Full Judgment Text
2025 INSC 1128
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 187 OF 2020
NITIN AHLUWALIA … APPELLANT(S)
Versus
STATE OF PUNJAB & ANR. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
1. Questioned in this appeal by the appellant, is the rejection of
his prayer to quash a First Information Report filed by the
respondent, the former wife of the appellant namely, Tina Khanna
1 2
Ahluwalia , under Section 498-A of the Indian Penal Code, 1860 ,
before the Police Station, Women, SAS Nagar bearing particulars-
th 3
FIR No. 65 of 2016, filed on 7 December 2016 , by the High Court
1
Respondent No. 2 herein. Referred to as respondent
2
IPC
3
FIR
Signature Not Verified
Digitally signed by
NAVEEN D
Date: 2025.09.18
18:25:06 IST
Reason:
Criminal Appeal No. 187 of 2020 Page 1 of 13
of Punjab and Haryana in Criminal Misc. No. M-850 of 2017
rd
(O&M), by judgment dated 23 March 2017.
2. The facts and sequence of events, as are necessary to
appreciate the context of the FIR, are as follows:
2.1. The appellant is an Australian citizen of Indian origin,
and the respondent is an Austrian citizen. They were married
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per Hindu rites and rituals on 29 November 2010 at
Panchkula in Haryana, since families of either party resided
in India.
2.2 Life in matrimony began at Melbourne, Australia on
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18 December 2010. A daughter was born from this union
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on 29 September 2012.
2.3 The respondent left the matrimonial company of the
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appellant, allegedly without any forewarning, on 30 June
2013, taking their daughter along with her, to Austria, her
home country.
2.4 The appellant initiated proceedings under The Hague
Convention on the Civil Aspects of International Child
4
Abduction, 1980 , in Austria seeking the return of his
daughter, to Australia. The District Court of Vienna Inner
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City made an Order dated 8 January 2014 recording the
4
‘Hague Convention, 1980’
Criminal Appeal No. 187 of 2020 Page 2 of 13
factual circumstances that led to the application being
preferred as differing ideas as to roles both the mother and
father had to play in society. A further point of contention
was the desire of the respondent to relocate to Austria for the
purposes of child’s education. It was held that neither the
consent of the appellant, either immediate or ex-post facto;
nor ‘ grave risk ’ upon return - both factors which allowed the
‘ requested state ’ to refuse the return of the child, could be
established - the application had to be allowed. The
daughter was directed to be returned to Australia.
2.5 On appeal, the Vienna District Civil Court refused
intervention. The conclusions are as follows:
“ With regard to the mother’s complaint regarding the legal
position, the following considerations were made:
Insofar as the mother refers to the fact that the father has not
seen the minor since 2 July 2013 and therefore has
“absolutely no connection with her anymore, it should be
pointed out that the court of first instance has not ordered
the return of the minor without the mother, and naturally, it
is now up to the mother to return to Australia with the child.
As outlined carrier, it cannot be derived under the given
circumstances that father, in saying that she should leave
the house, gave his conclusive consent to the minor
travelling to Austria in order to remain there permanently.
With respect to the mother’s argument that the minor has
stayed in the country of refuge for some considerable time
Criminal Appeal No. 187 of 2020 Page 3 of 13
now and was socially integrated, it should be pointed out
that the father has lodged the return application within the
one-year period required by the HCCH, in fact five months
after the removal of the child to Austria by the mother. Prior
to that, he had repeatedly requested and asked the mother
expressly to return to Australia with the child. There can be
no mention of the minor already having her actual centre of
life in Austria, particularly in view of the young age of the
child.
In this context the father correctly refers to the Judgment of
the Supreme Court in his response to the appeal.
Therefore, the appeal has succeeded in failing.”
2.6 The Supreme Court of the Republic of Austria also
rejected the respondent’s appeal. It was held that it cannot
be said that the appellant did not have custody of the
daughter or in other words custody rights were not exercised
by him, thereby justifying the removal, and she took care of
the child on her own, since they resided in the same house.
Further, it was observed that apprehensions as to the child’s
well-being, being jeopardised, particularly in the shape of
psychological stress and possible economic issues, does not
meet the standards of truly serious risks, or the case law
sought to be relied on. A further contention to the effect that
the consequence of the order of the Court of first instance
would be her estrangement from the child, was rejected as
being de hors the contents of the order. It was observed that
Criminal Appeal No. 187 of 2020 Page 4 of 13
an unaccompanied return was not the order, instead it was a
return to Australia, simpliciter. It was also not an order for
the child to be sent to the appellant. Nothing stops her from
returning to Australia with the child. It was also observed
that the respondent had to deal with consequences of her
actions should she return to Australia for it was her unilateral
decision to remove the child from Australia. The last
argument of social integration is Austria, was also deemed
to have failed.
