Mrs.Suma Vs Kothandaram Mugalippoo - Husband who came back and fought !

23 views
Skip to first unread message

Vinayak

unread,
Mar 26, 2006, 10:35:17 AM3/26/06
to DivorceCases
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21/12/2004

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

CRL. OP.No.34325 OF 2004

Mrs.Suma ... Petitioner

-Vs-

1. Inspector of Police,
Women Police Station,
W3 Police Station,
Esplanade,
Chennai.

2. Kothandaram Mugalippoo

3. Mugalippoo Hemadri ... Respondents

Criminal Original Petition filed under Section 482 of the Code
of
Criminal Procedure for the relief as stated therein.

For petitioner : Mr.C.Rajan

^For R.1 : Mr.A.N.Thambidurai,
Govt.Advocate (crl.side)
For R.2 & R.3 : No appearance

:O R D E R

The above Criminal Original Petition has been filed
under Section 4 82 of the Code of Criminal Procedure praying to
quash the criminal proceedings in C.C.No.514 of 2003 on the file
of the Court of Chief Metropolitan Magistrate, Egmore,
Chennai, in view of the changed circumstances.

2. In her affidavit, the petitioner would submit
that she preferred a complaint against respondents 2 and 3 before the
first respondent in which a case was registered in Cr.No.28 of
2001, which has culminated in filing of the charge sheet for the
offences under Sections 49 8-A and 406 IPC and under Section 4 of
the Dowry Prohibition Act; that initially, the third respondent was
arrested and was released on bail whereas the second respondent was
shown as an absconder since he was residing in the United States
of America; that the case was separated and the third respondent was
questioned on 9.9.2003 for the said offence and the matter was
posted for trial and subsequently, the second accused i.e. the
second respondent herein appeared before the Court and the case was
clubbed together and the matter is posted on 8.1 1.2003 for trial; that
initially she had filed the case against the second respondent in the
Family Court in FCOP No.182/2001 wherein the second respondent
remained exparte and an exparte decree dated 7.1.20 02 was passed
under Section 13(1)(a) and Section 25 of the Hindu Marriage Act.

3. The petitioner would further submit that while
the said O.P. was pending, the second respondent filed a case in the
Circuit Court of Fair Fax County, Virginia for divorce against the
petitioner and she sent a detailed counter and the said case
was dismissed; that after the exparte decree of divorce granted by the
II Additional Family Court, Chennai, she had waited for more than
22 months and subsequently, she got married to one Mr.Sridhar, who
is a resident of Mumbai on 2.10.2003 which was registered on
18.11.2003 at Mumbai; that she is now permanently residing in
Bombay and permanently a dependent on her husband; that now the
second respondent has appeared before the Family Court and has
filed a petition to set aside the exparte decree, which is pending for
orders; that the present case before the learned Magistrate is also
posted for trial; that though she had given a complaint on the
ground for cruelty as well as for return of her personal
belongings including jewels and also for dowry harassment, she
finds it difficult to appear and adduce evidence before the learned
Magistrate and she does not require the jewels or her personal
belongings and she is prepared to compromise and compound the offence
since she cannot afford to jeopardize her existing marriage; that
moreover, she finds it difficult to come to Court from Mumbai which
would cause disturbance to her present married life; that though the
second respondent has not paid any alimony, she has to depend on
her husband to attend the case to bear the travel expenses etc., On
such grounds, the petitioner would pray for the relief extracted supra.

