R/CR.MA/19671/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 19671 of 2015
UMESHBHAI NATWARLAL SHAH….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR.NANDISH H THACKAR, ADVOCATE for the Applicant(s) No. 1
APPEARANCE WITHDRAWN for the Respondent(s) No. 2
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/01/2018
ORAL ORDER
1 By this application under Section 482 of the Code of Criminal
Procedure, 1973, the applicant – original accused (husband) seeks to
invoke the inherent powers of this Court, praying for quashing of the
First Information Report being C.R. No.I85 of 2015 registered with the
Kalol city Police Station, District: Gandhinagar for the offence
punishable under Sections 498A, 377, 323 and 506(1) read with 114 of
the Indian Penal Code.
2 The applicant has raised the following grounds for the purpose of
seeking quashing of the First Information Report:
“2(a) The marriage span of the complainant and the petitioner is of 17
years and they have three children out of the wedlock.
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(b) The relatives of the petitioner had approached this Hon’ble Court by
way of CRMA No.18053/2015 and this Hon’ble Court was pleased to
admit the matter and grant stay of the further proceedings of the
impugned FIR vide order dated 29.9.2015.
(c) The respondent no.2 – complainant has made false and frivolous
allegations with an ulterior motive of harassing the petitioner.
(d) The daughter of the petitioner and the complainant has filed an
affidavit stating the true and correct facts that the complainant has filed
this false FIR in connivance with some other persons.
(e) Even after the filing of the FIR, the complainant has happily stayed
with the husband for next 5 days and the said fact can also be ascertained
from the affidavit filed by the daughter of the petitioner.
(f) The allegations leveled in the FIR are general and sweeping and
therefore, it would be an abuse of process of law to take the petitioner to
undergo trial on the basis of such allegations.
(g) The impugned FIR has been filed after an unexplained delay of two
years.”
3 On 20th October 2015, the following order was passed:
“Let rule be issued to the respondents, returnable on 22.1.2016. Mr.
Pandya, the learned APP, waives service of notice of rule for and on behalf
of the respondent No.1. The respondent No.2 be served directly through
the investigating officer of the concerned police station.
The investigation may proceed further, however, no coercive steps shall be
taken against the applicant.
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Direct service is permitted.”
4 Thereafter, on 27th April 2016, the following order was passed:
“Mr.Nandish H.Thacker, learned advocate appearing for the applicant
husband has submitted that both the parties attempted to stay together
and despite best of the efforts made for an amicable settlement, a solution
could not be arrived at and therefore, it is being proposed that the parties
part their ways gracefully.
The respondentwife appearing as partyinperson is present in the Court
today. She is represented by learned advocate Mr.M.N.Marfatia. She has
also agreed to this proposal and expects that the details shall be worked
out later. Out of totally three children born out of the wedlock, two
children are to stay with the mother and the eldest daughter is to join the
father. The wife will also require arrangement for permanent alimony.
At the joint request, the matter be referred to the High Court Mediation
Centre. Let the senior mediator, High Court Mediation Centre work out
these details to enable the parties to part smoothly.
Let the matter be kept on 6th May, 2016 once again with the report of
Learned Mediator if the things are worked by then and if not, the parties
can seek further time for the said purpose.
Both the parties shall meet the Coordinator, High Court Mediation Centre
on 29th April, 2016 at 11:00 O’clock. After considering the convenience of
Mediator who has been assigned this matter, further schedule shall be
determined.
Application for maintenance is now fixed on 3rd May, 2016 before the
Family Court. The applicant shall be at liberty to make a request to the
concerned court in wake of this development.
Mr.M.N.Marfatia, learned advocate appears for the respondent No.2.
Let the matter appear on 6th May, 2016. ”
5 On 6th February 2017, the following order was passed:
“With great effort and after lot of persuasion, the parties have reached to
an amicable understanding for the present. The husband has filed an
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affidavit, inter alia, stating as under :
“I, Umesh Natvarlal Shah, Aged 48 years, Residing at Kalol, the
petitioner herein, do hereby solemnly affirm and state on oath as
under :
1. I say that I am filing this affidavit for the purpose of stating that
the petitioner and the elder daughter viz. Dimple Shah have made
various attempts to resolve the disputes between the petitioner and
the respondent no.2. It is submitted that the petitioner has also
tried to mediate the issue before the Mediation Centre before this
Honble Court but the same did not work out.
