Kirti Jain @ Shalu Jain And Anr. vs Sh. J.P. Jain
2006 Latest Caselaw 2043 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner No. 1 married one Pankaj Jain, son of the respondent herein, on 18.4.1999. This marriage could not succeed. As per the allegations of the petitioner No. 1, there were demands of dowry by her husband Pankaj Jain and his family who committed several acts of cruelty and harassment to her and she was ultimately turned out of the matrimonial home by Pankaj Jain and the respondent herein. She lodged complaint with Crime Against Women Cell (CAW Cell) against Pankaj Jain and his family members including the respondent. Due to intervention of relatives and friends, settlement was arrived at and was also reduced in writing. Pursuant to the said settlement, various proceedings between the parties were withdrawn. However, it seems that the peace and truce between them is still alluding. After withdrawal of the various cases, the respondent has instituted fresh proceedings. He has filed a suit for recovery of damages to the tune of Rs. 3,05,000/- against the petitioners in the Court of Additional District Judge, Delhi, claiming damages for alleged defamation. Not satisfied with this, he has also instituted criminal complaint against the petitioners under Section 500 of the Indian Penal Code for defamation. In this complaint, summoning orders dated 7.10.2004 have been issued by the learned Metropolitan Magistrate and feeling aggrieved, petitioners have approached this Court by means of instant petition for quashing of the summoning orders and proceedings in the said criminal complaint.

2. The genesis and thrust of the petitioners is that once there was a settlement between the parties, which has also been reduced in writing and pursuant whereto all the cases between the parties filed against each other were withdrawn, the respondent could not have filed these proceedings for defamation arising out of the earlier proceedings. It may be mentioned at this stage itself that the complaint is based on the allegations made by the petitioner No. 1 in her complaint filed in CAW Cell, wherein allegations of dowry demand and torture were made against Pankaj Jain and his family members including the respondent herein. Thus, according to the petitioners, when the entire dispute resulted in settlement which has been acted upon as well, it is not open to the respondent to file any such criminal proceedings for defamation based on the complaint filed by the petitioner in CAW Cell. The respondent herein has denied any such settlement and alleges that document in the name of settlement/compromise deed filed by the petitioners is false and does not bear the signature of the respondent.

3. In the complaint, filed by the petitioner No. 1 before the CAW Cell, various allegations of demand of dowry, cruelty and harassment as well as criminal breach of trust are made against her husband, the respondent and other family members. However, according to the respondent, following is the offended portion which has given rise to the suit for damages as well as the criminal complaint:

On 24.3.2003 I was cooking food in kitchen in the evening and at that time in the house myself and my father-in-law were only present. My father in law came in kitchen and attempted to do absurdity with me. Formerly also several times my father-in-law has tried to do dirty actions with me which I cannot describe.

4. The question for determination is as to whether there was settlement between the parties and whether purported settlement precludes the respondent from filing the aforesaid proceedings.

5. The petitioner has filed along with the petition, copy of 'Mutual Settlement' which is entered into between Pankaj Jain and the petitioner No. 1, namely, between the husband and the wife. It is signed by both of them and is also signed by two witnesses who are Mr. Vir Sen Jain, father of the petitioner No. 1 and the petitioner No. 2 herein, as well as Jai Prakash Jain, father of Pankaj Jain and the respondent herein. As per this agreement, it was, inter alia, agreed that since the parties were not able to live as husband and wife, they were terminating their relationship and shall have no objection if they remarry according to their wishes. It was also recorded that Pankaj Jain had returned to the petitioner No. 1 all istridhan, jewellery and other articles and the petitioner No. 1 would have no claim against Pankaj Jain on this account. The petitioner No. 1 had also received all her maintenance. They agreed to take divorce and it was also agreed that at the time of taking divorce, a sum of Rs. 50,000/- was to be given to the petitioner No. 1 which was kept with one Sh. Richa Ram at the time of signing of the agreement. For divorce, joint petition was to be filed by both the parties within one week. It was further agreed that there would not be any legal action against each other in future as per paras 6 to 8 thereof, which read as under:

6. That neither party will file any action/complaint of any nature whatsoever against each other and if there is any complaint or petition pending against any party that shall be treated void.

