INDERJIT SINGH GREWALversusSTATE OF PUNJAB & ANR.

                     [2011) 10 S.C.R. 557

                  INDERJIT SINGH GREWAL                              A
                                v.
                 STATE OF PUNJAB & ANR.
             (Criminal Appeal No. 1635 of 2011)
                       AUGUST 23, 2011
                                                                     B
     [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

       Code of Criminal Procedure, 1973 - s. 482 - Parties
 obtained decree of divorce by mutual consent - Complaint
filed by wife before the police under the Protection of Women c
from Domestic Violence Act, 2005 that the divorce decree
was sham - Subsequently, criminal complaint also filed
 under the 2005 Act before another district - Meanwhile
husband filed an application u/s. 482 Cr. P. C. for quashing the
 complaint - Subsequently, wife filed a civil suit for declaration 0
 that decree for divorce was null and void as it was obtained
by fraud - During pendency, application by wife for grant of
 custody of minor child as also FIR lodged ulss. 406, 376 and
 120-B /PC - 'Application filed uls. 482 for quashing the
 complaint dismissed by the High Court - On appeal, held: E
 Wife herself had been a party to the alleged fraud committed
 by the husband upon the civil court for getting the decree of
 divorce and asked the criminal court to sit in appeal against
 the judgment and decree of the competent civil court -
 Complaint was filed before the Magistrate, Jalandhar while the
 decree of divorce had been granted by the District Judge, F
 Ludhiana i.e. of another district - It cannot be understood as
 under what circumstances a subordinate criminal court can
 sit in appeal against the judgment and order of the superior
 civil court, having a different territorial jurisdiction - Decree
 of civil court for divorce stiff subsists - Suit to declare the said G
judgment and decree as a nullity is still pending consideration
before the competent court - Permitting the Magistrate to
proceed further with the complaint under the 2005 Act is not
 compatible and in consonance with the decree of divorce
                                   557                                H
    558    SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A which still subsists - It amounts to abuse of the process of
  the court - Impugned judgment and order is set aside -
  Complaint pending befo1e the Magistrate, Jalandhar and all
  orders passed therein are quashed - Protection of Women
  from Domestic Violence Act, 2005.
B       Judgment/Order - Order obtained by making
    misrepresentation or playing fraud upon the competent
    authority - Sustainability of - Held: Such order cannot be
    sustained in the eyes of the law as fraud unravels everything
    - Fraud and justice never dwell together.
c         Judgment/Order- Setting aside of an order/decree, even
    if void or void ab initio - Held: Declaration has to be obtained
    from the competent court - It cannot be obtained in collateral
    proceedings.

D         Word and Phrases - Fraud - Meaning of.
        Maxims - Al/egans suam turpetudinem non est
    audiendus - Held: Person alleging his own infamy cannot be
    heard at any forum.
         The marriage of appellant-husband and respondent
E   No. 2-wife was dissolved by mutual consent. Thereafter,
    respondent No. 2 filed a complaint before the police
    against the appellant under the Protection of Women
    from Domestic Violence Act, 2005 alleging that the decree
    of divorce obtained by them was a sham transaction
F   since even after divorce, both of them had been living
    together as husband and wife. In the enquiry conducted
    and the legal opinion sought it was opined that no case
    was made out against the appellant. Subsequently,
    respondent No. 2 filed a complaint under the 2005 Act
G   and the Magistrate summoned the minor child of the
    parties for counselling. Aggrieved, the appellant filed an
    application u/s. 482 Cr.P.C. for quashing the said·
    complaint Meanwhile, respondent No. 2 filed a civil suit
    seeking declaration that the decree for divorce was null
H   and void as it had been obtained by fraud. During
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 559
                    ANR.

pendency of the suit, respondent No. 2 filed an A
application for grant of custody and guardianship of the
minor child which is pending consideration; and also
lodged an FIR u/ss. 406, 376 and 120-B IPC against the
appellant and his mother and sister. Thereafter, the High
Court dismissed the application filed by the appellant u/ B
s. 482 Cr.P.C. for quashing the complaint. Therefore, the
appellant filed the instant appeal.
     Allowing the appeal, the Court
     HELD: 1.1 Where a person gets an order/office by
making misrepresentation or playing fraud upon the C
competent authority, such order cannot be sustained in
the eyes of the law as fraud unravels everything. "Equity
is always known to defend the law from crafty evasions
and new subtleties invented to evade law". "Fraud t1nd
justice never dwell together" (fraus et jus nunquam D
cohabitant). Fraud is an act of deliberate deception with
a design to secure something, which is otherwise not
due. Fraud and deception are synonymous. "Fraud is an
anathema to all equitable principles and any affair tainted
with fraud cannot be perpetuated or saved by the E
application of any equitable doctrine". An act of fraud on
court is always viewed seriously. [Para 11) [570-G-H; 571-
A-B]
     Meghmala and Ors. v. G. Narasimha Reddy and Ors.
