Category Archives: MP High court

Girl who had #Sex & #Lived for 4 years with a #married man of same village, cannot cry #rape later !!

MP HC

Whether girl maintaining sexual relation with married person can claim that she was raped on promise of marriage?

Thus, from the statement of the prosecutrix and her parents it is found that the prosecutrix and accused were in love and having relationship for the last four years. During this period the prosecutrix had physical relations with the accused. She lived with the accused in his house openly for long time.

9. Prosecutrix and accused are residents of same village. Accused was living with his wife and children in his house. Prosecutrix in cross-examination para 14 admitted that she had visited the house of accused and met his mother and wife also. The statement of prosecutrix that the accused had introduced his wife to her as maid servant, does not inspire confidence. It is not possible that in the same village, where prosecutrix and accused are living since birth, prosecutrix could not get information of the fact that the accused was a married person having children. During four years ofrelationship, it is not stated by the prosecution witnesses when prosecutrix or her parents asked the accused or his parents for marriage of prosecutrix with the accused. There is not even a whisper that they approached the respondent or his family members for marrying the prosecutrix. If prosecutrix was having relationship with the accused on promise of marriage, then it would be natural for her to make demand of performance of marriage within reasonable time. For four years not making any demand for marriage is not natural. Thus the conduct of the prosecutrix creates doubt on her evidence.

10. The finding of the trial Court in the present case is correct that the prosecutrix was aware that the respondent was already married person. It is not proved that accused had concealed the fact of his marriage from prosecutrix. The prosecutrix made sexual relations with the respondent/accused knowingly that he was a married person. It is not believable that the accused gave a false promise to marry her and persuaded her to make sexual relationship with him. It is also not proved that consent of prosecutrix has been obtained by misrepresentation and misconception of facts. Prosecutrix is a major woman, competent to giveconsent as per her will. For the offence of rape, it is necessary to prove beyond reasonable doubt that the sexual intercourse was committed against her will or without her consent.

 

HIGH COURT OF MADHYA PRADESH, JABALPUR

Misc. Criminal Case No.22431 of 2015
State of Madhya Pradesh
Vs
Gulab Chand Kahar
Present : Hon. Shri Justice S.K.Gangele
Hon. Shri Justice Anurag Shrivastava

O R D E R

(8.3.2017)

  1. 1. Being aggrieved by the judgment of acquittal dated 14.05.2015, passed by Special Sessions Judge, SC/ST (Prevention of Atrocities) Act, 1988, Anuppur, in Special Case No.66/2013, whereby the respondent/accused has been acquitted of the offences under Sections 376(2)(n), 506(Part-2) of IPC and section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, this petition for grant of leave to appeal under Section 378(3) of Cr.P.C., has been preferred by State.
  2. 2. The case of prosecution in brief is that on 10.8.2013 the prosecutrix lodged a report in police station Ajak, Anuppur stating that about four years ago when prosecutrix was sitting in the backyard of her house, the respondent/accused came there and forcefully took her to nearby field and committed rape on her without her consent. She tried to make a hue and cry, but was silenced by the accused by threatening her and also by making her believe that he would marry her. Even after this incident, he had sexual relations with her on more than one occasion for last four years on the pretext of marriage. Some days before lodging of report, when prosecutrix repeatedly made demand for marriage, the respondent denied to marry her. Prosecutrix came to know that the respondent was already married and had children. Thereafter, the prosecutrix lodged the complaint before police as stated above.
  3. 3. On complaint of prosecutrix a FIR Ex.P-1 has been recorded and an offence under section 376(2)(n), 506(Part-2) of IPC and section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been registered against the respondent and after usual investigation a charge-sheet has been filed in the Court. The trial Court framed the charges under section 376(2)(n), 506(Part-2) of IPC and section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the respondent, he abjured guilt. After recording of evidence the trial Court passed the impugned judgment and acquitted the respondent on the ground that the prosecutrix is a consenting party and no offence has been found proved beyond reasonable doubt against the respondent.
  4. 4. It is argued by learned counsel for the petitioner/State that from the statement of prosecutrix, it is proved that the accused had committed rape and thereafter had sexual intercourse with the prosecutrix on several occasions during last four years on the false pretext of marriage. The respondent/accused was already married having children. The consent of the prosecutrix was obtained on false representation and promise. Therefore the trial Court had wrongly acquitted the accused treating the prosecutrix as consenting party. The findings of the trial Court are erroneous, arrived at on wrong appreciation of evidence and liable to be set aside. Thus, the leave to appeal may be granted.
  5. 5. Considering the arguments of learned counsel for State and on perusal of record, it appears that the main allegation against the accused is that he obtained the consent of prosecutrix on false representation that he intends to marry her. Therefore, this aspect of case whether the prosecutrix has made relations with the accused on her free will or whether her consent was obtained on false representation has to be considered.
  6. 6. In the case of Deelip Singh Vs. State of Bihar [(2005) 1 SCC 88] Hon’ble Apex Court while defining the consent under section 90 of IPC in para 12 and 14 observed that : “Section 90 IPC, though, does not define “consent”, but describes what is not consent. It says that a consent is not such a consent as is intended by IPC (Sections 375 and 376 IPC in this case) if it is given under a misconception of fact. A misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact. The consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90 IPC.”
  7. 7. The prosecutrix lodged the report after four years of the first instance of alleged rape. From the statement of prosecutrix P.W.1 and eye witness P.W.5, it appears that on the same day, when accused committed rape on prosecutrix first time, this fact was brought into the notice of mother of prosecutrix, but no report of this incident had been lodged to police. Prosecutrix (P.W.1) in her statement admits that she had relations with the accused/respondent for the last four years, because the accused had made a promise to marry her. The parents of the prosecutrix P.W.6 (mother) and P.W.11 (father) also admitted this fact and stated that they knew that the prosecutrix and accused had sexual relations. Prosecutrix (P.W.1) in cross-examination para 14 has admitted that her relationship with the accused was known to everybody in the village and when village community objected to it and outcasted her, she had started living with the accused.
  8. 8. Thus, from the statement of the prosecutrix and her parents it is found that the prosecutrix and accused were in love and having relationship for the last four years. During this period the prosecutrix had physical relations with the accused. She lived with the accused in his house openly for long time.
  9. 9. Prosecutrix and accused are residents of same village. Accused was living with his wife and children in his house. Prosecutrix in cross-examination para 14 admitted that she had visited the house of accused and met his mother and wife also. The statement of prosecutrix that the accused had introduced his wife to her as maid servant, does not inspire confidence. It is not possible that in the same village, where prosecutrix and accused are living since birth, prosecutrix could not get information of the fact that the accused was a married person having children. During four years of relationship, it is not stated by the prosecution witnesses when prosecutrix or her parents asked the accused or his parents for marriage of prosecutrix with the accused. There is not even a whisper that they approached the respondent or his family members for marrying the prosecutrix. If prosecutrix was having relationship with the accused on promise of marriage, then it would be natural for her to make demand of performance of marriage within reasonable time. For four years not making any demand for marriage is not natural. Thus the conduct of the prosecutrix creates doubt on her evidence.
  10. 10. The finding of the trial Court in the present case is correct that the prosecutrix was aware that the respondent was already married person.It is not proved that accused had concealed the fact of his marriage from prosecutrix. The prosecutrix made sexual relations with the respondent/accused knowingly that he was a married person. It is not believable that the accused gave a false promise to marry her and persuaded her to make sexual relationship with him. It is also not proved that consent of prosecutrix has been obtained by misrepresentation and misconception of facts. Prosecutrix is a major woman, competent to give consent as per her will. For the offence of rape, it is necessary to prove beyond reasonable doubt that the sexual intercourse was committed against her will or without her consent.
  11. 11. Therefore, the trial Court has rightly held the respondent not guilty of the alleged offence of rape. Thus there is no substance in this appeal.
  12. 12. Consequently, the prayer for leave to appeal is dismissed.

