Ayush Mahendra Vs State of Telangana on 05 Jan 2021

Posted on March 8 by ShadesOfKnife

A single judge bench of Telangana High Court passed this reportable judgment regarding whether a co-accused be a surety to accused in a criminal case.

From Paras 21-26,

21. As discussed supra, the prime object of the surety is to secure the presence of an accused for the purpose of concluding investigation and the trial after filing charge-sheet. A surety should be a fit person. Who is a fit person is not defined or explained anywhere in the Code. Generally, the surety must be a genuine person. He should not be a bogus person. Sureties come to the Court and give undertakings to the Court that he will ensure the presence of accused. If the accused fails to appear before the Court, surety bond executed by the surety will be forfeited. Thus, the Station House Officer has to ascertain the genuineness of surety. It is also relevant to note that there is no prohibition in the Code that the co-accused cannot stand as surety to any accused. It is also relevant to note that the prosecution has not filed any document to show that the mother of the accused is added as accused No. 2 in Crime No. 913 of 2020. Therefore, the Station House Officer, Madhapur Police Station is not justified in refusing to accept the surety of the mother of the accused. The mother of the accused whether she is co-accused or not can stand as a surety.

22. The apprehension of the prosecution is that both the petitioner and her mother are from Lucknow and there is every possibility of accused jumping on bail in which event the Investigating Officer will not be in a position to ensure the presence of the accused in concluding the investigation.

23. In view of the said apprehension, it is relevant to point out that there is provision in the Code to arrest the surety in the event of accused fails to appear before the Investigating Officer or Trial Court for concluding investigation or trial respectively. There is no provision in the Code to take any other step/action against surety except forfeiting the surety amount, and initiating the procedure laid down under Sections 82 and 83 of the Code which is lengthy procedure.

24. At the cost of repetition, as discussed supra, the object surety is to ensure the presence of accused for the purpose of completion of investigation and concluding of trial in case of filing of charge-sheet. The surety should be a fit person and a genuine person. He/She should not be a bogus person. The Court or the Station House Officer has to ascertain and take an undertaking from the surety that he/she will ensure the appearance of the accused for the purpose of completing the investigation and concluding the trial in case of filing charge-sheet. The Station House Officer should be satisfied the genuineness and identity of the surety including residential address of surety. The Station House Officer cannot reject or refuse to accept surety offered by mother of the accused, whether she is a co-accused or otherwise.

25. In the case on hand, the petitioner has filed copies of fixed deposit receipts obtained in the name of the mother of the petitioner, local surety and also filed copies of death certificate of his grandfather, flight tickets etc. After completion of funeral rites of his grandfather, he has reached the Hyderabad to offer sureties. But, the Station House Officer has refused to receive the same. In view of the above discussion, the Station House Officer, Madhapur, cannot refuse to accept the surety offered by the mother of the petitioner whether she is a co-accused or otherwise.

26. In view of the above discussion and also the authoritative principles of law, the Station House Officer, Madhapur Police Station, Cyberabad Commissionerate, is directed to accept the surety of mother of the petitioner-accused in compliance of the order dated 19.11.2020 passed by this Court in Crl. P No. 5782 of 2020. The time granted for surrender of the petitioner in the said order is extended by two weeks from the date of receipt of copy of this order.

Ayush Mahendra Vs State of Telangana on 05 Jan 2021

Citations: [2021 ALT CRI 1 230], [2021 ALD CRI 1 491], [2021 SCC ONLINE TS 1931]

Other Sources:

https://www.casemine.com/judgement/in/60af56e34653d00e3c27c6e2

Earlier Anticipatory Bail Order:

Ayush Mahendra Vs State of Telangana on 19 Nov 2020

Premchand Vs State of Maharashtra on 03 Mar 2023

Posted on March 8 by ShadesOfKnife

A Division Bench of the Supreme Court held as follows regarding the purpose and import of Section 313 of Cr.P.C.,

From Para 15,

15. What follows from these authorities may briefly be summarized thus:
a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence;
b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court;
d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;
e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;
f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;
h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission;
i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; and
j. any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.

From Para 16,

16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not
satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross-examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.

From Para 17,

17. Once a written statement is filed by the accused under subsection (5) of section 313, Cr. P.C. and the court marks it as an exhibit, such statement must be treated as part of the accused’s statement under sub-section (1) read with sub-section (4) thereof. In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him.

