$~3 + IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1854/2016 Decided on:-
"14th March, 2019 CHANDRAVEER GIRI & ORS ........ Petitioner
s Through: Mr. Rohan Kanhai, Advocate Versus STATE ( NCT OF DELHI) & ANR ........ RESPONDENTS
Through: Mr. Kewal Singh Ahuja, APP for the State with SI Govind Singh, PS Uttam Nagar. Ms. Suman Chauhan, Advocate for R-2. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA1 ORDER (ORAL) The second respondent was married to the first petitioner as per Hindu rites and ceremonies on 07.02.2011. From out of cohabitation of the said parties a male child Vaibhav took birth on 01.01.2012. On 19.10.2011, on the complaint of the second respondent, first information report (FIR) No.511/2011 was registered by Police Station Uttam Nagar involving offences punishable under sections 406/498-A/34 of Indian Penal Code, 1860 (IPC), the allegations having been made against the first petitioner (the husband), his father (the second petitioner), his mother (the third petitioner) his brothers (fourth and fifth petitioners) and another relative (the sixth petitioner). It is stated that on conclusion of the investigation a report (charge Crl. M.C. No.1854/2016 Page 1 of 6 sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was submitted by the police in the court of Metropolitan Magistrate on 12.02.2013, the same being now subject matter of the criminal case No.1
of 2013.
2. By the petition at hand, presented by invoking inherent power and jurisdiction of this court under Section 482 Cr.P.C. prayer is made for quashing of the proceedings in the said criminal case on the basis of a settlement that is stated to have been entered upon by the petitioner on one hand and the second respondent (the complainant) on the other before the mediation centre, Tis Hazari Courts, Delhi on 30.01.2014, upon reference to mediation having been made by the family court in the case for divorce (HMA case No.355/2013) then pending.
3. The petition is resisted by the second respondent by a reply styled as counter/objections submitted in August, 2016 to which a reply has been filed, it to be treated as rejoinder. Pursuant to certain earlier orders the parties have filed further affidavits referring to the dispute that has been raised by the complainant.
4. From the pleadings and the documents on record, particularly the copy of the mediation settlement dated 30.01.2014 on which the petitioners place prime reliance, it is noted that on account of matrimonial dispute the parties became involved in a number of cases, some civil and some criminal in nature. The complainant had lodged FIR No.511/2011 with Police Station Uttam Nagar to which present proceedings relate. Besides this, she had also filed petition under Crl. M.C. No.1854/2016 Page 2 of 6 Section 125 Cr.P.C. and another petition under Section 12 of Protection of Woman from Domestic Violence Act, 2005 which were pending at the relevant point of time before the Metropolitan Magistrate. The first petitioner (the husband), on the other hand, had lodged two criminal cases, one bearing complaint No.3595/09/2011 alleging offences under Section 406 IPC pending at the relevant point of time in the court of Additional Chief Judicial Magistrate, Muzaffar Nagar, U.P. in which the complainant herein, her father and brother and maternal uncle had been summoned as accused, the said summoning order being subject matter of challenge by criminal revision No.350/2013, pending before the court of sessions at Muzaffar Nagar, U.P. He had also lodged FIR No.70/2013 alleging offences punishable under Sections 494/406/420 IPC, registered at Police Station Shahpur within the jurisdiction of Additional Chief Judicial Magistrate, Muzaffarpur, U.P., the said case registered as No.1326-A/09/2013 involving the complainant herein, her parents and maternal uncle as accused, the summoning order again being challenged before the court of sessions invoking its revisional jurisdiction.
5. On the basis of mediation process, the parties resolved to put on record on 03.01.2014 that there was no probability of reunion, they have decided to part ways, inter alia, by moving the family court for a decree of divorce, certain timeline having been fixed for two petitions to be filed and the payment of Rs.1,60,000/- followed by another payment of Rs.1,50,000/- to be made to the complainant by the first petitioner. It is stated that the said two petitions came to be filed Crl. M.C. No.1854/2016 Page 3 of 6 subsequently, the payments of the said amount of money having been made by the first petitioner to the second respondent, their marriage having been dissolved by a decree of divorce by mutual consent. But, in this context, the grouse of the second respondent has been that the move was highly belated, she having been deprived of her right to the money within the period specified.
