Gujarat High Court
Umeshbhai Natwarlal Shah vs State Of Gujarat & on 19 January, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/19671/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19671 of 2015
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UMESHBHAI NATWARLAL SHAH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR.NANDISH H THACKAR, ADVOCATE for the Applicant(s) No. 1
APPEARANCE WITHDRAWN for the Respondent(s) No. 2
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/01/2018
ORAL ORDER
1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused (husband) seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being C.R. No.I85 of 2015 registered with the Kalol city Police Station, District: Gandhinagar for the offence punishable under Sections 498A, 377, 323 and 506(1) read with 114 of the Indian Penal Code.
2 The applicant has raised the following grounds for the purpose of seeking quashing of the First Information Report:
"2(a) The marriage span of the complainant and the petitioner is of 17 years and they have three children out of the wedlock.
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(b) The relatives of the petitioner had approached this Hon'ble Court by way of CRMA No.18053/2015 and this Hon'ble Court was pleased to admit the matter and grant stay of the further proceedings of the impugned FIR vide order dated 29.9.2015.
(c) The respondent no.2 - complainant has made false and frivolous allegations with an ulterior motive of harassing the petitioner.
(d) The daughter of the petitioner and the complainant has filed an affidavit stating the true and correct facts that the complainant has filed this false FIR in connivance with some other persons.
(e) Even after the filing of the FIR, the complainant has happily stayed with the husband for next 5 days and the said fact can also be ascertained from the affidavit filed by the daughter of the petitioner.
(f) The allegations leveled in the FIR are general and sweeping and therefore, it would be an abuse of process of law to take the petitioner to undergo trial on the basis of such allegations.
(g) The impugned FIR has been filed after an unexplained delay of two years."
3 On 20th October 2015, the following order was passed:
"Let rule be issued to the respondents, returnable on 22.1.2016. Mr. Pandya, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1. The respondent No.2 be served directly through the investigating officer of the concerned police station.
The investigation may proceed further, however, no coercive steps shall be taken against the applicant.
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Direct service is permitted."
4 Thereafter, on 27th April 2016, the following order was passed:
"Mr.Nandish H.Thacker, learned advocate appearing for the applicant husband has submitted that both the parties attempted to stay together and despite best of the efforts made for an amicable settlement, a solution could not be arrived at and therefore, it is being proposed that the parties part their ways gracefully.
The respondentwife appearing as partyinperson is present in the Court today. She is represented by learned advocate Mr.M.N.Marfatia. She has also agreed to this proposal and expects that the details shall be worked out later. Out of totally three children born out of the wedlock, two children are to stay with the mother and the eldest daughter is to join the father. The wife will also require arrangement for permanent alimony.
At the joint request, the matter be referred to the High Court Mediation Centre. Let the senior mediator, High Court Mediation Centre work out these details to enable the parties to part smoothly.
Let the matter be kept on 6th May, 2016 once again with the report of Learned Mediator if the things are worked by then and if not, the parties can seek further time for the said purpose.
Both the parties shall meet the Coordinator, High Court Mediation Centre on 29th April, 2016 at 11:00 O'clock. After considering the convenience of Mediator who has been assigned this matter, further schedule shall be determined.
Application for maintenance is now fixed on 3rd May, 2016 before the Family Court. The applicant shall be at liberty to make a request to the concerned court in wake of this development.
Mr.M.N.Marfatia, learned advocate appears for the respondent No.2.
Let the matter appear on 6th May, 2016. "
5 On 6th February 2017, the following order was passed:
"With great effort and after lot of persuasion, the parties have reached to an amicable understanding for the present. The husband has filed an Page 3 of 10 HC-NIC Page 3 of 10 Created On Fri Jan 19 23:11:56 IST 2018 R/CR.MA/19671/2015 ORDER affidavit, inter alia, stating as under :
"I, Umesh Natvarlal Shah, Aged 48 years, Residing at Kalol, the petitioner herein, do hereby solemnly affirm and state on oath as under :
1. I say that I am filing this affidavit for the purpose of stating that the petitioner and the elder daughter viz. Dimple Shah have made various attempts to resolve the disputes between the petitioner and the respondent no.2. It is submitted that the petitioner has also tried to mediate the issue before the Mediation Centre before this Honble Court but the same did not work out.
