Sarabjit Singh vs Ms. Gurpal Kaur
2012 Latest Caselaw 4437 Del

                IN THE HIGH COURT OF DELHI AT NEW DELHI


                                          Judgment delivered on: 27.07.2012

+                      MAT.APP.73/2009



         Sarabjit Singh                               ......Appellant.
                               Through: Mr. V.Shankra, Adv.


                               Vs.

         Ms. Gurpal Kaur                              ......Respondent
                               Through:   Mr.Manoj Goel, Adv.


       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR


KAILASH GAMBHIR, J.

1. By this appeal filed under Section 28 of the Hindu Marriage Act,

1955 the challenge is by the husband to the impugned order dated

22.7.2009 passed by the learned Additional District Judge thereby recalling

the judgment and decree dated 22.4.2008 on the application moved by the

respondent wife under Section 151 CPC.

2. Brief facts of the case as borne out from the respective

pleadings of the parties are that the appellant husband and the

respondent wife were married on 27th January, 2002 at Gurgaon according

to Hindu rites and ceremonies and a child was born out of the wedlock of

the parties on 24.1.2003. Thereafter, a petition for divorce by mutual

consent was filed by both the parties under Section 13(B)(1) of the Hindu

Marriage Act, 1955 and as per the averments made in the said petition the

stand taken was that the parties had been living together as husband and

wife after solemnization of their marriage at house bearing No. J-4/90B,

DDA Flats Kalkaji, New Delhi; that both the parties last resided together as

husband and wife at house No. 47, Second Floor, Rampuri, Kalkaji, New

Delhi up to first week of April, 2007 and thereafter due to some

temperamental differences the husband left the company of his wife and

then started residing separately. It was also averred that efforts were made

by the parents of the respective parties to persuade the parties for

reconciliation, but the same failed and the marriage between the parties

irretrievably broken down and hence, both the parties had mutually agreed

to dissolve their marriage. It was averred that both the parties had

amicably settled all their claims and disputes with regard to dowry,

stridhan, maintenance-present, past & future and permanent alimony etc.in

respect of wife, petitioner No.1 as also in respect of the minor child of the

petitioners in her custody, for a total sum of Rs. 2 lakhs payable on the part

of husband, petitioner No.2 to petitioner No. 1 as full and final settlement

of all their claims. It was also averred that the custody of the child will

remain with the mother upto the age of 8 years and thereafter her husband

will be at liberty to take the child in his custody for better upbringing of the

child. It was also averred that mutual consent of the parties was not

obtained by force, fraud or undue influence and the said petition was not

preferred by them in collusion with each other. The said petition was filed

by both the parties through a common Advocate, namely, Ms. Ranjana Kaur

and the petition was signed by both the parties besides being supported by

their respective affidavits. Respective affidavits of the parties were duly

identified by their common Advocate and the same were duly attested by

the oath Commissioner. Along with the said petition, the parties placed on

record their marriage card, photograph of the marriage, photocopy of the

driving license of the wife, photocopy of the bank passbook of the husband,

photocopy of the election card of the husband and the petition also carried

separate photographs of both the husband and the wife. Along with the said

petition, Power of Attorney was filed by the said common Advocate, Ms.

Ranjna Kaur. The said Power of Attorney is shown to be carrying the

signatures of both the parties. The said joint petition was taken up by the

matrimonial Court on 9.4.2008 and the ordersheet of 9.4.2008 shows the

presence of both the parties along with their counsel, Ms. Ranjana Kaur.

The joint statement of both the parties was recorded by the Court on the

same day and the matter was then adjourned for order on 17.4.2008 on

which date the Court directed the presence of the wife, petitioner No. 1, to

certify the encashment of the cheque, which was given to her by her

husband, petitioner No. 2 at the time of recording of their joint statement.

The matter was accordingly taken up by the Court on 17.4.2008 and after

hearing the arguments of counsel for the parties, the Court allowed the said

petition filed by both the parties under Section 13B(1) of the Hindu

Marriage Act, 1955. Both the parties were shown to be present on the said

date along with their common counsel Ms. Ranjna Kaur. The learned Court

recorded the submission of petitioner No. 1, informing the Court that the

cheque which was given to her by her husband, petitioner No. 2 was duly

encashed.

3. Simultaneously, both the parties had also filed a joint petition under

Section 13(B)(2) of the Hindu Marriage Act, 1955 along with an application

under Section 151 CPC to seek waiver of the statutory period of six months

for entertaining the second motion. The second motion petition also carried

the photographs of both the parties. The second motion petition was also

supported by the respective affidavits of both the parties. Both the affidavits

were duly attested by the Oath Commissioner after both the deponents

were duly identified by their Advocate, Ms. Ranjana Kaur. The joint

statement of both the parties was recorded by the Court on the second

motion as well and after waiving the statutory period of six months, the

Court adjourned the matter for 22nd April, 2008 for arguments/orders. The

arguments were heard by the learned Court on 22 nd April, 2008 and on the

same day the Court allowed the said joint petition filed by the parties under

Section 13(B)(2) of the Hindu Marriage Act,1955 thereby dissolving their

marriage by mutual consent.

