Section 340 Established in Saket Court, Delhi

Court: Family Court Saket Delhi

Bench: Justice Sumita Garg

xxxxxx vs xxxxxx on 17 January, 2025

Law Point: Section 340 Established in Saket Court, Delhi

JUDGEMENT

1. By this order, I shall dcide aan application under section 340 CrPC preferred by the petitioner/hunband for initiating proceedings for committing perjuy agaist the respondent/wife.

2. The brief background relevant for the disposal of the application is that on 14.01.2021, the petitioner filed the instant petition under Section 13 (1)(ia) of Hindu Marriage Act, 1955 (for short, ‘the Act’) against the respondent seeking dissolution of marriage on the ground of cruelty averring that their marriage had been solemnized on 01.12.2016 according to Hindu rites and ceremonies and that after the solemnization of marriage, he had been subjected to cruelty by the respondent. Owing to the matrimonial discord, the parties are residing separately from 25.10.2019 and since the date of separation, the minor daughter born from their wedlock is in the care and custody of the respondent.

Upon being served with notice of the petition, the respondent preferred an application under Section 24 & 26 of the Act claiming pendente-lite maintenance for herself and the minor daughter on 01.09.2021 averring that she had been forced to leave her job in May, 2019 by the petitioner and his family members and that since the date of separation, the petitioner had failed to pay anything towards maintenance to her and the minor child. On 23.12.2021, the petitioner voluntarily offered to pay Rs. 8000/- per month towards ad-interim maintenance of the

minor daughter. On 12.05.2022, the respondent filed her Affidavit of Assets and Liabilities (dated 24.02.2022) in terms of Rajnesh v. Neha & Anr. reiterating that she is unemployed since May, 2019.

On 16.08.2022, the petitioner moved an application for appointment of Local Commissioner averring that that he has come to know from the reliable sources that the respondent is gainfully employed with Lotus Valley International School, Greater Noida, U.P. and that she has deliberately and intentionally stated blatant lies on oath regarding the details of her employment and income in order to mislead the Court to award maintenance to her. Vide order dated 27.08.2022, the application for appointment of Local Commissioner was allowed by the Court with the direction to the Ld. Local Commissioner to visit the said School and obtain the following information:

1. Whether xxxxxx, D/o xxxxxx, R/o xxxxxx is working at the said school? If yes, then from which date she has been working in the said school and at what post/designation, she has been working.
2. What is the gross salary of xxxxxx and in which Bank Account the said salary is being credited?
3. Provide the Attendance Sheet of the respondent from 01.03.2022 till 30.04.2022.
4. Take a certificate from the HR Head of the School Authorities with regard the above-stated questions/document and also to take relevant documents of the above information.
5. Also take a copy from the HR Head of the Appointment Letter and Contract, if any, of the respondent with the School.

Pursuant to the direction of the Court, the Ld. Local Commissioner submitted his report on 08.09.2022. Along with the report, he placed on record the copy of appointment letter dated 15.09.2021 issued to the respondent by Lotus Valley International School, Greater Noida, U.P. appointing her as Mother Teacher at a consolidated pay of Rs. 42,000/- per month on contract basis for one year, offer letter dated 15.09.2021issued to the respondent, Joining Letter dated 15.09.2021 submitted with the School by the respondent and the salary slips for the months of June, 2022 and July, 2022. On 24.02.2023, application on hand was preferred by the petitioner.

3. In the application, it has been averred that in paragraph nos. 5 and 14 of the application under Section 24 of the Act, the respondent has stated that when she became pregnant, she was forced to leave her job on the insistence of the petitioner and his parents in May 2019 and that since then, she is unemployed, for claiming Rs. 1,50,000/-per month as maintenance for herself and the minor daughter. It has been averred that subsequently, the respondent filed her Income Affidavit in terms of judgment titled ‘Rajnesh v. Neha’ on 12.05.2022 (attested before the Oath Commissioner on 24.02.2022), wherein she committed perjury by lying on oath in Column no. (A) para no. 3 regarding her qualification (Educational and Professional), Column no. (F) regarding details of her employer and monthly income and Column F& H to the effect that she is unemployed and a housewife since May, 2019 even though she had been working as a Teacher with Lotus Valley International School, Greater Noida, U.P. w.e.f 15.09.2021 at a salary of Rs. 42,000/- per month. Averring that the respondent had deliberately and intentionally made false statement on oath to get a favourable order of maintenance, the petitioner has sought initiation of proceedings for perjury against her.