(2010) 8 sec 383: 2010 (10) SCR 47 - relied on.              F
     1.2 For setting aside such an order, even if void, the
party has to approach the appropriate forum. It is evident
that even if a decree is void ab initio, declaration to that
effect has to be obtained by the person aggrieved from
the competent court. More so, such a declaration cannot G
be obtained in collateral proceedings. [Paras 12 and 14]
[571-C-D; 572-C]
     State of Kera/a v. M.K. Kunhikannan Nambiar Manjeri
Manikoth Naduvil (dead) and Ors. AIR 1996 SC 906: 1995
(6) Suppl. SCR 139; Tayabbhai M. Bagasarwalla and Anr. H
   560    SUPREME COURT REPORTS               [2011) 10 S.C.R.


A v. Hind Rubber Industries Pvt. Ltd. AIR 1997 SC 1240: 1997
  (2) SCR 152 - relied on.
       Sultan Sadik v. Sanjay Raj Subba and Ors. AIR 2004 SC
  1377: 2004 (1) SCR 82; M. Meenakshi and Ors. v. Metadin
  Agarwal (dead) by Lrs. and Ors. (2006) 7 SCC 470: 2006 (5)
B Suppl. SCR 505; Sneh Gupta v. Devi Sarup and Ors. (2009)
  6 SCC 194: 2009 (2) SCR 553 - referred to.
       1.3 A person alleging his own infamy cannot be
  heard at any forum as explained by the legal maxim
  "al/egans suam turpetudinem non est audiendus". No one
C should have an advantage from his own wrong
  (commondum ex injuria sua memo habere debet). No
  action arises from an immoral cause (ex turpi cause non
  oritur action). Damage suffered by consent is not a cause
  of action (vo/enti non fit injuria). [Para 15] [572-E-F]
D      1.4 The offence of abetment is complete when the
  alleged abettor has instigated another or engaged with
  another in a conspiracy to commit offence. If more than
  one person combining both in intent and act, commit an
  offence jointl)!, each is guilty, as if he has done the whole
E act alone. Offence has been defined under Section 40 IPC
  and Section 43 IPC defines illegality. Making false
  statement on oath before the court is an offence under
  Section 191 IPC and punishable under Section 193 IPC.
  [Para 16] [572-G-H; 573-A]
F      Faguna Kanta Nath v. The State of Assam AIR 1959 SC
  673: 1959 Suppl. SCR 1; Jamuna Singh v. State of Bihar
  AIR 1967 SC 553: 1967 SCR 469 - relied on.
       2.1 In the instant case, respondent no.2 herself had
  been a party to the fraud committed by the appellant
G upon the civil court for getting the decree of divorce as
  alleged by her in the impugned complaint. Thus,
  according to her own admission she herself is an abettor
  to the crime and she made herself disentitled for any
  equitable relief. [Para 15] [572-D-F]
H
· INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 561
                     ANR.
      2.2 While granting the decree of divorce, the           A
statement of respondent no.2 had been recorded in the
first as well as in the second motion. Period of more than
6 months was given to her to think over the issue.
However, she made a similar statement in the second
motion as well. As per the statutory requirement, the         B
purpose of second motion after a period of six months
is that parties may make further efforts for reconciliation
in order to save their marriage. There is also obligation
on the part of the court under Section 23(2) of the Act
1955 to make every endeavour to bring about a                 c
reconciliation between the parties. [Paras 17 and 18] [573-
8-C]
    Jagraj Singh v. Birpa/ Kaur AIR 2007 SC 2083:2007 (2)
SCR 496; Smt. Sureshta Devi v. Om Prakash AIR 1992 SC
1304; Hitesh Bhatnagar v. Deepa Bhatnagar AIR 2011 SC         D
1637- referred to.
