Nagpur: A judicial magistrate first class (JMFC) on August 23 rejected police custody remand of Ashwin Ingale underlining violation of supreme court guidelines by Rana Pratap Nagar police in a case registered under Section 498-A of Indian Penal Code (IPC) filed by wife for alleged torture at in-laws place. No notice was also served to Ingale before arrest violating the guidelines laid down by the apex court.
The violation, now on record, may lead to departmental action against the investigating officer apart from a proceedings of contempt of court to be instituted by high court having territorial jurisdiction as per the order issued by the apex court. Apart from Section 498-A of IPC, Ingale was booked along with mother, maternal aunt, sisters and a woman friend under additional charges under Sections 323, 504, 506 and 406 of IPC following a complaint from his wife Rasika on July 23 at Rana Pratap Nagar police station for alleged torture at in-law’s place along with charges of assault, threatening and criminal breach of trust. A woman friend of Ingale was also made an accused as they were thought to be having an illicit relationship.
Ingale was arrested on August 22 from a kin’s place by cops from Rana Pratap Nagar police station. Sources claimed Ingale’s arrest was made under pressure from a top politician. He was produced before a JMFC court by the cops who pleaded for two days of custody till August 25. Police wanted to secure remand custody to recover ‘streedhan’ of the complainant that they had recorded as reason in the document of arrest.
The court, finding the cops’ motive for arrest unjustified, observed that there was no reason ‘concrete and meritorious enough so as to justify the arrest made by the investigation officer in this case’. The court further lambasted the police stating ‘the reasons mentioned by investigation officer are mostly vague, general and cryptic in nature’. The magistrate also observed ‘the investigation officer has not recorded satisfactory reasons in this case before arresting the accused, as has been directed by Hon’ble supreme court in authority of Arnesh Kumar (supra).’ In a similar manner, court also observed that police did not make any ‘serious effort’ to serve the accused notice before arresting him.
Ingale was sent to magisterial custody till August 31. Counsel Sameer Sonwane, representing Ingale, said he would soon file a petition against the police for irregularities
In the High Court of Judicature at Madras Dated 08.07.2013 Coram The Honourable Mr.Justice R.SUBBIAH Criminal Original Petition No.14889 of 2013 Karthick ..Petitioner ..vs.. 1. The Commissioner of Police, Chennai. 2. The Inspector of Police, E-4, Abiramapuram Police Station, Chennai-600 028. ..Respondents Criminal Original Petition filed under section 482 of Criminal Procedure Code, to direct the 2nd respondent to register an FIR on the petitioner's complaint dated 04.02.2013, investigate the same and file a final report in accordance with law. For Petitioner : Mr.J.Saravanavel For Respondents : Mr.C.Emalias, A.P.P., ORDER
The present petition has been filed seeking for a direction to the 2nd respondent to register a case on the petitioner’s complaint dated 04.02.2013, investigate the same and file a final report in accordance with law.
2. Case of the petitioner, in brief, is as follows:
Petitioner is the husband of one Narayanee @ Krithika. A case in HMOP No.383 of 2007 is pending between the petitioner and his wife before the Family Court at Chennai. In the said petition, apart from other miscellaneous petitions, I.A.Nos.486, 1649 and 2429 of 2010 and 2035 of 2011are pending; of which, I.A.Nos.486 and 1649 of 2010 have been filed by the wife on behalf of the minor child Keerthana to enhance the maintenance and to pay the educational expenses respectively. I.A.No.2429 of 2010 has been filed by the wife to strike off the defence and I.A.No.2035 of 2011 has been filed by the petitioner to revise the order of maintenance. During the said enquiry in the said I.As., on 09.04.2004, 23 documents were filed by the wife Krithika through her power agent Viswanathan and the same were marked as Exs.P-1 to P-23. Among which, Ex.P-16 is a document, which is claimed by the said Krithika to be a document issued by the Regional Passport Officer, Delhi, Ministry of External Affairs, Government of India.
3. It is the further case of the petitioner that the said document is a non-existent and a forged document. The petitioner was informed by the Ministry of External Affairs by a letter dated 10.06.2012 that it seems to be a fabricated/forged document. The petitioner made a complaint dated 04.02.2013 to the 1st respondent seeking to initiate appropriate criminal proceedings for forgery and perjury against Krithika and her power of attorney Viswanathan for having fabricated a document and producing the same before the Family Court as evidence, and the same was forwarded to the 2nd respondent for taking action; but the 2nd respondent did not take any action. Hence, the present petition has been filed to register a case on his complaint.
4. Heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor.
5. It is the case of the petitioner that in a case pending between him and his wife in HMOP No.383 of 2007 before the Family Court, Chennai, his wife marked a document purported to be issued by the Regional Passport Officer, Ministry of External Affairs, Government of India and the same was marked as Ex.P-16. It is the case of the petitioner that the said document is a forged one and, hence, the petitioner had sent an application on 16.04.2012 to the Ministry of External Affairs under RTI Act to verify, whether Ex.P-16 is a genuine document or or not? But the Regional Passport Officer sent a reply dated 10.06.2012 that the document seems to be a fabricated/forged document. That apart, the petitioner had received a reply dated 05.07.2012 from the Regional Passport Officer in response to the RTI Application dated 26.04.2012. The questions raised by the petitioner in his letter dated 26.04.2012 with regard to Ex.P-13 and the answers given by the Regional Passport Officer by his letter dated 10.06.2012 are as follows:
Questions raised by the petitioner Reply given by the Department
1. Whether this document is issued by you ?
2. If it is issued by you, on what basis you have issued (as my passport comes under regional passport office at Chennai) and also on what basis you have mentioned various contents of the document?
Not issued by this office.
3. Whether you have issued any other document(s) relating to me to Narayanee ?
No. No record is available
6. After getting these answers from the Regional Passport Officer, the petitioner has lodged a complaint with the 1st respondent police to initiate action against his wife and power agent for their involvement in producing a false document before the court, which is punishable under the provisions of Indian Penal Code. The said complaint which was given to the 1st respondent was forwarded to the 2nd respondent and the 2nd respondent, after recording the statement of power agent, has raised a doubt with regard to the jurisdiction of police investigating the offence. Therefore, they have not taken any further action in the matter. On 06.05.2013, the petitioner sent an application under the RTI Act to know about the status of the complaint. But the Inspector of Police, the 2nd respondent sent a reply dated 17.05.2013 to the queries raised by the petitioner. The questions raised by the petitioner and the answers given by the 2nd respondent are as follows:
Questions raised by the petitioner Reply given by the 2nd respondent
1. Whether FIR has been filed on the said accused – if it is so, in what sections and the present stage of the proceedings on the FIR.
No case registered against the petition dated 04.02.2013 preferred by the petitoner Thiru S.Karthick.
2. If the FIR is not filed the specific reason for the same?
The forgery documents said in the complaint was filed by the counter petitioner in the family court is lies within the compound of the High Court the Court only decide necessary action on this if it is deem fit.
3. Copies of the petition filed by me dated 04.02.2013 ?
4. Copy of the statement if received from the accused person ?
By giving the above recorded answers, the 2nd respondent expressed doubts about the jurisdiction of the police to investigate the offence since already the document was marked in the Court. Aggrieved over the same, the present petition has been filed.
7. It is the main submission of the learned counsel for the petitioner that the 2nd respondent is having jurisdiction to entertain the complaint and investigate the same since the document was created outside the court and thereafter, filed and marked in the court proceedings.
8. Per contra, it is the submission of the learned Additional Public Prosecutor that under section 195(1)(b((ii) Cr.P.C. will operate as a bar for the police to entertain the complaint since the document was already marked in the court proceedings. The only option available to the petitioner is to invoke section 340 of Cr.P.C.before the concerned court.
9. In view of the arguments advanced by both sides, the core question that has to be considered is, whether the police authorities can register a case for creating a forged document, which was allegedly marked in the course of evidence before the Court ?
10. The judgment relied on by the learned counsel for the petitioner reported in (2005) 4 SCC 370 (Iqbal Singh Marwah and another .vs. Meenakshi Marwah and another) is giving a fitting answer for this issue. The factual aspects of the cited case would show that in a probate proceedings, the petition was contested by the respondents on the ground that the Will was forged. Hence, the respondents moved an application before the court concerned requesting the court to file a criminal complaint against the appellants. A reply to the said application was filed on 27.07.1994; but the said application was not disposed of. Hence, the respondents filed a criminal complaint before the court of Chief Metropolitan Magistrate, New Delhi for prosecution under sections 192,193, 463, 464, 465, 467, 469, 471, 499 and 500 IPC on the appellants and their mother on the ground that the Will produced by the appellants was a forged and fictitious document. The learned Metropolitan Magistrate held that the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195(1)(b)(i) and (ii) Cr.P.C. operate as a bar for taking cognizance of the offences under sections 192, 193, 463, 464, 471, 475 and 476 IPC. The complaint was accordingly dismissed by order dated 02.05.1998. Subsequently, the respondents in that case filed a criminal revision against the order of learned Metropolitan Magistrate before the Sessions Court, who relying upon the case of Sachida Nand Singh .vs. State of Bihar reported in (1998) 2 SCC 493, held that the bar contained in section 195(1)(b)(ii) would not apply where forgery of a document was committed even before the production of the said document in the Court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Sessions Judge by filing a petition under section 482 Cr.P.C. before the Delhi High Court, but the same was dismissed. Aggrieved over the same, the appellants preferred S.L.P. before the Hon’ble Supreme Court, wherein it has been observed as under:
“25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:
“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to haver been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong”.
