Akhouri Mithileshwar Prasad And ... vs State Of U.P. And 2 Others
2022 Latest Caselaw 19836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 26987 of 2021
 

 
Applicant :- Akhouri Mithileshwar Prasad And Another
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Raghav Nayar
 
Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This application was mentioned to be taken up out of turn on behalf of counsel for the applicant. Endorsement has been placed on record that information was given to the counsel for opposite party no. 2, Sri Mayank Yadav and Sri Vivek Kumar Singh but they remained absent.

2. Heard Sri Navin Sinha, Senior Counsel, assisted by Sri Raghav Nayar, learned counsel for the applicants, learned AGA for the State and perused the record.

3. Instant application has been filed with a prayer to quash the summoning order dated 25.8.2021 as well as entire proceedings of Case No. 50485 of 2019 (Anil Kumar Verma vs. Gaurav Srivastava and others) under Sections 498A, 307, 354, 323, 504, 506 IPC read with Section of Dowry Prohibition Act, Police Station Mahila Thana, District Meerut, pending in the court of Special Chief Judicial Magistrate, Meerut.

4. The matter is arising out of matrimonial dispute. The applicant no. 1 and daughter of the complainant have entered into compromise by way of settlement and on its basis a judgement for dissolution of marriage was passed by the Circuit Court of the Eighteenth Judicial Circuit Dupage Country, Wheaton, Illinois.

5. Sri Navin Sinha, Senior Counsel, has drawn attention of this Court on the conditions of general provisions annexed along with aforesaid judgement specifically paragraph no. 15.3 which is mentioned hereinunder:

"15.3 Release of Claims for Injury: To the fullest extent permitted by law, and except as otherwise provided herein, each of the parties does hereby forever relinquish, release, waive and forever discharge the other from all claims and causes of action of any type, known or unknown, that either of them has or may have now against the other. This release includes, but is not limited to, all claims based on injury to the person, whether negligent, willful and wanton, intentional or otherwise. This release is final and irrevocable, regardless of any facts that may exist but are not known to the parties. Each party further covenants and agrees for himself or herself, his or her heirs personal representatives and assignees, that neither of them shall at any time hereafter sue the other or his or her estate, heirs, personal representatives, grantees, devisees or assignees for the purpose of enforcing any rights specified to be released, waived or relinquished under this Agreement; and each party further agrees that in the event any sit shall be commenced this release, when pleaded shall be and constitute a complete defense thereto."

6. Senior counsel submits that impugned criminal proceedings were initiated by way of filing an FIR. After investigation, final report was submitted on 15.11.2018, however, on the basis of a protest petition; final report was disapproved and applicants were summoned on 25.8.2021. FIR was lodged before dissolution of marriage but summoning order was passed after the order of dissolution of marriage. Learned senor counsel further submits that in this regard specific contentions are taken by the applicants in paragraph nos. 14, 15, 16 and 17. These paragraphs are replied by way of counter affidavit and relevant paragraph nos. 12 and 13 of application are as under:

"12. That in reply of the contents of paragraph no. 15 of affidavit, it is submitted that the opposite party no. 3 could not get any job in U.S.A. Prior to her divorce and Gaurav had filed court cases against the opposite party no. 3 to humiliate her mentally and financially. The marital settlement agreement was finalized on 06.06.2018 which was for the purpose of divorce only and criminal offence was not compounded or absolved by the court or the parties in marital settlement agreement dated 06.06.2018. This judgment was only for the purpose of dissolution of marriage.

