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Code of Criminal Procedure, 1973 – s. 482 – Parties obtained decree of divorce by mutual consent – Complaint filed by wife before the police under the Protection of Women from Domestic Violence Act, 2005 that the divorce decree was sham – Subsequently, criminal complaint also filed under the 2005 Act before another district – Meanwhile husband filed an application u/s. 482 Cr.P.C. for quashing the complaint – Subsequently, wife filed a civil suit for declaration that decree for divorce was null and void as it was obtained by fraud – During pendency, application by wife for grant of custody of minor child as also FIR lodged u/ss. 406, 376 and 120-B IPC – Application filed u/s. 482 for quashing the complaint dismissed by the High Court – On appeal, held: Wife herself had been a party to the alleged fraud committed by the husband upon the civil court for getting the decree of divorce and asked the criminal court to sit in appeal against the judgment and decree of the competent civil court – 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 – It cannot be understood 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 – Decree of civil court for divorce still subsists – Suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court – Permitting the Magistrate to proceed further with the complaint under the 2005 Act is not compatible and in consonance with the decree of divorce which still subsists – It amounts to abuse of the process of the court – Impugned judgment and order is set aside – Complaint pending before the Magistrate, Jalandhar and all orders passed therein are quashed – Protection of Women from Domestic Violence Act, 2005. Judgment/Order – Order obtained by making misrepresentation or playing fraud upon the competent authority – Sustainability of – Held: Such order cannot be sustained in the eyes of the law as fraud unravels everything – Fraud and justice never dwell together. Judgment/Order – Setting aside of an order/decree, even if void or void ab initio – Held: Declaration has to be obtained from the competent court – It cannot be obtained in collateral proceedings. Word and Phrases – Fraud – Meaning of. Maxims – Allegans suam turpetudinem non est audiendus – Held: Person alleging his own infamy cannot be heard at any forum. The marriage of appellant-husband and respondent No. 2-wife was dissolved by mutual consent. Thereafter, respondent No. 2 filed a complaint before the police against the appellant under the Protection of Women from Domestic Violence Act, 2005 alleging that the decree of divorce obtained by them was a sham transaction since even after divorce, both of them had been living together as husband and wife. In the enquiry conducted and the legal opinion sought it was opined that no case was made out against the appellant. Subsequently, respondent No. 2 filed a complaint under the 2005 Act and the Magistrate summoned the minor child of the parties for counselling. Aggrieved, the appellant filed an application u/s. 482 Cr.P.C. for quashing the said complaint. Meanwhile, respondent No. 2 filed a civil suit seeking declaration that the decree for divorce was null and void as it had been obtained by fraud. During pendency of the suit, respondent No. 2 filed an application for grant of custody and guardianship of the minor child which is pending consideration; and also lodged an FIR u/ss. 406, 376 and 120-B IPC against the appellant and his mother and sister. Thereafter, the High Court dismissed the application filed by the appellant u/s. 482 Cr.P.C. for quashing the complaint. Therefore, the appellant filed the instant appeal. Allowing the appeal, the Court HELD: 1.1 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”. “Fraud and justice never dwell together” (fraus et jus nunquam 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. [Para 11] [570-G-H; 571-A-B] Meghmala and Ors. v. G. Narasimha Reddy and Ors. (2010) 8 SCC 383: 2010 (10) SCR 47 – relied on. 1.2 For setting aside such an order, even if void, the party has to approach the appropriate forum. 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. [Paras 12 and 14] [571-C-D; 572-C] State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and Ors. AIR 1996 SC 906: 1995 (6) Suppl. SCR 139; Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. AIR 1997 SC 1240: 1997 (2) SCR 152 – relied on. Sultan Sadik v. Sanjay Raj Subba and Ors. AIR 2004 SC 1377: 2004 (1) SCR 82; M. Meenakshi and Ors. v. Metadin Agarwal (dead) by Lrs. and Ors. (2006) 7 SCC 470: 2006 (5) Suppl. SCR 505; Sneh Gupta v. Devi Sarup and Ors. (2009) 6 SCC 194: 2009 (2) SCR 553 – referred to. 1.3 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). [Para 15] [572-E-F] 1.4 The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. 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. [Para 16] [572- G-H; 573-A] Faguna Kanta Nath v. The State of Assam AIR 1959 SC 673: 1959 Suppl. SCR 1; Jamuna Singh v. State of Bihar AIR 1967 SC 553: 1967 SCR 469 – relied on. 2.1 In the instant case, 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. Thus, according to her own admission she herself is an abettor to the crime and she made herself disentitled for any equitable relief. [Para 15] [572-D-F] 2.2 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. 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. 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. [Paras 17 and 18] [573-B-C] Jagraj Singh v. Birpal Kaur AIR 2007 SC 2083:2007 (2) SCR 496; Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1304; Hitesh Bhatnagar v. Deepa Bhatnagar AIR 2011 SC 1637- referred to. 2.3 Respondent no.2, who did not change her stand in the second motion and obtained a sham decree of divorce as alleged by her and 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 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. [Para 21] [574-G-H; 575-A] 2.4 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 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 submission 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. [Para 22] [575-B-E] D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469: 2010 (13 ) SCR 706; Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005) 3 SCC 636: 2005 (2 ) SCR 638- Distinguished Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC 2762: 2007 (8) SCR 582; Noida Entrepreneurs Association v. Noida and Ors. (2011) 6 SCC 508 – referred to. 2.5 In the instant case, the parties got married and the decree of civil court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court. 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 the instant case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same. [Para 25] [576-D-E] 2.6 The impugned judgment and order is set aside. Petition filed by the appellant under Section 482 Cr.P.C is allowed. The complaint pending before the Magistrate, Jalandhar and all orders passed therein are quashed. [Para 26] [576-E-F] Case Law Reference: 2010 (10) SCR 47 Relied on Para 11 1995 (6) Suppl. SCR 139 Relied on Para 12 1997 (2) SCR 152 Relied on Para 12 2004 (1) SCR 82 Referred to Para 13 2006 (5) Suppl. SCR 505 Referred to Para 14 2009 (2 ) SCR 553 Referred to Para 14 1959 Suppl. SCR 1 Relied on Para 16 1967 SCR 469 Relied on Para 16 2007 (2) SCR 496 Referred to Para 18 AIR 1992 SC 1304 Referred to Para 19 AIR 2011 SC 1637 Referred to Para 20 2010 (13) SCR 706 Distinguished Para 23 2005 (2) SCR 638 Distinguished Para 23 2007 (8) SCR 582 Referred to Para 24 (2011) 6 SCC 508 Referred to Para 24 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1635 of 2011. From the Judgment & Order dated 09.08.2010 of the High Court of Punjab & Haryana at Chandigarh, in Criminal Misc. No. M-29339 of 2009 (O&M). Ranjit Kumar, Gautam Godara, Ravindra Keshavrao Adsure for the Appellant. Anil Grover, AAG, Manoj Swarup, Ankit Swarup, Preshit Surshe, Rohit Kumar Singh, Kavita Wadia, Noopur Singhal for the Respondents.

REPORTABLE

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 
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

 

 

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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 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

 

 

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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 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.

 

 

 

4
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 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

 
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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 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.

 
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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.

 
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.”

 
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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:
“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

 
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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.

 

 

9
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

 
1
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 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

 
1
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 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.

 

 

1
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.

 

 

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)

 

 

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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. 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.

 
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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.

 
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

 

 

1
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.

 
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

 
1
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 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

 
1
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 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

 

 

1
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 declare the said judgment and decree as a
nullity is still pending consideration before the competent court.

 

 

1
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

 

 

2
be 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

 

 

2

 

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