Supreme Court - Daily Orders
Rahul Joshi vs State Of U.P. on 10 February, 2023
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
1
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
Transfer Petition (Criminal) No 59 of 2021
Rahul Joshi ... Petitioner(s)
Versus
State of UP and Ors ... Respondent(s)
WITH
Transfer Petition (Criminal) No 129 of 2021
ORDER
1 The petitioner (Rahul Joshi) and the second respondent (Priyanka Joshi) married on 24 January 2015. Matrimonial disputes have arisen.
2 This Court was moved in transfer petitions seeking transfer of certain proceedings from the Court of the Additional Chief Judicial Magistrate-08, Ghaziabad to the Additional Metropolitan Magistrate, East District, Karkardooma, Delhi. During the pendency of these proceedings, the parties have arrived at a settlement before the Delhi Mediation Centre, Karkardooma Courts, Delhi.
3 For convenience of reference and for the purposes of drawing up of a decree, the entirety of the settlement is extracted below:
“1. Reference Signature Not Verified Digitally signed by Sanjay Kumar Date: 2023.02.13 The above-said matter is a contempt petition under section 2 and 12 of Contempt of Court Act has been received 15:27:04 IST Reason:
for mediation from the Court of Shri Sanjeev Jain, Ld. Principal Judge-Family Court, East, KKD Courts, Delhi.2
2. Mediation proceedings After introducing and explaning the concept and benefits of mediation, the matter has been discussed with the parties in several joints as well las single sessions in cordial atmosphere.
3. Background of the case As stated by parties, the brief facts of the case in hand are that the marriage between the complainant and responent was solemnized on 24.01.2015 as per Hindu rights and ceremonies at U.P. One daughter, namely, Lavanya aged about six years was born from the said wedlock. However, due to certain matrimonial discords and differences, they are living separately from each other since 11.06.2020. It is stated that presently the complainant is residing at her parents place along with her daughter.
Respondent Rahul Joshi has stated that he is authorised to settle the matter on behalf of his mother Smt. Sarojini Joshi in Transfer Petition(Crl.) No. 129 of 2021 pending before the Hon’ble Supreme Court of India filed by his mother. Authority letter is placed on record as Annexure-A.
4. Abbreviation The petitioner, namely Priyanka Joshi shall be hereinafter referred to as “the wife” and the respondnent hamely Rahul Joshi shall be hereinafter referred to as “the husband” whereas they both jointly shall be referred to as ‘the parties’.
5. Connected Cases Besides the present matter, the following proceedings/litigation are pending between them:
i. HMA Petition No. 1202/2022 filed by the husband against the wife under section 13(1)(i)(a) and (b) of the Hindu Marriage Act for dissolution of marriage, which is pending in the Court of Shri Sanjeev Jain, Ld. Principal Judge-Family Court, East, KKD Courts, Delhi, wherein the next date of hearing is 11.04.2023.
ii. Maintenance Petition No. 226/2020 filed by the wife against the husband, which is pending in the Court of Shri Sanjeev Jain, Ld. Principal Judge-Family Court, East, KKD Courts, Delhi, wherein the next date of hearing is 11.04.2023.
iii. Misc. Crl. No. 12 of 2022 filed by the husband seeking review of the order dated 17.01.2022 passed in MT Case No. 226/2020 pending before the Court of Shri Sanjeev Jain, Ld. Principal Judge-Family Court, East, KKD Courts, Delhi, 3 wherein the next date of hearing is 11.04.2023.
iv. Execution Crl. No. 24/2023 filed by the wife seeking execution of the order dated 17.01.2022 passed in MT Case No. 226/2020 pending before the Court of Shri Sanjeev Jain, Ld. Principal Judge-Family Court, East, KKD Courts, Delhi, where the next date of hearing is 11.04.2023.