4. The respondent filed her reply to the application on 04.05.2023. While tendering unconditional apology for not disclosing about her employment in the Income Affidavit, the respondent stated that there was no malafide intention to mislead the Court but it was due to extenuating circumstances as the petitioner had neglected to perform his legal and moral responsibilities towards her and the minor daughter. She stated that she was unemployed at the time when the Court had fixed a sum of Rs.8,000/- per month as ad-interim maintenance for the minor daughter on 23.12.2021 and has been bearing her own expenses with the financial assistance of her father and brother. She stated that she had joined Lotus Valley International School on probation in the middle of the session during online teaching and as there was no guarantee that her job would continue, she did not disclose her employment under the guidance of her the then legal advisor. She has further averred that due to the insecurity of her job in Lotus Valley International School, she resigned and joined as a Senior Analyst at Moody’s RMS, Noida on 22.05.2023.

5. The counsel for the petitioner has submitted that from the documents annexed to the report of the Ld. Local Commissioner, it is evident that the respondent had joined Lotus Valley International School as Mother Teacher on 15.09.2021, that is much prior to the filing of Affidavit of Assets and Liabilities in terms of judgment titled ‘Rajnesh v. Neha’ by her on 12.05.2022. He has submitted that along with the above Affidavit, the respondent has also filed a declaration to the effect that she has made a full and accurate disclosure of income, expenditure, assets and liabilities from all sources and that any false statement in the affidavit, apart from being contempt of Court, may also constitute an offence under Section 199 read with Sections 191 & 193 of Indian Penal Code punishable with imprisonment upto 7 years and fine, and Section 209 of IPC punishable with imprisonment upto 2 years and fine. He has argued that despite being a well-educated woman having done B.Ed. and M.A. in English and knowing fully well that making false statement on oath is an offence punishable under law, the respondent intentionally and deliberately stated blatant lies in the Income Affidavit to masquerade herself as unemployed person and seek enhanced maintenance and therefore, she is liable to be prosecuted for perjury. He has submitted that the unconditional apology tendered by the respondent in her reply is merely an eye wash as she has no remorse for her actions and has tried to malign the previous advocate by shifting the burden on him. He has submitted that in fact, the respondent has again perjured by making a wrong statement in para no. 1 of the reply to the effect that she was unemployed at the time of fixing of ad-interim maintenance for the minor daughter on 23.12.2021. He has argued that the conduct of the respondent furnishes sufficient and reasonable ground to initiate proceedings against her for making a false statement on oath and it is also expedient in the interest of justice to punish her otherwise she shall be encouraged to make false statements in Courts in future as well.

6. On the other hand, the counsel for the respondent has submitted that since the respondent has accepted her mistake and has tendered unconditional apology, a lenient view should be taken against her. She has submitted that the respondent is not trying to wriggle out of her mistake but has only tried to explain the circumstances under which she did not disclose about her employment under the advice of her previous counsel. She has submitted that though a meager amount of ad-interim maintenance had been fixed for the minor daughter but the respondent has never asked for her own maintenance till date. She has contended that in a similar situation, the Hon’ble Punjab and Haryana High Court in ‘Amit Aggarwal v. Ritu Aggarwal & Anr. decided on 26.10.2018 had only declined to grant maintenance to the wife instead of prosecuting her for perjury. She has also placed reliance on Crl. Appeal No. 9783/2023 titled as ‘James Kunjwal v. State of Uttrakhand & Anr.’ decided on 13.08.2024 by the Hon’ble Supreme Court to submit that the Superior Courts have time and again held that proceedings for perjury should be initiated in exceptional circumstances and not in the cases where a wrong statement is made innocently or under wrong legal advice by a litigant.

7. Section 193 IPC prescribes punishment for giving false evidence. Section 191 IPC, which defines the offence, reads as under:

“191. Giving False Evidence: Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation1.-A statement is within the meaning of this section, whether it is made verbally or otherwise.

