Karnataka High Court
Smt.Shaikh Ferozasulthana vs Naik S.B. Ahmed on 19 January, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
CRIMINAL PETITION No.100137/2016
C/W
CRIMINAL PETITION No.101525/2015
IN CRL.P No.100137/2016
BETWEEN:
1. SMT.SHAIKH FEROZASULTHANA
W/O NAIK S.B. AHMED
AGE: 38 YEARS, OCC: NIL,
R/O: WARD NO.22, DOOR NO.39,
EX SERVICEMAN COLONY,
COWL BAZAAR, BELLARI.
2. KUMARISAYEDRESHMA
D/O NAIK S.B AHMED
AGE: 16 YEARS, OCC: STUDENT,
R/O: WARD NO.22, DOOR NO.39,
EX SERVICEMAN COLONY,
COWL BAZAAR, BELLARI.
3. SAYEDFAYAZ AHMED
S/O NAIK S.B AHMED
AGE: 14 YEARS, OCC: STUDENT,
R/O: WARD NO.22, DOOR NO.39,
EX SERVICEMAN COLONY,
COWL BAZAAR, BELLARI.
( PETITIONER NOs.2 AND 3 ARE MINORS THEY ARE
REPRESENTED BY THE PETITIONER NO.1 THEIR
MOTHER NEXT FRIEND AND GUARDIAN)
... PETITIONERS
(BY SRI M.L. VANTI, ADVOCATE)
2
AND
NAIK S.B. AHMED
S/O SAYED AHMED
@ SAYEED BASHEER AHMED,
AGED ABOUT 40 YEARS,
STAFF NO.15371833
Y, NAIK IN INDIAN ARMY,
R/O BRIGADIER COMMANDING OFFICER,
FACULTY OF COMBAT COMMUNICATION,
MILITARY COLLEGE OF
TELECOMMUNICATION ENGINEERING,
MHOW, INDORE DISTRICT,
MADHYA PRADESH PIN CODE NO.900444,
C/O 56 APO.
AT PRESENT:
R/O: OPERATOR SECTION COMM,
COMPANY 101 INF DIV SIG,
REGT. PIN.917810 C/O. 56 APO.
... RESPONDENT
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CRIMINAL PROCEDURE CODE, 1973, PRAYING TO
QUASH THE ORDER DATED: 06-01-2014 PASSED BY LEARNED
2ND ADDL. CIVIL JUDGE JUNIOR DIVISION AND J.M.F.C. COURT,
BALLARI IN CR. MC. No.88/2009..
IN CRL.P NO. 101525/2015
BETWEEN
SYED BASHEER AHMED
S/O LATE SYED MOOSA,
AGED ABOUT: 44 YEARS,
R/O: KONDAVIDUKOTE VILLAGE,
KONDAVEEDU KOTE VILLAGE,
GUNTUR DISTRICT, ANDHRA PRADESH
3
NOW R/O: OPERATOR SECTION
COMN, COMPANY 101 INF DIV SIG,
REGT PIN 917810 C/O 56 APO.
... PETITIONER
(BY SRI.Y. LAKSHMIKANT REDDY, ADVOCATE)
AND
SYED SHAIKA FIROZA SULTANA,
D/O SHEIKA MOHABOOB SUHAW,
AGED ABOUT 35 YEARS,
NO.39B, WARD NO.22,
EX-SERVICEMEN COLONY,
COWL BAZAAR, DISTRICT: BALARI.
... RESPONDENT
(BY SRI. M. L. VANTI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CRIMINAL PROCEDURE CODE, 1973, SEEKING TO
QUASH CRIMINAL PROCEEDINGS PENDING ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC COURT,
BALLARI, IN C.C. No.687/2008 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498A, 504 AND 506 READ WITH
SECTION 34 OF THE INDIAN PENAL CODE, 1860.
THESE PETITIONS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
These two criminal petitions are by the divorced husband and wife each seeking different reliefs.