v. Criminal Case FIR No. 201/2020, under Sections 498A/406/504/506/376/511/377/307/354 IPC read with Sections 3 and 4 of Dowry Prohibition Act at PS Mahila Thana, Lohiya Nagar, Ghaziabad, U.P. registered on the complaint of the wife against the husband and his family members, wherein charge sheet is stated to have been filed under sections 498A/406/504/506 IPC and Sections 3 and 4 of Dowry Prohibition Act only against the husband and other family members, which is stated to be pending before the Ld. Fast Track Junior Division Court No. 1/JMFC, Ghaziabad. Copy of the charge sheet is enclosed herewith as Annexure- B. vi. CT Case No. 2226/2020 under Section 12 of D.V. Act filed by the wife against the husband and other family members pending before the Court of Ms. Shazadi Halima Sadiya, Ld. MM, Mahila Court, East, KKD, Delhi, wherein the next date of hearing is 28.06.2023.
vii. Transfer petition (Crl.) No. 59 of 2021 pending before the Hon’ble Supreme Court of India filed by the husband for transfer of case FIR No. 201/2020 titled as State of U.P. Vs. Rahul Joshi & Ors. as mentioned above and all consequential proceedings from the jurisdiction of Ghaziabad Court to the Court of the Ld. CMM, East District, KKD, Delhi, wherein the next date of hearing is 10.02.2023.
viii. Transfer petition (Crl.) No 129 of 2021 pending before the Hon’ble Supreme Court of India filed by the mother of the husband, namely, Sarojini Joshi for transfer of case FIR No. 201/2020 titled as State of U.P. Vs. Rahul Joshi & Ors. As mentioned above and all consequential proceedings from the jurisdiction of Ghaziabad Court to the Court of Ld. CMM, East District, KKD, Delhi, wherein the next date of hearing is 10.02.2023.
6. Applicablity/Non-applicability of the present settlement to the Connected Cases The present settlement shall be applicable to the case in hand as well as to all the connected matters mentioned above, however, subject to terms and conditions mentioned herein-below.
7. Compoundable/Non-compoundable offences The present settlement pertains to sections 406/504/506 IPC only, which are compoundable one with the permission of the Court, while as regards section 498-A IPC and sections 4 3 and 4 of the Dowry Prohibition Act – the offences being non-compoundable by virtue of section 8 sub-section (ii) of the Dowry Prohibition Act 1961 as amended and substituted vide Act No. 43 of 1986 which specifies that every offence under the Act shall be non-bailable and non-compoundable, the parties state that they shall approach the appropriate forum.
This settlement is however subject to ratio of the judgments in the cases “Vinod Kumar & others v Govt of NCT of Delhi & Anr” dated 27.01.2020 (in Crl.MC No. 4286/2019), “Virender Kr & Anr v State of Delhi & Anr” dated 17.01.2020 (in Crl.MC No. 4286/2019), “Virender Kr & Anr v State of Delhi & Anr” dated 17.01.2020 (in Crl.MC No. 214/2020) pertaining to quashing of the FIR under Section 482 Cr.PC and in that context the undersigned has also made preliminary scrutiny of the facts so as to satisfy the aspect of possiblity of recording this statement that may be acceptable to the Hon’ble High Court of Delhi, bearing in mind the law governing the compounding of the offences or exercise of power of Hon’ble High Court under Section 482 Cr.PC. Parties have been made clear that the outcome of the quashing petition shall be as per merits of the petition itself and this settlement does not confer a right thereto.
After explaining the process of mediation, several joint and single sessions were conducted with each of the parties wherein the parties have arrived at an amicable settlement on the terms and conditions as under:-
(i) It is agreed by both the parties that there is no possibility of reunion due to irreconcilable differences and as such, they have decided to separate their ways and go for dissolution of their marriage by mutual consent in accordance with law.
(ii) It is further agreed between the parties that in the Transfer Petition(Crl.) No. 59 of 2021 pending before the Hon’ble Supreme Court of India, the parties will pray for the disposal of the pending cases referred in para 5 herein-
above in terms of the settlement arrived between the parties and in case the Hon’ble Supreme Court of India does not exercise its jurisdiction under Article 142 of the Constitution of India, the parties will approach the competent courts/respective forums for the appropriate reliefs.
8. Terms and conditions of the Settlement
(i) It is agreed between the parties that the husband shall hand over a DD/cheque of Rs. 19,00,000/- (Rupees Nineteen Lakh only) in the name of “Priyanka Deshwal” for settlement of all claims to the wife towards full and final settlement for her maintenance (past, present and future), permanent alimony, jewellery, articles, belongings etc. The wife undertakes not to put forth any further claim towards the same in future at any stage.
