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Akash Mishra And Anr vs State And Anr on 11 January, 2022

Author: Anu Malhotra

Bench: Anu Malhotra

                          $~53
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    W.P.(CRL) 44/2022

                                AKASH MISHRA AND ANR                      ..... Petitioners
                                             Through: Mr.Sanjeev Pathak, Advocate with
                                                      petitioners in person

                                                   versus

                                STATE AND ANR                                    ..... Respondents
                                             Through:           Mr.Chirag Khurana, Advocate for
                                                                Mr.Asish Aggarwal, ASC for State
                                                                Respondent No.2 in person.
                               CORAM:
                               HON'BLE MS. JUSTICE ANU MALHOTRA
                                          ORDER

% 11.01.2022 (Through Video Conferencing) Crl.M.A. No 477/2022 Exemption allowed, subject to just exceptions. W.P.(Crl.) 44/2022 The petitioners vide the present petition seek the quashing of the FIR no. 413/2018, Police Station Vikaspuri under Sections 498A/406/34 of the Indian Penal Code, 1860 submitting to the effect that a settlement has since been arrived at between the petitioner No.1 and the respondent No.2 vide a compromise deed dated 30.9.2021 whereby the petitioner No.1 and the respondent No.2 have agreed to seek the grant of a decree of divorce through mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955 and have also resolved to get the FIR No. 413/2018, Police Station Vikaspuri quashed which is under Sections 498A/406/34 of the Indian Penal Code, 1860 .

At the outset on behalf of the State it has been submitted pointed out that so far there is no decree of divorce between the petitioner No.1 and the respondent No.2 qua which the leaned counsel for the petitioners submits that in terms of the agreement dated 30.9.2021 between the parties, the petitioner No.1 and the respondent No.2 have agreed to file the petition seeking the quashing of the FIR after the proceedings under Sections 13B(1) of the HMA are concluded.

It is essential to observe that vide proceedings dated 27.10.2021 in HMA No.2565/2021 of the Court of the Judge Family Courts, Dwarka, it has been mentioned in paragraph 9 thereof to the effect:

"9. Both the petitioners have sought dissolution of their marriage by a decree of divorce, however, decree of divorce cannot be granted to the parties at this stage, in view the specific provision of Section 13-B(2) of the Act which provides for a minimum waiting period of six (6) months from the date of presentation of their first motion petition u/S 13-B(1) of the Act.", indicating thereby that both the petitioner No.1 and the respondent No.2 had sought the dissolution of their marriage by a decree of divorce which it was observed by the learned Family Court could not be granted at that stage in view of the specific provision of Section 13B(2) of the Hindu Marriage Act, 1955, which provided for a minimum of the waiting period of six months from the date of presentation of the petition under Section 13B(1) of the Hindu Marriage Act, 1955.

It appears therefrom that the petitioner No.1 and the respondent No.2 herein sought the grant of a decree of divorce through mutual consent which could not be granted by the learned Family Court vide an order adverted to herein above, in view of the stipulations of law. The petition under Section Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:13.01.2022 14:50 13B(2) of the Hindu Marriage Act, 1955 has still not been filed by the petitioner and the respondent No.2.

It was considered essential by the Court to put an query to the respondent No.2 to ascertain from her the circumstances in which she has executed the agreement/compromise deed dated 30.9.2021. The respondent No.2 who states that she is an engineer and works as a Business Manager in a company, submits that she in terms of the compromise has not asked for anything from the petitioner No.1 except her freedom and that she wants a divorce and that in terms of the agreement, the petition has been filed now as it had agreed between the petitioner and the respondent No.2 that the petition seeking the quashing of the FIR would be instituted after the petition under Section 13B(1) of the Hindu Marriage Act, 1955. Apparently, the terms of the settlement are not in consonance with justice for the reasons that the respondent No.2 categorically states that she does not seek a reconciliation with the petitioner No.1 and does not want to live with him.

In the circumstances, it is considered appropriate that the proceedings of the present petition are kept in abeyance till the filing of an application by both the petitioner No.1 and the respondent No.2 seeking the quashing of the FIR No. 413/2018 Police Station Vikaspuri under Sections 498A/406/34 of the Indian Penal Code, 1860 after placing on record the certified copy of the decree of divorce, if any, between the petitioner No.1 and the respondent No.2 by a competent Court of law.

ANU MALHOTRA, J JANUARY 11, 2022/sv Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:13.01.2022 14:50