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2019 DIGILAW 389 (GUJ)

Deepak Chetandas Mahbubani v. Ritu Ramesh Lakhani

2019-04-11

A.P.THAKER

body2019
JUDGMENT : 1. Rule. Learned advocate Mr. Majmudar waives service of rule on behalf of respondent no.1 and learned APP, Ms. Monali Bhatt waives service of rule on behalf of respondent no.2. 2. By way of this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner seeks to challenge the proceedings filed by respondent under Section 125 of the Code of Criminal Procedure by filing Criminal Application No.369 of 2013 as well as order passed below Exh.6 on 23.4.2014 by the learned Family Court Judge, Vadodara, granting interim maintenance under section 125 of the Code of Criminal Procedure as being illegal, arbitrary, void, suffering from total non-application of mind and bad in law. 3. According to the petitioner, he married with Hiral Mahbubani alias Bharati Thandani and due to incompatibility, out of mutual consent, both were divorced and a divorce decree was passed by learned Family Court at Bengaluru in MC No.17 of 2006. According to him, thereafter the petitioner and respondent met and, after couple of meetings, both agreed to get married. It is contended that as per custom of the community, the maiden name of the respondent was changed to Harshita Mahbubani, after marriage with the petitioner. 3.1 It is contended by the petitioner that he was told by the respondent wife and her parents that respondent was earlier married to one Mr.Viresh Bhagwan Dariyanani in January 2003 in Mumbai and it has been registered at Vadodara with Registrar of Marriages on 31.1.2003 and, thereafter, the respondent lived with her the then husband in Spain. It is also contended that the petitioner was informed that the respondent and the said Viresh Dariyanani got consent divorce and respondent was eligible for the marriage with the petitioner. According to them, thereafter, the petitioner and the respondent got married and wedding ceremony was held at Bengaluru, which was attended by a few hundred people from the petitioner side and only by eight persons from the respondent side, which included parents and brother of the respondent. It is contended that the respondent and her parents reasoned out that the evil eyes of the petitioner and relatives would ruin their daughter’s marriage. He has also contended that entire expenses of the marriage was borne by himself and he has given jewellery worth Rs.25 Lacs to the respondent. It is contended that the respondent and her parents reasoned out that the evil eyes of the petitioner and relatives would ruin their daughter’s marriage. He has also contended that entire expenses of the marriage was borne by himself and he has given jewellery worth Rs.25 Lacs to the respondent. 3.2 It is contended that post-marriage, respondent started residing with the petitioner’s family in their Cox Town house Bengaluru, and for the petitioner it was like living life with different persons altogether. It is also contended that the respondent would always be on the phone with her brother and mother, and the petitioner was surprised by the insistence of the respondent that she be sent to her home town at least once a month. It is also contended that the respondent had made several trips to Vadodara and her behaviour with the members of the family had gone from bad to worse and the respondent had stopped conversing with the petitioner. The respondent had not even allowed the petitioner to get near her. It is also contended that there was a demand made by the father of the petitioner to separate his daughter and the petitioner from the joint family and part with some property to his daughter and there was also demand of money to be advanced for their requirement in Vadodara. According to him, he had no option but to oblige. It is also contended that father of the petitioner parted with his residential property along with a sum of Rs.25 Lacs that were deposited in several installments in ICICI Bank account, which was jointly held by the respondents and her mother and these deposits were made by the petitioner pursuant to the demand made by the father of the respondent. It is also contended that the after the arrival of the respondent in Bengaluru, nothing changed in the life of the petitioner and her mother also arrived in Bengaluru and, thereafter, her father also came to Bengaluru and they were staying in the house of the petitioner and the respondent. It is also contended that the relation between them became strain and that the respondent had filed a complaint for dowry harassment and lodged a complaint being FIR No.122 of 2011 for assault. It is also contended that the relation between them became strain and that the respondent had filed a complaint for dowry harassment and lodged a complaint being FIR No.122 of 2011 for assault. The petitioner also came to know that the respondent had filed several petitions both under the Indian Marriage Laws as well as criminal case under the IPC against her earlier husband Viresh Dariyanani and she had demanded permanent alimony from her earlier husband, which cases are pending and were being proceeded with on regular basis. According to the petitioner, the respondent has approached the Court at Bengaluru by filing C.Petition No.199 of 2011 under the provisions of the Domestic Violence Act, wherein she made a demand of Rs.1 Lac as monthly maintenance and compensation of Rs.1,50,00,000/-. 