     2.3 Respondent no.2, who did not change her stand
in the second motion and obtained a sham decree of
divorce as alleged by her and asked the criminal court
to sit in appeal against the judgment and decree of the       E
competent civil court. The complaint was filed before the
Magistrate, Jalandhar while the decree of divorce had
been granted by the District Judge, Ludhiana i.e. of
another district. Therefore, it is beyond imagination as
under what circumstances a subordinate criminal court         F
can sit in appeal against the judgment and order of the
superior civil court, having a different territorial
jurisdiction. [Para 21] [574-G-H; 575-A]
     2.4 In the facts and circumstances of the case, the
submission made on behalf of respondent No.2 that the         G
judgment and decree of a civil court granting divorce is
null and void and they continued to be the husband and
wife, cannot be taken note of at this stage unless the suit
filed by the respondent No.2 to declare the said judgment
                                                              H
    562   SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A and decree dated 20.3.2008 is decided in her favour. In
  view thereof, the evidence adduced by her particularly
  the record of the telephone calls, photographs attending
  a wedding together and her signatures in school diary of
  the child cannot be taken into consideration so long as
B the judgment and decree of the civil court subsists. On
  the similar footing, the submission even after the decree
  of divorce, they continued to live together as husband
  and wife and therefore, the complaint under the Act 2005
  is maintainable, is not worth acceptance at this stage.
c [Para 22) [575-B-E]
        D. Ve/usamy v. D. Patchaiammal (2010) 10 SCC 469:
    2010 (13 ) SCR 706; Savitaben Somabhai Bhatiya v. State
    of Gujarat and Ors. (2005) 3 SCC 636: 2005 (2 ) SCR 638--
    Distinguished
D
        Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC
    2762: 2007 (8) SCR 582; Noida Entrepreneurs Association
    v. Noida and Ors. (2011) 6 SCC 508 - referred to.
          2.5 In the instant case, the parties got married and the
E   decree of civil court for divorce still subsists. More so, a
    suit to declare the said judgment and decree as a nullity
    is still pending consideration before the competent court.
    Permitting the Magistrate to proceed further with the
    complaint under the provisions of the Act 2005 is not
F   compatible and in consonance with the decree of divorce
    which still subsists and thus, the process amounts to
    abuse of the process of the court. Undoubtedly, for
    quashing a complaint, the court has to take its contents
    on its face value and in case the same discloses an
G   offence, the court generally does not interfere with the
    same. However, in the backdrop of the factual matrix of
    the instant case, permitting the court to proceed with the
    complaint would be travesty of justic~. Thus, interest of
    justlc_e __warrants quashing of the same. [Para 25] [576-D-
H   E]
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 563
                   ANR.
     2.6 The impugned judgment and order is set aside.       A
Petition filed by the appellant under Section 482 Cr.P.C
is allowed. The complaint pending before the Magistrate,
Jalandhar and all orders passed therein are quashed.
[Para 26) [576-F]
                    Case Law Reference:                      8
    2010 (10) SCR 47          Relied on         Para 11
    1995 (6) Suppl. SCR 139 Relied on           Para 12
    1997 (2) SCR 152          Relied on         Para 12
    2004 (1) SCR 82           Referred to       Para 13
                                                             c
    2006 (5) Suppl. SCR 505 Referred to         Para 14
    2009 (2 ) SCR 553         Referred to       Para 14
    1959 Suppl. SCR 1         Relied on         Para 16
                                                             D
    1967 SCR 469              Relied on         Para 16
    2007 (2) SCR 496          Referred to       Para 18
    AIR 1992 SC 1304          Referred to       Para 19
    AIR 2011 SC 1637          Referred to       Para 20      E
    2010 (13) SCR 706         Distinguished     Para 23
    2005 (2) SCR 638          Distinguished     Para 23
    2007 (8) SCR 582          Referred to       Para 24
    (2011) 6 SCC 508          Referred to       Para 24      F
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1635 of 2011.
    From the Judgment & Order dated 09.08.2010 of the High
Court of Punjab & Haryana at Chandigarh, in Criminal Misc.   G
No. M-29339 of 2009 (O&M).
    Ranjit Kumar, Gautam Godara, Ravindra Keshavrao
Adsure for the Appellant.
    Anil Grover, MG, Manoj Swarup, Ankit Swarup, Preshit
                                                             H
    564     SUPREME COURT REPORTS                   [2011) 10 S.C.R.


A   Surshe, Rohit Kumar Singh, Kavita Wadia, Noopur Singhal for
    the Respondents.
          The Judgment oft he Court was delivered by
          DR. B.S. CHAUHAN, J. 1. Leave granted.
B        2. The instant appeal reveals a very sorry state of affair
    where the wife files a criminal complaint before the competent
    court to initiate criminal proceedings against her husband
    alleging that they had obtained decree of divorce by playing
    fraud upon the court without realising that in such a fact-situation
c   she herself would be an accomplice in the crime and equally
    responsible for the offence. More so, the appeal raises a
    substantial question of law as to whether the judgment and
    decree of a competent Civil Court can be declared null and void
    in collateral proceedings, that too, criminal proceedings.
