Delhi High Court

Shiv Shankar Lal & Ors. vs The State & Ors. on 2 March, 2009

Author: V.B.Gupta

*     HIGH COURT OF DELHI : NEW DELHI

             Crl. M.C.No.3835-38/2006

%     Judgment reserved on: 16th January, 2009

      Judgment delivered on: 2nd March, 2009

1. Shiv Shankar Lal
   S/o. Sh. Avinash Chandra Gupta
   (At present confined in the
    Central Jail, Tihar, New Delhi)

2. Smt. Suman
   Widow of Sh. Avinash Chandra Gupta

3. Mr. [email protected] Kirpa Shanker
   S/o. Sh. Avinash Chandra Gupta

    Both R/o. WZ-11, Plot No.55
    Vishnu Park, Tilak Nagar
    New Delhi

4. Mrs. Ritu @ Anita
   W/o. Shri Neeraj Gupta
   R/o. A-13/C, Sector 2,
   Avantika, Mangolpuri,
   Delhi.                                 .... Petitioners

                 Through: Mr. P.R. Thakur, Adv. along
                          with all the petitioners except
                          petitioner No.3.
             Versus

1. The State

2. Mrs. Neha Gupta
   W/o. Shri Shiv Shanker Lal
   D/o. Shri Devinder Kumar Jain,




Crl.M.C.No.3835-38/2006                        Page 1 of 9
 3. Shri Devinder Kumar Jain

 Both R/o. B-8/38-39, Sector 3, Rohini,
 Delhi-110085                           ...Respondents

                    Through : Mr. M.N. Dudeja, Adv. for the
                              State along with S.I. Manwar
                              Patwal, P.S.Rohini.

                             Respondents     No.2     &       3
                             present in person.

                             FIR No.459/2006
                             u/s 363/366/376 IPC,
                             P.S. Rohini.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
be allowed to see the judgment?                         Yes

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
in the Digest?                                          Yes

V.B. GUPTA, J.

This joint petition has been filed under Section

482 of the Code of Criminal Procedure 1973 (for short

as „Code‟) for quashing the FIR in question. This joint

petition has been duly signed by all the petitioners as

well as respondents No.2 and 3 and has been duly

supported by affidavits of petitioner No.3 as well as

that of respondent No.2.

2. In this petition, it is stated that the present case

was registered on the complaint of respondent No.3 in

which the prosecutrix was respondent No.2.

3. Petitioner No.1 and respondent No.2 had entered

into lawful marriage at Delhi on 16th May, 2006.

Respondent No.3 (the father of the prosecutrix) got the

FIR registered against petitioner No.1 and names of

petitioner Nos. 2 to 4 were introduced by the

prosecutrix in her statement under Section 164 Cr.P.C.

4. Petitioners No.2 to 4 were granted anticipatory

bail vide order dated 21th June, 2006 of this Court.

Petitioner No.1 was arrested on 29th May, 2006 and he

applied for grant of regular bail and the same has been

pending consideration before this Court.

5. The parents of the prosecutrix have not approved

of the marriage between petitioner No.1 and

respondent No.2. On 28th June, 2006 when bail

application of petitioner No.1 came up for

consideration before this Court, the parents of the girl

stated that they wanted a divorce of their daughter

from petitioner No.1 and they also agreed to have no

objection to the quashing of FIR registered in this

case.

6. The petitioners agreed to the said proposal of

divorce by mutual consent and also quashing of the

FIR in question. In pursuance of the aforesaid

compromise between the parties which was arrived

due to intervention of this Court, the petition for

mutual divorce was filed seeking the permission of this

Court.

7. It is apparent from the record that petition for

divorce by mutual consent was filed before this Court

and this court granted divorce.

