Himachal Pradesh High Court
Sangita Sharma vs Unknown on 17 October, 2022
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION No. 474 OF 2022
IN
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 191 OF 2016
Between:-
1. SANGITA SHARMA, W/O SHRI ROHIT
KALIA, D/O SHRI SOM NATH SHARMA,
RESIDENT OF VILLAGE KANTE, P.O.
BHADAURI, TEHSIL HAROLI, DISTRICT
UNA, H.P.
2. MASTER ADVIK SHARMA, MINOR, S/O
SMT.SANGITA SHARMA W/O SHRI ROHIT
KALIA, D/O SHRI SOM NATH SHARMA,
RESIDENT OF VILLAGE KANTE, P.O.
BHADAURI, TEHSIL HAROLI, DISTRICT ...NON-
UNA, H.P. APPLICANTS/PETITIONERS
(BY SH. Y.P. SOOD, ADVOCATE, ADVCATE.)
AND
ROHIT KALIA, S/O SHRI BALDEV RAJ
KALIA, RESIDENT OF HOUSE NO. 2567/1,
SECTOR 44-C, CHANDIGARH. ...APPLICANT/RESPONDENT
(BY SH.JIYA LAL BHARDWAJ, ADVOCATE.)
Whether approved for reporting?
This petition coming on for orders this day, the Court passed
the following:
ORDER
This application has been filed seeking direction to non-
applicant/petitioner No. 1 to implement the direction contained in judgment
dated 24.5.2021 passed in Cr.M.P. No. 1183 of 2018 in Cr.MMO No. 191 of
2016. Applicant-respondent is husband and non-applicant/petitioner is wife.
2. Pending adjudication Cr.MMO No. 191 of 2016, between parties
matter was referred for mediation, and during mediation proceedings husband
and wife had agreed not to pursue the issue involved in Cr.MMO No. 191 of
2016 and also other matters pending intra them and had agreed to close all
the matters pending in various Courts against each other with further
understanding that in HMA No. 166 of 2017 pending in the Court of District
.
Judge, Una, titled Sangita Sharma Vs. Rohit Kalia, a decree for dissolution of
marriage will be passed with mutual consent between the parties on the basis
of settlement arrived at, and all other matters referred supra and also appeals,
revisions, applications etc. arising thereto shall be deemed to have been
withdrawn without any further consequence and adjudication as a result of
compromise and parties were granted liberty to place on record the
compromise in various Courts.
3. On 24.5.2021 Cr.M.P No. 1183 of 2018 was decided alongwith
Cr.M.P. Nos. 413 of 2019, 686 of 2020 and Contempt Petition No. 81 of 2019
and all these applications, alongwith Contempt Petition were disposed of in
terms of compromise with terms enumerated in the said order.
4. Term (xx) in para 28 of the aforesaid order reads as under:-
"(xx) For any practical difficulty in complying with the aforesaid
directions, parties are at liberty to approach the Family Court/District
Court, as the case may be."
5. In para 29 of the aforesaid order, parties have also been granted
liberty to approach the Family Court/District Court as the case may be, to
alter, vary or modify the aforesaid terms and conditions, mechanism and
manner of exercise of visitation right for plausible reasons existing on dat,e
with further direction to the Family Court/District Court to exercise its
jurisdiction to adjudicate the issue before it on its own merit under the
Guardians and Wards Act, 1890 or any other law dealing with issue including
visitation right, but keeping in view the interest of child at the foremost without
being influenced by term and conditions settled by this Court.
6. From submissions of learned counsel for the parties it has
transpired that father has filed petition/application before Family Court seeking
custody of child as well as an application for interim custody of the child on
the ground of deliberate and intentional disobedience/non-compliance of
terms and conditions and orders passed by the Court by the mother in whose
.
custody, at present child is and the mother has also preferred a petition for
modification of terms for omitting the term of overnight custody of child to the
father on various grounds.
7. Undisputedly, proceedings pending in this Court including
Cr.MMO No. 191 of 2016 were not original proceedings, filed in this Court, but
were proceedings arising out of original proceedings of the trial court initiated
under Section 125 of Cr.P.C. for grant/enhancement/reduction of
maintenance. Matters compromised during Mediation also include divorce
petition HMA No. 166 of 2017 which was pending adjudication before District
Judge, Una under Hindu Marriage Act. Jurisdiction with respect to such
matters, after constitution of Family Courts has now been transferred to the
Family Courts. Matters decided in this Court including order dated 24.5.2021
passed in the application are matters arising out of proceedings of the Court
of first instance, i.e. Family Court now. Therefore, the orders passed by this
Court are to be executed by the Court of first instance, wherefrom petition
preferred in this Court, had arisen. Earlier, it were District Court and
Magistrate's Court, but now jurisdiction of all these matters have been
transferred to Family Court. Thus now any execution of order passed in this
matter shall lie before the Family Court, District Una, H.P. In term (xx) in
para 28 read with para 29 of the order dated 24.5.2021 also, such application
shall lie before the Family Court, District Una, H.P.
