A party who obtained a foreign divorce decree cannot challenge it and charge the other party with related offences under the Indian Penal Code.

RAJIV SAHAI ENDLAW, J.

1. This petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence under Section 120-B read with Section 494 and Section 498A of the Indian Penal Code (IPC). This petition was listed before the learned Single Judge on 10.12.2010 when the petitioner appearing in person sought adjournment. The petitioner had also filed LPA No.64/2009 and contempt case No.C-386/2010. The petitioner on 03.05.2011, while appearing before the Division Bench in LPA No.64/2009 sought consolidation of the contempt petition as well this petition with the LPA and the matter was accordingly placed before Hon’ble the Chief Justice who vide order dated 22.05.2011 directed that the contempt petition as well as this petition be placed before the same Division Bench before which the LPA was pending. It is for this reason that the matter is before us. We may also notice that though the LPA and the contempt petition have since been disposed of but the petitioner appearing in person stated that rather than sending back this petition to the learned Single Judge, we only should hear the same. In view of the said request and for the reason that by doing so, the petitioner is not being deprived of any remedy had the matter been considered by the learned Single Judge, we proceeded to hear the petitioner. The petitioner sought and was granted liberty to file written arguments which have also been filed.

2. The learned Metropolitan Magistrate after recording the statements of the petitioner and her witnesses held no case for summoning of the accused / respondent to have been made out for the reason of the petitioner herself having obtained decree of dissolution of her marriage with the respondent from the Court in U.K. and the respondent having so ceased to be the husband of the petitioner there being no question of his being guilty of the offence of bigamy under Section 494 of the IPC or of causing cruelty to the petitioner as wife under Section 498-A of the IPC. Qua the offence under Section 498-A of the IPC, reliance was also placed on the status report submitted by the police and on the petitioner having failed to make out any case of cruelty.

3. The argument of the petitioner before us, orally as well as in writing, is that the divorce decree obtained by her in U.K. being not a valid decree and hence not bringing to an end the relationship of husband and wife between the petitioner and the respondent. Reliance in this regard is placed on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The Supreme Court in both Smt. Satya and Y. Narasimha Rao (supra) was faced with a situation of the husband setting up a decree of a foreign Court of dissolution of marriage as a defence to the claim / charge of the wife in the Indian Courts for maintenance or of bigamy. In both cases, the husband was found to have obtained the decree of foreign Court fraudulently.

4. The situation here is however converse. It is the petitioner herself who had obtained the decree from the foreign Court of dissolution of marriage and who now wants our Courts to ignore the same. Obviously, no case of the foreign decree having been obtained fraudulently can be said to exist in this scenario. Rather the said foreign decree was at the sole initiative of the petitioner with the respondent having no role in the same and having not even contested the same. The question which arises is, can the petitioner, who by obtaining the said decree led the respondent to believe that his marriage with the petitioner stood dissolved and that he was free to remarry, can now be permitted to challenge the foreign decree obtained herself and charge the respondent with t