(S.K.GANGELE) (ANURAG SHRIVASTAVA)

JUDGE JUDGE

Absurd and #Fake #498a counter blast to husband’s #RCR quashed by #MPHC

Whether prosecution U/S 498A and S 294 of IPC can be quashed?

Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”

12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases

13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.

 

Madhya Pradesh High Court

Kunaldev Singh Rathore @ Kunal Dev … vs State Of M.P on 2 December, 2016

(02.12.2016 )

  1. 1. Applicants, vide instant application under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) seek quashing of FIR bearing Crime No.614/2013 dated 18.12.2013 for commission of offences punishable under Sections 323, 294, 498-A and 506 of the Indian Penal Code (in short ‘IPC’) registered at police Station Kotwali District Bhind (M.P.). Further, the quashing of Criminal Case No.183/2014 has also been sought, which has been registered in furtherance to the said FIR.
  2. 2. The facts leading to filing of instant application are that a marriage was solemnized between the applicant No.1 and respondent No.2 on 21.11.2007 and a son has born out of the wedlock. According to the complaint made by respondent No.2, the present applicants were harassing her since the date of marriage for demand of Indica Car, however, she tolerated the harassment with a hope that one day the applicants will mend their ways and will treat the respondent No.2 properly. Although, the situation did not improve and one day the respondent No.2 was thrown out of the matrimonial home along with her son, whereafter, she started living with her parents at Madho Ganj, Bhind. Respondent No.2 did not have any means to maintain herself and she did not want to burden her parents, an application for maintenance by her and the son was filed, in which the notices were issued, however the applicants did not accept the summons issued by the Court and on 8.9.2013 the applicants are alleged to have visited the house of parents of respondent No.2. During their visit, the applicants pressurized respondent No.2 to withdraw the case filed by her, failing which it was threatened that she will face dire consequences.
  3. 3. Due to the incident dated 8.9.2013 the respondent No.2 submitted a complaint before the police and requested to register the FIR against the applicants. Although, the police did not take any action prompting the respondent No.2 to file complaint case before the concerned Magistrate under Section 200 of the Code of Criminal Procedure, 1973, who, in turn, instructed police to submit report under Section 156(3) CrPC. The police informed the Magistrate that it is taking cognizance of the matter and will record the FIR for commission of offences punishable underSections 323, 294, 506 and 498-A read with Section 34 of IPC. Consequently, on 18.11.2013, an FIR for the said incident was registered bearing Crime No.614/2013 at police Station City Kotwali District Bhind.
  4. 4. After completion of investigation, the police has filed charge-sheet against all the applicants on 6.2.2014 before the concerned Magistrate for the offences mentioned in the FIR. In order to seek quashing of criminal proceedings, the instant application has been filed.
  5. 5. It has been stated before this Court that in respect to instant case, no other matter has been pending for similar relief. Further, it has been stated that the applicants have preferred instant application rather than invoking the revisional jurisdiction citing the reason that this Court underSection 482 CrPC has wider jurisdiction.
  6. 6. According to learned counsel for the applicants, the plain reading of the content of the FIR does not reveal commission of offences levelled against the applicants. Moreover, the FIR has been lodged in order to defeat the proceedings initiated by the applicant No.1 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. It has also been contended that the respondent No.2 herself has violated the law by siphoning the gold of the present applicants and fleeing away to her parental home. In support of the contention, learned counsel for the applicants placed reliance on the complaint (Annexure P/4) submitted before the police. Accordingly, it is contended that the prosecution has been launched to misuse the criminal justice system and it is a fit case for interference. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  7. 7. Per contra, learned counsel appearing on behalf of respondent No.1-State has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the application deserves to be dismissed. According to learned counsel for respondent No.2, she had already moved application for maintenance and the application under Section 9 of HMA has been filed subsequently by the applicant No.1 which itself shows the intention of the applicants to cause delay in decision of application for maintenance filed by her. As per learned counsel for respondent No.2, the Supreme Court in the case of Taramani Parakh vs State of M.P., 2015 (2) JLJ 1 (SC), has held that legitimate prosecution cannot be stifled by resorting to petition underSection 482 CrPC as there has to be a trial conducted to arrive at a conclusion about the participation of accused persons in the crime. Therefore, the application merits no consideration and liable to be dismissed.
  8. 8. I have considered the rival contentions raised on behalf of the parties and have perused the documents placed on record along with the present application.
  9. 9. The parameters on which the indulgence can be shown for exercising powers available underSection 482 CrPC with respect to matrimonial matters have been laid down by the Apex Court in the case of Geeta Mehrotra vs State of U.P. (2012) 10 SCC 741 in the following manner : “20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 21. It would be relevant at this stage to take note of an apt observation of this Court recorded in G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693 : 2000 SCC (Cri) 733] wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: (SCC p. 698, para 12) “12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their ‘young’ days in chasing their ‘cases’ in different courts.” The view taken by the Judges in that matter was that the courts would not encourage such disputes.”
  10. 10. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal v. Devi Polymers (P) Ltd., (2016) 6 SCC 310, wherein the Hon’ble Court referred to the earlier decision, observed in the following manner :-  “15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , this Court observed as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  11. 11. In the context of the law laid down by the Apex Court, the plain reading of the complaint submitted by respondent No.2, which has been reproduced in the FIR dated 18.12.2013, goes to show that the allegations relating to commission of offence punishable under Section 498-A of IPC are omnibus and do not refer to any specific act of the applicants. According to the complaint, the respondent No.2 was subjected to cruelty due to non- fulfillment of demand of Indica Car in dowry by the applicants. It is undisputed in the instant case that the marriage was solemnized on 21.11.2007. Although the complaint is silent about the fact as to when she left the matrimonial house. Further, with respect to this allegation, the applicants have brought on record the registration certificate issued by transport department on 10.1.2008 with respect to Indica Car. Moreover, the documents reflecting TATA Sumo in the name of applicant No.2 and other four-wheeler have also been brought on record. On cumulative consideration of these circumstances, it is revealed that the accusations regarding cruelty and harassment for demand of Indica Car are absurd and improbable. At this stage, it is important to note that the documents tantamount to material filed by the applicants in their defence and as per the judicial pronouncement by the Supreme Court on consideration of defence material at a preliminary stage in a criminal prosecution, such documents cannot be made basis for taking any decision. But, the Apex Court in the case of Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, has held as under: “21. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as Euclid’s formula [vide Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887 : JT (2008) 8 SC 621] ]. As observed by this Court in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani(2004) 8 SCC 579 : AIR 2004 SC 4778, observations of courts are neither to be read as Euclid’s formula nor as provisions of the statute. 22. Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”
  12. 12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.
  13. 13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.
  14. 14. In this view of the matter, the present application under Section 482 CrPC is partly allowed. Accordingly, the FIR and the consequent proceedings so far as they relate to the offences punishable under Sections 498-A and 294 of the IPC are quashed. However, with regard to remaining offences, the proceedings shall continue.
  15. 15. It is made clear that the trial Court shall decide the case without being influenced by the observations made by this Court.