4. The said judgment and decree dated 22nd April, 2008 was challenged

by the respondent wife by preferring CM(M) No. 328/2009 on the ground

that the said judgment/decree was procured by her husband by fraud as

well as by impersonation of respondent wife. The respondent wife in the

said appeal took a stand that she had neither appeared before the Trial

Court nor had filed any such divorce petition by mutual consent and did not

even engage any Advocate for such purpose. The said CM(M) was disposed

of by this Court vide order dated 17th April, 2009 thereby directing the

respondent wife to move an appropriate application before the Trial Court

to seek recall of the orders dated 9th ,17th and 22nd April, 2008. This Court

further directed the Trial Court to dispose of such an application of the wife

within a period of four weeks from the date of presentation of the

application. Pursuant to the said direction given by this Court, the

respondent wife had moved an application under Section 151 of CPC, 1908

to seek setting aside of the order/judgment/ decree of divorce dated 9th

April, 2008, 17th April, 2008 and 22nd April, 2008. The respondent wife in

her application reiterated her stand, as was taken by her in the appeal that

the said judgment and decree was obtained by her husband by playing fraud

upon her and also on the court. The respondent wife further took a stand

that the appellant husband had forged her signatures on the said petitions,

affidavits, etc. and took the help of some lady to impersonate her. The

respondent wife further took a stand that she had never engaged any

Advocate for filing the said petitions and that she had neither signed any

paper nor tendered any statement on oath or ever appeared before the

Court for seeking divorce by mutual consent. The respondent wife further

disclosed that it was only in the last week of November, 2008 that she had

learnt about the passing of the said judgment and decree dated 22 nd April,

2008. The respondent further stated that at the time of marriage they were

residing at J4/90B, DDA Flats Kalkaji, New Delhi and on 2.3.2008 they had

shifted to House No. G9A, Kalkaji, New Delhi. It was also stated by the

respondent wife that in the year 2006, the appellant husband had

purchased the house bearing No. 47, Second Floor, Rampuri, Kalkaji, New

Delhi after selling gold and diamond jewellery of the respondent and also

taking a huge amount from the respondent including a sum of Rs. 50,000/-

which was given to the appellant by the father of the respondent. It is also

the case of the respondent that on 21.11.2007 she had lodged a complaint

with the police control room by dialing help line No. 100 and upon such

complaint of the respondent DD entry 3A was registered along with later

DD entry Nos. 7A, 21 and 60. Pursuant to the said complaint, the appellant

husband and his mother were questioned by the Inspector, Women Cell and

the medical examination of the respondent wife as well as her mother-in-law

was also done. It is also the case of the respondent wife that in December,

2007 her husband clandestinely sold the Kalkaji flat for a sum of Rs. 45

lakhs and pocketed the said entire amount without giving a single penny to

her. It is also the case of the respondent wife that on 2.3.2008 they had

shifted to the rented accommodation i.e. house bearing No. G-9A, Third

floor, Kalkaji, New Delhi. It is also the case of the respondent wife that on

18.5.2008 the appellant husband had left the house by saying that he was

going to Mumbai on training for 12 months in connection with his new job

and while working on his new job the appellant husband used to visit her

once in every month to stay with her and their son. It is also the case of the

respondent wife that on 6.10.2008 the appellant husband came to the

matrimonial home from Mumbai to spend the holidays and on 10.10.2008,

when the respondent did not find him available in the matrimonial home

and when he was also not returning her phone calls, the matter was

reported by the respondent wife to the police control room and upon

such complaint of the respondent DD entry No.15A and 65B dated

10.10.2008 were registered. The said complaint was, however, dropped by

the police when the police established contact with the appellant husband

on phone. It is further the case of the respondent wife that on 27.10.08 the

appellant husband came to the matrimonial home for celebrating Diwali

festival but on 29.10.2008, he again left the matrimonial home on the

pretext of going to Airport to return to Mumbai for resuming his job and on

the said date for the first time the appellant husband called the respondent

wife to tell her that he does not want to live with her any more. It is also

the case of the respondent wife that on the night of 1.11.2008 the appellant

husband thrashed her and threatened her that if she does not leave the

matrimonial home then she will be eliminated and due to such threats

extended by the appellant husband to the respondent wife on the morning

of 2.11.2008, she left the matrimonial home to stay with her parents at

Nabha, Punjab. The respondent wife had also lodged complaint with the

police at Women Cell, Patiala on 6.11.2008 bringing to the notice of the

police the threats meted out to her by her in-laws and her husband and the

same had been registered vide DD No. 453/P/SP City/6.11.2008.

Accordingly, summons were issued by the police against the appellant

husband. It is also the case of the respondent wife that on 15.11.2008, she

learnt from a colleague/friend of her husband about the grant of the said

decree of divorce. It is thereafter that the respondent wife took necessary

steps to move the said petition under Article 227 of the Constitution of India

and then the above application under Section 151 CPC. The said application

by the respondent wife was allowed by the learned Additional District Judge

by passing a detailed order dated 22.7.2009 and feeling aggrieved with the

said order, the appellant husband has preferred the present appeal.

5. Arguing the present appeal, Mr. V. Shankra, learned counsel

representing the appellant husband submitted that the learned Trial Court

has committed grave illegality by brushing aside the established principles

of law by setting aside the mutual consent decree of divorce, which was

passed after the Court had fully satisfied itself about the identity of the

parties, their relationship and after holding a due enquiry as laid down

under Section23(1)(bb) of the Hindu Marriage Act, 1955. The counsel

further argued that the allegations of fraud along with impersonation have

been raised by the respondent wife in a clandestine manner not only to

cause harm to the image of the appellant husband and his married life but

also to cause aspersions on the conduct of the Presiding Judge and the

members of the Court staff. The contention raised by counsel for the

appellant husband was that the Trial Court ought to have acted with great

caution and circumspection in setting aside the decree of mutual consent

and not in such a casual manner as has been done by the Trial Court. The

counsel also argued that the reports as were submitted by the FSL were

totally untrustworthy and the same were also not corroborated by any other

evidence before the same could be relied upon in due observance of the

legal principles laid down by the Hon‟ble Supreme Court in the cases of

Shashi Kumar Banerjee & Others V. Subodh Kumar Banerjee AIR

1964 SC 529 and State of Gujarat Vs. Vinaya Chandra Chhota Lal

Patni (1967) 1 SCR 249. The Counsel further submitted that another

illegality which was committed by the learned Trial Court was to deny

cross-examination of the scientific expert, who had submitted the FSL

reports and, therefore, in the absence of cross-examination of an expert

witness his evidence could not be treated as conclusive evidence worth

consideration by the Trial Court. The counsel also argued that senior

Scientific officer (documents), who had submitted his reports is not the

authorized person named under Section 293(4) of the Criminal Procedure

Code and it is only the Director Finger Print Bureau who is the competent

expert under this provision to submit his expert opinion and, therefore, FSL

reports dated 26.5.2009 and 2.6.2009 prepared and filed by Senior

Scientific Officer (documents) cannot be considered as expert reports

admissible under law. Counsel further argued that the proceedings before

the matrimonial Court were purely civil in nature and, therefore, the

learned Trial Court had committed illegality in invoking Section 293(1) of

the Code of Criminal Procedure for holding an enquiry to examine the

genuineness of the signatures of the appellant husband and the respondent

wife and, therefore, also such reports were totally inadmissible in law so far

the civil proceedings are concerned. The counsel also argued that the

learned Trial Court illegally invoked Section 293 of the Code of Criminal

Procedure to admit the said FSL report without even affording any

opportunity to the appellant husband to cross-examine the scientific expert.

The counsel also submitted that the appellant husband had filed objections

to the report of the FSL, but the same were not adjudicated upon by the

Trial Court. The counsel also argued that even under Section 45 of the

Evidence Act, 1872 the opinion of an expert in the field of science or art, or

to identify handwriting or fingerprint impressions is a relevant fact but not

straightway admissible. The counsel further argued that the CBSE

certificate as was filed by the respondent wife along with her application to

prove that she was not present in the Court on 9.4.2008 as on that day she

was on CBSE duty for evaluation of the question papers, is totally

untrustworthy as the said certificate shows handwritten dates from 2.4.08

to 15.4.08 but without any indication of the time when the respondent wife

was alleged to be present on the CBSE duty. The contention raised by the

counsel for the appellant husband was that the respondent wife could have

easily presented herself before the Court on the said date even if she was on

CBSE duty on that particular day. The counsel further argued that the Trial

Court in the impugned order has wrongly stated that the appellant husband

did not press his objections to the FSL report or the appellant husband did

not press for the examination of the officer, who had submitted FSL reports.

The counsel for the appellant husband also submitted that after the passing

of the judgment and decree of divorce dated 22nd April, 2008, the Court had

become functus officio and, therefore, had no jurisdiction to entertain the

said application moved by the respondent wife under Section 151 CPC.

6. Based on the above submissions, the counsel for the appellant

husband urged that the impugned order passed by the learned Trial Court is

without any jurisdiction and the same is not sustainable in the eyes of law.

In support of his arguments counsel for the appellant husband placed

reliance on the following judgments:-

1) Swatantra Sahni v. Santosh Kumari 1988 RLR 469

2) Krishna Khetrapal v. Satish Lal AIR 1987 Punjab & Haryana

3) Shashi Kumar Banerjee &Ors.v.Subodh Kumar Banerjee AIR 1964 SC 529

4) Keshav Dutt v. State of Haryana (2010) 9 SCC 286

5) Sonam Tshering Bhutia v. State of Sikkim 2004 Criminal L.J.3136

6) Nirmal D/o Manohar Lal v. State of Punjab 2002 Crl. L.J.447

7) Rajmani v. State 67(1997) DLT 351 (DB)

8) Rajesh Kumar v. The State (Delhi Admn.) 1995 (32) DRJ 227

9) Heera Lal v. State 52(1993) DLT 231

7. Opposing the present appeal and refuting the arguments

advanced by the Ld. counsel for the appellant husband , Mr. Manoj Goel,

Ld. counsel representing the respondent wife with all vehemence contended

that the appellant husband has played serious fraud not only upon the

respondent wife but upon the Court as well and now he is trying to

legitimize his illegal and fraudulent acts. The counsel argued that the law

in this regard is well established that fraud vitiates everything and any

benefit or advantage acquired by any party through fraudulent acts cannot

be allowed to be retained by such party. The counsel also submitted that

the procedural technicalities also cannot come in the way of undoing the

effect of the fraudulent acts. The counsel further argued that the Trial Court

rightly exercised its inherent powers vested with every civil Court under

Section 151 CPC and, therefore, to say that the Court had become functus

officio after passing the decree of divorce and could not have proceeded

with the application of the respondent wife under Section 151 CPC is not

sustainable. The counsel further argued that the appellant husband at this

stage cannot take up the plea of denial of opportunity to him for cross-

examination of the handwriting expert as neither the appellant husband

himself pressed for his cross-examination and nor for producing any private

hand writing expert as would be evident from the observations of the Court

duly recorded in the judgment itself. The counsel thus submitted that it is

trite that the judgment of the Court is final and conclusive as to what was

argued before it and not what could be argued before it. The counsel

further submitted that the appellant husband never took a stand before the

learned Trial Court about inadmissibility of the FSL reports on the alleged

ground of wrong invocation of provision of Section 293 of the Code of

Criminal Procedure by the Trial Court. The argument advanced by the

counsel for the respondent wife was that in a criminal case the burden of

proof is much higher than in a civil case and, therefore, if the said FSL

reports are admissible in criminal law then the same would hold good in

civil proceedings with greater force. Counsel also submitted that the

arguments raised by the counsel for the appellant husband that the report

of the handwriting expert could not have been used without corroboration is

completely misplaced as the opinion of the expert is straightway admissible

even in the absence of examination of such expert witness in the witness

box. The counsel further submitted that by virtue of Section 73 of the

Evidence Act, 1872 the Courts have ample powers to compare the admitted

writings and signatures with the disputed signatures and handwritings of

any party to the suit or witness and while doing so, the court can also take

the help of any other corroborative evidence including the opinion of

handwriting expert and then form its own opinion. The counsel further

submitted that in any event Civil Court always has the power to direct any

scientific investigation through appointment of a Local Commissioner in

terms of Order 26 Rule 10 and 10A CPC and such reports are evidence per

se even without the examination of a Commissioner in witness box. The

counsel further submitted that the argument advanced by the learned

counsel for the appellant husband contending that the Trial Court has based

its judgment on the report of the handwriting expert is completely

misplaced as the learned Trial Court has relied upon clinching

circumstantial evidence and other instances of fraud played by the

appellant husband on the Court as well as on the respondent wife and the

report of the handwriting expert was used only to corroborate the

circumstantial evidence for pronouncing the impugned judgment. The

counsel further submitted that the material already available on record

clearly brings home the fraud played by the appellant husband on the Court

as well as on the respondent wife. Citing various such circumstances, the

counsel submitted that the Advocate Ms. Ranjna Kaur, who was allegedly

engaged by both the parties for presenting the joint petitions under Section

13(B)(1) & 13(B)(2) of the Hindu Marriage Act, 1955 was untraceable

despite innumerable efforts made by the Trial Court to serve her. The

counsel further submitted that non-disclosure of her address by the said

counsel on her vakalatnama, in contravention of circular No.

STBC/CR/No.18/2006 dated 5.7.2006 of the Bar Council, is a clear

indication of the fact that there was no lawyer on the rolls of the Bar

Council with the name of Ranjana Kaur. The counsel thus submitted that

somebody fictitiously and fraudulently used the name of Ms. Ranjana Kaur

to play fraud upon the Court and upon the respondent wife. The counsel

thus urged that appearance of such a person is in contravention of Section

29 and 30 of The Advocates Act, 1961. The counsel further placed reliance

on the report dated 25.2.2009 submitted by the Delhi Bar Council stating

therein that there is no person with the name of Ranjana Kaur enrolled with

the Bar Council. The counsel further argued that disclosure of Bar Council

enrolment number by every Advocate is mandatory in terms of instructions

issued by the Bar Council of India and vakalatnama filed by the said

Ranjana Kaur also did not carry her enrolment number. The counsel further

argued that even Oath Commissioner before whom the affidavits of the

parties were sworn and identified by Ms. Ranjna Kaur, Advocate could not

be traced as necessary registration number and other particulars were

missing in the seal of the Oath Commissioner. The counsel further argued

that non-disclosure of these mandatory particulars is also in violation of the

relevant rules framed under Notary Rules, 1956. The counsel further

submitted that identification of the deponent by an Advocate is a serious

matter and since in the present case the Advocate has identified the

imposter respondent wife, therefore, it was all the more necessary for the

appellant husband to have produced such an Advocate to dispel the said

suspicious circumstance. The counsel further argued that the appellant

husband has mentioned his false address at the time of presentation of the

divorce petition i.e. 1/4 Kalkaji, New Delhi although at that point of time he

was residing at G-9A, Kalkaji, New Delhi along with the respondent wife.

Counsel for the respondent wife placed reliance on two service reports

dated 29.4.2009 and 4.5.2009 to support his argument that the appellant

husband was not residing at 1/4 Kalkaji, New Delhi for the past several

years. The counsel further submitted that the appellant husband supplied

his wrong proof of address along with divorce petition i.e. the copy of the

voter identity card, which was of the year 1995 and not for the relevant

period to show his correct address. The counsel further submitted that the

appellant husband has also played mischief by filing a photocopy of the

bank passbook of the respondent wife which carried the address of the

respondent wife of the period prior to her marriage. The counsel further

submitted that the letter dated 5th March, 2008 sent by the CBSE and the

attendance certificate issued by the said Board clearly establishes the fact

that the respondent wife could not have been in the Court on the relevant

date as she was on CBSE duty.

8. The counsel further argued that the photographs of the respondent wife

in both the petitions have been tampered with as on a bare perusal of both

the original petitions moved by the parties under Section 13(B)(1) & (2) of

the Hindu Marriage Act, 1955 it would be evident that the photographs of

the respondent wife have been pasted after removing the earlier

photographs of her imposter. The counsel also argued that the appellant

husband had even misled the Court by doing sham money transaction of Rs.

2 lakhs when in fact no such cheque of Rs. 2 lakhs was ever offered by the

appellant husband to the respondent wife and nor the same was ever

accepted by her. The counsel further submitted that the copy of the deposit

slip which was obtained from the bank clearly shows that the same was

filled in the handwriting of the appellant husband and not in the

handwriting of the respondent wife. The contention raised by the counsel

for the respondent wife was that the said amount of Rs. 2 lakhs was

withdrawn by the appellant himself from the bank account of the

respondent on the very next day of obtaining the judgment and decree

dated 22.4.2008.

9. Based on the above submissions, counsel for the respondent

wife submitted that the appellant husband had obtained the judgment and

decree by playing serious fraud both upon the Court and the respondent

and, therefore, the learned Trial Court has not committed any illegality by

invoking its inherent powers under Section 151 CPC to set aside such a

fraudulent judgment and decree dated 22.4.2008. In support of his

arguments counsel for the respondent wife placed reliance on the following

judgments:-

1) Ram Chandra Singh V. Savitri Devi & Ors. 2003(8) SCALE 505.

2) United India Insurance Company Limited Vs. Rajendra Singh & Others (2000) 3 SCC 581

3) Indian Bank Vs. M/s Satyam Fibres (India) Pvt.Ltd. AIR 1996 SC

4) S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LR's & Ors. AIR 1994 SC 853

5) Hamza Haji Vs. State of Kerala & Anr. (2006) 7 SCC 416

10. I have heard the learned counsel for the parties at great length

and given my anxious consideration to the arguments advanced by them. I

have also carefully gone through the records of the learned Trial Court.

11. Fraud and justice never dwell together ( fraus et jus nunquam

cohabitant). In Smith v. Eos, Elloe Rural District Council reported in (1950)

AC 736, the House of Lords held that the effect of fraud would normally be

to vitiate any act or order. In yet another case i.e. Lazarus Estate Ltd. vs.

Beasley reported in (1956) 1 QB 702 , Lord Denning J said that no judgment

of a court, no order of a Minister, can be allowed to stand if it has been

obtained by fraud. Fraud unravels everything. In S.P. Chengalvaraya Naidu

(dead) by LRs Jagannath (dead) by LRs and Ors. AIR 1994 SC 853, the Apex

Court commenced the verdict with the following words

"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is settled position of law that a judgment or decree obtained by playing fraud on the court is nullity and non est in the eyes of law.

12. The Supreme Court in Meghmala & Ors. v. G.Narsimha Reddy

and Ors.(2010)(8) SCC 383 observed:

"Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any

equitable doctrine. An act of fraud on court is always viewed seriously."

13. In a recent Supreme Court judgment of Smt.Badanu (Deceased)

by her LRs V.Bhati (2012) (5) SCALE 715, it has been observed that

"Fraud generally lights a candle for justice to get a look at it; and rogue‟s

pen indites the warrant for his own arrest".

14. The facts of the case as have been unfolded by the parties in the

present appeal have simply shocked and flabbergasted this Court. The

appellant husband has challenged the order dated 22.7.2009 passed by the

learned Trial Court thereby setting aside the judgment and decree dated

22.4.2008 earlier passed by the same Court on the ground that the same

was obtained by the appellant husband by practicing fraud upon the Court.

In a detailed order passed by the learned Trial Court, it reached the

conclusion that the respondent wife was not a signatory to the joint motions

nor she had ever appeared before the Court for recording her statements.

The learned Trial Court also found the signatures of the respondent wife on

the said joint petitions being forged one. The learned Trial Court took into

consideration the two FSL reports dated 26.5.2009 and 2.6.2009 and other

factors on record clearly pointing out to various forgeries and frauds

committed by the appellant husband in obtaining the said decree of divorce

by mutual consent. The Trial Court also held that the appellant husband

went to the extent of withdrawing an amount of Rs. 2 lakhs from the

account of the respondent wife by getting such cheque signed from the

respondent wife on the pretext of withdrawing an amount of Rs. 20,000/- for

the purpose of getting his car repaired and then filling an amount of Rs. 2

lakhs on the said cheque and after signing the same on its reverse side

obtained the said payment of Rs. 2 lakhs himself. The learned Trial Court

also found non-disclosure of the enrolment number on the Power of

Attorney filed by Ms. Ranjana Kaur and her non-appearance and non-

production by the appellant husband at the stage of hearing of Section 151

CPC application as an important circumstance in the chain of events, which

led to the passing of the said judgment and decree dated 22.7.2009. The

learned Trial Court also rejected the contention raised by the counsel for

the appellant husband that it had no inherent jurisdiction to recall the

impugned judgment and decree dated 22.4.2008 after placing reliance on

various judgments of the Hon‟ble Supreme Court vide citations (2000)3 SCC

581 United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors; AIR 1996 SC

2592 Indian Bank vs. M/s Satyam Fibres (India) Pvt. Ltd.; AIR 1994 SC 853

S.P.Chengalvaraya Naidu (dead) by LRs. Vs.Jagannath (dead) by LRs and

others,; (2006) 7 SCC 416 Hamaza Haji vs. State of Kerala.

15. Mr. V. Shankra, the learned counsel representing the appellant

husband has challenged the impugned order dated 22.7.2009 mainly urging

the following grounds:-

A. That the learned Trial Court became functus officio after passing the

judgment and decree dated 22.4.2008 in the divorce case and,

therefore, it was incompetent to entertain the said application moved

by the respondent wife under Section 151 CPC and then to pass the

impugned order dated 22.7.2009.

B. That FSL reports dated 26.5.2009 and 2.6.2009 prepared by the

Senior Scientific Officer (documents) cannot be treated as reports

under law due to the non-fulfillment of the requirements laid down

under Section 293 and 294 of the Code of Criminal Procedure.

C. That the proceedings before the learned Trial Court were purely civil

in nature and, therefore, the learned Trial Court wrongly invoked the

provisions of Section 293 and 294 Criminal Procedure Code.

D. That the learned Trial Court failed to decide the objections filed by the

appellant husband on 6.6.2009 thereby challenging the said two FSL

reports and also by denying an opportunity to the appellant husband

to cross-examine the author of the said FSL reports.

E. That the learned Trial Court did not grant opportunity to the

appellant to examine private handwriting expert to prove signatures

of the respondent on joint motion petitions, affidavits, power of

attornies and court statements.

16. Mr. Manoj Goel, the learned counsel appearing for the

respondent wife on the other hand justified the reasoning given by the

learned Trial Court in the order dated 22.7.2009 for setting aside the

judgment and decree dated 22.4.2008 by putting forth the following

rebuttal:-

A. Under Section 151 CPC, 1908 every Court and Tribunal has inherent

powers to recall or correct its own order where manifest injustice has

been done by the Court due to its own acts or due to the acts of any of

the parties, who by misrepresenting the facts played fraud upon the

Court.

B. The admissibility of the reports submitted by the FSL was never

questioned by the appellant husband and the two applications moved

by the appellant husband, one for cross-examination of the author of

the FSL reports and the other for producing his own handwriting

expert were not pressed by the appellant husband.

C. The report of the handwriting expert can be considered by the Courts

even in the absence of an examination of such an expert in the witness

box.

D. The Court has ample powers by virtue of Section 73 of the Evidence

Act, 1872 to compare the writing/signatures in dispute with admitted

signatures of such a party and in doing so, it can always consider the

opinion given by the handwriting expert.

E. The Civil Courts also have power to appoint a Commissioner for

scientific investigation in terms of Order 26 Rule 10A CPC,1908 and

such reports are evidence per se even without the examination of

such a Commissioner.

F. Non-impleadment of Ms. Ranjana Kaur, Advocate in the present

appeal although she was impleaded in the Section 151 CPC

application filed by the respondent wife, non-disclosure of the

enrolment number by the said Advocate on her Power of Attorney and

her non-production by the appellant husband in Section 151 CPC

proceedings and also in the present appeal, ex facie proves various

frauds played upon by the appellant husband at every stage of the

case.

G. Non-disclosure of complete particulars including the registration

number by the Oath Commissioner who had attested the affidavits of

the parties in support of the joint motion petitions.

H. Disclosure of false address by the appellant husband in his divorce

petition i.e. premises bearing No. 1/4 Kalkaji, New Delhi-19 even

though he was residing at G9A, Kalkaji, New Delhi-19 along with the

respondent wife.

I. The clear tampering of both the photographs of the respondent wife

on the said joint motion petitions.

J. The Trial Court was misled by the appellant husband by showing a

sham and fraudulent money transaction towards settling all material

claims of the respondent wife in a sum of Rs. 2 lakhs as no such

amount was agreed by the respondent wife nor any such cheque was

handed over by the appellant husband to the respondent wife and the

same was clandestinely deposited by the appellant husband in the

bank account of the respondent wife and thereafter withdrawn by the

appellant husband himself immediately after the passing of the

judgment and decree dated 22.4.2008.

17. Dealing with the first objection raised by the counsel for the

appellant that the learned Trial Court became functus officio after passing

of the judgment and decree and, therefore, it become incompetent to decide

the application moved under Section 151 CPC,1908 this Court reiterates the

well established legal principle that the Courts have unlimited and

unrestricted powers under Section 151 CPC to make such orders as may be

necessary to meet the ends of justice or to prevent abuse of the process of

the Court. The Hon‟ble Apex Court in the case of Indian Bank vs M/s Satyam

Fibres (India) Pvt. Ltd. AIR 1996 SC 2592 took a view that the Courts have

inherent powers to set aside an order obtained by practicing fraud upon

that Court. Relevant para of the same is reproduced as under:-

" Since fraud effects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. The Court has also the inherent power to set aside a sale brought about by fraud practiced upon the Court or to set aside the order recording compromise obtained by fraud.

18. Referring to the observation of the Hon‟ble Supreme Court in

the case of Hamza Haji vs State of Kerala and Another (2006) 7 SCC 416

where the Apex Court had extensively dealt with the subject of fraud:

10. It is true, as observed by De Grey, C.J., in Rex Vs. Duchess of Kingston [ 2 Smith L.C. 687] that: "'Fraud' is an intrinsic, collateral act, which vitiates

the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal".

11. In Kerr on Fraud and Mistake, it is stated that:"in applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud."

12. It is also clear as indicated in Kinch Vs. Walcott [1929 APPEAL CASES 482] that it would be in the power of a party to a decree vitiated by fraud to apply directly to the Court which pronounced it to vacate it. According to Kerr, "In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."

13. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that, "Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgements". In paragraph 269, it is further stated, "Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.

It is also stated:"Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair".

14. In American Jurisprudence, 2nd Edition, Volume 46, paragraph 825, it is stated, "Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law.

Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied."

15. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe Vs. Kanade [ILR 6 BOMBAY 148], it was held that: "It is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud."

16. In Lakshmi Charan Saha Vs. Nur Ali [ ILR 38 Calcutta 936], it was held that "the jurisdiction of the Court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree. "

19. The respondent wife in the present case had earlier challenged

the judgment and decree dated 22.4.2008 by preferring a CM(M) No.

328/2009 and vide orders dated 17th April, 2009 this Court had disposed of

the said CM(M) by directing the respondent wife to move an appropriate

application before the same Court for recalling the said judgment and

decree. The relevant para of the said order dated 17th April, 2009 is

reproduced as under:-

Keeping in view the serious allegations in the present petition, I direct petitioner to move an appropriate application before the trial court for recall of the aforesaid orders. I also direct the trial court to dispose of petitioners application for recall of said orders within a period of four weeks from the date the application is filed by petitioner. It shall also be open to trial court to pass an appropriate interim order that it deems fit and proper in the facts and circumstances of the case. I further direct the District & Sessions Judge-I, Tis Hazari Courts, Delhi to ensure that record of HMA No.217/2008 and 218/2008 are properly secured.

20. It is pursuant to the said direction given by the High Court that

the respondent wife had filed the said application under Section 151 CPC

and the entire genesis of the said application was that she had never signed

the joint motion petitions nor she had appeared before the Court and nor

even she had authorized any Advocate to represent her in the said petitions.

In nutshell, the respondent wife has leveled serious allegations of fraud

upon the appellant husband in obtaining such fraudulent judgment and

decree not only by forging her signatures on the petitions etc. but even by

producing some imposter in place of the respondent wife before the Court

and also by pasting her photographs on both the petitions after the grant of

the said judgment and decree dated 22.4.2008. With these kind of serious

allegations leveled by the respondent wife in the said application, this Court

cannot subscribe to the argument advanced by the counsel for the

appellant that the Court which had passed the judgment and decree was

powerless or became functus officio to decide the said application moved by

the respondent wife under Section 151 CPC. In view of the settled legal

position this Court does not find any merit in the contention raised by

counsel for the appellant husband that the Trial Court became functus

officio after passing the judgment and decree dated 22.4.2008.

21. Coming to the second limb of the argument advanced by the

counsel for the appellant husband relating to inadmissibility of the two FSL

reports as were submitted by the Senior Scientific Officer (documents), this

Court on perusal of the record does not find that at the time of calling for

the said FSL reports the Court had referred to the said provision i.e. Section

293 of the Code of Criminal Procedure, 1973 and it is only in the impugned

order that the Court while discussing about the admissibility of such FSL

reports in the evidence referred to Section 293 and 294 of the Code of

Criminal Procedure, 1973. There is no dispute that the instant case is a

pure civil dispute between the parties and there could not have been any

occasion for the Court to refer to Section 293 and 294 of the Code of

Criminal Procedure, 1973. However, at the same time, the said report

submitted by the FSL could still be taken into consideration by the learned

Trial Court in terms of Section 45 of the Indian Evidence Act, 1872 read

with Order 26 Rule 10A of the Code of Civil Procedure,1908. It is a totally

flawed argument that such report cannot be taken into consideration by the

Court unless the expert enters the witness box to prove his report. On the

contrary, if there exists enough corroborative evidence on record, the

Courts can always take the help of such expert opinion to form a final view

with regard to any forgery in the signatures or in the handwriting of any of

the parties before the Court. In criminal trials, these reports may not form

the sole basis for holding any person guilty of offence, but so far the civil

trials are concerned, there the Court proceeds on the hypothesis of

preponderance of probabilities and such a view can be formed by the Court

taking into consideration the opinion of the expert as corroborative to the

other material available on record. The opinion of the handwriting expert is

not conclusive but is in the nature of opinion and it is always safe to rely

upon report of an expert, if there is some other reliable evidence on record

sufficient enough for the Court to form a particular view. The Apex Court in

the case of Murari Lal vs State of Madhya Pradesh reported in (1980) 1 SCC

704 although dealing in a criminal matter, took a view that even the

uncorroborated testimony of an handwriting expert may be accepted in

cases where the reasons for the opinion are convincing and there is no

reliable evidence throwing a doubt. The relevant para of the judgment is

reproduced as under:-

We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.

22. In the matter of Lalit Popli v. Canara Bank &Others (2003)

3SCC 583 the Apex Court while dealing with the case of civil nature, in the

following para, held as under:-

13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of

writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45,47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert's evidence is not there, the court has power to compare the writings and decide the matter (See Murari Lal v. State of M.P.)

23. It would be thus seen that it is for the Court to decide in the

facts of each case whether to accept the evidence of the handwriting expert

even if the same has not been proved on record by summoning the expert

witness as there is no straight jacket formula or rule of thumb in this

regard. Be that as it may, this Court does not find any fault on the part of

the learned Trial Court in placing reliance on the two FSL reports submitted

by the Senior Scientific Officer to form its view that the appellant husband

had not only forged signatures of the respondent wife on the joint petitions

but had committed a serious fraud upon the Court by producing some

imposter in place of his actual wife i.e. respondent herein. There is enough

material available on record other than FSL reports which clearly points

out such forgery and fraud committed by the appellant husband in

obtaining the said judgment and decree dated 22.4.2008. There is no denial

of the fact that the appellant husband had moved two separate applications,

one for adducing independent handwriting expert and the other raising

objections to the said FSL reports and for examination of the author of the

two FSL reports. On perusal of the impugned judgment, it is manifest

therefrom that the appellant husband did not press the said application for

producing his own handwriting expert and, therefore any contention being

raised by the counsel for the appellant husband contrary to the said record

merits straightway rejection. The other objection raised by the counsel for

the appellant husband with regard to the filing of objections against the

said reports and for cross-examination of the author of the FSL reports, the

answer thereto has already been given in the above discussion. For the sake

of repetition, it is reiterated that in the given facts of each case the Courts

can either enter into the realm of evidence to decide the objections to the

report of the expert witness by calling the expert witness in the witness box

or take the help of an expert opinion in terms of Section 45, 47 and 73 of

the Indian Evidence Act, 1872 read with Order 26 Rule 10A of the CPC,1908

so as to give a finding on the handwriting or on the signatures taking note

of the other corroborated material available on record. Here it is pertinent

to mention that the expertise of the Senior Scientific Officer who is from a

Government laboratory, CFSL, known for its independence and impartiality,

cannot be easily doubted in the absence of any mature suggestion otherwise

and therefore also no fault can be found with the reasoning of the learned

trial court giving due weightage to the said two FSL reports.

24. In the light of the aforesaid discussion, the other four

contentions raised by the counsel for the appellant husband also deserve

outright rejection.

25. As discussed above, it is not merely based on the FSL reports

that the learned Trial Court had reached the conclusion of the appellant

husband playing a fraud upon the Court as well as upon the respondent wife

for obtaining the said decree of divorce under Section 13(B)(2) of the Hindu

Marriage Act, 1955 but on many other vital circumstances on which the

learned Trial Court formed the said view. One of such strong circumstance

available on record itself is that in both the petitions filed under Section

13(B)(1) and 13(B)(2) of the Hindu Marriage Act, 1955, there exists an

apparent tampering on the first page of the said petitions. On bare perusal

of the first page of the petitions, one can clearly take note of the fact that

while the photograph of the appellant husband is affixed with the help of

staple pins, the photograph of the respondent wife is affixed by pasting and

also that there exists marks of the staple pins beneath the photograph of the

respondent wife. On being questioned on this aspect for such variation in

affixing the two photographs, no explanation came forth from the counsel

for the appellant. It is inconceivable and more so in the absence of any

explanation that on the same page photograph of the appellant is affixed

with the help of the staple pins while the photograph of the respondent wife

is affixed by pasting. The above facts clearly supports the view that the

earlier photographs of the imposter were removed and later on at the same

place photographs of the respondent wife were affixed.

26. One of the contentions raised by the counsel for the appellant

was that the parties had placed on record their marriage photograph and

therefore the passport size photograph of the respondent could be easily

compared by the court with the help of the marriage photograph placed

on record in both the petitions. This argument of the counsel for the

appellant appeared attractive at the first blush but was found meritless

because of two reasons; firstly, the courts usually look at the passport size

photograph affixed on the first page of the petition and not marriage

photographs filed along with the petition and secondly; in the marriage

photograph, the woman being in a bridal dress up, the courts do not take

the pains of comparing both the photographs i.e. one affixed on the

petition and second on the marriage photograph after having a closer

scrutiny of the same.

27. Another important circumstance demonstrating clear fraud on

the part of the appellant is the disappearance of the so called Ms. Ranjana

Kaur, who had appeared for both the parties in the said joint motion

petitions in her alleged capacity of an Advocate. Not only that she had failed

to cause her appearance in Section 151 proceedings but even she was not

impleaded by the appellant husband in the present appeal. On perusal of

the Power of Attornies filed by Ms. Ranjana Kaur, she had given following

addresses in the separate power of attornies filed by her along with the

joint motion petitions.

             Ist Motion                        II nd Motion


             Ranjana Kaur                       Ranjana Kaur
             B.S. Mehta Square,                 B.S. Mehta Courts,
             Patiala House Courts,              Patiala House Courts,
             New Delhi                          New Delhi

28.   Undeniably, the above addresses are not      complete addresses of the

said lady, Ms. Ranjana Kaur. In the power of attorney filed with the Second

Motion instead of mentioning „B.S.Mehta Square‟ the address disclosed is

„B.S. Mehta Courts‟, which is non-existent place in Patiala House Courts.

It is a well recognized fact that person committing fraud or any crime

commits many mistakes and leaves behind many traces of evidence. It is

often said that truth has the bad habit of getting surfaced though may be,

with the passage of time. It cannot be expected that the said Ranjna Kaur, if

she was an Advocate, would not be knowing her office address so as to

correctly disclose it in her Power of Attorney. Shockingly, the Power of

Attorney does not carry the complete particulars of the appellant husband

and the respondent wife in the relevant columns and nor even the date of

execution of the said Power of Attornies. The said Power of Attornies also do

not carry the enrolment number of Ms. Ranjana Kaur as per the

requirement of circular No. STBC/CR/No.18/2006 dated 5.7.2006 of the Bar

Council. Ms. Ranjana Kaur was also not found to be on the rolls of the Bar

Council of Delhi as per the report dated 25.2.2009, submitted by the Bar

Council of Delhi to the learned Trial Court. Under Section 29 and 30 of The

Advocates Act,1961, only an Advocate duly enrolled with the concerned

State Bar Council can appear and represent the parties before the Court of

law. In the backdrop of the aforesaid clinching evidence available on record

it is manifest that no Advocate with the name of Ms. Ranjana Kaur exists on

the rolls of the Bar Council of Delhi or elsewhere and not only the appellant

husband had produced some imposter in place of the respondent wife

before the learned Trial Court but had the audacity and temerity to take

the help of some other lady who impostered herself to represent both the

parties as an Advocate. Had there been any such Advocate with the name of

Ms. Ranjana Kaur in the profession then nothing could prevent the

appellant husband to have produced such a lady, if not before the Trial

Court, then at least before this Court. One can also not lose sight of the fact

that in the affidavits filed by the parties along with both the petitions, the

mandatory particulars as are required to be disclosed by the Oath

Commissioner are totally missing. Neither the name of Oath Commissioner

nor his registration number can be seen filled in the seal of the Oath

Commissioner. It would be relevant to reproduce the extracts of the

instructions issued by this court vide circular No.332/Genl-II/DHC dated

14.9.2010 to the Oath Commissioners in discharge of their duties.

9. All Oath Commissioners shall (whether attesting affidavits at the designated place(s) or otherwise) maintain a register clearly giving the following:-

(a) Date and Serial number of the affidavit

(b) case number for which the affidavit is being attested. In the event of a new case, the case number to be left blank

(c ) name of the deponent.

(d) Name of the father/mother of the deponent.

(e) Address of the deponent as per the affidavit.

(f) Name of the person identifying the deponent.

(g) Signature of the deponent.

(Note: The address of the person identifying the deponent should also be given-but this may prove cumbersome)

10. Every Oath Commissioner shall maintain three rubber stamps as prescribed by the High Court. These rubber stamps shall provide for the following:

(a) Name of the Oath Commissioner in block letters.

(b) Number given by the High Court to the Oath Commissioner.

( c) Period of commission

(d) A statement that the Oath Commissioner has been appointed by the High Court.

(e) Space for the name, occupation and signature of the person identifying the deponent.

(f) The name of the deponent.

(g) The name of the father/mother of the deponent.

(h) The address of the deponent.

(i) Date and serial number of the affidavit.

              (j) Space        for   the   signature   of   the   Oath
          Commissioner




29.          It is thus apparent that the Oath Commissioner who              had

attested the affidavits of both the parties in the said joint motion petitions

failed to carry out the said instructions and therefore attestation of these

affidavits is also not above suspicion.

30. It is also hard to digest the fact that the appellant husband was

asked to fill the post dated cheque in favour of self on behalf of the

respondent wife despite the alleged strained relationship between the

parties. The appellant husband in his reply to the application under Section

151 CPC took a stand that he was asked by the respondent wife to write a

post dated cheque on her behalf so as to facilitate her to withdraw the

amount in cash and the appellant accordingly, in good faith, filled up the

cheque so as to enable her to take out the amount in time after the date of

the final order/judgment. This admission on the part of the appellant

husband also clearly exposes the appellant as to what extent he has gone to

cover up his fraudulent acts.

31. The letter dated 5th March, 2008 issued by the Central Board of

Secondary Education and the attendance certificate issued by the Board

also cannot be ignored as the respondent wife on the relevant date was

attending to the teaching duties and, therefore, could not have caused her

appearance before the learned matrimonial court in the said divorce case on

9.4.2008.

32. In the above circumstances, coupled with other attendant facts,

this Court has no hesitation in holding that the appellant husband has

committed serious fraud not only upon the respondent wife but upon the

Court as well and this Court finds no perversity and illegality in the

conclusions arrived at, by the learned Trial Court in allowing the

application moved by the respondent under Section 151 CPC. No doubt the

learned Trial Court while deciding the said application under Section

151 CPC placed strong reliance upon the two FSL reports, but simply

because the other incriminating assertions were not comprehensively

discussed by the learned Trial Court, this Court would not take any different

view in this matter. Time and again the Courts have taken a very serious

view against any litigant playing fraud on the Court or misrepresenting the

facts or forging the documents or abusing the process of the Court.

33. Truth is the foundation of justice and it has to be common

endeavor of all to uphold the truth and no one can be permitted to pollute

the steams of justice.

34. Fraud, on the other hand, which means deceit, trickery, material

misrepresentation, sharp practice, or breach of confidence perpetrated for

profit or to gain some unfair or dishonest advantage, is a crime deemed to

be fundamentally opposed to the principles of justice. The Fraud on the

court makes a mockery of our pious judicial system which is at mercy of the

litigants from whom the courts expect truthful and honest disclosure of

facts.

35. It is only when people are convinced that the justice which they

seek by submitting themselves to the jurisdiction of the court is based on

the foundation of truth, that they would acquire trust & confidence on the

judicial system. Therefore, the judges, being the custodians of the justice

delivery system must play a proactive role so as to abjure the practice of

dishonest litigation and fraudulent intendance on the court.

They must ensure that the dishonest and unscrupulous litigants are dealt

with sternly to give a clean message that there is no incentive for the wrong

doers in the temple of justice.

36. The Malimath Committee on Judicial Reforms heavily relied on

the fact that in discovering truth, the judges of all courts need to play an

active role. The committee observed that

"Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of criminal justice system. For justice to be done truth must prevail. It is truth that must protect the innocent and it must be the truth that must be basis to punish the guilty. Truth is the very soul of justice. Therefore truth must become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth."

37. In Mohan lal Shamji Soni v. Union of India, 1991 Supp (1)

SCC 271, the Apex Court observed

"...that the question arises whether the presiding officer of the court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice. It is well established and settled principle that a court must discharge its statutory functions- whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done."

38. Therefore, in order to succeed in this endeavor and to preserve

the integrity of our system, the party exercising dishonest & fraudulent acts

with an intent to obtain a favourable order must not only be barred from

getting the reliefs prayed for, but also be subjected to severe sanctions by

the order of the court.

39. In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 , the

court observed that

"In order to enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre- variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in court when they would find that truth alone triumphs in court."

40. Heavy/exemplary costs must be imposed on the party/litigant

who even dares to show the courage of misleading the court, making it to

believe in its concocted story and inducing it to pronounce judgment based

on its untrue submissions.

41. It has been observed in a recent judgment of the Hon‟ble

Supreme Court in A. Shanmugam v. Ariya Kshatriya Rajakula

Vamsathu Madalaya Nandhavana Paripalanai Sangam 2012(4)

SCALE 666, that

"...one way to curb such tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The court would be fully justified in even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must

effectively discourage fraudulent, unscrupulous and dishonest litigation."

42. In the above case, the court placed reliance on its earlier

decision, given by the same Bench, in the case of Rameshwari Devi v.

Nirmala Devi (2011) 8 SCC 24, in which the Court went on to say that

the courts may even resort to criminal proceedings in the cases of fraud and

observed that

"Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling a tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."

43. The Bench placed heavy reliance on the case of Swaran Singh

v. State of Punjab, (2000) 5 SCC 668, in which the court observed that

"...perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on its previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of section 340(3) of the code of criminal procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in chapter XXXVI of the code of criminal procedure."

44. In the present case, in a zeal to obtain a prompt decree of

divorce, the appellant husband instead of filing the petition for divorce on

any of the grounds as envisaged under sub-Section 13(1) of the Hindu

Marriage Act,1955, resorted to the said fraudulent practice by forging the

signatures of the respondent wife on both the petitions and affidavits,

bringing an imposter before the Court instead of the actual respondent &

producing a fake Advocate to achieve his sinister design of obtaining a fast

decree of divorce so that he could marry some other lady. The appellant

husband has thrown to the winds all norms by affixing the photograph of

some other lady in place of the respondent wife in both the petitions. It is

quite evident that the appellant husband is not alone in such fraudulent acts

and certainly there is some legal brain who must have encouraged the

appellant husband in committing such murky and fraudulent acts to pollute

the streams of justice.

45. To ensure that such fraudulent acts are not committed again

the matrimonial / family courts and other subordinate courts shall adhere to

implement the following instructions:-

(i) All the matrimonial/family courts shall take care that they put their

own signatures on the photographs of the parties at the time of recording

statements of the parties in the joint motion petitions under Section 13B(1)

and Section 13B(2) of the Hindu Marriage Act, 1955.

(ii) The concerned ministerial staff attached with the matrimonial / family

courts shall ensure that the photographs on the joint motion petitions are

pasted and not stapled.

(iii) The ministerial staff attached with all subordinate Courts shall verify

that the Power of Attorney filed by any advocate carries his/her complete

official/residential address and Bar Council Enrolment number.

(iv) The ministerial staff attached with all subordinate Courts shall verify

that the attested affidavits clearly carry the necessary registration

particulars of the Oath Commissioner in terms of the instructions issued by

the High Court vide circular No. 332/Genl-II/DHC dated 14.9.2010.

46. Registry is directed to circulate this copy to all the Judicial

Officers presiding over the matrimonial/family courts and other subordinate

Courts for the strict compliance of the above instructions.

47. In the light of the above discussion this Court finds the present

appeal is devoid of any merit and the same is accordingly dismissed with

exemplary costs of Rs.2 lacs.

KAILASH GAMBHIR, J th 27 July, 2012 rkr