5(ii) It is further agreed between the parties that in case of disposal of matters of by the Hon’ble Supreme Court of India, the husband shall pay the amount before the Hon’ble Supreme Court of India and if the aforesaid settled amount is not paid by the husband in one go, then the husband shall pay Rs. 10,00,000/- at the time of first hearing before the Hon’ble Supreme Court and both the parties shall jointly request before the Hon’ble Supreme Court of India for deferment of the cases for three weeks for making the balance payment of Rs. 9,00,000/-.
(iii) It is further agreed between the parties that in case the matters are not disposed of by the Hon’ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India, then the parties shall approach the competent courts for disposal of matters in the following manner:-
(a) It is agreed between the parties that they will move joint petition as provided under Section 13B of Hindu Marriage Act, 1955 for dissolution of marriage by mutual consent.
(b) It is agreed between the parties that they shall file the first motion petition under section 13B(1) of Hindu Marriage Act for dissolution of marriage by way of mutual consent within 30 days of the directions given by the Hon’ble Supreme Court of India to the parties to move before the competent courts/forums for execution of the terms of the settlement.
(c) It is also agreed between the parties that prior to filing of the petition under section 13B(1) of the Hindu Marriage Act, the husband shall withdraw the petition under section 13(1)
(i)(a) and (b) of the Hindu Marriage Act from the learned concerned Court.
(d) It is further agreed between the parties that after disposal of the first motion petitoin under section 13B(1) of the Hindu Marriage Act but one week before filing of the second motion petition, the wife shall withdraw present contempt petition No. 3/21, Maintenance petition no. 226/20 under section 125 Cr.PC, complaint no. 2226/20 under Section 12 D.V. Act and Execution petition no. 24/23 from the concerned Courts.
(e) It is further agreed between the parties that after disposal of the first motion petition under section 13B(1) of the Hindu Marriage Act, but one week before filing of the second motion petition, the husband shall withdraw Misc.
Crl. No. 12/22 from the concerned Court and T.P.(Crl.) No. 59/21 and T.P.(Crl.) No. 129/21 (filed by mother of husband Smt. Sarojini Joshi) from the Hon’ble Supreme Court of India.
(f) It is further agreed between the parties that second motion petition under section 13B(2) of the Hindu Marriage 6 Act shall be filed after expiry of statutory period of six months from the date of disposal of the petition under Section 13B(1) of the Hindu Marriage Act. However, the parties are at liberty to move appropriate application for waiver of mandatory period of six month, if they so desire.
(g) It is further agreed between the parties that the husband shall pay an amount of Rs. 19,00,000/- (Rupees Nineteen Lakh only) to the wife towards full and final settlement for her maintenance (past, present and future), permanent alimony, jewellery, articles, belongings etc. and the wife undertakes not to put forth any further claim towards the same in future at any stage.
(h) It is agreed between the parties that the husband shall pay the above-said settled amount of Rs. 19,00,000/- to the wife by way of cheque/demand drafts/RTGS/NEFT as per the following schedule:-
S.No. Amount Date
1. Rs. 7,00,000/- At the time of recording
statement in the first motion
petition under Section 13B(1) of
Hindu Marriage Act.
2. Rs. 6,00,000/- At the time of recording
statement in the second motion
petition under Section 13B(2) of
Hindu Marriage Act.
3. Rs. 6,00,000/- At the time of the quashing of the
FIR before the Hon’ble High Court.
(iv) It is also agreed between the parties that the custody of the minor female child, namely, Lavanya shall remain with the wife and the husband shall not claim custody of the child and the wife shall be the guardian of the child for all intent and purposes. The husband would have the visitation rights through online mode i.e. Whatsapp video calling once in a month, preferably on the first Sunday of every month at around 11.00 A.M. for half an hour, which would be facilitated by the wife. In case there is a three consecutive defaults in holding the Online metting by the wife, the wife will bring the girl child for physical meeting with the husband for two hours at a public place mutually decided by the parties in Delhi, as per the convenience of the child. The said visitation rights will be made applicable after the grant of Decree of Divorce and quashing of FIR.