(S.K.Awasthi) Judge.

#LOC #QUASH for #US based #NRI #husband! Classic #MP #HC case, citing cogent reasons why LOC should be quashed

#LOC #QUASH for #US based #NRI husband! Classic #MPHC case, citing cogent reasons why LOC should be quashed

Honourable court quashes LOC even though opposite party opposes. Husband has already obtained AB which is cited by the Hon court. Hon court cites key Madras HC decision on similar issue

COURT SCALES

From the case we note that that : ///it would be relevant to mention herein that since the petitioner’s application for anticipatory bail was pending, he did not appear before the authorities, but, duly cooperated through emails. ///

and the Honourable court observes : /////In the present case, also as the petitioner was already released on bail by the Court, the apprehension that the petitioner may not make himself available and amenable to law, has gone. Thus, in view of the aforesaid, the petition filed by the petitioner is allowed. The Look Out Circular dated 10.03.2016 issued against the petitioner is hereby quashed.///

 

Madhya Pradesh High court

W.P. No. 11468/2016

(SUMIT KUMAR VS. STATE OF M.P. & OTHERS)

15.11.2016

Shri Anil Khare, learned senior counsel with Shri Harjas Singh Chhabra, learned counsel for the petitioner.

Shri B.D. Singh, learned Government Advocate for the respondents/State.

The petitioner has filed the present petition praying for quashment of Look Out Circular (LOC) dated 10.03.2016 passed by the respondents against the petitioner.

The petitioner has entered into the marriage with one Jaya Sharma on 05.07.2013 as per rituals of Arya Samaj. Thereafter, the marriage was took place as per Hindu Rituals on 08.03.2014. The complainant i.e. wife of the petitioner has went with him at America. She, thereafter, made a complaint that the petitioner and his parents are harassing her with regard to dowry and further used to physically assault her. On the basis of these allegations she had lodged an FIR on 08.08.2015. The petitioner lives in USA since 2007 and is working there since then. As soon as, the petitioner got the knowledge about the registration of FIR. He himself reached out to the Indian Embassy located in Washington DC and explained the whole situation to the highest officers in the Indian Embassy. The Indian Embassy, thereafter, passed all the information in the form of written document to the DGP Office Bhopal via Ministry of External Affairs. The family members of the petitioner also submitted their written statements to the Policy Authorities. As the FIR was lodged against the petitioner, the petitioner, therefore, filed an application for anticipatory bail under Section 438 of the Cr.P.C before this Hon’ble Court, which was registered as M.Cr.C. No. 5117/2016. This Court vide order dated 28.04.2016 has granted the anticipatory bail to the applicant, subject to certain conditions. During the pendency of this case for grant of anticipatory bail to the petitioner the Police Authorities filed a charge-sheet against the petitioner’s parents as well as the petitioner under Section 299 of the Cr.P.C. While seeking permission to file the charge-sheet, the City Superintendent of Police vide its letter dated 28.03.2016, written to respondent No. 2 stating for issuance of Look Out Circular (LOC) against the petitioner. Thereafter, the charge-sheet was handed over to the petitioner’s family at the time of filing of the same. When the brother of the petitioner came to know that the LOC has been issued against the petitioner. The petitioner’s brother, therefore, wrote to respondent No. 2 and also respondent No. 3 intimating the grant of anticipatory bail to the petitioner. It has been further stated that the petitioner is willing to appear before the trial Court and thus requested the respondent No. 2 to cancel the Look Out Circular opened against the petitioner. It has further been stated that from the letter dated 28.03.2016, it is clear that the LOC is issued solely on the ground that the petitioner is not appearing before the Court, however, it would be relevant to mention herein that since the petitioner’s application for anticipatory bail was pending, he did not appear before the authorities, but, duly cooperated through emails. It has further been stated that the reason for issuance of LOC has now become non existence as the petitioner after grant of anticipatory bail wants to come to India to duly appear before the trial Court. The petitioner has stated that the LOC has been issued arbitrarily without any justifiable reasons as the petitioner was duly cooperating with the investigation and always wanted to appear before the authorities subject to decision in his anticipatory bail application. Thus, against the said action of the respondents, the petitioner has filed the present writ petition.

