Crl. M.C.No. 1058/2009

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Crl. M.C. No.1058/2009

NATASHA KOHLI

..... Petitioner

Through:

Mr. Siddharth Aggarwal, Ms. Anu

Bagai & Mr. Bhuvan Mishra,

Advocates

versus

MAN MOHAN KOHLI

..... Respondent

Through:

Mr. Harsh Jaidka & Mr. Manoj

Kumar, Advocates

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

1.

Petitioner is the wife of respondent. They had married in

Delhi in November, 1994 according to Hindu rites and ceremonies.

In January, 2007 respondent had purportedly learnt that petitioner's

marriage with Mr. Boccagna in Florida, USA is still subsisting,

which led to filing of a criminal complaint under Sections

494/495/420 of the IPC (Annexure P-6) by respondent against

petitioner, which was registered as CC No.13/3/8. Petitioner has

been summoned in the above said complaint vide impugned order

of 7^th March, 2009 (Annexure P-9) to face the proceedings under

Sections 494/495 of the IPC.

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2.

In this petition, petitioner-accused seeks quashing of

aforesaid criminal complaint (Annexure P-6) and the summoning

order (Annexure P-9) on the ground that judgment of 28^th April,

2008 (Annexure P-8) of the foreign Court annulling petitioner's

first marriage ab initio has been over looked by the trial court.

3.

Learned counsel for petitioner while relying upon decisions

in Mohanmurari Vs. Kusumkumari AIR 1965 MP 194; Sunder Lal

Chhabi Chatterjee AIR 1967 Patna 277 had contended that

petitioner's first marriage was voidable and upon it being annulled,

it has to be treated as void ab initio and the invalidity of petitioner's

first marriage relates back to the date of marriage. To contend that

a deeming fiction created by Sub-Section 2 of Section 16 of Hindu

Marriage Act recognizes the fact that once a marriage is declared

void under Section 11 or annulled under Section 12 of Hindu

Marriage Act, it relates back to the date of marriage rather being a

termination from the date of decree and in support of this

contention, reliance is placed upon decisions in Maharani

(1991) 4 SCC 582;

Sitaram 2003 (1) SCC 730. To assert that according to Indian as

well as American Law which governs the marriage between the

respondent and her ex-husband Mr. Boccagna, the voidable

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marriage can be annulled ab initio and being judgment in rem, it is

binding on all and sundry, reliance is placed by petitioner's counsel

upon decisions in Farnham Vs. Cora M. Farnham 227 N.Y 155;

Metcalfe Vs. Cutler 52 N.Y. s 2d 71; Sleicher Vs. Sleicher 251

N.Y. 366; Patricia Vs. New York employees 437 N.Y.S. 2d 497

(Supreme Court New York) and Matter of Moncrief 235 N.Y. 390.

4.

According to petitioner's counsel, doctrine of equitable

estoppel contemplates that in matrimonial cases, like the instant

one, where the parties have held themselves out as a married

couple for numerous years and have believed that their marriage is

valid until the day when one of the spouse discovers the invalidity,

in such a case Courts have estopped the spouse from raising the

question of validity of the marriage. In support of this contention,

reliance is placed upon decisions in Lambertini Vs. Lambertini, 655

Donna Farnham 2009n App. LEXIS 883. For contending that

respondent is not the aggrieved person for the purpose of Section

494 or Section 495 of the IPC, petitioner's counsel places reliance

upon decisions in Ms. Herculano Coelho Vs. Mrs. Antonia

Ravinder Singh Dhillon Vs. Mukhtiar Singh Dhillon, II (1996)

DMC 120 (DB).

5.

Petitioner's counsel had also relied upon decision in Kochu

Muhmmad Kunju Ismail Vs. Mohmmad Kadeja Umma, AIR 1959

Ker 151 to contend that if a person charged with bigamy believed

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that he was free to marry again, then the question whether the

belief was unreasonabl