7. That in future neither party or their family members will make any claim against each other or their family members.

8. That the aforesaid decision has been read over to both the parties and their family member and which has been accepted by both the parties.

6. The respondent has denied the execution of this agreement. This aspect I shall revert to at the later stage. However, it is undisputed that immediately after entering purported agreement, a petition for dissolution of marriage by mutual consent was filed on 31.7.2003 being HMA No. 683/2003 and in para 6 & 7 of the said petition, it was, inter alia, averred that both the parties compromised the matter amicably as per which the claim of maintenance and istridhan etc. had been settled and it was also settled that the complaint, if any, pending before any competent authority/court etc. against each other shall stand dismissed and no parties shall shall have any claim against each other. Joint statement was also recorded, wherein aforesaid facts were reiterated by the petitioner No. 1 as well as Pankaj Jain on oath. In this joint statement, it was also stated that "Now we have no pending claims of any nature whatsoever againt each other or the family members of each other arising out of our marriage. We undertake not to file any civil/criminal litigation against each other or the family members of each other." Pursuant thereto, decree of divorce was granted by the learned ADJ, vide order and judgment dated 1.9.2003.

7. Pankaj Jain also filed Civil Suit No. 7045/2003 for perpetual and mandatory injunction against five persons which included the petitioner No. 1 as the defendant No. 6 and in this suit, injunction was prayed restraining the defendants No. 1 to 5 from remarrying the defendant No. 6 without obtaining divorce from the plaintiff. This suit was also withdrawn by Pankaj Jain. Incidentally, the respondent is an Advocate by profession who was prosecuting the aforesaid case on behalf of the his son Pankaj Jain. He made the statement for withdrawal of the suit on 30th June, 2003. "The plaintiff is my son. Compromise talks are going on between the parties. I withdraw the suit."

8. Following positions emerges from the aforesaid sequence of events:

(a) There were some compromise talks between the parties and when these compromise talks were still on, on 30th June, 2003, suit was withdrawn by the respondent on behalf of Pankaj Jain.

(b) Admittedly a settlement was reached at between the parties on 30.7.2003 and, thereafter, the petition for divorce was prepared on 30.7.2003 supported with affidavits dated 30.7.2003. Joint statement was recorded on 31.7.2003 and, thereafter, order dated 1.9.2003 on the First Motion was passed.

(c) After waiting for six months, statutory period, the parties even took out Second Motion and statements were recorded on 8.3.2004, pursuant whereto the decree of divorce was granted, dissolving the marriage between the petitioner No. 1 and Pankaj Jain.

(d) It is only after the decree of divorce was granted, vide orders dated 8.3.2004, that complaint in question was filed under Section 500 IPC on 5.5.2004.

9. It is clear from the above that though the allegations were made in the complaint filed by the petitioner No. 1 before CAW Cell on 30.6.2003, the respondent did not take any step for filing such proceedings at that time. On the contrary, immediately after the complaint was filed, settlement talks started between the parties. Fortunately, for the parties, these settlement talks fructified as well within short span. In quick succession steps to give effect to settlement were also taken. On 30.6.2003, suit was withdrawn by Pankaj Jain as mentioned above. First Motion was filed on 31.7.2003. Second Motion was filed on 8.3.2004. Before the petition for First Motion was filed, there was a settlement regarding istridhan as well as maintenance as is clearly recorded in the petition for First Motion and the joint statements of the parties in the said petition. Obviously, the petitioner No. 1 did not pursue her complaint before CAW Cell as well in view of the said settlement between the parties. The respondent herein was actively involved in all these proceedings and was not only aware of these proceedings but contents thereof as well.

10. In this backdrop, one has to address the question as to whether it would be permissible for the respondent to file complaint under Section 500 IPC on the basis of aforesaid allegations made by the petitioner No. 1 in complaint before CAW Cell. Even if we disregard the purported mutual settlement/agreement in writing, as there is a dispute as to whether such an agreement was signed by the parties or not, the respondent cannot deny that settlement was in fact arrived at between the parties. The terms of the said settlement are clearly discernible from the averments made in the petition for dissolution of marriage as well as in the joint statement of the parties petitioner No. 1 & Pankaj Jain. Some of the terms which can clearly be spelled out from the aforesaid pleadings are sufficient to decide the issue. In the joint statement by the petitioner No. 1 as well as Pankaj Jain, son of the respondent herein, it is clearly stated as under:

We have settled all our claims regarding stridhan articles, permanent alimony and maintenance - pas, present and future amicably. The petitioner No. 1 has already has already received back all her stridhan articles from the petitioner No. 2. The petitioner No. 1 undertakes not to make any claim regarding stridhan articles, permanent alimony and maintenance - past, present and future against the petitioner No. 2 or his family members. Now we have no pending claims of any nature whatsoever against each other or the family members of each other arising out of our marriage. We undertake not to file any civil/criminal litigation against each other or the family members of each other.

11. The intention was, thus, to arrive at complete settlement in the manner that all disputes between the parties are buried for ever giving quietus to them and live their own lives in a peaceful manner without interference from each other. It is this spirit behind the settlement which has to be respected by both the parties and is to be given effect to. Though the purported agreement is signed by the respondent also and even if that is too ignored, it does not lie in the mouth of the respondent to allege that he is not a party to the petition for dissolution of marriage or the joint statement which was of the petitioner No. 1 and his son Pankaj Jain. Fact remains that he was privy to the said petition and statements. He was pursuing the litigation as an Advocate, not on behalf of a third party and in the professional capacity alone but on behalf of his son. He very well know the implication of the statement clearly recording that "we undertake not to file any civil/criminal litigation against each other or the family members of each other." He maintained stoic silence at that time, nay, got the said statement recorded, giving legitimate expectation promise and assurance to the petitioners that with this package deal, all kinds of disputes & litigations were over for ever. When one takes holistic view of the matter, it becomes more than apparent that the matrimonial disputes between the husband and wife were settled with the intervention of elders as well as involvement of the parents, which could not have been without blessings of the respondent. In fact, not only tacit but there would be express consent of the respondent to the arrangement arrived at between the parties. Obviously, because of the reason that in the complaint, filed by the petitioner No. 1 before CAW Cell, not only Pankaj Jain but other family members were roped in. It is only because of the settlement that the petitioner No. 1 withdrew the complaint against all such persons including the respondent and, therefore, the respondent is beneficiary of this settlement.

12. From the date when the settlement took place between the parties till the divorce between the petitioner No. 1 and Pankaj Jain, there is a period of 9 to 10 months when various steps in furtherance thereof were being taken. The respondent played active role. He did not make his intentions clear that in so far as offending potion in the complaint filed by the petitioner No. 1 is concerned, he would be reserving his rights and would be taking action. He kept quite during all this period. After the terms of settlement were given effect to resulting in decree of divorce dissolving the marriage between the petitioner No. 1 and Pankaj Jain, withdrawal of complaint by the petitioner No. 1 & withdrawal of suit by Pankaj Jain, the respondent shot the salvo in the form of filing this criminal complaint. It is clearly a motivated which is impermissible.

13. The respondent, who appeared in person, referred to the following judgments of Hon'ble Supreme Court to contend that High Court should not ordinarily interfere at an interlocutory stage of a criminal proceedings pending in the subordinate court, if from the facts alleged in the complaint, which are to be accepted at their face value at the stage, the ingredients of the offence alleged are made out:

1. P. Vijayapal Reddy and Ors. v. The State (Govt. of India) .

2. Mrs. Dhanalakshmi v. R. Prasanna Kumar and Ors. .

There is no quarrel with the proposition of law explaining the powers of High Courts under Section 482 Cr.P.C. as described in the aforesaid two judgments. At the same time, it cannot be denied that if the High Court is of the opinion that the proceedings are misuse and abuse of the process of law, High Court has inherent power to quash the same. In State of Haryana v. Bhajan Lal , the Hon'ble Supreme Court discussed in detail the ambit and scope of High Courts' power under Section 482 of the Cr.P.C. and summerised the position by mentioning as many as seven principles and principle No. 7 is relevant for our purposes which would be applicable in the instant case. The present case is squarely covered by the aforesaid principles. I am also persuaded by the two recent judgments of the Hon'ble Supreme Court in the case of Ruch Agarwal v. Amit Kumar Agrawal and Ors. and Mohd. Shamim and Ors. v. Nahid Begum (Smt) and Anr. for taking this view. Consequently, summoning order dated 7th October, 2004 is quashed and the complaint filed by the respondent is dismissed. No cost.