Ramendra Narayan Roy, and anr. Vs. State of Bihar, and anr. - Court Judgment

Excerpt:
[d. k. jain ; h. l. dattu, jj.] - hindu marriage act, 1955 - section 13b - divorce by mutual consent -- subsequently, in 2001, the parties filed a petition under section 13b of the act before the district court, gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. (b) whether the court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 13b. divorce by mutual consent. 6) admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. on the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this court held if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". secondly, the court shall be satisfied about the bona fides and the consent of the parties. if there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. on 9-1-1985, the husband and wife together moved a petition under section 13-b of the act for divorce by mutual consent. the court recorded statements of the parties. in appeal, the high court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. the issue that came up for consideration before this court was, whether a party to a petition for divorce by mutual consent under section 13-b of the act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. in our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under section 13-b. so in cases under section 13-b, mutual consent of the parties is a jurisdictional fact. the court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent." the petition is not withdrawn by either party at any time before passing the decree; the most important requirement for a grant of a divorce by mutual consent is free consent of both the parties.1. petitioner no.1, who was assistant general manager ( npa management), state bank of india, local head office,patna and petitioner no.2 who was recovery agent of the bank, have approached this court with a prayer to quash an order dated 30.4.2007 passed by the learned judicial magistrate, 1st class,patna in complaint case no.378( c) of 2007 . by the said order, the learned magistrate has taken cognizance of offences under sections 342,380,448,504,506 and 120(b) of the indian penal code.2. it appears from the record that opp.party no.2 had filed a complaint in the court of learned chief judicial magistrate against both the petitioners and one sri rajeev roy, assistant general manager, state bank of india, rehabilitation & recovery branch, west gandhi maidan, and patna. in the complaint petition, the complainant has indicated that he had obtained cash credit facility to the tune of rs. 1 crore and he became defaulter. it was alleged that the bank with the aid of recovery agent, i.e. petitioner no.2 had pressurized the complainant for clearing the dues and also abused the complainant and other allegation are mentioned in the complaint petition.3. none has appeared on behalf of opp.party no.2. it appears from the ordersheet that on earlier occasion even prior to the admission of the case none had appeared despite the fact that vakalatnama was already filed on behalf of opp.party no.2.4. at the very outset, dr. binay kumar singh, learned counsel appearing on behalf of the petitioners submits that during the pendency of this petition, a compromise in between the parties has already arrived and it appears that due to compromise, opp.party no.2 is not taking any interest in the present proceeding. in paragraph 2 of the complaint petition itself, the complainant had stated that he was/is ready to pay the legal and rightful dues of the bank and offered on several dates for healthy compromise for one time settlement. on the basis of contents of the complaint petition, the court is of the opinion that the present case was filed only with a view to pressurize the bank for coming to a compromise. the complainant has also admitted that huge amount was outstanding, which was required to be refunded by the complainant to the bank. on perusal of the materials available on record, the court is of the opinion that the present complaint was not filed honestly and fairly, rather it was filed with oblique motive, which has already been indicated in the complaint petition.5. accordingly, i am of the view that allowing the prosecution of the petitioners on such allegation will amount to allowing the abuse of the process of the court and with a view to prevent the abuse of the process of the court, the court is of the opinion that the order of cognizance as well as entire prosecution is liable to be set aside.6. accordingly, the order dated 30.4.2007 passed by learned judicial magistrate, 1st class, patna in complaint case no.378 (c) of 2007 as well as entire proceedings in complaint case no.378 of 2007 is hereby set aside and the petition stands allowed.

Judgment:
1. Petitioner no.1, who was Assistant General Manager ( NPA Management), State Bank of India, Local Head Office,Patna and petitioner no.2 who was Recovery Agent of the Bank, have approached this Court with a prayer to quash an order dated 30.4.2007 passed by the learned Judicial Magistrate, 1st Class,Patna in Complaint Case No.378( C) of 2007 . By the said order, the learned Magistrate has taken cognizance of offences under Sections 342,380,448,504,506 and 120(B) of the Indian Penal Code.

2. It appears from the record that Opp.Party no.2 had filed a complaint in the court of learned Chief Judicial Magistrate against both the petitioners and one Sri Rajeev Roy, Assistant General Manager, State Bank of India, Rehabilitation & Recovery Branch, West Gandhi Maidan, and Patna.

In the complaint petition, the complainant has indicated that he had obtained cash credit facility to the tune of Rs. 1 Crore and he became defaulter. It was alleged that the Bank with the aid of recovery agent, i.e. petitioner no.2 had pressurized the complainant for clearing the dues and also abused the complainant and other allegation are mentioned in the complaint petition.

3. None has appeared on behalf of Opp.Party no.2. It appears from the ordersheet that on earlier occasion even prior to the admission of the case none had appeared despite the fact that Vakalatnama was already filed on behalf of Opp.Party no.2.

4. At the very outset, Dr. Binay Kumar Singh, learned counsel appearing on behalf of the petitioners submits that during the pendency of this petition, a compromise in between the parties has already arrived and it appears that due to compromise, Opp.Party no.2 is not taking any interest in the present proceeding. In paragraph 2 of the complaint petition itself, the complainant had stated that he was/is ready to pay the legal and rightful dues of the Bank and offered on several dates for healthy compromise for one time settlement. On the basis of contents of the complaint petition, the Court is of the opinion that the present case was filed only with a view to pressurize the Bank for coming to a compromise. The complainant has also admitted that huge amount was outstanding, which was required to be refunded by the complainant to the Bank. On perusal of the materials available on record, the Court is of the opinion that the present complaint was not filed honestly and fairly, rather it was filed with oblique motive, which has already been indicated in the complaint petition.

5. Accordingly, I am of the view that allowing the prosecution of the petitioners on such allegation will amount to allowing the abuse of the process of the court and with a view to prevent the abuse of the process of the court, the Court is of the opinion that the order of cognizance as well as entire prosecution is liable to be set aside.

6. Accordingly, the order dated 30.4.2007 passed by learned Judicial Magistrate, 1st Class, Patna in complaint Case No.378 (C) of 2007 as well as entire proceedings in Complaint Case No.378 of 2007 is hereby set aside and the petition stands allowed.