4. The second respondent would file a counter
thereby submitting that the petitioner filed a petition for divorce in
FCOP.No.182 of 2001 and an exparte decree was passed; that
subsequently, he filed a petition to condone the delay in filing
the petition to set aside the exparte decree and a detailed counter was
filed in that petition by the petitioner herein but she never revealed
that she was remarried; that the condone delay petition was allowed and
the petition to set aside the exparte judgment and decree is now
pending before the II Additional Family Court and for the first time
in the counter to the petition to set aside the exparte judgment and
decree, the petitioner came forward with a statement that she is
remarried and the matter is pending enquiry; that the petitioner and
the respondent attempted to resolve all the issues amicably, while
the petitioner was willing to compound the criminal case, she wanted to
have the order of the divorce passed on the grounds of cruelty left
uncontested; that he explained his difficulties that he would suffer if
an order of divorce is granted on the grounds of cruelty when he
did not contest the same as he was at U.S. at that time, but the
petitioner was not willing to come for an amicable settlement in
respect of all the issues and she simply wanted to get herself
relieved from being cross-examined in the criminal case which would
give him a fair opportunity to prove his innocence and the innocence of
his father, the third respondent herein; that he left his job
at U.S. and come to India with the only intention to face the
criminal prosecution that was lodged against him at the instance of
the petitioner; that now the petitioner wants to enjoy the order of
divorce which she obtained on the ground of cruelty and she does not
want to permit this respondent to have the benefit to crossexamine
her to satisfy the Court that he has not committed any offence
against her; that the petitioner has filed this petition with
an intention to frustrate the opportunity afforded to him in law to
prove his innocence.

5. This respondent would further submit that he
has no intention to cause slightest inconvenience or disturbance to
petitioner in any manner and he is willing to sort out all the
disputes amicably in a manner known to law by filing a petition for
divorce by mutual consent and also to cooperate with the
petitioner to compound the offence by filing the quash petition, but
he does not want his right to be prejudiced in any manner and unless
his innocence is established by legal process, he would not be able to
have a decent future where his personal life and job opportunity
would be frustrated on account of the ground of cruelty on which
the petitioner has obtained an order of divorce; that the only
opportunity available to him is to cross-examine the petitioner on the
allegation made against him. On such grounds, this respondent
would pray to consider his submission and dismiss the above petition.

6. During arguments, the learned counsel for the
petitioner would reiterate the facts pleaded in the affidavit of the
petitioner and would submit that after 2 or 3 years of her
re-marriage, the second respondent is filing a petition to set aside
the exparte decree of divorce and would cite a judgment of the
Honourable Apex Court delivered in B.S.JOSHI AND OTHERS vs. STATE OF
HARYANA AND ANOTHER reported in (20 03) SCC (Cri) 848, wherein it is
held that

"There may be many reasons for not supporting the
imputations. In such eventuality, there would almost be no chance of
conviction. So it would not be proper to decline to exercise power
of quashing on the ground that it would be permitting the parties to
compound noncompoundable offences. It would, however, be a
different matter if the High Court on facts declines the prayer for
quashing for any valid reasons including lack of bona fides.
Further, in MADHAVARAO JIWAJIRAO SCINDIA v. SAMBHAJIRAO
CHANDRAOJIRAO ANGRE (1988) 1 SCC 692 it was held that while exercising
inherent power of quashing under Section 482, it is for the High
Court to take into consideration any special features which appear in a
particular case to consider whether it is expedient and in the
interest of justice to permit a prosecution to continue. The Special
features in such matrimonial matters are evident. It becomes the duty
of the Court to encourage genuine settlements of matrimonial disputes.

A hyper-technical view would be conter-productive and
would act against the interests of women and against the object for
which this provision was added. There is every likelihood that
non-exercise of inherent power to quash the proceedings to meet
the ends of justice would prevent women from settling earlier. That is
not the object of Chapter XX-A of IPC."

7. On the other hand, the learned counsel appearing on
behalf of the respondents 2 and 3 and the learned Government Advocate
(Criminal Side) appearing on behalf of the first respondent would
submit a few points adhering to the facts of the case and would lay
emphasis on the counter affidavit filed by the second respondent. On
the part of the learned Government Advocate, he would come forward to
submit that having herself lodged the complaint now she cannot be
permitted to quash the proceedings which have been constructed on
the part of the first respondent/Police and on completion of
investigation the charge sheet has been filed based on which it has
been taken on file of the Court of competent jurisdiction in its
C.S.No.514 of 2003 and therefore it would be only proper on the
part of the petitioner to cooperate with the first respondent in
prosecuting the case for the desired result to be obtained. There is
no denying of the fact that on the part of the learned Government
Advocate that the petitioner will be at liberty to depose before the
court to the present situation as she has come forward to narrate in
the petition for which there would not have been absolutely any
hindrance. On such arguments, the learned Government Advocate and the
learned counsel for the respondents 2 and 3 would pray to dismiss the
above Criminal O.P.

