Delhi High Court - Orders
Varun Bangia & Ors vs State (N.C.T. Of Delhi) & Anr on 7 October, 2021
Author: Mukta Gupta
Bench: Mukta Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 439/2021
VARUN BANGIA & ORS. ..... Petitioner
Represented by: Mr.Aditya Jain, Advocate.
Petitioners present through video
conferencing.
versus
STATE (N.C.T. OF DELHI) & ANR. .... Respondent
Represented by: Ms.Kamna Vohra, Additional
Standing Counsel for the State with
WSI Neeraj, PS Shalimar Bagh.
Mr.Yashwant Singh and Ms.Reema
Arora, Advocates for respondent No.2
with respondent No.2 present through
video conferencing.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 07.10.2021 The hearing has been conducted through video conferencing. W.P.(CRL) 439/2021
1. By the present petition, petitioners seek quashing of FIR No.478/2019 under Sections 498A/406/34 IPC registered at PS Shalimar Bagh, Delhi on the complaint of respondent No.2 and the proceedings pursuant thereto on the ground that the parties have settled the matter.
2. Ms.Kamna Vohra, learned Additional Standing Counsel for the State on instructions submits that in the above-noted FIR the three petitioners are the only accused and respondent No.2 the complainant/victim and no other person is involved.
3. A perusal of the record reveals that after the marriage was solemnised Signature Not Verified Digitally Signed By:JUSTICE W.P.(CRL) 439/2021 Page 1 of GUPTA MUKTA 6 Signing Date:07.10.2021 21:06:19 between the petitioner No.1 and respondent No.2 on 14th February, 2009 at Delhi, they started living together at Canada where they last resided as husband and wife in their matrimonial home till 6 th August, 2018. Thereafter both the petitioner No.1 and respondent No.2 sought a decree of divorce based on a mutual settlement arrived at between the parties, copy of which agreement dated 5th/6th February, 2020 has been filed as Annexure-P3 to the present petition. In the said agreement the parties also pointed out that the respondent No.2 had made a claim of domestic violence in which regard FIR had been registered at Delhi besides a petition under Section 12 of the Protection of Women from Domestic Violence Act (in short 'PWDV Act') and a petition under Section 125 Cr.P.C.. In relation to the minor child of the petitioner No.1 and respondent No.2 namely Agastya, a petition under the Guardians and Wards Act, 1890 is also pending. Based on the settlement arrived at between the parties and due to irretrievable breakdown of marriage, a decree of divorce was passed by the Superior Court, Province of Quebec, Canada on 20th April, 2020 giving effect to the divorce from 6th August, 2018 when the parties ceased to live together. Pursuant to the divorce granted by the Superior Court, Province of Quebec, Canada and the settlement arrived at between the parties, the petitioners seek quashing of the aforementioned FIR and the proceedings pursuant thereto. In the agreement arrived at between the parties, which was filed before the Superior Court at the Province of Quebec, Canada, it was also noted that the parties will seek a formal divorce decree at Delhi as they were married as per Hindu Rites and Customs at Delhi.
4. Learned counsels for the petitioners and the respondent No.2 submit that as the parties have entered into a settlement and do not contest the Signature Not Verified Digitally Signed By:JUSTICE W.P.(CRL) 439/2021 Page 2 of GUPTA MUKTA 6 Signing Date:07.10.2021 21:06:19 decree of divorce granted, no further decree of divorce is required to be granted and based on the terms of settlement arrived at between the parties, the above noted FIR be quashed.
5. Undoubtedly, irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act however, as held by the Hon'ble Supreme Court in the decision reported as 1991 (3) SCC 451 Y. Narasimha Rao & Ors. vs. Y. Venkata Lakshmi & Anr. where the respondent consents to the grant of relief although the jurisdiction of forum is not in accordance with the provisions of the matrimonial law of the parties, the same is an exception to the general rule. It was held:
"20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in Signature Not Verified Digitally Signed By:JUSTICE W.P.(CRL) 439/2021 Page 3 of GUPTA MUKTA 6 Signing Date:07.10.2021 21:06:19 the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence -- permanent or temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case."
6. Since both the petitioner No.1 and respondent No.2 have not contested the decree of divorce passed and have rather consented to the same as also to the forum for grant of decree of divorce, no further decree of divorce is required to be sought by them before the Family Court in Delhi.
7. In the detailed agreement entered between the petitioner No.1 and respondent No.2, copy whereof is annexed as Anenxure-P3 to the present petition, the parties have also agreed about the custody of the minor child Agastya and it has been agreed that till the respondent No.2 has found a good place to live for the child, along with daycare services and also autism subsidized therapy services relevant to the child's condition, in Mississauga, the child will remain with the petitioner No.1. The timelines will depend on the respondent No.2's capability to provide for the child subject to her getting sustainable job or completing her studies and will be decided upon mutual agreement between both the parties at a later time.
Signature Not Verified Digitally Signed By:JUSTICEW.P.(CRL) 439/2021 Page 4 of GUPTA MUKTA 6 Signing Date:07.10.2021 21:06:19
8. Respondent No.2/complainant is present through video conferencing and is identified by the learned counsel and the Investigating Officer. She states that she has voluntarily entered into a settlement with the petitioners and does not wish to pursue the above-noted FIR and the proceedings pursuant thereto. She undertakes to abide by the terms of settlement arrived at between the parties.
9. Petitioners who are present through video conferencing and are identified by the learned counsel affirm the statement of respondent No.2 and undertake to abide by the terms of settlement.
10. In view of the fact that the parties have amicably entered into a holistic mutual agreement of their own free will, volition and without any coercion and no useful purpose will be served in continuance of the proceedings, rather the same would create further acrimony between them, thus it would be in the interest of justice to quash the abovementioned FIR and the proceedings pursuant thereto. There is no legal impediment in quashing the FIR in question.
11. Consequently, FIR No.478/2019 under Sections 498A/406/34 IPC registered at PS Shalimar Bagh, Delhi and proceedings pursuant thereto are hereby quashed.
12. Petition is disposed of.
13. Date of 17th November, 2021 is cancelled.
CRL.M.A. 15127/2021 (for modification/clarification of order dated 25th February, 2021)
1. In view of the order passed in W.P. (Crl.) No.439/2021, learned counsel for the petitioners does not press this application.
2. Application is dismissed as not pressed.
Signature Not Verified Digitally Signed By:JUSTICEW.P.(CRL) 439/2021 Page 5 of GUPTA MUKTA 6 Signing Date:07.10.2021 21:06:19 3. Order be uploaded on the website of this Court. MUKTA GUPTA, J. OCTOBER 07, 2021 'vn' Signature Not Verified Digitally Signed By:JUSTICE W.P.(CRL) 439/2021 Page 6 of GUPTA MUKTA 6 Signing Date:07.10.2021 21:06:19