33. In view of the discussion made above,we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in cutodia legis.”
11. Therefore, a reading of the said paragraphs would clearly show that section 195(1)(b)(ii)Cr.P.C.will not operate as a bar to entertain the complaint by the police where forgery of the document was committed even before the said document was produced in the Court. In the instant case, it is the specific allegation of the complainant that the document was fabricated outside the Court and marked during the course of proceedings. Therefore, in my considered opinion, the respondents are having jurisdiction to entertain the complaint.
In view of the above reasons, the second respondent is directed to consider the complaint and if the allegations contained in the complaint discloses the commission of any cognizable offence, the second respondent is directed to register the case, investigate the same and proceed further in accordance with law. Criminal Original petition is disposed of accordingly.
Index: Yes. 08.07.2013 Internet: Yes. gl To 1. The Commissioner of Police, Chennai. 2. The Inspector of Police, E-4, Abiramapuram Police Station, Chennai-600 028. 3. The Public Prosecutor, High Court, Madras. R.SUBBIAH, J.,
Kerala state police circular on 498A misuse…cir_28_2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2013 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case No.1262 of 2012 P. Murugesan .. Petitioner Vs. B. Gokila .. Respondents PRAYER: Criminal Revision case filed under Section 397 & 401 of the Code of Criminal Procedure, to call for the records in M.C.No.22 of 2007 on the file of the learned Judicial Magistrate, Mettupalayam, Coimbatore and set aside the order passed in Crl.M.P.No.4334 of 2012 on 24.08.2012. For Petitioner : Mr.R. Murugesan Party in person For Respondent : Ms. Kavitha for M/s PVS Giridhar Associates ORDER
The following are the allegations contained in the Protest Petition filed by the petitioner:
The Court below has directed the Inspector of Police, Sirumugai Police Station, to investigate the private complaint filed by the petitioner. But the police did not file any report even though the petitioner sent two letters dated 19.6.2012 and 26.07.2012 which were received on 26.6.2012 and 28.7.2012 alongwith the above said private complaint copy and marriage registration certificate of respondent. The respondent has re-married on 25.02.2010 but on 11.11.2011 during the cross examination she told that she has not remarried. Hence, the Court may be pleased to direct the police to re-open and re-investigagte the matter or direct the CBCID to investigate the complaint and file report.
2. Judicial Magistrate, recorded sworn statement of the petitioner and dismissed the petition stating that on going through the records and sworn statement, the only offence made out is under Section 193 IPC., that according to Section 195 Cr.P.C. this petitioner has no locus standi to file this complaint under Section 193 I.P.C. and hence the petition is not maintainable.
3. The petitioner/party-in-person would contend that inasmuch as the Court below has found that the respondent has committed offence u/s 193 I.P.C., even though it is of the view that the petitioner has no locus standi to lodge the complaint, there is no legal impediment for the Court below to prefer complaint against the respondent when adequate materials were available before the Court and without lodging complaint before the concerned Court, dismissing the petition is not sustainable.
4. Contending contra, the learned counsel appearing for the respondent Ms.Kavitha would submit that as per the finding rendered by the Court below, the petitioner has no locus standi to point out anything on the part of the respondent so as to make her accused, that by means of which he could not make any complaint and in this regard there is no legal infirmity found in the order passed by the Court below.
5. The petitioner says that the respondent wife was divorced and she re-married on 25.2.2010 in Arulmigu Subramaniaswamy Thirukkoil, Pachaimalai-Modachur, Erode District for which he has produced copy of the Marriage Certificate issued by the Executive Officer of the said Temple. He also adds that she is having a male child aged 1= years. Suppressing the fact, she is continuing the maintenance case. While she was examined in cross on 11.11.2011 in MC Case No.22/07 before the learned Judicial Magistrate, Mettupalayam, she has stated that she has not contacted second marriage. But when she was examined in the same court on 31.08.2012, she admitted that after divorce she contacted second marriage and her husband’s name is Arjunan, that after the said marriage she is having a male child aged 1 year 3 months. If it is so, while she deposed earlier on 11.11.2011 her child should have been aged 5 months. It is consciously admitted by her that the child was born out of the second marriage. Hence, it is manifest that she has given a false statement on 11.11.2011 as to her marriage that she has not married for the second time.