2. Crl.P. No.100137/2016 is by the wife and minor children of the respondent - Mr. Naik S.B. Ahmed seeking to quash the order dated 06.01.2014 passed by II 4 Additional Civil Judge (Jr. Dn.) and JMFC., Ballari, in Crl.M.C. No.88/2009 initiated by petitioner No.1 - wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
3. In the said proceedings, on 06.01.2014, the compromise arrived at between the parties is recorded by the learned Magistrate and having regard to the fact that the respondent - husband had paid a sum of Rs.5,00,000/- under various demand drafts as stated in the joint memo and cash of Rs.1,00,000/- towards permanent alimony of petitioner No.1 - wife and his two minor children, the petition is dismissed as settled between the parties. The said order dated 06.11.2014 is sought to be quashed by filing the Criminal Petition No.100137/2016 nearly two years thereafter.
4. It is seen that Crl. P. No.100137/2016 filed by the wife and minor children on 24.02.2016 is subsequent to Crl.P. No.101525/2015 filed by the husband on 22.09.2015 seeking quashing of the proceedings in C.C. 5 No.687/2008 on the file of Additional Civil Judge (Jr. Dn.) and JMFC., Ballari, registered for the offences punishable under Sections 498A, 504 and 506 of the Indian Penal Code, 1860. The ground on which quashing of the proceedings is sought is that the settlement is arrived at between the parties, namely, the husband and wife, with reference to maintenance payable to the wife and children. In view of the said settlement, it is stated that it was mutually agreed between the parties that the wife would withdraw the complaint filed by her against her husband in C.C. No.687/2008 and even as per the averments made in the compromise petition, the wife has agreed to withdraw any proceedings that are initiated by her against her husband. Since the wife has not withdrawn C.C. No.687/2008, Crl.P. No.101525/2015 is filed by the husband seeking quashing of the same.
5. Therefore, the sum and substance of both the criminal petitions is revolving around the settlement arrived at between the parties on 06.01.2014. In the 6 petition filed by the wife, she is seeking to recall the order passed by the learned Magistrate recording the settlement, whereas in the petition filed by the husband, all that he is seeking is to implement the terms of the said compromise petition and to quash the proceedings pending in C.C. No.687/2008. Before going into the merits of the same, this Court would like to go into the facts of the case leading to these two petitions.
6. The petitioner in Crl. P. No.101525/2015 is the husband and petitioner No.1 in Crl. P. No.100137/2016 is the wife. The other two petitioners in Crl.P. No.100137/2016 are the children of the aforesaid husband and wife. Admittedly, the husband was in the service of Armed Forces and the marriage between him and the respondent in Crl.P. No.101525/2015 has taken place on 25.06.1994 at Munagapadu, Guntur District, Andhra Pradesh, and for a long time, he was posted to work at different places in North India. In some of the places, where residential accommodation was available, his wife 7 and children were also staying with him. It is seen that there was discord between them resulting in the wife filing a criminal complaint against the husband and other members of his family in Crime No.12/2008 for the offences punishable under Sections 498A, 504 and 506 of the IPC., which was investigated by the Police and charge- sheet being filed in that behalf has resulted in criminal complaint being registered in C.C. No.687/2008 for the said offences and the same is presently pending consideration on the file of JMFC., Ballari.
7. In the meanwhile, it is stated that the husband has filed a petition for decree of divorce before the II Civil Judge Class-2, MHOW District, Indore, Madhya Pradesh, which is numbered as C.O.S. No.31 of 2008, which came to be allowed granting decree of divorce to him by order dated 23.07.2008. Admittedly, the dissolution of marriage between them is with in the knowledge of wife as could be seen from the joint memo dated 06.01.2014 filed in Crl.M.C No.88/2009. In the said joint memo, the wife has 8 clearly admitted that the relationship between herself and her husband has come to an end in view of the decree of divorce being passed in C.O.S. No.31A/2008 and under the very same joint memo dated 06.01.2004, she has received two demand drafts for sum of Rs.1,50,000/- each and another demand draft for Rs.2,00,000/-, totally amounting to Rs.5,00,000/- from her divorced husband and she has also received a sum of Rs.1,00,000/- by way of cash on the same day.
8. At this juncture, learned counsel appearing for petitioner No.1 - wife in Crl. P. No.100137/2016 would submit that all the demand drafts as stated in the joint memo dated 06.01.2014 are encashed by her. With this, it is seen that as per the terms of clause No.2 of the joint memo, she has received Rs.6,00,000/- in full and final settlement of the alimony for life to herself and maintenance to her two children.