Premchand Vs State of Maharashtra on 03 Mar 2023

Father Thomas Vs State of U.P. and Anr on 22 Dec 2010

Posted on March 4 by ShadesOfKnife

Following the landmark decision of Apex Court here, the Full Bench of Allahabad High Court held as follows,

From Para 14,

14.In Union of India v. W.N. Chaddha, 1993 Cri.L.J 859 (SC) it has been held in paragraph 93: “…….More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under S. 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under S. 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under S. 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.”

From Para 29,

29.From a consideration of the aforesaid authorities, it is apparent that even when a complaint is filed under section 190(1) (a) and the Court decides to take cognizance and to adopt the procedure provided for inquiry under section 200 and 202 Cr.P.C, the accused is only permitted to remain present during the proceedings, but not to intervene or to raise his defence, until the order issuing summons is passed. The right of hearing of a prospective accused at the pre-cognizance stage, when only a direction for investigation by the police is issued by the Magistrate under section 156(3) Cr.P.C., can only be placed at a lower pedestal. It is only during the course of trial that the accused has been conferred rights at different stages to raise his defence. As the authorities show, that in the absence of any statutory right of hearing to the prospective accused at the pre-cognizance stage, when the direction to investigate has only been issued by the Magistrate under section 156(3), the accused cannot be conferred with any right of hearing even under any principle of audi alteram partem.

From Para 41,

41.An order under section 156(3) Cr.P.C. passed by the Magistrate directing the police officer to investigate a cognizable case on the other hand is no such order of moment, which impinges on anyvaluable rights of the party. Were any objection to the issuance of such a direction to be accepted (though it is difficult to visualize anyobjection which could result in the quashing of a simple direction for investigation), the proceedings would still not come to an end, as itwould be open to the complainant informant to move an application under section 154(3) before the Superintendent of Police (S.P.) or a superior officer under section 36 of the Code. He could also file a complaint under section 190 read with section 200 of the Code. This is the basic difference from the situations mentioned in Madhu Limaye and in Amar Nath’s cases, where acceptance of the objections could result in the said accused being discharged or the summons set aside, and the proceedings terminated. Also the direction for investigation by the Magistrate is but an incidental step in aid of investigation and trial. It is thus similar to orders summoning witnesses, adjourning cases, orders granting bail, calling for reports and such other steps in aid of pending proceedings which have been described as purely interlocutory in nature in Amar Nath (supra).

From Para 58,

58.However it is made clear that the initial order for investigation under section 156(3) is also not open to challenge in a writ petition, as it is now beyond the pale of controversy that the province of investigationby the police and the judiciary are not overlapping but complementary. As observed by the Privy Council in paragraph 37 in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 when considering the scope of the statutory powers of the police to investigate a cognizable case under sections 154 and 156 of the Code, that it would be an unfortunate result if the Courts in exercise of their inherent powers could interfere in this function of the police. The roles of the Court and police are “complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function.”

Finally, from Paras 64 and 65,

64.In this view of the matter, the Opinion of the Full bench on the three questions posed is:
65.A. The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.
B. An order made under Section 156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under subsection (2) of Section 397 of the Code of Criminal Procedure, 1973.
C. The view expressed by a Division Bench of this Court in the case of Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC 435 that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, and no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is not correct.

Father Thomas Vs State of U.P. and Anr on 22 Dec 2010

Citations:

Other Sources:

https://indiankanoon.org/doc/77085610/

https://www.casemine.com/judgement/in/5767b120e691cb22da6d4314

Union of India and Anr Vs W.N.Chadha on 17 Dec 1992

Posted on March 4 by ShadesOfKnife

A Division bench of the Apex Court held as follows,

From Para 91,

91. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.

From Para 97

97. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self- defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.

Indiankanoon Version:

Union of India and Anr Vs W.N.Chadha on 17 Dec 1992 (IK)

Casemine Version:

Union of India and Anr Vs W.N.Chadha on 17 Dec 1992 (CM)

LegalData Version:

Union of India and Anr Vs W.N.Chadha on 17 Dec 1992 (LD)

Citations: [1992 SCALE 3 396], [1992 SUPP SCR 3 594], [1992 AIR SC 1082], [1992 SUPP JT 1 255], [1993 AIR SC 1083], [1993 SUPP SCC 4 280], [1993 CRLJ SC 859], [1993 SUPPL SCC 4 260], [1993 SCC CRI 1171]