2. I say that however, in the interest of the better future of the
children, the petitioner is willing to end the litigations and make
appropriate efforts to secure the future of the three children. I say
that the petitioner is willing to stay separately from the respondent
no.2 and make appropriate application before the concerned
Family Court under Section 13B of the Hindu Marriage Act jointly
with the respondent no.2.
3. I say that with regard to the maintenance of the wife and two
children of the petitioner, the petitioner is ready and willing to give
an amount of Rs.15 lakhs as and when the petitioner is able to sell
the house in which the petitioner is staying as of now. The
petitioner further ensures to make all the endeavours to sell the
house at the earliest. Furthermore, the petitioner will also give a
lumpsum amount of Rs.50,000/ for a period of 5 months which
shall be deducted from the total amount which is to be given to the
respondent no.2 and if the petitioner is unable to sell the house
within a period of five months, the petitioner shall further give an
amount of Rs.10,000/ every month till the petitioner pays an
amount of Rs.15,00,000/ to the respondent no.2 in lieu of
permanent alimony.”
The affidavit is ordered to be taken on record. The understanding is that
the applicant will make all possible endeavours to sell the house at the
earliest, and out of the sale proceeds, he would pay an amount of Rs.15 lac
to his wife and two minor children. It is also understood that till the house
is sold and the amount of Rs.15 lac is paid to the wife and the two minor
children, the husband would pay an amount of Rs.10,00000 per month
to the wife. The husband is present in the Court today. The wife
accompanied by her father is also present in the Court. The husband hands
over an amount of Rs.50,00000 in cash to the wife. The amount is
accepted by the wife. I will be extremely happy if one day they both
reconcile with their children and start living a new life. This perhaps may
take some time. Probably, time is the best healing factor. There are three
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children born in the wedlock. The eldest daughter is with the father and
the other two children who are minor are with the mother. The husband
who is present in the Court further assures that in future if there is any
financial difficulty as regards the education or help of the children, he
would definitely extend the help.
This matter is treated as partheard. The investigation of the CRI No.85 of
2015 registered with the Kalol Police Station, District Gandhinagar, shall
remain stayed till further orders. This matter for the present is adjourned
sine die. The day the property is sold and the amount is ready to be paid
to the wife, Mr.Nandish Thackar, the learned counsel, shall file a note
before the registry to place this matter for further hearing and appropriate
orders.
It will be open for the wife to visit her matrimonial home and collect her
belongings like clothes, etc. There are some LIC policies in the name of the
husband, the wife has brought those policies today. The same are handed
over to the husband.
According to the husband, his passport is also with the wife. The wife has
no idea about the passport. However, she says that she will look into her
house and if she finds the passport, she will handover the same to her
husband.
The eldest daughter, viz. Dimple, who at present is residing with her
father, will be visiting her mother and her brother and sister. It will be
open for the father also to meet his children who at present are with the
mother. The wife who is present in the Court makes it very clear that the
husband as well as the eldest daughter are most welcome at her house.
It is understood that till the final disposal of this matter, the wife will not
proceed with the proceedings initiated by her for maintenance under
Section 125 of the Code of Criminal Procedure. The Court concerned shall
keep this in mind and adjourn the matter. The proceedings initiated under
the Domestic Violence Act in the Court of the learned Chief Judicial
Magistrate, Gandhinagar, being Criminal Misc. Application No.772 of
2015 shall also remain stayed.”
6 On 28th July 2017, the following order was passed:
“On 6th February 2017, the following order was passed :
“With great effort and after lot of persuasion, the parties have
reached to an amicable understanding for the present. The husbandPage 5 of 10
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R/CR.MA/19671/2015 ORDERhas filed an affidavit, inter alia, stating as under :
“I, Umesh Natvarlal Shah, Aged 48 years, Residing at Kalol, the
petitioner herein, do hereby solemnly affirm and state on oath as
under :
1. I say that I am filing this affidavit for the purpose of stating that
the petitioner and the elder daughter viz. Dimple Shah have made
various attempts to resolve the disputes between the petitioner and
the respondent no.2. It is submitted that the petitioner has also
tried to mediate the issue before the Mediation Centre before this
Honble Court but the same did not work out.
