Whether wife can continue criminal action against husband after divorce by mutual consent?

Setting aside an order of the Allahabad High Court which had remanded a case back to the trial Court, noticing harassment, cruelty and mental torture, a Supreme Court Bench comprising of Justice S.J. Mukhopadhaya and Justice A.K. Goel observed that, “Once the matter was settled between the parties and the said settlement was given effect to in the form of divorce by mutual consent, no further dispute survived between the parties, though it was not so expressly recorded in the order of this Court. No liberty was reserved by the wife to continue further proceedings against the husband. Thus, the wife was, after settling the matter, estopped from continuing the proceedings.”

The appeal was filed against the Judgment of the Allahabad High Court in 2002, through which, the High Court had allowed the revision petition filed by the respondent, setting aside the order passed by the Judicial Magistrate, Ghaziabad and remanded the matter back to the Trial Court for fresh decision in accordance with law.

The question for consideration was whether in exercise of revisional jurisdiction, the High Court was justified in setting aside the acquittal of the appellant, having regard to the facts and circumstances of the case.

The appellant had submitted that the parties had taken divorce by mutual consent as per agreement reached before this Court and thereafter, the respondent was not justified in proceeding against the appellant. It was further submitted that the High Court failed to advert to the settlement between the parties and also exceeded its jurisdiction in setting aside the order of acquittal.

The respondent had however submitted that even though the parties had remarried after obtaining divorce by mutual consent as noticed above, the wife was not debarred from pursuing the criminal case against the appellant.

Agreeing with the appellant, the Court observed, “Once the matter was settled between the parties and the said settlement was given effect to in the form of divorce by mutual consent, no further dispute survived between the parties, though it was not so expressly recorded in the order of this Court. No liberty was reserved by the wife to continue further proceedings against the husband. Thus, the wife was, after settling the matter, estopped from continuing the proceedings.”

The appellant and respondent tied the knot on 25^th January, 1996. A divorce petition was filed by the husband in November 1997. The wife thereafter lodged First Information Report dated 4th November, 1997 at Ghaziabad making allegations of cruelty against the husband.

After investigation, the husband and four of his family members were tried under Sections 498-A, 406, 506 IPC and 3/4 of the Dowry Prohibition Act before the Judicial Magistrate, Ghaziabad. The trial ended in acquittal of all the accused.

A decree of divorce was then passed by Family Court Jabalpur on 4^th April, 2005 after recording the statement of the parties that they mutually agreed to decree of divorce. The wife at that time did not press her counter claim for maintenance. She also did not reserve liberty for any other action against the husband.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.741 OF 2009
SHLOK BHARDWAJ
APPELLANT
...
VERSUS
RUNIKA BHARDWAJ & ORS.

