Delhi High Court

Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010

Author: G. S. Sistani

31.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CONT.CAS(C) 274/2009

%                             Judgment dated on: 13.05.2010
      SHIKHA BHATIA                                   ..... Petitioner
                Through :     Mr. Deepak Kumar and Ms. Deepa,
                              Advs. along with the petitioner.
                  versus

      GAURAV BHATIA & ORS.                     ..... Respondents
               Through : Mr. J.C. Mahindroo, Adv. along with
                          respondents.

      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI
         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

G.S.SISTANI, J. (ORAL)

1. The facts which have led to filing of the present contempt petition

are that petitioner was married to respondent no.1 on 02.02.2006.

Petitioner made a complaint to P.S. Amar Colony, Delhi on

06.08.2007 and subsequently an FIR under sections 498-A/406 was

registered on 11.10.2007. Respondent no.1 is the husband;

respondent no.2 is the father-in-law and respondent no.3 is the

mother-in-law of the petitioner. After the registration of the FIR, the

respondents filed an application before the Delhi High Court for

grant of anticipatory bail. During the pendency of the application

for grant of bail, parties arrived at an amicable settlement, which

was recorded in the order dated 23.10.2007. According to this

settlement, respondent no.1 agreed to pay a sum of Rs.8.0 lacs to

the petitioner herein towards full and final satisfaction of her claims on account of istridhan, maintenance (past, present and future). It

was also agreed that respondent would hand over clothes belonging

to the petitioner; petitioner would sign first motion for grant of

divorce by mutual consent and thereafter parties would sign the

final petition under section 13 (b) (ii) of the Hindu Marriage Act. As

per this settlement, respondent was to prepare fixed deposit

receipts in the total sum of Rs.4.5 lacs which were to be further

bifurcated in three FDRs - 1st FDR of Rs.2.0 lacs, 2nd FDR for Rs.1.50

lacs and 3rd FDR for Rs.1.0 lac. These fixed deposit receipts were to

be handed over to the petitioner at different stages as detailed in

the order. The petitioner herein was also to cooperate and give her

no objection for quashing of the FIR which was registered against

respondents herein. Counsel for petitioner submits that

respondents have willfully violated the orders and undertaking given

to Court which were accepted by the Court on 23.10.2007.

2. Counsel for the petitioner submits that on account of demand of

dowry and ill treatment melted out to the petitioner, she was forced

to file a complaint and thereafter an FIR was registered. It is further

submitted that in fact respondents had entered into an agreement

with the petitioner as an illegal device to seek anticipatory bail, as it

is on the basis of this very settlement the court had granted

protection to the respondents herein. Counsel also submits that not

only the petitioner has been cheated by the respondents, they have

also interfered in the administration of justice, besides respondents

are trying to overreach the orders passed by this Court. Mr. Deepak Kumar, Advocate, next submits that terms of the settlement have

been incorporated in the order dated 23.10.2007. Counsel for

petitioner further submits that after the settlement was recorded

and the matter was disposed of respondent no.1 moved an

application in the Criminal Miscellaneous Petition, seeking extension

of time for making the FDR which was disposed of by order dated

08.01.2008. It is further submitted that court had granted time up

to 15.02.2008 to the respondent to comply with the terms of the

order dated 23.10.2007. Counsel next submits that another

application was filed seeking extension of time which was also

disposed of on 15.02.2008 and further eight weeks time was

granted as a last opportunity to make the payment. The respondent

thereafter moved another application (Crl.M.A.No.4309/2008), this

time seeking a direction for referring the matter to the Mediation

and Conciliation Centre. The application was dismissed and the

court had directed compliance of the orders dated 23.10.2007.

3. Counsel for the petitioner has also drawn attention of the Court to

the orders dated 01.05.2008 passed in HMA No.146/2007, a petition

filed by respondent no.1 under section 9 of the Hindu Marriage Act

for restitution of conjugal rights. This petition was filed by

respondent no.1 prior to the order dated 23.10.2007. It is submitted

that on 01.05.2008 the counsel for the petitioner (respondent on.1

herein) had made a statement before the court that in view of the

settlement arrived at between the parties, he would be withdrawing

the petition under section 9 of the Hindu Marriage Act.

4. Counsel for the petitioner submits that despite settlement having

been arrived at before the Court and the undertaking given,

respondent no.1 has willfully violated the undertaking with impunity.

Counsel for petitioner submits that although petitioner no.2 is a

witness to the settlement, at this stage, he does not wish to press

this petition against respondents no.2 and 3. It is submitted that

the act of respondent no.1 in not complying with the order is willful

and deliberate and respondent has at no point of time either

approached the Court in which the settlement was arrived at for

withdrawal of the same and in fact petitioner has been seeking

extension of time to comply with the settlement as is evident from

the orders dated 08.01.2008 and 15.02.2008.

