Dr. V.P.Sharma vs State & Anr.
2009 Latest Caselaw 224 Del

                         "REPORTABLE"
                                          18#
*           HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.M.C.3337/2007

                                 Pronounced on: 23.01.2009

#     DR. V.P. SHARMA                    ..... PETITIONER
!          Through :          Petitioner-in-person

                             Versus

$     STATE & ANR.                 .......RESPONDENTS
^         Through :           Respondent-in-person
                              Mr. O.P. Saxena,APP

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?         Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                Yes

ARUNA SURESH, J.

1. Petitioner has filed this petition under Section 482

Criminal Procedure Code (hereinafter referred to

as 'Cr.P.C.') seeking quashing of four criminal

cases, which were registered against him by the

respondent on the basis of a compromise dated

2.4.2003 having arrived at between the parties.

2. Parties to the petition Dr. V.P. Sharma and

Dr.Poonam Khanna got married to each other on

18.01.1979. Out of their wedlock, one male child

who is mentally impeded was born on 26.11.1981.

Parties were having various disputes and

differences, which resulted into filing of a petition

for divorce by mutual consent on 6.5.2001. It was

mutually agreed between the parties that Flat No.

1, DDA, Khirki Village and Shop No. N-15, Malviya

Nagar would remain with Dr. Poonam Khanna for

maintenance of their son and that property No. C-

18, Shivalik, would be sold off and the sale

proceedings would be divided equally. Respondent

No. 2, Dr. Poonam Khanna did not join the

proceedings in the second motion petition under

Section 13 (B) (2) of the Hindu Marriage Act

(hereinafter referred as the 'HM Act') and indulged

into filing various cases against the petitioner.

Respondent No. 2 lodged an FIR No.49/2002 at

Police Station Malviya Nagar under Sections

323/341/506 Indian Penal Code (hereinafter

referred to as 'IPC'), another FIR No. 422/2002

under Sections 498A/406 IPC at Police Station

Malviya Nagar and also a complaint case under

Section 323/341/506 IPC. All these three cases are

pending adjudication. Petitioner filed FIR No.

299/2002 under Sections 324/34 IPC on 8.4.2002

against respondent No. 2. On behest of the learned

Metropolitan Magistrate all the disputes were

settled and a settlement deed was executed inter

se the parties on 3.6.2002. As per the settlement

deed, Shop No. N-15, Malviya Nagar was to remain

with respondent No. 2 for maintenance of the son

and property No. C-18, Shivalik was to be sold out

and the sale proceeds were to be divided in equal

shares. Respondent No. 2 had already sold out Flat

No. 1, DDA, Khirki Village prior to the settlement.

However, respondent No. 2 backed out from the

settlement though the Settlement Deed was got

prepared and drafted as per her desire, and the

terms and conditions of the settlement deed were

not adhered to by the parties especially,

respondent No. 2.

3. Petitioner filed a petition seeking custody of his

son, Manu before the Guardian Judge, where,

modified settlement deed was executed between

the parties on 2.4.2003. This deed of settlement is

still in force. Since respondent No. 2 allegedly did

not comply with the terms and conditions of the

settlement deed, this petition has been filed.

4. On the date of the execution of deed of settlement

i.e. 2.4.2003 following cases were pending trial

inter se the parties:

a. FIR No. 49/2002, Police Station Malviya Nagar,

under Section 323/341/506 IPC.

b. FIR No. 422/2002, under Sections 498A/406 IPC

c. Complaint Case under Sections 323/341/506 IPC

d. FIR No. 299/2002 under Section 324 IPC

e. Case for custody of child in Guardianship Court

f. Case under Section 125 Cr.P.C. for maintenance

g. Civil Suit No. 249/2002 and 250/2002 for

property

5. Parties resolved amicably without any pressure and

voluntarily agreed that petitioner would never

interfere in the peaceful living of respondent No. 2

with her handicapped son and would never claim

his custody and meeting rights on any grounds

whatsoever in future and the petitioner would pay

damages of Rs.5,00,000/- to respondent No. 2 in

case he raised any issue including the meeting

rights of the child, which had been settled between

them in terms contained in this settlement deed.

Respondent No. 2 would look after her son for

whole of her life and would not claim any

maintenance either for herself or for her son nor

would claim her istridhan in future. However, in

case respondent No. 2 decided to remarry, custody

of the child would be handed over to the petitioner.

6. It was further decided between the parties that

property No.C-18, Shivalik would be sold and the

sale proceeds would be distributed in the ratio of

45% to the petitioner and 55% to respondent No. 2

and thereafter parties would withdraw all their

respective cases filed in various courts and also the

parties would move the matrimonial court in a

petition under Section 13B(2) of the HM Act for

grant of divorce.

7. In view of the settlement, neither of the parties

would involve the other party in any suit, claim

regarding any right, title or interest in respect of

any property purchased earlier. Parties also

exchanged the documents in respect of portions of

properties falling into their respective shares

among each other and in case any of the

documents were found to be left or lying with any

party, the same would be returned to the other

party and if required, in future, parties would

execute all relevant documents, applications,

indemnity bond, declarations, NOC etc.