6. Significantly it is to note that she has made false statements while she was examined before the same Court in M.C.No.22 of 2007, i.e., Judicial Magistrate, Mettupalayam. Taking advantage of this situation, the petitioner has come forward with this claim.
7. The petitioner relies upon an unreported order of mine in M.P.SR.No.39639 of 2011 in Crl.O.P.No.18268 of 2011 dated 3.4.2012 wherein I have followed the decision of the Supreme Court reported in 2003 (1) Crimes 235(SC)=AIR 2003 SUPREME COURT 541= (2003) SCC 76 [N.Natarajan v. B.K.Subba Rao] wherein Their Lordships have observed as follows –
9……. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wordings of Section 340CrPC are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Judge.”
8. In the said case, I have followed the principles laid down by the Honourable Supreme Court and observed that in view of the above ratio, it is the contention of the learned counsel for the petitioner that the petitioner has got locus standi to file the application.
9. In the above stated case, I have also followed a decision of this Court in 1908 MLJ VOL XIX [Aiyakannu Pillai v. Emperor] wherein it is held that a complaint can be presented at any time subject to the law of limitation, an order under Section 476 (I) can be made at any time (the old provision for Section 340 Cr.P.C. is Section 476). In the said case I reached a conclusion that the petitioner in that case has locus standi to file the application.
10. The petitioner also placed reliance upon N.Natarajan’s case (supra) wherein Their Lordships have held as follows:
“It is well settled that in criminal law a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 CrPC there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed underSection 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wording ofSection 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed, covered by the said provision.”
11. He also cited another latest Supreme Court judgment on this point reported in 2012 (1) CTC 184 [Abdul Rehman & Others v. K.M.Anees-ul-Haq] wherein Their Lordships have thoroughly analysed all the relevant judgments and directed to transfer the criminal case filed by the husband to the Court of competent jurisdiction.
12. The learned counsel for the respondent cited a decision of Supreme Court reported in AIR 1978 SC 1753 [Dr. S.P.Kohli v. The High Court Punjab and Haryana] wherein Their Lordships have held as under:
“Further, it is well settled that prosecution for perjury should be sanctioned by Courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognized that there must be a prima facie of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.”
13. In AIR 1971 SC 1367 [Chajoo Ram v. Radhey Shyam and another] it is held thus:
“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. “
14. The learned counsel for the respondent cited a portion of the decision in N.Natarajan’s case (supra) which is as follows:
“Private complaint indulging in vexatious litigation based on hald-baked knowledge of law wasting time of court should be restrained in the interest of administration of justice from filing similar applications. If still he persists, such application/complaint should be dismissed at limine and appropriate proceedings be initiated against him.”
15. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur] it is held thus:
“4. As is plain from the aforesaid stances adopted by the parties, they are out for personal vendetta. It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other. The primary object to take proceedings under Section 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, when the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this Court to enter into the fact and become a complainant at the behest of the husband-petitioner. Thus, I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties.”
16. Armed with the above said decisions, the learned counsel for the respondent would submit that it is not for the petitioner to set the law in motion as far as the untenable claim is concerned and as per the decision of the Punjab and Haryana High Court [Jaswinder Singh’s case] the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other. She also states that as far as the contention of the petitioner is concerned, it is only to harass the respondent.
17. From the evidence of the respondent is has come to light that before the same Court she has taken different stands as to her marriage and the finding of the Court below that only offence made out against the first respondent is under section 193 I.P.C.is appropriate. Hence, as per the dictum laid down by the Honourable Supreme Court in N.Natarajan’s case it is incumbent upon the Magistrate to proceed with Section 340 Cr.P.C.as per the procedure laid down in the provision. In such a view of the matter, this Court is of the view that the learned Judicial Magistrate has to be directed to act in accordance with law as per Sections 195 and 340 Cr.P.C.
18. In fine, the revision is allowed directing the learned Judicial Magistrate, Mettupalayam to prefer complaint against the respondent and to act in accordance with Sections 195 and 340Cr.P.C. The learned Judicial Magistrate is also directed to dispose of the Maintenance Case within one month from the date of receipt of copy of this Order.
ggs To The Judicial Magistrate Mettupalayam Coimbatore
CRA No.S-2467-SB of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.S-2467-SB of 2012 (O&M) Date of decision: 09.10.2012 Gagan Sethi ....Appellant Versus Shilpa Sethi ....Respondent CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH Present: - Mr. H.S. Dhindsa, Advocate, for the appellant. ***** PARAMJEET SINGH, J.