5. Per contra, it is submitted by counsel for the respondents that no

contempt is made out against the respondents in view of the fact

that the respondent no.1 was coerced and forced to arrive at a

settlement with the petitioner. It is submitted that the contempt

petition is not maintainable as the petitioner has already availed of

an alternate remedy by way of filing applications [being Bail

Appln.No.2305/2007 and 2306/2007] for cancellation of bail, which

was granted to the respondents by an order dated 23.10.2007.

Counsel further submits that after hearing counsel for both the

parties the Court concerned did not consider it appropriate to cancel

the bail.

6. Counsel for the respondents has placed reliance on Section 23 of

the Hindu Marriage Act, 1955, more particularly, sub-section (bb) in support of his plea that when a divorce is sought on the ground of

mutual consent, such consent should not have been obtained by

force, fraud or undue influence.

7. Counsel for the respondents also submits that at the time when the

agreement was entered into between the parties, the parties were

not residing separately for a period of one year and further the

second motion could not have been made earlier than six months

after the date of presentation of the petition for first motion under

sub-section (1) of Section 13B of the Hindu Marriage Act, 1955. An

argument has also been raised by counsel for the respondents while

relying upon Anil Kumar Jain Vs. Maya Jain, reported at (2009)

10 SCC 415, that the respondent has a right to withdraw the

consent given by him at any time before a final decree of divorce

has been passed.

8. Another argument raised by counsel for the respondents is that the

respondents had only undertaken to the Court to pay a sum of

Rs.8.00 lakhs as well as return clothes of the petitioner herein and

respondents had not undertaken to sign the first motion and the

second motion for grant of divorce to the petitioner. Counsel for the

respondents further submits that the petitioner is disentitled to any

relief claimed in this petition in view of the fact that by an order

dated 23.3.2009 passed in Crl.M.C.NO.1530/2008 a Single Judge of

this Court while deciding the application filed by the petitioner for

cancellation of bail had directed respondent No.1 to hand over to

the I.O. the FDRs in the sum of Rs.4.50 lakhs, which FDRs were to remain in the custody of the I.O. till further directions by the Trial

Court. Counsel submits that the petitioner herein, has on the pretext

of getting the FDRs renewed, have encashed the FDRs. Counsel next

submits that the settlement entered into between the parties, in any

case, is hit by Section 23 of the Contract Act as the settlement was

forbidden by law for which he also relies on Anil Kumar Jain

(supra) and Sandhya Mukhi (supra).

9. I have heard counsel for the parties. The basic facts are not in

dispute that marriage between the parties was solemnized on

2.2.2006. On account of demand of dowry and ill treatment the

petitioner made a complaint to Police Station Amar Colony, Delhi, on

6.8.2007 on the basis of which an FIR No.51/2007 under Sections

498-A/406/34 IPC was registered at police station Amar Colony on

11.10.2007. Respondents filed an application for grant of

anticipatory bail and by an order dated 23.10.2007 settlement

arrived at between the parties was recorded and respondents were

granted bail.

10. At the time when the matter was pending before the High Court the

parties in order to resolve their disputes and differences arrived at

an amicable settlement, which is evident from the order dated

23.10.2007. The identical terms of settlement as recorded in the

order dated 23.10.2007 was reduced into writing by an agreement

dated 6.11.2007, a copy of which has been placed on record, on a

date subsequent to the passing of the order of anticipatory bail. This

agreement bears the signatures of the petitioner, respondent no.1 as also the father of respondent no.1 [respondent no.2 herein]. As

per this agreement while reiterating the terms of settlement as

recorded in the order dated 23.10.2007, it was recorded that the

clothes of the petitioner that is the wife have been handed over

before signing of the agreement and no claim on this account was

left. The agreement dated 6.11.2007 entered into between the

parties reads as under:-

AGREEMENT / SETTLEMENT

THIS AGREEMENT IS MADE on this the 6th day of November 2007 at DELHI.

BETWEEN Shri Gaurav Bhatia s/o Sh. Anil Bhatia r/o 7/26, Ansari Road New Delhi (hereinafter referred to as the "husband - first party")

AND

Smt. Shikha Bhatia D/o Sh. Chander Mohan Arora W/o Shri Gaurav Bhatia presently R/o E-62 A, Amar Colony, Lajpat Nagar-IV, New Delhi (hereinafter referred to as the "wife- second party")

WHEREAS the parties to this agreement are husband and wife and their marriage was performed on 02.02.2006 according to Hindu rites and customs.