6. Be that as it may, in terms of the settlement agreement before the mediation centre it was agreed that the custody and care of the child, then aged about two years, would remain with the mother, i.e., the second respondent, the first petitioner (father) not to claim custody or even visitation rights at any time in future.
7. The settlement agreement also included the following term:-
"“3. All the entitlements of respondent and the minor son Vaibhav whatsoever including claims in respect of dowry articles, maintenance, right of the child in the properties, if any percolating from petitioner and his ancestors, etc. stands settled between the parties in lieu whereof the petitioner will pay a total sum of Rs.3,10,000/- (Rupees Three Lacs and Ten Thousand Only) to the respondent for herself and being the mother/natural guardian and permanent custodian of the minor child. The amount will be paid as hereafter provided.” 8. As per the settlement agreement, it was also stipulated that the first petitioner will withdraw his criminal complaint No.3595/9/11 and the parties will move joint application for compounding of the offences alleged in the criminal case arising out of FIR No.70/2013. It was further agreed that the parties will withdraw their respective petitions under Sections 11, 12 and Section 13 of Hindu Marriage Act, Crl. M.C. No.1854/2016 Page 4 of 6 1955, then pending before the respective courts as also the petitions under Section 125 Cr.P.C. and Section 12 of Protection of Women from Domestic Violence Act, 2005 which had been preferred by the second respondent. It appears that while the petitions before the family court and the aforementioned cases for maintenance and other rights under Cr.P.C. and Protection of Women from Domestic Violence Act, 2005 were withdrawn and disposed of accordingly, the first petitioner did not discharge his obligation towards the criminal complaint case No.3595/9/2011 and the criminal case arising out of FIR No.70/2013, both pending in the court of Additional Chief Judicial Magistrate at Muzaffar Nagar, U.P. It is brought out through documents on record that the cases went to trial, the second respondent and her relatives having eventually been acquitted in both.
9. From the above, it is the submission of the second respondent that since the first petitioner has not abided by his part of the bargain, he cannot be allowed to take advantage of part of the terms of the settlement to insist on quashing of the criminal case against him and others as arising out of FIR No.511/2011 of Police Station Uttam Nagar. Further, it is submitted that the second respondent was not properly advised at the time of settlement, it being beyond her capacity and not in the interest of the minor child to forfeit his right to maintenance as also his right to inheritance in the property of his father, i.e., the first petitioner, for all times to come in future.
10. Indeed, the conduct of the first petitioner in not discharging his obligation vis-à-vis the two criminal cases at Muzaffar Nagar should Crl. M.C. No.1854/2016 Page 5 of 6 result in he forfeiting his right to take advantage of the mediation terms as had been settled on 03.01.2014. At the same time, there is merit in the argument of the second respondent that the interests of the child were not even considered vis-à-vis his right in law to inheritance in the property of his father. No thought has been spared to his right to maintenance from his father. The settlement terms procured by the mediation process are conspicuously silent on this issue. Such terms cannot bind the minor child. In these circumstances, the insistence of the petitioner that the criminal case arising out of case FIR No.511/2011 of Police Station Uttam Nagar, under Sections 498- A/4
IPC be quashed is neither just nor fair and, therefore, cannot be accepted. This court rejects the submissions that the child would have the liberty to prosecute his rights in future. All care has to be taken, even at this stage, to ensure that the rights of the child are not adversely affected by any dispensation arising out of mediation settlement.
11. Since the petitioners are not agreeable to any variation or modification of the terms of settlement, the prayer for quashing of the criminal case arising out of case FIR No.511/2011 of Police Station Uttam Nagar, under Sections 498-A/4
IPC on basis of earlier settlement cannot be granted.
12. The petition is dismissed. R.K.GAUBA, J.
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