The respondents have filed their reply and submits that as the petitioner was not appearing before the authorities and, therefore, the LOC was issued against the petitioner and the proceedings of issuance of LOC were initiated before grant of anticipatory bail by this Court. However, in view of the fact of grant of anticipatory bail to the petitioner, the respondents have submitted that the petitioner shall be released on bail immediately on his arrest as per the mandate of this Hon’ble Court in anticipatory bail order. It has further been stated that on prior intimation of date and place at which petitioner Sumit Kumar would come to India from USA, the answering respondents/police shall make all arrangements to ensure that he is not arrested and is given a reasonable time to fulfill the conditions for grant of bail as per the order passed by this Court i.e. Annexure P/4.

Learned senior counsel appearing on behalf of the petitioner submits that the sole object of issuance of LOC is to make the presence of the person who is not appearing before the Court in spite of issuance of non bailable warrant. He submits that in the present case, the petitioner is always ready to appear before the trial Court. He further submits that as now the anticipatory bail has been granted by this Court and, therefore, the LOC be quashed. He further submits that the petitioner wants to appear before the trial Court, however, due to issuance of LOC, the moment the petitioner would land in India, the immigration department would dealt him and hand over him to the Police Authorities of the said jurisdiction who make keep him in custody till an Officer of Bhopal Police does not reach to arrest him. He further submits that the said exercise would amounts to curtailing the personal liberty of the petitioner irrespective of the fact that he has been granted anticipatory bail. He further submits that the petitioner did not appear before the authorities, as his application for anticipatory bail was pending before this Court. He further submits that the LOC is to be issued only in the case where a person after issuance of the non bailable warrant did not appear before the authorities. However, in the present case, the LOC was issued on 10.03.2016 and non bailable warrant is issued against the petitioner on 25.04.2016. Thus, the LOC is issued prior to issuance of non bailable warrant. He further relied on the judgement passed by the Madras High Court in the case of Arockia Jeyabalan Vs. The Regional Passport Officer, Mount Road, Chennai & Others, 2014-4-L.W. 841. In such circumstances, the learned senior counsel submits that the LOC be quashed.

On the other hand, learned counsel appearing for the respondents supports the issuance of the LOC. He submits that the investigating agency is very within its jurisdiction to issue a Look Out Circular in cases where the accused was deliberately evading arrest or not appearing in the trial Court despite non-bailable warrant. The circular issued by the Central Government, it provides that a request for issuance of LOC is to be made by the investigating officer to the competent authority of the Central Government and the person against whom the LOC is issued must join investigation by appearing before the IO or should surrender before the Court concerned or should satisfied the Court that LOC was wrongly issued against him and if the IO satisfied that the LOC has been wrongly issued he may withdrawn it. He further argues that now as the anticipatory bail has been granted to the petitioner then, the Police Authorities shall make all arrangements to ensure that he is not arrested and he will be given a reasonable time to fulfill the conditions for grant of bail. I have heard learned counsel for the parties and perused the record.

The petitioner had married to one Jaya Sharma in the year 2013 and FIR was lodged by Jaya Sharma i.e. complainant for offences punishable under Section 498-A, 506 and 34 of the Indian Penal Code and also Section 3/4 of the Dowry Prohibition Act on 08.08.2015 to the Police Station Mahila Thana, Bhopal. As soon as, the petitioner got the information about the registration of FIR against him. As he is residing at USA, he went to the Indian Embassy and explaining them about the all incident. The Petitioner duly followed with all Police Officers via email, thereby, stating that the petitioner’s clear intention to cooperate with the investigation. As the FIR was registered against the petitioner, the petitioner, therefore, filed an application under Section 438 of the Cr.P.C for grant of anticipatory bail. This Court vide order dated 28.04.2016 has allowed the application submitted by the petitioner and grant the anticipatory bail to the petitioner. In the mean time, the respondents have issued a Look Out Circular against the petitioner and, therefore, he is not able to come back to India to fulfill the conditions of the bail order, as the moment he would land in India, the immigration authorities at the Airport would arrest him in terms of the Look Out Circular opened against the him. The object of Look Out Circular is to ensure that a person is available for interrogation or trial or enquiry. However, in the present case, as the petitioner has already been released on anticipatory bail and, therefore, there is no reason to keep the LOC pending against the petitioner.

It has been stated by learned senior counsel that the petitioner is ready to appear before the trial Court and cooperate with the investigation and, therefore, there is no reason to keep the LOC pending against the petitioner. The Madras High Court in the case of Arockia Jeyabalan (supra) in paragraph 12 has held as under:-“The object of a Look Out Circular is to ensure that a person is available for interrogation or trial or enquiry. Now that the Court has released him on bail subject to certain conditions as well as sureties, the apprehension that the petitioner may not make himself available and amenable to law, has gone.”

The Madras High Court in the said case has held that the object of the LOC is to ensure that a person is available for interrogation or trial or enquiry and now as the Court has released him on bail on certain conditions as well as sureties, the apprehension that the petitioner may not make himself available and amenable to law, has gone. In the present case, also as the petitioner was already released on bail by the Court, the apprehension that the petitioner may not make himself available and amenable to law, has gone. Thus, in view of the aforesaid, the petition filed by the petitioner is allowed. The Look Out Circular dated 10.03.2016 issued against the petitioner is hereby quashed.