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9. In the said joint memo at paragraph No.3, the wife herself and on behalf of her children has undertaken that she will not have any right to claim properties from the husband in future in any manner after receiving the amount stated in paragraph No.2 of the said joint memo towards permanent alimony. In paragraph No.4 of the joint memo, she undertakes to withdraw criminal case pending in C.C. No.687/2008 on the file of the very same Court as against the respondent - divorced husband, his parents, brothers and sister-in-law in due course. She has also undertaken to withdraw any other cases or litigations pending before the said Court or any other Court at Ballari or any other District or anywhere in Karnataka or India as against the respondent - divorced husband. In paragraph No.4, there is also a clause, which reads as under:
In case if the respondent is willing and desire he will provide monetary help at the time of celebration of the marriage of petitioner daughter Syed Reshma.10
10. With this, it is seen that in paragraph No.5 of the said joint memo, it is clear that both the parties have stated that the Court can draw up decree accordingly in the light of the settlement arrived at between the parties and having regard to the demand drafts being encashed by the wife and cash of Rs.1,00,000/- being received by her, petitioner Nos. 1 to 3 in Crl.M.C. No.88/2009 have no manner of right to seek recall of the order dated 06.01.2014 passed by the learned II Additional Civil Judge (Jr.Dn.) and JMFC., Court, Ballari. Accordingly, Crl.P. No.100137/2016 is hereby dismissed.
11. Now, coming to the second Crl.P. No.101525/2015 filed by the husband, the said petition is filed seeking implementation of the terms of the joint memo dated 06.01.2014 filed in Crl. M.C. No.88/2009. In this petition, pursuant to a direction issued by this Court, the petitioner has filed an affidavit on 09.01.2017, wherein it is stated by him that in addition to Rs.6,00,000/- paid on 06.01.2014 to the respondent - divorced wife under the 11 joint memo, he has assisted his wife in purchasing the property measuring 0.10 cents in Sy. No.794/A on 23.07.2004 by providing the funds that were required for purchase of the same and that the money for purchase of the same has come from the savings account maintained in the post office and other sources. In the said affidavit, he reiterates the undertaking given by him in the joint memo dated 06.01.2014 to the effect that he would provide financial assistance at the time of marriage of his daughter. Though in the joint memo, he has not stated what would be the contribution by him, in the affidavit dated 09.01.2017 at paragraph No.15, he would state that he is ready and willing to give a sum of Rs.1,00,000/- to his daughter at the time of her marriage, which is also placed on record. With this, it is clearly seen that the respondent, who is none other than the divorced wife of the petitioner-Syed Basheer Ahmed has gone back on her promise, which she had undertaken at the time of filing of the joint memo dated 06.01.2014 agreeing to withdraw the proceedings in C.C. No.687/2008, which she had 12 initiated against her husband, parents-in-law and other members of the family of her husband.
12. Hence, in Crl.P. No.101525/2015, after hearing learned counsel appearing for both the parties and on going through the material available on record, there is clear breach of undertaking given by her before the learned Magistrate in Crl. M.C. No.88/2009. Therefore, this Court in exercise of its inherent power under Section 482 of the Cr.P.C., and also in the light of the judgment rendered by the Apex Court in the matter of Gian Singh Vs. State of Punjab and another reported in ((2012) 10 SCC 303), would observe that the dispute between the parties is basically matrimonial in nature. Therefore, though the offences, which are accused against the husband and his family members, are non-compoundable in nature considering the fact that there was an agreement between the parties to settle all the disputes and to withdraw the complaint, which is registered in C.C. No.687/2008 on the file of JMFC., Ballari, the joint memo 13 dated 06.01.2014 is given effect to and accordingly, the said proceedings in C.C. No.687/2008 are quashed in its entirety not only against the divorced husband - Mr. Syed Basheer Ahmed, but also against other members of his family in the light of the settlement arrived at between the parties in Crl. M.C. No.88/2009.
Accordingly, Crl.P. No.101525/2015 is allowed in the aforesaid terms.
Sd/-
JUDGE sma