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Himachal Pradesh High Court · body

2016 DIGILAW 1975 (HP)

Manish Ghai v. Nancy Ghai

2016-09-15

P.S.RANA

body2016
ORDER : P.S.Rana, J. Present petition is filed under Section 482 code of criminal procedure 1973 read with Article 227 of Constitution of India for quashing order dated 7.3.2015 passed by learned Additional Sessions Judge II Solan HP in appeal No. 5-ASJII/ 10 of 2014 title Sh Manish Ghai Vs. Smt. Nancy Ghai. BRIEF FACTS OF THE CASE: 2. Smt. Nancy Ghai wife of Sh Manish Ghai filed application before protection officer under Protection of woman from domestic violence act 2005 alleging therein that she was married with Sh Manish Ghai on dated 8.7.2006 in Delhi. Applicant Smt. Nancy Ghai alleged that after marriage she had gone to Nahan in her matrimonial house. It is alleged by Smt.Nancy Ghai that her father-in-law Sh Surinder Mohan Ghai and her mother-in-law Smt. Vidya Ghai demanded dowry from her in her matrimonial house in the shape of fixed deposit, car, gold and TV. Smt. Nancy Ghai further alleged that her father-in-law is characterless person and he harassed her physically and threatened her that he would kill her and spoil her life. Smt. Nancy Ghai further alleged that her husband also harassed her mentally and physically and also tried to kill her in the month of February 2012. Smt. Nancy Ghai further alleged that she was also beaten several times. Smt. Nancy Ghai further alleged that she has two daughters. She has further alleged that Rhythm Ghai is five years old and younger daughter Rijul Ghai is 1½ years old. Smt. Nancy Ghai further alleged that her father-in-law used to tell that he would marriage Manish Ghai again because Smt. Nancy Ghai did not give birth to a male child. Protection officer forwarded the application of Smt. Nancy Ghai to Judicial Magistrate Kasauli. On dated 26.4.2012 learned Judicial Magistrate Kasauli recorded the statement of Smt. Nancy Ghai and Sh Manish Ghai and passed consent order to the effect that Sh Manish Ghai would pay sum of Rs.3000/- (Three thousand) per month i.e. Rs.1500/- (One thousand five hundred) per month to each of children as monthly allowance and would deposit the same in the account of Smt. Nancy Ghai. Learned Judicial Magistrate also passed consent order on dated 26.4.2012 that Sh Manish Ghai would meet the children but would not take children out of Kasauli and would not take children to their grand father. Learned Judicial Magistrate also passed consent order on dated 26.4.2012 that Sh Manish Ghai would meet the children but would not take children out of Kasauli and would not take children to their grand father. Learned Judicial Magistrate disposed of application filed under Protection of women from domestic violence act 2005 accordingly with the consent of Sh Manish Ghai and Smt. Nancy Ghai. Thereafter Sh Manish Ghai filed application under Section 25 of Protection of women from domestic violence act 2005 for alteration of consent order dated 26.4.2012 on the ground that Smt. Nancy Ghai has shifted to Delhi along with her two minor daughters and Sh Manish Ghai is teacher in Lawrence school Kasauli. Sh Manish Ghai sought permission to bring minor children from Delhi to Kasauli. Learned Judicial Magistrate keeping in view the entire facts and circumstances of case, keeping in view the tender age of minor children and keeping in view pending litigation between Sh Manish Ghai and Smt. Nancy Ghai ordered that Sh Manish Ghai would not take minor children from Delhi to Kasauli in the absence of their mother. Learned Judicial Magistrate further directed that Sh Manish Ghai could meet minor children at Delhi and could also take them for outing during their holidays from 9 AM to 5 PM and thereafter he would hand over the safe custody of minor children to their mother at 5 PM. Learned Judicial Magistrate further ordered that Smt. Nancy Ghai can take children to Kasauli if she so desires during their holidays and could accompany them till they resides with Sh Mansih Ghai at Kasauli. Thereafter Sh Manish Ghai filed appeal under section 29 of Protection of women from domestic violence act 2005 against order dated 13.5.2014 passed by learned Judicial Magistrate. Again before learned Additional Sessions Judge Solan compromise order was passed by learned Additional Sessions Judge Solan in appeal No. 5-ASJ-II/10 of 2014 title Sh Mansih Ghai Vs. Smt. Nancy Ghai as per statement of Sh Manish Ghai and Smt. Nancy Ghai placed on record. Learned Additional Sessions Judge Solan passed consent order on dated 7.3.2015 in appeal to the effect that Sh Manish Ghai would pay maintenance allowance to the tune of Rs.9000/- (Nine thousand) per month to each of two minor daughters (Total maintenance allowance Rs.18000/-). Smt. Nancy Ghai as per statement of Sh Manish Ghai and Smt. Nancy Ghai placed on record. Learned Additional Sessions Judge Solan passed consent order on dated 7.3.2015 in appeal to the effect that Sh Manish Ghai would pay maintenance allowance to the tune of Rs.9000/- (Nine thousand) per month to each of two minor daughters (Total maintenance allowance Rs.18000/-). Learned Additional Sessions Judge also passed consent order to the effect that during school vacation Sh Manish Ghai would be at liberty to take minor daughters from Delhi to Lawrence school Sanawar Kasauli HP where Sh Manish Ghai is presently posted. Learned Additional Sessions Judge further directed by way of consent order that it would be the duty of Sh Manish Ghai to hand over the children in safe custody to Smt. Nancy Ghai at her residence at Delhi after the expiry of vacation period. 3. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioner and also perused entire record carefully. 4. Following points arise for determination in present petition: 1. Whether petition filed under Section 482 Cr.PC read with Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Final order. Findings upon point No.1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioner that maintenance allowance granted to minor daughters to the tune of Rs.18000/- (Eighteen thousand) by way of consent order be reduced to Rs.9000/- (Nine thousand) per month i.e. Rs.4500/- per month per minor daughter is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that learned Additional Sessions Judge granted maintenance allowance to minor daughters as per voluntary consent of Sh Manish Ghai. Sh Manish Ghai has given voluntary written statement signed by him and his Advocate to the effect that he would pay Rs.18000/- (Eighteen thousand) to minor daughters. Sh Manish Ghai has signed his statement in the presence of his Advocate on dated 7.3.2015 voluntarily without any coercion and without any undue influence. The contents of statement given by Mansih Ghai were read over and explained to him and after admitting the contents of statement as correct Sh Manish Ghai has signed statement dated 7.3.2015. It is held that at this stage of case Sh Manish Ghai cannot be allowed to resile from compromise dated 7.3.2015. The contents of statement given by Mansih Ghai were read over and explained to him and after admitting the contents of statement as correct Sh Manish Ghai has signed statement dated 7.3.2015. It is held that at this stage of case Sh Manish Ghai cannot be allowed to resile from compromise dated 7.3.2015. It is held that compromise dated 7.3.2015 is binding upon parties and parties cannot be allowed to escape from consequences of compromise in order to maintain majesty of law. Even Sh Manish Ghai did not pay any maintenance allowance to Smt. Nancy Ghai but only pay maintenance allowance to his minor daughters who are school going children. It is the duty of Court to protect the interest of minors. Court is guardian of minor. Monetary relief was granted by learned Additional Sessions Judge Solan to minors only as per voluntary consent of Sh Manish Ghai. Sh Manish Ghai is the father of minor daughters and he is under legal obligation to maintain his minor daughters. Keeping in view the interest of minor daughters it is not expedient in the ends of justice to reduce maintenance allowance granted to minor daughters with the consent of Sh Manish Ghai when Sh Manish Ghai signed statement dated 7.3.2015 voluntarily he was of sound state of mind. The statement of Sh Manish Ghai was recorded by learned Additional Sessions Judge dated 7.3.2015 in the presence of his Advocate namely Sh Vishal Bindra and Sh Vishal Bindra Advocate has also signed along with Sh Manish Ghai when statement of Sh Manish Ghai was recorded on dated 7.3.2015 by learned Additional Sessions Judge II Solan H.P. 6. Submission of learned Advocate appearing on behalf of petitioner that consent order of learned Additional Sessions Judge dated 7.3.2015 be set aside and case be remitted back to learned Additional Sessions Judge Solan for disposal afresh in accordance with law upon merits is also rejected being devoid of any force for reasons hereinafter mentioned. Learned Additional Sessions Judge has passed consent order dated 7.3.2015 as per statement of Sh Manish Ghai and Smt. Nancy Ghai recorded on 7.3.2015 voluntarily. As per section 28 of Protection of women from domestic violence act 2005 proceedings relating to sections 12, 18, 19, 20, 21, 22, 23 and 31 would be governed by the provision of code of criminal procedure 1973. As per section 28 of Protection of women from domestic violence act 2005 proceedings relating to sections 12, 18, 19, 20, 21, 22, 23 and 31 would be governed by the provision of code of criminal procedure 1973. It is held that Protection of women from domestic violence act 2005 is a special act and it empowers the Magistrate to pass protection order in favour of aggrieved person. In view of above stated facts it is not expedient in the ends of justice to interfere in the consent order passed by learned Additional Sessions Solan dated 7.3.2015 in favour of minor daughters and keeping in view price index and welfare of minor daughters. 7. Submission of learned Advocate appearing on behalf of petitioner that non-petitioner has flouted terms and conditions of consent order intentionally and on this ground petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is held that petitioner can file execution petition in accordance with law to implement terms and conditions of consent order passed by Court. Point No.1 is answered in negative. Point No.2 (Final order). 8. In view of findings on point No.1 petition is dismissed. File of learned Trial Court and learned Appellate Court along with certify copy of order be sent back forthwith. Certify copy of order be sent to both parties free of cost as mentioned under section 24 of Protection of women from domestic violence act 2005. Certify copy of order will also be sent to police officer in charge of police station in the jurisdiction of which the Magistrate has been approached. Certify copy of order will also be sent to protection officer as required under Section 24 of Protection of women from domestic violence act 2005 forthwith for compliance. Petition is disposed of. All pending applications if any also disposed of.