LAW FOR ALL

Code of Criminal Procedure, 1973 - s. 482 - Parties obtained decree of divorce by mutual consent - Complaint filed by wife before the police under the Protection of Women from Domestic Violence Act, 2005 that the divorce decree was sham - Subsequently, criminal complaint also filed under the 2005 Act before another district - Meanwhile husband filed an application u/s. 482 Cr.P.C. for quashing the complaint - Subsequently, wife filed a civil suit for declaration that decree for divorce was null and void as it was obtained by fraud - During pendency, application by wife for grant of custody of minor child as also FIR lodged u/ss. 406, 376 and 120-B IPC - Application filed u/s. 482 for quashing the complaint dismissed by the High Court - On appeal, held: Wife herself had been a party to the alleged fraud committed by the husband upon the civil court for getting the decree of divorce and asked the criminal court to sit in appeal against the judgment and decree of the competent civil court - Complaint was filed before the Magistrate, Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of another district - It cannot be understood as under what circumstances a subordinate criminal court can sit in appeal against the judgment and order of the superior civil court, having a different territorial jurisdiction - Decree of civil court for divorce still subsists - Suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court - Permitting the Magistrate to proceed further with the complaint under the 2005 Act is not compatible and in consonance with the decree of divorce which still subsists - It amounts to abuse of the process of the court - Impugned judgment and order is set aside - Complaint pending before the Magistrate, Jalandhar and all orders passed therein are quashed - Protection of Women from Domestic Violence Act, 2005. Judgment/Order - Order obtained by making misrepresentation or playing fraud upon the competent authority - Sustainability of - Held: Such order cannot be sustained in the eyes of the law as fraud unravels everything - Fraud and justice never dwell together. Judgment/Order - Setting aside of an order/decree, even if void or void ab initio - Held: Declaration has to be obtained from the competent court - It cannot be obtained in collateral proceedings. Word and Phrases - Fraud - Meaning of. Maxims - Allegans suam turpetudinem non est audiendus - Held: Person alleging his own infamy cannot be heard at any forum. The marriage of appellant-husband and respondent No. 2-wife was dissolved by mutual consent. Thereafter, respondent No. 2 filed a complaint before the police against the appellant under the Protection of Women from Domestic Violence Act, 2005 alleging that the decree of divorce obtained by them was a sham transaction since even after divorce, both of them had been living together as husband and wife. In the enquiry conducted and the legal opinion sought it was opined that no case was made out against the appellant. Subsequently, respondent No. 2 filed a complaint under the 2005 Act and the Magistrate summoned the minor child of the parties for counselling. Aggrieved, the appellant filed an application u/s. 482 Cr.P.C. for quashing the said complaint. Meanwhile, respondent No. 2 filed a civil suit seeking declaration that the decree for divorce was null and void as it had been obtained by fraud. During pendency of the suit, respondent No. 2 filed an application for grant of custody and guardianship of the minor child which is pending consideration; and also lodged an FIR u/ss. 406, 376 and 120-B IPC against the appellant and his mother and sister. Thereafter, the High Court dismissed the application filed by the appellant u/s. 482 Cr.P.C. for quashing the complaint. Therefore, the appellant filed the instant appeal. Allowing the appeal, the Court HELD: 1.1 Where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law". "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. "Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine". An act of fraud on court is always viewed seriously. [Para 11] [570-G-H; 571-A-B] Meghmala and Ors. v. G. Narasimha Reddy and Ors. (2010) 8 SCC 383: 2010 (10) SCR 47 - relied on. 1.2 For setting aside such an order, even if void, the party has to approach the appropriate forum. It is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings. [Paras 12 and 14] [571-C-D; 572-C] State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and Ors. AIR 1996 SC 906: 1995 (6) Suppl. SCR 139; Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. AIR 1997 SC 1240: 1997 (2) SCR 152 - relied on. Sultan Sadik v. Sanjay Raj Subba and Ors. AIR 2004 SC 1377: 2004 (1) SCR 82; M. Meenakshi and Ors. v. Metadin Agarwal (dead) by Lrs. and Ors. (2006) 7 SCC 470: 2006 (5) Suppl. SCR 505; Sneh Gupta v. Devi Sarup and Ors. (2009) 6 SCC 194: 2009 (2) SCR 553 - referred to. 1.3 A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim "allegans suam turpetudinem non est audiendus". No one should have an advantage from his own wrong (commondum ex injuria sua memo habere debet). No action arises from an immoral cause (ex turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuria). [Para 15] [572-E-F] 1.4 The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. If more than one person combining both in intent and act, commit an offence jointly, each is guilty, as if he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43 IPC defines illegality. Making false statement on oath before the court is an offence under Section 191 IPC and punishable under Section 193 IPC. [Para 16] [572- G-H; 573-A] Faguna Kanta Nath v. The State of Assam AIR 1959 SC 673: 1959 Suppl. SCR 1; Jamuna Singh v. State of Bihar AIR 1967 SC 553: 1967 SCR 469 - relied on. 2.1 In the instant case, respondent no.2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime and she made herself disentitled for any equitable relief. [Para 15] [572-D-F] 2.2 While granting the decree of divorce, the statement of respondent no.2 had been recorded in the first as well as in the second motion. Period of more than 6 months was given to her to think over the issue. However, she made a similar statement in the second motion as well. As per the statutory requirement, the purpose of second motion after a period of six months is that parties may make further efforts for reconciliation in order to save their marriage. There is also obligation on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bring about a reconciliation between the parties. [Paras 17 and 18] [573-B-C] Jagraj Singh v. Birpal Kaur AIR 2007 SC 2083:2007 (2) SCR 496; Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1304; Hitesh Bhatnagar v. Deepa Bhatnagar AIR 2011 SC 1637- referred to. 2.3 Respondent no.2, who did not change her stand in the second motion and obtained a sham decree of divorce as alleged by her and asked the criminal court to sit in appeal against the judgment and decree of the competent civil court. The complaint was filed before the Magistrate, Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of another district. Therefore, it is beyond imagination as under what circumstances a subordinate criminal court can sit in appeal against the judgment and order of the superior civil court, having a different territorial jurisdiction. [Para 21] [574-G-H; 575-A] 2.4 In the facts and circumstances of the case, the submission made on behalf of respondent No.2 that the judgment and decree of a civil court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by the respondent No.2 to declare the said judgment and decree dated 20.3.2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the civil court subsists. On the similar footing, the submission even after the decree of divorce, they continued to live together as husband and wife and therefore, the complaint under the Act 2005 is maintainable, is not worth acceptance at this stage. [Para 22] [575-B-E] D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469: 2010 (13 ) SCR 706; Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005) 3 SCC 636: 2005 (2 ) SCR 638- Distinguished Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC 2762: 2007 (8) SCR 582; Noida Entrepreneurs Association v. Noida and Ors. (2011) 6 SCC 508 - referred to. 2.5 In the instant case, the parties got married and the decree of civil court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court. Permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has 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 the instant 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] [576-D-E] 2.6 The impugned judgment and order is set aside. Petition filed by the appellant under Section 482 Cr.P.C is allowed. The complaint pending before the Magistrate, Jalandhar and all orders passed therein are quashed. [Para 26] [576-E-F] Case Law Reference: 2010 (10) SCR 47 Relied on Para 11 1995 (6) Suppl. SCR 139 Relied on Para 12 1997 (2) SCR 152 Relied on Para 12 2004 (1) SCR 82 Referred to Para 13 2006 (5) Suppl. SCR 505 Referred to Para 14 2009 (2 ) SCR 553 Referred to Para 14 1959 Suppl. SCR 1 Relied on Para 16 1967 SCR 469 Relied on Para 16 2007 (2) SCR 496 Referred to Para 18 AIR 1992 SC 1304 Referred to Para 19 AIR 2011 SC 1637 Referred to Para 20 2010 (13) SCR 706 Distinguished Para 23 2005 (2) SCR 638 Distinguished Para 23 2007 (8) SCR 582 Referred to Para 24 (2011) 6 SCC 508 Referred to Para 24 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1635 of 2011. From the Judgment & Order dated 09.08.2010 of the High Court of Punjab & Haryana at Chandigarh, in Criminal Misc. No. M-29339 of 2009 (O&M). Ranjit Kumar, Gautam Godara, Ravindra Keshavrao Adsure for the Appellant. Anil Grover, AAG, Manoj Swarup, Ankit Swarup, Preshit Surshe, Rohit Kumar Singh, Kavita Wadia, Noopur Singhal for the Respondents.