Tuesday, 15 November 2016

Whether wife can be prosecuted For Lying Before Court To Claim Maintenance?

 This   Court   notices   that   the   Court   has
elaborately   discussed   the   law   and   applied   the
said law to the facts to hold that the petitioner
has not stated the correct facts on oath. She has
stated  that she  was  doing  house­hold  work   and
has   no   source   of   income   while   her   income   is
Rs.40,000/­ per month from the business. She has
of course, revealed that she has received sum of

Rs.   4   lakhs   from   the   earlier   marriage.   With
regard to the income tax returns, she is found to
have   given   false   evidence.   With   regard   to   the
fixed   deposit   and   the   amount   that   has   been
credited in her FDR, she stated that she has no
knowledge with regard to her accounts in Central
Bank of India and Rajkot Co­operative Bank. The
husband   also   examined   the   witness,   who   was
Inspector   in   the   Income­Tax   Department,   wherein
she submitted her personal income and her incometax
 returns have  been  brought on the  record  to
indicate   that   from   the   year   2011­12   she   has
income   from   business   at   Rs.1,48,251/­.   The
business   profit   was   worth   Rs.1,84,251/­.   The
Court   has   given   the   details   from   Income­Tax
returns of her income of every assessment year.
Senior Manager of Central Bank of India of Rajkot
also has given the details that total of Rs. 17
lakhs,   which   are   deposited   in   the   name   of   the
petitioner   that   towards   the   fixed   deposit
receipt, which she has not disclosed. The Court
on   noticing   that   she   was   getting   sufficient
income from the fixed deposit receipt and yet has

not   admitted   in   the   evidence   produced   by   her
stating   that   she   has   no   source   of   income,   had
directed the initiation of the prosecution under
section 195 read with section 340 of the Code of
Criminal Procedure. 
15. The Apex Court in the case of  Pritish   vs.
State of Maharashtra reported in 2002(1) SCC 253
was   considering   section   340   of   the   Code   of
Criminal Procedure to hold that the hub of this
provision   is   formation   of   an   opinion   by   the
court(before which proceedings were to be held)
that it is expedient in the interest of justice
that  an  inquiry  should  be  made  into an offence
which appears to have been committed. In order to
form such opinion the Court is empowered to hold
a preliminary inquiry. It is not peremptory that
such   preliminary   inquiry   should   be   held.   Even
without   such   preliminary   inquiry   the   Court   can
form such an opinion when it appears to the Court
that an offence has been committed in relation to
a  proceeding  in  that Court.  It  is  important  to
notice   that   even   when   the   Court   forms   such   an
opinion,   it   is   not   mandatory   that   the   court

should   make   a   complaint.   This   sub­section   has
conferred a power in the Court to do so. It does
not mean that the Court should, as a matter of
course,   make   a   complaint.   But   once   the   Court
decides to do so, then the Court should make a
finding to the effect that on the fact situation
it is expedient in the interest of justice that
the offence should further be probed into. If the
Court finds it necessary to conduct a preliminary
inquiry to reach such a finding it is always open
to the Court to do so, though absence of any such
preliminary inquiry would not vitiate a finding
reached by the Court regarding its opinion. The
purpose of preliminary inquiry, even if the Court
opts to conduct it, is only to decide whether it
is   expedient   in   the   interest   of   justice   to
inquire   into   the   offence   which   appears   to   have
been committed. 
 Laws   which   are   otherwise   in   favour   of   the
distressed wife when are sought to be misused by
declaring completely incorrect facts and also by
suppressing the material aspect, the trial Court
at the  time of considering the  case found that
the impact on the administration of justice would
make   it   expedient   for   it   to   direct   the
prosecution. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7666 of 2016