WHEREAS after the marriage, some dispute arose between the parties to this agreement result of which both the parties started living separately and second party wife started living with her parents w.e.f. 27.02.2007.

Whereas on the complaint of the second party wife a case FIR No.51/2007 under section 498-A/406/34 IPC was registered at P.S. Amar Colony against the first party husband, his parents and other relations.

Whereas the first party and his parents filed separate petitions for grant of anticipatory bail vide bail applications No.2305 and 2306 of 2007 respectively before the Hon'ble High Court of Delhi.

Whereas before the said bail applications were to come up for hearing, the parties to this agreement as well as their respective parents agreed to settle their disputes amicably.

Whereas the aforesaid bail applications came up for hearing before Hon'ble Mr. Justice Pradeep Nandrajog, on 23.10.2007 and the Hon'ble Court was informed by both the parties regarding the settlement between the parties.

Whereas the terms and conditions of the settlement were recorded by the Hon'ble Court in its order dated 23.10.2007.

NOW, THEREFORE, THIS AGREEMENT WITNESSED AS UNDER

1. That the first party in terms of the agreement has agreed to pay to the second party a sum of Rs.8 lakhs as full and final settlement towards satisfaction of her all claims on account of stridhan, maintenance, permanent alimony (past , present and future).

2. That in terms of the settlement a banker's cheque of Rs.2 lakhs bearing No. ________ drawn on Union Bank of India was paid to the second party by the first party before the Hon'ble Court.

3. That it has been agreed that the first party will pay another sum of Rs.1.5 lakhs to the second party on or before 07.11.2007 and accordingly at the time of signing of this agreement the aforesaid amount of Rs 1.5 lakhs has paid to the second party by the first party vide banker's cheque no.028656 drawn on Union of India dated 6.11.07, the receipt of which has been acknowledged by the second party on the separate receipt.

4. That as per law mutual divorce cannot be filled before 27.02.2008, therefore it has been agreed between the parties that the remaining amount of Rs.4.5 lakhs is to be paid to the second party in the form of FDR with a nationalized bank.

5. It has been further agreed that aforesaid Rs.4.5 lakhs has to be bifurcated in three FDRs. First FDR of Rs.2,00,000/- (two lacs), second of Rs.1,50,000/- (one lacs fifty thousand) and third of Rs.1,00,000/- (one lacs) totally Rs.4,50,000/- (four lacs fifty thousand) and these FDRs are to be prepaid in the name of the second party on or before 31.12.2007.

6. That the clothes of the second party have already been handed over to the second party by the first party before signing of this agreement and there is no claim left of the second party on this account.

7. It has been further agreed that the aforesaid three FDRs are to be handed over to the second party at three stages i.e. first and second FDR of Rs.2,00,000/- (two lacs) and Rs.1,50,000/- (one lacs fifty thousand) are to be handed over to the second party simultaneously with recording of statements in the court of first and second motions of divorce by mutual consent respectively.

8. It has been agreed and undertaken by the second party that she will be cooperating in getting the FIR No.51/2007 quashed from the Hon'ble High Court of Delhi against first party, his parents and both the sisters by personally appearing before the Hon'ble court as and when required and by giving no objection to the same and the third FDR of Rs.1,00,000/- (one lacs) has to be handed over to the second party only on quashing of the FIR / proceedings if any in case FIR No.51/2007.

9. It has agreed and accepted by the second party that on receipt of aforesaid entire Rs.8,00,000/- (eight lacs), she will be left with no right, claim of any nature whatsoever towards stridhan, maintenance past, present and future or any other claim in any provision of law. Similarly on divorce and quashing of FIR, the first party will be left with no right or claim against the second party or against respective families of both the parties in any manner whatsoever.

10. That this agreement is executed voluntarily, without any pressure, coercion of any nature whatsoever in presence of both the parties and other relations, who have also signed this agreement.

IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE DAY, MONTH AND YEAR MENTONED HEREINABOVE, IN PRESENCE OF THE FOLLOWING WITNESSES, PARENTS OF PARTIES AND OTHER RELATIONS OF THE PARTIES AS UNDER:

WITNESS

1. ANIL BHATIA FIRST PARTY - HUSBAND.

             ___________
             ___________

          2. MR. C.M. ARORA                            (FATHER)
             S/o Lt. Sh. G.L. Arora
             E-62/A, Amar Colony,
             Lajpat Nagar IV
             New Delhi."

