Punjab-Haryana High Court
Jyoti vs Akshat Sharma on 29 August, 2013
Author: S.S. Saron
Bench: S.S. Saron
CMM No. 125 of 2012 in/and
FAO No. M-145 of 2012 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CMM No. 125 of 2012 in/and
FAO No. M-145 of 2012 (O&M)
Date of decision : 29.08.2013.
Jyoti
.....Appellant
v.
Akshat Sharma
.....Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE S.P. BANGARH.
Present : Mr. Rajesh Bansal, Advocate
for the appellant with appellant Jyoti in person.
None for the respondent.
***
S.S. SARON, J.
The case was passed over in the pre lunch session, to await appearance of the respondent who is an advocate and had on the last date of hearing and a date earlier to that appeared in person. However, the respondent has not appeared. He is, therefore, proceeded against ex parte and the appeal is being disposed of.
The marriage between the parties was solemnized on 29.05.2010 at BBMB Colony, Panipat according to Hindu rites and ceremonies. Matrimonial disputes arose between them and a joint petition was filed by Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 2- the parties under Section 13-B of the Hindu Marriage Act, 1955 ('Act'- for short) on 10.10.2011 seeking dissolution of the marriage between them by a decree of divorce by mutual consent. On the same day i.e on 10.10.2011, statements of the parties at the first motion were recorded. At the time of second motion, the appellant-wife reiterated her prayer for grant of divorce by mutual consent. However, the respondent-husband did not agree to give his consent for divorce by mutual consent. Accordingly, the learned Additional Civil Judge (Sr.Divn.), Panipat; exercising the powers of District Court under the Act, dismissed the petition seeking divorce by mutual consent on 15.05.2012. Aggrieved against the same, the appellant-wife has filed the present appeal.
Notice of motion was issued on 28.05.2012 for 23.08.2012. On 23.08.2012, Mr. Tapan Yadav, Advocate for Mr. Jai Vir Yadav, Advocate appeared for the respondent. The case was adjourned to 01.10.2012 for arguments and record of the trial Court was requisitioned.
The appellant-wife filed CMM No. 125 of 2012 under Section 24 of the Act for grant of maintenance pendente lite. On 17.09.2012 notice was issued in the said CMM to the non-applicant/respondent-husband for the date already fixed i.e. 01.10.2012. On 01.10.2012, Mr. Jai Vir Yadav, Advocate appearing for the respondent-husband prayed for time to file reply to the application under Section 24 of the Act and the case was adjourned to 12.10.2012 for filing reply/arguments. On 12.10.2012, last opportunity was granted to the learned counsel for the respondent-husband to file reply to the application under Section 24 of the Act. The case was adjourned to 06.12.2012 for reply/arguments. On 06.12.2012, none appeared for either Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 3- of the parties and the case was adjourned to 13.12.2012. On 13.12.2012, it was made clear to the learned counsel for the respondent-husband that in case reply was not filed and respondent was not present in Court, appropriate orders would be passed and the case was adjourned to 19.12.2012. On 19.12.2012, reply was filed on behalf of the respondent in Court by his counsel, which was taken on record and the case was adjourned to 29.01.2013 for arguments. On 29.01.2013, counsel for the respondent was not present and the case was adjourned to 14.02.2013. On 14.02.2013, counsel for the applicant/appellant-wife prayed for time to rebut the averments of the respondent in the reply that she was working in Dayal Singh College, Karnal. The case was adjourned to 25.03.2013. In the meantime, the litigation expenses were assessed at Rs.11,000/- to be paid by the respondent on the next date of hearing. On 25.03.2013, counter reply filed by the applicant/appellant-wife to the allegations levelled by the respondent against the applicant/appellant was taken on record. The applicant/appellant-wife was present in Court and she stated that she was not ready to live with the respondent on any condition whatsoever. The case was adjourned to 26.04.2013 for arguments on the application under Section 24 of the Act, as well as for payment of litigation expenses. On 26.04.2013, learned counsel for the applicant/appellant appeared but no one appeared for the respondent. The case was adjourned to 09.05.2013 for arguments. The parties were directed to appear in person on the said date. On 09.05.2013, a joint affidavit deposed and signed by the parties was filed and statements of the parties were recorded. This aspect of filing a joint affidavit and recording of statements is, however, not mentioned in the Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 4- order passed on 19.05.2013 and it is only mentioned that at request, adjourned to 15.05.2003 and the parties were directed to be present on the next date of hearing. In any case, the appellant-wife in her statement inter alia stated that her affidavit jointly filed with Akshat Sharma (respondent) be read as her statement for the second motion; besides, she shall withdraw all