SEJALBEN TEJASBHAI CHOVATIYA.
V
STATE OF GUJARAT..
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/10/2016



1. Leave to amend to join the husband as respondent
No.2 is permitted. To be carried out forthwith.
2. At the outset, it is to be mentioned that in this
petition,   challenge   is   made   to   the   order   dated
6.9.2016   passed   by   the   learned   Judge,   Family
Court   below   Exh.88   in   Criminal   Miscellaneous
Application No.346 of 2013, attempts were made by
the Court to see that the parties can reach to
any   kind   of   settlement.   However,   as   the   same
could not be worked out, both the sides have been
heard   extensively.   The   petitioner   is   the   wife,
who is married to respondent No.2. 
3. The petitioner is married to respondent No.2 on

20.11.2008 and a son is begotten out of the said
wedlock   on   21.12.2010.   It   is   the   say   of   the
petitioner that after the birth of the son, the
husband   got   shifted   at   Jetpur   and   started
residing in a rented premise. He had once again
started residing with joint family at Rajkot. The
petitioner urged that she was deserted in August,
2012 and thereafter she made an application under
section   125   of   the   Criminal   Procedure   Code   by
preferring   Criminal   Miscellaneous   Application
No.346 of 2013 for herself and her son. 
4. The trial Court, on an application Exh.88 under
sections   195   and   340   of   the   Code   of   Criminal
Procedure   preferred   by   respondent   No.2   on
13.5.2016,   recorded   the   evidence   on   both   the
sides and directed the Registrar of Family Court
to file an application before the Pradyuman Nagar
police station under sections 191,192 and 193 of
the Indian Penal Code. 
5. After staying the said order for a period of 30
days, the dissatisfied wife is before this Court
with various averments and following reliefs:­

“(10) The   petitioner   on   the   aforesaid
premises, prays before Your Lordships that:
(A) Your  Lordships may  kindly  be  pleased  to
quash   and   set   aside   the   Order   impugned
Dt.6/09/2016   passed   by   the   learned   Judge
Family   Court,   Rajkot   below   Ex­88   in
Cri.M.A.No.346 of 2013. 
(B) Pending   admission,   hearing   and   final
disposal   of   present   application,   Your
Lordships   may   kindly   be   pleased   to   stay   the
implementation,   execution   and   compliance   of
the Order Dt. 6/09/2016 passed by the learned
Judge   Family   Court,   Rajkot   below   Exh­88   in
Cri.M.A.No.346 of 2013. 
(C) Your  Lordships may  kindly  be  pleased  to
pass such other and further relief as may be
deemed   just   and   proper   in   favour   of   the
petitioners, in the interest of justice.”
6. Learned   advocate   Chandrani   appearing   for   the
petitioner  has urged that  even  if  there  is  any
perjury, the petitioner need not be prosecuted.
He   has   urged   that   Court   below   was   in   error   in
appreciating   the   evidence,   specifically   the
income tax return to conclude that the petitioner
had   suppressed   her   true   income.   It   is   not   the
case of the petitioner that she was serving and
was   drawing   the   salary.   Her   income   tax   returns
have   been   managed   by   her   father   and   it   is   not
unusual for family members to have the income tax
returns   from   the   business   of   family.   It   is
further   his   say   that   the   lady   is   a   graduate.

However,   she   would   not   know   about   any   return
being filed by the father nor would she be aware
of the income of the family members and of hers
in absence of any work that she was performing.
It is not the case of the other side that she was
serving and getting the salary from the account
of Kirit Traders owned by her father. 
7. He further has urged that the order passed by the
learned   Judge   is   contrary   to   the   provision   of
sections   195   and   340   of   the   Indian   Penal   Code
and,   therefore,   also   the   same   deserves   to   be
quashed. 
8. Learned   advocate   appearing   for   respondent   No.2
has   urged   that   it   is   very   rare   that   the   Court
would go out of the way to hold that perjury has
been  committed and,  in  the instant  case,  it  is
quite obvious  from  the  record that  she had  not
revealed   the   fact   that   she   is   given   permanent
alimony of the sum of Rs.4,00,000/­ so also all
her income is shown under the Income­Tax Act.
9. Learned   Additional   Public   Prosecutor   for
respondent   No.1   has   urged   this   Court   not   to

