Madduri Venkateswara Rao v. Madduri Sunanda

Order

These three criminal petitions arise of a matrimonial dispute between the wife and husband. Since the parties in all these three petitions are one and the same, they are heard together and are being disposed of by this common order.

2. Madduri Venkatswara Rao is an employee in United States of America. He married one Surya Lakshmi @ Lakshmi and has three children out of the wedlock. Some differences arose between Madduri Venkateswara Rao and Lakshmi and they fell apart. Madduri Venkateswara Rao remarried Madduri Sunanda on 01-5-2011 at Simhachalam Devasthanam, Visakhapatnam in the presence of elders of both sides. They got the marriage registered before the Sub Registrar, Gopalpatnam. A baby girl was born to Madduri Sunanda on 16-5-2007 through IVF process, by name “Hasini”. Divorce proceedings took place in Superior Court of California, County of

ALAMEDA and the marriage between the parties came to be dissolved by judgment dated 15-3-2007 passed by the foreign court. Thereupon, Madduri Sunanda came over to India and initiated proceedings; criminal as well as civil against Madduri Venkateswara Rao, his brother and his parents. 2(b) She filed O.P.No.1298 of 2008 on the file of the Additional Family Court at Visakhapatnam seeking restitution of conjugal rights. She also filed complaint against Madduri Venkateswara Rao before the Station House Officer, Gollaprole P.S. The S.H.O., Gollaprole P.S registered a case in Crime No.28 of 2011 for the offences under Sections 498-A and 494 IPC. She also filed D.V.C.30 of 2010 on the file of III Metropolitan Magistrate, Visakhapatnam, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against Madduri Venkateswara Rao, his parents and his brother seeking the following reliefs:- “ a) A Protection order in their favour prohibiting the respondents 1 to 4 from committing the act of Domestic Violence b) Prohibiting the respondents 2 to 4 from aiding and abetting the Respondent No.1 in the commission of acts of Domestic Violence c) Directing the 1st respondent to secure the same level of alternative accommodation to the petitioners at Visakhapatnam, as enjoyed by the petitioners in their shared household along with the 1st respondent at 6260, Stone ridge Mali Road, Apartment No.A-106, Pleasanton, California, 94568. d) A separate Residence order in favour of the Petitioners. e) To direct the Respondent No.1 to pay maintenance of Rs.1.5 Lakh per month to 1st Petitioner No.1 and Rs.1.0 Lakh per month to the Petitioner No.2, towards maintenance, education and payment of electrical and telephone charges. f) To direct the respondents 1 to 4 to return the dowry of Rs.10,00,000/- (Rupees ten lakhs only) Gold, and silver articles g) An order directing the 1st Respondent to pay compensation and damages to a tune of Rs.1.0 crore for the mental torture and emotional distress caused by the acts of Domestic Violence. h) To impose any additional condition or conditions or pass such other directions which the Honourable Court may deems reasonably necessary to protect or to provide for the safety of the petitioners”. 2(c). She filed complaint before the Station House Officer, Kancharapalem P.S., on 21-11-2008 against Madduri Venkateswara Rao, his parents and his brother complaining dowry harassment. The Station House Officer, Kancharapalem P.S., registered a case in Crime No.683 of 2008 for the offence under Section 498-A IPC, conducted investigation and filed report stating the case as “false”. Madduri Sunanda filed Protest Petition under Section 190(1)(a) Cr.P.C before I Additional Chief Metropolitan Magistrate, Visakhapatnam. She adduced evidence before the learned Magistrate at pre-cognizance stage. The learned Magistrate considered the evidence brought on record and proceeded to take cognizance of the offences punishable under Sections 498, 420, 403 and 109 read with Sec. 34 IPC and took the case on file as C.C.No.991 of 2010.

