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2011 (6) Supreme 181
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Inderjit Singh Grewal — Appellant
versus
State of Punjab & Anr. — Respondents
Criminal Appeal No. 1635 of 2011
(Arising out of SLP(Crl.) No. 7787 of 2010)
Decided on : 23-8-2011
Facts of the Case :
Marriage herein in the instant case was dissolved between parties by mutual consent. A Complaint was filed by respondent 2 wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 alleging that decree of divorce obtained by them was a sham transaction and that Even after getting divorce, both of them had been living together as husband and wife. Respondent 2 alleged that since she was forced to leave the matrimonial home she prayed for justice. An Order was passed by Magistrate issuing summons against appellant. Petition thereagainst under section 482 of Criminal Procedure Code,1973was dismissed by High Court.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
Respondent 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. The statements/allegations made by respondent 2 patently and latently involved her in the alleged fraud committed upon court. Thus, she made herself disentitled for any equitable relief. Permitting the Magistrate to proceed further with complaint under provisions of the Act 2005 was not compatible and in consonance with the decree of divorce which still subsisted .Process amounts to abuse of process of the court. Impugned judgment of High Court was set aside. Petition filed by appellant under Section 482 Cr.P.C. was allowed. Appeal was allowed.
Key Points: - The judgment holds that a decree of divorce obtained by mutual consent cannot be declared null and void in collateral (criminal) proceedings; such declaration must be obtained from the competent civil court (!) , (!) , (!) . - The High Court’s dismissal of the Section 482 Cr.P.C. petition was set aside; quashing of the complaint under the Protection of Women from Domestic Violence Act is permitted when proceeding would be incompatible with a subsisting civil decree (!) , (!) , (!) . - Respondent 2 was found to be party to the alleged fraud and disentitled to equitable relief; aiding or abetting fraud affects proportional relief sought in related proceedings (!) , (!) . - The Court emphasized that even void orders/decrees cannot be collaterally proclaimed void without setting them aside in the appropriate forum; a void order may still require a competent court to declare it void in appropriate proceedings (!) , (!) . - The appellate court permitted quashing of the criminal complaint when continuation would amount to abuse of process and contradict a subsisting divorce decree (!) , (!) . - The judgment clarifies that the criminal court cannot sit in appeal against a civil court’s judgment/decree, especially across territorial lines, while such civil decree subsists (!) , (!) .
JUDGMENT
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 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 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 d
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