NEW DELHI: The Supreme Court has quashed a 2016 dowry harassment FIR filed here by the ex wife of an Australian citizen with Indian origin. The court held a mechanical approach in such matters can't be countenanced, as backgrounds must be considered.
Allowing the plea filed by Nitin Ahluwalia against the Punjab and Haryana High Court's refusal to quash the case, a bench of Justices Sanjay Karol and Prashant Kumar Mishra found the conduct of the woman, an Indian origin Austrian citizen as "questionable".
According to the facts of the matter, after the marriage in 2010, the couple went to Australia, a daughter was born to them in 2012. However, the wife with the daughter left for Austria in 2013.
The man approached the courts in Vienna which directed her to return the bady. He subsequently filed a divorce petition in a court in Australia, which was allowed.
The woman, on her part, returned to India with the daughter and filed the dowry harassment complaint.
Considering the man's plea, the court noted the complaint was filed after the grant of divorce.
The man contended the FIR has been maliciously filed with an intent of taking advantage of the Indian legal position and to vent out her grudge against him.
Noting that lodging the FIR was not expressly prohibited by law, the bench said, "It certainly begs the question as to why despite having been separated from the appellant for almost three years to the date, did the respondent consider filing an application with the police at that relevant time".
The court found the appellant's claim not as far-fetched, since he contended the FIR was nothing but a counterblast as he has two orders in his favour, one by the courts in Austria ordering the respondent to bring the child back to Australia and the other, by the courts in Australia granting him divorce.
The court, thus, held, "We find the conduct of the respondent to be questionable."
The court also pointed out the woman alleged in her complaint that there is a possibility that the appellant may abduct her child.
"This statement makes us believe that a picture far from the truth has tried to be painted,'' the bench said.
"In fact, the charge of unilaterally removing her child from the joint custody of both the parents was proved in the court of law, and she was directed to remedy the situation," the bench said.
On the woman's submission, the bench said, while it may be true that India is not a signatory to the Hague Convention, 1980 but it does not give any reason to interfere with orders passed by courts of competent jurisdiction in other countries.
"It cannot be disputed that the courts in Austria had jurisdiction. They decided a dispute as per the applicable law. No occasion whatsoever arises for India to apply its standard. The limited consideration given to the findings of the courts in Austria is that a decree to take the child back to Australia had been passed and, as it appears, the same has not been followed,'' the bench said.
The High Court declined to quash the FIR on the ground the investigation was at very initial stage and the petition was clearly premature.
The court said in certain cases, it is not a straight cut case as such.
"It is true that elaborate defences and evidence brought on record is not to be considered, it is equally true that a mechanical approach cannot be countenanced. What renders a judicial mind distinct is its application to the given facts in accordance with law. Therefore, the court ought to have appreciated, at least to some extent, the background in which the respondent filed the subject FIR,'' the bench said.
In its judgment, the bench also expressed disappointment on the lack of foresight shown by both parties, particularly when it comes to the well-acknowledged ill effects of continued, strained and hostile relationship between the parents, on a young child.
"In this case, the child was born in September 2012, and the parents have been in litigation from the time when she was not even a year old to the day this judgment is delivered," the bench said.
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