Crl. Misc. No.50229 of 2012 For the reasons stated, application is allowed. Delay of 18 days in refiling the appeal is condoned.
Crl. Appeal No. S-2467-SB of 2012 The instant appeal has been filed against the order dated 26.05.2012 passed by learned Additional Sessions Judge, Ludhiana in an application underSection 195/340 Cr.P.C. moved in proceedings under Section 13-B of the Hindu Marriage Act (hereinafter called ‘the Act’).
Brief facts of the case are that the appellant and the respondent filed a petition under Section 13-B of Act for dissolution of marriage between the parties by way of mutual consent in the Court of learned District and Sessions Judge, Ludhiana, which was entrusted to the learned Additional District Judge. Before passing of the decree of divorce, respondent withdrew her consent and did not make a statement after the lapse of statutory period of six months for consent divorce CRA No.S-2467-SB of 2012 under Section 13-B of the Act. On that score, appellant filed an application under Section 195/340 Cr.P.C. for initiating proceedings against respondent – Shilpa Sethi for resiling from her statement made in the proceedings under Section 13-B of the Act at first motion. Learned Additional District Judge, Ludhiana, after appreciating the evidence, declined the application of the appellant under Section 195/340 Cr.P.C. Hence this appeal.
I have heard the learned counsel for the appellant and perused the record.
The learned counsel for the appellant was specifically asked how this appeal is maintainable against the order passed on an application under Section 195/340 Cr.P.C. Then the learned counsel for the appellant stated that this be treated as a petition under Section 482 Cr.P.C. Accordingly, the present appeal is treated as petition under Section 482 Cr.P.C.
Admittedly, petitioner and respondent have filed a petition under Section 13-B of the Act for dissolution of marriage between them by way of mutual consent. In this regard, even the statements of the parties were recorded on the first motion on 10.5.2010 and petition was adjourned to 15.11.2010 for cooling off the period of six months for recording the statements of the parties on the second motion. However, on the adjourned date, respondent made a statement that she was withdrawing her consent for mutual divorce and stated that she did not want to divorce and she had never entered into alleged compromise.
The learned counsel for the petitioner argued that respondent cannot withdraw her consent and it amounts to perjury on CRA No.S-2467-SB of 2012 behalf of the respondent.
I have considered the contention raised by the learned counsel for the petitioner.
It is to be seen whether consent once given during the proceedings under Section 13-B of the Act by either of the parties can be withdrawn at any stage or atleast before passing of the final decree of divorce. In the light of this, the following question arises for consideration of this Court:
“Whether withdrawal of consent on the second motion by wife amounts to making false statement and resiling from the statement amounts to cheating?”
In my opinion either of the parties can withdraw her/his consent given at the first motion in a proceeding under Section 13-B of the Act. The statutory cooling off period of six months is for that purpose so that parties may reconsider whether it is in their interest to go for mutual divorce. After considering the pros and cons either of the parties has option to withdraw the consent given at the first motion.
The specific period is granted with a purpose to the parties to think over the matter with regard to the mutual divorce. There is nothing specific in Section 13-B of the Act, which may compel either of the party to make a statement accepting the statement made at the first motion. There is no bar under any of the provisions of the Act debarring either of the parties to withdraw his/her consent. The parties can very well withdraw the mutual consent at any stage prior to the passing of the decree of divorce specifically when they come for second motion.
In the present case, respondent-wife has withdrawn the CRA No.S-2467-SB of 2012 consent at the second stage. The issue of withdrawal of consent at the second motion has been considered by the Hon’ble Supreme Court in the case of Sureshta Devi vs. Om Parkash (1991) 2 SCC 25 and it was held that a party can unilaterally withdraw the consent at any time till the passing of the decree of divorce.
The Hon’ble Supreme Court in para 13 in the case of Sureshta Devi (supra) has held as under: –
“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-
section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is CRA No.S-2467-SB of 2012 that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”
Further the Hon’ble Supreme Court in the case of Hitesh Kumat Bhatnagar vs. Deepa Bhatnagar, 2011 (5) SCC 234 has also considered the issue whether the consent can be withdrawn and declared the law as under: –
“14. The language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any CRA No.S-2467-SB of 2012 time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
15. In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen-month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.”
In view of the above position, I do no find any ground to interfere with the impugned order passed by the learned Additional Sessions Judge, Ludhiana.
Dismissed in limine.
(Paramjeet Singh) Judge October 09, 2012 R.S.