Rajasthan High Court - Jaipur
Nikhil @ Appu S/O Shri Naval Kishor vs Smt. Neha @ Monika W/O Shri Nikhil @ Appu ... on 18 October, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.752/2019
Nikhil @ Appu S/o Shri Naval Kishor, Aged About 30 Years, R/o
24, Kanhiya Lal Nursry, Badanpura, Jaipur, Police Station
Brahampuri.
----Appellant
Versus
Smt. Neha @ Monika W/o Shri Nikhil @ Appu D/o Radha Kishan
Gupta, Aged About 26 Years, R/o Near Kiran Nursing Home,
Nidhivan Colony, Krishi Upaj Mandi Road, Police Station Kotwali
District Dausa.
----Respondent
For Appellant(s) : Shri Rajeev Surana
For Respondent(s) : Shri Sanjay Sharma
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
ORDER RESERVED ON 23/09/2019
ORDER PRONOUNCED ON 18/10/2019
BY THE COURT : (PER HON'BLE DHADDHA, J.)
1. This appeal has been filed by the appellant husband against the order of the learned Family Court No.1, Jaipur passed on 9.1.2019 in which an application was filed by the appellant to convert the petition of divorce u/s 13 of the Hindu Marriage Act (for short "HMA") into mutual consent divorce petition u/s 13B of the HMA.
2. By this appeal, the appellant also seeks permission to withdraw the following petitions; (i) Petition No.670/2017 filed u/s 12 and 23 of the Protection of Women from Domestic Violence Act, (Downloaded on 19/10/2019 at 09:12:02 PM) (2 of 8) [CMA-752/2019] 2005 for maintenance pending before the learned Chief Judicial Magistrate, Dausa, (ii) Petition No.54/2018 filed u/s 24 of the HMA pending before the learned Family Court, Jaipur, (iii) Petition No.1/2019 filed u/s 125 Cr.P.C. for maintenance pending before the learned Family Court, Dausa and (iv) Petition No.2/2019 pending before the leaned Family Court, Dausa for interim maintenance.
3. Brief facts giving rise to this appeal are that marriage of appellant and respondent was solemnized on 13.7.2016 as per Hindu rites and customs. After three days of the marriage, the respondent wife started torturing the appellant husband both physically and mentally. She also threatened to involve the appellant in false cases. She also lodged an FIR No.9/2017 at Police Station Mahila Thana, Dausa for offence u/s 498A, 406, 323, 377 IPC and section 4/6 of Dowry Prohibition Act, 1961 against the appellant and his family members. Thereafter, on 13.4.2017 a compromise for mutual consent for divorce u/s 13B of HMA was entered into between them for amount of Rs.10,50,000/-. The entire matter was to resolve in pursuance to the said compromise and the appellant had paid Rs.5,25,000/- by Demand Draft No.349468 dated 10.4.2017 and the rest amount was to be paid through Demand Draft at the time of filing of application u/s 13B of the HMA for mutual consent divorce. Final Report was submitted in FIR No.9/2017 which had been accepted on 16.5.2017. The respondent wife did not comply with the compromise and filed a case under Protection of Women from Domestic Violence Act before the learned Chief Judicial Magistrate, Dausa on 6.10.2017. The respondent wife concealed the fact of compromise. Thereafter, the appellant was constrained to file (Downloaded on 19/10/2019 at 09:12:02 PM) (3 of 8) [CMA-752/2019] divorce petition u/s 13 of the HMA before the learned Family Court on the ground of cruelty. During proceedings, another compromise was made between them before the learned Family Court by which appellant husband had to pay Rs.13,25,000/- (including already paid Rs.5,25,000/-). According to condition, Rs.4,00,000/- was to be deposited in the learned Family Court by way of Demand Draft at the time of filing of application u/s 13B of the HMA for mutual consent of divorce and rest amount of Rs.4,00,000/- was to be paid at the time of final decree. The appellant was ready and prepared to pay Rs.4,00,000/- but the respondent wife resiled from compromise. She wanted to take more money from the appellant. The matter was again compromised between them before the mediator - DLSA, Dausa on 4.1.2019 in which the respondent wife demanded Rs.10,50,000/- excluding the amount already received as Rs.5,25,000/-. Out of which, Rs.7,50,000/- was to be paid by way of Demand Draft before the learned Family Court on filing of petition u/s 13B of the HMA on 8.1.2019 and rest of the amount Rs.3,00,000/- would be paid at the time of final settlement. It was also decided that she would not claim any maintenance amount in future and the cases pending between them, would be withdrawn. On 8.1.2019, the appellant was present in the learned Family Court, Jaipur for filing petition along with Demand Draft of Rs.7,50,000/- but the respondent wife did not come to the court. On 9.1.2019, she filed an application to withdraw the compromise. Respondent wife increased the compromised amount three times. She dishonestly harassed the appellant by demanding more and more money and filing false cases against him. She filed a new case for maintenance u/s 125 Cr.P.C. before the learned Family Court, Dausa. (Downloaded on 19/10/2019 at 09:12:02 PM)
