange executed on 1-2-2002 by Samsung, Dubai (the ultimate beneficiary) constituting the payment for the goods/product purchased. The factum of supply of goods from Ghaziabad (in India) to Dubai (in the United Arab Emirates), as an essential component of the offence(s) allegedly committed by the accused, in our view, is relatable to the words "anything which has been done" used in Section 179 aforesaid. This factual position, in our view, is sufficient to vest jurisdiction under Section 179 of the Code of Criminal Procedure with a competent court at Ghaziabad.
35. Besides the aforesaid, under Section 179 of the Code of Criminal Procedure, even the place(s) wherein the consequence (of the criminal act) "ensues", would be relevant to determine the court of competent jurisdiction. Therefore, even the courts within whose local jurisdiction the repercussion/effect of the criminal PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -17- CRM-M-15583-2012 act occurs would have jurisdiction in the matter."
On a reading of the FIR, I find that due to the consequences of the acts complained of under section 406 & 498A IPC, the complainant had not only to leave her matrimonial home in Australia but had also to take refuge in her parental house in Ludhiana. As a consequence of the alleged acts of dowry and cruelty, the alleged offences have ensued in Ludhiana. Moreover, contention of learned senior counsel for the petitioners is not sustainable on the ground that actual marriage was performed in India and jurisdiction will not be ousted simply on the ground that second time marriage ceremony was performed in Australia.The ceremony in Australia was merely a formality in addition to the marriage solemnized in India. These offences can be investigated , inquired into, tried, and otherwise dealt with within India. Consequently, in my view the plea of territorial jurisdiction raised by the petitioner's counsel at this stage is both misconceived on facts and untenable in law.
So far as the case of petitioner no.1 is concerned, there are no specific allegations of harassment and entrustment of any dowry articles. The alleged articles which are mentioned in the FIR do not fall within the definition of Istridhan but the same are customary gifts given to the family members and relations of the groom at the time of marriage. It is an admitted fact that respondent no.2 had only stayed for 13 days with petitioner no.1. Thereafter, respondent no.2 stayed either in Australia or in India with her parents. As such, this Court is of the view PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -18- CRM-M-15583-2012 that no offence of cruelty and entrustment of 'Istridhan' is made out against petitioner no.1 and FIR in question is hereby quashed qua petitioner no.1.
So far as the case of petitioner no.2 is concerned, it has come on record that petitioner no.2 has given a writing that he does not want to have relationship with respondent no.2 and their son. It is seen that a husband who is based abroad, intends to take advantage of the bride being away from her parents and relatives. When the parties are in love prior to marriage and groom is abroad, generally rosy and misleading pictures about income and status of the groom are projected which leads the bride and her parents to dream of a garden path. Once the parties are married, situation is changed. When respondent no.2 reached Australia with petitioner no.2, she met with the same fate unfortunately and found that he had no independent accommodation and was sharing a small accommodation with his friend, who was unmarried and she had to stay in the said accommodation. The conduct of petitioner no.2 shows that he has adopted the living style of western society and perhaps has enjoyed three sets of culture i.e. Indian, Western and Indian- Western. In the Indian-Western culture, marriage is no longer considered sacrament and in absence of any law relating to the marriages with NRIs which are performed in India and also abroad, such international marriages lead to many problems. The glamour and better life expectations fade away within no time. The plea of petitioners that PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -19- CRM-M-15583-2012 divorce has been granted by the Court in Australia and reference made to various other documents which are alleged to have been executed in the Court in Australia need to be considered keeping in view the fact that when respondent no.2 had gone abroad, petitioner no.2-husband tended to abuse, maltreat and put many types of pressures upon her so that she may remain under his pressure or may not object to his luxurious or western lifestyle. Just to exhaust respondent no.2-wife, petitioner no.2 adopted various methods. Petitioner no.2 divorced respondent no.2 by taking advantage of lenient laws applicable in foreign country to obtain ex parte decree. No marriage between an NRI and an Indian woman which has taken place in India can be annulled by a foreign court. The divorce in western countries is literally at the tip of the fingers, an easy and flippant as sending an sms. Now-a-days, it is said that 'NRIs' do not represent 'Non-Resident Indians' specifically in the matter of marriage, rather represent 'Non-Responsible Indians' or 'Non-Reliable Indians'. In absence of laws relating to international marriages, multi-jurisdictional avenues are available for divorce. In foreign countries and in India also, if a wife happens to file a case, the husband based abroad will tend to exhaust her by prolonging the litigation and ultimately compelling her to enter into a settlement which is, in fact, not amicable one, but a compromise on account of continuous mental torture, harassment and ordeal of cumbersome court procedure.
The contention raised by learned senior counsel for the PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -20- CRM-M-15583-2012 petitioners that present FIR is a counter-blast to the divorce granted in favour of petitioner no.2 and against respondent no.2-complainant by the Australian Court on 03.04.2012 is not sustainable as much prior to that respondent no.2 sent legal notice dated 13.09.2011 to petitioner no.2 with regard to maltreatment given to her. Moreover, the FIR has been registered on 21.03.2012 i.e. 11 days much prior to passing of the divorce decree. In Satya vs. Teja Singh 1975 AIR (SC) 105, the Hon'ble Supreme Court held as under:
"49. Section 13(a) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except "where it has not been pronounced by a court of competent jurisdiction." Learned counsel for the respondent urged that this provision occurring in the Civil Procedure Code cannot govern criminal proceedings and therefore the want of jurisdiction in the Nevada court to pass the decree of divorce can be no answer to an application for maintenance under Section 488, Criminal Procedure Code. This argument is misconceived. The judgment of the Nevada court was rendered in a civil proceeding and therefore its validity in India must be determined on the terms of Section 13. It is beside the point that the validity of that judgment is questioned in a criminal court and not in a civil court. If the judgment falls under any of the clauses (a) to (e) of Section 13, it will cease to be conclusive as to any matter thereby adjudicated upon. The judgment will then be open to a collateral attack on the grounds mentioned in the five clauses of Section 13.
