Petition under Section 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act is converted into petition under Section 13B of Hindu Marriage Act for grant of decree of divorce by mutual consent. Sections 406, 498A quashed.
Court:DELHI HIGH COURT
Bench: JUSTICE Dr. S. Muralidhar
PURSHOTAM GUPTA & ORS. Vs. STATE & ANR On 23 January 2008
Law Point:
Petition under Section 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act is converted into petition under Section 13B of Hindu Marriage Act for grant of decree of divorce by mutual consent. Sections 406, 498A quashed.
JUDGEMENT
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeks the quashing of FIR No. 575 of 2002 registered at Police Station, Rajouri Garden, New Delhi under Sections 498A/406 read with Section 34, Indian Penal Code (IPC).
2. The background of the filing of this petition is that the parties were married on 15th June, 1997 in New Delhi. A child was born to them on 18th September, 1998. On account of differences that developed thereafter respondent No. 2 Smt. Anju Gupta made a complaint against the petitioner No.1 husband and petitioners 2 and 3, i.e., the father-in-law and mother-in-law respectively complaining of harassment for dowry and for criminal breach of trust/misappro-priation. Consequently, FIR No. 575/2002 was registered against the petitioners in Police Station, Rajouri Garden, New Delhi on 26th July, 2002 under Sections 498A, 406/34, IPC .
3. Meanwhile in the divorce petition filed by the petitioner No.1 husband against the respondent No.2 wife was dismissed on 4th June, 2005 by the learned Additional District Judge, Gurgaon. During the pendency of the appeal FAO No. 241-M of 2005 filed by the petitioner No.1 husband in the High Court of the Punjab and Haryana, the parties settled their disputes. At the hearing of the appeal on 5th April, 2006 that High Court was informed of this development and the following order was passed:
Parties have settled their disputes. On the oral request made, the original petition filed under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act (H.M.Act Case No. 41 of _ 5.4.2002, Purshotam Gupta v. Anju Gupta, in the Court of Addl. District Judge, Gurgaon) is converted into petition under Section 13-B of the Hindu Marriage Act for the grant of decree of divorce by mutual consent. Parties are present. Let their statements be recorded.
4. The statements made by the petitioner No. 1 husband as well as the respondent No. 2 wife were thereafter recorded on oath in the High Court. Relevant to the present petition is the following statement made on oath by the respondent No. 2 wife before the High Court:
I married Purshotam Gupta on June 15, 1997. A male child was born out of the wedlock , who is residing with me. Since May 1, 1999, we are living separately. Now we cannot live together and pray for divorce to be granted on mutual consent of the parties. I have accepted a sum of Rs. 4 lacs by two cheques from appellant Purshotam Gupta as full and final settlement of my claim as well as for maintenance of the child. The child would remain in my custody. On my complaint, a criminal case is pending against Purshotam Gupta and others vide FIR No. 575 of 2002, under Sections 498A/406 and 34, IPC, registered at Police Station, Rajouri Garden, New Delhi. The criminal case is pending in the Court of Metropolitan Magistrate, New Delhi. I will have no objection for quashing of these criminal proceedings. I will also withdraw the Petition No. (RT) MP 1545/04/02 filed under Section 125, Cr.P.C.
5. Thereafter on the same date, i.e. 5th April, 2006, the High Court of Punjab and Haryana passed the following order:
“This appeal has been settled by compromise. On the oral request made by the parties, the original petition filed for grant of divorce, Purshotam Gupta v. Anju Gupta in H.M. Case No. 42 of 5.4.2002, decided by Additional District Judge, Gurgaon, is converted into a petition under Section 13-B of the Hindu Marriage Act. Statement of the parties have been recorded. As per their evidence, the marriage between the parties took place on June 15, 1997 and w.e.f. May 1, 1999, they are living separately. They cannot live together and they have prayed for divorce on mutual consent. The same is allowed. Out of the wedlock, a male child was born, namely, Mukul Gupta, who will continue to remain in custody of Smt. Anju Gupta. For her claim as well as for maintenance of Mukul Gupta, Purshotam Gupta has tendered Rs.4 lacs in two cheques bearing Nos. 752218, dated 25.4.2006, amounting to Rs. 2,50,000/- drawn at State Bank of India, New Delhi and 093727, dated 15.3.2006, amounting to Rs. 1,50,000/- drawn at Central Bank of India, Gurgaon. On recovery of the same, Anju Gupta will not make any claim for her maintenance or maintenance of the child. She will have no further claim against Purshotam Gupta. On an FIR registered at the instance of Anju Gupta, a criminal case is pending registered under Sections 498A/406 and 34, IPC, at Police Station, Rajouri Garden, New Delhi, in the Court of Metropolitan Magistrate, New Delhi. Smt. Anju Gupta will have no objection for quashing of the same for which Purshotam Gupta will move the Court concerned. She will also withdraw proceedings under Section 125, Cr.P.C. This disposes of the aforesaid appeal with the grant of divorce on mutual consent of the parties. Copy of the orders be supplied/given to learned Counsel for the parties/parties and file be returned to the High Court.”
6. It is stated by the petitioners that subsequent to the above order the two cheques for the sum of Rs. 4,00,000 in favour of respondent No. 2 Smt. Anju Gupta (the details of which are set out in the order dated 5th April, 2006) were encashed by her. Copies of the corresponding entries in the bank account on which the cheques were issued evidencing such encashment have been placed on record in this petition.
7. Although she was expected to join the petitioners in filing the present petition under Section 482, Cr.P.C. for quashing the FIR, it appears that the respondent No. 2, for the reasons best known to her, refused to do so. This petition was accordingly filed by the husband and the in-laws seeking the quashing of the FIR aforementioned in terms of the compromise already recorded by the High Court of Punjab and Haryana in its Order dated 5th April, 2006.
