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2005 DIGILAW 3156 (RAJ)

Pradeep Kumar Jain v. Veena Jain

2005-11-29

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-Petitioner has challenged the continuation of the criminal proceedings in a Complaint Case No. 103/1995 (Old No. 94/1990) pending before the learned Additional Civil Judge (Sr. Dn.) and Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur for offences under Sections 498-A, 406 and 494, IPC. 2. The brief facts of the case are that the petitioner, Pradeep Kumar Jain and Respondent No. 1 Smt. Veena Jain were married according to Hindu rites on 24.05.1982. During the subsistencey of the marriage a daughter was born on 11.05.1984. It seems that after a few years, certain difficulties arose between the parties. Therefore, on 28.01.1985 the petitioner moved a petition under Section 13 of the Hindu Marriage Act, 1955 for obtaining a divorce decree on the ground of cruelty and desertion on the part of the wife. However, vide order dated 07.06.1991 the Family Court, Jaipur dismissed the said petition. Thereafter, the petitioner filed D.B. Civil Misc. Appeal No. 172/1994. On 09.03.1994 this Court issued notice to the Respondent No. 1. During the pendency of the said appeal, a settlement was arrived at between the parties-the petitioner and the Respondent No.1 Therefore, a joint application under Section 13-B of the Hindu Marriage Act, was filed before this Court. On the basis of the joint application on 08.09.1998, this Court allowed the application and directed the Family Court, Jaipur to prepare a decree of divorce on the basis of mutual consent as per the settlement arrived at between the parties. As per the direction of this Court, the Family Court, Jaipur prepared a decree of divorce of mutual consent incorporating terms and conditions of the compromise entered into between the parties on 110.1998. Since, the words “A decree of divorce of mutual consent” was not inadvertently mentioned, therefore, the said decree was subsequently amended on 09.02.2001. It is pertinent to note that one of the conditions mentioned in the joint application filed under Section 13-B of the Hindu Marriage Act, before this Court in Condition No. 4 it was clearly stated that the Respondent No. 1 the wife is ready and willing to withdraw the Cr. Case No. 103/1995 pending before the learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur at that relevant time. Case No. 103/1995 pending before the learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur at that relevant time. However, despite the fact that such condition was recorded in the joint application, the said criminal case was not withdrawn by the Respondent No. 1. Since, the Respondent No. 1 has not implemented the undertaking given by her before this Court, this petition has been moved before us for quashing the proceedings pending in the aforesaid criminal case in accordance with the undertaking given by the Respondent No. 1 Smt. Veena Jain. 3. This matter came up before the Court for hearing on 11.2005 and the Court adjourned the case to 111.2005 with the direction to the learned Counsel for the parties to keep their respective parties present before the Court on the aforesaid date. However, on 111.2005 neither the Counsel for the Respondent No. 1 Smt. Veena Jain nor the Respondent No. 1 were present. Therefore, the matter was adjourned to 211.2005. On 211.2005 the Respondent No. 1 Smt. Veena Jain and her new Counsel Mr. Rajendra Dixit appeared and Mr. Dixit sought further time to study the matter, therefore, the case was adjourned to 211.2005. 4. Mr. Virendra Dangi the learned Counsel for the petitioner has argued that once an undertaking was given by the Respondent No. 1 in the joint application as Condition No. 4, she is legally bound to implement the same. Despite lapse of seven years, she has singularly failed to withdraw the criminal proceedings in a complaint case. Because of her omission, the petitioner has been facing trial for the last seven years in the said case. Although, the Respondent No. 1 has taken the benefit of her undertaking, she has not adhered to the undertaking given by her in the Court. He has further argued that since the undertaking has been given, a compromise had been arrived at between the parties, the criminal proceedings ought to have been quashed by this Court. 5. On the other hand, Mr. Dixit the learned Counsel for the Respondent No. 1 Smt. Veena Jain, has argued that the undertaking was given by the respondent under duress and compulsion. Hence, she cannot be forced to fulfill the conditions of the said undertaking. 