Explanation 2.-A false statement as to the belief of the

person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.”

For the application of Section 193 IPC, the essential ingredients are:

i) false statement made on oath or in affidavits;

ii) that such statement be made in a judicial proceeding or before an authority that has been expressly deemed to be a Court.;

8. Section 195 (1) (b) of CrPC provides that no Court shall take cognizance of an offence committed under Sections 193 to 196, 199, 200, 205-211; except on the complaint in writing of the Court or by an officer of the Court, duly authorized. Section 340 CrPC lays down the procedure in respect of prosecution and reads as under:

Section 340- Procedure in cases mentioned in section 195:

(1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case maybe in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary-

1. record a finding to that effect;
2. make a complaint thereof in writing:
3. send it to a magistrate of the first class having jurisdiction;
4. take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
5. bind over any person to appear and give evidence before such Magistrate

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.

(3) A complaint made under this section shall be signed–

1. where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
2. in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf (4) In this section, Court has the same meaning as in section 195.

9. In the landmark case of Chajoo Ram v. Radhey Shyam & Anr. (1971) 1 SCC 774, the Hon’ble Apex Court has expounded the guidelines when the prosecution for offence under Section 193 IPC should be sanctioned by the Courts. The Hon’ble Court has held that:

“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavit is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge…”

10. After referring to various judicial pronouncements on the subject, the Hon’ble Supreme Court in James Kunjal’s case (Supra) laid down the following yardsticks which should be fulfilled for initiating proceedings for the offence of perjury under Section 193 IPC:

1. The Court should be of the prima facie opinion that there exists sufficient and reasonable ground to initiate proceedings against the person who has allegedly made a false statement;
2. Such proceedings should be initiated when doing the same is ‘expedient in the interest of justice to punish the delinquent’ and not merely because of inaccuracy in the statements that may be innocent/immaterial;
3. There should be ‘deliberate falsehood on a matter of substance’;
4. The Court should be satisfied that there is a reasonable foundation for charge, with distinct evidence and not mere suspicion; and
5. Proceedings should be initiated in exceptional cases, for instance, when a party has perjured themselves to beneficial orders from the Court.

11. Testing the facts of the case on hand on the touchstone of the above yardsticks, the application under Section 340 CrPC of the petitioner deserves to be allowed. From the report of the Ld. Local Commissioner and the documents filed therewith, it is evident that the respondent had joined Lotus Valley International School as a teacher on 15.09.2021. Even though she was unemployed as on the date of filing of the application under Section 24 of the Act but at the time of filing of the Income Affidavit on 12.05.2022, she was gainfully employed. The factum of her employment with the school effect from 15.09.2019 has also not been disputed by the respondent. She has pleaded that she had not disclosed about her employment as she was on probation and there was no guarantee that her job would continue. Meaning thereby, at the time of making the statement on oath in the Income Affidavit that she is unemployed since May 2019, the respondent knew that the said statement was false. The assertion of the respondent that the false statement was made under the guidance of the previous advocate does not ram down the throat as she is a well- educated lady and must have signed the declaration, which forms part of the Income Affidavit, after going through the same. It was incumbent upon her to state the true and correct facts in the Affidavit and disclose about her employment and income even if she was on probation.

12. The very purpose of filing an Income Affidavit is that based on the correct and responsible information furnished in it, the Court can assess the financial status of the parties and adjudicate the quantum of maintenance. As a mandatory requirement, the respondent had filed the Income Affidavit for claiming maintenance under Section 24 of the Act. It appears that she deliberately made false statement in the Income Affidavit so that the Court may award maintenance at a higher rate by believing that she is unemployed. This tendency to secure an interim order on false averments on oath needs to be viewed sternly and dealt with effectively. Such a litigant cannot be allowed to get away with false statements owing to the unnecessary indulgence and misplaced generosity. In the opinion of this Court, it is a fit case for initiating the proceedings for the offence of perjury against the respondent.

13. In the light of above discussion, the application under Section 340 CrPC preferred by the petitioner is allowed and the Reader posted in the Court is directed to prepare a complaint in terms of Section 195 read with Section 340 of the Criminal Procedure Code and file it before the competent Criminal Court against the respondent.

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