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N.Thirumaran vs State Represented By on 27 February, 2020

Crl.R.C.(MD)No.78 of 2010

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27.02.2020

CORAM:

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Crl.R.C.(MD)No.78 of 2010

1.N.Thirumaran
2.Subbian
3.Angammal ..Petitioners / Appellants/ Accused Nos.1 to 3

Vs.
State represented by
the Inspector of Police,
All Women Police Station,
Thirupparankundram,
Madurai District.
(Crime No.24 of 2000) ..Respondent / Respondent / Complainant

PRAYER: Petition filed under Section 397 r/w 401 of
Criminal Procedure Code, to call for the records relating to the order
passed in the judgment dated 21.08.2009, passed in C.C.No.673 of
2000, on the file of the learned Judicial Magistrate No.VI, Madurai,
confirmed in the judgment dated 10.02.2010, in C.A.No.79 of 2009,
on the file of the learned Additional District Sessions Judge / Fast
Track Court No.I, Madurai and set aside the same.

For Petitioners : Mr.R.Anand
For Respondent : Mr.Suyambulinga Bharathi
Government Advocate
(Criminal side)

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Crl.R.C.(MD)No.78 of 2010

ORDER

*******

The petitioners are Accused Nos.1 to 3 in C.C.No.673 of

2000. The trial Court by the judgment dated 21.08.2009 had

convicted the petitioner and sentenced them as follows:-

Accused Penal Provision Punishment
Accused No.1 Section 498-A I.P.C To undergo one year
Rigorous Imprisonment
ant to pay a fine of
Rs.1,000/- indefault to
undergo three months
simple Imprisonment
Accused No.2 Section 498-A I.P.C To undergo three months
Rigorous Imprisonment
ant to pay a fine of
Rs.1,000/- indefault to
undergo three months
simple Imprisonment
Accused No.3 Section 498-A I.P.C To undergo
Imprisonment till rising
of the Court and to pay a
fine of Rs.5,000/-

indefault to undergo six
months simple
Imprisonment

Against which, the accused filed an Appeal in C.A.No.79 of

2009, before the learned Additional District Sessions Judge / Fast

Track Court No.I, Madurai. The Lower Appellate Court by the

judgment dated 10.02.2010, had dismissed the Appeal, filed by

them and confirming the sentences imposed by the Trial Court. The

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period of sentence already undergone by the petitioners, if any,

shall be given set off as required under Section 428 Cr.P.C.

2. The case of the prosecution is that the marriage

between the first petitioner and P.W.1 / de facto complainant had

taken place on 21.02.1999 at Madurai. During the marriage, 25

sovereigns of gold, 5 sovereigns of gold to the first petitioner /

bridegroom, cash of Rs.10,000/-, Television, Mixie and household

articles were given as seethana articles by the parents of P.W.1.

Initially, P.W.1 and the first petitioner were living in Madurai. Later,

they shifted their residence to Vasantham Colony at Anna Nagar,

Madras. The first petitioner was working as a Teacher in the M.k.

Higher Secondary School at Chennai. The first petitioner and P.W.1

were residing in the ground floor. The sister-in-law of P.W.1 was

residing with her family in the first floor. After while, they were

staying in Chennai, accused Nos.2 and 3, the parents of the first

petitioner had come there, demanded more dowry, were persistent.

Thereafter, on the guise of attending the Chithiral Festival, P.W.1

was left in her parents house and the first petitioner stated that she

has to be taken only after the dowry demand was given. In the

meanwhile, P.W.2 had become pregnant and despite, several efforts

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had been made by the family members of P.W.1 and the petitioners

and his family members were not willing to take back P.W.1 into the

matrimonial home and demanding for dowry continued. On

06.12.1999, a boy baby was born to P.W.1. After the delivery, the

petitioners never visited P.W.1. After taking all steps, failed for

reapproachment of their marriage, P.W.1 had lodged a complaint on

01.09.2000 before the All Women Police Station,

Thirupparankundram, Madurai District. The petitioner had appeared

before the Police amd gave an undertaking to take her back, despite

the same, P.W.1 has not taken back. Thereafter, on completion of

investigation, charge sheet came to be filed and the trial Court had

convicted the accused as stated above. Against which, the

petitioners had filed an Appeal before the learned Additional District

Sessions Judge / Fast Track Court No.I, Madurai in C.A.No.79 of

2009. The lower Appellate Court had dismissed the Appeal and

confirming the conviction and sentence of the petitioners.