5. On the other hand, Mr. Dixit the learned Counsel for the Respondent No. 1 Smt. Veena Jain, has argued that the undertaking was given by the respondent under duress and compulsion. Hence, she cannot be forced to fulfill the conditions of the said undertaking. Moreover, he has argued that the amount of permanent alimony which was given to the Respondent No. 1 at the time when the decree of mutual consent was passed is too little. Moreover, according to him the only daughter who was minor in the year 1998 has become major today. Therefore, the petitioner, who is the father of the daughter, should be compelled to give money to the Respondent No. 1 so that the respondent can take care of the daughter. He has also argued that the petitioner being the father of the daughter, he is under moral duty to ensure that his daughter would be married according to the status of the family. 6. We have heard the learned Counsels for the parties and perused the material on record. 7. A bare perusal of the joint application filed under Section 13-B of the Hindu Marriage Act, clearly reveals that according to Para 4 an undertaking was given by the Respondent No. 1 that she would withdraw the criminal proceedings in a Complaint Case No. 103/1995 pending before the Additional Chief Judicial Magistrate No. 4, Jaipur city, Jaipur. However, despite the lapse of seven years, she has not withdrawn the said criminal proceedings. She cannot be permitted to extricate herself from the undertaking given by her. And she is legally bound to implement the same. In case, there was any pressure of compulsion upon her when the said undertaking was given, she should have brought this fact immediately to the notice of this Court at, that particular time. It is too late in the day for her to plead that the said undertaking was given under duress. A bare perusal of the record also reveals that because of the said undertaking a decree of divorce of mutual consent was finally passed on 09.02.2001. Thus, she has already derived benefit from her undertaking; she cannot be permitted to have her cake and eat it too. Since, she has already derived the benefit of her undertaking, she is legally bound to implement it. 8. The Honble Supreme Court in the case of B.S. Joshi & Ors. Thus, she has already derived benefit from her undertaking; she cannot be permitted to have her cake and eat it too. Since, she has already derived the benefit of her undertaking, she is legally bound to implement it. 8. The Honble Supreme Court in the case of B.S. Joshi & Ors. vs. State of Haryana & Anr., 2003 (4) SCC 675 , has clearly laid down that the offence under Sections 498-A and 406, IPC can be compounded in case, the husband and wife arrive at a compromise. Similarly, in the case of Ruchi Agarwal vs. Amit Kumar Agarwal & Ors., 2005 (3) SCC 299 , the Apex Court was of the view that the continuation of the criminal proceedings after the respondents had entered into a settlement would be an abuse of the process of the Court. Therefore, even in that case, the Apex Court had quashed the criminal proceedings. In the present case, a bare perusal of the order dated 08.09.1998 reveals that the Respondent No. 1 was physically present before the Court and had filed an affidavit with regard to the undertaking. Hence, she cannot raise a plea that she had given the said undertaking under duress or coersion. Taking a cue from the decision of the Honble Supreme Court, we are of the view, that the criminal proceedings pending before the Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur should be quashed immediately. 9. However, before we part with this order, we would like to observe that a settlement has already been reached between the parties and as the permament alimony has already been paid to the Respondent No. 1 Smt. Veena Jain by the petitioner husband Shri Pradeep Kumar Jain, therefore, there is no basis on which this Court can compel a father to maintain his major daughter or to compel him to bear the expenses of her marriage. The issue of expenditure of marriage is strictly a family issue for which this Court cannot issue any direction. Thus, the contention raised by the respondent that the father should be directed to maintain the major daughter and to give money for her marriage are without any legal basis. 10. In the result, the Cr. Misc. Petition is allowed. The criminal proceeding pending before the learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur in Cr. Thus, the contention raised by the respondent that the father should be directed to maintain the major daughter and to give money for her marriage are without any legal basis. 10. In the result, the Cr. Misc. Petition is allowed. The criminal proceeding pending before the learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur in Cr. Case No. 103/1995 (Old No. 94/1990) for offences under Sections 498-A and 406 and 494, IPC against the petitioner husband is quashed and set-aside.