8. Notice in this petition was directed to issue to the respondent No. 2 by this Court’s Order dated 25th May, 2006. Respondent No. 2 has been served but has chosen to remain absent from this Court for at least three hearings thereafter. Today also there is no appearance on behalf of the respondent No. 2.
9. The learned Counsel for the petitioners states that the respondent No.2 was bound to honour the terms of the settlement on the basis of which the appeal stood disposed of by the High Court of Punjab and Haryana on 5th April, 2006. He states that since the petitioner No.1 has have performed his part of the obligation by making the payment of Rs. 4 lakh to respondent No. 2, she was obliged to join the petitioners in filing the present petition for quashing. He submits that in similar circumstances on at least two occasions, the Hon’ble Supreme Court has, while reversing orders of the High Courts declining to quash the proceedings, held that parties cannot be allowed to resile from the statements made before the Court on the basis of which a settlement has been recorded and the proceedings disposed of. Refernce is made to the judgments in Ruchi Agarwal v. Amit Kumar Agrawal & Ors., VII (2004) SLT 307=IV (2004) CCR 332 (SC)=I (2005) DMC 82 (SC)=(2005) 3 SCC 299; and Mohd. Shamim & Ors. v. Nahid Begum & Anr., I (2005) SLT 355=I (2005) CCR 179 (SC)=I (2005) DMC 311 (SC)=(2005) 3 SCC 302.
10.1. In Ruchi Agarwal, a compromise was arrived at between the husband and wife in the divorce proceedings before the Family Court at Nainital and a compromise deed was also filed in that Court. The terms of the compromise were that the wife would be returned the entire Stridhan and be paid the maintenance in a lumpsum. On this condition, it was agreed that a divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 would be granted. As a part of the compromise, it was agreed that the wife would withdraw the criminal case under Section 125 of the Cr.P.C., as well the criminal case under Sections 498-A, 323 and 506, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (DPA).
10.2. Before the Family Court could pass an order on the basis of the compromise, the wife wrote a letter to the Family Court resiling from the compromise because she had not received the agreed amount. However, later her statement was recorded by the Family Court wherein she stated that she wanted a divorce and that there was no dispute as to the amount. She withdrew the letter written by her to the Family Court resiling from the compromise. On the basis of this statement the Family Court passed a decree of divorce by way of mutual consent and the wife also withdrew the maintenance case under Section 125, Cr.P.C. However, she took no steps to withdraw the criminal case under Sections 498A, 323 and 506, IPC and Sections 3 and 4, DPA. The husband then approached the High Court for quashing the said criminal proceedings.
10.3. The High Court allowed the petition and quashed the proceedings not on the basis of the compromise but on the ground that the trial Court in Nainital Rampur District had acted beyond its territorial jurisdiction in entertaining the complaint of the wife.
10.4. In the appeal filed by the wife in the Supreme Court, it was sought to be contended by her that she had been coerced into giving a statement before the Family Court agreeing to withdraw the criminal case at the time of recording of the compromise. The Supreme Court however declined to accept such an argument. While affirming the judgment of the High Court the Supreme Court quashed the criminal proceedings on the basis of the compromise as recorded by the Family Court. It observed:
We are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned Counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.
11. Likewise in Mohd. Shamim, the respondent No.1 wife informed this Court in the Section 482 proceedings that she did not wish to compromise the matter and wanted to continue with the complaint notwithstanding the fact that in her presence, a statement to the contrary had been recorded by the learned Additional Sessions Judge in the proceedings in that Court. In view of the stand taken by the respondent No.1 wife in that matter, this Court had declined to interfere and dismissed the petition under Section 482, Cr.P.C. However, the Supreme Court reversed this Court’s decision after coming to the conclusion that the settlement arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge ought not to be doubted, and that the denial of the execution of the compromise deed by the respondent No. 1 wife was clearly an afterthought. The Supreme Court observed that having accepted the sum of Rs. 2,25,000 pursuant to the said compromise, the wife could have at least filed an application in the same Court returning the sum already accepted if indeed she was serious in resiling from the compromise. The appeal was allowed and the criminal proceedings quashed.
12. Reverting to the present case, acting on the compromise the respondent No. 2 accepted the amount of Rs. 4 lakhs, accepted the divorce by way of mutual consent and also withdrew the maintenance case under Section 125, Cr.P.C. However, for some unknown reason she chose not to join in the present petition seeking quashing of the criminal proceedings under Sections 498-A, 406/34, IPC. She was served in the present proceedings but has chosen to remain absent.
13. This Court cannot but accept the statements made on oath by respondent No. 2 accepting the terms of the compromise and recorded by and forming part of the record of the Punjab and Haryana High Court. She has also accepted the sum of Rs. 4 lakhs in terms of the compromise. The divorce has been granted and the criminal case for maintenance stands withdrawn. Only the last bit regarding the quashing of the criminal proceedings under Sections 498A, 406/34, IPC remains with the respondent No. 2 not appearing in these proceedings to contest the petition, the assertions of the petitioners as noted hereinabove remain uncontroverted.
14. This Court is, therefore, inclined to follow the aforementioned two decisions of the Supreme Court in Ruchi Agarwal and Mohd. Shamim and quash the pending criminal proceedings against the petitioners. It may be mentioned that the learned APP for the State also does not dispute the facts stated in the petition or the law as settled by the Supreme Court. He expresses no objection in the quashing of the FIR in view of the aforesaid developments.
15. Consequently, the FIR No. 575 of 2002 registered in Police Station, Rajouri Garden, New Delhi on 26th July, 2002 under Sections 498-A, 406/34, IPC and all proceedings consequent thereto hereby stand quashed. The petition is allowed but with no order as to costs.
Petition allowed.