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Challenging Divorce Decrees in Criminal Courts: The Supreme Court's Ruling in Inderjit Singh Grewal v/s Punjab

Mr. Inderjit Singh Grewal (hereinafter referred as 'Appellant') was legally married to Amandeep Kaur (hereinafter referred as 'Respondent 2') on September 23,1998 at Jalandhar as per Sikh ritual and from the said marriage a son, namely Gurarjit Singh was born on October 5,1999. The district court of Ludhiana passed the decree of dissolution of marriage by mutual consent of husband and wife because of temperamental differences between them. Proceedings were adjourned for over 6 months to mediate over the issue.

On next hearing on 20.3.2008 both parties agreed and gave mutual consent for divorce, court granted the divorce.

The wife then claims that the divorce decree was a fraud as they continued living together and claims that the husband tricked her into consenting.

She filed a complaint before superintendent of police against the husband under the section 12 of Protection of Women from Domestic Violence Act (2005)[1] seeking custody of their child under Guardians and Wards Act, 1890[2], residence rights, and retrieval of dowry articles. She also lodged an FIR under Sections 406[3], 498A[4], 376[5], 120[6]B of the Indian Penal Code 1860, against the Appellant and his mother and sister.

Magistrate summoned the minor child (Gurarjit Singh) for counselling, aggrieved by which the appellant filed application under section 482 of Code of criminal procedure[7] for quashing complaint in the High Court, arguing it should be dismissed as the wife was a party to the alleged fraud and the civil court decree cannot be challenged in criminal proceedings.

The High Court impugned judgment and order dated august 9,2010 dismissed the application filed by the Appellant. On august ,2010 the appellant filed this criminal appeal in the hon'ble supreme court of India against the order passed by the high court of Punjab and Haryana.

Inderjit Singh Grewal Vs. State Of Punjab And Ors.1
2011 INSC 601;2012 (1) AIR KAR R 537; 2011 AIR SCW 6259
Supreme Court Of India
Bench: P. Sathasivam, B.S. Chauhan

Petitioner: Inderjit Singh Grewal
Counsels: Ranjit Kumar, Sr. Adv., Gautam Godara And Ravindra Keshavrao Adsure, Advs.

Inderjit Singh Grewal Vs. State Of Punjab And Ors. (23.08.2011 - Sc): Manu/Sc/0988/2011

Respondent: State Of Punjab
Counsels: Anil Grover, AAG, Manoj Swarup, Ankit Swarup, Preshit Surshe, Rohit Kumar Singh, Kavita Wadia And Noopur Singhal, Advs.

Date Of Judgement: August 23rd, 2011

Issues Raised:

Whether the judgement and decree of the competent civil court can be declared null and void in criminal proceedings.
Whether it is permitted for parties to consider a judgement null and void without being set aside by a competent court.
Whether the respondent no. 2 who claims that she was deceived by the appellant can still be considered an abetter to fraud.
Whether a complaint under Protection of Women from Domestic Violations Act, 2005 could be treated after divorce is obtained by mutual consent.

Rule Of Law:

Section 482 of Code of Criminal Procedure:

"Nothing in this code shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice"

Guardians and Wards Act, 1890:

"This act was passed to regulate guardianship of minors and ensure their wellbeing it applies to all the minors living in India regardless of their religion and personal law. This act defines types of Guardians including Natural Guardians, Testamentary Guardians and Court Appointed Guardians. The court can intervene in Guardianship matters to ensure the wellbeing of the ward including appointing and removing of guardians and regulating the conduct of guardians."

Section 12 of the Protection of Women from Domestic Violence Act, 2005:

"An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act and relief sought may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent"

Section 13B of Hindu Marriage Act, 1955:

"Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved."

Section 406 of Indian Penal Code, 1860:

"Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Section 498A of Indian Penal Code, 1860:

"Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."

Section 120B of Indian Penal Code, 1860:

"Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."

Section 107 of Indian Penal Code, 1860:

"A person abets the doing of a thing, who First. —Instigates any person to do that thing; or secondly. —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly. —Intentionally aids, by any act or illegal omission, the doing of that thing"

Contention Of Parties

Arguments Raised By The Petitioner:
- The learned counsel of the appellant argued that the High Court erred in declining the application filed by the appellant under Section 482 of the Code of Criminal Procedure. The relief claimed by respondent no. 2 cannot be entertained by the criminal court as the complaint itself was time-bound, and thus, the magistrate court cannot take notice of it.
- The divorce was taken by mutual consent of the appellant and respondent no. 2. The complaint filed by respondent no. 2 was baseless and made with malicious intent to harass and obtain money from the appellant. Moreover, respondent no. 2 herself had been an accomplice in the said crime of fraud. Therefore, even if the accusations made by respondent no. 2 are true, she is equally liable for punishment under Section 107 of the IPC, 1860.
Arguments Raised By The Respondent:
- In contrast to the arguments presented by the counsel of the appellant, the learned counsel of respondent no. 2 opposed the appeal asserting that the final decree of divorce was null and void as it was obtained by fraud. The relationship between the appellant and respondent no. 2 still exists, and thus, the complaint is maintainable on its face value.

