CASE NO.:
Appeal (crl.) 967 of 2008
PETITIONER:
M.Saravana Porselvi
RESPONDENT:
A.R. Chandrashekar @ Parthiban & Ors.
DATE OF JUDGMENT: 27/05/2008
BENCH:
S.B. Sinha & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.1641 of 2007)
REPORTABLE
S.B. Sinha, J.
1. Leave granted.
2. Appellant is an advocate. She was married to Respondent No.1 on
or about 1.12.1993.
The parties indisputably are living separately since 1996. She
allegedly filed a complaint before the All Women Police Station at
Virudhunagar. An enquiry was directed to be conducted. As per the
advice of the officers of the said Police Station as also the relatives of the
parties, they entered into an agreement for divorce on or about 24.7.1996.
It was registered in the office of the Joint Sub-Registrar, Virudhunagar
being Registration No.146 of 1996. Appellant also received a sum of
Rs.25,000/- towards permanent alimony which was acknowledged by
granting a stamped receipt therefor. The said purported divorce is said to
have taken place in terms of the custom prevailing in the community the
which the parties belong.
3. Admittedly, the first respondent married again in 1998. He has two
children out of the said wedlock.
4. Appellant, however, filed a complaint petition against the
respondent Nos. 1, 2 and 3 herein, i.e., her husband and parents-in-law in
May, 2006 before the Women Cell at Chennai, inter alia, on the premise
that the first respondent has married for the second time which fact she
came to learn on receipt of a summons in respect of a petition filed by the
first respondent under Section 13(1)(a) of the Hindu Marriage Act, 1955.
5. A First Information Report (FIR) was lodged pursuant to the said
complaint which was registered as Crime No.5 of 2006. Respondents
were arrested.
An application for quashing the said FIR was filed before the High
Court. By reason of the impugned judgment, the said application has
been allowed.
6. Mr. Gurukrishna Kumar, learned counsel appearing on behalf of
the appellant, would submit that in a case of this nature, where
investigation into the allegations made in the complaint has been going
on, the High Court should not have passed the impugned judgment, upon
entering into the purported defence raised by the respondents, particularly
when the State itself, in its counter affidavit filed before the High Court,
categorically stated that a prima facie case had been made out for
investigation.
7. Mr. R. Shunmugasundaram, learned Senior Counsel appearing for
the State, however, would submit that the High Court cannot be said to
have committed an error as the deed of divorce dated 24.7.1996 was a
registered document and, thus, a public document. If, therefore,
execution of the said document has not been denied, the impugned
judgment should not be interfered with.
8. Mr. V. Kanakraj, learned Senior Counsel appearing on behalf of
the respondent Nos.1, 2 and 3, would submit that the mala fide on the part
of the appellant is evident in view of the fact that such a complaint
petition has been filed after a period of 10 years. The learned counsel
contended that as the divorce had taken place 10 years back, it is futile to
urge that the complaint petition filed after such a long time, should not be
considered to be an abuse of the process of the Court.
9. The core question herein is as to whether the High Court, in a case
of this nature, could exercise its jurisdiction under Section 482 of the
Code of Criminal Procedure.
10. The factual backdrop of the matter is not in dispute.
The customary divorce may be legal or illegal. The fact that such
an agreement had been entered into or the appellant had received a sum
of Rs.25,000/- by way of permanent alimony, however, stands admitted.
The document is a registered one. Appellant being in the legal profession
must be held to be aware of the legal implication thereof. If the contents
of the said agreement are taken to be correct, indisputably the parties had
been living separately for more than ten years. How then a case under
Section 498A of the Indian Penal Code can be said to have made out and
that too at such a distant point of time is the question, particularly in view
of the bar of limitation as contained in Section 468 of the Code of
Criminal Procedure. Even otherwise it is unbelievable that the appellant
was really harassed by her husband or her in-laws.
11. We are not oblivious of the fact that there does not exist any period
of limitation in respect of an offence under Section 494, as the maximum
period of punishment which can be imposed therefor is seven years.
12. But no allegation has been made out in regard to commission of the
said offence so far as the respondent Nos. 2 and 3 are concerned. If even
for exercising its jurisdiction under Section 482 of the Code of Criminal
Procedure, the High Court has taken into consideration an admitted
document, we do not see any legal infirmity therein. If it is a case of
customary divorce, the question in regard to the existence of good custom
may have to be gone into in a civil proceeding. But a criminal
prosecution shall not lie. It was initiated mala fide. Thus, it is allowed to
continue, the same shall be an abuse of the process of court.
13. For the reasons aforementioned, there is no legal infirmity in the
impugned judgment. The appeal is dismissed accordingly.
