HARESH N MIRCHANDANI Vs. RESHMA MIRCHANDANI

JUDGEMENT

(1.) BY this criminal writ petition, the petitioner is praying for quashing the complaint filed by the first respondent. The petitioner and the first respondent are husband and wife. The complaint is filed by the first respondent-wife alleging commission of offence under section 494 of the Indian Penal Code. The challenge by the petitioner is mainly on two grounds. The first ground is that even according to the case of the first respondent when the alleged second marriage of the petitioner was solemnized on 15th November 1983 he was a citizen of India. The learned counsel appearing for the petitioner submitted that cognizance could not have been taken by the Court of the said complaint on account of want of sanction under section 188 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The second submission is that by an order dated 9th November 1983, the competent Court in United States of America had dissolved the marriage between the petitioner and the first respondent and the second marriage has been allegedly performed by the petitioner on 15th November 1983.

(2.) THE learned counsel for the petitioner submitted that by order dated 22nd September 1997 passed by this Court in Criminal Application No.1272 of 1997 this Court had specifically directed the learned Magistrate to reconsider the entire matter including the legality of the decree of divorce passed by a Court in the United States of America. Inviting my attention to the order dated 2nd March 1998 passed by the learned Magistrate he submitted that the effect of the said decree has not been properly considered by the learned Magistrate. He submitted that on the first point of sanction, reliance cannot be placed on the decision of the Apex Court in the case of Ajay Agarwal Vs. Union of India and others (AIR 1993 SC 1637), in view of the subsequent decision of the Apex Court in the case of Fatma Bibi Ahmed Patel Vs. State of Gujarat and another ((2008) 6 SCC 789).

(3.) I have carefully considered the submissions. As far as second submission is concerned, now there is a decision of the Family Court holding that the decree of divorce passed by the Court in United States of America is not binding and is not conclusive. Therefore, the second submission made by the learned counsel for the petitioner cannot be considered as a ground for quashing the complaint. As far as the sanction under section 188 of the said Code is concerned, it will be necessary to refer to the decision of the Apex Court in the case of Ajay Agarwal (supra). Paragraph 27 of the said decision reads thus :-