Arun Kumar Agarwal vs. Radha Arun [2001 CriLJ 3561]

Facts in Brief:

1. The parties here are the husband (respondent) and the wife (petitioner). (They shall be hereinafter referred to as such.) Their marriage was said to have taken place in 1983. It was a love marriage between the two. At the initial point in time, both parties seemed to be in some sort of a well-off position. They’re both graduates and well qualified. Husband is a graduate of the University of Bihar. Whereas, the wife continued her studies at the University of Delhi. She did her post-graduate study at the academy. After her studies, she worked as an IRS officer in the Customs Department. She is currently serving as a joint customs commissioner in Bangalore.
2. Two children were born to them after marriage. The parents of the petitioner are from Bangalore. The respondent comes from Bihar. Husband got a Public Sector job in a Bank and was dismissed by the same bank. He was then involved in spending funds in shares and other investments. Currently, there is no indication that he has been working in any daily job or service in any industry or concern.
3. In December of 1999, the petitioner filed a petition at the family court of Bangalore under sections 7 & 8 of the Guardians and Wards Act praying the court for a decree against her husband; stating that, her husband is unfit to be a natural guardian of their minor children.
4. As the respondent does not have a proper job or a stable lifestyle he tends to keeps himself busy by being concerned with filing disputes in public importance and is in the habit of blackmailing through them to others. He had secured the signature of the petitioner/wife in blank papers through intimidation and bribery with some malafide and ulterior motives. The wife also contended that the respondent is an insane guy with an unsound mind and, in truth; a streak of insanity runs in his family. The wife also stated that the petitioner/she had been the only source of income and make sure of running the household from the very beginning and retaining her children as well. She has no right knowledge of her husband’s financial condition.
5. The petitioner then presented a series of facts that the petitioner/wife found that the respondent had continued with his relationship with the above-mentioned woman, whom he had once divorced and for whom the petitioner/wife herself had added to the sum of the dowry. The woman now being a divorcee resumed contacts with the respondent and the respondent has had an illegal affair (outside marriage) with her and has been staying in Delhi for the last year and is likely to be living with the said woman in a flat in Delhi.
6. The petitioner seeks a temporary injunction which was against the respondent, restraining and stopping him from removing the children from her custody during the pendency of her filed petition. The court had passed an ex-parte order ordering a temporary injunction of the same against him.
7. The respondent then put in a Statements of Objections against the petition order and filed it, specifically denying all the allegations which were made against him therein.

Issues Raised

Petitioner

1. She further contended that she is the sensibly fit and proper, stable person to become the guardian for the children and also asked the court to appoint her as the guardian of said minor children.
2. She further raised the contention that the marriage with her husband/respondent became a non-starter from the beginning.
3. That the husband/respondent was having an affair with a woman before marriage and that after certain years of marriage the relation continued leading to bad behavior of the respondent.
4. The contentions continued when she mentioned that her husband was a man full of apprehensive nature, and also an emotional person. He had no real love and affection for his children which make him unfit for taking a prominent role in the guardianship of the petitioner’s children.
5. The petition alleges that the petitioner’s husband/respondent was seeking custody of her said minor children with a view to blackmail her. Even the children do not have any desire, wish, or willingness to live along with him. As an individual with a reputed high official position in the customs department, she is very competent and in a much better position to fulfill the educational and other needs of her children in the very best and possible way and for their good upbringing and growth. On the opposite, the respondent therefore is not in a position to look after these children and to take care of their safe growth.

Respondent

1. The respondent ordered that the said ex-parte order be set aside, alleging that the order passed has been secured by the petitioner/wife on the grounds of frivolous charges and misleading allegations which were made against her.
2. He also lodged an application pursuant to sections 191 & 193 of the IPC asking that the Court be satisfied to begin perjury proceedings against the wife for deliberately providing false evidence.
3. The appellant pleaded that the Court below was not morally correct in denying his application and that it had also made a significant mistake not to approve the same and to lodge a lawsuit under section 340 of Cr.P.C for perjury against the petitioner under section 193 of the IPC. It was said in order to prove that the statement given by the petitioner was knowingly false that he does not reside in Delhi while residing at the marital home in Bangalore.
4. The appellant/ respondent has fiercely argued that he is a citizen of high status in society, that he has already taken two or three conflicts of public concern to the High Courts of Karnataka and Delhi in favor of a public case involving burning issues. As such, he is much more mindful of his duty as an affectionate father towards his children.

Rule of Law

1. When we look at the legal sections which were discussed in the case were sub-clause (b)(i) of Section 195(1) of CrPC also extends to conviction for a crime under Section 193, IPC. P.C. Section 193, IPC is a criminal provision that specifies that “Punishment of false evidence” is to be dealt with as clarified in Section 193, IPC.
   • Where section 193 of IPC states that punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabri­cates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either de­scription for a term which may extend to three years, and shall also be liable to fine.
   • Also that the relevant portion of section 195 of Cr.P.C deals with the prosecution for contempt of lawful authority of public servants, for offenses which are caused against public justice, and for the offenses which relating to documents given in evidence and that the said was done by the wife/petitioner in the case.
2. The information presented to the Court forms a clear prima facie argument at this stage of the proceedings. Also, the honorable judge may have immediately continued to conduct an inquiry under Section 340, Cr.P.C
   • The object of Section 340 of the Cr.P.C. is to determine if any crime involving the administration of justice has been perpetrated in relation to any trial before or record produced/produced in evidence before the Court, within the period that the document or evidence was in custody, and whether it is therefore expedient in the interests of justice to take such action.[1]

Judgment Analysis

1. For the judgment, the family court, it was held that the fact that because the case is a premature one and that is at the present stage of the proceeding one cannot jump to the conclusion, also that the husband/respondent has made out a case against the petitioner as to hold that she has given false evidence in the case.
2. With respect to the appeal filed by the respondent/ husband under section 340 CrPC was dismissed. It was contended that the petition filed under section 340 of Cr.P.C. must be decided only at the end.[2]

Conclusion

The case despite revolving around submitting wrong evidences and the custody of the children reached a decision. Cruelty can be considered as a ground for divorce but in child custody, there have to be essentials which are for the betterment of the children. In this male dominant society where men are considered to have absolute power and can become the leader or front face of any activity you name of, but in some instances where this perspective can lead to an issue of danger, not just the reputation but the actions done by him in the society. There are times when the male population came to the side of the victim zone and is made liable for the offenses which are not done by them. The very common examples that we come across in our day-to-day news are of domestic violence, adultery or falsely accused of some inordinate crimes. This cannot be considered that in the said cases they are always the innocent party but sometimes the women treacherously frame them. Child protection and custody are legal concepts that are often used to define the legal and functional arrangement between the adult and the child, such as the rights of the parents to make righteous decisions on behalf of the child and the parent’s responsibility to provide for the child.

References:

[1] Sharma, V., 2019. Section 340 Of The Code Of Criminal Procedure, 1973: Right Of Hearing Of ‘Would-Be Accused’ At Preliminary Inquiry – Criminal Law – India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/crime/868642/section-340-of-the-code-of-criminal-procedure-1973-right-of-hearing-of-would-be-accused39-at-preliminary-inquiry> [Accessed 10 February 2021].

[2] Lawdadi.in. n.d. Perjury Important citations and Judgments of Supreme Court and High Court for advocates| IPC. [online] Available at: <http://www.lawdadi.in/perjury-important-judgments-citations-of-supreme-court-high-courts-district-court-perjury.html> [Accessed 10 February 2021].