13. That the contents of paragraph nos. 16, 17 and 18 of affidavit in support of 482 application are not admitted as stated hence emphatically denied. In reply thereto it is submitted that marital settlement agreement was applicable and related to divorce taken in U.S.A. And it is applicable only in District Illinois U.S.A. and it was not meant for India case of dowry and criminal cases filed against applicants and their sons. There was nothing mentioned in marital settlement agreement regarding F.I.R. lodged at Police Station Mahila Thana, District Meerut as case crime no. 45 of 2018 or any criminal activities like marpit, attempt to cause death, demand of dowry and harassment caused thereto. Rather in other cases filed in U.S.A., the court observed vide order dated 24.05.2018 that Parul was not found guilty and court recorded credibility of Gaurav and Gautam was not trustworthy and they had abuse, fought and caused hurt to Parul and her parents. It was also observed by court that Gautam ripped Parul's jacket and sexually assaulted her. More so this marital settlement agreement is only applicable in District Illinois (U.S.A.) jurisdiction and it is not applicable in other States of U.S.A. or in India. Besides Gaurav filed petition for divorce in Du Page County Illinois (U.S.A.) on 20.09.2017 whereas marriage was solemnized at Meerut (U.P.) India on 24.04.2012 as per Hindu Marriage Law and the same may be dissolved by Indian courts only and not as per Illinois (U.S.A.) Court. In the marital settlement agreement or in petition or objection filed, nothing was mentioned regarding F.I.R. filed at Mahila Thana, Meerut. This marital settlement agreement is limited to the extent of divorce and issues only related to U.S.A. Law under the jurisdiction of Illinois (U.S.A.) Court and not applicable to other States of India. (U.S.A.) Court had neither heard the contents of F.I.R. of case crime no. 45 of 2018 lodged at Police Station Mahila Thana, District Meerut nor any given judgment or finding related to F.I.R. It is further stated that alimony was given from November to 15.12.2018 and as per marital settlement agreement clause 5.1, 5.2, 5.3, 5.4 Parul would bear all living expenses of her daughter and 1/3rd of total expenditure of school fee, medical expenses, extracurricular activities and other expenses related to child that amounts to 600 U.S. Dollar every month besides 100% living expenses which amounts to 900 U.S. Dollar every month. Thus total amount of 1500 U.S. Dollar every month was the expenditure of child out of limited alimony of 2370 U.S. Dollar fixed by court. Besides opposite party no. 3 had to pay her attorney's fee which was around one lac U.S. Dollar till 06.06.2018 whereas Parul got jot in U.S.A. In January 2018 @ 1000 to 1200 U.S. dollar on average per month. She got part time job in 2019 for a very limited period of 08 months. No other job was available to her due her Visa issues as after divorce her Visa/work permit was not existing. Besides Parul had no job from February 2020 to September 2020 due to pandemic of Covid-19 and her husband did not support her nor paid any alimony after 15.12.2018, nor he paid attorney's fee of Parul's lawyer engaged in U.S.A. Gaurav filed number of irrelevant petitions against opposite party no. 3 just to harass her mentally and financially and to snatch her daughter that causes liability of 1 lac U.S. dollar. Further Parul had paid 30% income tax on alimony which Gaurav had given her from November 2017 from 15.12.2018 no residential accommodation was provided by husband of opposite party no. 3 The single room rent in U.S.A. Was around 1400 U.S. dollar per month excluding electricity, gas charges and other government taxes. Thus total alimony pay to opposite party no. 3 was not sufficient for maintenance of opposite party no. 3 and her daughter is U.S.A. And the same had been spent on child livelihood and part of house accommodation."

7. Learned counsel for opposite party no. 2 has accepted notice but has not appeared.

8. I have carefully perused the above referred pleadings and only ground to oppose the prayer is that there was no settlement for quashing of criminal offence in marital settlement agreement, however, it appears to be not true as in paragraph no. 15.3 settlement also includes relinquishment of all causes of action. The only requirement was that the parties will appear before the court by way of filing a mutual compromise affidavit to quash the proceedings, however, it was not done.

9. As there is objection on merit also, therefore, I have perused impugned order also. There are omnibus allegations against in-laws as well as allegation against her devar are not found completely true as well as allegation during her stay at America has already been relinquished, therefore, there are no sufficient grounds to proceed against applicants.

10. In view of above on basis of agreement as well as on merit also, the proceedings of Case No. 50485 of 2019 (Anil Kumar Verma vs. Gaurav Srivastava and others) under Sections 498A, 307, 354, 323, 504, 506 IPC read with Section of Dowry Prohibition Act, Police Station Mahila Thana, District Meerut, pending in the court of Special Chief Judicial Magistrate, Meerut are hereby quashed.

11. Accordingly, the present application is allowed.

Order Date :- 5.12.2022

Puspendra