2. I say that however, in the interest of the better future of the
children, the petitioner is willing to end the litigations and make
appropriate efforts to secure the future of the three children. I say
that the petitioner is willing to stay separately from the respondent
no.2 and make appropriate application before the concerned
Family Court under Section 13B of the Hindu Marriage Act jointly
with the respondent no.2.
3. I say that with regard to the maintenance of the wife and two
children of the petitioner, the petitioner is ready and willing to give
an amount of Rs.15 lakhs as and when the petitioner is able to sell
the house in which the petitioner is staying as of now. The
petitioner further ensures to make all the endeavours to sell the
house at the earliest. Furthermore, the petitioner will also give a
lumpsum amount of Rs.50,000/ for a period of 5 months which
shall be deducted from the total amount which is to be given to the
respondent no.2 and if the petitioner is unable to sell the house
within a period of five months, the petitioner shall further give an
amount of Rs.10,000/ every month till the petitioner pays an
amount of Rs.15,00,000/ to the respondent no.2 in lieu of
permanent alimony.”
The affidavit is ordered to be taken on record. The understanding is
that the applicant will make all possible endeavours to sell the
house at the earliest, and out of the sale proceeds, he would pay an
amount of Rs.15 lac to his wife and two minor children. It is also
understood that till the house is sold and the amount of Rs.15 lac is
paid to the wife and the two minor children, the husband would
pay an amount of Rs.10,00000 per month to the wife. The
husband is present in the Court today. The wife accompanied by
her father is also present in the Court. The husband hands over an
amount of Rs.50,00000 in cash to the wife. The amount is
accepted by the wife. I will be extremely happy if one day they both
reconcile with their children and start living a new life. This
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perhaps may take some time. Probably, time is the best healing
factor. There are three children born in the wedlock. The eldest
daughter is with the father and the other two children who are
minor are with the mother. The husband who is present in the
Court further assures that in future if there is any financial
difficulty as regards the education or help of the children, he would
definitely extend the help.
This matter is treated as partheard. The investigation of the CRI
No.85 of 2015 registered with the Kalol Police Station, District
Gandhinagar, shall remain stayed till further orders. This matter
for the present is adjourned sine die. The day the property is sold
and the amount is ready to be paid to the wife, Mr.Nandish
Thackar, the learned counsel, shall file a note before the registry to
place this matter for further hearing and appropriate orders.
It will be open for the wife to visit her matrimonial home and
collect her belongings like clothes, etc. There are some LIC policies
in the name of the husband, the wife has brought those policies
today. The same are handed over to the husband.
According to the husband, his passport is also with the wife. The
wife has no idea about the passport. However, she says that she will
look into her house and if she finds the passport, she will handover
the same to her husband.
The eldest daughter, viz. Dimple, who at present is residing with
her father, will be visiting her mother and her brother and sister. It
will be open for the father also to meet his children who at present
are with the mother. The wife who is present in the Court makes it
very clear that the husband as well as the eldest daughter are most
welcome at her house.
It is understood that till the final disposal of this matter, the wife
will not proceed with the proceedings initiated by her for
maintenance under Section 125 of the Code of Criminal Procedure.
The Court concerned shall keep this in mind and adjourn the
matter. The proceedings initiated under the Domestic Violence Act
in the Court of the learned Chief Judicial Magistrate, Gandhinagar,
being Criminal Misc. Application No.772 of 2015 shall also remain
stayed.
The parties are personally present in the court. The applicant husband
informs that he has not been able to dispose of the property despite best of
his efforts. According to him, the efforts are going on and he will be in a
position to sell the property in the near future.
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On 6th February 2017 when the order referred to above was passed, an
amount of Rs.50,00000 in cash was paid to the wife before this Court
towards her maintenance including the two minor children.
Today, he has brought Rs.50,00000 in cash and the same is being
handed over to the wife in presence of the court. This amount is towards
the maintenance for the next five months, i.e. upto 31st December 2017.
Instead of paying a lumpsum amount, I have suggested that the wife shall
furnish the necessary information as regards her Savings Bank Account so
that every month an amount of Rs.10,00000 can be deposited straight
through RTGS in the account of the wife. This would not be necessary if,
during the next period of five months, the property is sold. This
arrangement of payment of Rs.10,00000 per months is only till the
amount of Rs.15 lac is paid to the wife.
For the present, post the matter immediately after reopening of the Diwali
Vacation.”