D      3. This criminal appeal arises from the judgment and final
  order dated 9.8.201 O in Criminal Misc. No. M-29339 of 2009
  (O&M) passed by the High Court of Punjab & Haryana at
  Chandigarh, by which the High Court hc:ts dismissed the
  application filed by the appellant under Section 482 of Code
E of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.')
  for quashing the complaint No. 87/02/09 dated 12.6.2009 filed
  by respondent no. 2 under Section 12 of the Protection of
  Women from Domestic Violence Act, 2005 (hereinafter called
  the 'Act 2005').
F       4. Facts and circumstances giving rise to present case are
    as under:
        A. That the appellant and respondent no. 2 got married on
  23.9.1998 at Jalandhar as per Sikh rites and from the said
  wedlock a son, namely, Gurarjit Singh was born on 5.10.1999.
G The parties to the marriage could not pull on well together
  because of temperamental differences and decided to get
  divorce and, therefore, filed HMA Case No. 168 of 19.9.2007
  before the District Judge, Ludhiana under Section 13-8 of
  Hindu Marriage Act, 1955 (hereinafter called the 'Act 1955')
H for dissolution of marriage by mutual consent. In the said case,
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 565
           ANR. [DR. S.S. CHAUHAN, J.]

statements of appellant and respondent· no. 2 were recorded         A
on 19.9.2007 and proceedings were adjourned for a period of
more than six months to enable them to ponder over the issue.
     B. The parties again appeared before the court on
20.3.2008 on second motion and their statements were
recorded and both of them affirmed that it was not possible for     B
them to live together and, therefore, the learned District Judge,
Ludhiana vide judgment and order dated 20.3.2008 allowed the
said petition and dissolved their marriage.
     C. Respondent no. 2 filed a complaint before Senior
Superintendent of Police, Ludhiana against the appellant on         C
4.5.2009 under the provisions of the Act 2005 alleging that the
decree of divorce obtained by them was a sham transaction.
Even after getting divorce, both of them had been living together
as husband and wife. She was forced to leave the matrimonial
home. Thus, she prayed for justice. The said complaint was          D
sent to SP, City-I, Ludhiana for conducting inquiry. The said
SP, City-I conducted the full-fledged inquiry and submitted the
report on 4.5.2009 to the effect that the parties had been living
separately after divorce and, no case was made out against
the present appellant. However, he suggested to seek legal          E
opinion in the matter.
     D. Accordingly, legal opinion dated 2.6.2009 was sought,
wherein it was opined that the parties had obtained the divorce
decree by mutual consent and the allegations made by
                                                                    F
respondent no. 2 against the appellant were false and baseless
and the purpose of filing the complaint was only to harass the
appellant.
     E. Respondent no. 2 subsequently filed a complaint under
the Act 2005 on 12.6.2009. The learned Magistrate issued the        G
summons to the appellant on the same date. The Magistrate
vide order dated 3.10.2009 summoned the minor child for
counseling. The appellant, being aggrieved of the order of Ld.
Magistrate dated 12.6.2009, filed application dated 13.10.2009
under Section 482 Cr.P.C. for quashing the complaint dated          H
    566     SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A   12.6.2009.
         F. In the meanwhile, respondent no. 2 filed Civil Suit on
    17.7.2009 in the court of Civil Judge (Senior Division),
    Ludhiana, seeking declaration that the judgment and decree
    dated 20.3.2008, i.e. decree of divorce, was null and void as
8   it had been obtained by fraud. The said suit is still pending.
        G. Respondent no. 2 also filed application dated
  17 .12.2009 under Guardians and Wards Act, 1890 for grant
  of custody and guardianship of the minor child Gurarjit Singh
  and the same is pending for consideration before the Additional
C Civil Judge (Senior Division), Ludhiana.
         H. Respondent no. 2 on 11.2.2010 also lodged an FIR
    under Sections 406, 498-A, 376, 120-8 of the Indian Penal
    Code, 1860 (hereinafter called 'IPC') against the appellant and
0   his mother and sister.
        I. The High Court vide impugned judgment ~nd order
    dated 9.8.2010 dismissed the application filed by the appellant.
          Hence, this appeal.