8. In view of above discussion, and also taking into consideration
the various pending applications/petitions filed by both sides in the Family
court related to the same issue, present application is disposed of with liberty
to the applicant to avail appropriate remedy in the light of aforesaid
observation by approaching the Court at first instance in accordance with law.
The application stands disposed of.
.
Cr.M.P. No. 2695 of 2022
9. This application has been filed on behalf of mother for release of
amount of interest accrued on the FDR of the amount deposited by father in
the Registry of this Court in compliance of order dated 21.4.2018.
10. It is an admitted fact that as per term No. (xii) of terms and
settlement arrived at between the parties on 19.4.2017, which were made part
of order dated 21.4.2018, father had agreed and undertaken to deposit
3,50,000/- in the Fixed Deposit in the name of minor child, identifying his
name as 'Yuvan Kalia alias Aadvik Sharma', in the nationalized Bank and
parties had agreed that the said amount of FDR will not be withdrawn and
encashed till attaining age of 18 years by the child whreafter the child will be
entitled to encash and withdraw the amount and to use and utilize the same at
his discretion, however till then, periodical interest accrued from the said FDR
will be released to the mother for spending the same exclusively on the
welfare and upbringing of the child.
11. In consonance with aforesaid terms, father deposited
3,50,000/- in the Registry of this Court, which has been invested by the
Registry as per rules in Nationalized Bank in October, 2018. Since then the
amount is lying deposited alongwith interest accrued thereon in the Bank, as
no amount, till date, has been released in favour of mother.
12. It has been contended on behalf of mother that earlier mother
did not file any application for release of any amount as it was manageable for
her to meet the expenses for upbringing and education of the child, but now
due to some unavoidable reason, she is facing some problem and, therefore,
for meeting the expenses for welfare of child including his school fee and
other charges of the school for continuation of his study, she is in dire need of
money and this application has been filed for release of amount in terms of
settlement.
.
13. Learned counsel appearing for father has opposed release of
any amount by stating that mother has not complied with other terms and
conditions of the compromise resultantly father has been compelled to file
petition/application for custody/interim custody of child in Family Court, and
further on the ground that fee of the child i.e. 12,630/- for the period of
September, 2021 to March, 2022 was paid by father on 29.3.2022, which was
to be paid by mother and father is ready to pay all expenses for upbringing
and study of child, subject to handing over custody of child to him and in that
eventuality he shall not withdraw any amount from the aforesaid FDR of
3,50,000/- or interest accrued thereon.
14. It has further been contended that FDR was to be made in the
name of 'Yuvan Kalia alias Aadvik Sharma' after correction of name of child,
but mother has failed to comply with the said direction and, therefore, she
would not be entitled to release of amount in any manner for breach of terms
and conditions.
15. Couple has a school going child. Term No. (xii) referred supra
has been incorporated in the agreement of settlement for welfare of the child
and mother was granted right for release of periodical interest accrued on the
FDR. As mother did not file any application for release of such amount in her
favour, no amount has been released to her till date. Payment of fee by the
father for a period from September, 2021 to March, 2022 on 29.3.2022
indicates that mother was not able to pay the same. So far as change of
name of child is concerned, both sides are blaming each other for non-
compliance of term relating to correction/change of name of the child. Be that
as it may, it is undisputed that amount was deposited for welfare of the child
with condition of release of periodical interest to be spent for his welfare. The
amount has been invested in the name of Registrar of High Court of H.P.
16. For welfare of the child to meet expenses of his study and other
.
needs, apart from expenses incurred by his mother from her own resources,
some amount out of interest accrued on principal amount can be released to
mother, who, as agreed in term No. (xii) referred supra, is entitled also for
interest accrued on the amount deposited. However, as till date no need had
arisen for release of amount, therefore, in lump sum an amount of 40,000/- is
directed to be released to the mother during December, 2022, after date of
maturity of FDR, by remitting the same in her bank account mentioned in para
3 of the application with direction to her to render the accounts about
expenditure thereof by filing an affidavit before the Family Court with further
condition that balance amount as would be existing on the date of release
shall be considered as principal amount and no amount out of that shall be
released in future, without leave of the court. However, mother in term No.
(xii) shall be entitled for release of periodical interest if she requires the same,
by filing appropriate application before the Family Court out of interest
accrued in future.
17. Amount lying deposited in the Registry of this Court is also
directed to be remitted to the Family Court for investing the same at Una in
Nationalized Bank in consonance with rules in the name of Presiding Officer,
Family Court or as permissible under rule/procedure. The same shall be at
the disposal of Family Court in terms of compromise arrived at between the
parties and interest which would be accruing thereon shall be utilized for
welfare of the child. In case, necessity to release the periodical interest is not
fell by mother in future, such interest component may be merged in principle
amount. Registry is also at liberty to manage release/transmission of the
amount in furtherance to this order in such a manner, so as to cause minimum
loss of interest, accruing on the amount deposited and interest already
accrued thereon.
The application stands disposed of.
.
(Vivek Singh Thakur),
th
17 October, 2022 Judge.
(Keshav)
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