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2011 Supreme(UK) 456
2011 (2) N.C.C. 544
SUPREME COURT OF INDIA
P. Sathasivam and Hon’ble Dr. Justice B.S. Chauhan
Criminal Appeal No. 1635 of 2011
INDERJIT SINGH GREWAL – Appellant
Versus
STATE OF PUNJAB & ANR. – Respondents
Decided on : 23.08.2011
For the Respondents:Mr. Anil Grover, AAG, Mr. Manoj Swarup, Mr. Ankit Swarup, Mr. Preshit Surshe, Mr. Rohit Kumar Singh, Ms. Kavita Wadia, Ms. Noopur Singhal, Advocates
Headnote:(A) Protection of Women from Domestic Violence Act, 2005, Sec. 12 , Hindu Marriage Act, 1955, Sec. 13-B and Criminal Procedure Code, 1973, Sec. 482 — Dissolution of marriage granted on 20.3.2008 on statements of both husband & wife recorded by Court in both first and second motions — Complaint dated 4.5.2009 by wife under the 2005 Act — Reliefs sought — (a) Custody of minor child — (b) Right of residence — (c) Restoration of dowry articles — Complainant stated in the complaint that they had obtained dissolution of marriage by playing fraud on the Court — Held — Though allegations of the complaint earlier probed by Senior Superintendent of Police were found to be false — Yet a cognizance taken by the Magistrate — And non-quashing of the complaint by High Court u/Sec. 482 of Criminal Code — No sustainability of — Complaint to be not maintainable and quashed.
(Paras 8, 9 to 16, 25 and 26)
(B) 'Maxims' — (i) A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim "allegans suam turpetudinem non est audiendus" — (ii) No one should have an advantage from his own wrong i.e. commondum ex inujuria sua memo habere debet — (iii) No action arises from an immoral cause i.e. (ex turpi cause non oritur action) — (iv) Damage suffered by consent is not a cause of action i.e. (volenti non fit injuria). (Para 15)
(C) Hindu Marriage Act, 1955, Sec. 13-B, 23(2) — Petition for divorce by mutual consent — Second motion after 6 months — Purpose — That the parties may make further efforts for reconciliation in order to save their marriage — Also, an obligation is on the part of the Court u/Sec. 23(2) of 1955 Act to make every endeavour to bring about a reconciliation between the parties. (Para 18)
(D) Protection of Women from Domestic Violence Act, 2005, Sec. 2(f) — "Domestic relationship" u/S 2(f) of the Act 2005 placing reliance on the referred judgment (2005) 3 SCC 636 — 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. (Para 23)
(E) Criminal Procedure Code, 1973, Sec. 482 — Quashing of criminal complaint — Requirements — Undoubtedly, for quashing a complaint, the court had 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 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)