8. In consideration of the facts pleaded having regard
to the materials placed on record and upon hearing the learned
counsel for all the parties to the contest what this court is able
to analyze is that the petitioner and the second respondent are
respectively wife and husband since their marriage was legally
solemnized and taking advantage of the second respondent
residing at United States, the petitioner was able to get an
exparte decree of divorce though she had vehemently opposed a
similar application filed by the husband seeking divorce in the
U.S. Court at Virginia.

9. It could be seen that on a refusal to give her
consent for her divorce, the petition filed by the husband seeking
dissolution of marriage had been dismissed by the U.S. Court at
Virginia, but to suit her convenience the petitioner has filed a
divorce petition in India before the II Additional Family Court at
Chennai and since no proper processing would have taken for the notice
to be served on her husband in U.S. Court, the petitioner was able to
get an exparte decree of divorce with the help of which she has
married another man the second time and she is now settled at Mumbai
along with her second husband.

10. While the above facts are one side of the
story, the facts relating to the other side is that the petitioner
herself has lodged a criminal complaint before the first
respondent/Police for the commission of the alleged offence under
Section 498-A, 406 I.P.C. and under Section 4 of the Dowry Prohibition
Act against the respondents 2 and 3 of whom the 2nd respondent is
her husband and now her husband has come to India and wants to defend
the case. But again, the petitioner to suit her convenience has come
forward to file the above Criminal O.P. seeking to quash the
above case registered and taken on file by the Chief Metropolitan
Magistrate, Egmore, Chennai in C.C.No.514 of 200 3 which is the
product of her own complaint.

11. On the other hand, her move is vehemently opposed
by the husband/2nd respondent on ground that since cruelty has been
alleged, it is susceptible to attach stigma to the rest of his life
and even thereafter and therefore he would like to have effective cross
examination of the petitioner in the box regarding that aspect.

12. The second respondent/husband would further
put up a strong case stating that himself having filed a petition to
set aside the exaprte divorce granted in favour of the
petitioner along with the delay condonation application and this delay
condonation petition has been allowed by the Family Court, Chennai
and the petition to set aside the exparte decree of divorce is also
under consideration and therefore there is every possibility of
the exparte decree of divorce obtained by the petitioner has to be set
aside and on these circumstances would oppose the above criminal
Original Petition.

13. In consideration of the facts and circumstances
of the case, having regard to the materials placed on record and
upon hearing the learned counsel for the petitioner and the respondents
as well, this Court is of the strong view that it is the third
occasion in which the petitioner to suit her convenience has been
playing her game causing such nuisance not only to the second
respondent but also to the prosecuting authorities and the legal system
itself and therefore since there is a point on the part of the second
respondent/husband to ventilate his grievances regarding the plea taken
on the part of the petitioner that his legal cruelty and unless the
allegation is contraverted on the floor of the court, great prejudice
would be caused to his interest and therefore it is only desirable to
permit the second respondent to have such legal facilities to
challenge the case registered by the petitioner and therefore it is not
at all desirable to simply quash the above proceedings in C.C.No.514 of
2003 pending on the file of the Court of The Chief
Metropolitan Magistrate, Egmore, Chennai.

14. Secondly since there is every likelihood of the
exparte decree of divorce being set aside whatever the petitioner has
committed based on exparte decree of divorce are likely to be
declared nullity and therefore whatever decisions have been taken on
the part of the petitioner cannot prevail over the legal
dictum which is a false messiah and therefore the petitioner cannot
take such advantage to seek from this Court to invoke its inherent
powers conferred by law under Section 482 of the Code of Criminal
Procedure for her own selfish advantage and in these circumstances
the only conclusion that this Court could arrive at is to dismiss
the above Criminal Original Petition and the same is ordered
accordingly.


In result,

The above Criminal Original Petition does not merit
acceptance but only becomes liable to be dismissed and is dismissed
accordingly.


ks

Index: Yes

Internet: Yes

Copy to

1) The Chief Metropolitan Magistrate, Egmore, Madras


2) The Public Prosecutor, Chennai


Reply all
Reply to author
Forward
0 new messages