2. I say that however, in the interest of the better future of the children, the petitioner is willing to end the litigations and make appropriate efforts to secure the future of the three children. I say that the petitioner is willing to stay separately from the respondent no.2 and make appropriate application before the concerned Family Court under Section 13B of the Hindu Marriage Act jointly with the respondent no.2.
3. I say that with regard to the maintenance of the wife and two children of the petitioner, the petitioner is ready and willing to give an amount of Rs.15 lakhs as and when the petitioner is able to sell the house in which the petitioner is staying as of now. The petitioner further ensures to make all the endeavours to sell the house at the earliest. Furthermore, the petitioner will also give a lumpsum amount of Rs.50,000/ for a period of 5 months which shall be deducted from the total amount which is to be given to the respondent no.2 and if the petitioner is unable to sell the house within a period of five months, the petitioner shall further give an amount of Rs.10,000/ every month till the petitioner pays an amount of Rs.15,00,000/ to the respondent no.2 in lieu of permanent alimony."
The affidavit is ordered to be taken on record. The understanding is that the applicant will make all possible endeavours to sell the house at the earliest, and out of the sale proceeds, he would pay an amount of Rs.15 lac to his wife and two minor children. It is also understood that till the house is sold and the amount of Rs.15 lac is paid to the wife and the two minor children, the husband would pay an amount of Rs.10,000=00 per month to the wife. The husband is present in the Court today. The wife accompanied by her father is also present in the Court. The husband hands over an amount of Rs.50,000=00 in cash to the wife. The amount is accepted by the wife. I will be extremely happy if one day they both reconcile with their children and start living a new life. This perhaps may take some time. Probably, time is the best healing factor. There are three Page 4 of 10 HC-NIC Page 4 of 10 Created On Fri Jan 19 23:11:56 IST 2018 R/CR.MA/19671/2015 ORDER children born in the wedlock. The eldest daughter is with the father and the other two children who are minor are with the mother. The husband who is present in the Court further assures that in future if there is any financial difficulty as regards the education or help of the children, he would definitely extend the help.
This matter is treated as partheard. The investigation of the CRI No.85 of 2015 registered with the Kalol Police Station, District Gandhinagar, shall remain stayed till further orders. This matter for the present is adjourned sine die. The day the property is sold and the amount is ready to be paid to the wife, Mr.Nandish Thackar, the learned counsel, shall file a note before the registry to place this matter for further hearing and appropriate orders.
It will be open for the wife to visit her matrimonial home and collect her belongings like clothes, etc. There are some LIC policies in the name of the husband, the wife has brought those policies today. The same are handed over to the husband.
According to the husband, his passport is also with the wife. The wife has no idea about the passport. However, she says that she will look into her house and if she finds the passport, she will handover the same to her husband.
The eldest daughter, viz. Dimple, who at present is residing with her father, will be visiting her mother and her brother and sister. It will be open for the father also to meet his children who at present are with the mother. The wife who is present in the Court makes it very clear that the husband as well as the eldest daughter are most welcome at her house.
It is understood that till the final disposal of this matter, the wife will not proceed with the proceedings initiated by her for maintenance under Section 125 of the Code of Criminal Procedure. The Court concerned shall keep this in mind and adjourn the matter. The proceedings initiated under the Domestic Violence Act in the Court of the learned Chief Judicial Magistrate, Gandhinagar, being Criminal Misc. Application No.772 of 2015 shall also remain stayed."
6 On 28th July 2017, the following order was passed:
"On 6th February 2017, the following order was passed :
"With great effort and after lot of persuasion, the parties have reached to an amicable understanding for the present. The husband Page 5 of 10 HC-NIC Page 5 of 10 Created On Fri Jan 19 23:11:56 IST 2018 R/CR.MA/19671/2015 ORDER has filed an affidavit, inter alia, stating as under :
"I, Umesh Natvarlal Shah, Aged 48 years, Residing at Kalol, the petitioner herein, do hereby solemnly affirm and state on oath as under :
1. I say that I am filing this affidavit for the purpose of stating that the petitioner and the elder daughter viz. Dimple Shah have made various attempts to resolve the disputes between the petitioner and the respondent no.2. It is submitted that the petitioner has also tried to mediate the issue before the Mediation Centre before this Honble Court but the same did not work out.
2. I say that however, in the interest of the better future of the children, the petitioner is willing to end the litigations and make appropriate efforts to secure the future of the three children. I say that the petitioner is willing to stay separately from the respondent no.2 and make appropriate application before the concerned Family Court under Section 13B of the Hindu Marriage Act jointly with the respondent no.2.
