Consent to divorce, Relief / maintenance : 498A quashed

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Vinayak

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Feb 21, 2006, 12:01:01 PM2/21/06
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CASE NO.: Appeal (crl.) 23 of 2005

PETITIONER: Mohd. Shamim & Ors.

RESPONDENT: Smt. Nahid Begum & Anr.

DATE OF JUDGMENT: 07/01/2005

BENCH: N.S. Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (Crl.) No. 2051 of 2004]


S. B. SINHA, J :


Leave granted.


The First Appellant and the First Respondent were married as per the
rites governing the marriage under the Muslim Personal Law on
02.04.1989. The Appellant No.2 is the mother of the First Appellant
and the Appellant Nos. 3 to 5 are the sisters. The First Appellant
allegedly divorced the First Respondent and intimation thereabout was
communicated to her through a legal notice dated 03.05.2002. On or
about 30.10.2002, the Respondent No.1 lodged a First Information Report
in Women Cell, Rajinder Nagar, New Delhi, against the Appellants herein
which was registered as FIR No. 224 of 2002, Police Station Hauz Qasi,
Delhi, under Sections 406/498-A/34 IPC. The Appellants having come to
learn about the lodging of the First Information Report filed an
application for grant of anticipatory bail. During the course of
hearing of the said application, a settlement was arrived at inter alia
at the instance of the learned judge hearing the said matter between
the parties on or about 11.11.2002 pursuant whereto or in furtherance
whereof the parties entered into a written agreement on 14.11.2002.

By reason of an order dated 11.11.2002, the learned Additional
Sessions Judge, directed :

"During the course of arguments it is settled by the
parties that a sum of Rs.2,75,000/- would be paid by the
petitioner to the complainant Nahid Begum in full and
final settlement of istridhan, dowry mehar present past
and future maintenance etc. out of that Rs.2,25,000/-
would be paid on the next date of hearing by way of pay
order in the name of complainant and Rs.50,000/- would
be paid at the time of complainant on making statement
and no objection for quashing the FIR and the said pay
order would be retained in court. The parties make the
draft agreement to this effect to facilitate to both the
parties for quashing of FIR. Pay order would be brought
on the next date. Adjourned for bringing pay order on
14.11.2002. Till then applicants be not arrested."


The said agreement was filed before the court of the Additional
Sessions Judge, Delhi.

An affidavit in support of the said settlement was also affirmed by the
First Respondent herein, wherein inter alia it was stated :

"8. I undertake that I will cooperate in all respect
and will participate in the proceedings for quashing the
F.I.R. against Mohd. Shamim Ishrat Bi, Shahnaz Begum,
Farhat Begum and Shahzad Begum, vide F.I.R. No.
224/2002, P.S. Hauz Qazi, u/s 498-A/406/34 I.P.C., as I
have received the said amount through Bank Drafts and I
have no objection in any manner. I have entered into the
compromise with the said persons voluntarily with my
own free will and consent.

9. That I have executed an Agreement with Mohd.
Shamim which is separately written with my consent and
I have understood the contents of the same, through my
counsel and have been read over to me in vernacular and
I admit the contents of the said Agreement in all respect
and I accept the same as correct.

13. That the contents of the Agreement may be
read as part and parcel of this affidavit and the same are
not being repeated here for the sake of brevity."


In the said Agreement it was clearly stipulated that the First
Respondent received a sum of Rs.2,25,000/- from the First Appellant out
of Rs.2,75,000/-, the details whereof had been specified therein.


It was further averred :


"2. That the Draft/pay order of Rs.50,000
(Rupees fifty thousand only) Rs.25000/- each
(Rupees twenty five thousand only), (1) bearing
No.103621 dated 13.11.02, drawn on Canara
Bank, Chandni Chowk, Delhi (ii) bearing
No.031030 dated 13.11.02 drawn on Bank of
India, Hamdard Dwakhana, Delhi-6 have been
deposited in the court in terms of the order dated
11.11.2002.

3. That the above mentioned amount
Rs.2,75,000/- (Rupees two lacs seventy five
thousand only) covers the "MEHAR" amount
entire articles of dowry, Istridhan, past, present
and future maintenance, entire jewellery including
the jewellery presented by the bridegoom/second
party and his relatives. After receipt of the said
amount the first party shall not claim anything
from the secondary party. She will not claim any
further amount or articles, Istridhan, Charhawa i.e.
the gifts from the sides of both the parties,
maintenance u/s 124 Cr.PC or Section 3 of the
Mulsim Women Act, or under any other provisions
of law. The first party states that she has already
filed a petition u/.s 125 Cr. PC against the second
party and the same is pending in the court of Shri
R.K. Sharma, M.M., Delhi and is fixed for
3.12.2002 of which no notice is served upon the
second party. The first party now undertakes to
withdraw the said petition under section 125 Cr.
PC immediately.

5. That both the parties are at liberty to get
married any person of their choice in future. They
will not interfere in the affairs of each other in
future. They will also not litigate in future in
respect of the above said matters.

6. That the first party undertake to give no
objection/statement in order to quash the FIR in
the present case and shall withdraw any other
complaint lodged with any other authority/court of
law. She also undertakes that she will not file any
other or further complaints case(s) etc. against the
second party."


