Dr. Meena Chaudhary @ Dr. Meena ... vs Basant Kumar Chaudhary & Ors.
2012 Latest Caselaw 524 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 25th January, 2012
+                          CRL.M.C. 3845/2010

%       DR. MEENA CHAUDHARY
        @ DR. MEENA P.N. SINGH                           ..... Petitioner
                     Through: None.

                                 Versus

    BASANT KUMAR CHAUDHARY & ORS.             ..... Respondents
                  Through: Mr. Atul Jha, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This petition has been preferred under Article 227 of the

Constitution of India read with Section 482 of the Criminal Procedure

Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned

Metropolitan Magistrate dismissing the complaint under Section 200 of the

Cr.P.C. filed by the petitioner of offence under Section 120-B read with

Section 494 and Section 498A of the Indian Penal Code (IPC). This

petition was listed before the learned Single Judge on 10.12.2010 when the

petitioner appearing in person sought adjournment. The petitioner had also

filed LPA No.64/2009 and contempt case No.C-386/2010. The petitioner

on 03.05.2011, while appearing before the Division Bench in LPA

No.64/2009 sought consolidation of the contempt petition as well this

petition with the LPA and the matter was accordingly placed before

Hon'ble the Chief Justice who vide order dated 22.05.2011 directed that

the contempt petition as well as this petition be placed before the same

Division Bench before which the LPA was pending. It is for this reason

that the matter is before us. We may also notice that though the LPA and

the contempt petition have since been disposed of but the petitioner

appearing in person stated that rather than sending back this petition to the

learned Single Judge, we only should hear the same. In view of the said

request and for the reason that by doing so, the petitioner is not being

deprived of any remedy had the matter been considered by the learned

Single Judge, we proceeded to hear the petitioner. The petitioner sought

and was granted liberty to file written arguments which have also been

filed.

2. The learned Metropolitan Magistrate after recording the statements

of the petitioner and her witnesses held no case for summoning of the

accused / respondent to have been made out for the reason of the petitioner

herself having obtained decree of dissolution of her marriage with the

respondent from the Court in U.K. and the respondent having so ceased to

be the husband of the petitioner there being no question of his being guilty

of the offence of bigamy under Section 494 of the IPC or of causing

cruelty to the petitioner as wife under Section 498-A of the IPC. Qua the

offence under Section 498-A of the IPC, reliance was also placed on the

status report submitted by the police and on the petitioner having failed to

make out any case of cruelty.

3. The argument of the petitioner before us, orally as well as in writing,

is that the divorce decree obtained by her in U.K. being not a valid decree

and hence not bringing to an end the relationship of husband and wife

between the petitioner and the respondent. Reliance in this regard is placed

on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y.

Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The

Supreme Court in both Smt. Satya and Y. Narasimha Rao (supra) was

faced with a situation of the husband setting up a decree of a foreign Court

of dissolution of marriage as a defence to the claim / charge of the wife in

the Indian Courts for maintenance or of bigamy. In both cases, the

husband was found to have obtained the decree of foreign Court

fraudulently.

4. The situation here is however converse. It is the petitioner herself

who had obtained the decree from the foreign Court of dissolution of

marriage and who now wants our Courts to ignore the same. Obviously,

no case of the foreign decree having been obtained fraudulently can be said

to exist in this scenario. Rather the said foreign decree was at the sole

initiative of the petitioner with the respondent having no role in the same

and having not even contested the same. The question which arises is, can

the petitioner, who by obtaining the said decree led the respondent to

believe that his marriage with the petitioner stood dissolved and that he

was free to remarry, can now be permitted to challenge the foreign decree

obtained herself and charge the respondent with the offence of bigamy. In

our opinion, no and the complaint has been rightly dismissed by the

learned Metropolitan Magistrate. As far back as in Asanalli Nagoor Meera

Vs. K.M. Madhu Meera MANU/TN/0707/1925, a division bench of the

Madras High Court held that a litigant cannot be allowed to deny the

jurisdiction which he himself invoked. The same principle was recently

applied by a Single Judge of the same Court in Ms. Dorothy Thomas Vs.

Rex Arul MANU/TN/2876/2011 in near similar facts.

5. We may also notice that under Section 13 of CPC a foreign

judgment is conclusive as to any matter thereby directly adjudicated upon

between the same parties except in cases specified thereunder. However

the right if any to contend that the said foreign judgment is not conclusive

can be only of the party who had himself / herself / itself not initiated the

process of obtaining the said judgment and cannot be of a party at whose

instance such foreign judgment has been obtained. No litigant can be

allowed to abuse the process of the Courts or to approbate and reprobate as

per convenience. Mention at this stage may also be made of the finding

recorded by the learned Metropolitan Magistrate and not disputed before us

that the petitioner in the disputes with her siblings before another Indian

Court sought to justify her claim by contending herself to be a divorcee by

virtue of the said foreign judgment.

6. Thus, whichever way we may look, we cannot find any error in the

order of dismissal of the complaint aforesaid. We had also called for the

records of the Court of the Metropolitan Magistrate and have perused the

pre-summoning evidence led by the petitioner. The petitioner had deposed

that she was in U.K. from 1993 to 1999. She has not even whispered,

alleged or made out any case of any of the grounds for the foreign

judgment of dissolution of her marriage with the respondent being not

conclusive. For the said foreign judgment to be not conclusive, the

petitioner was required to make out a case of the same being either

pronounced by a Court having no jurisdiction and / or having been not

given on the merits of the case or being founded on an incorrect view of

international law or the proceedings resulting therein being opposed to

natural justice or having been obtained by fraud or sustaining a claim

founded on a breach of any law in force in India. Moreover all the grounds

specified in Section 13 of the CPC and on establishment whereof a foreign

judgment can be said to be not conclusive are such which can be set up

only by a party not himself/herself/itself approaching the foreign Court.

The judgments cited by the petitioner cannot be read as laying down and

indeed do not lay down any absolute principle that a marriage under the

Hindu Marriage Act, 1955 cannot be dissolved by a foreign Court. Here

the petitioner who is challenging the judgment was at the relevant time

resident for a fairly long time within the jurisdiction of the foreign Court,

did not approach the foreign Court under the dictates of the respondent and

made out a case before the foreign Court for obtaining the judgment.

Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held

matrimonial action filed in the forum where the wife is domiciled or

habitually and permanently resides or where the wife voluntarily and

effectively submits to the foreign jurisdiction or where the wife consents to

the grant of the relief by the foreign Court although the jurisdiction of the

foreign Court is not in accordance with the provisions of the Matrimonial

Law of the parties, to be valid and the judgment of such foreign Court to be

conclusive. We, therefore, do not find any merit in this petition.

7. Before parting with the case, we may observe that though the order

of the Metropolitan Magistrate of dismissal of complaint is under Section

203 of the Cr.P.C. and is challengeable by way of Revision Petition under

Section 397 read with Section 401 of the Cr.P.C. but since the matter had

remained pending before this Court, though in the circumstances aforesaid

for considerable time, we did not deem it appropriate to reject this petition

on the said ground.

The petition is accordingly dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE JANUARY 25, 2012 'gsr'.