Sundeep Vasudevan, Aleykutty Vasudevan and P.K. Vasudevan v. State of Kerala and Remya Golapakrishnan and The Sub Inspector of Police, Medical College Police Station, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **Crl.MC.No.2258 OF 2013** **CRIME NO.174/2013 OF MECICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED 1 TO 3:** - **1 SUNDEEP VASUDEVAN, AGED 32 YEARS S/O.P.K.VASUDEVAN,DREAM HOUSE,THIRUMOOLAPURAM,THIRUVALLA,PATHANAMTHITTA** - **2 ALEYKUTTY VASUDEVAN W/O.P.K.VASUDEVAN,DREAM HOUSE,THIRUMOOLAPURAM,THIRUVALLA,PATHANAMTHITTA** - **3 P.K.VASUDEVANM DREAM HOUSE, THIRUMOOLAPURAM,THIRUVALLA,PATHANAMTHITTA** **BY ADV. SRI.D.KISHORE** ## **RESPONDENTS/STATE & COMPLAINANTS:** - **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031** - **2 REMYA GOLAPAKRISHNAN D/O.ELSY NINAN,SOUMYA NIVAS,T.C 2/959.PUTHUPPALLY LANE,MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM 695 011** - **3 THE SUB INSPOECTOR OF POLICE MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM 695 011** - **R2 BY ADV. SRI.BIJU BALAKRISHNAN BY ADV. SMT.V.S.RAKHEE** ## **PP- SRI.JAYASURYA B(SR)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2258 OF 2013** **2** ## **ORDER** ## **Dated this the 11[th] day of March, 2020** Petitioners, who are accused Nos.1 to 3 in Crime No.174 of 2013 of Medical College Police Station, Thiruvananthapuram have approached this Court seeking to quash the FIR registered against them alleging commission of offence punishable under Section 498A read with Section 34 Indian Penal Code (for short 'IPC'). 2. 1[st] and 3[rd] respondents are represented by the Public Prosecutor and 2[nd] respondent is the defacto complainant represented by Sri.Biju Balakrishnan. The petitioners are represented by Sri.D.Kishore. 3. The facts of the case in brief are to the following effect:- The 1[st] petitioner married the defacto complainant, the 2[nd] respondent in the case on hand on 02.01.2012 as per Christian Customary rites. After the marriage, they resided together in the house of the 2[nd] respondent for sometime and thereafter left for Sharjah where he was employed. There, the 1[st] petitioner started **Crl.MC.No.2258 OF 2013** **3** to ill-treat the defacto complainant mentally as well as physically based on demands for dowry. She was also forced to execute a sale deed in favour of the 1[st] petitioner in respect of the property belonging to her parents. The 1[st] petitioner has also taken gold ornaments from her. Making allegations of the nature, a complaint was filed by her before the Medical College Police Station, Thiruvananthapuram. Complaints were also preferred before several authorities. Since those complaints were not attended to and acted upon positively, an FIS was lodged before Medical College Police Station and based on that, the crime in question was registered against the petitioners alleging commission of offences punishable under Section 498A read with Section 34 IPC. That crime is now sought to be quashed in the proceedings. 4. Sri.D.Kishore, the learned counsel appearing for the petitioners has contended that while the parties were living in Sharjah, an agreement was entered into among them, agreeing to separate. Based on the agreement, a decree was also passed by a Court at Dubai. The learned counsel has produced the agreement and the decree obtained as well for perusal alongwith **Crl.MC.No.2258 OF 2013** **4** the petition on hand as Annexure AII and AIII. The contention of the learned counsel was that certain terms have also been agreed upon by the parties while executing the agreement. It has been agreed that the matrimonial issues will not be taken up in any courts of law. According to him, it is also stated therein that the parties never resided together and had no cohabitation among them. It is urged by the learned counsel that by lodging the FIS, contentions against the terms agreed to in the agreement have been taken by the 2[nd] respondent and in view of the decree passed by a Foreign Court on the basis of the agreement, the petitioner has no locus standi to set the law in motion by getting the crime registered. The learned counsel has also taken up a contention that attention of this Court is not drawn to any of the grounds enumerated in Section 13(a) to (f) to take a view that the judgment passed by the foreign court in question is inconclusive. According to him, the decree passed by the foreign court was not taken up in challenge by the 2[nd] respondent in the court till date and therefore, its conclusiveness can safely be drawn. It is contended by the learned counsel that in view of the terms of agreement entered into and the judgment passed on its basis and **Crl.MC.No.2258 OF 2013** **5** by failing to raise challenge against it, the 2[nd] respondent is now prevented from raising any contentions as in the case on hand before any court of law in India. According to him, the FIR registered at Medical College Police Station, Thiruvananthapuram and now pending against him before Additional Chief Judicial Magistrate Court, Thiruvananthapuram will not sustain for reasons stated as above. 5. On the contrary, the learned counsel for the 2[nd] respondent had drawn the attention of this Court to the allegations taken up in the FIR which is appended to the petition on hand as Annexure-I. The learned counsel has apprised the court by drawing attention of this Court to the FIS wherein allegations are taken by the 2[nd] respondent that she was illtreated by the 1[st] and 2[nd] petitioners at the matrimonial home prior to the shifting of the couple to Sharjah. Even the alleged agreement which formed the basis for passing the judgment by the Court of Sharjah was alleged as executed by exercising fraud. According to him, the 2[nd] respondent has not signed the agreement voluntarily. She was made to sign it by coercion and threat and thereby the judgment passed by the foreign court losts **Crl.MC.No.2258 OF 2013** **6** conclusiveness. The learned counsel has also relied on **Satya (Smt.) v. Teja Singh [1975 KHC 468 (SC)]** , wherein the Apex Court has held in paragraph 9 that the law of a party's domicile will decide his rights. Paragraph 19 is also relied on by the learned counsel, wherein, it