11. A sum of Rs.2.00 lacs was paid by respondent no.1 to the petitioner

in the Court. At the time of signing of the agreement dated

6.11.2007, as agreed, respondent no.1 paid a sum of Rs.1.5 lakhs to

the petitioner herein, which fact is not disputed by the parties.

Respondents, however, did not prepare the necessary FDRs within

the time allowed and, thus, respondents filed an application being

Crl.M.A.No.14453/2007 in Bail Application No.2305/2007 before this

Court for extension of time in making the payment. This application

was listed on 8.1.2008 when the following order was passed by this

Court:

    "     IN THE HIGH COURT OF DELHI AT NEW DELHI

    08.01.2008

    Present:     Mr. K.N. Popli, Advocate for the petitioner.
                 Mr. Amit Sharma, APP for the State.

Mr. Pramod Jalan, Advocate for respondent No.2.

Crl. M. No.14453/2007 in Bail Application No.2305/2007

More time is sought for making payment as according to the learned counsel for the petitioner, money is not yet arranged. After hearing both the parties, time is extended till 15.2.2008 However, amount shall be paid in terms of the order passed by this court on 23.10.2007.

Since parties have reached amicable settlement and they are making joint petition for divorce, it is hoped that learned Magistrate shall waive of six months' period to enable the parties to reach amicable settlement swiftly.

List on 15th February, 2008.

H.R. MALHOTRA, J.

JANUARY 08, 2008 'AA'

12. Despite the time having been extended upto 15.2.2008 for making

the payment, respondent no.1 did not make the payment and filed

another application being Crl.M.A.No.2008/2008. By means of this

application, respondent no.1 sought further extension of time for

making the remaining payment of Rs.4.5 lakhs (wrongly typed as

Rs.2.5 lakhs in the order, as pointed out by counsel for the parties)

on the ground of financial constraint. In the order dated 15.2.2008 it

was recorded that the petitioner (respondents herein) had to sell

some immovable property for which, in the newspaper, he had

given an advertisement, a copy of which was also placed on record.

Eight weeks time was sought by petitioner (respondent herein) to

pay the remaining Rs.4.5 lakhs (wrongly typed as Rs.2.5 lakhs in the

order). The Court on 15.2.2008 further extended time upto 8 weeks

to make the payment. It was made clear that this would be the last

and final opportunity and no further opportunity would be granted to the petitioner (respondents herein). The Order dated 15.2.2007

reads as under:

IN THE HIGH COURT OF DELHI AT NEW DELHI

15.02.2008

Present: Mr. K.N. Popli, Advocate for the petitioner.

Mr. Amit Sharma, APP for the State.

Ms. Aanchal Mullick, Advocate for the complainant.

Crl. M.A. No.2009/2008 (for exemption)

Allowed, subject to just exceptions. Application stands disposed of.

Crl. M.A. No.2008/2008

This is an application seeking further extension of time for making remaining payment of Rs.2.5 lacs. I am told that Rs.5.5 lacs have already been paid but the petitioner has not been able to make arrangement for the remaining amount because of financial constraint. It is submitted that the petitioner has to sell his immovable property to make the said payment and for which he has already given an advertisement in the newspaper. A copy of such newspaper is placed on record.

Learned counsel for the petitioner seeks eight weeks' time to pay the remaining amount of Rs.2.5 lacs as by that time, the petitioner shall be able to dispose of the said property.

In view of the above, time to pay the remaining amount of Rs.2.5 lacs is further extended for a period of eight weeks. However, it is made clear that this is the last and final opportunity and no further opportunity shall be granted to the petitioner.

The application stands disposed of.

Bail Application No.2305/2007

List on 7th April, 2008.

A copy of this order be given DASTI.

H.R. MALHOTRA, J.

FEBRUARY 15, 2008 'AA'

13. Although the bank drafts were prepared, but respondent no.1 made

another application being Crl.M.A.No.4309/2008 in Bail

Appln.No.2305/2007, before this Court, seeking a direction for

referring the matter to the Medial and Conciliation Centre. This

application was dismissed on 7.4.2008.

14. Order sheets of the Court of Additional District Judge, Delhi, where a

petition filed by respondent no.1 under Section 9 of the Hindu

Marriage Act for restitution of conjugal rights reveal that on

14.3.2008 the Court had directed the parties to appear in person on

1.5.2008. On 1.5.2008, respondent no.1 was not present, however,

a statement was made by the counsel on his behalf that in view of a

settlement arrived at between the parties the petitioner would be

withdrawing the petition filed under Section 9 of the Hindu Marriage

Act against the respondent. The matter was adjournment to

3.7.2007 for withdrawal of the petition, however, on 3.7.2007

neither the petitioner appeared nor was the petition withdrawn.

15. The first submission of counsel for respondent no.1 that the

settlement was entered into by undue influence, force and without

the consent of respondent no.1 is without any merit in view of the

fact that the settlement was recorded on 23.10.2007 in the Court.

Thereafter the settlement was recorded into writing on 6.11.2007, a

date subsequent to the order dated 23.10.2007. In case the respondent no.1 was forced to enter into a settlement in the Court,

the respondent no.1 could well have declined to sign the agreement

on 6.11.2007. Had there been any pressure on the respondent no.1

he would not have acted upon the settlement and would not have

returned the clothes of the petitioner as is evident on reading

Clause 6 of the Agreement nor would the respondent no.1 made

further payment as per the settlement to the petitioner. In case the

respondent no.1 was forced to enter into the settlement he would

not have approached the court on two occasion for extension of

time. The order dated 8.1.2008 also shows that respondent no.1

sought further time by filing Crl.M.No.14453/2007 to make the

payment as the money had not been arranged. This application of

the respondents was decided on 8.1.2008 and time was extended

upto 15.2.2008. Similarly further extension was granted to the

respondents to comply with the order for a period of eight weeks by

an order dated 15.2.2008 passed in Crl.M.A.No.2008/2008.

Thereafter in furtherance of the settlement respondent no.1

prepared the FDRs in the sum of Rs.4.5 lakhs and handed over the

same to the I.O. in terms of the settlement arrived at. Perusal of the

order sheets dated 8.1.2008 and 15.2.2008 of the High Court and

order dated 1.5.2008 passed in the petition filed by the respondent

no.1 before the trial court would clearly show that respondent no.1

was taking all necessary steps in furtherance of the settlement and

in case of any pressure, force, coercion or undue influence the

respondent no.1 had enough opportunity and time to withdraw from this settlement. Despite the opportunity available the respondent

did not taken any steps to approach the Court which passed the

order dated 23.10.2007 for review or modification.

16. The order sheet of the Additional District Judge dated 1.5.2008

reveals that respondent no.1 being petitioner in the above petition

wanted to withdraw the petition in view of the settlement arrived at

which would show that from 23.10.2007 upto 1.5.2008 the

petitioner made no attempt either for seeking modification of the

order dated 23.10.2007 or lodging any protest in any forum that the

settlement arrived at by him was not out of his free will or that it

was under force or pressure. Terms of the settlement reproduced

above show that the agreement arrived at was voluntary, without

any pressure or coercion. Relevant paras of the settlement read as

under:

Whereas before the said bail applications were to come up for hearing, the parties to this agreement as well as their respective parents agreed to settle their disputes amicably.

Whereas the aforesaid bail applications came up for hearing before Hon'ble Mr. Justice Pradeep Nandrajog, on 23.10.2007 and the Hon'ble Court was informed by both the parties regarding the settlement between the parties.

17. That this agreement is executed voluntarily, without any pressure, coercion of any nature whatsoever in presence of both the parties and other relations, who have also signed this agreement.

IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE DAY, MONTH AND YEAR MENTONED HEREINABOVE, IN PRESENCE OF THE FOLLOWING WITNESSES, PARENTS OF PARTIES AND OTHER RELATIONS OF THE PARTIES AS UNDER:

18. Counsel for the petitioner has drawn the attention of the Court to

the cross examination of respondent no.1 in the proceedings under

Section 9 of the Hindu Marriage Act wherein in the cross-

examination respondent no.1 has stated that he signed the

agreement under compelling circumstances and on being asked to

explain he stated "by compelling circumstances for signing the

same, as stated in para 23 of my affidavit, I mean that I was asked

by my lawyer to sign the same as it was necessary for anticipatory

bail in the criminal cases", to show that in fact by entering into a

settlement in Court on 23.10.2007 respondent no.1 had interfered in

the administration of justice and had made a false statement before

the Single Judge in order to overreach the order which was likely to

be passed.

19. Taking into consideration that there were various opportunities

available to the respondents to withdraw from the settlement,

firstly, after the order was passed in case respondent no.1 had been

coerced and forced to enter into a settlement in Court it was open

for him not to sign the agreement on 6.11.2007 as by that date he

and his family had already been granted anticipatory bail. So there

was no pressure on respondent no.1 to sign this agreement. Filing of

the applications for extension of time would show that in case there

was any coercion or pressure, or undue influence on the

respondents, instead of moving the applications for extension of

time would have moved an application seeking withdrawal of the

settlement on the ground of undue influence, force or pressure. The returning of clothes to the petitioner making payment of Rs.3.5

lakhs and after having been granted extension of time making the

FDRs of Rs.4.5 lakhs and handing them over to the I.O. in

furtherance of the agreement would show that till 1.5.2008 at least

respondent no.1 never raised any such objection of being forced to

sign the agreement before any forum including the High Court or

the Court of Additional District Judge. Therefore the stand taken by

respondent no.1 in Court that he signed the agreement under

coercion or pressure is a completely dishonest defence and a mere

afterthought and the same is thus rejected.

20. The submission made by counsel for the respondents that the order

dated 23.10.2007 binds the respondents only with regard to making

the payment is an intentional misreading of the aforesaid order. The

order is to be read as a whole and not in bits and pieces to suit the

respondents as stated. A complete reading of this order would show

that there was a composite settlement. The settlement was in four

parts - (i) Rs.8.00 lakhs to be paid by the respondents to the

petitioner on account of istridhan, maintenance (past present and

future); (ii) personal clothes of the complainant i.e. the petitioner

lying in the house of the respondents were to be returned; (iii) the

sum of Rs.8.00 lakhs was to be paid in deferred five installments in

the following manner:

(a) Rs.2.00 lakhs were to be paid in Court;

(b) Rs.1.5 lakhs were to be paid by 7.11.2007;

fixed deposit with a Nationalized Bank, the fixed deposits to

be split into three components i.e. one FDR in the sum of

Rs.2.00 lakhs, the second FDR in the sum of Rs.1.5 lakhs and

the third FDR in the sum of Rs.1.00 lakh.

21. As agreed the three FDRs would be prepared by making a necessary

deposit with the Nationalised Bank by 31.12.2007 to be handed over

to the petitioner at three stages being first motion for divorce by

mutual consent, second motion for divorce by mutual consent and

lastly at the time when quashing of the FIR would be sought. This

arrangement was in furtherance of the settlement as agreed by the

parties.

22. While disposing of the petition [Crl.M.C.No.1530/2008] the Court

bound the petitioner (respondent no.1 herein) to comply with the

obligation of paying to the complainant (petitioner herein) and

returning the personal clothes of the complainant. The complainant

was also bound to join in obtaining a divorce by mutual consent and

also while seeking quashing of FIR. A complete reading of the order

dated 23.3.2009 would show that the parties were bound to comply

with the terms of the agreement entered into between them. It

cannot be said that the Court accepted the stand of the parties in

part and not as a whole. Arguments raised by counsel for

respondent no.1, in this regard, is also rejected.

23. The third argument which has been raised by counsel for the

respondents is with regard to the agreement being hit by the provisions of Section 23 of the Contract Act as also being hit by the

provisions of the Section 23 and 13(b) of the Hindu Marriage Act. It

is stated that the agreement entered into between the parties was a

nullity in view of the fact that the consent which was obtained

should be without any force, undue influence and pressure and the

consent should continue till the date when the decree of divorce

was granted. In view of the fact that this Court has held that there

was no undue influence, pressure or coercion on the respondents to

sign the agreement it cannot be said that the agreement is a nullity

on the ground that the petitioner was made to enter into the

agreement under pressure. As far as the plea raised by the

respondents while relying upon Smt. Sureshta Devi (supra) and

Sandhya Mukhi (supra) that the consent can be withdrawn at any

point of time has no force in the facts of the present case. The

respondents once having taken the advantages of the agreement

entered into the terms of the settlement cannot be withdrawn by

the respondents to suit his whims and fancies and to the detriment

of the petitioner.

24. The case of Smt. Sureshta Devi (supra) has no application to the

facts of the present case as in the case of Smt. Sureshta Devi

(supra) the parties after marriage has stayed together for 6-7

months and thereafter they started living separately. As per the

facts noticed in the aforesaid judgment the wife along with her

lawyer met the respondent (husband) and after about an hour's

discussion they moved a petition under Section 13B of the Hindu Marriage Act for divorce by mutual consent. The Court recorded the

statement of the parties and left the matter there. Subsequently,

the wife filed an application in the same Court stating that her

statement was obtained under pressure and threat of the husband

and she was not even allowed to see or meet her relations to

consult them before filing the petition for divorce, nor they were

permitted to accompany her to Court. The District Judge dismissed

the petition for divorce, however, on appeal the High Court reversed

the order of District Judge and granted a decree of dissolution of

marriage observing that the spouse who had given consent to a

petition for divorce cannot unilaterally withdraw the consent. It is in

the light of these facts that the Supreme Court observed that the

consent given for divorce by mutual consent can be withdrawn at

any stage.

25. The facts of this case are completely different. In this case

application for anticipatory bail filed by the respondent no.1

(husband) was pending before the High Court. The parties informed

the Court that they had entered into a settlement. Relying upon the

statement made by the parties the Court recorded the settlement

and granted bail to the petitioners (respondents herein). The

parents of the boy had also participated in the proceedings. After

passing of the order, parties signed an agreement which bears the

signature of father of respondent no.1 which shows that the

agreement was entered into by respondent no.1 after deliberation

that his parents and not as if the wife or anyone else from her family forced and coerced respondent to enter into a settlement. The

respondents from 23.10.2007 till 1.5.2008 at no stage took any

steps to bring to the notice of the Court that he was forced to settle

the matter without his free will.

26. In the case of Anil Kumar Jain (supra), relied upon counsel for the

respondents, both parties filed a joint petition for grant of divorce

under Section 13B of the Hindu Marriage Act. The Court thereafter

fixed a date for consideration of the petition after six months and

also gave time to the parties to consider. After expiry of period of

six months when the Court took up the matter, the appellant,

husband, reiterated his earlier stand that a decree of divorce should

be passed as it was not possible for the parties to live together but

the respondent wife submitted that despite serious differences

between them she did not want the marriage ties to be dissolved. In

view of withdrawal of the consent by the wife the Court dismissed

the joint petition under Section 13B of the Hindu Marriage Act. The

husband filed an appeal before the High Court, which was dismissed

by the Single Judge of the High Court, which led to the filing of a civil

appeal before the Supreme Court of India. Before the Supreme

Court of India, it was submitted that on behalf of the husband that

prior to filing of the petition for mutual consent the parties had

entered into a settlement which had been fully acted upon the

appellant (husband) and that under the said agreement valuable

property rights had been transferred to the wife, which she was

enjoying. The Supreme Court had invoked its extraordinary power under Article 142 of the Constitution to grant a decree of divorce

under Section 13B of the Hindu Marriage Act even though one of the

parties had withdrawn consent before passing the final decree.

While deciding the civil appeal one of the considerations before the

Supreme Court of India was that as part of the agreement between

the parties the husband had transferred valuable property rights in

favour of the respondent and it was after registration of such

transfer of property that she withdrew her consent.

27. In this case, the respondents had entered into an agreement with

the petitioner herein with open eyes and the terms of the

agreement have been acted upon. No doubt the law provides that a

party has a right to withdraw the consent given but the reasons for

withdrawal as in the case of Smt. Sureshta Devi (supra) was that

the wife had been coerced and forced to enter into signing the

petition for mutual consent without allowing her to consult her

family members nor she was permitted to bring her family members

to Court at the time when the statement was made, besides that the

wife at the first opportunity available withdraw her consent. Crime

against women are on the rise. Keeping in view the facts of this

case, if the husband respondent no.1 is allowed to resile from the

settlement recorded in Court on the basis of express statement and

representation of respondent no.1 to the effect of settlement

between the parties, the Court considered the anticipatory bail

application of the respondents favourably, it would amount to

allowing the respondent to steal an order of bail from the Court and thus interfering in the course of justice. It would encourage

unscrupulous persons and would certainly open flood gates for such

litigants, to sham settlement at the time when the bail application is

being considered and later on simply plead that the settlement

was not out of free will. The respondents cannot be permitted

to make a mockery of the legal system and such willful

and deliberate disobedience of the order of the Court

would weaken the rule of land. The mindset of the

respondent no.1 and his conduct is established by the statement

made during cross-examination that the settlement was signed by

him as was asked by his lawyer, that it was necessary for the

anticipatory bail in the criminal cases. This itself speaks volume of

the legal advice rendered and the conduct of the respondents. In

the case of Kapildeo Prasad Sah v. State of Bihar, reported at

(1999) 7 SCC 569 it was held as under:

"For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been willful disobedience of the judgment or order of the Court. Power to punish for contempt is to be resorted to when there is clear violation of the Court's order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of willful disobedience of the court's order has been made out. Whether disobedience is willful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the Court's orders and its implication. Disobedience of Court's order strikes at the very root of rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. In his famous passage, Lord Diplock in Attorney General v. Times Newspapers Ltd. (1973) 3 All.E.R. 54 said that there is also "an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity". Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.

No person can defy Court's order. Wilful would exclude casual, accidental bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of Court's order must allege deliberate or contumacious disobedience of the Court's order.

28. Learned counsel for the respondents heavily relied upon Sandhya

Mukhi (supra) wherein a Single Judge of this Court had dismissed

the contempt petition on similar grounds. More particularly, counsel

has relied upon para 20 of this judgment. A careful reading of this

judgment would show that the Court was not satisfied that the

husband had willfully and with deliberate intention snatched the bail

order. The Court has further held that the court did not merely

consider the settlement while granting bail but it also went into the

circumstances and concluded that the facts of the case did not

warrant a custodial order.

29. In this case, the learned Single Judge was not allowed to go into the

facts and circumstances of this case as is apparent from reading of

the order dated 23.10.2007 but a bail order was snatched and the

Court mislead into passing an order of bail on the submission and

assurance given by the respondent that a settlement had been arrived at. Accordingly, the case of Sandhya Mukhi (supra) can be

of no help, aid and assistance to respondent no.1.

30. Another submission, which has been raised by counsel for the

respondents is that there has to be a time gap of 6 months between

the first and the second motion as per Section 13(b) of the Hindu

Marriage Act and further the first motion could not be filed as one

year of separation has not elapsed. This aspect of the matter was

also taken into account by the parties at the time of signing the

settlement agreement which is evident from Agreement, relevant

portion of which reads as under:

WHEREAS after the marriage, some dispute arose between the parties to this agreement result of which both the parties started living separately and second party wife started living with her parents w.e.f. 27.02.2007

4. That as per law mutual divorce cannot be filled before 27.02.2008, therefore it has been agreed between the parties that the remaining amount of Rs.4.5 lakhs is to be paid to the second party in the form of FDR with a nationalized bank.

31. Accordingly the submission of counsel for respondent no.1 is

without any merit in view of the fact that petition for mutual consent

was to be filed only after the period of one year of separation, which

is evident from Clause 4 of the Agreement which is reproduced

above.

32. It may also be noticed that respondent no.1 has not signed the first

motion it cannot be said that the second motion would have been

filed without the gap of six months. This submission is also accordingly rejected. Since there is no quarrel with regard to the

proposition that there has to be gap of six months between the first

motion and the second motion, the judgment relied upon by counsel

for the respondents Smt. Sureshta Devi Vs. Om Prakash,

reported at (1991) 2 SCC 25 as also Anil Kumar Jain (supra)

require no discussion as in this case the first motion was not signed

by the parties.

33. It has also been submitted by counsel for respondent no.1 that in

view of the fact that application filed by the petitioner for

cancellation of bail has been rejected, the contempt would not be

maintainable. This submission of counsel for respondent no.1 is also

without any merit. The learned Single Judge has deprecated the

conduct of respondent no.1 in the order dated 23.3.2009 relevant

portion of which reads as under:

5. To this Court it appears that the very basis on which the anticipatory bail was granted has been unable to be worked out on account of the conduct of the respondent no.1. If Respondent No.1 had a rethinking in the matter and was not willing to go ahead with the terms of settlement, the least that he could have done was to file an application in this Court seeking modification of the order dated 23rd October 2007. Instead Respondent no.1 decided that he would not proceed with the settlement and filed an application under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. This conduct of the respondent requires to be deprecated since the very basis of granting him anticipatory bail was that he would abide by the settlement recorded by this Court in its order dated 23rd October 2007."

34. Learned Single Judge while disposing of the application directed that

the charge sheet be filed by 28.4.2009 and thereafter the regular

bail application of respondent no.1 be considered soon thereafter. A further condition was imposed that respondent no.1 would hand

over to the IO the FDRs of Rs.4.5 lakhs within one week. The

submission made by counsel that the petitioners would be

disentitled to any relief in this petition on the ground that on a false

pretext the FDR of Rs.4.5 lakhs, which was to remain with the IO,

has been encashed by the petitioner is also without any merit in

view of the fact that FDRs were handed over to the petitioner herein

by an order dated 23.12.2009, which reads as under:

23.12.2009

Present: Mr. B.B.Malhotra proxy counsel for the petitioner.

Mr.Jaideep Malik, APP for the State.

Mr.Deepak Kumar, Adv. for respondent no.2.

Crl.M.C.No. 3544/2009 and Crl.M.A.NO.11959/2009

1. Proxy counsel for the petitioner states that the matter is coming up before the Mediator on 11.1.2010. This fact is not disputed by the learned counsel for the respondent no.2.

2. It has been contended by the learned counsel for the respondent no.2 that an amount of Rs.4,50,000/- is lying with the IO by way of an FDR. The same may be released to the respondent no.2. The aforesaid FDR is stated to have been expired.

3. Let the said FDR be got renewed by the petitioner/IO within 15 days from today and thereafter the said amount shall be released to the respondent no.2 without prejudice to the rights and contentions of both the parties.