(v) It has been further agreed between the parties that the minor child would be free to have recourse to the provisions of law for seeking appropriate relief from the Court in relation to the aspect of maintenance, education and up- bringing etc in terms of the pronouncement of judgment of the Hon’ble High Court in the case titled “Rakesh Jain & Ors.
7v Sarita Gupta” (Crl.Misc No. 2935/2019). The wife undertakes that she will not initiate any kind of litigation on behalf of the minor child against the husband.
(vi) It is further agreed between the parties that the husband shall permit the wife to take possession of the scooty (keys with the wife) bearing no. DL-7SCG 6546 lying in the premises of Lovely CGHS, Mayur Vihar, Delhi under due acknowledgement on “as is where is basis” after Decree of Divorce and the quashing of FIR. The wife shall make her own arrangements for transportation of the said vehicle and will inform the husband one day in advance.
(vii)It is further agreed between the parties that the wife will give NOC for closure of the HDFC Joint Account No. 50100074747440, Mayur Vihar, Delhi to the bank after Decree of Divorce and the quashing of FIR.
(viii) It is further agreed between the parties that on completion of terms agreed above, they shall not be left with any claims towards each other and shall not litigate in future against each other or their respective family members qua this marriage.
(ix) It is further agreed that either of the parties to the settlement shall not claim any right whatsoever in the movable and immovable property of the opposite party and shall not use/misuse the documents, cheques, etc. of the other party, if lying in the possession of the either party.
9. Withdrawal It is agreed between the parties that the wife shall withdraw present contempt petition No. 3/21, Maintenance petition no. 226/20 under section 125 Cr.PC, complaint no. 2226/20 under Section 12 D.V. Act and Execution petition no. 24/23 from the concerned Courts after disposal of the first motion petition under Section 13B(1) of the Hindu Marriage Act but one week before filing of the second motion petition. Further, the husband after disposal of the first motion petition under section 13B(1) of the Hindu Marriage Act but one week before filing of the second motion petition, shal withdraw Misc. Crl. no. 12/22 from the concerned Court and T.P. (Crl.) No. 59/21 and T.P. (Crl.) No. 129/21 (filed by mother of husband Smt. Sarojini Joshi) from the Hon’ble Supreme Court of India. Further, it is submitted and agreed upon between the parties, that in case the Hon’ble Supreme Court of India directs the parties to approach appropriate Courts/Forums for execution of terms of settlement, they shall seek appropriate relief by way of quashing petition under section 482 Cr.P.C. within 30 days of the dissolution of their marriage.
10. Free Consent of the parties:
8We, the parties, unequivocally declare that we have executed the agreement after understanding the terms of the settlement agreement after understanding the terms of the settlement agreement as well as of the consequences of its breach. We further state that the aforesaid settlement and declaration is voluntary and that we have executed and signing the same voluntarily after examining all probabilities and implications thereof and without any kind of force, pressure, undue influence, misrepresentation or mistake (both of law and fact), in any form, whatsoever, from any quarter. We undertake that we shall abide by and be bound by the agreed terms/stipulations of the settlement agreement.
11. Breach:
It is agreed between the parties that in case of breach/violation/willful/deliberate disobedience, the party breaching the terms shall be liable for contempt proceedings. It is further agreed between the parties that the defaulting party would return all the benefits/advantages/privileges that have enured in its favour and both the parties would be restored to the position that was before they had arrived at such a settlement agreement.” 3 In view of the above settlement, a joint application has been filed by the petitioner and the second respondent seeking the following directions:
“(A) This Hon’ble Court be pleased to invoke its jurisidiction under Article 142 of the Constitution of India in the peculiar facts and circumstances of the case (i) quash the FIR No. 201 of 2020 dated 24.10.2020 (titled as State of U.P. Vs. Rahul Joshi & Ors.) under Sections: 498A, 406, 504, 506, 376, 511, 377, 307, 354 of IPC R.W Section 3 & 4 of te Dowry Prohibition Act, 1961 registered at Mahila Thana Lohiya Nagar, U.P. (and the consequential Charge sheet filed in Warrant or Summons Criminal Case No. 12685 of 2022 Under Ss: 498A, 406, 504, 506 of IPC R.W Section 3 & 4 of the Dowry Prohibition Act, 1961 pending before the Court of Ld. Fast Track Court JD Court No. 1/JMFC, Ghaziabad) against the Petitioner/Applicant No. 1 and his family members and (ii) grant the decree of divorce by Mutual Consent (as per Hindu Law) to the Petitioner/Applicant No. 1 and the Respondent No. 2/Applicant No. 2 in the present T.P(Crl.) No. 59 of 2021.” 4 Mr Vinay Navare, senior counsel appearing on behalf of the petitioner, has handed over a demand draft in the amount of Rs 19 lakhs to Mr Parijat Kishore, counsel appearing on behalf of the second respondent. The second respondent 9 is present in the Court.