interfere.   According   to   him,   the   Court   has   in
detail   given   the   reasonings   for   initiating   the
proceedings against the present petitioner.
10. Admittedly, this order has arisen on account
of the affidavit given by the petitioner, wherein
she   declared   herself   a   house­wife   having   no
source   of   income.   However,   she   has   admitted   in
her cross­examination that she has obtained Rs.4
lakhs from  her previous husband  at  the time  of
taking divorce from him.
11. An application came to be moved before the
Family   Court,   Ahmedabad   by   the   husband   that
though   she   is   earning   a   salary   of   Rs.40,000/­
from business, she has mentioned in her affidavit
that   she  is  a   house   wife   and   has  no  source   of
income.   The   earlier   application   came   to   be
disposed of on the ground that the evidence was
not recorded. 
12. Later   on,   when   similar   application   came   to
be moved, the Court had questioned as to whether
the applicant had produced false evidence on oath
and vide order dated 23.5.2016 directed that the

same would be decided at the time of deciding the
main application. 
13. Another   application   came   to   be   moved   being
Criminal   Revision   Application   No.429   of   2016
before   this   Court,   which   was   withdrawn   on
10.8.2016.   Thereafter,   an   application   was   moved
before   the   Family   Court,   Rajkot   to   take   action
against   the   petitioner   under   sections   195   read
with   section   340   of   the   Code   of   Criminal
Procedure   committing   an   offence   under   sections
191, 192 and 193 of the Indian Penal Code. The
Court   below   held   in   affirmation,   which   has
aggrieved   the   petitioner   for   ventilating   the
grievance in this petition memo.
14. This   Court   notices   that   the   Court   has
elaborately   discussed   the   law   and   applied   the
said law to the facts to hold that the petitioner
has not stated the correct facts on oath. She has
stated  that she  was  doing  house­hold  work   and
has   no   source   of   income   while   her   income   is
Rs.40,000/­ per month from the business. She has
of course, revealed that she has received sum of

Rs.   4   lakhs   from   the   earlier   marriage.   With
regard to the income tax returns, she is found to
have   given   false   evidence.   With   regard   to   the
fixed   deposit   and   the   amount   that   has   been
credited in her FDR, she stated that she has no
knowledge with regard to her accounts in Central
Bank of India and Rajkot Co­operative Bank. The
husband   also   examined   the   witness,   who   was
Inspector   in   the   Income­Tax   Department,   wherein
she submitted her personal income and her incometax
 returns have  been  brought on the  record  to
indicate   that   from   the   year   2011­12   she   has
income   from   business   at   Rs.1,48,251/­.   The
business   profit   was   worth   Rs.1,84,251/­.   The
Court   has   given   the   details   from   Income­Tax
returns of her income of every assessment year.
Senior Manager of Central Bank of India of Rajkot
also has given the details that total of Rs. 17
lakhs,   which   are   deposited   in   the   name   of   the
petitioner   that   towards   the   fixed   deposit
receipt, which she has not disclosed. The Court
on   noticing   that   she   was   getting   sufficient
income from the fixed deposit receipt and yet has

not   admitted   in   the   evidence   produced   by   her
stating   that   she   has   no   source   of   income,   had
directed the initiation of the prosecution under
section 195 read with section 340 of the Code of
Criminal Procedure. 
15. The Apex Court in the case of  Pritish   vs.
State of Maharashtra reported in 2002(1) SCC 253
was   considering   section   340   of   the   Code   of
Criminal Procedure to hold that the hub of this
provision   is   formation   of   an   opinion   by   the
court(before which proceedings were to be held)
that it is expedient in the interest of justice
that  an  inquiry  should  be  made  into an offence
which appears to have been committed. In order to
form such opinion the Court is empowered to hold
a preliminary inquiry. It is not peremptory that
such   preliminary   inquiry   should   be   held.   Even
without   such   preliminary   inquiry   the   Court   can
form such an opinion when it appears to the Court
that an offence has been committed in relation to
a  proceeding  in  that Court.  It  is  important  to
notice   that   even   when   the   Court   forms   such   an
opinion,   it   is   not   mandatory   that   the   court