E      5. Shri Ranjit Kumar, learned senior counsel appearing for
  the appellant has submitted that the High Court erred in
  rejecting the application of the appellant under Section 482
  Cr.P.C., as none of U1e reliefs claimed by the respondent no.2
  could be entertained by the criminal court while dealing with the
F complaint; the complaint itself is time barred, thus, the
  Magistrate Court could not take cognizance thereof. The
  complaint has been filed because of malice in order to extract
  money from the appellant. More so, the plea of fraud alleged
  by the respondent no.2 in the complaint for obtaining the decree
  of divorce before the Civil Court as per her own version,
G succinctly reveals that she herself had been a party to this fraud.
  The High Court failed to appreciate as to what extent her version
  could be accepted as she herself being the accomplice in the
' said offence of fraud committed upon the court. Even if the
  allegations made therein are true, she is equally liable for
H
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 567
          ANR. [DR. 8.S. CHAUHAN, J.]

punishment under Section 107 IPC. More so, the reliefs claimed       A
by the respondent no. 2 in the civil suit for declaring the decree
of divorce as null and void and in another suit for getting the
custody of the child referred to hereinabove, would meet her
requirements. Thus, the appeal deserves to be allowed.
      6. On the contrary, Shri Manoj Swarup, learned counsel B
appearing for the respondent no.2 has vehemently opposed the
appeal contending that decree of divorce is a nullity as it has
been obtained by fraud. The relationship of husband and wife
between the appellant and respondent no.2 still subsists and
thus, complaint is maintainable. The court has to take the . C
complaint on its face value and the allegations made in the
complaint require adjudication on facts. The issue of limitation
etc. can be examined by the Magistrate Court itself. The appeal
lacks merit and is ljable to be dismissed.
     7. We have considered the rival submissions made by
                                                                     D
learned counsel for the parties and perused the record.
     8. Before we proceed to determine the case on merit, it
is desirable to highlight the admitted facts of the case:
     I. Appellant and respondent no.2 are highly qualified           E
persons. Both of them are employed and economically
independent. Appellant is an Assistant Professor and
respondent no. 2 is a Lecturer. The appellant is Ph.D and
respondent no.2 has registered herself for Ph.D. They are
competent to understand the complications of law and other           F
facts prevailing in the case.
     II. Both of them got married in year 1998 and had been
blessed with a son in year 1999. There was no complaint by
respondent no.2 against the appellant of any cruelty, demand
of dowry etc. before getting the decree o~ divorce dated             G
20.3.2008 by mutual consent.
    Ill. The decree of divorce has been obtained under Section
13-8 of the Act 1955. Respondent no.2 was examined by the
court on first motion on 19.9.2007 wherein she stated, inter-        H
    568      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   alia, as under:
          "We are living separately from each other since
          23. 9. 2005. Now there is no chance of our living together
          as husband and wife."

B        IV. Respondent no.2 was examined in the second motion
    by the learned District Judge, Ludhiana on 20.3.2008, wherein
    she stated as under:
          "My statement was recorded on 19.9.2007· alongwith the
          statement of my husband lnderjit Singh Grewal. Six
c         months time was given to us to ponder over the matter but
          we could not reconcile. One child was born from our
          wedlock namely Gurarjit Singh Grewal whose custody has
          been handed over by me to my husband lnderjit Singh
          Grewal and he shall look after the welfare of the said child.
D         We have settled all our disputes regarding dowry articles
          and past and future permanent alimony. Now there is
          nothing left out against each other. A draft of Rs.3,00,000/
          - .... has been received by me towards permanent alimony
          and maintanance and in lieu of dowry articles left by me
E         in the matrimonial home. We are living separately since
          23.9.2005. After that there is no co-habitation between us.
          There is no scope of our living together as husband and
          wife. I will remain bound by the terms and conditions as
          enshrined in the petition. I have left with no claim against
          petitioner No.1. Our marriage may be dissolved by passing
F
          a decree of divorce by mutual consent."
        V. The learned District Judge, Ludhiana granted the
    decree of divorce dated 20.3.2008 observing as under:
          "They have settled all their disputes regarding dowry
G         articles, past and future alimony .... They are living
          separately. from each other since 23.9.2005 ... The
          petitioners have not been able to reconcile .... The
          petitioners have settled all their disputes regarding dowry,
          stridhan and past arid future permanent alimony .... The
H         custody of the son of the petitioners is handed over to
INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 569
          ANR. [DR. B.S. CHAUHAN, J.]
     lnderjit Singh Grewal by Amandeep Kaur. The petition is          A
     allowed. The marriage between the petitioners is
     henceforth declared dissolved .... "
     VI. The complaint dated 4.5.2009 filed by respondent no.
2 before the Senior Superintendent of Police, Ludhiana was
investigated by the Superintendent of Police, City-I, Ludhiana.       B
He recorded statements of several neighbours and maid
servant working in appellant's house and submitted the report
to the effect that as the husband and wife could not live together,
they obtained the decree of divorce by mutual consent.