(Ms.Vandana Kasrekar)

Judge

Second #FAKE #498a filed on same Fake grounds at a different police station! #Quashed !! Anup Agrawal vs The State Of #Madhya #Pradesh on 16 #April, #2018

Notes

Soon after marriage wife demands LAKHS and LAKHS of money from her newly wed husband !! The Husband is unable to provide the same !! So she refuses to join matrimonial home. Wife then goes on to file #FAKE #498a at #Indore PS. The Indore police arrange for counseling sessions and the woman agrees that there were “differences” between the couple (NOT dowry cruelty !! ) and they agree to part ways !

Still the woman files a SECOND fake 498a from a different Police station. Husband tries to impress on the second PS that the case in the same grounds the first cace (which was closed) . Still the second PD file a charge sheet !

So the husband and co run to MH HC and seek quash. https://twitter.com/ATMwithDick

The Hon MP HC sees the ABUSE of process of law and quashes the entire 498a case !!


Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018

Madhya Pradesh High Court

Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018

M.Cr.C.No10858/2017 (Anup Agrawal & Ors. Vs. State of M.P. & Ors..)

High Court of Madhya Pradesh: Bench at Indore

Single Bench: Hon’ble Shri Justice S.K. Awasthi

M.Cr.C. No. 10858/2017

Anup Agrawal & Ors.

vs.

State of Madhya Pradesh & Ors.


Shri Anup Agrawal, present in person.

Mrs. Mamta Shandilya, learned Govt. Advocate for the respondent No.1/State.

Shri Vinod Kuma Bhavsar, learned counsel for the respondent No.2/complainant.


ORDER

(Passed on April 2018 )

