Pooja vs Dayanidhi
2022 Latest Caselaw 19660 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 3
 

 
Case :- FIRST APPEAL No. - 883 of 2022
 

 
Appellant :- Pooja
 
Respondent :- Dayanidhi
 
Counsel for Appellant :- Om Prakash Singh
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Rajendra Kumar-IV,J.

1. Heard learned counsel for the plaintiff - appellant/wife.

2. This appeal has been filed praying to set aside the judgment and order dated 15.09.2022 in Matrimonial Case No.99 of 2022 (Pooja Vs. Dayanidhi) under Section 13-B of the Hindu Marriage Act, 1955 and the order dated 19.08.2022 in Civil Misc. Case No.28 of 2022 (Pooja Vs. Dayanidhi) under Order IX Rule 9 C.P.C. passed by the Principal Judge, Family Court, Sonbhadra.

3. Briefly stated facts of the present case are that the plaintiff - appellant and the defendant - respondent were married with each other on 02.05.2014 at District - Sonebhdra. Subsequently, there arose some dispute and the plaintiff - appellant filed a Complaint Case No.223 of 2017 (revised Complaint Case No.1091 of 2020) before the Chief Judicial Magistrate, Sonebhdra, under Section 323, 498-A I.P.C. and 3/4 D.P. Act, P.S. Chopan, District - Sonebhdra. Summoning order dated 06.11.2017 followed by non-bailable warrant dated 20.02.2020 were issued to the accused persons which were challenged by an application under Section 482 Cr.P.C., No.9769 of 2020 (Dayanidhi and 5 others Vs. State of U.P. and another) and by order dated 06.03.2020 the matter was referred to Mediation and Conciliation Centre, High Court, Allahabad for settlement of matrimonial dispute. The mediation at the Mediation and Conciliation Centre, High Court, Allahabad was successful and an interim settlement agreement was entered by the parties on 11.11.2021, as under:

"7) The following settlement has been arrived at between the Parties hereto:-

a) That both the parties agree to file a case for mutual divorce u/s 13-B of the Hindu Marriage Act before the Principal Judge, Family Court, Sonbhadra on 22.11.2021. The parties shall produce the certified copy of the divorce petition before the Centre on the next date fixed i.e. 21.12.2021.

b) That it has been agreed between the parties that the husband shall pay a permanent alimony Including Stridhan of Rs. 04,20,000/- (Rupees Four Lakh Twenty Thousand only) to the wife through demand draft drawn in favour

c) That today i.e. 11-11-2021, Dayanidhi (Applicant No. 1-husband) has produced a demand draft bearing no. 882812 dated 09.11.2021 drawn on Union Bank of India for Rs. 2,10,000/- (Rupees Two Lakh Ten Thousand only) issued in name of Pooja Kumari which is being kept in the file concerned and shall be handed over to the wife at the time of final settlement.

d) That it has been agreed between the parties that the remaining amount i.e. Rs. Rs. 2,10,000/- (Rupees Two Lakh Ten Thousand only) shall be paid Smt. Pooja (O.P. No, 2-wife) by Dayanidhi (Applicant No. 1-hushand) at the time of final judgment before the Principal Judge, Family Court, Sonbhadra, by way of demand draft of a nationalized bank.

e) That in the meantime, the cases (if any) filed by R. K. Sonkar either of the party against each other shall be kept in abeyance.

f) That it has been agreed between the parties that they shall appear again before the Centre on 23.12.2021"

4. After parties entered into the aforesaid interim settlement, the aforesaid application under Section 482 No.9769 of 2020 (Dayanidhi and 5 others Vs. State of U.P. and another) was disposed of by order dated 16.08.2022, observing as under :

"The matter was referred to the Mediation Centre of this Court vide order dated 6.3.2020 for making an effort between the parties for settling their disputes amicably.

As per report of Mediation Centre dated 21.4.2022, the parties have entered into an interim settlement dated 11.11.2021 and 24.3.2022 and have amicably settled their dispute and decided to live separately and in this regard they have filed a petition u/s 13-B of Hindu Marriage Act before the Family Court, Sonbhadra and the same is registered as Matrimonial Case No.99 of 2022 and further agreed to withdraw the cases going on between them.

Learned counsel for the applicants states that in the petition filed u/s 13-B of Hindu Marriage Act before the Family Court, Sonbhadra, date is fixed for 12.10.2022. He states that the parties be given an opportunity to settle the matter finally.