8. In furtherance of this compromise deed, petitioner

and respondent No. 2 jointly moved a petition

under Section 13B(2) of the HM Act and decree for

divorce was granted by the learned Additional

District Judge vide order dated 3.5.2003, keeping

in mind the fact that the parties had settled their

claims and disputes against each other amicably

including claims for dowry articles, maintenance

and istridhan, alimony as well as custody of the

child. Condition No. 3 of the settlement deed was

accordingly complied with by the parties.

9. Petition under Section 125 Cr.P.C. of the Hindu

Adoption and Maintenance Act and Persons with

Disabilities Act, 1995 filed by Smt. Dr. Poonam

Khanna, was also accordingly withdrawn by her on

3.4.2003 on the basis of the settlement deed. In the

said court, the statement of the parties were

recorded on 3.4.2003 itself and respondent No. 2

made a statement to the fact that a compromise

Ex.C-1 had been arrived at between herself and her

husband voluntarily, without any force and

coercion. She also admitted her signatures on the

agreement and sought permission from the Court

to withdraw her petition as settled/compromised.

The learned Court while accepting the statement of

the parties dismissed the petition as

withdrawn/settled/compromised with a direction

that parties would be bound by their statement.

10. Similarly, respondent No. 2 withdrew her petition

filed under Section 7 and 10 of the Guardian and

Wards Act on 29.04.2003 wherein also she

admitted having settled her disputes amicably and

voluntarily without force and coercion with the

petitioner, her husband. She admitted her

signatures on the same, which was exhibited as Ex.

C1. She also made a statement before the

Guardian Judge that she would be bound by her

statement and on her statement, the learned

Guardian Judge was pleased to dispose of the

petition in terms of the compromise deed (Ex. C1),

which was made a part of the decree.

11. Petitioner in adherence to the compromise deed

filed an application before the learned Metropolitan

Magistrate in FIR No. 299/2004 which was

registered at Police Station Malviya Nagar on his

complaint against respondent No. 2 for offence

under Section 324 IPC seeking permission to

compound the offence. However, it was

respondent No. 2 who objected to the same and

submitted to the Magistrate that terms and

conditions of the compromise has not been adhered

to by the parties and she did not want to accept the

compromise. With the result, petitioner could not

compound offence under Section 324 IPC with

respondent No.2. The matter is pending

adjudication.

12. Admittedly, respondent No. 2 has not taken any

initiative nor has adhered to the terms and

conditions of the settlement deed. She has failed to

withdraw her criminal cases which were got

registered by her against the petitioner. Since

respondent No. 2 refused to comply with the terms

and conditions of the compromise deed, petitioner

served a notice dated 28.05.2004 upon her but to

no effect. This resulted into filing of an application

by the petitioner for revival of his suit to get his

share in the property at Shivalik. Respondent No.

2 tried to sell away the Shop at Malviya Nagar, sale

of which was stayed by the Court. Petitioner filed a

petition under Section 482 Cr.P.C. in May, 2005

seeking quashing of the criminal cases but

withdrew the same in November, 2006 as

respondent No. 2 insisted that criminal

proceedings would be withdrawn only after

compliance of the conditions as laid down in the

settlement deed which were to be complied with

only after sale of the property. Respondent No. 2

allegedly filed another application on 27.08.2007

being C.R.P. No. 388/2005. She moved an

application for review in C.R.P. No. 621/2006

wherein her application for enhancement of

maintenance of the son was dismissed. A civil suit

was also filed by respondent No. 2 for and on

behalf of the son, which was subsequently

withdrawn.

13. Thus, it is clear that even after arriving at an

amicable settlement in terms of compromise deed

dated 2.4.2003, respondent No. 2 was not in peace

and continued to prosecute the criminal cases filed

by her against the petitioner, even civil litigation

was also initiated by respondent No. 2 against the

petitioner. A civil suit No. 138/2008 was filed by

respondent No. 2 after the settlement of 2.4.2003

and similarly another C.S. No. 721/2005 was filed

by her for declaration of rights of the disabled son

in the Malviya Nagar residential property. It is a

settled law that once parties reconcile their

disputes and execute a document containing the

terms and conditions of the reconciliation which is

partly acted upon, a party cannot withdraw from

the compromise and refuse to perform its part of

the obligation because it would tantamount to

misuse of process of law.

14. As discussed above, respondent No.2 partly

performed her part of compromise by withdrawing

cases filed under Section 125 Cr.P.C. and Section 7

and 10 of the Guardian and Wards Act and she also

joined the petitioner in filing Second Motion

petition under Section 13B(2) of the HM Act and

cooperated with him to ensure that their marriage

was dissolved by decree of divorce by mutual

consent. Petitioner had withdrawn the civil

litigation which he had filed against respondent

No.2. He had got it revived after the settlement

when respondent No. 2 failed to perform her part

of the remaining terms and conditions of the

settlement.