  1. The applicants filed instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘The code’) seeking quashment of FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR. https://twitter.com/ATMwithDick
  2. 2. The necessary facts leading to filing of the instant petition are that the marriage of applicant No.1-Anup Agrawal was solemnized with respondent No.2-Trupti Agrawal on 24/04/2014 as per Hindu rituals and customs. Respondent No. 2 made a complaint against the applicants alleging that in the marriage her parents had given ornaments, household articles and cash of Rs.3.50 Lacs to the applicants. However, after the marriage, all the accused persons started to harass the respondent No. 2 alleging that her parents had given nothing in the marriage and they demanded money from her. At the time of Diwali festival in the year 2014 the applicants beat her and she was thrown out of her matrimonial home. On the basis of aforesaid allegations an FIR for commission of offence under Sections 498(A) and 323/34 was registered against the applicants at Police-Station Lasudiya and after completion of investigation charge-sheet was filed. In the month of June 2015, the applicant was transferred to Ahemdabad but the respondent No.2 refuse to accompanied him, since she did not want to give her job in the ICICI Bank, Indore. Applicant No.1 tried to relocate back to Indore. Respondent No.2 informed the applicant No.1-in the mid-August 2014 first time that she owed a debt liability of approximately Rs.25 Lacs against Indore Development Authority flat situated in Anandvan (Highrise), Scheme No. 140 and she is paying an EMI of approximately Rs.25,000/- towards the said loan from July 2015. On 01/12/2015, respondent No.2 asked the applicant No.1 to help her for Rs. 6,54,080/- to enable her to get possession of the aforesaid flat, however, due to a shortage of funds the applicant No.1 was unable to help the respondent No.2 to pay the same and because of this respondent No.2 got furious with the applicant No.1 and refused to come back to the matrimonial home. Applicant No.1 applied for new job and he got his new assignment at Pune but respondent No.2 refused to come to Pune saying that she cannot stay in relationship with a person, who cannot arrange money for her when she needs it. On 20/12/2016, a family meeting was arranged in Neemuch to resolve the said issued. But respondent No.2 did not turn up on the aforesaid date. Thereafter, applicants made several attempts for reconciliation but they have not received any response from respondent No.2. On 27/09/2016, at the house of family friend of the applicant a family meeting was arranged, in which respondent No.2 alongwith her father and other relatives were present in an extremely aggressive manner and threatened that they would implicate the applicants in false case under the Domestic Violence and Dowry Prohibition Act in order to harass and humiliate the applicants and tarnish their reputation. They abused applicant Nos. 2 & 4 and attempted to assault the applicant No.1. In this regard applicant No.4 lodged a complaint against the said intimidation and threatening in the Police-Station at Neemuch. https://twitter.com/ATMwithDick
  3. 3. On 01/12/2016, respondent No.2 filed a complaint against the applicants at the Mahila Thana, Indore alleging that the she was treated with cruelty by the applicants in order to extract the dowry from her parents. There upon the applicants were summoned by the Mahila Thana, Indore. Whereupon the police recorded the statement of the applicants and respondent No.2 . During counseling proceedings and respondent No.2 could not substantiate her case against the applicants and then she sought some time to think and to provide evidence of her allegations against the applicants. On 18/12/2016, another counseling session was conducted, in which they came to the conclusion that the differences have arisen between them and respondent No.2 was agreed to file a petition for dissolution of the marriage by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 with the condition that she wanted back of her belongings that may be lying at the house of applicant No.1. On 18/12/2016, the respondent No.2 collected her remaining belongings under the supervision of the SHO, Mahila Thana from their rented housed situated at Nipaniya, Indore and the Police-Station Mahila Thana filed a closure report before the Court of Judicial Magistrate First Class.
  4. 4. On 06/01/2017, the respondent No.2 again made a false complaint against the applicants with identical facts at Police-Station-Lasudiya, Indore, where FIR bearing Crime No. 14/2017 got registered for the offence under Sections 498(A) and 323/34 of the IPC against the applicants. Then the applicant No.1 tried in every possible manner to bring to the notice of the Police-Station-Lasudiya, Indore that the said FIR had been registered on the basis of a false and malicious complaint and that the said issues between the parties stood resolved, with the written consent of the respondent No.2, during the previous proceedings in the Mahila Thana, Indore, in December 2016. However, no heed was paid to the requests of the applicant No.1 and charge-sheet was filed against the applicants before the Court of Additional Chief Judicial Magistrate, Indore. The aforesaid charge-sheet is completely malafide and illegal and there is no ground for prosecution of the applicants are available. Only vague and omnibus allegations has been made in the complaint, which are totally false and concocted, therefore, FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR is liable to be quashed. https://twitter.com/ATMwithDick
  5. 5. Per contra learned counsel appearing on behalf of respondents has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the petition deserves to be dismissed.
  6. 6. I have considered the rival contentions raised on behalf of the parties and have perused the documents placed on record along with the present application.
  7. 7. The parameters on which the indulgence can be shown for exercising powers available under Section 482 of the Cr.P.C. with respect to matrimonial matters have been laid down by the Apex Court in the case of Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 in the following manner: ” 20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere M.Cr.C.No10858/2017 casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specifically if it happens soon after the wedding.
  8. 8. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal Vs. Devi Polymers (P) Ltd; (2016) 6 SCC 310, wherein the Hon’ble Court referred to the earlier decision, observed in the following manner:- “15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, 1988 SCC (Cri) 234}, this Court observed as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” https://twitter.com/ATMwithDick
  9. 9. However, it has been held by the Apex Court in the case of Satish Mehra Vs. State (NCT of Delhi) and anotdher, AIR 2013 SC 506 that the power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as the case may be, prima facie do not disclose a triable offence, there can be no reason as to why the accused should be made to suffer the agony of legal proceedings. Thus, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of charge against the accused.
  10. 10. It has been held in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604, that where a criminal proceedings is manifestly attended with male fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, extraordinary or inherrent powers reserved to the High Court under Section 482 of the Code of Criminal Procedure can be exercised to quash the first information report.
  11. 11. In the context of the law laid down by the Apex Court , the plain reading of the FIR lodged by the respondent No.2, goes to show that the allegations relating to commission of offence punishable under Section 498(A) of the IPC are omnibus and do not refer to any specific act of the applicants. Although she has made an allegation that on 27/04/2014, when they had gone to Shimla (H.P.) for their honeymoon, the applicant No.1-taunted her alleging that her father has not given anything in the dowry and on Diwali festival of the year 2014, the applicants beat her with respect to demand of dowry, but she has not made any complaint regarding these incidents till 2016, which clearly indicates that all these allegations are vague and false. https://twitter.com/ATMwithDick
  12. 12. On 18/12/2016, at Mahila Thana Indore respondent No.2 made the following statement, which reads as under:- ” I, Trupti W/o Anup Agrawal, give this undertaking today i.e. on 18/12/2016 after counseling at Mahila Thana, Indore both of us husband and wife thinks that our thoughts does not match and it is not possible for us to live together any more. I wants to return my belongings from my husband and he is agreed to return the same. We will transfer our belongings with mutual understanding and we will file a divorce petition before the Court with mutual consent.”
  13. 13. The reproduced portion makes it clear that after counseling sessions both the parties came to the conclusion that the differences have arisen between them, therefore, they cannot be live together and respondent No.2 was agreed to file a petition for divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955. In the context of the aforesaid understanding which has been arises between the parties, Mahila Thana Indore filed a closure report of the matter on 13/12/2016.
  14. 14. However, on 06/01/2017, the respondent lodged FIR at Police-Station Lasudiya for the same ground by suppressing the proceedings of Mahila Thana, Indore. In the FIR lodged at Police-Station-Lasudiya she alleged that even after 2-3 counseling sessions, the applicants persisted for their demand of dowry, which is absolutely contrary to the proceedings held at Mahila Thana, Indore. From the proceeding of Mahila Thana, Indore, it is transpired that after 2-3 days of the marriage respondent No.2 stayed with her husband-Anup Agrawal and sister-in-law-Alka Agrawal at Indore. Applicant No.1-Anup Agrawal due to his transfer left to Ahemdabad and then to Pune alone for the reasons that respondent No.2 was working at ICICIU Bank, Indore and she did not go with him. From the impugned FIR, it is clear that respondent No.2 is living separately since 23/11/2015 and she has not interested to live with her husband, therefore, it is difficult to believed that the applicants subjected her to cruelty on the pretext of demand of dowry. From the statement of the respondent No.2 given before the Mahila Thana, Indore, it is apparent that applicant Nos. 2 & 4 never lived with her, therefore, it cannot be accepted that they made any demand of dowry with the respondent No.2 and ill treated her with regard to the fulfillment of their demand. After counseling at Mahila Thana, Indore respondent No.2 and applicant No.1-Anup Agrawal, agreed that they will file a petition for divorce in writing and the parties were rided for court proceedings for the reason that the respondent No.2 does not want to live with applicant No.1 anymore. It is also pertinent to note that the respondent No.2 has already filed a divorce petition against applicant No.1 at family Court, Indore. While Mahila Thana, Indore has filed a closure report on the complaint filed by respondent No.2, then registration of FIR against the applicants for the same ground at Police-Station Lasudiya is nothing but a sheer abuse of the process of law.
  15. 15. Under these circumstances, the present application under Section 482 of the Cr.P.C. is allowed. Consequently, FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR are hereby quashed.

Certified copy as per rules.

(S.K. Awasthi) Judge

skt Digitally signed by Santosh Kumar Tiwari Date: 2018.04.17 10:30:08 +05’30’

Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018
— Read on indiankanoon.org/doc/193260203/

75 lakhs ONLY in #PermanentAlimony for a marriage that was troubled from the VERY beginning !!

////Immediately after six months of the marriage differences have started between them and most of the time they remained separately. /////
However a good case if someone wishes to #WaiveSixMonths, #WaiveCoolingPeriod for #MutualConsent #divorce
#MPHC #MadhyaPradeshHighCourt
===================================

Madhya Pradesh High Court
Smt. Iti vs Sharad on 8 December, 2016
WP-8119-2016
(SMT. ITI Vs SHARAD)

08/12/2016 :-

Shri Ritesh Inani, learned counsel for the petitioner.