2.7 The respondent then filed an application seeking stay
of enforcement proceedings on the ground that talks with the
aim of settling the matter with the appellant are underway.
The District Court, Vienna Inner City, rejected the
th
application, vide order dated 5 May 2014. It was observed
that orders passed in relation to matters governed by the
Hague Convention, 1980 can be executed by the concerned
Court “ by means of immediate force ”. The only scenario
where the Court may refrain from doing so, is, if it
jeopardises the well-being of the minor. It was then
concluded as under:-
“The enforcement of the legally binding return order, as
requested by the father, by means of handover of the minor
from the mother to the father, which is factually like a
regular changeover after contact, seems like an appropriate
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method to implement the return of the minor and is a
significantly softer intervention than the child being
removed by the Courts enforcement authorities
accompanied by employees of the youth and Family
Welfare Office, Family Court Assistance or organs of
public security. The settlement discussions proposed by the
mother are not sufficient to justify a stay of enforcement
proceedings. On one hand, the terms voluntary seems
inappropriate in view of the legally binding decision, on the
other hand, the mother is not serious about her return, as it
becomes apparent from the conditions attached with the
return. In response to the mother’s argumentation that
minor’s well being at risk, it shall be noted that the
described detriments to the minor can be avoided if the
mother was to return to Australia with the minor.
Consequently, the enforcement proceedings had to be
commenced and the return order implemented as requested
by the father. The time of handover had to be specified and
set for the date of the scheduled return flights, in order to
limit the irritations of the return for the minor to a shorter
period…”
2.8 The appellant filed for divorce under the Family Laws
Act, 1975 on the ground of irretrievable breakdown of
marriage, which was granted by the Federal Circuit Court of
st th
Australia on 1 April 2016, with effect from 4 April 2016.
This order was made after due service to the respondent, in
India, and having heard the parties.
th
2.9 A month after the grant of divorce, on 4 May 2016 the
respondent lodged a complaint with the Senior
Superintendent of Police, SAS Nagar alleging demands of
dowry and torture, both physical and emotional. It is on this
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basis that the FIR subject matter of these proceedings, came
to be filed. The period of the alleged offence subsisting is
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from 29 November 2010 till 4 May 2016.
3 . Aggrieved by the registration of the FIR, which we already
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have noticed, took place finally on 7 December 2016, the appellant
approached the High Court, seeking quashing thereof. Certain
grounds were agitated before the Court, but they were ultimately
rejected by the Learned Single Judge. It was observed:
“Detailed and specific allegations have been raised in
this First Information Report registered at the instance of
respondent No.2 who is stated to be residing with her parents
at Silver City Greens, Ambala-Zirakpur Highway. The matter
is at the very initial stage of investigation. The petitioner is
admittedly in Australia at this point of time and has not joined
investigation. It is clearly too premature a stage for this Court
to return a finding in respect to the sustainability of this petition
and consequently quash the abovesaid FIR on the grounds
sought to be raised by the petitioner…
Keeping in view the facts and circumstances of the case,
no ground is made out for interference by this Court in exercise
of jurisdiction under Section 482 Cr.P.C. at this stage. The
present petition is clearly premature. Disposed of
accordingly...”
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4. As such, the appellant is before us. Notice was issued on 4
December 2017, and by the same order it was directed that there
would be a stay on the investigation in the subject FIR.
5. We notice that two attempts were made towards a mediated
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settlement of the disputes. The first was by order dated 4 January
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2019 and the second by order dated 27 February 2025. Both
attempts did not yield the desired result. Suffice it to say we are
disappointed in 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.
6. We have heard the learned counsel for the parties and perused
the record. The sum of the appellant’s case is that the FIR does not
disclose any offence; despite orders of the concerned Court, the
respondent did not return the child to Australia and instead has
brought her to India and filed the FIR to harass him; no allegations
of this nature were ever made in the proceedings in both the foreign
countries; the FIR has been maliciously filed with an intent of taking
advantage of the Indian legal position and to vent out her grudge
against the appellant. Per contra, the respondent denies the FIR
being a retaliatory measure, and submits that only after attempts at
mediation failed, did she take recourse to criminal law. She also
submits that India is not a signatory to the Hague Convention and,
therefore, the decree passed by the Courts in Austria need not be
considered by the Court. That apart, child custody is a civil matter
Criminal Appeal No. 187 of 2020 Page 8 of 13
whereas cruelty, is criminal. They are separate and distinct from
each other.
