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2008 DIGILAW 1175 (DEL)

Rajeev Mehta v. Government of NCT of Delhi

2008-12-17

H.R.MALHOTRA

body2008
H.R. Malhotra, J. 1. This is a petition filed by the petitioners under Section 482 of Code of Criminal Procedure seeking quashing of F.I.R. No. 169 of 2002 filed by respondent No.2 under Sections 498-A/406 IPC, Police Station Nizamuddin, New Delhi. There are, in fact, two petitions filed by the four petitioners. One composite petition being petition No. 641 of 2003 filed by three petitioners, i.e., husband of respondent No.2 as petitioner No.1, mother-in-law and sister-in-law of respondent No.2 being petitioner Nos.2 & 3 respectively. Another connected petition is filed by Ranjana Sehgal being Criminal M.C. No. 1757 of 2008. She is sister-in-law of respondent No.2. These two petitions being of similar nature, arising out of same F.I.R. are being disposed of together. 2. Facts as set out in this petition are that petitioner No. 1 and respondent No.2 got married in New Delhi on 9.10.1994. Since petitioner No.1 and respondent No.2 were bona fide resident of United States of America as such both contracted marriage under laws of U.S.A. on 21.10.1994 and as such parties were subjected to the laws of U.S.A., they being resident of U.S.A. even before solemnization of their marriage and as such were governed by the laws applicable in U.S.A. From this wedlock two children were born, namely, Meghan Mehta and Serena Mehta. 3. Since relations between the parties became strained, as such petitioner No.1 filed a petition seeking custody of minor children and also filed a petition seeking dissolution of marriage by a decree of divorce in U.S.A. 4. Similarly, respondent No.2 also filed cases against petitioner No.1 in U.S.A. Respondent No.2 contested the custody matter as well as divorce petition and also filed counter claims in U.S.A. courts. However, in October, 2001, respondent No.2 approached petitioner No.1 for making an amicable settlement and requested him to allow her to take the children to India for meeting their ailing grandparents. 5. Since matter regarding custody of the children was pending in U.S. courts as such petitioner No.1 was persuaded to give his consent to take the children out of joint custody for three weeks. 6. Respondent No.2 came to India along with minor children but did not return to U.S. and thus, illegally retained the custody of the children with her in India. She also filed a petition for divorce against petitioner No.1 in India. 7. 6. Respondent No.2 came to India along with minor children but did not return to U.S. and thus, illegally retained the custody of the children with her in India. She also filed a petition for divorce against petitioner No.1 in India. 7. Since divorce petition was already pending in U.S. court, parties being U.S. citizens, the U.S. court revived the said petition and issued a notice to respondent No.2 but she did not appear and finally the judgment was pronounced allowing the petition of petitioner No. 1 and thus the marriage was dissolved between the parties by decree of divorce on the ground of cruelty on 28.2.2002. Similarly, counter claim filed by respondent No. 2 was also dismissed and custody of both the minor daughters was awarded to petitioner No. 1. 8. Since respondent No.2 did not return to U.S. despite having given undertaking to court that she would bring her children back to U.S. as such, U.S. court ordered warrants of arrest against respondent No.2 for the purposes of production of children in U.S. 9. It is the case of the petitioner that with a view to stall the proceedings in U.S. courts, respondent No. 2 lodged an F.I.R. in question on 5.4.2002 against petitioner Nos.1, 2 and 3 and also against petitioner in Criminal M.C. No. 1757 of 2008. 10. Learned senior counsel appearing for the petitioners urged that since the marriage between the parties already stood dissolved by way of divorce decree granted by U.S. court on 28.2.2002 and relationship between the husband and wife ceased to exist between the two as such, according to him provisions of Section 498-A Cr.P.C. cannot be attracted in this case as the petitioner ceased to be her husband after a decree of divorce was passed by U.S. courts. According to learned counsel for the petitioners, the said F.I.R. is, therefore, an abuse of the process of law and is liable to be quashed on this ground alone. He further urged that the accusations made in the F.I.R. are completely in contrast with the allegations made by respondent No.2 in her counter claim for divorce. 11. According to learned counsel for the petitioners, the said F.I.R. is, therefore, an abuse of the process of law and is liable to be quashed on this ground alone. He further urged that the accusations made in the F.I.R. are completely in contrast with the allegations made by respondent No.2 in her counter claim for divorce. 11. Learned senior counsel appearing for the petitioners finally urged that there is no substance in the F.I.R. lodged against the petitioners by respondent No.2 and that the provisions of Section 498-A are not applicable to the present case, there being no relationship of husband and wife between petitioner No.1 and respondent No.2. 12. On the other hand, learned counsel for respondent No.2 urged that accusations made in the F.I.R. make out a case against the petitioners under Section 498-A/406 IPC and that matter needs to be tried further in order to ascertain the truth. He further urged that the scope of powers vested under Section 482 of Criminal Procedure Code are quite limited and, therefore, it has to be exercised consciously. He urged so on the strength of the judgment rendered by the Supreme Court in the case of State of Orissa and Another v. Saroj Kumar Sahoo, (2006) 2 SCC (Criminal) 272. 