Heard on the question of admission : Admit.

Issue notice to the respondent.

Shri Padbhanabh Saxena accepts notice on behalf of the
respondent.

They are heard.

The present petition is preferred against the order dated
05/12/2016 passed by the learned Family Court, Indore in
HMA case No.1536/2016, whereby the learned Judge has
dismissed the joint application filed by the parties for
waiving off the cooling off period of six months provided
under Section 13-b (2) of the Hindu Marriage Act, 1995.
The Division Bench of this court by order dated 29.9.2016
passed in W.P. No.6541/2016, considered this question
and remanded the matter to the learned trial court to
decide a fresh in accordance with law. Order dated
29.9.2016 passed in W.P. No.6541/2016 reads as under :-
�Petitioner has preferred this petition with
joint affidavit of himself as well as of
respondent being aggrieved by the order
dated 15.9.2016 passed in HMA Case
No.1165/2016 by which IInd Additional
Principal Judge, Family Court, Indore has
dismissed their joint application for waiving
off cooling period of six months as provided
under section 13-B(2) of the Hindu Marriage
Act.

2. Facts of the case are as under :-

Marriage of petitioner and respondent was solemnized in the year 2002 under the Hindu customs and rites. Immediately after six months of the marriage differences have started between them and most of the time they remained separately. Out of their marriage one child Samyak was born in the year 2011 who is presently residing with respondent/wife. Due to increase of differences between them they finally started living separately since last 2-3 years. Since the efforts of reconciliation made by the relatives and members of the society have failed they decided to seek divorce by way of mutual consent and accordingly they moved an application under section 13-B of the Hindu Marriage Act before the Family Court, Indore on 6.5.2016. Before entertaining the said application they were directed to appear before the Mediator, however, the mediation has failed which is evident from the report dated 14.10.2016. Since the petitioner and respondent has made up mind to seek divorce, therefore, they moved an application before the Family Court for waiving off the cooling period of six months. Vide impugned order dated 15.09.2016 learned Family Judge has rejected the application on the ground that the Family Court has no jurisdiction to waive off the cooling period of six months, hence the present petition before this Court.

3. Shri Ajay Bagadia, learned counsel for the petitioner submits that when parties have decided to take divorce by way of mutual consent then in view of the law laid down in the case of Nikhil Kumar v. Rupali Kumar reported in AIR 2016 SC 2163, in the case of Virendra Singh Rajak vs. Seema Rajak reported in 2015 (3) MPLJ 188 and in the case of Deepak (Dr.) v. Smt.Tanuja reported in 2003 (2) JLJ 121 the cooling period is liable to be waived off and the learned Family Court be directed to pass the divorce decree.

4. The aforesaid prayer is not opposed by the respondent who is appearing in person as they jointly filed this present petition. That both petitioner as well as respondent appeared before this court and jointly submitted that they are not able to live together and they mutually agreed that the marriage should be dissolved forthwith and the consent has not been obtained by force or fraud or undue influence. As per the terms and conditions of the divorce petitioner/husband has agreed to give Rs.60 lacs as permanent alimony and in addition to this Rs.15 lacs would be paid in the name of his son Samyak. Petitioner as well as respondent are well educated and belong to the respected families and there is no other dispute between them.

5. The approach of Apex Court in the case of Yogendra Yadav and others vs.State of Jharkhand and another reported in (2014) 9 SCC 653 is that in the cases of compromise petition filed by the parties, the criminal proceedings should be quashed to secure the ends of justice to avoid wastage of time and energy and there is no use of keeping the criminal trial pending even in non- compoundable cases.

6. Now we have to consider when Supreme Court has waived off the period of six months in exercise of powers under Article 142 of the Constitution of India whether High Court can also waive off the cooling period of six months. In pending first appeal this Court has waived off cooling period and granted the decree of divorce by allowing joint application filed u/s 13-B of the Hindu Marriage Act. The question is whether in writ petition can we pass decree of divorce directly or we may direct the Family Court to pass the decree of divorce by waiving off cooling period of six months. To opt second option, we have to consider whether period of six months is mandatory or directory in nature before passing decree of divorce by mutual consent.

7. The Andhra Pradesh High Court in the case of K.Omprakash v. K.Nalini reported in AIR 1986 AP 167 held as under:

10. For all the above reasons, we are of the
opinion that S. 13-B(2)of the Hindu Marriage Act
should be read as directory only. S. 13-B(2), no
doubt cautions the Courts of its duty to fight
the last ditch battle to save the marriage; but
when the Court is fully satisfied, on the basis
of the proved facts, that in the interests of
justice of the society and the individuals
marriage tie should be put asunder immediately,
S. 13-B(2) does not impose any fetter on the
power of the Court to grant instant decree of
divorce. At any rate, we are clearly of the
opinion that the time-table fixed by S. 13-
B(2)does not apply to an appellate Court. The
great Telugu poet Vemana said that the broken
iron can be joined together, but not broken
hearts. Parties have been living apart for long
and their wedlock has now virtually become a
deadlock. Chances of reunion had completely faded
away. In these circumstances, we think it just
and proper to grant a decree of divorce
straightway. Accordingly we pass a decree of
divorce declaring the marriage between the
appellant and the respondent as dissolved with
immediate effect.