litigations initiated or filed by her or at her behest against Akshat Sharma (respondent) and his family and/or family members. The said statement was signed by the appellant-wife. Akshat Sharma (respondent) also made a similar statement that his affidavit jointly filed with Jyoti (appellant) may be read as his statement in second motion. He inter alia stated that he shall withdraw all litigations initiated or filed by him or at his behest against Jyoti (appellant) and her family and/or family members. The said statement after it was made by the respondent was, however, not signed by him and it appears that after getting his statement recorded he refused to sign the same. The learned Judges of the Division Bench hearing the matter also did not append their signatures to the statements referred to above of the parties although these are on record. In this manner though both the parties made their respective statements for the second motion and the appellant-wife signed her statement but the respondent-husband did not sign his statement. The case was adjourned to 15.05.2013 and the parties were directed to be present in person on the next date of hearing. On 15.05.2013, it was recorded by the Bench that there appeared to be no possibility of a settlement and for arguments on the application for maintenance the case was adjourned to 23.07.2013. On 23.07.2013, the Bench hearing the case ordered that the case be listed before some other Bench after obtaining Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 5- orders in this regard from Hon'ble the Chief Justice. On the said date i.e. 23.07.2013, no counsel appeared for the respondent and the respondent appeared in person.
The case was then listed before this Bench on 12.08.2013, on which date the following order was passed in the presence of learned counsel for the appellant and the respondent in person:-
"The respondent is an advocate and is appearing in person. The case has a chequered history.
The marriage between the parties was solemnized on 29.05.2010 at BBMB Colony, Panipat according to Hindu rites and ceremonies. Thereafter, a joint petition was filed by the parties under Section 13-B of the Hindu Marriage Act, 1955 on 10.10.2011 seeking dissolution of the marriage between the parties by a decree of divorce. On the same day i.e on 10.10.2011, statements of the parties at first motion were recorded. The appellant had lodged FIR No. 861 dated
24.09.2011 at Police Station Chandni Bagh, District Panipat against the respondent alleging commission of offences under Sections 498-A, 506 and 323 of the Indian Penal Code (IPC-for short). The respondent was granted anticipatory bail on 10.10.2011 itself primarily in view of the compromise that had been reached at between the parties. The appellant had also filed a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which was withdrawn by her on 12.11.2011. Her counsel made a statement that she would be at liberty to revive the case, in case, the respondent does not consent for grant of divorce by mutual consent at the second motion. According to the respondent, he is not aware whether the case has been revived or not. When the mutual consent divorce petition came up for hearing at the time of second motion, the appellant reiterated her prayer for grant of divorce Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 6- by mutual consent. However, the respondent did not agree and did not give his consent for divorce by mutual consent. Accordingly, the learned Additional Civil Judge (Sr.Divn.), Panipat exercising the power of District Court under the Hindu Marriage Act, dismissed the petition seeking divorce by mutual consent on 15.05.2012.
Aggrieved against the same, the appellant has filed the present appeal.
During the pendency of the appeal in this Court a joint affidavit dt. 10.05.2013 was filed by the parties, in which the respondent inter alia stated that he was ready to make a statement for grant of divorce at the second motion with the condition that the appellant would be bound to withdraw all the cases pending against him including the petition under Section 125 of the Code of Criminal Procedure and the Protest petition filed by her in the case under Sections 498-A, 323 and 506 IPC pending before the learned trial Court at Panipat. It was also agreed that the appellant would withdraw her cases filed against the respondent and his family members on or before 11.05.2013. However, according to the respondent, the appellant did not withdraw the cases on 11.05.2013 and therefore, he at the second motion did not make the necessary statement.
Statement of the respondent has been recorded on oath today in Court. He has inter alia stated that in case the respondent withdraws all the cases against him and his family members preferably by 20.08.2013 and latest by 27.08.2013, he would have no objection to make a statement at the second motion and in case he does not make such a statement, the appellant would be at liberty to revive all her cases.
Learned counsel for the appellant submits that all the cases would be withdrawn by 20.08.2013 and latest by 27.08.2013.
Amit Kaundal2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 7- The respondent, during the course of hearing, submits that in fact one of the relatives of the appellant namely Sh.Subhash Gaur is an employee in the District Courts at Panipat and he is not letting the compromise being effected.
Learned counsel for the appellant submits that this is not true, however, he would ensure that there is no such resistance by any relative.
To enable the appellant to withdraw the cases that have been filed by her against the respondent and for recording her statement and undertaking that she would not revive the same and also for recording the statement of the respondent, the case is adjourned.
The parties to be present in Court on the adjourned date. The records of the trial Court in respect of mutual consent divorce be requisitioned telephonically List for hearing on 29.08.2013."
The respondent-husband in his statement that was recorded on 12.08.2013 had undertaken that in case the appellant-wife withdraws all the cases against him and his family members in a few days and she also undertakes not to file a fresh case thereafter against him and his family members, he would be willing for giving his consent at the second motion and in case he does not give his consent at the second motion, then the appellant would be at liberty to revive all the cases and this Court may order so. He had desired that the cases be withdrawn within a prescribed period and preferably by 20.08.2013 and if they could not be withdrawn by 20.08.2013 they be withdrawn by 27.08.2013. He was making his statement of his own free will and desire and without any kind of pressure or influence of anyone. He (respondent) also admitted the filing of the joint affidavit Amit Kaundaldated 09.05.2013, which was tendered in evidence as Ex.C1. 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh
CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 8- Today, as already noticed, the respondent has not appeared and neither is there any representation on his behalf.
Learned counsel for the appellant has tendered certified copies of the statements of the appellant-wife made before the learned Additional Chief Judicial Magistrate, Panipat on 19.08.2013 in proceedings under Section 125 of the Code of Criminal Procedure (Cr.P.C- for short). The said statement is to the effect that she wishes to withdraw her case in view of order dated 12.08.2013 passed by this Court. The learned Additional Chief Judicial Magistrate, Panipat vide order dated 19.08.2013 dismissed as withdrawn the petition under Section 125 Cr.P.C bearing petition No. 47/3 of 2012 filed on 16.07.2012. The appellant-wife also made a statement in the Court of the learned Judicial Magistrate Ist Class, Panipat on 19.08.2013 in terms of which, she stated that her protest petition in complaint case No. 156/12 against the respondent and his family members be dismissed as withdrawn keeping in view the order dated 12.08.2013 passed by this Court. In view of her said statement, the protest petition was dismissed as withdrawn and the accused namely Akshat Sharma (respondent), Murlidhar Sharma and Shail Sharma were discharged. Learned counsel for the appellant-wife has also submitted that another criminal case bearing no. 44 of 2011 filed on 14.09.2011 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was earlier withdrawn on 12.11.2011.
We are fully satisfied that the conduct of the respondent has been irresponsible and regrettable. Being an advocate and by making a statement on oath, he has got the criminal cases and complaints against him and his family members dismissed as withdrawn from the appellant but has not Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 9- performed his part of the compromise in accordance with his statement and has not appeared for the purpose of giving his consent at the second motion. Even if he was not to give his consent at the second motion, he ought to have at least put in appearance and explained his difficulties or compulsions, if any. The Court would have considered these and passed necessary and appropriate orders after due consideration. However, by not appearing and that too after the respondent has withdrawn all the cases against him which was his pre-condition it is indeed an unfortunate and an irresponsible act on his part.
In the circumstances, this Court in exercise of its inherent powers under Section 482 Cr.P.C. and on the basis of the statement of the respondent himself made on the last date of hearing on 12.08.2013, considers it just and expedient that all the three cases referred to above be restored on their respective original numbers and proceeded with further and decided in accordance with law from the respective stages they were when withdrawn. It is submitted by the learned counsel for the appellant that in fact, the cancellation report was filed in the FIR case in view of the settlement that had been reached at between the parties. It is submitted that a complaint dated 17.09.2011 was filed in the Court of learned Judicial Magistrate Ist Class, Panipat and in terms of the provisions of Section 156 (3) Cr.P.C., FIR No. 861 dated 24.09.2011 for the offences punishable under Sections 323, 498-A and 506 IPC was registered at Police Station Chandnibagh, Panipat. The cancellation report in respect of the same was submitted vide diary No. 7 dated 09.12.2011, in view of the settlement reached at between the parties. The appellant-wife filed a protest petition Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 10- against the cancellation report after the respondent had backed out from the compromise. The said protest petition was pending, which has also been withdrawn in view of the statement made by the respondent in this Court on the last date of hearing i.e. on 12.08.2013. However, since the basis of the filing of the cancellation report was the compromise, it is submitted that the cancellation report should not be accepted.
In the circumstances, we are of the view that the cancellation report filed by the Police of Police Station Chandnibagh, Panipat should be returned by the concerned learned Magistrate to the police for carrying out further investigations in the matter.
It may also be noticed that the respondent has not paid Rs. 11,000/-, that was ordered to be paid to the appellant towards litigation expenses vide order dated 14.02.2013. The appellant shall be entitled to recover the said amount by way of execution in the learned trial Court. As regards interim maintenance, it may be noticed that in the application CMM No. 125 of 2012 for grant of maintenance pendente lite, the appellant has claimed maintenance pendente lite of Rs.25,000/- per month and Rs.55,000/- as litigation expenses. The said application was filed on 29.08.2012. In the application, it was inter alia stated by the appellant that her parents had spent Rs.15,00,000/- at the time of her marriage. The respondent was earning Rs.50,000/- per month and was also having agriculture income, therefore, the appellant is entitled to Rs.25,000/- per month as maintenance and Rs.55,000/- as litigation expenses.
In reply the respondent inter alia stated that the family members of the appellant held out threats to his family that they would file false civil Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 11- and criminal cases under Sections 498-A, 323, 506 and 406 IPC. That is why everything including 'streedhana' was given back to the appellant on 20.12.2010 as per agreement. The respondent was not demanding any amount from the appellant or her family members for filing mutual divorce. It is also submitted that the appellant is an educated lady and was working in Dayal Singh College, Karnal. She was earning Rs.10,000/- per month during her stay in his house. She was not at the mercy of her parents; besides, it is stated that in the grounds of appeal, it is mentioned in para 2
(vii) that her father gave her a FDR of Rs.3,50,000/-. The appellant was getting interest @ 10.25 % on the FDR every month. A mention has also been made to the various cases initiated by the appellant which it is submitted are false. It is stated that as a newly practising advocate in the District Courts, Karnal, it was false that he (respondent) was earning Rs.50,000/- per month; besides, he did not have any agriculture land. It is stated that the respondent was not in a position to pay any kind of maintenance or litigation expenses to the appellant-wife and she had rather willfully neglected him from 07.09.2010 till date as per DDR No. 50. It is submitted that instead of giving relief to the appellant, relief may be given in favour of the respondent and litigation expenses of Rs.65,000/- may be granted in favour of his counsel, on account of unnecessary litigation created by the appellant.
The appellant filed a rejoinder to the reply of the respondent and she denied the allegations. It is denied by the appellant that she was doing a job in Dayal Singh College, Karnal and earning Rs.10,000/- per month. It is submitted that she was forced to do the job when she was in her matrimonial Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 12- home. Thereafter she was turned out from her matrimonial home and at present she was not doing any job in Dayal Singh College, Karnal or at any other place. The appellant at her parental home was at the mercy of her parents. She has deposed her affidavit in support of her reply.
The facts and circumstances it may be noticed are that the respondent himself has claimed litigation expenses of Rs.65,000/- for the unnecessary litigation which according to him the appellant has created. The said amount mentioned by him is indicative of the fact that the parties have a good status and the respondent has means to maintain the appellant. The question regarding the appellant getting interest on the FDR of Rs.3,50,000/- , it may be noticed that in para 2 (vii) of the grounds of appeal, the appellant has mentioned that she filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against the respondent, her father-in-law and mother-in-law as also her brother-in-law in which it was specifically stated that a huge amount of Rs.15,00,000/- had been spent on the engagement and marriage and some household articles, furniture, jewellery with cash of Rs.1,00,000/- for 'Shagun Kanyadaan' and on the wish of the respondent and his family members Rs.3,50,0000/- was given to them by way of FDR in the name of the appellant for purchasing a car. Therefore, the said amount was given according to the appellant in her name for purchasing a car and it was given to the respondent and his family members. Be that as it may, keeping in view the fact that the respondent is an advocate and has claimed Rs.65,000/- towards litigation expenses, we are satisfied that he is well placed; besides, he has not appeared to oppose the prayer for maintenance. Accordingly for Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 13- the period of one year from 29.08.2012 i.e. when the application was filed till date i.e. 29.08.2013 when the appeal is being disposed of, we award maintenance of Rs.15,000/- per month to the appellant.