3. I say that with regard to the maintenance of the wife and two children of the petitioner, the petitioner is ready and willing to give an amount of Rs.15 lakhs as and when the petitioner is able to sell the house in which the petitioner is staying as of now. The petitioner further ensures to make all the endeavours to sell the house at the earliest. Furthermore, the petitioner will also give a lumpsum amount of Rs.50,000/ for a period of 5 months which shall be deducted from the total amount which is to be given to the respondent no.2 and if the petitioner is unable to sell the house within a period of five months, the petitioner shall further give an amount of Rs.10,000/ every month till the petitioner pays an amount of Rs.15,00,000/ to the respondent no.2 in lieu of permanent alimony."
The affidavit is ordered to be taken on record. The understanding is that the applicant will make all possible endeavours to sell the house at the earliest, and out of the sale proceeds, he would pay an amount of Rs.15 lac to his wife and two minor children. It is also understood that till the house is sold and the amount of Rs.15 lac is paid to the wife and the two minor children, the husband would pay an amount of Rs.10,000=00 per month to the wife. The husband is present in the Court today. The wife accompanied by her father is also present in the Court. The husband hands over an amount of Rs.50,000=00 in cash to the wife. The amount is accepted by the wife. I will be extremely happy if one day they both reconcile with their children and start living a new life. This Page 6 of 10 HC-NIC Page 6 of 10 Created On Fri Jan 19 23:11:56 IST 2018 R/CR.MA/19671/2015 ORDER perhaps may take some time. Probably, time is the best healing factor. There are three children born in the wedlock. The eldest daughter is with the father and the other two children who are minor are with the mother. The husband who is present in the Court further assures that in future if there is any financial difficulty as regards the education or help of the children, he would definitely extend the help.
This matter is treated as partheard. The investigation of the CRI No.85 of 2015 registered with the Kalol Police Station, District Gandhinagar, shall remain stayed till further orders. This matter for the present is adjourned sine die. The day the property is sold and the amount is ready to be paid to the wife, Mr.Nandish Thackar, the learned counsel, shall file a note before the registry to place this matter for further hearing and appropriate orders.
It will be open for the wife to visit her matrimonial home and collect her belongings like clothes, etc. There are some LIC policies in the name of the husband, the wife has brought those policies today. The same are handed over to the husband.
According to the husband, his passport is also with the wife. The wife has no idea about the passport. However, she says that she will look into her house and if she finds the passport, she will handover the same to her husband.
The eldest daughter, viz. Dimple, who at present is residing with her father, will be visiting her mother and her brother and sister. It will be open for the father also to meet his children who at present are with the mother. The wife who is present in the Court makes it very clear that the husband as well as the eldest daughter are most welcome at her house.
It is understood that till the final disposal of this matter, the wife will not proceed with the proceedings initiated by her for maintenance under Section 125 of the Code of Criminal Procedure. The Court concerned shall keep this in mind and adjourn the matter. The proceedings initiated under the Domestic Violence Act in the Court of the learned Chief Judicial Magistrate, Gandhinagar, being Criminal Misc. Application No.772 of 2015 shall also remain stayed.
The parties are personally present in the court. The applicant husband informs that he has not been able to dispose of the property despite best of his efforts. According to him, the efforts are going on and he will be in a position to sell the property in the near future.
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On 6th February 2017 when the order referred to above was passed, an amount of Rs.50,000=00 in cash was paid to the wife before this Court towards her maintenance including the two minor children.
Today, he has brought Rs.50,000=00 in cash and the same is being handed over to the wife in presence of the court. This amount is towards the maintenance for the next five months, i.e. upto 31st December 2017.
Instead of paying a lumpsum amount, I have suggested that the wife shall furnish the necessary information as regards her Savings Bank Account so that every month an amount of Rs.10,000=00 can be deposited straight through RTGS in the account of the wife. This would not be necessary if, during the next period of five months, the property is sold. This arrangement of payment of Rs.10,000=00 per months is only till the amount of Rs.15 lac is paid to the wife.
For the present, post the matter immediately after reopening of the Diwali Vacation."
7 On 10th November 2017, the following order was passed;
"Mr. Nandish Thackar, the learned counsel appearing for the applicant submits that the applicant has entered into an agreement to sell of the house for total sale consideration of Rs.35,00,000/ (Rupees Thirty Five Lac only). He further submits that the purchaser is to obtain loan and once the loan is sanctioned by the Bank, then the applicant would execute the sale deed. Mr. Thackar, the learned counsel is hopeful that by the first week of December, 2017, the sale deed would be executed and the sale consideration would be received by the applicant.