8. The Kerala High Court in the case of Sreelatha v. Deepthy Kumar reported in AIR 1998 Kerala 97 held as under :-

5. We are of the view that this Court can act on
the Memo of Compromise filed before us as
indicative of a sane and sober thinking after
exploring all possible avenues, if any, for
bringing about a union to dissolve the marriage,
having failed. We have also verified from the
appellant- wife as also the respondent-husband in
the presence of their respective counsel in open
Court, who also have represented before us that
the Memorandum of Compromise has been filed after
great deliberations and consideration of the pros
and consinvolved in the matter. The terms and
conditions, subject to which the parties have
agreed to have the dissolution of their marriage
make it clear that each one of them has no
further subsisting claims over the other.
9. The Karnataka High Court in the case of Smt. Roopa Reddy v. Prabhakar Reddy reported in AIR 1994 Karnataka 12 held as under:

13. The next question is whether the requirement
under S. 13-B of the Hindu Marriage Act has to be
considered as mandatory or directory. The words
used in the Section shall have to be read in the
context in which the liberalized provision has
been made by the legislature enabling the
unwilling parties to seek divorce instantaneously
and thus to put an end to the untold misery. When
the intention of the Legislature in introducing
S. 13-B(2)is to liberalize and to unlock the
wedlock, the legislature has never intended the
period of 6 months mentioned in the Act shall be
strictly complied with. But, in spirit the
Section is directory in nature and it has been
incorporated to help 2 discordant spouse to get
quick separation and to lead their remaining life
without any agony. If S. 13- B(2)is read as
mandatory, the very purpose of liberalizing the
policy of decree of divorce by mutual consent
will be frustrated. Thus, S. 13- B(2), though it
is mandatory in form is directory in substance.

18. Marriage is an union of 2 hearts. Success of
married life depends on the edifice built with
the mutual trust, understanding,love, affection,
service and self sacrifice. Once this edifice is
shaken, happy married life will be shattered into
pieces. The result is one of misery and emotion.
Whether one accepts it or not liberalization in
the way of living of individuals and reformation
in age old customs and due to modernization and
understanding of individual rights and equal
status irrespective of sex it is natural for
either of the spouse to seek for dissolution.
Where the marriage tie has been broken, the Court
has to look to the interest of the parties and
the welfare of the children as paramount. When it
is impossible to live like husband and wife, any
compulsion to unite them will lead to social
evils and disturbance of mental peace and
disorder in the family life. However rigid social
fabric it is not the social system but the
persona] safety of the parties to the wedlock,
shall prevail. This should be the guiding
principle in view of S. 13B(1) of the Act. There
is complete destruction of the essence of
marriage between parties and it has reached the
stage of irretrievable breakdown.

19. In the background of the circumstances
narrated in the case,the request made by both
parties for divorce by mutual consent is the only
just and proper way to allow them to spend their
remaining period of life happily with contentment
instead of compelling them to lead a miserable
and emotional life without any constructive
purpose.

10. The Madras High Court in the case of R. Venkatasubramanian vs. Ramya Ganesan in Civil Revision Petition (PD) No.2443 of 2016 held as under:

3. L e a r n e d counsel submits that
petitioner/husband filed H.M.O.P. No.314 of 2012
on the file of learned Subordinate Judge,
Poonamallee, seeking divorce. Both
petitioner/husband and respondent/wife have been
living separately over a period of four years and
hence, they have entered into a Memorandum of
Understanding and filed H.M.O.P.No.320 of 2016
seeking divorce by mutual consent. They have also
filed I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320
of 2016 to waive the minimum waiting period of
six months after presentation of petition for
divorce by mutual consent. Learned counsel
submits that as per Section 13B(1)of the Hindu
Marriage Act, 1955, a petition for divorce by
mutual consent could be filed after completion of
one year of marriage. In the instant case, both
petitioner and respondent have not been living
together for the past four years and hence, they
have filed I.A.S.R. No.5814 of 2016 in H.M.O.P.
No.320 of 2016 seeking grant of waiver, which was
returned by the Court below. Hence, this revision
has been filed seeking a direction to learned
Subordinate Judge, Poonamallee, to take the case
in I.A.S.R. No.5814 of 2016 in H.M.O.P. No.320 of
2016 on file.

9. … Hence, the object of the cooling period
of six months is to-retrieve the difference of
opinion between the parties. But here, there is
no chance for reunion. Because already both the
parties are waiting for a long period and only in
the Mediation, the matter was settled. In such
circumstances, I am of the view, to render
complete justice to the parties, six months’
cooling period mentioned under Section 13-B(2)of
the Hindu Marriage Act is not a bar to grant
mutual consent immediately.

10. Further more, on considering the Agreement
entered by the parties before the Mediation and
on that basis only, Divorce Petition on mutual
consent has been filed, this Court is of the
opinion that six months’ cooling period under
Section 13-B(2)of the Hindu Marriage Act is
hereby dispensed with and the Principal Family
Court, Chennai, is directed to record the
evidence of both the parties and dispose of the
Petition filed under Section 13-B of the Hindu
Marriage Act in accordance with law.

11. That the Apex Court in the recent case of Nikhil Kumar vs. Rupali Kumar (supra) has considered the educational background of the appellant as well as respondent and considering the facts and circumstances of the case the cooling period was reduced and granted the decree of divorce under section 13-B of the Hindu Marriage Act. In the case of Virendra Singh Rajak vs. Seema Rajak (supra) this Court after considering various judgments of the Supreme Court has granted the decree of divorce by reducing the cooling period. In the case of Deepak v. Smt. Tanuja (supra) this Court has held that this Court as well as the trial Court at any stage of proceeding can grant decree by mutual consent if the conditions laid down in section 13-B and Section 23 of the Act are fulfilled by waiving off the period of six months. In the present case petitioner and respondent filed an application for mutual divorce on 6.9.2016. In the aforesaid cases the Supreme Court has granted the decree of divorce in exercise of powers under Article 142 of the Constitution of India. The High Court has also granted the decree of divorce under section 13-B in number of pending regular appeals under the provisions of the Hindu Marriage Act but here the petitioner has filed the writ petition challenging inter alia the order of the Family Court, therefore, in which we cannot directly grant the decree of divorce to the petitioner but instead of granting the decree of divorce we direct the petitioner as well as respondent to appear before the Family Court on 14.10.2016 which is already fixed for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said section.

12. With the aforesaid direction, writ petition is disposed off.

No order as to costs.� In view of the aforesaid, we direct the petitioner as well as respondent to appear before the Family Court on 09/01/2017, for conciliation and the Family Court is directed to grant divorce decree to them under section 13-B of the Act by waiving off the cooling period of six months but after following other procedures as contemplated in said Section. With the aforesaid direction, writ petition is disposed of. No order as to costs.

C.C. as per rules.

Aiyer*

(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE