Gujarat High Court
Prakashbhai Natwarlal Shah & 3 vs State Of Gujarat & on 27 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/18053/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 18053 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
PRAKASHBHAI NATWARLAL SHAH & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR.NANDISH H THACKAR, ADVOCATE for the Applicant(s) No. 1 - 4
PARTY-IN-PERSON, ADVOCATE for the Respondent(s) No. 2
MS. THAKORE, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/01/2017
ORAL JUDGMENT
Page 1 of 8
HC-NIC Page 1 of 8 Created On Sat Jan 28 02:44:18 IST 2017 R/CR.MA/18053/2015 JUDGMENT
1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the first information report registered as C.R. No.I-85 of 2015 with the Kalol City Police Station, Gandhinagar for the offence punishable under sections, 377, 498A, 323, 506(1) read with section 114 of the Indian Penal Code.
2. The applicant No.1 is the brother-in-law, the applicant No.2 is the wife of the applicant No.1, the applicant No.3 is another brother-in-law and the applicant No.4 is the wife of the applicant No.3 of the respondent No.2-first informant.
3. The first informant is married to one Umeshbhai Natvarlal Shah past 17 years. In the wedlock, three children were born; One son and two daughters. There are serious matrimonial disputes between the husband and wife. The wife has alleged mental and physical cruelty at the end of her husband and the applicants herein.
4. On 29th September, 2015, the following order was passed;
"Let rule be issued to the respondents, returnable on 15.1.2016. Ms. Punani, 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.
Let there be an ad-interim order in terms of para-8(B).
Direct service is permitted."
5. Thereafter, on 15th January, 2016, the following order was Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Jan 28 02:44:18 IST 2017 R/CR.MA/18053/2015 JUDGMENT passed;
"The respondent No.2 - original first informant is personally present in the Court today along with her father. She submitted that on account of incessant harassment by her husband and other family members, she was left with no other option but to file the FIR.
It appears that the marriage was solemnized almost 18 years back. In the wedlock, three children were born, two daughters and one son. The eldest daughter is aged 17. What I could gather from the first informant is that she is ready and willing to give one more chance for the marriage to survive. She is inclined to do so in the interest of her three minor children.
Mr. Thakkar, the learned counsel appearing for the applicants submitted that the husband would also like to see that there is reunion and they all can live life happily in the interest of the three minor children. I am told that the husband has also preferred an application for quashing of the FIR, but the same is not on Board today.
With a view to bring around some amicable settlement between the parties, more particularly in the interest of the three children, I requested Mr. Thakkar to ask his client to remain personally present before this Court, so that this Court can speak to him.
Mr. Thakkar submitted that his client would remain present on 22.1.2016. Let this matter be notified on 22.1.2016 along with Criminal Misc. Application No. 19671/15 on 22.1.2016 at 2' O Clock in the chamber. I am told that there is one third petition pending, arising from the proceedings under the Domestic Violence Act, being Criminal Misc. Application No. 24125/15. This matter also be notified on that particular date along with the other two matters."
6. On 22nd January, 2016, the following order was passed;
"1. Rule returnable forthwith. Mr. H.K. Patel, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1-State of Gujarat. The respondent No.2-original first informant appearing-in-person waives Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Jan 28 02:44:18 IST 2017 R/CR.MA/18053/2015 JUDGMENT service of notice of rule.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report being C.R. No. I-85 of 2015 lodged with the Kalol City Police Station, Gandhinagar for the offence punishable under Sections 498A, 377, 323, 506(1) read with Section 114 of the Indian Penal Code.
3. The applicants before me are the brother-in-law, sister-in-law, second brother-in-law and sister-in-law. The husband is not before me. However, having regard to the nature of the dispute and since the husband is also one of the co-accused, I requested the learned counsel appearing for the parties to persuade their clients to sit together and explore the possibility of an amicable settlement. I also requested that the parties, should personally remain present before this Court. Accordingly, the husband is before me today. The wife is also present along-with her father and 17 year old daughter, the eldest of the three children, namely Dimple.
4. It appears that the marriage of the first informant was solemnized with Umeshbhai Natwarlal Shah some time in the year 1997. In the wedlock, three children were born, two daughters and a son. As stated above, the eldest daughter who is present in the Court is 17 years of age, the second daughter, namely Priyanshu is aged 12 years and the youngest son is aged 7 years. Unfortunately, after almost a marital life of 17 years, problems cropped- up between the husband and the wife. The husband walked out of the house leaving behind the wife and three children. The wife has alleged harassment at the end of the husband. Allegations of cruelty have been levelled not only against the husband, but also against the other family members of the husband.
