Delhi High Court
Udai Shankar Shah @ Udai Shankar ... vs Manju on 3 November, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 3rd NOVEMBER, 2016
+ CRL.M.C. 1047/2016
UDAI SHANKAR SHAH @ UDAI SHANKAR SHAW & ORS.
..... Petitioners
Through : Mr.Rajesh Kumar, Advocate with
Mr.Mukesh Kumar, Advocate along
with petitioner No.1 in person.
versus
MANJU ..... Respondent
Through : Mr.Jatin Rajput, Advocate with
Mr.Vikram Mathur, Mr.Rajender
Pratap & Mr.Atul Mishra, Advocates.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
1. Present petition under Section 482 Cr.P.C. has been preferred
by the petitioners for quashing of the Complaint Case No.455/2003
instituted under Section 12 Protection of Women from Domestic Violence
Act, 2005 (In short 'DV Act') pending before the Court of learned
Metropolitan Magistrate. Petition is contested by the complainant/
respondent.
2. I have heard the learned counsel for the parties and have
examined the file. Undisputedly, the parties had settled their disputes before
Counselling Cell, Family Courts, Rohini, on 25.09.2014. Terms and
conditions of the settlement were incorporated therein. Pursuant to the
settlement, the parties moved the Court seeking divorce by mutual consent.
First motion petition was allowed on 29.11.2014. The complainant also
withdrew petition under Section 125 Cr.P.C.
3. Admitted position is that subsequent to the grant of first motion,
the complainant did not appear to give consent for divorce by mutual
consent by filing second motion petition. Complainant's counsel urged that
terms and conditions agreed to at the time of settlement were not properly
understood by the complainant and she was not aware that her daughter
would forfeit all her rights.
4. The matter was settled by the complainant before Counselling
Cell on 25.09.2014. Comprehensive terms and conditions of settlement
were incorporated therein. It was partly acted upon. The parties filed first
motion petition for seeking divorce by mutual consent and `1.30 lac as
agreed were paid to the complainant. However, the complainant changed
her mind and did not co-operate in moving joint petition for second motion.
She even did not withdraw the complaint case instituted under Section 12 of
the DV Act.
5. Since the matter was settled by the complainant with her free
consent and the settlement agreement was signed before the Counsellor,
Family Court, the complainant cannot be permitted to back out and continue
with the proceedings instituted under Section 12 of the DV Act. Record
reveals that the complainant is not taking keen interest to pursue the
complaint case and on various dates has not bothered to appear before the
Trial Court. The proceedings pending before the Court under Section 12 of
the DV Act cannot be used for harassment to the petitioners who are resident
of West Bengal. The complainant cannot be permitted to deviate from the
settlement; it would be an abuse of the process of the Court if the criminal
proceedings are allowed to continue.
6. In view of the above, the proceedings instituted under Section
12 of the DV Act pending before the Court of learned Metropolitan
Magistrate are quashed.
7. Regarding directions to the complainant to consent for divorce
by mutual consent, in my view, she cannot be forced to give consent for
divorce by mutual consent. Under Section 13(B) of the Hindu Marriage Act,
consent of both the parties for mutual divorce must continue till the decree is
finally passed. In the event, either of the parties withdraw the consent
before passing the final decree, the petition cannot survive and is liable to be
dismissed.
8. The petitioners shall be at liberty to avail appropriate legal
remedies available to them against the complainant for violating the terms
and conditions of the settlement.
9. The petition stands disposed of in the above terms.
(S.P.GARG)
JUDGE
NOVEMBER 03, 2016 / tr