3.3 It is also contended that on investigation by the petitioner, it was found that she had made gruesome allegations against her earlier husband and his family and had not even spared elderly members of his family. According to him, earlier marriage of the respondent with Mr. Viresh Dariyanani, is still subsisting and yet she got married with the present petitioner. 3.4 It is also contended that in the proceedings under the Domestic Violence Act, the Honourable Court passed the order dismissing the petition filed by the respondent holding that the petitioner has not meted out any domestic violence and it is also held that the respondent is not entitled for any maintenance from the petitioner as she has sufficient source of income and she has Rs.20 Lacs in the fixed deposit in her name. It is contended that the respondent has challenged the same before the Sessions Court, Bengaluru in Criminal Appeal No.671 of 2012. 3.5 He has also contended that on 2.4.2012, he has filed a private complaint before the concerned Court at Bengaluru under various sections of IPC against the present respondent, her father, mother and brother and the same is still pending. He has also contended that when the respondent and her family members have filed Criminal Petition No.2376 of 2012 before the Honourable High Court under Section 482 of the Code of Criminal Procedure, it was dismissed by the Honourable Court on 20.11.2012 and said complaint is still at the stage of investigation. He has also contended that when the respondent and her family members have filed Criminal Petition No.2376 of 2012 before the Honourable High Court under Section 482 of the Code of Criminal Procedure, it was dismissed by the Honourable Court on 20.11.2012 and said complaint is still at the stage of investigation. 3.6 He has also contended that earlier husband of the respondent, Mr.Viresh Dariyanani has filed divorce petition in the Court at Spain, which was allowed and the same was granted by order dated 28.7.2006 and the same has been challenged by the respondent before higher forum by not accepting the same. The respondent has not filed any proceedings before the Court at Vadodara for annulment of her marriage with Mr.Viresh Dariyanani, though the marriage was registered before the Registrar of Marriage, Vadodara, nor she has obtained any divorce decree from the Court at Vadodara. According to him, this means that the marriage of the respondent with her earlier husband, Mr.Viresh Dariyanani is still subsisting and has not been annulled. He has also contended that the respondent has filed maintenance application against Viresh Dariyanani and interim maintenance of Rs.20,000/- has been granted in favour of the respondent. 3.7 He has contended that the respondent has filed the impugned complaint/application under Section 125 of the Code of Criminal Procedure before the trial Court, which is nothing but an abuse of process of law and wherein order of interim maintenance has been passed by the Family Court. According to him, considering the factual aspects of the present case, the criminal proceedings being Criminal Case No.369 of 2018 pending before the Family Court, Vadodara, filed under Section 125 of the Code of Criminal Procedure is required to be set aside and the impugned order passed below Exh.6 on 23.4.2014 by the learned trial Court, Vadodara, is required to be set aside. On all these grounds, he has prayed to allow present application. 4. The respondent no.1, Ritu Lakhani daughter of Ramesh Lakhani w/o Deepak Mahbubani, has filed her affidavit-in-reply, wherein she has denied all the averments and contentions made by the petitioner. On all these grounds, he has prayed to allow present application. 4. The respondent no.1, Ritu Lakhani daughter of Ramesh Lakhani w/o Deepak Mahbubani, has filed her affidavit-in-reply, wherein she has denied all the averments and contentions made by the petitioner. She has contended that the first wife of the petitioner has been inflicted with lot of atrocities and she had been driven out of her matrimonial home by the petitioner and her family and, thereafter, she has filed cases against petitioner as well as as his family for dowry and mental and physical harassment. She has contended that she and her parents had clearly discussed with the petitioner and her family and told them about her first marriage and reason for divorce with her first husband and nature of pending litigation against her husband. She has also stated that in the proceedings before the Family Court regarding domestic violence, the petitioner has himself produced her divorce copy and clearly stated that her first husband successfully obtained divorce in Spain and that she and her parents had told them that she had filed a complaint against her first husband under Section 498 (A), 406, 504, 506 (2) and 114 of IPC and, there are some other incidental cases. She has denied the facts that the petitioner and his family has given jewellery worth Rs.25 Lacs to her. She has also contended that the petitioner herein is flouting the orders of the Honourable Court by avoiding summons and notices, warrants against him to avoid payment of maintenance as ordered by the Family Court at Baroda. She has also contended that the defamatory language used in the petition itself shows the extent to which the petitioner has subjected her to cruelty. She has denied the contention that the divorce decree obtained by her husband in Spain has been challenged by her before higher forum. She has also contended that around the year 2012, the petitioner had closed down his flourishing business named, Mysore Silk Udhyog and had to re-start his retail outlets in different name. She has denied the contention that the divorce decree obtained by her husband in Spain has been challenged by her before higher forum. She has also contended that around the year 2012, the petitioner had closed down his flourishing business named, Mysore Silk Udhyog and had to re-start his retail outlets in different name. She has stated that despite this, the petitioner in his objection to Criminal Application No.369 of 2013 for maintenance dated 6.6.2015 in his affidavit has stated that “the address for the service of summons, notices etc from this Honourable Court to the opponent as stated in the cause title” and that the cause title reads as under:- “Mysore Silk Udyog, No.627/23, S.S.Plaza, 10th “D” Main Road, 30th Cross, IV Block, Bengaluru.” 4.1 According to the respondent, he is willful dodging the honourable Court and he is in habit of lying on oath. She has also submitted that divorce decree, which has been obtained by her husband was very well in the knowledge of the petitioner before marriage. She has also referred to the objections filed by the present petitioner in the matters of Criminal Application No.369 of 2018 to the effect that the petitioner herein has clearly stated that “the applicant is the wife of the opponent who left his company and has filed multiple cases against her ex-husband with whom she has obtained divorce.” While referring to the various litigations and the various aspects, she has contended that the petition deserves to be rejected. 5. Heard learned Senior Counsel, Mr. Manoj Harit with Mr. Nisarg Vyas, learned advocate for the petitioner, Mr. P.P. Majmudar, learned advocate for respondent no.1 and learned APP, Ms. Monali Bhatt for respondent no.2 at length. Perused the papers filed with the petition by both the sides. Perused the decisions cited at bar. 6. Learned Senior Counsel, Mr. Manoj Harit, for the petitioner has vehemently submitted the same facts, which are narrated in the petition. While referring to various documents filed with this petition, the main contention of the learned counsel is that the present application under section 125 filed by the present petitioner is nothing but an abuse of process of law. He has also submitted that the factum of divorce of the respondent with her earlier husband is challenged by the respondent by filing an appeal before the Spain Court. He has also submitted that the factum of divorce of the respondent with her earlier husband is challenged by the respondent by filing an appeal before the Spain Court. He has also contended that the divorce given by the Spain Court cannot be a valid divorce. He has also contended that the Spain Court has no jurisdiction to give divorce as the marriage was solemnized in India and it was registered at Vadodara. According to him, as the marriage was solemnized at Mumbai and registered in Vadodara, either Mumbai or Vadodara Court has jurisdiction to grant divorce to the present respondent from her earlier husband. He has also contended that the respondent is getting maintenance from her earlier husband to the tune of Rs.20,000/- per month. While referring to various documents filed with the petition, he has contended that the respondent herein has got money from the petitioner and has deposited the same in various fixed deposits either in her name or in the name of her mother. He has also contended that while suppressing materials facts, the respondent no.1-wife has filed the impugned application under section 125 of the Code of Criminal Procedure and she has also filed similar complaint against her earlier husband. According to him, the entire conduct of respondent no.1 is nothing but a gross abuse of process of law. While relying on the decision of the Bombay High Court in the case of Shilpa Sachdev v. Anand Sachdev, in a Family Court appeal No.56 of 2016 dated 11.8.2017, he has contended that as there is no legal divorce between respondent no.1 and her earlier husband, the present petitioner cannot be saddled with the liability to pay the amount of maintenance. On all these grounds, he has prayed to allow present petition by quashing the impugned proceedings pending before learned Vadodara Court and also the order passed by learned Court granting interim maintenance in favour of respondent no.1. 7. Per contra, learned advocate Mr. Majmudar for the respondent no.1 has while referring to affidavit-in-reply of respondent no.1 as well as documents filed with the petition stated that whatever arguments advanced on behalf of the petitioner can be advanced before the trial Court. He has also contended that powers under section 482 of the Code of Criminal Procedure is not meant for quashing the matters filed under Section 125 of the Code of Criminal Procedure. He has also contended that powers under section 482 of the Code of Criminal Procedure is not meant for quashing the matters filed under Section 125 of the Code of Criminal Procedure. He has also contended that there are disputed questions of facts, which cannot be decided in a petition under Section 482. He has also drawn the attention of the Court to the initial order wherein notice was issued only for settlement. According to him, in view of this order as settlement could not be arrived at between the parties, the petition is liable to be dismissed only on this sole ground. He has also contended that the present petition is suffering from delay and laches as the petitioner has already submitted to the jurisdiction to the concerned Court. He has also contended that there is no provision in the Code of Criminal Procedure like provision under CPC wherein the Court can entertain plea of rejection of suit at threshold. He has also contended that there is no question of any abuse of process of law by the respondent. He has also contended that the stand taken in the affidavit-in-reply by the respondent has not been challenged by the petitioner by filing rejoinder affidavit. 8. He has also contended that the dispute regarding divorce between respondent no.1 and her earlier husband can be challenged by either of two but present petitioner is third party, and, therefore, he cannot challenge such divorce. He has also contended that the respondent has not filed any appeal against the order of Spain Court granting divorce decree in favour of her earlier husband and she has not claimed any interim maintenance from first husband from the date of marriage with the present petitioner. According to him, the present petition itself is an abuse of process of law and it is an attempt to avoid payment of maintenance granted by the trial Court. He also submitted that this petition may be dismissed with exemplary costs. He has relied upon the decision reported in 2012 JX (SC) 590 in the case of Deoki Panjhiyara v. Shashi Bhushan Narayan Azad. 9. Ms. Monali Bhatt, learned APP for the State has stated that the State is a formal party, however, she has supported the arguments advanced on behalf of respondent no.1-wife. 10. In re-submission, Mr. He has relied upon the decision reported in 2012 JX (SC) 590 in the case of Deoki Panjhiyara v. Shashi Bhushan Narayan Azad. 9. Ms. Monali Bhatt, learned APP for the State has stated that the State is a formal party, however, she has supported the arguments advanced on behalf of respondent no.1-wife. 10. In re-submission, Mr. Manoj Harit, learned Senior Counsel has referred to the contents of FIR lodged by respondent no.1 against her earlier husband to the effect that her signature was obtained on a paper by the earlier husband and it was misused by him for getting divorce. He has contended that in view of this fact present petition should be allowed. 11. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 12. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 13. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 14. Having considered the submissions advanced by learned advocates appearing on both sides and considering the documentary evidence made available before this Court, it appears that there is no dispute as regards following facts:- (i) The petitioner herein is a divorcee. (ii) The respondent no.1 was married earlier with one Viresh Dariyanani and has obtained divorce decree from the Spain Court. Of course, the petitioner has disputed this fact in the present petition. (iii) The present petitioner and respondent no.1 have got married in Bengaluru, and (iv) Respondent no.1 has filed domestic violence application in the Court of Bengaluru, wherein her prayer for maintenance was disallowed but prayer for separate residence was allowed. (v) Against that order appeal is pending before appropriate Court. (vi) Respondent no.1 herein has filed maintenance application and for criminal action against her earlier husband. (vii) Respondent no.1 has filed impugned application under Section 125 of the Criminal Procedure Code for maintenance against present petitioner, wherein order of interim injunction has been passed by the Family Court, Vadodara, and the same is pending. 15. In view of these admitted facts, it appears that the present petitioner has challenged the decree of divorce granted in favour of earlier husband of the present respondent by a Spain Court, on the basis of that as the marriage between respondent no.1 and her earlier husband was solemnized in Mumbai and registered at Vadodara, Spain Court has no jurisdiction to grant divorce decree. It is pertinent to note that grant of divorce decree by Spain Court has not been challenged by the respondent no.1, as stated in the affidavit filed with this matter. The divorce decree between the husband and wife can only be challenged by either of the spouse and no third party can challenge the same. It is pertinent to note that grant of divorce decree by Spain Court has not been challenged by the respondent no.1, as stated in the affidavit filed with this matter. The divorce decree between the husband and wife can only be challenged by either of the spouse and no third party can challenge the same. Therefore, at this point of time, the version of respondent no.1 that her husband has divorced her by decree of Spain Court it has to be believed. 16. Now, under Section 125 of the Code of Criminal Procedure, any wife who is deserted by her husband can claim maintenance against husband. Even divorced wife can also seek maintenance from earlier husband. This is the legal position and for getting benefit thereof, a wife can file petition before appropriate Court. If any application under section 125 of the Code of Criminal Procedure is filed then husband can agitate it and place on record, all his defences that may be available in accordance with law to him. 17. So far as decision relied upon by learned counsel Mr. Manoj Harit for the petitioner are concerned, the same were decided on a totally different facts and are not applicable in the facts of the present case. 18. Now, in this case, whatever submissions are made, during the arguments as well as in the pleadings, are factual aspects, which are required to be proved by leading evidence. At this juncture, those points for which evidence needs to be laid cannot be decided by this Court in a quashing petition and it is open for the petitioner to agitate all the points before the trial Court. 19. In view of these facts, as there is a legal remedy available with the petitioner, present petition is liable to be dismissed and the same is dismissed. Rule is discharged.