15. In 'Ruchi Aggarwal vs. Amit Kumar Aggarwal &

Ors., (2005) 3 SCC 299', wherein parties had

entered into a compromise on the basis whereof

appellant obtained divorce from the respondent

who then withdrew his petition under Section 9 of

the HM Act and appellant however partly

performed her part of compromise by withdrawing

the case filed under Section 125 Cr.P.C. but did not

withdraw her petition filed under Section 498A,

323 and 506 IPC and Section 3 and 4 of the Dowry

Prohibition Act, 1961 as agreed in the said

compromise. It was observed that the fact that

while respondent had performed his part of the

compromise, appellant had partially performed her

part of the settlement and the fact that she had

made a complaint in writing to Family Court under

Section 125 Cr.P.C. proceedings that the said

compromise was obtained by coercion and then had

withdrawn the said complaint and obtained a

divorce on the basis of the said compromise; clearly

indicated that criminal complaint was filed by the

appellant only to harass the respondent and in view

thereof it would be an abuse of process of court if

said criminal proceedings are allowed to continue.

The Court was pleased to quash the proceedings in

the criminal case.

16. Respondent has submitted that since petitioner

committed breach of the compromise, therefore,

she was within her rights to perform her part of

settlement by not withdrawing the criminal cases

which were got registered by her against the

petitioner. She has argued that it was agreed

between the parties that the petitioner would never

interfere in peaceful living of respondent No. 2

with her handicapped son but he has not permitted

respondent No.2 to live peacefully with her

handicapped son Manu. The petitioner had been

interfering in her life. However, she has not been

able to explain properly as to how the petitioner

has interfered in her peaceful living with her son at

Shivalik where she is occupying the ground floor of

the premises. True, that petitioner did obtain an

order against respondent No. 2 whereby he was

permitted to build first floor of the house to be

occupied by him because he had no place to live in

whereas respondent No. 2 was comfortably placed

on the ground floor of the house. However, the

stay order became infructuous when, petitioner

withdrew his civil suit filed by him against

respondent No. 2, claiming rights in the suit

property. After this settlement deed no untoward

incident took place inter se the parties except that

some civil litigation was initiated by respondent

No. 2 regarding property at Shivalik and so by the

petitioner. Petitioner also filed an application

before the Guardian Judge, seeking custody of the

child/meeting rights with the child after this

compromise. However, this application was filed

only when respondent No. 2 refused to perform her

part of the agreement. Petitioner has shown his

willingness to withdraw that application but his

apprehension is that respondent No. 2 would not

withdraw the criminal cases filed by her against the

petitioner.

17. As regards sale of the property, both the parties

were to find out a buyer, but none has been

arranged. Property might not be sold for a number

of years for various reasons. To make the petitioner

face trial in criminal cases pending against him for

quite some unlimited period and to defer the

enforcement of the agreement dated 2.4.2003 till

the property is sold, which is unlikely under the

circumstances of the case would not be

appropriate.

18. Under these circumstances, when dispute was

amicably settled, it is in the interest of justice as

well as parties that criminal litigation inter se them

is brought to an end. It would bring more amicable

and peaceful relationship between the parties

which would be far more beneficial to the interest

of the child who is mentally retarded and needs

protection and care in amicable and peaceful

atmosphere. Respondent No. 2 has already

obtained an injunction order against the petitioner,

thereby restraining him not to visit within the

radius of 100 meters of the property. With an end

to all the litigations inter se the parties a congenial

platform would be built for the parties to initiate

efforts for sale of the house, sale proceeds of which

are to be divided in the ratio of 45:55 between the

petitioner and respondent No. 2. In the backdrop

of checkered history of litigation respondent No. 2

cannot be allowed to continue with the cases with a

hostile attitude; might be with a view to grab whole

of the property.

19. It is the petitioner who has been rendered

homeless in this entire litigation even when he has

shown his bona fides in executing his part of the

compromise. Hence, under the circumstances of

this case, where parties have been litigating with

each other over a long period to the detriment of

the interest of a mentally retarded child and

dispute now seems to be more of property dispute,

it is in the interest of justice to bring this entire

litigation to an end and to ensure that the relevant

clause of the agreement which has become bone of

contention; property is sold and sale proceeds are

distributed as per respective shares agreed

between the parties; that is computed with, this

petition is accordingly allowed.

20. FIR No. 49/2002 registered at Police Station

Malviya Nagar under Sections 323/341/506 IPC,

another FIR No. 422/2002 under Sections

498A/406 IPC, complaint case under Section

323/341/506 IPC, FIR No. 299/2002 and respective

proceedings conducted therein are hereby

quashed.

Attested copy of the order be sent to the State as

well as the concerned trial courts accordingly for

information and compliance.

(ARUNA SURESH) JUDGE January 23, 2009 rd