was stated that foreign decrees of divorce have been either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case. For a decree of divorce to be accorded full faith and credit in the courts of another jurisdiction, it is necessary that the court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters of matrimony in controversy except the jurisdictional facts on which it is founded. It is held by the Apex Court in the case that domicile is such a jurisdictional fact. The Apex Court has also held that for taking the decree of a foreign court as conclusive by the courts in India, comity is a relevant factor. It has also been observed by the Apex Court in the case cited by the learned counsel that so as to make a foreign judgment conclusive, any matter directly adjudicated, jurisdiction as well as the vitiating factors are relevant. The learned counsel **Crl.MC.No.2258 OF 2013** **7** has also cited **Abdul Sathar M. v. Aneesa And Others [2005 KHC 924 ]** , wherein a Single Judge of this Court has held that existence of marriage between the accused and the victim at the time of commission of offence is relevant and not that at the time of filing of complaint. The learned counsel has also cited **Augustine Kalathil Mathew v. Marriage Officer (Sub Registrar) [2016 (4) KLT 415]** to contend that if the parties to the marriage have voluntarily and effectively submitted to the jurisdiction of a foreign court and consented to the passing of a decree of divorce, the courts in India have to recognise the divorce certification, unless it is vitiated by any of the reasons enumerated under Clauses (a) to (f) of Section 13 CPC. 6. In the context of the diverse arguments advanced, it is incumbent on us to see which arguments are meritorious ones. The jurisdiction invoked is under Section 482 Cr.P.C. When the jurisdiction under Section 482 Cr.P.C is invoked, at the outset, this Court has to find out whether the FIR sought to be quashed incorporates necessary allegations to attract the offences for which it stood registered. On reading the FIS, this Court finds that serious accusations regarding ill treatment have been levelled **Crl.MC.No.2258 OF 2013** **8** against the petitioners. It has been stated that after the marriage while staying together, the 2[nd] respondent was ill-treated by the 1[st] petitioner mentally as well as physically, making demands of dowry. It has also been stated by her that she has been physically tortured, following which she was made to undergo treatment. She has also stated that even during their stay at Sharjah, she will have to face physical and mental torture at the hands of the 1[st] petitioner. It is further revealed from the allegations that several authorities were approached to apprise the physical torture suffered by her at the hands of the 1[st] petitioner at Sharjah. It is further stated in the F. I. Statement that she was forced to sign an agreement by the 1[st] petitioner at Sharjah. It was thereafter that she somehow managed to reach the native place and lodged the FIS, which formed the basis for registration of Annexure-I, FIR. 7. Here is a case wherein the husband urges that himself and his wife has obtained a certification of divorce from a court at Sharjah after having been volunteered and consented to obtain the same by executing an agreement to the effect. The contention of the wife was that she was made to sign the agreement by coercion and exercise of fraud. Therefore, the conclusiveness of **Crl.MC.No.2258 OF 2013** **9** the certification of divorce relied on by the husband is doubtful and it is a matter requiring further adjudication. On a glance at Annexure-III, the copy of the allegedly executed agreement by free Will, the terms agreed are to the following effect : “Firstly : The two parties agreed to apply Emirates Personal Status Law No.28/2005 to revoke marriage contract signed between them. Secondly : The two parties acknowledge that neither of them shall raise any financial claims against the other for their previous marriage life. Thirdly : Neither party is entitled to raise any financial claim against the other resulting from their marriage contract, after signing this agreement.” Therefore, even as per Annexure III what has been agreed to be waived is financial claims resulting from the marriage contract. What is proposed by Annexure I being a criminal prosecution for the ill-treatment meted out by the respondent wife at the hands of her husband, neither the certification of divorce nor the agreement which formed the basis for obtaining it, can have any serious impact on it. 8. The decisive factor in the case on hand is whether the allegations would prima facie attract the culpability of the petitioner in an offence under Section 498-A IPC. The answer in the contextual scenario is affirmative and therefore, Crl.M.C fails. **Crl.MC.No.2258 OF 2013** **10** 9. The learned Public Prosecutor submitted at the fag end that the investigation in the crime was completed and as on date, a Final Report is filed and the court which received has taken cognizance of it. Therefore, in effect, the prayer itself has become infructuous. In the result, Crl.M.C stands disposed of reserving liberty to the petitioners to take defences based on the agreement and decree produced before the trial court and to adduce evidence with reference to the contentions taken. The trial court shall see that the case seized by it shall be disposed of, untrammeled by observations, if any made by this Court on merits. **Sd/-** **MARY JOSEPH** **JUDGE** NAB/ttb **Crl.MC.No.2258 OF 2013** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **ANNEXURE 1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 174/2013 OF MEDICAL COLLEGE POLICE STATION** ## **ANNEXURE II** **ANNEXURE II TRUE COPY OF THE AGREEMENT DATED 30-10-2012 WITH ITS ENGLISH TRANSLATION** ## **ANNEXURE III** **ANNEXURE III TRUE COPY OF THE PROCEEDINGDS DATED 12-12-2012 OF THE DUBAI COURT,GOVERNMENT OF DUBAI,WITH ITS ENGLISH TRANSLATION** ## **ANNEXURE IV** **ANNEXURE IV TRUE COPY OF THE CERTIFICATE OF DIVPORCE ISSUED BY THE MINISTRY OF FOREIGN AFAIRS UNITED ARAB EMIRATES SHARJAH,WITH ITS ENGLISH TRANSLATION** ## **//TRUE COPY//** **P.S. TO JUDGE**