No 498-A after Foreign Divorce - an abuse of the process of criminal law another misuse of 498a 406
IN THE HIGH COURT OF PUNJAB AND HARYANA
1. Criminal Misc. No. 37932-M of 2006
Partap Singh and another
State of Punjab and another
2. Criminal Misc. No. 49931-M of 2006
State of Punjab and another
3. Criminal Misc. No. 59336-M of 2006
Gurdit Singh and another
State of Punjab and another
Date of decision: 4th October, 2010
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Tarunvir Vashist, Advocate for Mr. Rajesh Gupta, Advocate for the petitioners. Ms. Sudeepti Sharma, DAG Punjab,
for the State.
None for respondent No.2.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
By this common order, three petitions viz. (1) Criminal Misc. No.37932-M of 2006 preferred by Partap Singh-father-in-law and Kulwant Kaur-mother-in-law (2) Criminal Misc. No.49931-M of 2006 preferred by Criminal Misc. Nos. 37932-M; 49931-M and 59336-M of 2006 2 Gurnam Singh-brother of the husband and (3) Criminal Misc. No.59336-M of 2006 filed by Gurdit Singh-elder brother of father-in-law and Tejinder Singh-husband shall be decided together.
FIR in these cases was lodged by Kulwinder Kaur, who was a citizen of United Kingdom. As per the FIR, she was resident of 7, Scribers Lane, Har Green Birmingham B-280 NY. The marriage of complainant-Kulwinder Kaur was solemnized with Tejinder Singh at Ludhiana on 8th May, 2004. It is not disputed that for solemnizing the marriage, complainant-Kulwinder Kaur came to India only one month before her marriage and thereafter she left for United Kingdom. Thereafter, immigration of her husband-Tejinder Singh was sponsored and he also left for United Kingdom on 24th October, 2004. Counsel for the petitioners has referred to the divorce proceedings (Annexures P-10 to P-14) between the husband and wife initiated and concluded in the Uxbridge County Court and has stated that all property and entrustment disputes between the parties have been resolved by the Matrimonial County Court while granting divorce. The matter has been investigated by the Ludhiana police. It is stated that the only allegation against the petitioners is that the dowry articles were entrusted to them in India and during the stay of complainant-Kulwinder Kaur in India, her husband and his relations had misbehaved with the complainant and had demanded a car. It is stated in the report under Section 173 Cr.P.C. (Annexure P-9) that Tejinder Singh reached United Kingdom on 24th October, 2004 and resided there with his father-in-law. On 24th February, 2005, he is stated to have left the house for an unknown place. For search of Tejinder Singh, the complainant- Kulwinder Kaur and her father came to India and a Panchayat was called, where on 17th August, 2005, mother-in-law, father-in-law, brother-in-law and uncle-in-law of the complainant had demanded dowry articles. The Criminal Misc. Nos. 37932-M; 49931-M and 59336-M of 2006 3 police after enquiry, had deleted the offence punishable under Sections 364 and 382 IPC, however they came to a conclusion that offence punishable under Sections 406, 498-A and 323 IPC was made out against the accused.
This is one of those typical cases, where after the marriage, bride and bridegroom have gone abroad. The wife is a citizen of United Kingdom. She had facilitated immigration of her husband, who had married a Non-Resident-Indian wife only for the purposes of his settlement in a foreign country. Having reached abroad, he deserted his wife and had obtained a divorce. The hurt of a Non-Resident-Indian wife that she has been used as a conduit for immigration, can be well understood. In this context, the allegations in the FIR have been examined. This Court cannot become oblivious of the fact that the husband and wife, after obtaining divorce, parted their ways and are residing happily in United Kingdom. The property and entrustment of the articles was a subject matter before the Uxbridge County Court, which has granted divorce. A similar controversy was examined by Hon'ble the Apex Court in 'Harmanpreet Singh Ahluwalia and others v. State of Punjab and others' (2009) 7 Supreme Court Cases 712, wherein it was held as under:
"32. Furthermore, the larger part of offence, if any, has been committed only in Canada. Why the father of Respondent 3 had to come from Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent 3 and the first informant do not say that the inquiry report submitted by the Superintendent of Police on the representation made by Appellant 2 was incorrect. It has also not been stated that as to on what material, the chargesheet had been submitted. we, in the peculiar facts and circumstances of this case, have absolutely no doubt in our mind that the allegations contained in the FIR had been made with an ulterior motive to harass Criminal Misc. Nos. 37932-M; 49931-M and 59336-M of 2006 4 the appellants. Continuance of the criminal proceeding against them would, therefore, amount to abuse of process of the Court."
Admittedly, Tejinder Singh had left the house in United Kingdom, thereafter, as to why the complainant-Kulwinder Kaur and her father came to India in search of Tejinder Singh and then they met the relations of husband where they made a demand of dowry articles? This is something which this Court cannot comprehend. This kind of allegations are not only unnatural, improbable and unconvincing but have been coined only as an abuse of the process of criminal law. It is another case where provisions of Sections 406 and 498-A IPC have been misused. The very fact that complainant aggrieved wife had stayed in India for less than one month and husband cohabited with complainant wife for a period of about six months i.e. from October 2004 to February 2005 in United Kingdom and thereafter, obtained divorce from County Court in United Kingdom settling all disputes is sufficient to hold that proceedings in the present case should be quashed. Hence, the above said three petitions are hereby accepted and the impugned FIR along with all subsequent proceedings is quashed.
[KANWALJIT SINGH AHLUWALIA]
October 4, 2010