However, the complainant Amandeep Kaur had alleged that she           C
was induced by her husband to get divorce for settling in the
United States and it was his intention to kick her out from the
house. However, the husband stated that she had been paid
Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash
for which the husband lnderjit Singh Grewal had entered into          D
an agreement to sell his ancestral property. The complainant
had not been living with the appellant after the decree of divorce
and they were not having physical relationship with each other.
It was further suggested in the report that legal opinion may also
be taken.                                                             E
      VII. Legal opinion dated 2.6.2009 had been to the effect
that the parties had taken divorce by mutual consent due to their
differences. The allegation to the extent that they had been
living together even after divorce were false and baseless and
had been labelled only to harass the appellant.                       F
     9. The instant case is required to be considered in the
aforesaid factual backdrop.
     So far as the complaint dated 12.6.2009 is concerned,
there had been allegation of mis-behaviour against the                G
appellant during the period of year 2005. Respondent no. 2
alleged that during that period she had not been treated well
by the appellant, thus, she had to take shelter in the house of
her parents~ all her belongings including the dowry articles were
kept by the appellant and his parents. She has further given          H
    570     SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A details how both of them have obtained decree of divorce by
  mutual consent as they wanted to settle in United States and
  therefore, they had decided to get divorce on paper so that the
  appellant may go to U.S.A. and get American citizenship by
  negotiating a marriage of convenience with some U.S. citizen
B and divorce her and again re-marry the complainant. She
  further alleged that even after decree of divorce she had been
  living with the appellant till 7.2.2009 and continued co-habitation
  with him. They had visited several places together during this
  period. The child had been forcibly snatched from her by the
c appellant. Therefore, she was entitled to the custody of the
  minor child along with other reliefs.
       10. The question does arise as to whether reliefs sought
  in the complaint can be granted by the criminal court so long
  as the judgment and decree of the Civil Court dated 20.3.2008
D subsists. Respondent no.2 has prayed as under:
          "It is therefore prayed that the respondent no. 1 be
          directed to hand over the custody of the minor child
          Gurarjit Singh Grewal forthwith. It is also prayed that the
          respondent no. 1 be directed to pay to her a sum of
E         Rs. 15, 0001- per month by way of rent of the premises
          to be hired by her at Ludhiana for her residence. It is also
          prayed that all the respondents be directed to restore to
          her all the dowry articles as detailed in Annexure A to C
          or in the alternative they be directed to pay to her a sum
F         of Rs.22,95,0001- as the price of the dowry articles.
          Affidavit attached."
          Thus, the reliefs sought have been threefolds:
          (a) Custody of the minor son; (b) right of residence; and
G (c)     restoration of dowry articles.
       11. It is a settle~ legal proposition that where a person
  gets an order/office by making misrepresentation or playing
  fraud upon the competent authority, such order cannot .be
  sustained in the eyes of the law as fraud unravels everything.
H "Equity is always known to defend the law from crafty evasions
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 571
          ANR. [DR. B.S. CHAUHAN, J.]
and new subtleties invented to evade law". It is a trite that ·A
"Fraud and justice never dwell together'' (fraus etjus nunquam
cohabitant). Fraud is an act of deliberate deception with a
design to secure something, which is otherwise not due. Fraud
and deception are synonymous. "Fraud is an anathema to all
equitable principles and any affair tainted with fraud cannot be B
perpetuated or saved by the application of any equitable
doctrine". An act of fraud on court is always viewed seriously.
(Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors.,
c201 O) a sec 383)
    12. However, the question does arise as to whether it is          C
permissible for a party to treat the judgment and order as null
and void without getting it set aside from the competent court.
     The issue is no more res integra and stands settled by a
     catena of decisions of this Court. For setting aside such        D
     an order, even if void, the party has to approach the
     appropriate forum. (Vide: State of Kera/a v. M.K.
     Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead)
     & Ors., AIR 1996 SC 906; and Tayabbhai M.
     Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd.,
     AIR 1997 SC 1240).                                               E
     13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004
SC 1377, this Court held that there cannot be any doubt that
even if an order is void or voidable, the same requires to be
set aside by the competent court.
                                                                      F
     14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead)
by Lrs. & Ors., (2006) 7 SCC 470, this Court considered the
issue at length and observed that if the party feels that the order
passed by the court or a statutory authority is non-est/void, he
should question the validity of the said order before the             G
appropriate forum resorting to the appropriate proceedings.