7 On 10th November 2017, the following order was passed;
“Mr. Nandish Thackar, the learned counsel appearing for the applicant
submits that the applicant has entered into an agreement to sell of the
house for total sale consideration of Rs.35,00,000/ (Rupees Thirty Five
Lac only). He further submits that the purchaser is to obtain loan and
once the loan is sanctioned by the Bank, then the applicant would execute
the sale deed. Mr. Thackar, the learned counsel is hopeful that by the first
week of December, 2017, the sale deed would be executed and the sale
consideration would be received by the applicant.
For the present, post this matter on 8th December 2017. The further
developments in the matter shall be reported to this Court on 8th
December 2017.”
8 On 8th December 2017, the following order was passed:
“1 On 10th November, 2017, the following order was passed:
“Mr. Nandish Thackar, the learned counsel appearing for the
applicant submits that the applicant has entered into an agreement
to sell of the house for total sale consideration of Rs.35,00,000/
(Rupees Thirty Five Lac only). He further submits that the
purchaser is to obtain loan and once the loan is sanctioned by thePage 8 of 10
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the learned counsel is hopeful that by the first week of December,
2017, the sale deed would be executed and the sale consideration
would be received by the applicant.
For the present, post this matter on 8th December 2017. The
further developments in the matter shall be reported to this Court
on 8th December 2017.”
2 Mr. Nandish Thackar, the learned counsel appearing for the applicant
submitted that his client has been able to dispose of the property . His
client is now ready to pay the amount of Rs.14,00,000/ to the wife. As
such, the amount fixed was Rs.15,00,000/, but out of the same,
Rs.1,00,000/ has already been paid to the wife. In such circumstances,
now, Rs.14,00,000/ remains to be paid to the wife. The husband is here
before this Court. The wife is also here before this Court. The elder
daughter is also here before this Court. The husband makes a statement
that by end of this month, he would transfer the amount of
Rs.14,00,000/ in the account of his wife. The husband is directed to act
accordingly. The wife is requested to provide her account details to the
husband at the earliest.
3 Post this matter on 12th January 2018. On that date, further
developments in the matter shall be informed to this Court.”
9 On 12th January 2018, the following order was passed:
“After the order passed by this Court dated 8th December 2017, the
development is that the husband has got Rs.12,00,000/ deposited in the
account of his wife through the R.T.G.S. The husband brought
Rs.2,00,000/ in cash today. Since the wife has travelled to Ahmedabad
all alone, she is afraid to travel back home with Rs.2,00,000/ in cash. In
such circumstances, the understanding arrived at is that by today in the
late evening or by tomorrow, the elder daughter will hand over
Rs.2,00,000/ in cash to her mother.
Post the matter on 19th January 2018 on top of the Board.”
10 The parties are present before this Court today. The respondent
No.2 pointed out that her elder daughter has handed over to her
Rs.2,00,000/ in cash as per the understanding. In all, the respondent
No.2 has been paid Rs.15,00,000/ by the applicant – husband. The
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elder daughter has to remain with the father. Whereas, the other
children are to remain in the custody of the mother i.e. the respondent
No.2. I impressed upon the parties that at least, the relations of the
siblings should remain cordial. There should not be any hatredness
between the brother and sisters. The husband and the wife both have
agreed that they would see to it that their children remain united and
they will remain in touch with each other. The respondent No.2 has
assured that she would withdraw the application filed by her for
maintenance in the Court of the Chief Judicial Magistrate, Kalol. The
next date of hearing in the Court at Kalol is 22nd February 2018. On 22nd
February 2018, the respondent No.2 shall appear and pass a pursis for
the withdrawal of the application. No other dispute remains between the
parties. There is no further claim putforward by the respondent No.2.
According to the respondent No.2, few of her clothes are lying at her
husband’s house. It is always open for her to go and collect the clothes.
The respondent No.2 shall also withdraw the proceedings initiated by
her under the provisions of the Domestic Violence Act.
11 The understanding arrived at between the parties is that both will
file an application under Section 13B(1) under the Hindu Marriage Act
for dissolution of marriage with mutual consent. The parties shall act
accordingly. Nothing further is required to be done in the matter.
12 In the result, this application succeeds and is hereby allowed. The
First Information Report being C.R. No.I85 of 2015 registered with the
Kalol city Police Station, District: Gandhinagar is hereby quashed. Rule is
made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.)
chandresh
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