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CASE NO.: Appeal (crl.)  967 of 2008

PETITIONER: M.Saravana Porselvi

RESPONDENT: A.R. Chandrashekar @ Parthiban & Ors.

DATE OF JUDGMENT: 27/05/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.1641 of 2007) REPORTABLE

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant is an advocate.  She was married to Respondent No.1 on  or about 1.12.1993.        The parties indisputably are living separately since 1996.  She  allegedly filed a complaint before the All Women Police Station at  Virudhunagar.  An enquiry was directed to be conducted.  As per the  advice of the officers of the said Police Station as also the relatives of the  parties, they entered into an agreement for divorce on or about 24.7.1996.   It was registered in the office of the Joint Sub-Registrar, Virudhunagar  being Registration No.146 of 1996.  Appellant also received a sum of  Rs.25,000/- towards permanent alimony which was acknowledged by  granting a stamped receipt therefor.  The said purported divorce is said to  have taken place in terms of the custom prevailing in the community the  which the parties belong. 3.      Admittedly, the first respondent married again in 1998.  He has two  children out of the said wedlock. 4.      Appellant, however, filed a complaint petition against the  respondent Nos. 1, 2 and 3 herein, i.e., her husband and parents-in-law in  May, 2006 before the Women Cell at Chennai, inter alia, on the premise  that the first respondent has married for the second time which fact she  came to learn on receipt of a summons in respect of a petition filed by the  first respondent under Section 13(1)(a) of the Hindu Marriage Act, 1955.   5.      A First Information Report (FIR) was lodged pursuant to the said  complaint which was registered as Crime No.5 of 2006.  Respondents  were arrested.           An application for quashing the said FIR was filed before the High  Court.  By reason of the impugned judgment, the said application has  been allowed. 6.      Mr. Gurukrishna Kumar, learned counsel appearing on behalf of  the appellant, would submit that in a case of this nature, where  investigation into the allegations made in the complaint has been going  on, the High Court should not have passed the impugned judgment, upon  entering into the purported defence raised by the respondents, particularly  when the State itself, in its counter affidavit filed before the High Court,  categorically stated that a prima facie case had been made out for  investigation. 7.      Mr. R. Shunmugasundaram, learned Senior Counsel appearing for  the State, however, would submit that the High Court cannot be said to  have committed an error as the deed of divorce dated 24.7.1996 was a  registered document and, thus, a public document.  If, therefore,  execution of the said document has not been denied, the impugned  judgment should not be interfered with. 8.      Mr. V. Kanakraj, learned Senior Counsel appearing on behalf of

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the respondent Nos.1, 2 and 3, would submit that the mala fide on the part  of the appellant is evident in view of the fact that such a complaint  petition has been filed after a period of 10 years.  The learned counsel  contended that as the divorce had taken place 10 years back, it is futile to  urge that the complaint petition filed after such a long time, should not be  considered to be an abuse of the process of the Court. 9.      The core question herein is as to whether the High Court, in a case  of this nature, could exercise its jurisdiction under Section 482 of the  Code of Criminal Procedure.   10.     The factual backdrop of the matter is not in dispute.        The customary divorce may be legal or illegal.  The fact that such  an agreement had been entered into or the appellant had received a sum  of Rs.25,000/- by way of permanent alimony, however, stands admitted.   The document is a registered one.  Appellant being in the legal profession  must be held to be aware of the legal implication thereof.  If the contents  of the said agreement are taken to be correct, indisputably the parties had  been living separately for more than ten years.  How then a case under  Section 498A of the Indian Penal Code can be said to have made out and  that too at such a distant point of time is the question, particularly in view  of the bar of limitation as contained in Section 468 of the Code of  Criminal Procedure.  Even otherwise it is unbelievable that the appellant  was really harassed by her husband or her in-laws.   11.     We are not oblivious of the fact that there does not exist any period  of limitation in respect of an offence under Section 494, as the maximum  period of punishment which can be imposed therefor is seven years.   12.     But no allegation has been made out in regard to commission of the  said offence so far as the respondent Nos. 2 and 3 are concerned.  If even  for exercising its jurisdiction under Section 482 of the Code of Criminal  Procedure, the High Court has taken into consideration an admitted  document, we do not see any legal infirmity therein.  If it is a case of   customary divorce, the question in regard to the existence of good custom  may have to be gone into in a civil proceeding.  But a criminal  prosecution shall not lie.  It was initiated mala fide.  Thus, it is allowed to  continue, the same shall be an abuse of the process of court. 13.     For the reasons aforementioned, there is no legal infirmity in the  impugned judgment.  The appeal is dismissed accordingly.