Raju Kushwah vs The State Of Madhya Pradesh
2023 Latest Caselaw 9642 MP

                                 1
 IN    THE      HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                      ON THE 26 th OF JUNE, 2023
              MISC. CRIMINAL CASE No. 27307 of 2023

BETWEEN:-
1.    RAJU KUSHWAH S/O SHRI             VIJAY SINGH
      KUSHWAH,    AGED   ABOUT           25   YEARS,
      OCCUPATION: LABOUR

2.    VIJAY SINGH KUSHWAH S/O LATE SHRI
      GYASIRAM KUSHWAH, AGED ABOUT 61 YEARS,
      OCCUPATION: MAJDURI

3.    SMT PANCHO BAI W/O SHRI VIJAY SINGH
      KUSHWAH,    AGED   ABOUT    57  YEARS,
      OCCUPATION: HOUSEWIFE
      ALL PETITIONERS R/O SIKANDAR KAMPOO
      VEERPUR BANDH PURANI BORING KE PAAS
      LASHKAR, GWALIOR (MADHYA PRADESH)

                                                           .....PETITIONERS
(BY SHRI DEEPAK GUPTA - ADVOCATE)

AND
1.    THE STATE OF MADHYA PRADESH THROUGH
      POLICE STATION MAHILA THANA PADAV,
      DISTRICT GWALIOR (MADHYA PRADESH)

2.    SMT PALLAVI KUSHWAHW/O SHRI RAJU
      KUSHWAH D/O SHRI MUNNALAL KUSHWAH,
      AGED   ABOUT      28  YEARS, OCCUPATION:
      HOUSEWIFE, R/O GUDA GUDI KA NAKA NADRIYA
      KI MATA BIJASEN MATA MANDIR, LASHKAR,
      GWALIOR (MADHYA PRADESH)

                                                          .....RESPONDENTS
(SHRI G.S.CHAUHAN - PP FOR RESPONDENT NO. 1/STATE AND SHRI
KSHITIZ SHARMA- ADVOCATE FOR RESPONDENT NO. 2 )

      This application coming on for admisison this day, the court passed the
following:
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                                     ORDER

This M.Cr.C. under Section 482 of the Cr.P.C is directed against the impugned order dated 24/2/2023 by which the Trial Court has declined to waive of the cooling period off six months, as contemplated in amended Section 320(2) of the Cr.P.C referable under Section 498-A of the IPC where under the said offence earlier non compoundable, has been made compoundable but with the condition that minimum period of six months should elapse from the date of application for compounding the offence but same shall be in the interest of woman.

Factual background led to filing of the application under amended

Section 320 (2) of the Cr.P.C is to the effect that marriage between the petitioner no. 1 and respondent no. 2/complainant was solemnized on 5/5/2015. However, due to ill habits, petitioner used to demand dowry from respondent No. 2 and therefore both parties could not live long as married couple and separated themselves.

It also appears that complainant lodged an FIR at Crime No.240/2019 at Police Station Mahila Thana Padav, Gwalior (M.P.) against the petitioners under Section 498-A of the IPC and other sections. With the passage of time, wisdom prevailed upon the parties and both of them decided to resolve the dispute and differences between them on the principle that if they can not live as friend, they should depart like friends. Under such circumstances, a joint application was filed with the prayer waiving of the cooling period of six months and for compounding the offence. The Trial Court declined to do for want of authority in law under the amended provision (Supra).

Counsel for the petitioners and counsel for the complainant submits that similar provision of cooling off period is also provided under Section 13B of

the Hindu Marriage Act, before grant of decree of divorce on mutual consent. The Hon'ble Supreme Court while interpreting the said provision has ruled that requirement of observing of six months cooling period is not mandatory and therefore in the given case, the concerned Court may consider to waive off cooling period in the interest of justice and parties. He relied upon the judgment of Amardeep Singh Vs Harveer Kaur delivered AIR 2017 4417.

Counsel for the parties submits that this Court may consider to invoke the inherent jurisdiction for waiving off cooling period in the light of judgment of the Hon'ble Supreme Court in Amardeep Singh (Supra).

Submissions advanced by learned counsel for the parties duly considered. There is no cavil of doubt that petitioners and complainant are before this Court through their respective counsel. Both of them are praying for cooling off the period of six months and for compounding the offence of 498- A of the IPC and Section 3 of Dowry Prohibition Act so that they may pursue their petition for divorce on mutual consent filed under Section 13-B of the Hindu Marriage Act before the competent Court and the same is pending.

In the peculiar facts and circumstances, this court finds substantial force in the submission of counsel for the parties.

Hence, relying upon the judgment of Hon'ble Apex Court in the case of Amardeep Singh (Supra) six months cooling off period as contemplated

under the amended Section 320(2) of the Cr.P.C provided for compounding the offence under Section 498-A of the IPC is hereby waived off.

The Trial Court is directed to proceed to complete the proceedings of compounding offence in accordance with law.

With the aforesaid observation, the M.Cr.C. stands disposed of.

JAI Digitally signed by JAI PRAKASH SOLANKI

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,

PRAKASH ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9e38ce14fcb b05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193780D8357, serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433EBD48AE4F

SOLANKI 609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI

(ROOPESH CHANDRA VARSHNEY) Date: 2023.06.27 10:00:15 +05'30'

JUDGE JPS/-