3. To prove the case, the prosecution examined P.Ws.1 to

5 and marked Ex.P-1 and Ex.P-2 and no material objects were

marked. On the side of the accused, no witness was examined nor

any document was marked and marked Exs.D.1 and Ex.D.2.

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4. When the accused were questioned u/s 313 Cr.P.C.

about the incriminating circumstances appearing against them, they

denied the same.

5. The trial Court, after considering the oral and

documentary evidences, convicted and sentenced the accused as

aforesaid, against which, the petitioners had filed an appeal before

the learned Additional District Sessions Judge / Fast Track Court

No.I, Madurai in C.A.No.79 of 2009. The lower Appellate Court had

dismissed the Appeal and confirming the conviction and sentence

imposed on the petitioners before the trial Court. Aggrieved over

the same, the petitioners have filed this petition before this Court.

6. The contention of the petitioners is that the entire case

rests only on the interested testimony of P.W.1 to P.W.5. The

witnesses had given the exaggerated and embellished versions,

which the Trial Court admits, ought to have acquitted the petitioners

and convicted them. The trial Court on the evidences found that

there is no evidence to show that the petitioners were committed

the offence under Section 406 I.P.C., had acquitted the petitioners.

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But, on the same set of evidence had convicted the petitioners. The

material witnesses are interested witnesses, who had given

exaggerated versions and the evidences are not corroborated by the

independent witnesses. P.W.1’s father was working in the Revenue

Department and he had official influence over the Police and the

Police in order to favour P.W.1’s father, dragged the first petitioner

from his house at odd hours as though the first petitioner was an

hardened criminal, such ignominy was created to the petitioners.

P.W.1’s family members expected the first petitioner to become a

house husband, but, first petitioner was independent person with

self respect. Hence, the entire family members have been falsely

implicated in this case.

6.(i). He further submitted that today, a joint compromise

memo has been filed by both parties. It has been signed by both

the parties and also by their learned counsel.

6.(ii). He further submitted that the first petitioner had

now undergone a heart surgery and without support of anyone, he

is unable to move. He further submitted that during the pendency

of this petition, a compromise has been arrived at between the

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petitioners and P.W.1 and as per the compromise, the first petitioner

has agreed to pay a sum of Rs.14,00,000/- towards permanent

alimony. Out of which, Rs.5,00,000/- was paid on 27.02.2020 and

the second installment of Rs.3,00,000/- would be paid on or before

27.04.2020 and third installment of Rs.3,00,000/- would be paid on

or before 27.06.2020. The last payment of Rs.3,00,000/- would be

paid soon after passing of the divorce decree on mutual consent not

later than 27.08.2020, whichever is early. Thus, the dispute

between them is resolved.

6.(iii). He further submitted that the de facto

complainant / P.W.1 and the first petitioner will file a petition under

Section 13 (1) (b) before the Family Court, seeking divorce by

mutual consent.

7. The learned Government Advocate (Criminal side)

appearing for the respondent submitted that on receipt of a

complaint from P.W.1, a case came to be registered. The marriage

between the de facto complainant and the first petitioner were

taken place on 21.02.1999. During the marriage, customary

seethana articles were given and again the petitioners demanded

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dowry from P.W.1 and on the pretext of visiting P.W.1’s parents for

Chithirai festival, the first petitioner had left P.W.1 in her parents

house and thereafter, he had never taken up to her matrimonial

home. The parents and family members of the petitioner had

continued their harassment. He further submitted that P.W.1 had

lodged a complaint on 01.09.2000, before the All Women Police

Station, Thirupparankundram, Madurai District and after examining

all the witnesses, collecting the documents, a charge sheet came to

be filed. He further submitted that during the pendency of this

revision, compromise had been arrived at between the petitioner

and the de facto complainant / P.W.1 and as per the compromise,

the marriage has to be dissolved by mutual consent and permanent

alumini has to be made.

