Madhya Pradesh High Court
Smt.Bharti Gupta vs Vishnu Gupta on 30 April, 2015
1 Cr.A. No. 797/2014
Cr.A. No. 797/2014
Smt. Bharti Gupta
Vs.
Vishnu Gupta and another
30.04.2015
Shri H.K. Shukla, Advocate for the appellant.
Shri Ramvilas Sharma, Advocate for the respondents.
Heard.
This appeal under Section 341 of Cr.P.C. has been filed by the appellant aggrieved by the order dated 09.07.2014 passed in Case No. 343-A/2013 by the Principal Judge, Family Court, Gwalior, in which the learned Principal Judge refused to take action against the respondent No. 1 under Section 340 read with Section 195 of Cr.P.C.
Brief facts of the case are, the appellant is the wife of respondent No. 1. Respondent No. 2 is the father of respondent No. 1. In the Family Court, Gwalior, Case No. 12/2011 has been filed by the respondent No. 1 under Section 13-A of Hindu Marriage Act, 1955. Respondent No. 2 filed an application under 2 Cr.A. No. 797/2014 Order 32 Rule 4 read with Section 151 of CPC to declare him as the guardian of his son respondent No. 1, claiming that the respondent No. 1's statement has been recorded in the case and the appellant's examination-in-chief has been recorded but her cross-examination was to be conducted. Meanwhile, his son lost his mental balance, therefore, he was under treatment in Mental Hospital, Gwalior. In this background, the respondent No. 2 (father of the respondent No. 1) be appointed as his legal guardian at litum of husband respondent No. 1, to proceed with the case. An affidavit has also been filed in support of this application by respondent No. 2 Omprakash. Some how MJC No. 12/2011 was dismissed.
Subsequently, both parties entered into a compromise and an application under Section 13-B has been filed by the appellant/wife and the respondent No. 1/husband jointly. In this case, statements of the appellant as well as respondent No. 1 were recorded. Both husband and wife entered into a compromise, in which husband paid three lacs rupees to wife as 3 Cr.A. No. 797/2014 per the compromise and the wife/appellant has agreed for consent decree of divorce and to withdraw all the criminal cases against the husband/respondent No. 1. However, the case was listed for final order after six months as required by the statute.
Subsequently, consent was withdrawn by the appellant/wife and an application was moved under Section 340 read with Section 195 of Cr.P.C. to proceed against the husband/ respondent No. 1 alleging that her consent has been obtained by fraud and three lacs rupees received by her was spent for her treatment for she had suffered an injury in an accident. When she receives the claim compensation, she will deposit the same in the Court. Appellant/wife claimed to withdraw her consent and requested the Family Court to proceed against the husband/respondent No. 1.
This application was opposed by the respondent No. 1/ husband stating that the appellant/wife has habit of giving false statements. She received Rs.1,50,000/- when she divorce her first husband. She got married to the respondent No. 1 and 4 Cr.A. No. 797/2014 received three lacs rupees from the respondent No. 1 and now she wants more money, therefore, she has moved this application.
Learned Principal Judge, Family Court after considering all aspects passed the impugned order holding that on 17.06.2013 the appellant along with the respondent No. 1 voluntarily filed application for consent decree of divorce. The appellant is an Advocate by profession. She consented for divorce after due deliberations. She also filed an affidavit in support of her application. In the application for consent decree, she never mentioned that the applicant/respondent No. 1 was in any manner mentally unfit or insane.
Learned Trial Court further added that, at the time of presentation of the application for consent decree, both parties were present. They were given counseling in which they narrated that it is impossible for them to live together as husband and wife. At this stage, by filing of such application on the ground of the false affidavit, which was not filled by applicant himself, is 5 Cr.A. No. 797/2014 not acceptable. The Court observed, at the other hand, that after she received three lacs rupees from the husband/respondent No. 1, the appellant is withdrawing her consent. The circumstance does not compel to take any legal action in this regard.
Feeling aggrieved by the impugned order, the appellant/wife has filed this appeal on the ground that the Court has erred in dismissing the application without holding any enquiry requested to set aside the same. Both parties were never allowed to lead evidence. Preliminary enquiry was required to be conducted. Without which, by the impugned order the application has been dismissed, therefore, it deserves to be set aside.
Learned counsel for the respondents vehemently opposed the same. He submits that the appellant is a clever lady and is working as an Advocate. She has obtained three lacs rupees from the respondent No. 1. Now she has withdrawn her consent, during the statutory period, shows her cleverness. It is further argued that at the time of filing application for consent decree, 6 Cr.A. No. 797/2014 settlement have been recorded. She clearly and unambiguously has stated that she has entered into compromise and is seeking consent decree voluntarily without any fear or force. She received three lacs rupees from the respondent No. 1 and executed that affidavit in support of application. All the application for consent decree and affidavits were drafted and prepared by herself. Therefore, filing application under Section 340 of Cr.P.C. before the learned Family Court was only a shrewdness of the appellant.
Considered all the aspects. In the earlier disputed affidavit and application filed by the father of the respondent No. 1, it is stated by him that during the course of trial in MJC No. 12/2011 (application of 13-B of Hindu Marriage Act) respondent No. 1 has lost his mental balance. In his application dated 18.12.2012, father of the respondent No. 1 has not said that the respondent No. 1 is insane. It would be appropriate to mention here that, the subsequent affidavit for which application under Section 340 of Cr.P.C. has been filed during the course "consent decree of 7 Cr.A. No. 797/2014 divorce" has been filed by the respondent No. 1. In which the respondent No. 1/husband and the appellant have agreed to live separately. It is also worth mentioning here that, copy of the application under Section 13-B of the Hindu Marriage Act, 1955, has not been filed in this case. It is also to be noted that, if at all any settlement under oath has been given stating that the respondent No. 1 is not mentally fit, it was given by his father respondent No. 2 in MJC No. 12/2011. In the case, in hand (i.e., Case No. 343-A/2013) in which the appellant has filed application under Section 340 of Cr.P.C. father of the respondent Omprakash Gupta was not arrayed as a party. Impleading respondent No. 2 Omprakash Gupta as a party in the present appeal is wrong. When he was not impleaded in the original case, how can he be impleaded as a party in the appeal. He has not obtained leave of the Court.
Keeping in mind that the appellant has withdrawn her consent before the Principal Judge, Family Court after obtaining three lacs rupees as settlement money, itself creates suspicion. If 8 Cr.A. No. 797/2014 the appellant claimed that the respondent No. 1 is of insane mind then her agreement with the respondent No. 1 does not stand valid. If the contention of the appellant is taken as it is, no action can be initiated against the respondent No. 1 for he is a insane person.
Learned Principal Judge, Family Court, Gwalior, also has given detailed reasons. No preliminary enquiry was required to be conducted by the Principal Judge, Family Court for the simple reason that the earlier application and affidavit was not filed by the respondent No. 1. In this background, dismissal of the application under Section 340 of Cr.P.C. by the impugned order dated 09.07.2014 does not suffer from any irregularity or illegality.
That being so, the impugned order is not interfered with. Accordingly, this appeal is dismissed.
(S.K. Palo) Judge Abhi*