3. Madduri Venkateswara Rao filed Criminal Petition No.2851 of 2011 to quash the proceeding in Crime No.28 of 2011 of P.S.Gollaprole, East Godavari District. Whereas, Madduri Venkateswara Rao, his parents (Madduri Konda Rao, Madduri Atchayamma) and his brother (Madduri Gangaraju) filed Criminal Petition No.5270 of 2011 questioning the proceedings in C.C.No.991 of 2010 on the file of I Additional Chief Metropolitan Magistrate, Visakhapatnam and Criminal Petition No.7262 of 2011 to quash the proceedings in DVC No.30 of 2010 on the file of III Metropolitan Magistrate, Visakhapatnam.

4. The parties are hereinafter referred to as “husband” (Madduri Venkateswara Rao) and “wife” (Madduri Sunanda) for the sake of convenience.

5. Heard Sri R.Mahender Reddy and Sri P.Rajagopal Reddy, learned counsel appearing for the petitioner/husband and Sri S.R.Sanku, learned counsel appearing for the respondent-wife.

6. Learned counsel appearing for the husband contends that the relationship between the parties came to be snapped by a decree of divorce by mutual consent granted by the Superior Court of the State of California, County of Alameda on 15-3-2007. The efforts made by the wife to get the judgment dated 15-3-2007 set aside, proved futile with the dismissal of her petition by the said court on 19-01-2010. He would also contend that the Police, Kancharapalem P.S investigated into the complaint averments and filed final report stating the averments as false in which case, it is impermissible for the wife to re- agitate the self same facts in a protest petition. He would also contend that the wife not being content with the protest petition resorted to file another report before the Gopalapatnam P.S to harass the husband and members of his family. In a way, his contention is as long as the judgment granted by the foreign court remains in force, there can be no relationship of wife and husband in which case all the proceedings initiated by the wife are liable to be quashed. Learned counsel laid much emphasis on the final report submitted by the police in Crime No.683 of 2008 and the judgment of the Superior Court of the State of California, County of Alameda, dated 19-01-2010. In support of his submissions, reliance has been placed on the judgment of the Supreme Court in Harmanpreet Singh Ahluwalia v. State of Punjab [1] .

7. Learned counsel appearing for the wife submits that the husband played fraud in initiating proceedings before the foreign court and since the judgment of the foreign court is the outcome of the fraud, it needs no consideration and no reliance can be placed on it. He would also contend that though the judgment has been passed by the foreign court dissolving the marriage between the wife and husband on 15-03-2007, but the marital tie continued even after the judgment as they lived together. Though in the proceedings before the foreign court, the parties pleaded that they were living separately since 05-4- 2006, but practically, they were together and certain documents came to be executed between them. Learned counsel laid much emphasis on the Gift settlement deed said to have been executed by the wife in favour of her husband. Learned counsel would point out that the fact of the wife carrying pregnancy was concealed before the foreign court. He would also contend that the wife and husband filed various applications before the Family Court, wherein O.P for restitution of conjugal rights has been pending. The learned Judge of the Family Court after taking an over all view of the facts placed before him, came to the conclusion that the validity of the divorce decree granted by the foreign court is required to be examined in final hearing of the OP. Therefore, the proceedings initiated by the wife against her husband and her relations are to be allowed to reach their logical conclusion and they cannot be shelved out at the inception. In support of his submission, reliance has been placed on the judgment of the Supreme Court in Y.Narasimha Rao v. Y.Venkata Lakshmi [2] .

8. Before dwelling deep in to the rival contentions of the parties, let me examine the scope and ambit of the Court’s power under Section 482 Cr.P.C. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent powers under section 482 Cr. P. C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. Inherent powers under section 482 Cr. P. C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

9. I n R. P. Kapur v. State of Punjab [3] , the Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) Where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

10. In State of Karnataka v. L. Muniswamy [4] the Supreme Court observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature.

11. In State of Haryana v. Bhajan Lal , the Supreme Court in the [5] backdrop of interpretation of various relevant provisions of the Cr. P. C. under Chapter XIV and of the principles of law enunciated in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr. P. C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. The broad guidelines laid down by the Supreme Court in this regard are:- "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

12. In State of Karnataka v. M.Devendrappa [6] , the Supreme Court held that in proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under S. 482 of the Code.