Other Sources:

https://indiankanoon.org/doc/1787029/

https://www.casemine.com/judgement/in/5609ac7be4b014971140f032

https://legaldata.in/court/read/793121

Shivcharan Lal Verma and Anr Vs State of Madhya Pradesh on 19 Feb 2002

Posted on March 2 by ShadesOfKnife

A full bench of Supreme Court held as follows regarding validity of 498A IPC proceedings when the marriage is null and void,

From Para 2,

2. This matter had not been taken up for hearing for this length of time as the judgment of this Court holding Section 306 of the IPC to be unconstitutional, was under re-consideration by the constitution bench. The constitution bench finally disposed of the matter in criminal case No. 274 of 1984 and batch and set aside the earlier judgment of this Court and held that Section 306 is constitutionally valid. In view of the aforesaid constitution bench decision, two questions arise for consideration in this appeal. One, whether the prosecution under Section 498A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi.

Finally,

There may be considerable force in the argument of Mr. Khanduja, learned counsel for the appellant so far as conviction under Section 498A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498A of the IPC.

Citations : [2002 ACR SC 1 946], [2007 DMC SC 1 120], [2002 JT SC 2 641], [2007 SCC 15 369], [2010 SCC CRI 3 729], [2002 CRIMES SC 2 177], [2002 SUPREME 3 168], [2006 SLT 9 493], [2007 CCR 1 115]

Other Sources:

https://indiankanoon.org/doc/145448/

https://www.casemine.com/judgement/in/5609adbae4b01497114121aa

Yogeeta Chandra Vs State of Uttar Pradesh and Anr on 20 Feb 2023

Posted on February 28 by ShadesOfKnife

A division bench of Apex Court held that,

From Para 4,

4. In the application form, the applicant, who applied for the post of a judicial officer did not disclose the aforesaid particulars and on the contrary said “No”. That thereafter, on the ground of suppression of facts and not disclosing the true and correct facts in the application form, the services of the appellant as a judicial officer were put to an end by the Full Court of the High Court, which came to be confirmed on the judicial side, which has given rise to the present appeals.

From Para 6,

6. In the application form, the applicant, who, as such, applied for the post of a judicial officer was required to disclose certain facts, more particularly, the facts stated in Clause 18 of the Application Form and non-disclosure of true facts and not only that but saying “No” can certainly be said to be suppression of material facts. It was immaterial whether there was a closure report or acquittal or conviction. At this stage, it is required to be noted that the particulars which were asked, whether “did you ever figure as an accused or a complainant in any criminal case? If so, give particulars with result.” Therefore, the factum of figuring the name either as an accused or a complainant in any criminal case was required to be disclosed with full particulars and with result. Therefore, the appellant cannot take the plea and/or defence that as a Closure Report was filed in the complaint in which she was the accused, the same was not required to be disclosed. On the basis of the nature of the allegations in the complaint either as an accused or a complainant, it is ultimately for the employer to take a conscious decision whether to appoint such a person or not. What could be considered while actually appointing a person depends upon the facts and circumstances of each case and it is ultimately for the employer to take a conscious decision. The post which was applied by the appellant was a very important post of judicial officer and therefore, it was expected of a person who applied for the judicial officer to disclose the true and correct facts and give full particulars as asked in the application form. If in the application form itself, she has not stated the true and correct facts and suppressed the material facts, what further things can be expected from her after she was appointed as a judicial officer.

Yogeeta Chandra Vs State of Uttar Pradesh and Anr on 20 Feb 2023

Citations :

Other Sources :

Kalicharan and Ors Vs State of Uttar Pradesh on 14 Dec 2022

Posted on February 21 by ShadesOfKnife

A division bench of the Apex Court held as follows:

From Para 22,

22. Such a case was not at all made out by the prosecution in the evidence before the Court. The material brought on record by the prosecution witnesses (PW-1 and PW-2) is to the effect that Harpal Singh died due to injuries sustained as a result of an attack made by accused nos.1,3 and 4 on him by sharp weapons. These material circumstances brought on record against the accused on which their conviction is based were never put to the accused. What was put to the accused was not the case made out by the prosecution in the evidence. No questions are asked in the Section 313 statement about the post-mortem of the body of Harpal Singh. It is not put to the witness that the cause of death of Harpal Singh was due to haemorrhage and shock as a result of injuries caused by sharp weapons. Questioning an accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself.

