Kanwal Nain Singh Malik vs Union Territory, Chandigarh

M.L. Singhal, J.

Ms. Jagdeep Walia was married to Varinderpal Singh Malik son of Shri Kanwal Nain Singh Malik at Chandigarh on 15th March, 1991. The marriage was registered in the office of Registrar, Chandigarh vide register No. 7200 on 18th March, 1991. According to Jagdeep Walia, she and her husband belong to affluent families. Very valuable and expensive dowry articles were given by the parents of Jagdeep Walia in marriage which constituted her stridhan. After the marriage the possession of jewellery and other articles which had been given by her parents and near relatives was given to her husband, fatherinlaw Kanwal Nain Singh Malik and motherinlaw Smt. Swaran Kaur. They were required to keep jewellery and other articles as trustees of her stridhan. They refused to hand over Stridhan to her when they were requested to do so. They misappropriated her Stridhan which had been given to them as ''trustees'' and which was of the value of lacs of rupees. According to Jagdeep Walia not only that they misappropriated her Stridhan they also subjected her to mental and physical cruelty. She was subjected to mental and physical cruelty for not fulfilling the unjust demands of her husband and inlaws. On these allegations, Jagdeep Walia lodged FIR No. 43 dated 4.3.1994 at Police Station Central, Chandigarh under sections 406/498A IPC against Kanwal Nain Singh Malik and his wife Smt. Swaran Kaur.

Through this criminal misc. petition No. 15931M of 1996 filed under Section 482 Cr.P.C. Kanwal Nain Singh Malik and his wife Swaran Kaur seek the quashing of FIR No. 43 dated 4.8.1994 registered at Police Station Central, UT Chandigarh under Sections 406/498A IPC against them. It is averred by them that just after one week of marriage, Jagdeep Walia left for USA. She returned in the month of February, 1992 and again a month thereafter left for U.S.A. alongwith her husband Varinderpal Singh Malik. Since then they have been continuously living in U.S.A. Some time in the year, 1994 she came to India and lodged FIR against them. When they came to know about the registeration of FIR against them under Sections 406 and 498A IPC at the instance of Jagdeep Walia they were taken by surprise as they were not aware of any rancour or any problem between them. Since she was residing with her husband in U.S.A. and they had not heard of anything untoward between them, they felt they were leading a happy married life. She threatened them on phone that she would get them arrested as she had influence with the then Director General of Police Sh. I.P.S. Gill. A number of threats were received by them from the Chandigarh Police and therefore they felt that she was in a position to harm them. They informed Varinderpal Singh Malik in U.S.A. regarding threats being received by them. They learnt that Varinderpal Singh Malik had instituted a divorce petition against her in the Superior court of New Jersey, Chancery DivisionFamily Part Hudson County, which was decreed on 17.4.1996 vide judgment Annexure P1. A persual of judgment Annexure P1 would reveal that every dispute regarding distribution of marital assets was settled between them at the time of divorce. Apart from that Sh. Varinderpal Singh Malik paid Rs. 6000 U.S. Dollars to Jagdeep Walia. It was also mentioned in Judgment Annexure P1 that no criminal or civil action against Varinderpal Singh Malik would be competent in India and if any action was initiated against him by Jagdeep Walia, she would get the same dismissed. It is averred that in the face of what had taken place between Jagdeep Walia and Varinderpal Singh Malik everything stood settled, in the wake of the dissolution of their marriage by divorce by the New Jersey Court and no dispute survived between them respecting dowry etc. The alleged cruelty if any took place in USA and therefore, the Courts in India do not have jurisdiction.

It is stated by Mr. Ajai Lamba, learned standing counsel for UT Chandigarh that Ms. Jagdeep Walia is residing in USA and that the petitioners did not put in correct address and as such she has not been served. So far as Union Territory, Chandigarh is concerned, they cannot furnish any reply to the facts put forth in this criminal misc. petition.

It is submitted by learned counsel for the petitioners that Varinderpal Singh Malik filed a petition for divorce in New Jersey Court, which was decreed vide judgment Annexure P1. In judgment Annexure P1 there is a mention that on March 28, 1996 they settled the distribution of marital assets and it was agreed between them that they shall waive every right, title or claim to alimony as against each other and that Jagdeep Walia shall retain sole right, title and interest in her automobile and Varinderpal Singh waives all claims to that. It was also agreed that Varinderpal Singh Malik shall give to Jagdeep Walia a sum of 6000 US Dollars within four months of the date of divorce and it was further agreed that Jagdeep Walia shall not initiate any action criminal or civil against Varinderpal Singh Malik in India arising out of their marriage and if any action was initiated that she would get dismissed. It is submitted by learned Counsel for the petitioners that in view of what is recited in the judgment Annexure P1 dissolving their marriage by a decree of divorce, the registration of FIR was unwarranted and uncalled for. In support of his submission that when Jagdeep Walia had received 6000 US Dollars from Varinderpal Singh Malik and had settled every issue regarding distribution of marital assets and had put their marriage to an end, there was no room so far as the registration of this case is concerned, he drew my attention to Anil Sethi and another v. The State of U.T. Chandigarh and another, 1988(1) Recent Criminal Reports 134 and Yashpal Saini v. State of Haryana, 1995(3) Recent Criminal Reports 534.