should   make   a   complaint.   This   sub­section   has
conferred a power in the Court to do so. It does
not mean that the Court should, as a matter of
course,   make   a   complaint.   But   once   the   Court
decides to do so, then the Court should make a
finding to the effect that on the fact situation
it is expedient in the interest of justice that
the offence should further be probed into. If the
Court finds it necessary to conduct a preliminary
inquiry to reach such a finding it is always open
to the Court to do so, though absence of any such
preliminary inquiry would not vitiate a finding
reached by the Court regarding its opinion. The
purpose of preliminary inquiry, even if the Court
opts to conduct it, is only to decide whether it
is   expedient   in   the   interest   of   justice   to
inquire   into   the   offence   which   appears   to   have
been committed. 
16. Likewise,   in   the   decision   rendered   by   the
Apex Court in the case of Iqbal Singh Marwah and
another   vs.   Meenakshi   Marwah   and   another
reported   in  (2005)   4   SCC   370,   it   has   been
emphasized   that   even   when   there   is   a   case   of

forgery noticed by the Court and the Court forms
the  opinion that  unless it is expedient  in  the
interest   of   justice   to   prosecute   a   person,   the
Court is not to do it in a referred manner.  The
expediency will normally be judged by the Court
by weighing not the magnitude of injury suffered
by the person affected by the offence, but having
regard  to  the  effect or impact  of  that offence
upon   administration   of   justice.   The   Court   also
held that bar under section 195(1)(b)(ii) that no
Court shall take cognizance of any such offence
except   on   the   complaint   in   writing   of   such
matter.   It   also   held   that   the   bar   would   be
attracted   only   when   the   offences   enumerated   in
section   195(1)(b)(ii)   have   been   committed   with
respect to a document, after it has been produced
or   given   in   evidence   in   a   proceeding   in   any
Court. If said offence is committed or given  in
evidence in Court, no complaint by Court would be
necessary   and   a   private   complaint   would   be
maintainable. 
17. The only aspect that needs to be considered
by this Court is as to whether it is expedient in

the   interest   of   justice   that   such   prosecution
would be necessary. This expediency, as held by
Apex Court, is not weighing the magnitude of the
injury suffered by the person affected by it but
having   regard to the effect or impact that the
offence would have on administration of justice
and considering the factual scenario, the Court
has formed a preliminary opinion to hold that it
is a case of perjury.
18. As   can   be   noticed   from   the   chronology   of
events   and   the   evidence   that   has   been   adduced
before   the   Court   concerned,   it   is   certain   that
the injury which could have been sustained by the
other side  has not  resulted  on  account of this
alleged   falsehood   because   respondent   No.2   could
find out at an appropriate time the details which
he has furnished before the Court. So far as its
impact   on   the   administration   of   justice   is
concerned, this Court has no reason to interfere
as often it is found that  the litigants  coming
before the Court chose to speak blatant lies and
do so with complete impudence. 

19. Laws   which   are   otherwise   in   favour   of   the
distressed wife when are sought to be misused by
declaring completely incorrect facts and also by
suppressing the material aspect, the trial Court
at the  time of considering the  case found that
the impact on the administration of justice would
make   it   expedient   for   it   to   direct   the
prosecution. 
20. This   Court   finds   no   justification   in
interfering with the order. Even otherwise, the
petitioner is going to get all the opportunities
to   defend   her   case   effectively.   It   is   also,
therefore,   necessary   for   this   Court   not   to
elaborate further on the merits of the matter.
21. Petition   stands   disposed   of   with   above
directions.
(MS SONIA GOKANI, J.)

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