13. I have given my anxious consideration to the rival contentions of the parties. A fact remains that the wife filed O.P.No.1298 of 2008 for restitution of conjugal rights. The husband entered appearance and moved I.A.No.937 of 2008 under Section 14 of CPC to dismiss the petition as not maintainable since their marital relationship came to be snapped by the judgment of the foreign court. The wife also moved I.A.No.184 of 2010 under Section 13(a to e) CPC read with Section 151 CPC to reject or cancel the decree of divorce dated 15-03-2007 passed by the foreign court in CA 94588. Before the Family Court, both parties placed on record certain documents in support of their respective contentions. After thorough examination of the material brought on record, the learned Judge of the Family Court proceeded to dismiss I.A.No.937 of 2008 and dispose of I.A.No.184 of 2010, by common order dated 29th September 2011. It is trite to note the relevant portion of the common order passed by the learned Judge, Additional Family Court, Visakhapatnam, which reads as hereunder:- In this case it cannot be said that wife-Sunanda “ voluntarily submitted to the jurisdiction of the foreign Court as alleged by her husband and that judgment was also not on merits. Simply because the wife-Sunanda was fluent in English language, it cannot be inferred that she voluntarily submitted to jurisdiction by signing all the documents submitted to the Court because it is her claim that her signatures were obtained on blank papers and drafted documents by her husband by threat, coercion and fraud as he never allowed her to go through their contents and she obliged him to safeguard her marital status. It is pertinent to note that she was dependant on him after going to America and she has no family members there to discuss about her problem. He was in dominating position by his age and also having command over the local procedure in the Court. Hence her claim has to be verified to see whether she got full knowledge of the contents as alleged by her husband because the documents produced by wife-Sunanda discussed above go to show that he continued as her husband even after passing of divorce order which indicates that she has no knowledge about the divorce order of the foreign court. Therefore I am of the view that a detailed enquiry has to be conducted to decide binding nature of the order on her. The position of Hindu house wife staying abroad with her husband is little bit different when compared to an American lady. An Indian lady who migrated to USA after marriage has to depend more on her husband in USA and if he misleads or plays fraud on her, there is no scope for her to detect it immediately. The other points raised in written arguments of both sides need not be discussed at length as they are not much material to be discussed. Hence the present petition filed to decide preliminary point that foreign decree is binding on wife as claimed by husband I.A.937/2008 is not maintainable and liable to be dismissed. Similarly no finding can be given at this stage to reject or cancel the foreign decree as claimed by wife- Sunanda in I.A.184/2010 and that has to be considered only after recording evidence of both parties after conclusion of the trial on merits. Points answered accordingly.”

14. The learned Judge of the Family Court considered the documents brought on record on either side and came to the conclusion that the validity of the decree granted by the foreign court needs to be examined on a full-fledged trial. One striking feature in this case is there is enough material on record to show that the wife and husband lived together pending divorce proceedings before the foreign court. Indeed, the wife gave birth to a child pending divorce proceedings. That fact was not brought to the notice of the competent court. As a matter of fact wife was carrying pregnancy on the date of presentation of papers before the foreign court. There is enough material to show that the wife and husband lived together prior to initiation of divorce proceedings, during the pendency of proceedings and after pronouncement of the judgment by the foreign court in the divorce proceedings. Such is the situation; I am of the view that the proceedings initiated by the wife cannot be quashed by invoking power under Section 482 Cr.P.C.

15. Accordingly, all the three criminal petitions are dismissed. As a sequel to the dismissal of the criminal petitions, interim orders granted on 30-3-2011, 7-7-2011 and 19-8-2011 respectively shall stand vacated. Date: 30th March 2012 CS _____________________ B.SESHASAYANA REDDY, J THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2851, 5270 and 7262 of 2011 (Dated : 30-03-2012) [1] [2] [3] [4] [5] [6] (2009) 7 Supreme Court Cases 712 (1991) 3 Supreme Court Cases 451 AIR 1960 SC 866 (1977) 2 SCC 699 1992 Supp. (1) SCC 335 2002(3) SCC 89