SC Affirms Summoning of Wife in ‘Cheating’ Complaint by Husband: Prima Facie Case Established

Case title: Aniruddha Khanwalkar v. Sharmila Das and Ors.

Case no: Criminal appeal no of 2024 (arising out of SLP. (CRL.) No. 10746 of 2023)

Dated on: April 26th ,2024

Quorum: Justice Rajesh Bhindal

Facts of the case:
The appellant’s marriage was officiated with the respondent no.1 on 28.04.2018 in the presence of the respondents no.2 and no.3. The appellant on that date realized that the respondent was already married and had not obtained divorce from her first husband. The appellant then filed a petition under Section 11 of the 1955 Act (The Hindu Marriage Act), to seek nullification of marriage between the appellant and the respondent no.1. The appellant then filed a case against the respondents no. 1,2, and 3 to the magistrate. The magistrate then booked the respondent no.1 under Section 494 and 420 and, against the respondents no.2 and 3 under Section 420 read with section 120-B , IPC. The above order was then challenged by the respondents no.1 to 3 by filing a revision petition. On 16.06.2018, when Respondent no.1 visited the doctor for a checkup, she was found to be pregnant and wanted to undergo an abortion, but when confronted by the appellant, the Respondent informed that she has not yet obtained divorce from her previous marriage. It was revealed then the document shown to the Appellant was forged which revealed that the consent for marriage was obtained dishonestly. The Appellant felt cheated and then filed a written complaint to the Superintendent of Police on 07.07.2018 and then to the Station in-Charge, on 08.07.2018. However, as no action was taken, a complaint was filed in the court before the Magistrate on 20.07.2018. The Trial Court after recording the preliminary evidence summoned the Respondent no.1 to face trial under Sections 494 and 420 read with Section 120-B, IPC and the respondent nos.2 and 3 to face trial under Section 420 read with Section 120-B, IPC. The aforesaid order was challenged by the respondents before the Additional Sessions Judge. The Sessions Court held that no offence punishable under Section 420 read with Section 120-B, IPC was made out as the factum of earlier marriage of the Respondent no.1 was clearly disclosed to the Appellant. The said Order was challenged by the Appellant before the High Court, which was in turn dismissed by the High Court without assigning any reasons.
Contentions of the appellant:
The appellant contended that the Court failed to appreciate the facts of the case. A prima facie case has been made out which shows that the Appellant has been dishonestly induced by Respondents number 1, 2 and 3 in believing that the Respondent no. 1 had obtained divorce, by showing a forged order, knowing very well that the marriage had not yet been dissolved as on the date of marriage with the Appellant and therefore the Order is liable to be set aside. The Respondents are therefore liable to face trial under Section 420 read with Section 120-B, IPC for the reason that they had conspired with each other and dishonestly induced the Appellant into marrying Respondent no.1 and parting with huge expenses towards fare for travel from Vishakapatanam to Gwalior and vice versa along with expenditure to be incurred for the marriage.

Contentions of the respondent:
On the basis of the pleaded facts and the material produced by the Appellant before the Magistrate, no offence under Section 420, IPC could be made out. The Appellant could not make any case of criminal conspiracy and offence of cheating against the Respondents. There is no error in the orders passed by the Sessions Court or the High Court. There was no concealment or cheating as the Respondents had clearly disclosed all the facts to the Appellant before marriage and hence the appeal deserves to be dismissed.

Whether the High court and the trial court was right in setting aside the summoning order passed by the trial court?

Legal provisions:
Sections 494 IPC- Punishment for bigamy.

Section 420 IPC-Punishment for cheating.

Section 120-B, IPC-Punishment for criminal conspiracy.

Courts judgement and analysis:
The Sessions Judge failed to appreciate the fact that certain events had taken place such as apprising the appellant about the decree of divorce having been passed and showing the forged copy of the same on mobile. The Learned Sessions Court has considered the revision against the summoning order as if, after trial, the findings of conviction/ acquittal was to be recorded. The matter was only at a preliminary stage of summoning and for summoning an accused, prima facie case needs to be made out on the basis of allegations and the pre-summoning evidence given by the Complainant. The High Court, further, has dismissed the petition without recording any reasons. The Learned Sessions Court and the High Court Order in setting aside the summoning order against the accused persons is not legally sustainable. On the basis of the facts pleaded and evidence adduced by the Appellant, prima facie case is made out for issuing process against the respondents to face trial for the offence punishable under Section 420 read with Section 120-B, IPC, for which they were summoned. The appeal is accordingly allowed. The impugned orders passed by the High Court and the Sessions Court are thus set aside and that of the Magistrate is restored.

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Judgement reviewed by- Parvathy P.V.

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