SC quashes FIR against woman for fabricating husband's signature on son's passport; imposes Rs one lakh cost on husband [Read Judgment]

NEW DELHI: The Supreme Court has quashed criminal proceedings against a woman and her father initiated on an FIR by her husband after a martial dispute for allegedly fabricating his signature to obtain passport for their minor son.

A bench of Justices Surya Kant Dipankar Datta said every deceitful act is not unlawful, just as not every unlawful act is deceitful and some acts may be termed both as unlawful as well as deceitful, and such acts alone will fall within the purview of Section 420 IPC.

"The Trial Magistrate should have exercised prudence, making at least a cursory effort to discern the actual victim or victimiser. The failure to do so is both fallible and atrocious," the bench said.

The court allowed a plea filed by Mariam Fasihuddin and her father against the Karnataka High Court's order of February 18, 2021 with Rs one lakh cost on husband, after noting the trial magistrate and the High Court unfortunately failed to appreciate that the genesis of the present controversy lies in a marital dispute.

In the case, the bench, however, said the elementary ingredients of cheating and forgery are conspicuously missing in the case, so the continuation of the criminal proceedings before a Bengaluru court against the appellants is nothing but an abuse of the process of law.

"This court, therefore, will exercise caution before invoking such severe offences and penalties solely on the basis of conjectures and surmises," the bench said.

The court noted the conduct of complainant husband in the case infringed upon the right of the minor child to travel and seek care and company of the father.

It also noted "glaring procedural irregularities", overlooked by the Trial Magistrate, and other "improprieties" as the supplementary chargesheet filed by the investigating authority included the offence of forgery under Sections 468 and 471 IPC, on a forensic report obtained by the husband through a private lab.

"A paid report obtained from a private laboratory seems to be a frail, unreliable, unsafe, untrustworthy and imprudent form of evidence, unless supported by some other corroborative proof. It  is painful to mention that husband has not produced any other substantive proof, nor has the investigating agency obtained any such material for further investigation. The basis on which the Trial Magistrate formed a prima facie opinion is beyond our comprehension," the bench said.

The court also said the timeline is noteworthy since immediately after the appellant wife filed an FIR against the husband on April 8, 2010, invoking Sections 346, 498A, 506, and 34 IPC, the counter complaint by the husband followed on May 13, 2010.

The marriage between the parties was solemnised in 2007. It was alleged the husband who was engaged in Software business in London. After a lot of persuasion, he agreed to take wife to London. However, soon after, he confined her to the residence of her sister-in-law. She, somehow, managed to return to India. Husband during his visit in 2009 threatened the wife, and took away the minor child's passport to arrange the travel.

Though passport was issued sometime in 2009 and the question was whether it is a mere coincidence that the husband chose to make his complaint only after an FIR had been lodged against him, the court asked.

Instead of complying with the law which imposes an obligation upon the husband to provide adequate maintenance to his wife and the minor child, the complaint lodged by the husband on May 13, 2010, while unleashing accusations of forgery and fabrication, is conveniently silent on what measures he has undertaken for his minor childs welfare, the bench said.

The court referred to Section 12(b) of the Passports Act, 1967, saying the cognisance of such like offence can be taken only at the instance of the Prescribed Authority and no complaint to that effect has been disclosed against the appellants.

"The appellants were unnecessarily implicated and dragged into criminal proceedings, thereby causing undue hardship to them," the bench concluded.

[Read Judgment]