Nitin Ahluwalia (Appellants) v. State of Punjab & Anr. (Respondents)

CRIMINAL APPEAL NO. 187 OF 2020

(SANJAY KAROL and PRASHANT KUMAR MISHRA, JJ)

The Supreme Court of India entertained an appeal against the denial by the Punjab and Haryana High Court to quash an FIR lodged under Section 498-A of the Indian Penal Code. The case originated in matrimonial discord between appellant Nitin Ahluwalia, an Australian citizen of Indian origin, and his erstwhile wife Tina Khanna Ahluwalia, an Austrian citizen. The couple got married in November 2010 in Panchkula, Haryana, and later settled in Melbourne, Australia. They had a daughter in September 2012. But in June 2013, the respondent departed from the matrimonial home in Australia along with their daughter and shifted to Austria without the permission of the appellant.

The appellant commenced proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, for the return of his daughter to Australia. The District Court of Vienna Inner City ordered the return of the child, noting that the unilateral removal of the minor by the mother was without the consent of the father. Both the Vienna District Civil Court and Austria’s Supreme Court affirmed this ruling on appeal, disregarding the respondent’s prayers that the child had settled in Austrian society or that her welfare would be harmed in being sent back to Australia. The courts ruled that the mother should be saddled with the effects of her unilateral conduct and that she was at liberty to travel with the child to Australia. Enforcement proceedings were also launched to compel compliance with the return order, with Austrian courts making it clear that such orders could be enforced through urgent measures if so required.

In the meanwhile, the appellant initiated divorce in Australia on the basis of irretrievable breakdown of marriage. The Federal Circuit Court of Australia ordered the divorce in April 2016, after proper notice to the respondent in India. Notably, only a month later from this divorce order, in May 2016, the respondent filed a complaint with the Senior Superintendent of Police, SAS Nagar, seeking dowry demands and physical and mental cruelty by the appellant. An FIR was duly registered in December 2016 for alleged offences from the wedding date in November 2010 till May 2016.

The appellant went to the Punjab and Haryana High Court seeking quashing of the FIR on the grounds that the allegations were false, malicious, and made in reprisal. The High Court, however, rejected the petition as premature, noting that the case was still in an early stage of investigation and that the appellant had not joined the probe. It considered that specific allegations have been made in the FIR and cannot be dismissed at the door. Infuriated by this, the appellant went to the Supreme Court, which gave an interim stay on the probe.

At the Supreme Court, the appellant argued that the FIR was abuse of process and had been filed only after foreign courts had decided in his favor both regarding custody and divorce. He contended that no such allegations were ever made in foreign proceedings and that the FIR was made to harass him. The respondent, however, justified the FIR as a genuine complaint and said that custody disputes were different from cruelty complaints and reiterated that India is not a signatory to the Hague Convention and therefore foreign decrees need not be accorded primacy. She further contended that criminal and civil cases cannot be mixed.

The Supreme Court analyzed the background and held that the timing and the situation of the FIR were extremely questionable. The complainant had filed the complaint almost three years after the respondent had parted ways with the appellant, and only after the issuance of the divorce in Australia. This, in the Court’s view, indicated that the FIR might be read as a counterblast to the success of the appellant in custody and divorce proceedings in foreign countries. The Court also remarked on discrepancies in the respondent’s behavior. While she professed integration in Austria, divorce notices had been served in India, and in spite of unequivocal Austrian court orders, the child was never sent back to Australia. Additionally, although the allegation of possible abduction of the child by the appellant was made in the complaint, it was the respondent who had been found guilty of unilateral removal of the child from joint custody by Austrian courts. The Court also noted that the duration of alleged cruelty was longer than the period of actual cohabitation, which affected the credibility of the allegations.

On the judicial side, the Court restated that while the power of the High Court under Section 482 CrPC has to be exercised judiciously, it cannot mechanically proceed when the case obviously reveals abuse of process. Moreover, the Court further noted that allegations of cruelty per se are not enough under Section 498-A IPC unless made with specific intent to inflict serious hurt, force the victim to commit suicide, or intimidate her or her relatives with a view to forcing them to comply with unlawful demands, the allegations in the FIR did not reveal the required ingredients of the offence.

The Supreme Court held that permitting the FIR to go ahead would be abuse of law. The Court accordingly quashed the FIR along with the impugned judgment of the Punjab and Haryana High Court. The appeal was thus allowed, with pending applications disposed of.