8. Notice of this petition was issued. Counsel for the

State filed its status report giving its no objection for

quashing of the FIR. The status report reads as under;

"This is a peculiar case in which the parties have filed a joint petition under Section 482 Cr.P.C. for quashing of the FIR and the proceedings emanating therefrom. The FIR had been registered on the report of the father of the prosecutrix. The parties have filed on record the Certificate of Marriage dated 16.05.2006 issued by the Arya Samaj Mandir, Jamuna Bazar, Delhi, which records the date of birth of the prosecutrix as 01.03.1988 which means that as on the date of her marriage, she was above 18 years. After the marriage, the prosecutrix became the legally wedded wife of the accused Shiv Shanker Lal though it was an inter caste marriage and not to the liking and against the wishes of the parents of the prosecutrix. The accused Shiv Shanker Lal after his arrest remained in custody for about a month and he was granted regular bail by the Hon‟ble High Court of Delhi vide the order dated 30.06.2006. The said bail order eloquently speaks for itself in as much as it is clear that it was due to the kind intervention and persuasion of the Hon‟ble Judge (Mukul Mudgal, J.) that the parties decided to part ways by taking divorce by mutual consent. In the case, the Public Prosecutor, Shri Pawan Sharma was also directed to persuade the parties for amicable settlement for permanent peace.

The Hon‟ble Judge while granting the bail had ordered that the divorce petition be filed in the High Court itself and the same was filed on 29.06.2006 and the divorce by mutual consent was granted

on the first date of hearing itself i.e. 30.06.2006.

The accused returned all the original documents including the marriage Album and the letters etc. to the father of the prosecutrix at the time he was granted bail by the High Court of Delhi on 30.06.2006. As recorded in the petition itself, the quashing petition was filed on 30.06.2006 directly in the Court and the same was ordered to be registered by the Vacation Judge, Hon‟ble Mr. Justice Mukul Mudgal. This fact also shows that the quashing petition, jointly moved by both the parties, was at the initiative and intervention of the Hon‟ble Judge. Having regard to the facts, said above, the case has attained a peculiarity in which the Hon‟ble Court may be gracious to exercise its inherent powers U/S 482 Cr.P.C. as a special case. Further, it would otherwise, be expedient in the interest of justice to order quashing of the above FIR when divorce has taken place on the petition filed in the Hon‟ble High Court of Delhi, itself and to give effect to the orders passed by the Hon‟ble Mr. Justice Mukul Mudgal."

9. The order passed by Mukul Mudgal, J on June 28,

2006 granting interim bail to petitioner No.1 reads as

under;

"In the meanwhile, on petitioner‟s furnishing a personal bond in the sum of Rs.5,000/- with one surety in the like amount to the satisfaction of the trial court/duty Magistrate the petitioner is directed to be released on interim bail for a period of 15 days at the first instance, to enable him to file mutual consent divorce petition. The mutual consent divorce petition is required to be filed by 29th June, 2006. The petitioner shall surrender after expiry of the period of 15 days of his release.

In order to facilitate the implementation of this order, the accused is directed to be produced in Court on 30th June, 2006 by the respondent."

10. On June 30, 2006, petitioner No.1 was produced

before Mukul Mudgal, J and a petition for divorce by

mutual consent was moved. Accordingly, petitioner

No.1 was ordered to be released on bail.

11. On 30th June, 2006 itself, petition for divorce by

mutual consent was moved before Mukul Mudgal, J

(Vacation Judge) bearing C.M. (Main) No. 946/2006

and CM No.8589-91/2006. That petition was disposed

of on the same very day and the relevant order passed

reads as under;

"This petition has been handed over in Court and is taken up for hearing. This petition has been tendered by the learned counsel for the petitioner for divorce by mutual consent.

Considering the circumstances averred in the petition which show that the respondent wife was minor at the time of the marriage, this Court is of the view that sufficient circumstances as noted in the judgment of this Court in Anita Sharma and Harish Kumar Sharma vs. NIL, reported as 2005 Matrimonial Law Reporter Pg. 769 exist to grant a divorce by mutual consent and by waiver of the period of six months. The decision to seek divorce is not a hasty one but it appears that the marriage was a hasty one. This Court has had detailed discussion with the parties and the counsel for the State has also talked to the parties and is of the view that the divorce by mutual consent is in the interest of parties. Accordingly, I am satisfied that this petition is entitled to succeed and it is allowed. Let the decree sheet of divorce be drawn.