13. Learned counsel for the respondent in order to show that F.I.R. cannot be quashed at this juncture, drew my attention to the statement of the complainant/respondent No.2 made before the police and further stated that though the complaint was filed by respondent No.2 on 14.2.2002 but the F.I.R. was registered on 5.4.2002 and, therefore, it was wrong to say that having come to know about the ex-parte order granting divorce, the complainant lodged the present F.I.R. It is further contended that the ex-parte order dated 28.2.2002 passed by U.S.A. Court granting ex-parte decree of divorce is not enforceable in law as it is in violation of Section 13 (d) of Code of Civil Procedure. Finally, it was urged that F.I.R. lodged at the instance of respondent No.2 contained ample material necessitating the invocation of provisions of Section 498-A IPC. 14. I have heard learned counsel appearing for the petitioners as also learned counsel for respondent No.2 besides the Prosecutor for the State. 15. Finally, it was urged that F.I.R. lodged at the instance of respondent No.2 contained ample material necessitating the invocation of provisions of Section 498-A IPC. 14. I have heard learned counsel appearing for the petitioners as also learned counsel for respondent No.2 besides the Prosecutor for the State. 15. True, powers given under Section 482 Cr.P.C. needs to be exercised consciously as powers granted under such provisions are very wide and as such courts are required to be careful to ensure that it is used in right perspective but simultaneously the courts are also under bounder duty to find out if F.I.R. and other material collected by the investigators during investigation really makes out a case for bringing the wrong doers in clock. There is also no denial of legal position that it is the material collected during investigation which needs to be looked into alone and not the defence of the accused at the initial stage. 16. To sum up, courts while dealing with the provisions of Section 482 Cr.P.C. has to balance the equity, good conscious and justice and for that, court has to look into the material available on record including the First Information Report. 17. The first and foremost ingredient to attract provisions of Section 498-A is that the complainant must be the wife and the person complained against should be her husband or his relatives as the case may be. To put the law into motion, the complainant has to assert that she is the wife of the person complained against. In the instance case, there exist a decree of divorce against respondent No.2. which has attained finality. No material has been placed on record to show if the decree of divorce granted by U.S. Court has been altered or set aside, therefore, this court takes that on the day she made a complaint against the petitioners in Delhi, she was not the wife of petitioner No.1 as marriage had stood dissolved between the parties by a decree of divorce on 28.2.2002. It may be relevant to mention here that though she had filed counter claim before U.S. Court against the petitioners for divorce but those counter claims also stood dismissed on the same date, therefore, for all purposes, the sacred relationship between the two severed because of decree of divorce granted by U.S. Court. It may be relevant to mention here that though she had filed counter claim before U.S. Court against the petitioners for divorce but those counter claims also stood dismissed on the same date, therefore, for all purposes, the sacred relationship between the two severed because of decree of divorce granted by U.S. Court. If that is so, Section 498-A would have no applicability and putting the petitioners to trial shall be to their detriment and against the provisions of Section 498-A IPC. Even otherwise, counter claims filed by respondent No.2 in U.S. Court are totally different than what she alleged in her complaint made under Section 498-A, therefore, accusations made by her in the complaint are to be termed as afterthought. 18. In view of what has been discussed above, I am of the opinion that the present F.I.R. was lodged simply with a view to harass the petitioners to compel them to scum to her pressures and also with a view to prevent the petitioners from taking any further steps for the custody of minor children. The F.I.R. is also liable to be quashed on the ground that provisions of Section 498-A Cr.P.C, could not have been made applicable in the present case because of their being no relationship of husband and wife between petitioner No.1 and respondent No.2 because of decree of divorce granted by the U.S. courts of which both the parties were citizens and thus, governed by U.S. laws. The accusations made in the F.I.R. are also inconsistent to the counter claims filed by the petitioners in U.S. courts and as such the averments made in the F.I.R. are nothing but mere afterthought. 19. The F.I.R. lodged by respondent No.2 on 5.4.2002 is also barred by limitation as accusations made in the F.I.R. relate to the years between 1994 and 1997 whereas F.I.R. was made in the year 2002. For all these reasons, F.I.R. bearing No. 169 of 2002 against all the petitioners is liable to be quashed, same being devoid of any substance. Accordingly, F.I.R. No. 169 of 2002 is ordered to be quashed resulting in acceptance of both the petitions.