50. Under Section 13(e), Civil Procedure Code, PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -21- CRM-M-15583-2012 the foreign judgment is open to challenge "where it has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored and his allegation that he and his wife "have lived separate and apart for more than three (3) consecutive years without cohabitation and that there is no possibility of a reconciliation" maybe assumed to be true. But fraud as to the jurisdiction of the Nevada court is a vital consideration in the recognition of the decree passed by that court. It is therefore relevant that the respondent successfully invoked the jurisdiction of the Nevada court by lying to it on jurisdictional facts. In the Duchess of Kingston's Case,(Smith's leading cases, (13th Edn.) ii, 644 at p. 651.) De Grey C. J. explained the nature of fraud in this context in reference to the judgment of a spiritual court. That judgment, said the learned Chief Justice, though res judicata and not impeachable from within, might be impeachable from without. In other words, though it was not permissible to allege that the court was 'mistaken," it was permissible to allege that the court was "misled." The essential distinction thus was between mistake and trickery. The appellant's contention is not directed to showing that the Nevada court was mistaken but to showing that it was imposed upon.
51. Learned counsel for the respondent argued that judgments on status are judgments in rem, that such is the character of Nevada judgment and therefore that judgment is binding on the whole world. Section 41 of the Evidence Act provides, to the extent material, that a final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -22- CRM-M-15583-2012 ceased at the time declared in the judgment for that purpose. But the judgment has to be of a "competent Court" that is, a court having jurisdiction over the parties and the subject-matter. Even a judgment in rem is therefore open to attack on the ground that the court which gave it had no jurisdiction to do so. In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid (1963) 3 SCR 22 at p. 42, this court held that "a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent-' jurisdiction and competence contemplated by Section 13 of the Code of. Civil Procedure is in an international sense and not merely by the law of foreign State in which the Court delivering judgment functions". In fact Section 44 of the Evidence Act gives to any party to a suit or proceeding the right to show that the judgment which is relevant under Section 41 " was delivered by a court not competent to deliver it, or was obtained by fraud or collusion". It is therefore wrong to think that judgments in rem are inviolable. Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam.
52. Unhappily the marriage between the appellant and respondent has to limp. They will be treated as divorced in Nevada but their bond of matrimony will remain unsnapped in India, the country of their domicil. This view it is urged for the respondent will lead to difficulties. It may. But "these rules of private international law are made for men and women - not the other way round - and a nice tidy logical perfection can never be achieved" (Per Denovan L. J. : Formosa v. Formosa, (1962) 3 All England Reporter 419 at p. 424.) PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -23- CRM-M-15583-2012
53. Our legislature ought to find a solution to such schizoid situations as the British Parliament has, to a large extent, done by passing the "Recognition of Divorces and Legal Separations Act, 1971". Perhaps, the International Hague Convention of 1970 which contains a comprehensive scheme for relieving the confusion caused by differing systems of conflict of laws may serve as a model. But any such law shall have to provide for the non-recognition of foreign decrees procured by fraud bearing on jurisdictional facts as also for the non- recognition of decrees, the recognition of which would be contrary to our public policy. Until then the courts shall have to exercise a residual discretion to avoid flagrant injustice for, no rule of private international law could compel a wife to submit to a decree procured by the husband by trickery. Such decrees offend against our notions of substantial justice.
54. In the result we allow the appeal with costs, set aside the judgment of the High Court and restore that of the trial court."
I refrain from discussing the merits of the case further since any observation in that regard may effect adversely one party or the other. There is sufficient material on record to show that petitioner no.2 has laid the foundation of this petition on falsehood. He has intentionally not disclosed the true facts specifically with regard to the solemnization of marriage and reception hosted in India. Besides this, petitioner no.2 has not come to India to put forth his view before the investigating agency and sought quashing through his power of attorney. PARVEEN KUMAR 2014.10.10 13:31 I attest to the accuracy and authenticity of this document -24- CRM-M-15583-2012 Although, case law is on both the sides, but it is settled principle of law that the accused must submit to the process of law and explain his stand before the investigating agency or the competent court. The cruelty is a continuous process and respondent no.2 was subjected to cruelty both in India as well as in Australia by petitioner no.2. The marriage was performed in India and the mental harassment and torture on respondent no.2 had continued during the stay with her parents in India. There are specific allegations against petitioner no.2 of harassment, cruelty, humiliation and entrustment of 'Istridhan' which can only be examined after the material is collected by the investigating agency during investigation and FIR qua petitioner no.2 cannot be quashed at the very threshold.
In view of above discussion, instant petition is partly allowed. FIR No.14 dated 21.03.2012, registered at Police Station Women, Ludhiana, under Sections 406 and 498-A IPC along with the consequential proceedings arising therefrom is hereby quashed qua petitioner no.1 only.
However, instant petition is dismissed qua petitioner no.2.
15.09.2014 (Paramjeet Singh)
parveen kumar Judge
PARVEEN KUMAR
2014.10.10 13:31
I attest to the accuracy and
authenticity of this document