For the present, post this matter on 8th December 2017. The further developments in the matter shall be reported to this Court on 8th December 2017."
8 On 8th December 2017, the following order was passed:
"1 On 10th November, 2017, the following order was passed:
"Mr. Nandish Thackar, the learned counsel appearing for the applicant submits that the applicant has entered into an agreement to sell of the house for total sale consideration of Rs.35,00,000/ (Rupees Thirty Five Lac only). He further submits that the purchaser is to obtain loan and once the loan is sanctioned by the Page 8 of 10 HC-NIC Page 8 of 10 Created On Fri Jan 19 23:11:56 IST 2018 R/CR.MA/19671/2015 ORDER Bank, then the applicant would execute the sale deed. Mr. Thackar, the learned counsel is hopeful that by the first week of December, 2017, the sale deed would be executed and the sale consideration would be received by the applicant.
For the present, post this matter on 8th December 2017. The further developments in the matter shall be reported to this Court on 8th December 2017."
2 Mr. Nandish Thackar, the learned counsel appearing for the applicant submitted that his client has been able to dispose of the property . His client is now ready to pay the amount of Rs.14,00,000/ to the wife. As such, the amount fixed was Rs.15,00,000/, but out of the same, Rs.1,00,000/ has already been paid to the wife. In such circumstances, now, Rs.14,00,000/ remains to be paid to the wife. The husband is here before this Court. The wife is also here before this Court. The elder daughter is also here before this Court. The husband makes a statement that by end of this month, he would transfer the amount of Rs.14,00,000/ in the account of his wife. The husband is directed to act accordingly. The wife is requested to provide her account details to the husband at the earliest.
3 Post this matter on 12th January 2018. On that date, further developments in the matter shall be informed to this Court."
9 On 12th January 2018, the following order was passed:
"After the order passed by this Court dated 8th December 2017, the development is that the husband has got Rs.12,00,000/ deposited in the account of his wife through the R.T.G.S. The husband brought Rs.2,00,000/ in cash today. Since the wife has travelled to Ahmedabad all alone, she is afraid to travel back home with Rs.2,00,000/ in cash. In such circumstances, the understanding arrived at is that by today in the late evening or by tomorrow, the elder daughter will hand over Rs.2,00,000/ in cash to her mother.
Post the matter on 19th January 2018 on top of the Board."
10 The parties are present before this Court today. The respondent No.2 pointed out that her elder daughter has handed over to her Rs.2,00,000/ in cash as per the understanding. In all, the respondent No.2 has been paid Rs.15,00,000/ by the applicant - husband. The Page 9 of 10 HC-NIC Page 9 of 10 Created On Fri Jan 19 23:11:56 IST 2018 R/CR.MA/19671/2015 ORDER elder daughter has to remain with the father. Whereas, the other children are to remain in the custody of the mother i.e. the respondent No.2. I impressed upon the parties that at least, the relations of the siblings should remain cordial. There should not be any hatredness between the brother and sisters. The husband and the wife both have agreed that they would see to it that their children remain united and they will remain in touch with each other. The respondent No.2 has assured that she would withdraw the application filed by her for maintenance in the Court of the Chief Judicial Magistrate, Kalol. The next date of hearing in the Court at Kalol is 22nd February 2018. On 22nd February 2018, the respondent No.2 shall appear and pass a pursis for the withdrawal of the application. No other dispute remains between the parties. There is no further claim putforward by the respondent No.2. According to the respondent No.2, few of her clothes are lying at her husband's house. It is always open for her to go and collect the clothes. The respondent No.2 shall also withdraw the proceedings initiated by her under the provisions of the Domestic Violence Act.
11 The understanding arrived at between the parties is that both will file an application under Section 13B(1) under the Hindu Marriage Act for dissolution of marriage with mutual consent. The parties shall act accordingly. Nothing further is required to be done in the matter.
12 In the result, this application succeeds and is hereby allowed. The First Information Report being C.R. No.I85 of 2015 registered with the Kalol city Police Station, District: Gandhinagar is hereby quashed. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 10 of 10 HC-NIC Page 10 of 10 Created On Fri Jan 19 23:11:56 IST 2018