As regards litigation expenses, a sum of Rs.11000/- has already been fixed by this Court and no further amount is required to be awarded for payment to the appellant on this account.
As already noticed, the behaviour of the respondent has been quite irresponsible. He has pursued a misplaced pursuit of getting cases against him and his family withdrawn and that too by misuse of the process of Court. Being an advocate and an officer of the Court, it was expected of him to act in a more proper and responsible manner.
Learned counsel for the appellant has vehemently contended that the appeal be allowed and non-appearance of the respondent as also his conduct be taken as a deemed consent for divorce.
It may be noticed that the learned Additional Chief Judicial Magistrate (Sr. Division), Panipat exercising the powers of District Court, vide her impugned order dated 15.05.2012 dismissed the joint petition of the parties under Section 13-B of the Act for the grant of divorce by mutual consent, as there was no consent of the respondent at the time of second motion. There is no illegality in the said order, that has been passed. The respondent was to appear in Court for giving his consent for the second motion but he has for reasons best known chosen not to appear. Such a circumstance cannot be taken to be a deemed consent on his part. However, since the respondent has misused the process of this Court in getting the cases against him withdrawn on the statement made by him Amit Kaundal 2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 14- before this Court that he would give his consent at the second motion and thereafter he has chosen to not even appear for giving his necessary consent or explain the reasons and difficulty, if any, has indeed been unfortunate. It may be noticed that the respondent has all along been adopting a shifting and vacillating stand. Earlier he filed a joint affidavit dated 09.05.2013, which was exhibited on record as Ex.C1 in his statement recorded in this Court on 12.08.2013. Besides, his statement was recorded in this Court on 09.05.2013 that his joint affidavit dated 09.05.2013 be read as his statement at the second motion. A similar statement had been made by the appellant- wife and she signed the same but the respondent despite getting his statement recorded did not sign it. The Division Bench hearing the case on 23.07.2013 ordered the listing of the case before another Bench. When the case was listed before this Bench on 12.08.2013, the respondent made a statement on oath that he was willing for giving his consent but first the appellant should withdraw all the cases against him and his family members by 20.08.2013 or latest by 27.08.2013 and in case he fails to give his consent, the cases may be revived. The appellant-wife in view of the statement of the respondent withdrew all her cases on 19.08.2013 but the respondent has not appeared. Therefore, we order that all the cases filed by the appellant against the respondent as mentioned above, be revived from the stages from which these were withdrawn; besides, we impose special costs of Rs. One lac on the respondent for his misplaced conduct and behaviour, which the respondent shall pay to the appellant and in event of his failure to do so, the appellant can recover the amount by way of execution.
Amit Kaundal2013.09.23 11:18 I attest to the accuracy and integrity of this document Chandigarh CMM No. 125 of 2012 in/and FAO No. M-145 of 2012 (O&M) - 15- Accordingly, the appeal of the appellant is dismissed. However, the petition No.47/3 of 2012 filed by the apepllant on 16.07.2012 for grant of maintenace under Section 125 Cr.P.C. and pending in the Court of Additional Chief Judicial Magistrate, Panipat shall stand restored at its original number and the order dated 19.08.2013 dismissing the petition as withdrawn is set aside; the complaint case (protest petition) No.156/12 filed by the apepllant and pending in the Court of learned Judicial Magistrate Ist Class, Panipat shall stand restored on its original number and the order dated 19.08.2013 dismissing as withdrawn the protest petition is set aside and the learned Magistrate shall return the cancellation report filed by the Police of Police Station, Chandnibagh for further investigations. The criminal case No.44 of 2011 filed by the appellant on 14.09.2011 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 which was withdrawn on 12.11.2011 shall stand restored to its original number and the order dated 12.11.2011 shall stand set aside. The respondent shall pay the appellant Rs.11000/- towards litigation expenses, Rs.15000/- per month as maintenance pendente lite for the period from 29.08.2012 to 29.08.2013 and he shall pay special costs of Rs.one lac to the appellant.
(S.S. SARON)
JUDGE
(S.P. BANGARH)
August 29, 2013 JUDGE
sham/A.Kaundal
Amit Kaundal
2013.09.23 11:18
I attest to the accuracy and
integrity of this document
Chandigarh