As per the office report dated 3.8.2022, a report from the Mediation Centre of this Court is on record which states that mediation between the parties is successful.

From perusal of the report of Mediation Centre of this Court, it appears that in pursuance of the said order the mediation proceedings were taken up which ended in a settlement dated 21.4.2022 between the parties and the Mediation succeeded. The parties have settled their grievances and even the dispute arising in the present matter. The parties have agreed to withdraw the cases going on between them, the said fact is mentioned in para 7(e) of the said mediation report.

The law with regards to quashing of a case on the basis of settlement arrived between the parties, is well settled. The Apex Court in the cases of (1) B.S. Joshi and others Vs. State of Haryana and another: (2003)4 SCC 675; (2) Nikhil Merchant Vs. Central Bureau of Investigation : (2008) 9 SCC 677; (3) Manoj Sharma Vs. State and others: ( 2008) 16 SCC 1; (4) Gian Singh Vs. State of Punjab: (2012) 10 SCC 303; (5) Shaifullah and others Vs. State of U.P. And another: 2013 (83) ACC 278 and (6) Parbatbhai [email protected] @ Bhimsinbhai Karmur and others Vs. State of Gujarat and another: (2017) 9 SCC 641 has held that the cases in which the parties have settled their grievances can be quashed.

From perusal of the records and the law laid down by the Apex Court on the subject matter, the present case is a good case for exercising powers by this Court to quash the proceedings as prayed for by the applicant(s).

The present application is allowed.

The entire proceedings of the aforesaid case as well as summoning order dated 6.11.2017 and non-bailable warrant dated 20.02.2020 passed in the aforesaid case are hereby quashed.

The Principal Judge, Family Court, Sonbhadra is directed to decide the matrimonial case no.99 of 2022 within 30 days from receipt of the certified copy of this order.

In the meantime parties shall abide of the terms and conditions of the settlement agreement.

Office is directed to communicate this order to the concerned court within two weeks from today."

5. Thus, as per statement on behalf of defendant - respondent made before this Court in the aforesaid Application, under Section 482 No. 9769 of 2020, the date in Matrimonial Case No.99 of 2022 under Section 13-B of the Act, 1955 was fixed for 12.10.2022.

6. The aforesaid application under Section 13-B being case No.99 of 2022 was filed by the plaintiff - appellant, pursuant to the aforequoted interim settlement dated 11.11.2021 between the parties. It appears that the plaintiff - appellant appeared before the Court below on 12.10.2022 to press her aforesaid Case No.99 of 2022 under Section 13-B of the Act, 1955 and she came to know that it has been dismissed by the Principal Judge, Family Court, Sonbhadra, vide order dated 15.09.2022 even after noticing the aforequoted order of this Court dated 16.08.2022 in which the date fixed in case no.99 of 2021 as informed to this court by the defendant - respondent is mentioned as 12.10.2022. Despite all these facts, the Principal Judge, Family Court, Sonbhadra, proceeded with non application of mind and arbitrarily dismissed the aforesaid Case no.99 of 2022 for mutual divorce, even though the parties have entered into a settlement and the settlement so entered was also partly performed by the parties. What is more surprising is that when the plaintiff - appellant filed an application under order IX Rule 9 C.P.C. for recall of the order dated 15.09.2022, it was again rejected by the Principal Judge, Family Court, Sonbhadra, without application of mind and without noticing the facts emerging from the record itself, as briefly noted above.

7. For all the reasons aforestated, both the impugned judgment and orders dated 15.09.2022 in Matrimonial Case No.99 of 2022 and the order dated 19.10.2022 rejecting the Recall Application under Order IX Rule 9 C.P.C. filed alongwith the delay condonation application are hereby set aside. The Matrimonial Case No.99 of 2022 is restored to its original number.

8. The plaintiff - appellant shall submit a certified copy of this order before the Principal Judge, Family Court, Sonbhadra, within two weeks from today. On receipt of this order, Principal Judge, Family Court, Sonbhadra shall fix date for 05.01.2023 for appearance of both the parties, intimating the date to the defendant - respondent. Both the parties shall appear before the Court below on the date fixed or on such date/dates thereafter as may be fixed by the court below. The aforesaid Matrimonial Case No.99 of 2022 shall be decided by the Principal Judge, Family Court, Sonbhadra, as far as possible within two months.

9. The appeal is allowed to the extent indicated above.

Order Date :- 3.12.2022/vkg