7. The law on the exercise of the High Court’s inherent powers
under Section 482 of the Code of Criminal Procedure, have been
repeatedly expounded and reiterated - to the point that they ought
not to require restatement, and hence, we will not go down that
route. The scope of the exercise to be carried out by the Court while
adjudicating such an application for quashing is also well
established. The Court is only to look to the prima facie possibility
of the offence having been committed. In this regard reference can
5 6
be made to CBI v. Aryan Singh and Rajeev Kourav v. Baisahab .
8. If the complaint is seen in isolation, then the approach of the
learned Single Judge appears, entirely to be in consonance with the
established position of law - allegations have been made, and so they
have to be investigated. In certain cases, though, it is not as straight-
cut as that. While it is true that elaborate defences and evidence
brought on record is not to be considered at this stage, 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
5
(2023) 18 SCC 399
6
(2020) 3 SCC 317
Criminal Appeal No. 187 of 2020 Page 9 of 13
appreciated, at least to some extent, the background in which the
respondent filed the subject FIR.
9. Here, the respondent filed the complaint after the grant of
divorce, a month later. Granted that the same is not expressly
prohibited by law, 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. To entertain the possibility that the same
is nothing but a counterblast to the fact that the appellant 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, accepting the appellant’s prayer for grant of
divorce, does not appear far-fetched.
10. That apart, on our own analysis, we find the conduct of the
respondent to be questionable. Despite there being orders of the
concerned Courts in Austria, the child, as alleged by the appellant,
is yet to be returned to Australia, either with or without her mother
accompanying her. This position of the appellant has not been
controverted by the respondent. Further, we find that when service
was to be effected for the papers of divorce proceedings initiated by
the appellant, the same was made in India. This, to our mind casts
doubt on the genuineness of the respondent for the reason that one
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of the arguments she made in favour of her position of wanting to
keep the child in Austria, was that she had been integrated in the
society there. Well, if that was the case, the child ought to have been
in Austria even today, if we, arguendo , keep aside the decree of the
Courts there, asking the respondent to do quite the opposite. Still
further, one of the allegations made/apprehensions listed in her
complaint is that there is a possibility that the appellant may abduct
her child. Even though in the eventual FIR such allegation does not
translate into a charge, the mere presence of the statement makes us
believe that a picture far from the truth has tried to be painted. In
fact, it was against the respondent that 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.
11. Additionally, we may note that the period of the alleged cruelty
meted out by the appellant, extends to a period beyond the time that
they were married. We may only wonder how that can be. We may
also observe that while it may be true that India is not a signatory to
the Hague Convention, 1980 and that the criterion may allegedly
differ, it does not give us 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
Criminal Appeal No. 187 of 2020 Page 11 of 13
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.
12. Recently, this Court speaking through B.R. Gavai, J. ( as the
learned Chief Justice of India presently, then was ) quashed similar
7
proceedings in Digambar v. State of Maharashtra , observing as
follows:
“...it was lodged after the legal notice for Divorce was sent by the
complainant therein. It was therefore concluded that the FIR came
to be lodged as a retaliatory measure intended to settle score with
the husband and his relatives.
22. In another recent judgment of this Court titled Jayedeepsinh
5
Pravinsinh Chavda v. State of Gujarat , the guilt of the appellant
therein under Section 498-A of IPC was maintained, however, the
ingredients of 498-A of IPC were discussed. It was observed thus:
“ 11. From the above understanding of the provision, it is
evident that, ‘cruelty’ simpliciter is not enough to
constitute the offence, rather it must be done either with
the intention to cause grave injury or to drive her to
commit suicide or with intention to coercing her or her
relatives to meet unlawful demands.”
23. Hence, it was clear that ‘cruelty’ is not enough to constitute the
offence. It must be done with the intention to cause grave injury or
drive the victim to commit suicide or inflict grave injury to herself.
In the present case, the allegations levelled in the FIR do not reveal
the existence of any such allegations.
7
2024 SCC OnLine SC 3836
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13. Placing reliance on the above, and as a consequence of the
discussion made supra , it is clear that the instant facts attract
8
parameter 7 of those laid down in State of Haryana v. Bhajan Lal
and as such, it can be said that if the FIR proceeds further, it would
be an abuse of the process of law. Hence, the impugned judgment
and the FIR subject matter of these proceedings, the particulars
whereof are given in paragraph 1 of this judgment, stand quashed
and set aside.
14. The appeal is allowed. Applications pending, if any, shall be
closed.
………………………………………J.
(SANJAY KAROL)
………………………………………J.
(PRASHANT KUMAR MISHRA)
September 18, 2025
New Delhi.
8
1992 Supp (1) 335
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