Sudha Devi vs State Of U.P. And Another
2022 Latest Caselaw 4403 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 13.05.2022
 
Judgment delivered on 27.05.2022
 
In Chamber
 

 
Case :- APPLICATION U/S 482 No. - 20561 of 2021
 

 
Applicant :- Sudha Devi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rekha Singh,Anshul Nigam
 
Counsel for Opposite Party :- G.A,Sriram Dhar Dubey
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Heard learned counsel for the applicant, learned counsel for the O.P. No. 2 as well as learned A.G.A. for the State and perused the record.

This application U/s 482 Cr.P.C. has been filed to quash the order dated 3.2.2020 passed by Additional Session Judge/Special Judge, Prevention of Corruption Act, Court No. 3, District Gorakhpur in Criminal Appeal No. 148 of 2019 (Gorakh Kumar Vs. Sudha Devi).

The grounds of the application are mainly that applicant has filed Case No. 1531 of 2018 under section 12 of the Protection of Women from Domestic Violence Act against O.P. No. 2. The case was proceeding on merit before the court of Addl. Chief Judicial Magistrate, Court No. 1, Gorakhpur along with a parallel session of mediations between the parties in mediation centre. The applicant is an illiterate lady upbringing a 7 years old girl child and having no source of income. Since the applicant is an illiterate lady, her signature were taken on a blank papers during a mediation session. Later on she found that her signature was used and made part of a compromise/settlement agreement in the mediation centre. While signing she was being told that the signatures were necessary to receive the arrears of maintenance amount which she was claiming under section 125 Cr.P.C. Thereafter, O.P. No. 2 filed an application before the concerned court along with copy of alleged compromise to dispose the case as the parties have agreed to settlement in the mediation. Applicant also moved an application before the court concerned denying the settlement/compromise agreement and stating that she wants to contest the case on merits. O.P. No. 2 filed a reply to the application dated 10.5.2019. The O.P. No. 2 stated that he has agreed to pay the total sum of Rs. 4,75,000/- towards the maintenance of the wife and child, treating it as the permanent alimony. Thereafter, the applicant filed her replication denying the reply of the O.P. No. 2 and again stating all the facts and circumstances. After hearing both the parties the court concerned passed an order dated 27.9.2019 allowing the application of the applicant dated 10.5.2019 on cost and thus nullifying the settlement/compromise agreement dated 25.2.2019. Earlier the applicant has approached this court and this court was pleased to pass an order directing the trial court to expedite the trial without granting unnecessary adjournments and preferably within a period of one year from the date of the production of the certified copy of the order. In view of the aforesaid order the court concerned proceeded the case and fixed date for final hearing and also directed the parties to file written arguments. The applicant has also filed final written arguments on 20.12.2019. The O.P. No. 2 instead of complying with the trial court's order filed an appeal of the order dated 27.9.2019 which has been allowed by the impugned order dated 3.2.2020 and the order dated 27.9.2019 has been set-aside by the appellate court.

Learned counsel for the applicant mainly contended that while passing the order dated 3.2.2020 the appellate court has not considered any of the arguments/pleading of the applicant. The learned appellate court has failed to apply judicial mind. The appellate court is going to enforce the compromise which is not agreeable. It is further contended that appellate court has taken into account the typographical error present in the order dated 27.9.2019 in which the word "order" instead of "compromise" has been typed. The learned appellate court instead of correcting the order gave sanctity to a denied compromise. The learned A.C.J.M. vide order dated 27.9.2019 has rightly set-aside the compromise and proceeded the trial on merits. It is also contended that agreement arrived in mediation is non-binding and has no legal sanctity because no specific order has been passed by the court on its basis. The learned appellate court failed to consider the fact that the applicant is an unemployed, non-earning lady upbringing a 7 years old girl and having no means of livelihood. She has to bear all the expenses. The O.P. No. 2 being father is duty bound and could not be exempted from taking care of his daughter from education upto her marriage. The amount of Rs. 4,75,000/- as lump-sum permanent alimony is too meagre to suffice all her duties and expenses. It is also contended that the learned appellate court has passed the impugned order in mechanical and arbitrary manner. From bare perusal of the documents prepared at the mediation centre, it is apparent that signatures were taken on blank papers. The applicant after getting knowledge that the conditions on which the agreement was based were not written, she brought it before the court concerned immediately. The O.P. No. 2 is also not paying the amount of maintenance awarded to the applicant and applicant was in impression that the amount of Rs. 3 lacs paid to her was towards maintenance allowance and therefore, she accepted it. Lastly it is contended that the impugned order will result in an abuse of the process of the court and miscarriage of justice.

The O.P. No. 2 in his counter affidavit has admitted the fact of marriage and further submitted that the applicant left the house of O.P. No. 2 on 15.8.2014 without giving any information and refused to come at the house of O.P. No. 2. Then O.P. No. 2 filed a petition U/s 9 of Hindu Marriage Act. Thereafter, applicant filed application U/s 12 of the Domestic Violence Act on 30.6.2015. On 25.2.2019 both the parties mutually agreed to file divorce petition U/s 13B of Hindu Marriage Act and on this the court has passed the order dated 25.2.2019, in terms of the settlement which has taken place between the parties during mediation. The O.P. No. 2 on 15.3.2019 handed over a demand draft of Rs. 3 lacs. Thereafter, applicant started to demand Rs. 10 lacs for making divorce and also black mailing the O.P. No. 2. He is not in a position to give such amount to the applicant because he is labour. The O.P. No. 2 has filed his reply against the petition of applicant against the compromise. The learned Magistrate has set-aside the order of compromise dated 25.2.2019 without applying his judicial mind. The appellate court has rightly set-aside the order of court below and remanded back the matter for decision. The applicant is a sound mind lady and able to write her name and can easily understand her welfare. The O.P. No. 2 has already paid Rs. 3 lacs through demand draft in terms of the compromise which has been entered between the parties at mediation centre. Everything is in written which has been explained to the applicant and applicant has put signatures after understanding it. Applicant has also returned all the articles given at the time of marriage in terms of the settlement. Learned Magistrate while passing the order dated 27.2.2019 has not considered any of the arguments of the O.P. No. 2 and did not apply his judicial mind. Learned appellate court while passing the order dated 3.2.2020 has rightly observed that the conduct of the applicant is not bonafide because after receiving Rs. 3 lacs she upheld the compromise entered into between the parties during mediation proceeding.