Kalicharan and Ors Vs State of Uttar Pradesh on 14 Dec 2022

Summary:

(credit: Pankaj Awasthi)

Citations :

Other Sources:

Ram Nath Sao @ Ram Nath Sahu and Ors Vs Gobardhan Sao and Ors on 27 Feb 2002

Posted on February 4 by ShadesOfKnife

A division bench of Supreme Court passed this Landmark observation wrt the Sec 5 of Limitation Act 1963,

From Para 12,

12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.

Ram Nath Sao @ Ram Nath Sahu and Ors Vs Gobardhan Sao and Ors on 27 Feb 2002

Citations : [2002 SCALE 2 334], [2002 SCC 3 195], [2002 AIR SC 978], [2002 ALLMR SC 2 588], [2002 SCR 2 77], [2002 AIR SC 1201], [2002 SUPREME 2 143], [2002 RD 93 556], [2006 JCR SC 1 93], [2002 LW 3 417], [2002 UC 1 718], [2002 BLJR 1 794], [2002 MLJ SC 2 85], [2002 ALR 48 101], [2002 JT SC 2 349], [2002 AIR SCW 978]

Other Sources :

https://indiankanoon.org/doc/826396/

https://www.casemine.com/judgement/in/5609adbce4b01497114121f8

Indian Oil Corporation Ltd and Ors Vs Subrata Borah Chowlek and Anr on 12 Nov 2010

Posted on February 4 by ShadesOfKnife

A division bench of Apex Court held as follows with respect to granting exemption from limitation under Limitation Act 1963,

From Para 7,

7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party.

From Para 11,

11.It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.

Indian Oil Corporation Ltd and Ors Vs Subrata Borah Chowlek and Anr on 12 Nov 2010

Citations : [2010 SCC 14 419], [2011 AIR SC 0 269], [2011 LW 1 385], [2011 KCCR SC SN 1 44], [2011 MLJ 1 1010], [2011 LLN 2 43], [2011 CUTLT SUPPL 826], [2010 AIOL 787], [2010 ELT SC 262 3], [2010 SCALE 12 209], [2011 SCC L&S 2 581], [2012 SCC CIV 1 640], [2011 AIC 97 34], [2011 ALR 84 462], [2011 AIR SC SUPP 446], [2011 FLR 130 324], [2011 AIR SCW 269], [2011 JT SC 1 535], [2011 CAL LT 2 91]

Other Sources :

https://indiankanoon.org/doc/29521266/

https://www.casemine.com/judgement/in/5609aee4e4b01497114150a9

Y.Narasimha Rao and Ors Vs Y.Venkata Lakshmi and Anr on 9 Jul 1991

Posted on January 19 by ShadesOfKnife

A division bench of Apex Court gave these interpretations to the various conditions under Section 13 of C.P.C. while deciding a foreign judgment is enforceable in India or not.

From Para 12,

12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.

Y.Narasimha Rao and Ors Vs Y.Venkata Lakshmi and Anr on 9 Jul 1991

Citations : [1991 SCC CRI 1 626], [1991 CRIMES SC 2 855], [1991 SCALE 2 1], [1991 SCR 2 821], [1991 SCC 3 451], [1991 DMC SC 2 366], [1991 JT SC 1 33], [1991 LW 2 646]

Other Sources :

https://indiankanoon.org/doc/989920/

https://www.casemine.com/judgement/in/5609ac6be4b014971140ed08

Shades of Knife

True Colors of a Vile Wife

Tag: Legal Procedure Explained – Interpretation of Statutes

Ayush Mahendra Vs State of Telangana on 05 Jan 2021

Premchand Vs State of Maharashtra on 03 Mar 2023

Father Thomas Vs State of U.P. and Anr on 22 Dec 2010

Union of India and Anr Vs W.N.Chadha on 17 Dec 1992

Shivcharan Lal Verma and Anr Vs State of Madhya Pradesh on 19 Feb 2002

Yogeeta Chandra Vs State of Uttar Pradesh and Anr on 20 Feb 2023

Kalicharan and Ors Vs State of Uttar Pradesh on 14 Dec 2022

Ram Nath Sao @ Ram Nath Sahu and Ors Vs Gobardhan Sao and Ors on 27 Feb 2002

Indian Oil Corporation Ltd and Ors Vs Subrata Borah Chowlek and Anr on 12 Nov 2010

Y.Narasimha Rao and Ors Vs Y.Venkata Lakshmi and Anr on 9 Jul 1991