Allahabad High Court
Manish Kumar Mishra vs Smt. Lalita Bajpai on 30 September, 2024
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:67706-DB Court No. - 2 Case :- FIRST APPEAL No. - 125 of 2023 Appellant :- Manish Kumar Mishra Respondent :- Smt. Lalita Bajpai Counsel for Appellant :- Anurag Misra Counsel for Respondent :- Ashok Kumar,Chandra Prakash,Muzammil Asad Hon'ble Rajan Roy,J.
Hon'ble Om Prakash Shukla,J.
(1) Heard Sri Anurag Misra, learned counsel for the appellant and Sri Ashok Kumar, learned counsel for the respondent.
(2) This is an appeal filed by the appellant-husband challenging the judgment and order dated 16.05.2023 passed by Additional Principal Judge, Family Court No.2, Lucknow in Regular Suit No.30 of 2019 : Smt. Lalita Bajpai vs. Maneesh Kumar Mishra under Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955") (3) The facts of the case in brief are that the appellant herein was married with the respondent on 11.02.2010. Differences arose between them, criminal proceeding under criminal law were initiated by the respondent-wife against the appellant herein under Sections 498A, 323/34, 504, 354 and 506 Indian Penal Code, 1860 and Sections 3/4 of Dowry Prohibition Act, 1961, Police Station Alambagh, District Lucknow. Chargesheet was filed against the appellant-husband. The matter was tried by the court of criminal jurisdiction and the appellant herein was convicted for the offences alleged, however, his parents and other family members were acquitted. This led to the filing of an appeal challenging the said conviction and sentence. At the criminal appeal stage, a compromise was arrived at between the parties in the proceedings under Section 12 of Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as "Act, 2005"), copy of the compromise is on record at page 38 of the counter affidavit. In terms of the said compromise, the appeal was disposed of and the appellant was acquitted, presumably, because the offences alleged were compoundable and also considering the nature of dispute which arose out of marriage between the parties. This compromise which is dated 19.12.2018 and the judgment based thereon dated 25.04.2018 have not been challenged by the respondent. In fact, they were acted upon and proceedings were initiated jointly by the parties herein for dissolution of their marriage under Section 13-B of Act, 1955. The compromise also mentioned that an amount of Rs.14,40,000/- has already been paid by the appellant herein to the respondent and the remaining amount of Rs.3,60,000/- has been deposited by the appellant herein on 19.12.2018 itself in the proceedings under Section 12 of the Act, 2005 as is mentioned in the compromise.
(4) The contention of the appellant's counsel is that the compromise dated 19.12.2018 was arrived at between the parties during pendency of the proceedings initiated by the respondent-wife against the appellant under Section 12 of Act, 2005 and it is this compromise which was filed in the appeal by the appellant against his conviction. Further contention of the appellant's counsel is that an amount of Rs.3,60,000/- was deposited by the appellant on 19.12.2018 itself in the proceedings under Section 12 of the Act, 2005 and this fact is also recorded in the compromise dated 19.12.2018 itself.
(5) Now based on the aforesaid compromise, proceedings under Section 13-B of Act, 1955 were initiated by the parties jointly. However, after filing of the affidavit at the stage of second motion under the aforesaid provision, the respondent-wife did not appear. Consequently, the trial court has treated her conduct as one of withdrawal and dismissed the proceedings.
(6) The only point for determination is whether the Family Court has erred in recording a finding that the respondent has withdrawn her consent for divorce under Section 13-B of Act, 1955 and in dismissing the suit ?
(7) We had summoned the appellant as also the respondent-wife. The respondent-wife is now practicing in District Court at Lucknow. She accepts to have received Rs.14,40,000/- from the appellant. However, with regard to Rs.3,60,000/- deposited by the appellant before the trial Court in the proceedings under Section 12 of the Act, 2005, she says that she has not withdrawn it as yet. On being asked as to why it is so, she submitted that, in fact, as regards 'stridhan', the father of the appellant had assured us that he will pay Rs.64,000/-. If it was so, then she should not have entered into the compromise dated 19.12.2018 which has been acted upon by the parties. The respondent-wife admits to have received Rs.14,40,000/- from the appellant, as regards remaining Rs.3,60,000/- it was also deposited before the Family Court in the proceedings under Section 12 of the Act, 2005 on 19.12.2018 itself and it is a fact mentioned in the compromise which is not being denied. Now, if the respondent-wife has not withdrawn it, the appellant cannot be at fault. Moreover, if it was so, then why did she filed a joint petition under Section 13-B of the Act, 1955, which also she does not deny. Not only this, she filed her affidavit at the stage of second motion but only thereafter did not appear in the proceedings.
(8) In these facts of the case, we are of the opinion that the respondent-wife cannot resile from her act. She has accepted the money agreed upon. It is always open for her to seek the remaining Rs.3,60,000/- which has already been deposited way back on 19.12.2018 in Court but her conduct cannot be understood nor any inference can be drawn that she has withdrawn her consent for divorce by mutual consent. If such an interpretation of her conduct is given, it would result in grave miscarriage of justice and also abuse of the process of law. Whatever the father of the appellant may have said to her orally would not bind the appellant. The compromise was between the appellant, who was the husband and the respondent-wife. Moreover, there is no mention of the said amount of Rs.64,000/- in the compromise. The amount of Rs.18,00,000/- was to be given in lieu of the amount mentioned in para 9 of the said compromise dated 19.12.2018 which reads as under :-
"9- ;g fd f}rh; i{k dks leLr L=h/ku ,oa 'kknh dk leLr lkeku ,deq'r thou fuokZg ds ,ot esa udn 18]00]000@& :i;s izFke i{k dks f}rh; i{k }kjk nsuk r; gqvk gSA"
(9) This amount has been paid as stated earlier.
(10) In this view of the matter, we are of the opinion that the trial Court has erred in rejecting the proceedings under Section 13-B of the Act, 1955. The point for determination is answered accordingly.
(11) We, accordingly, set-aside the impugned judgment dated 16.05.2023 passed by Additional Principal Judge, Family Court No.2, Lucknow in Regular Suit No.30 of 2019. The suit is decreed. A decree of divorce is granted in favour of the appellant-plaintiff dissolving his marriage with the defendant-respondent with their consent. The appeal stands allowed.
(12) It is open for the respondent-wife to withdraw the amount already deposited before the trial Court.
[Om Prakash Shukla, J.] [Rajan Roy, J.]
Order Date :- 30.9.2024
Shubhankar