5 The parties undertake to abide by the settlement agreement.
6 In the above circumstances, since the dispute between the parties is settled, the criminal proceedings which are referable to prayer (A)(i) extracted above stand quashed. In terms of prayer (A)(ii), there shall be a decree of divorce by mutual consent in the exercise of the jurisdiction of this Court under Article 142 of the Constitution.
7 The Registry shall draw up a decree expeditiously.
8 The Transfer Petitions are accordingly disposed of.
9 Pending application, if any, stands disposed of.
..…..…....…........……………….…........CJI. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [Pamidighantam Sri Narasimha] …..…..…....…........……………….…........J. [J B Pardiwala] New Delhi;
February 10, 2023
-S-
10ITEM NO.2 COURT NO.1 SECTION XVI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Transfer Petition(s)(Criminal) No(s).59/2021 RAHUL JOSHI Petitioner(s) VERSUS STATE OF U.P. & ORS. Respondent(s) (WITH IA No. 17678/2021 - EXEMPTION FROM FILING O.T., IA No. 17677/2021 - STAY APPLICATION) WITH T.P.(Crl.) No. 129/2021 (XVI-A) (FOR ADMISSION and IA No.33865/2021-STAY APPLICATION and IA No.33864/2021-EXEMPTION FROM FILING O.T., IA No. 53524/2021 - EXEMPTION FROM FILING O.T., IA No. 35531/2021 - EXEMPTION FROM FILING O.T., IA No. 35528/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 10-02-2023 These petitions were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA HON'BLE MR. JUSTICE J.B. PARDIWALA For Petitioner(s) Mr. Vinay Navare, Sr. Adv.
Mr. M.P. Parthiban, AOR Ms. Priya Ranjini Nagamuthu, Adv.
Mr. A.s.Vairawan, Adv.
Mr. R. Sudhakaran, Adv.
Mr. G.R. Vikash, Adv.
Mr. D.subrahmanya Bhanu, Adv.
Mr. T. Hariharasudhan, Adv.
Mr. K. Devendran, Adv.
Mr. D. Alagendran, Adv.
Mr. Abdul Azeem Kalebudde, AOR For Respondent(s) Mr. Parijat Kishore, AOR Mr. Sarvesh Singh Baghel, AOR Mr. Promad Kumar Singh, Adv.
Mr. Harsh Pratap Shahi, Adv.
Mr. Mr. Harsh Pratap Shahi, Adv.
Mr. Vinay Navare, Sr. Adv.11
Mr. M.P. Parthiban, AOR Ms. Priya Ranjini Nagamuthu, Adv.
Mr. A.s.Vairawan, Adv.
Mr. R. Sudhakaran, Adv.
Mr. G.R. Vikash, Adv.
Mr. D.subrahmanya Bhanu, Adv.
Mr. T. Hariharasudhan, Adv.
Mr. K. Devendran, Adv.
Mr. D. Alagendran, Adv.
Mr. Abdul Azeem Kalebudde, AOR Mr. K. Krishna Kumar, AOR Mr. Preetam Shah, Adv.
Mr. Angad Singh, Adv.
UPON hearing the counsel the Court made the following O R D E R 1 In terms of the signed order, since the dispute between the parties is settled, the criminal proceedings which are referable to prayer (A)(i) extracted above stand quashed. In terms of prayer (A)(ii), there shall be a decree of divorce by mutual consent in the exercise of the jurisdiction of this Court under Article 142 of the Constitution.
2 The Registry shall draw up a decree expeditiously in terms of the signed order.
3 The Transfer Petitions are disposed of in terms of the signed order.
4 Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
DEPUTY REGISTRAR ASSISTANT REGISTRAR
(Signed order is placed on the file)