In view of the aforementioned settlement, the learned Additional
Sessions Judge in his order dated 14.11.2002, recorded :

"Present : Counsel for the parties with parties in person App for the
State.

A pay order of 2.25 lakhs has been given by the
petitioners to the complainant. The petitioners undertake
to further pay a sum of Rs.50,000/- to the complainant
when she would be called for the statement for quashing
of the FIR. In these facts and circumstances, the parties
would bound by their undertaking, the applications are
allowed. It is ordered that in the event of arrest,
applicants are released on anticipatory bail on furnishing
personal bond in the sum of Rs.10,000/- each with one
surety each in the like amount to the satisfaction of
IO/SHO concerned who are required to be arrested in
case FIR No.224/02 PS Hauz Qazi. Parties are also
placed on record copy of pay order, agreement and
affidavit etc."


Pursuant to or in furtherance of the said settlement, the Appellants
herein filed an application before the Delhi High Court for quashing
the said First Information Report purported to be under Section 482 of
the Code of Criminal Procedure, 1973. The First Respondent, however,
in stead and place of complying with her undertaking contained in the
agreement as also in her affidavit filed objections to the said
application. In her reply filed before the High Court, it was, inter
alia, contended :

"6. That the contents of para no.6 of the petition
under reply are wrong and denied. It is wrong and
denied that any compromise was accepted by the
Respondent No.1. The court of Shri S.N. Gupta, ADJ,
Delhi accepted the bail application of the petitioners on
the condition that the petitioner no.1 will pay a sum of
Rs.2,75,000/- to the respondent No.1 in lieu of dowry
cost. The respondent No.1 has been paid only
Rs.2,25,000/- and the petitioners have not paid
Rs.50,000/- till date hence the petition is liable to be
dismissed. It is also submitted that respondent No.1 was
forced to sign some papers by the petitioner that
Rs.50,000/- will be paid when the paper mentioned above
will come on record of the court. But till date amount of
Rs.50,000/- has not been paid hence the petition is liable
to be dismissed."

In view of the stand taken by the Respondent No.1 herein, a learned
Single Judge of the High Court by reason of the impugned judgment and
order dated 16.02.2004 refused to interfere in the matter stating :

"Respondent No.1/Complainant is present in
person. She does not wish to compromise the matter and
wants to continue with her complaint which gave rise to
FIR No.224/2002, under Sections 406/498A/34,
registered at Police Station Hauz Qazi.

In this view of the matter. I find no grounds to interfere.

Dismissed."


Before us, there is no denial or dispute as regard the factum of
entering into the aforementioned settlement dated 14.11.2002. In the
said deed of compromise it has categorically been averred that the same
had been entered into on the intervention of S.N. Gupta, Additional
Sessions Judge, Delhi. It has also been accepted that out of sum of
Rs.2,75,000/-, a sum of Rs.2,25,000/- has been paid to the First
Respondent herein and the balance amount of Rs.50,000/- would be paid
at the time of complainant's making statement and no objection for
quashing the FIR, which was retained in the court as per the direction
of the court. It has further been averred that no dispute remained
between the parties regarding the payment of dower amount (Mehar),
dowry articles, including the alleged jewellary gift etc.

In view of the fact that the settlement was arrived at the
intervention of a judicial officer of the rank of the Additional
Sessions Judge, we are of the opinion, the contention of the First
Respondent herein to the effect that she was not aware of the contents
thereof and the said agreement as also the affidavit which were got
signed by her by misrepresentation of facts must be rejected. In the
facts and circumstances of this case, we have no doubt in our mind
that the denial of execution of the said deed of settlement is an
afterthought on the part of the Respondent No.1 herein.

Ex facie the settlement between the parties appears to be genuine. If
the contention of the First Respondent herein is to be accepted, she
would not have accepted the sum of Rs.2,25,000/- and in any event, she
could have filed an appropriate application in that behalf before the
Court of S.N. Gupta, Additional Sessions Judge, Delhi. What was least
expected of her was that she would return the said sum of Rs.2,25,000/-
to the Appellants herein.

Section 406 is a compoundable offence with the permission of the
court. It is true that Section 498-A IPC is not compoundable.

This Court in Ruchi Agarwal vs. Amit Kumar Agrawal & Ors. [2004
(8) Supreme 525], in almost a similar situation has quashed a criminal
proceeding against the husband, stating :

" Therefore, 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.

8. In view of the above said subsequent events and
the conduct of the appellant, it would be an abuse of the
process of the court if the criminal proceedings from
which this appeal arises is allowed to continue "


In view of the conduct of the First Respondent in entering into the
aforementioned settlement, the continuance of the criminal proceeding
pending against the Appellants, in our opinion, in this case also,
would be an abuse of the process of the court. The Appellant No.1,
however, would be entitled to withdraw the sum of Rs.50,000/- which
has been deposited in the court. We, therefore, in exercise of our
jurisdiction under Article 142 of the Constitution of India direct that
the impugned judgment be set aside. The First Information Report
lodged against the Appellants is quashed. The Appeal is allowed.
However, this order should not be treated as a precedent.

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