In 1988(1) Recent Criminal Reports 134 (supra) FIR registered under Sections 498A, 420 and 406 IPC was quashed because of a compromise between the husband and the wife, whereunder a sum of Rs. 53000/ was agreed to be paid to the wife and further the articles already deposited by the husband in Police Station Sector 11, Chandigarh on 8.9.1987 would belong to Smt. Kaushalya Gera i.e. mother of the wife and the accused would have no right or claim thereon and the husband and wife would get a decree of divorce by way of mutual consent under Section 13B of the Hindu Marriage Act, immediately after the decision of this petition. It is thus clear that which was subject matter of the case reported as 1988(1) Recent Criminal Reports 134 was quashed in view of a clear cut compromise settling the items of dowry.

In Yashpal Saini v. State of Haryana, 1995(3) Recent Criminal Reports 535 , FIR under Sections 498A and 406 IPC lodged by the wife against husband and others was quashed because of a compromise between the wife and husband that a petition for mutual divorce would be moved and that the wife will not press her claim against the husband and others in the criminal proceedings. It was viewed that once the marriage is dissolved with the mutual consent by a decree of divorce and all disputes are settled amicably, in that event it is in the interest of family and the society that the criminal proceedings under Sections 498A/406 IPC may well be quashed. Reliance was placed there on Parkash Singh v. Smt. Santosh Kaur, 1994(1) Chandigarh Law Reporter 312 and Harmeet Singh v. The State of Punjab and another, 1994(1) Chandigarh Law Reporter 453, also. Before the matrimonial court the wife had specifically stated that after getting the decree of divorce she would not press her claim in criminal proceedings in the court of Shri Shiva Sharma, Addl. C.J.M. Faridabad. She had further stated that "she or her parents or any of her relatives shall not be giving any evidence in the criminal case mentioned above against the second party or his parents. She shall have no objection to the filing of a petition by the husband in the High Court of Punjab and Haryana for quashing the proceedings registered under FIR No. 886 dated 6.12.1992 under Sections 406/498A IPC." It is thus clear that the quashment of FIR under Sections 406/498A IPC proceeded on altogether different footing.

It has been submitted by learned counsel for the petitioners that where a wife receives lumpsum payment in lieu of maintenance and dowry articles and she also agrees not to institute a criminal case or getting a criminal case dismissed, FIR under Sections 406/498A IPC will necessarily be quashed. In support of his submission he drew my attention to Baljit Singh v. State of Punjab, 1990(1) Recent Criminal Reports 39.

In this case, however, at the time of divorce it was agreed that Varinderpal Singh Malik shall give to Jagdeep Walia a sum of $ 6000 (US Dollars) within 4 months of the date of divorce. It is nowhere mentioned in the judgment Annexure P1 granting divorce that this sum of $ 6000 (US Dollars) shall be in lieu of dowry or maintenance or both. It is a question of fact to be determined at the trial by the Magistrate as to whether $ 6000 (US dollars) were really given by Varinderpal Singh Malik to Jagdeep Walia and if so whether the receipt of said payment was in lieu of dowry and maintenance. In the judgment of divorce Annexure P1 there is a mention regarding settlement of the issue as to the distribution of marital assets. There is no detail mentioned so far as marital assets are concerned which were distributed among them. The property settlement agreement dated 28.3.1996 said to have been entered into between Varinderpal Singh Malik and Jagdeep Walia at the time of dissolution of their marriage by a decree of divorce has not been brought before this Court. Had that property settlement agreement been brought before this Court, this Court could have seen whether the property settlement agreement covered the issue as to the articles of dowry also. Instant is, thus, not a case where FIR 43 dated 4.8.1994 under Sections 406/498A IPC could be quashed at the very threshold. The case is still at the stage of investigation. It is in the rarest of rare cases that this Court in exercise of its inherent powers under Section 482 Cr.P.C. will quash an investigation at the threshold.

So, this criminal misc. petition fails and is hereby dismissed.