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4. Learned counsel for the appellant submitted that the respondent wife had lodged criminal case against the appellant and his family members under Sections 498A, 406, 323, 377 IPC and section 4/6 of the Dowry Prohibition Act, 1961. On 13.04.2017, compromise was arrived at between the parties. The appellant was to be paid Rs.10,50,000/- as permanent alimony and marriage expenses. Pursuant to the said compromise, the appellant had paid Rs. 5,25,000/- by Demand Draft No.349468 dated 10.4.2017 and rest of the amount was to be paid at the time of filing of application u/s 13B of the HMA for mutual consent divorce but the respondent resiled from the compromise after taking Rs.5,25,000/- and filed a case under the Protection of Women from Domestic Violence Act before the Chief Judicial Magistrate, Dausa by concealing the fact of compromise. After that, the appellant filed a divorce petition against the respondent on the ground of cruelty. During proceedings, another compromise was made between them. By that compromise, the respondent wife enhanced the amount of compromise of Rs.8,00,000/- excluding the amount already received by Demand Draft as Rs.5,25,000/-. According to that compromise, Rs. 4,00,000/- was to be paid by way of Demand Draft before the learned Family Court at the time of filing of application u/s 13B of HMA for mutual consent for divorce and rest amount of Rs. 4,00,000/- was to be paid at the time of final decree. The appellant was ready and prepared to pay Rs. 4,00,000/- but the respondent wife resiled from that compromise. She wanted to extract more money from the appellant. She had filed petition u/s 125 Cr.P.C. before the learned Family Court- DLSA, Dausa. On 04.01.2019, the matter was again compromised between them in which respondent wife (Downloaded on 19/10/2019 at 09:12:02 PM) (5 of 8) [CMA-752/2019] demanded Rs.10,50,000/- excluding the amount already received as Rs.5,25,000/-. The appellant was to pay Rs.7,50,000/- by way of Demand Draft before the learned Family Court on filing of petition under Section 13-B of HMA on 08.01.2019 and rest amount of Rs.3,00,000/- would be at the time of final settlement. Learned counsel for the appellant submitted that the respondent did not come to file mutual consent divorce petition before the learned Family Court No.1, Jaipur on 08.01.2019. On 09.01.2019, she filed an application to withdraw the compromise.
5. Learned counsel for the appellant submitted that the respondent wife had increased the compromised amount three times. She dishonestly harassed the appellant by demanding more and more money and filing false cases against him.
6. Learned counsel for the appellant submitted that the appellant is ready to pay the settled amount of Rs. 10,50,000/- but the purpose of the respondent was to harass the appellant husband which cannot be permitted in the eye of law. The action of the respondent wife in not accepting the compromise in its letter & spirit and again retracting. She made the proceedings of the courts just to mockery.
7. Learned counsel for the appellant, in support of his arguments, placed reliance on the following judgments:-
1. Ruchi Agarwal v/s Amit Kumar Agrawal and Ors., Criminal Appeal No.1274/2004, decided on 5.11.2004, by Apex Court,
2. Mukesh Jangid v/s The State of Rajasthan & Anr. and two other connected matters, S.B. Cr.
Misc. Petition No.4737/2014, decided by this Court on 22.9.2016, (Downloaded on 19/10/2019 at 09:12:02 PM) (6 of 8) [CMA-752/2019]
3. K. Srinivas Rao v/s D.A. Deepa, Civil Appeal No.1794/2013, decided on 22.2.2013 by Apex Court,
4. Shanti Budhiya Vesta Patel & Ors. v/s Nirmala Jayprakash Tiwari & Ors., reported in RLW 2010(2) RJ 100 (SC) and
5. Shyam Sunder v/s Smt. Krishna Verma, D.B. Civil Miscellaneous Appeal No.861/2018, decided on 19.12.2018, by this Court.
