I and my wife want to file a joint petition for divorce by mutual consent. But the opposite party is demanding 65% amount out of the lump-sum settlement amount at the time of filling of joint petition. Suppose my wife will remain absent / refuse the divorce at the time of second motion (after six month), in that case can I file the other case (Indian Penal Code 420 or 415 for cheating) for my 65% amount on the basis of Mutual consent & MOU copy? And what type of punishment can be given to opposite party as per the said Indian Penal Code? I need your kind legal advice.
Answer: Firstly, you may perhaps like to read my answer to another similar question: Divorce by mutual consent – how should lumpsum settlement amount be paid.
Now, let me answer your specific question as to whether your wife can be charged with a case of cheating if she accepts 65% amount out of the lump-sum settlement amount at the time of filing of joint petition for divorce but refuses or remains absent at the time of second motion after 6 months.
Please note that almost all criminal cases require mens rea, or what is known as a guilty mind, or some sort of dishonest or fraudulent intention, etc., at the time of commission of the offence. Without such intention, an offence is not made out even if the act appears to be an offence. Thus, every crime (barring a very few exceptions) consists of two essential components – (1) the intention and (2) the act committed. Both are necessary for proving an offence.
Let us now consider the offence of cheating, the definition of which is given under Section 415 of Indian Penal Code (IPC) as under:
“415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”
So, what is required under this section is that there should have been a “fraudulent” or “dishonest” intention on the part of the accused or there should have been an “intentional inducement” on the part of the accused. Secondly, the victim should have been “deceived”.
Punishment for the offence of cheating, as defined under Section 415, is given under Section 417 IPC.
Section 420 IPC (which is more commonly referred to as “cheating”) is, in fact, an aggravated form of “cheating”. This section is reproduced below:
“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
This section also requires “dishonest inducement” on the part of the accused.
It is important that such dishonest or fraudulent intention must be there since the beginning, i.e., at the time when the victim was “induced” to deliver property, etc.
For example, in the recent case of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, the Supreme Court has held as under:
“41. Section 415 IPC thus requires—
1. Deception of any person.
2. (a) Fraudulently or dishonestly inducing that person—
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.” [Emphasis supplied by me.]
It is thus clear that it is necessary to show that the accused had a fraudulent or dishonest intention at the time of making the promise itself. From his or her mere failure to subsequently keep a promise, one cannot presume that he or she all along had a dishonest intention to break the promise from the beginning.
Okay. Let me now come back to your question. Here, if your wife has a dishonest or fraudulent intention to deceive you since the very beginning and she does not actually want to agree for divorce but merely wants to get settlement money from you, then she can be punished for the offence of cheating if she accepts 65% amount out of the lump-sum settlement amount at the time of filing of joint petition for divorce (with such dishonest intention) but refuses or remains absent at the time of second motion after 6 months.
However, on the other hand, if she accepts 65% amount out of the lump-sum settlement amount at the time of filing of joint petition for divorce with the genuine intention of agreeing for divorce, but for some other subsequent reasons she changes her mind later on and refuses or remains absent at the time of second motion after 6 months, then she may not be guilty of the offence of cheating. In such a scenario, she may still be responsible for breaking the promise and may perhaps be liable for a proper civil action (civil suit), but she may not be liable for the criminal case of cheating. This is so because, as required under the offence of cheating, she did not have the mens rea or the dishonest intention or the fraudulent intention to deceive at the time when the initial 65% payment was accepted by her at the time of filing the joint petition for divorce.
Thus, it all depends on the facts and circumstances of each case. If you file a case of cheating against your wife (under Section 415/417 IPC or Section 420 IPC), the burden will be upon you to prove that she had the dishonest intention or the fraudulent intention from the very beginning itself to deceive you of the said 65% amount and that she did not have the genuine intention of agreeing for divorce. How will you be able to prove it? Well, there is no straight-jacket formula for this purpose. It will depend on the facts and circumstances of your case. You may perhaps consult some local lawyer with expertise in criminal law by showing the detailed facts of your case.
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