The Court observed as under:-
     "It is well settled principle of law that even a void order is
     required to be set aside by a competent Court of law,
     inasmuch as an order may be void in respect of one               H
    572     SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A         person but may be valid in respect of another. A void order
          is necessarily not non-est. An order cannot be declared
          to be void in collateral proceedings and that too in the
          absence of the authorities who were the authors thereof"
          (Emphasis added)
        Similar view has been reiterated by this Court in Sneh
    Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.
         From the above, it is evident that even if a decree is void
    ab initio, declaration to that effect has to be obtained by the
c   person aggrieved from the competent court. More so, such a
    declaration cannot be obtained in collateral proceedings.
         15. Respondent no.2 herself had been a party to the fraud
    committed by the appellant upon the civil court for getting the
    decree of divorce as alleged by her in the impugned complaint.
D   Thus, according to her own admission she herself is an
    abettor to the crime.
          A person alleging his own infamy cannot be heard at any
    forum as explained by the legal maxim "allegans suam
    turpetudinem non est audiendus". No one should have an
E   advantage from his own wrong (commondum ex injuria sua
    memo habere debet). No action arises from an immoral cause
    (ex turpi cause non oritur action). Damage suffered by
    consent is not a cause of action (volenti non fit injuria). The
    statements/allegations made by the respondent no.2 patently
F   and latently involve her in the alleged fraud committed upon the
    court. Thus, she made herself disentitled for any equitable
    relief.
         16. The offence of abetment is complete when the alleged
G   abettor has instigated another or engaged with another in a
    conspiracy to commit offence. (Vide: Faguna Kanta Nath v.
    The State of Assam, AIR 1959 SC 673; and Jamuna Singh
    v. $fate of Bihar AIR 1967 SC 553). If more than one person
    combining both in intent and act, commit an offence jointly, each
    is guilty, as if he has done the whole act alone. Offence has
H   been defined under Section 40 IPC and Section 43 IPC
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 573
          ANR. [DR. B.S. CHAUHAN, J.]
defines illegality. Making false statement on oath before the         A
court is an offence under Section 191 IPC and punishable under
Section 193 IPC.
     17. While granting the decree of divorce, the statement of
respondent no.2 had been recorded in the first as well as in
the second motion as mentioned hereinabove. Period of more            B
than 6 months was given to her to think over the issue. However,
she made a similar statement in the second motion as well.
     18. As per the statutory requirement, the purpose of
second motion after a period of six months is that parties may        C
make further efforts for reconciliation in order to save their
marriage. There is also obligation on the part of the court under
Section 23(2) of the Act 1955 to make every endeavour to bring
about a reconciliation between the parties.
     In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this           o
Court held that conjugal rights are not merely creature of statute
but inherent in the very institution of marriage. Hence, the
approach of a court of law in matrimonial matters should be
"much more constructive, affirmative and productive rather than
abstract, theoretical or doctrinaire". The court should not give      E
up the effort of reconciliation merely on the ground that there is
no chance for reconciliation or one party or the other says that
there is no possibility of living together. Therefore, it is merely
a misgiving that the courts are not concerned and obligated to
save the sanctity of the institution of marriage.
                                                                      F
      19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC
1304, this Court held that mere filing the petition for divorce by
mutual consent does not authorise the court to make a decree
for divorce. The interregnum waiting period from 6 to 18 months
is obviously intended to give time and opportunity to the parties     G
to reflect on their move and seek advice from relations and
friends. In this transitional period one of the parties may have
a second thought and change the mind not to proceed with the
petition. The court must be satisfied about the bona fides and
the consent of the parties for the reason that court gets             H
    574     SUPREME COURT REPORTS                 [2011] 10 S.C.R.

A jurisdiction to make a decree for divorce only on mutual consent
  at the time of enquiry. The consent must continue to decree
  nisi and must be valid subsisting consent when the case is
  heard. Thus, withdrawal of consent can be unilateral prior to
  second motion. The Court further observed:
8       "The 'living separately' for a period of one year should
          be immediately preceding the presentation of the petition.
          It is necessary that immediately preceding the
          presentation of petition, the parties must have been
          living separately. The expression 'living separately',
c         connotes to our mind not living like husband and wife. It
          has no reference to the place of living. The parties may
          live under the same roof by force of circumstances,
          and yet they may not be living as husband and wife. The.
          parties may be living in different houses and yet they
D         could live as husband and wife. What seems to be
          necesssary is that they have no desire to perform marital
          obligations and with that mental attitude they have been
          living separately for a period of one year immediately
          preceding the presentation of the petition. The second
E         requirement that they 'have not been able to live together'
          seems to indicate the concept of broken down marriage
          and it would not be possible to reconcile themselves. The
          third requirement is that they have mutually agreed that
          the marriage should be dissolved." (Emphasis added)
F         20. For grant of divorce in such a case, the Court has to
    be satisfied about the existence of mutual consent between the
    parties on some tangible materials which demonstrably
    disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa
    Bhatnagar, AIR 2011 SC 1637).
G      21. Respondent no.2, who did not change her stand in the
  second motion and obtained a sham decree of divorce as
  alleged by her asked the criminal court to sit in appeal against
  the judgment and decree of the competent Civil Court. The
  complaint was filed before the Magistrate, Jalandhar while the
H decree of divorce had been granted by the District Judge,
 INDERJIT SINGH GREWAL v. STATE OF PUNJAB & 575
           ANR. [DR. B.S. CHAUHAN, J.]
Ludhiana i.e. of another district. Therefore, it is beyond our A
imagination as under what circumstances a subordinate ·
criminal court can sit in appeal against the judgment and order
of the superior Civil Court, having a different territorial
jurisdiction.
     22. In the facts and circumstances of the case, the            B
submission made on behalf of respondent no.2 that the
judgment and decree of a Civil Court granting divorce is null
and void and they continued to be the husband and wife, cannot
be taken note of at this stage unless the suit filed by the
respondent no.2 to declare the said judgment and decree dated       C
20.3.2008 is decided in her favour. In view thereof, the
evidence adduced by her particularly the record of the
telephone calls, photographs attending a wedding together and
her signatures in school diary of the child cannot be taken into
consideration so long as the judgment and decree of the Civil       o
Court subsists. On the similar footing, the contention advanced
by her counsel that even after the decree of divorce, they
continued to live together as husband and wife and therefore
the complaint under the Act 2005 is maintainable, is not worth
acceptance at this stage.                                           E
     23. In D. Velusamy v. D. Patchaiamma/, (2010) 10 SCC
469, this Court considered the expression "domestic
relationship" under Section 2(f) of the Act 2005 placing
reliance on earlier judgment in Savitaben Somabhai Bhatiya
v. State of Gujarat & Ors., (2005) 3 SCC 636 and held that          F
relationship "in the nature of marriage" is akin to a common
law marriage. However, the couple must hold themselves out
to society as being akin to spouses in addition to fulfilling all
other requisite conditions for a valid marriage.
     The said judgments are distinguishable on facts as those       G
cases relate to live-in relationship without marriage. In the
instant case, the parties got married and the decree of Civil
Court for divorce still subsists. More so, a suit to declare the
said judgment and decree as a nullity is still pending
consideration before the competent court.                           H


               '
    576    SUPREME COURT REPORTS                   [2011] 10 S.C.R.


A         24. Submissions made by Shri Ranjit Kumar on the issue
    of limitation, in view of the provisions of Section 468 Cr.P.C.,
    that the complaint could be filed only within a period of one year
    from the date of the incident seem to be preponderous in view
    of the provisions of Sections 28 and 32 of the Act 2005 read
B   with Rule 15(6) of The Protection of Women from Domestic
    Violence Rules, 2006 which make the provisions of Cr.P.C.
    applicable and stand fortified by the judgments of this court in
    Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC
    2762; and Noida Entrepreneurs Association v. Noida & Ors.,
c   (2011) 6 sec 508.
        25. In view of the above, we are of the considered opinion
  that permitting the Magistrate to proceed further with the
  complaint under the provisions of the Act 2005 is not
  compatible and in consonance with the decree of divorce which
D still subsists and thus, the process amounts to abuse of the
  process of the court. Undoubtedly, for quashing a complaint,
  the court has to take its contents on its face value and in case
  the same discloses an offence, the court generally does not
  interfere with the same. However, in the backdrop of the factual
E matrix of this· case, permitting the court to proceed with the
  complaint would be travesty of justice. Thus, interest of justice
  warrants quashing of the same.
        26. The appeal succeeds and is. allowed. The impugned
  judgment and order dated 9.8.2010 is hereby set aside. Petition
F filed by the appellant under Section 482 Cr.P.C. is allowed.
  Complaint No. 87/02/09 pending before the Magistrate,
  Jalandhar and all orders passed therein are quashed.
       Before parting with the case, we clarify that respondent
  no.2 shall be entitled to continue with her other cases and the
G court concerned may proceed in accordance with law without
  being influenced by the observations made herein. The said
  observations have been made only to decide the application
  under Section 482 Cr.P.C. filed by the appellant.
H N.J.                                             Appeal allowed.