¼v½ ?kjsyw fgalk ls efgykvksa dh lqj{kk vf/kfu;e] 2005] /kkjk 12] fgUnq fookg vfèkfu;e] 1955] /kkjk 13-B vkSj n.M izfØ;k lafgrk] 1973] /kkjk 482 & fookg foPNsnu fnukad 20-3-2008 ds ifr iRuh nksuksa ds c;kuksa ds vk/kkj ij tks U;k;ky; }kjk ntZ fd;s x;s Fks] LohÑr fd;k tk pqdk Fkk & lu~ 2005 ds vf/kfu;e ds rgr iRuh }kjk ,d f'kdk;r fnukad 4-5-2009 dks nk;j dh xbZ ftlesa ekaxs x;s vuqrks"k bl izdkj gSa & (a) cPps dh vfHkj{kk & (b) fuokl dk vf/kdkj & (c) ngst ds lkeku dh okilh vkSj f'kdk;rdrkZ }kjk viuh f'kdk;r esa ;g Hkh dgk x;k fd mu ds }kjk fookg foPNsnu dh dk;Zokgh U;k;ky; esa /kks[kk/kM+h djds lEié djkbZ Fkh & fu.kZ; esa dgk x;k ;|fi f'kdk;r esa yxk;s x;s vkjksi ofj"B iqfyl v/kh{kd }kjk >wBs ik;s x;s Fks rks Hkh n.Mkf/kdkjh }kjk laKku ys fy;k x;k Fkk vkSj /kkjk 482 CrPC ds rgr mPp U;k;ky; }kjk f'kdk;r dk jn~n u fd;k tkuk Hkh bls fVdkÅ ugha cukrk gS & f'kdk;r iks"k.kh; ugha gS tks jn~n dh xbZA
¼izLrj 8] 9 ls 16] 25 ,oa 26½
¼c½ lw= fl)kUr & (i) dksbZ O;fDr viuh nq"dhfrZ dk vkjksi yxkus esa fdlh Hkh U;k;ky; esa ugha lquk tk ldrk tSlk fd fof/k ds lw= fl)kUr esa Li"V fd;k x;k gS ^tks ijLij fojks/kh dFku djrk gS mldh lquokbZ ugha gksxh* & (ii) viuh gh =qfV dk fdlh dks ykHk ugha feyuk pkfg, ^dksbZ O;fDr vius nq"ÑR; dk ykHk ugha mBk ldrk* & (iii) fdlh vuSfrd dkj.k ds vk/kkj ij dksbZ dk;Z ugha fd;k tkrk gS ^fdlh v/ke dk;Z ds vk/kkj ij dksbZ dk;Zokgh ugha gksrh* & (iv) lgefr ds vkèkkj ij gqbZ gkfu okn fcUnq ugha cu ldrhA ¼izLrj 15½
¼l½ fgUnq fookg vf/kfu;e] 1955] /kkjk 13-B, 23(2) & lgefr ds vk/kkj ij fookg foPNsnu dh ;kfpdk & f}rh; frfFk ij ^6 ekg ckn* & bl dk mn~ns'; ;g gS fd i{kdkj le>kSrs dk vkSj iz;kl dj ldrs gSa rkfd mudk fookg cpk jgs & /kkjk 23¼2½ vf/kfu;e] 1955 ds rgr U;k;ky; ds Åij ,d nkf;Ro gS fd og i{kdkjksa ds e/; lqyg djkus dk izR;sd iz;kl djsA ¼izLrj 18½
¼n½ ?kjsyw fgalk ls efgyk dh j{kk vf/kfu;e] 2005] /kkjk 2(f) & ^?kjsyw lEcU/k* èkkjk 2(f) vf/kfu;e 2005 ds rgr (2005) 3 SCC 636 ds fu.kZ; ij vk/kkfjr fu.kZ; esa dgk x;k fd fookg ds :i esa lEcU/k dk rkRi;Z lk/kkj.k dkuwuh fookg tSlk gh gS rFkkfi ;qXe dks lkekftd n`f"V ls vius dks oS/kkfud fookg dh vU; vko';drkvksa dks iwjk djus ds lkFk ifr iRuh ekuuk visf{kr gSA ¼izLrj 23½
¼;½ n.M izfØ;k lafgrk] 1973] /kkjk 482 & QkStnkjh f'kdk;r dks jn~n fd;k tkuk vkSj mldh vko';drk,a & fu%lansg gh f'kdk;r jn~n djus gsrq U;k;ky; dks vius nLrkostksa dks ewY;kadu djus gsrq ysuk Fkk vkSj ;fn muls fdlh vijk/k dk irk pyrk gS rks lk/kkj.kr;k U;k;ky; mlesa gLr{ksi ugha djrk gS rFkkfi og dsl dh foxr okLrfodrk ds vk/kkj ij ;fn f'kdk;r ds vkxs c<+us dh LohÑfr nsrh gS rks og U;k; dk Hkn~nk etkd gksxk & bl izdkj U;k; dk fgr mls jn~n djus esa gSA
¼izLrj 25½
Dr. B.S. Chauhan, J. — 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.l3.2008 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-1, Ludhiana for conducting inquiry. The said SP, City-1 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 da