ADARSH KUMAR GOEL, J.
Dated;DECEMBER 10, 2014


1.
This appeal has been preferred against the Judgment and
Order dated 21st November, 2006 passed by the High Court of
Allahabad in Criminal Revision Case No.1159 of 2002.
2.
By the impugned order, the High Court has allowed the
revision petition filed by the Respondent, set aside the order
dated 30th July, 2002 passed by Judicial Magistrate, Ghaziabad, in
Case No.356 of 2002 and remanded the matter back to the trial
Court for fresh decision in accordance with law.
3.
We have heard learned counsel for the parties.
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Page 1
4.
The question raised for our consideration is whether in
exercise of revisional jurisdiction, the High Court was justified in
setting aside the acquittal of the appellant, having regard to the
facts and circumstances of the case.
5.
The appellant and Respondent No.1 were married on 25 th
January, 1996.
The appellant belongs to Allahabad where his
parents live and the respondent belonged to Jabalpur where her
parents are living. The appellant is said to be employed at Delhi
in Central Government.
The appellant-husband filed a divorce
petition on 7th July, 1997 at Allahabad Family Court.
The wife
lodged First Information Report dated 4th November, 1997 at
Ghaziabad making allegations of cruelty against the husband.
After investigation, the husband and four of his family members
were tried under Sections 498-A, 406, 506 IPC and 3/4 of the
Dowry Prohibition Act before the Judicial Magistrate, Ghaziabad,
in Case No.356/2002.
The trial ended in acquittal of all the
accused including the appellant vide Order dated 30th July, 2002.
6.
The divorce petition filed by the husband was ordered to be
transferred to Jabalpur at the instance of the wife. The wife also
filed a divorce petition at Jabalpur.
The husband filed Transfer
Petition (Civil) No.150 of 2004 before this Court which was
disposed of on 11th March, 2005.
This Court noted that since
2
Page 2
both the parties had sought divorce, the marriage had broken
down and the parties had agreed to a decree of divorce by
mutual consent.
Accordingly, this Court directed the Family
Court, Jabalpur, to take up the matter on 4 th April, 2005 without
entertaining any prayer for adjournment and pass a decree of
divorce.
Accordingly, the Family Court, Jabalpur passed the
decree of divorce on 4th April, 2005 after recording the statement
of the parties that they mutually agreed to decree of divorce.
The wife did not press her counter claim for maintenance. She
also did not reserve liberty for any other action against the
husband.
7.
It may be mentioned that against the Order of the
Magistrate acquitting the appellant and his family members, the
Respondent-wife had preferred Criminal Revision No.1159 of
2002 before the Allahabad High Court. The husband filed
affidavit dated 4th September, 2006 placing on record the order
of this Court and the order of the Family Court, Jabalpur and also
mentioning that after the dissolution of marriage, the wife has re-
married and in view of the order of this Court and the Family
Court, the revision petition ought to be dismissed.
8.
The High Court, instead of dismissing the revision petition,
without referring to the above developments, allowed the
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Page 3
revision petition by the impugned order with the observation that
documents Exhibit Ka2 and Ka3 showed harassment, cruelty and
mental torture and the Magistrate had skipped over the facts and
wrongly acquitted the appellant.
Aggrieved by the said order,
the appellant has approached this Court as already noticed
above.
9.
The appellant appearing in person submitted that the
parties had taken divorce by mutual consent as per agreement
reached before this Court and thereafter, the respondent was not
justified in proceeding against the appellant.
It was further
submitted that the High Court failed to advert to the settlement
between the parties and also exceeded its jurisdiction in setting
aside the order of acquittal. The Magistrate in its detailed order
duly appreciated the entire evidence and found that no case for
cruelty was made out against the appellant.
In exercise of
revisional jurisdiction, the said acquittal could not be set aside in
absence of perversity. Reliance has been placed on Judgment of
this Court in Bindeshwari Prasad Singh vs. State of Bihar1
laying down as follows :
“12. We have carefully considered the material
on record and we are satisfied that the High
Court was not justified in reappreciating the
evidence on record and coming to a different
1
(2002) 6 SCC 650
4
Page 4
conclusion in a revision preferred by the
informant under Section 401 of the Code of
Criminal Procedure. Sub-section (3) of Section
401 in terms provides that nothing in Section 401
shall be deemed to authorize a High Court to
convert a finding of acquittal into one of
conviction. The aforesaid sub-section, which
places a limitation on the powers of the revisional
court, prohibiting it from converting a finding of
acquittal into one of conviction, is itself indicative
of the nature and extent of the revisional power
conferred by Section 401 of the Code of Criminal
Procedure. If the High Court could not convert a
finding of acquittal into one of conviction directly,
it could not do so indirectly by the method of
ordering a retrial. It is well settled by a catena of
decisions of this Court that the High Court will
ordinarily not interfere in revision with an order of
acquittal except in exceptional cases where the
interest of public justice requires interference for
the correction of a manifest illegality or the
prevention of gross miscarriage of justice. The
High Court will not be justified in interfering with
an order of acquittal merely because the trial
court has taken a wrong view of the law or has
erred in appreciation of evidence. It is neither
possible nor advisable to make an exhaustive list
of circumstances in which exercise of revisional
jurisdiction may be justified, but decisions of this
Court have laid down the parameters of exercise
of revisional jurisdiction by the High Court under
Section
401
of the Code of Criminal Procedure in an appeal
against acquittal by a private party. (See D.
Stephens v. Nosibolla [AIR (1951) SC 196], K.
Chinnaswamy
Reddy
v. State of A.P. [AIR (1962) SC 1788] , Akalu Ahir
v. Ramdeo Ram [(1973) 2 SCC 583], Pakalapati
Narayana Gajapathi Raju v. Bonapalli Peda
Appadu[(1975) 4 SCC 477] and Mahendra Pratap
Singh
v.
Sarju
Singh
[AIR (1968) SC 707].)
10.
Learned counsel for the respondent, on the other hand,
submitted that even though the parties had re-married after
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Page 5
obtaining divorce by mutual consent as noticed above, the wife
was not debarred from pursuing the criminal case against the
appellant. He further submitted that the High Court was justified
in setting aside the order of the Magistrate and remitting the
matter back for a fresh decision.
11.
We have given our anxious consideration to the rival
submissions. We are satisfied that the view taken by the High
Court, in the facts and circumstances of the case, is not just and
fair and needs to be set aside.
12.
It is clear from perusal of the impugned order of the High
Court that the development of settlement between the parties
during pendency of the revision petition has not even been
adverted to. Once the matter was settled between the parties
and the said settlement was given effect to in the form of divorce
by mutual consent, no further dispute survived between the
parties, though it was not so expressly recorded in the order of
this Court.
No liberty was reserved by the wife to continue
further proceedings against the husband.
after
settling
proceedings.
the
matter,
estopped
Thus, the wife was,
from
continuing
the
In any case, it is well settled that the scope of
revisional jurisdiction of the High Court does not extend to re-
appreciation of evidence.
In exercise of revisional jurisdiction,
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Page 6
the High Court can interfere with the acquittal only if there is
perversity in the order of acquittal.
In the present case, the
order of acquittal could not be held to be perverse.
The High
Court observed that the demand of articles, papers of house
property of Jabalpur and Noida and the contents of Exhibits Ka2
and Ka3 amounted to harassment, cruelty and mental torture.
This observation amounted to substitution of its view by the High
Court
for
the
view
taken
by
the
consideration of all the allegations.
Magistrate
after
due
The Magistrate inter alia
found the version of the respondent-wife to be not believable and
also found that the allegations were not substantiated.
It was
observed that the wife herself admitted that the documents
Exhibit Ka2 and Ka3 were merely guidelines for good conduct
and behavior expected of her and did not amount to cruelty. It
was also admitted that there was no demand of dowry at the
time of marriage.
The Investigating Officer had never visited
Jabalpur and the demand of house at Jabalpur was not
substantiated. It was further observed that criminal case filed by
the wife was a counter blast to the divorce case filed by the
husband.
Version before the Court was improvement over the
original version in the First Information Report.
She had given
contradictory statement about the place where her husband

demanded the house. Thus, the Magistrate having dealt with the
matter threadbare, the High Court, in exercise of revisional
jurisdiction was not justified in interfering with the order of
acquittal
particularly
when
the
parties
had
reached
the
settlement before this Court on the basis of which divorce by
mutual consent was granted by the Family Court, Jabalpur which
fact was placed on record of the High Court.
13.
In view of the above, we allow this appeal, set aside the
impugned order passed by the High Court and restore the order
of the Magistrate.
................................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
...............................................................J.
(ADARSH KUMAR GOEL)
NEW DELHI
DECEMBER 10, 2014

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