8. Learned counsel for the respondent submitted that the appellant was not satisfied with the marriage and he tortured the respondent for want of dowry. The respondent lodged FIR against the appellant and his family members. During pendency of proceedings, parties entered into agreement for mutual settlement in which the appellant would pay Rs.10,50,000/- and for jewelry Rs.8,00,000/- but the appellant refused to accept the said agreement. However, he paid Rs.5,25,000/- and rest of the amount plus ornaments were to be paid at the time of filing of application u/s 13B of the HMA. The appellant retracted from agreement and thus application u/s 13B of the HMA could not be filed. But the appellant mischievously utilized the agreement and submitted it to the Police Authorities. So, the FR was presented by police. Due to non-compliance of the agreement, the respondent was compelled to file complaint u/s 12 of the Protection of Women from Domestic Violence Act on 6.10.2017 and Rs.7,000/- per month was awarded towards maintenance. The appellant filed a false petition for divorce against the respondent in which parties entered into agreement on 15.6.2018 but both the parties did not agree to the agreement and filed application before the learned Family Court not to take effect of agreement dated 15.6.2018. On 4.1.2019, before the ADR centre (Downloaded on 19/10/2019 at 09:12:02 PM) (7 of 8) [CMA-752/2019] Dausa, both the parties entered into agreement for payment of Rs.15,75,000/- plus ornaments worth Rs.8,00,000/-. However, under the proceedings, the issue regarding refund of ornaments worth Rs.8,00,000/- was not recorded. The appellant was not having fair intention to comply with the agreement, the respondent filed an application before the learned Family Court, Jaipur for recording her dissatisfaction of the settlement. Learned counsel for the respondent submitted that the dispute amongst the parties persists regarding settlement of sum of alimony and refund of "Stridhan". The appellant had not approached the court with clean hands. He did not have intention to refund the "Stridhan" to the respondent. So, the appeal be dismissed.
9. We have heard the learned counsel for the parties, gone through the impugned order and perused the material available on record.
10. It is evident from the record that both the parties had entered into agreement for mutual settlement three times but could not be materialized. According to the appellant, the respondent wife dishonestly resiled from the compromise three times. According to the respondent, the appellant did not want to perform his part according to the compromise. Therefore, she had to file an application recording dissatisfaction of the settlement. The appellant had filed divorce petition against the respondent on the ground of cruelty. In his petition, he stated that the respondent had lodged false report against him and his family members. After that, the respondent had built pressure and received Rs.5,25,000/-. He also stated in the petition that the respondent had resiled from the compromise. So, it would be amount to cruelty. In the present case, both the parties are (Downloaded on 19/10/2019 at 09:12:02 PM) (8 of 8) [CMA-752/2019] alleging each other for non-compliance of the agreement. In our opinion, who is resiling from the compromise, it will be decided by the learned Family Court after taking evidence of the parties. The cases relied upon by the learned counsel for the appellant do not support him on account of difference of facts.
11. In the case of Ruchi Agarwal's (supra), Apex Court observed that the husband and wife obtained the decree of divorce by mutual consent. According to the compromise, wife was to withdraw criminal cases against the husband but wife resiled from the compromise and did not withdraw the criminal cases so the Apex Court quashed the criminal proceedings against the husband.
12. In the case of Mukesh Jangid's (supra), both the parties obtained decree of divorce by mutual consent so the High Court quashed the criminal proceedings according to the compromise.
13. In the present case, the parties are not agree to comply with the compromise. Therefore, the learned Family Court had rightly rejected the application filed by the appellant to convert the present petition u/s 13 of HMA into section 13B of the HMA for mutual consent of divorce. Therefore, the appeal being devoid of merit, is liable to be rejected.
14. Accordingly, the appeal along with stay application is dismissed.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J RAJ KUMAR CHAUHAN /17 (Downloaded on 19/10/2019 at 09:12:02 PM) Powered by TCPDF (www.tcpdf.org)