5. After talking to both i.e. the husband and the wife, I could see a ray of hope for the parties to unite and stay together happily for the rest of their life, more particularly, in the interest of the three children. I explained that it will be very easy to part ways and fight against each other in the Court of law but ultimately, the sufferers will be the three children. I also explained the wife that bringing up three children will not be easy task Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Jan 28 02:44:18 IST 2017 R/CR.MA/18053/2015 JUDGMENT for her in todays time. The father of the wife seems to be supporting, for the present. How long the father would support the daughter and the three grand children.
6. The husband, who is present before me makes a statement that he is ready and willing to reunite with his wife and children. He made himself very clear that he would discharge all his marital obligations and would see to it that no chance is given to the wife to complain in future. The husband is carrying on small business of vegetables at Kalol.
7. Both the husband and the wife are convinced that they should give each other one opportunity to bury their differences and live a peaceful marital life.
8. I believe that the 17 year old daughter Dimple who is present in the Court can play a major role so far as her parents are concerned. She has also assured that she would see to it that her parents live happily with an understanding and mutual respect for each other. It is only the understanding and mutual respect for each other that would make the marriage successful.
9. In such circumstances referred to above, the husband shall return to his home and join the wife and the three children at the earliest. This Court would like to observe the conduct of both the parties for some time. Therefore, I do not intend to put an end to this matter at this stage.
10. Let this matter be notified on 12th February, 2016 on top of the Board. On that day, the parties shall once again appear before this Court and apprise of the situation. Interim order to continue."
7. On 12th February, 2016, the following order was passed;
"Wife of the petitioner, her father and his daughter Dimple are present. After talking to them for some time, the Court is of the opinion that the matter be directed to appear on board on 8.3.2016.
In the meantime, parties shall make their best attempts to amicably settle their disputes by also living together Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Jan 28 02:44:18 IST 2017 R/CR.MA/18053/2015 JUDGMENT and also by finding out the lasting solution as was desired in the last order passed on 22.1.2016.
S.O. To 8.3.2016."
8. 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 respondent-wife appearing as party-in-person 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 Co-ordinator, 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. "
9. Since the matter was referred to the Mediation Center, the mediator recorded the following order on 4th May, 2016;
Page 6 of 8
HC-NIC Page 6 of 8 Created On Sat Jan 28 02:44:18 IST 2017
R/CR.MA/18053/2015 JUDGMENT
"Today the matter was kept for hearing in the meditation centre. Parties remained present. Heard both the parties, there basic problems are discussed and parties are given options. Priority is given for reunion. However, the parties want more time to think over the options and how to settle the problems. The parties requested for more time. With their consent, matter is kept on 6th May 2016 at 3:00 pm. Perhaps on 6th May also parties will require more time to resolved the whole dispute."
10. Lastly, on 20th January, 2017, the following order was passed;
"Mr. Thackar, the learned counsel appearing for the applicants has placed on record a draft of the affidavit he proposes to file on behalf of his clients. Before passing any further order, I would like the wife to go through the draft. If she has any other suggestions, the Court can consider the same.
Post the matters on 27th January 2017 on top of the Board.
The Registry shall inform the respondent No.2, namely, Shardaben Umeshbhai Shah to personally remain present before this Court on 27th January 2017. The Registry shall see to it that the respondent No.2 is informed about the next date at the earliest. She should be specifically informed that as the terms of settlement are to be finalised, her presence before this Court is necessary."
11. I tried my level best to convince the husband and wife to reconcile, more particularly, in the interest of their children. I could see some ray of hope and that is why I persuaded the matter a little more seriously. However, the talks have failed and the parties have not been able to reach to any amicable settlement. Today, the position is that the eldest daughter, who is in the college, is with the father. She supports the father full fledged. She has accused her mother of initiating false proceedings.
Page 7 of 8
HC-NIC Page 7 of 8 Created On Sat Jan 28 02:44:18 IST 2017
R/CR.MA/18053/2015 JUDGMENT
12. On the other hand, the other two children are with the mother.
13. Having regard to the nature of the allegations, which have been levelled in the first information report and the other materials on record, no case could be said to have been made out against the four applicants before me. As stated above, they are the brothers of the husband and their respective wives.
14. In the result, this application is allowed. The proceedings of the first information report being C.R. No.I-85 of 2015 registered with the Kalol City Police Station, Gandhinagar are hereby quashed so far as the applicants are concerned. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Jan 28 02:44:18 IST 2017