Moreover, the appeal of the appellant lacks merit and thus it should be dismissed.

Judgment:
District court:
The appellant and respondent no.2 filed for divorce in the district judge of Ludhiana under section 13B of Hindu marriage act, 1955 for dissolving their relationship and taking divorce by mutual consent. The court gave six months' time to the respondent to think over her decision. It is mandatory for court under section 23(2) of Hindu marriage act,1955[10] to try bringing reconciliation between both the parties, but the respondent remains firm on her statement and thus after the second motion the judge was convinced that both the parties cannot live together and therefore allowed the petition and dissolved their marriage.

High court:
The respondent no. 2 filed a complaint under protection of women from domestic violence act, 2005 and the magistrate took their son for counselling. This aggrieved the appellant, who then filed complaint under section 482 of CrPC, 1973. The high court of Punjab and Haryana dismissed the application filed by the appellant for repeal the complaint by respondent No. 2 under section 12 of protection of women from domestic violence act, 2005.

Supreme court:
The appeal shows the state of affairs where the wife unwittingly admitted that she herself was an accomplice in fraud by alleging that her and her husband had gotten a divorce through incorrect means. It is a common saying that "Fraud and justice never dwell together". The court also addressed legal maxim "Allegans suam turpetudinem non est audiendus" that is nobody should gain advantage from their own wrong. Thus, the respondent is no more entitled to any equitable relief asked by her.

The basis of the argument by the respondent was that her divorce judgement was invalid and that she and her husband were still married. But as long as her lawsuit to declare their marriage invalid was not successful, her complaint under the domestic violence act could not move further, as marriage is a crucial aspect of it. In Savitaben Somabhai Bhatiya v. State of Gujarat and Ors.2005[11] the court held that relationship which acts like a marriage should be considered in common law marriage but the couple must meet the requirements of a marriage. The decree of divorce still exists and the suit is still pending before the court to declare the judgement as null and void before the competent court and therefore it would not be consistent to allow the magistrate court to carry on with the complaint under the domestic violence act ,2005.

The court ruled in favour of the appellant's petition under section 482 of code of criminal procedural. The appeal succeeds and is allowed. The challenged judgment dated 9.8.2010 is hereby set aside. Petition filed by the Appellant under Section 482 Code of Criminal Procedure is allowed. At last, the court mentioned that the respondent no. 2 is allowed to have her other issues pending.

Ratio Decidendi
Even if a court's decree is declared "void ab initio" it is necessary for the person affected by that order to obtain a valid declaration from a competent court. The affected person can not by themselves decide whether the order was valid or invalid.

Precedents Followed:

Sultan Sadik v. Sanjay Raj Subba and Ors [12]: Any act which is considered void or voidable should be put aside by a competent court.
M. Meenakshi and Ors. v. Metadin Agarwal (dead) by Legal representatives and Ors [13]: The judgment and order of the competent civil court cannot be declared null and void in criminal proceedings, especially in the absence of the authorities present at the time the judgment was given. Similar views were seen in Sneh Gupta v. Devi Sarup and Ors [14].
Smt. Sureshta Devi v. Om Prakash [15]: The court held that it is not authorized to grant a decree for divorce by mere consent of both parties; an interim period of 6 to 18 months should be provided to give them a chance to resolve their disputes.
Savitaben Somabhai Bhatiya v. State of Gujarat and Ors [16]: A couple in a relationship that acts like a marriage should be considered under common law, but the couple must fulfill all the requirements of a marriage.
Japani Sahoo v. Chandra Sekhar Mohanty [17]: The court held that a complaint under the Protection of Women from Domestic Violence Rules, 2006, could be filed only within one year from the date of the incident.

Present Status Of The Judgement
The present status of the case Inderjit Singh Grewal v state of Punjab and Ors, 2011 given by supreme court of India is still a valid judgement and has not been overruled. This case resolved certain issues like the decree of the competent civil court cannot be declared null and void by criminal court and certain others issues were addressed by this case which are still considered valid.

End Notes:

Protection of Women from Domestic Violence Act 2005, s12
Guardians and Wards Act 1890
Indian Penal Code 1860, s406
Indian Penal Code 1860, s498
Indian Penal Code 1860, s396
Indian Penal Code 1860, s120B
Code Crim. Proc. s482
Hindu Marriage Act 1955, s13(b)
Indian Penal Code 1860, s107
Hindu Marriage Act 1955, s 23(2)
Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. 2005 SCC 636
Sultan Sadik v. Sanjay Raj Subba and Ors AIR 2004 SC 1377
M. Meenakshi and Ors. v. Metadin Agarwal (dead) by Legal Representatives and Ors SCC 470
Sneh Gupta v. Devi Sarup and Ors 6 SCC 194
Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1304
Savitaben Somabhai Bhatiya v. State of Gujarat and Ors 3 SCC 636
Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC 2762