Learned counsel for the O.P. No. 2 contended that during course of mediation proceeding the parties after due deliberation has entered into a compromise which has been given effect in writing and according to it Rs. 3,75,000/- to be paid to the applicant and Rs. 1 lac to her daughter and he will return all the articles of applicant. It was also agreed that the parties will file a petition U/s 13-B, Hindu Marriage Act for divorce by mutual consent. Rs. 3 lacs will be paid at the time of filing of the petition and remaining Rs. 75,000/- will be paid at the time of evidence. It was also agreed that the parties will get all the cases disposed of pending between them in the court. In terms of the aforesaid agreement the O.P. No. 2 has paid Rs. 3 lacs to the applicant and has also returned all the articles of applicant given at the time of marriage. The applicant has received Rs. 3 lacs and articles and has also filed a petition U/s 13-B of Hindu Marriage Act. Now she is retracting from the compromise. She has been misguided by someone and now she is denying the compromise. She can not be permitted to take advantage of the terms of the compromise and at the same time to deny the compromise for making undue pressure upon O.P. No. 2 for meeting her unlawful demands. The filing of the petition of divorce by mutual consent itself shows that the applicant was very much aware of the terms of the compromise and her submission that her signature was obtained on a blank paper and she was not conversant that the terms of settlement is devoid of merits. There is no illegality in the impugned order passed by the learned appellate court. Lastly it is contended that impugned order is not a final order. By the impugned order learned appellate court has only remitted the matter to the concerned Magistrate for passing fresh order.

It is admitted that applicant is wife of O.P. No. 2. She instituted a proceeding U/s 12 Protection of Women from Domestic Violence Act against O.P. No. 2 before the concerned Magistrate. The matter was referred to mediation. The order dated 25.2.2019 further reveals that a compromise was entered into between the parties according to which O.P. No.2 has to pay Rs. 4,75,000/- as a lump sum amount for maintenance of applicant and her daughter. It was also agreed that out to the aforesaid amount Rs. 3,00,000/- was to be paid at the time of filing divorce petition U/s 13B of Hindu Marriage Act and remaining Rs. 1,75,000/- was to be paid at the time of evidence. It was further agreed that the articles given at the time of marriage was to be returned by the O.P. No. 2 to the applicant. The submission of applicant is that she has not entered into the aforesaid compromise. Her signature has been obtained on a blank paper. She was not aware of conditions of the compromise. According to her, it was agreed that O.P. No. 2 will have to pay Rs. 5,00,000/- to the applicant and Rs. 5,00,000/- to her daughter towards maintenance and he will also have to execute a sale deed in favour of her daughter. These conditions were not written in the compromise and misguiding the applicant her signature has been obtained. A perusal of the record reveals that the compromise deed is addressed to the court of A.C.J.M. I. It contains the signatures of both the parties duly identified by their counsel and on the first page photograph of the parties are to be pasted. A list of articles is also attached with it. O.P. No. 2 has filed the copy of divorce petition filed by the parties under section 13B Hindu Marriage Act which is dated 15.3.2019. This petition also contains the signatures of both the parties and duly attested photographs of both the parties are pasted on first page. In this petition also the terms and conditions are similar to one mentioned in the compromise deed dated 25.2.2019. It is also mentioned in it that O.P. No. 2 has paid Rs. 3,00,000/- through demand draft dated 15.3.2019 and has also returned the articles mentioned in the list. This petition has been filed for divorce by mutual consent. So the submission of the applicant that the compromise dated 25.2.2019 has been obtained by misleading her, can not be accepted. It is evident from material on record that both the parties have acted according to conditions of the compromise. The O.P. No. 2 has paid Rs. 3,00,000/- and has returned articles given at the time of marriage to the applicant and in pursuant of the compromise the parties have filed petition for divorce by mutual consent which is pending. It appears that after this at someone's instigation the applicant is now denying the conditions of compromise setting up conditions with aggravating demand of money and property just to pressurize the O.P. No. 2.

It is true that no final order has been passed on the basis of compromise dated 25.2.2019 but at the same time it is also clear that parties have acted on the conditions of the compromise and the O.P. No. 2 has changed his position. The applicant has taken benefit of the terms of the compromise, so now she can not be permitted to resile from the aforesaid compromise. Learned appellate court has appreciated all the facts and circumstances of the case and has rightly held that O.P. No. 2 has performed many of the conditions on his part and is also ready and willing to pay the rest amount. Learned Magistrate has failed to appreciate it. There is no illegality in the impugned order passed by appellate court. There is no ground to interfere in the impugned order exercising the power U/s 482 Cr.P.C. by this court.

The application U/s 482 Cr.P.C. is devoid of merits and is hereby dismissed.

Order Date :- 27.05.2022

Masarrat