8. Today, the de facto complainant / P.W.1 had appeared

before this Court along with her brother. She had narrated her

difficulty in bringing up her son, who is a school going child. She

expressed her hope that one day P.W.1 would take her back to his

matrimonial home. But, later she came to know that the first

petitioner had living in relationship with another lady and now, she

does not want to join him any more and she would be satisfied, if

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permanent alumini is paid. Further, she submitted that her brother

is taking care of her and she is depending on her brother for her

livelihood and not having any income and with great difficulty, she is

educating her only son. She further submitted that the first

petitioner on earlier occasions had made such promises, failed to

honour his commitments and she apprehends that this undertaking

of the first petitioner would not be fulfilled.

9. The first petitioner undertakes that now he is having

heart ailments and he had undergone surgery and he will honour his

commitment as per the affidavit. Further, to show his bonafide, he

has handed over Rs.5,00,000/- to P.W.1 and the balance to be paid

as stated in the compromise memo.

10. Considering the rival submissions made on either side

and the materials available on record and also taking into

consideration the welfare of P.W.1 and her son, who is the School

going child and considering the fact that the marriage is irrecovable

and failed and there is no possibility between both of them to join

together and considering the fact that the various mediations had

taken place before this Court and on later deliberations, it was

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agreed that the petitioner to pay permanent alimony of

Rs.14,00,000/- and the petitioner and the de facto complainant /

P.W.1 already filed a petition under Section 13 (1) (b) seeking

divorce by mutual concern, this Court feels that the conviction and

sentence imposed on the petitioners is liable to be set aside. For

the sake of clarity the compromise memo is extracted hereunder:

“The petitioners and the second respondent
would jointly submit that during the pendency of this
revision, they have arrived at a compromise solution
on the following terms and conditions:

a)The de facto complainant agrees to give
consent for filing a divorce petition on the ground of
mutual consent and undertake to extend her fullest
co-operation to get the decree of mutual consent
divorce,

(b).Towards her maintenance, as a
permanent alimony, the first petitioner agrees to pay
a sum of Rs.14,00,000/- in four installments in which
today (27.02.2020) in open Court, the petitioner is
paying a sum of Rs.5,00,000/- by cash and the de
facto complainant is also, on receipt of the same, is
giving acknowledge through this compromise memo.

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(c).The second installment of Rs.3,00,000/-
would be paid by the first petitioner on 27.04.2020
and the third installment of Rs.3,00,000/- by the
first petitioner on 27.06.2020 and the last payment
of Rs.3,00,000/- would be given to the de facto
complainant. Soon after the passing of divorce
decree on mutual consent i.e., on the same day of
the decree itself.

(d).The first petitioner and the de facto
complainant give at a clear undertaking that they
would not deviate from the aforesaid assurances at
any event in the later point of time.

(e).In view of such arrival of compromise,
the de facto complainant expresses her whole
hearted willingness to compound the offence of
Section 498 (A) of I.P.C. For which the petitioner is
found guilty by the Court below. She would further
make it clear that all the petitioners may be given
with Hon’ble acquittal from the charge of 498(A) of
I.P.C.

(f).In view of this amicable settlement,
neither the first petitioner nor the de facto
complainant would claim any right whatsover either
from the property presently own by them or from the
property which would be procured by them in future.

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In other words, both of them do not have any right
to make any claim between them.

(g).The first petitioner and the de facto
complainant undertake that they would not make any
complaint or initiate any proceedings or civil suit
against each of them in future.

(h).Since the above sum is being paid as a
permanent alimony, the de facto complainant on
receipt of the same forgoes her right of claiming
further maintenance in future during his lifetime from
the first petitioner.”

10.(i). The learned counsel appearing for the petitioners

has produced a citation of the Hon’ble Apex Court in the case of

Amardeep Singh Vs. Harveen Kaur reported in (2017) 8 SCC

746, wherein, it has been held that when the parties were living

seperately for more than the statutory period and all efforts at

mediation and reconciliation have been tried and have failed and

there is no chance of reconciliation and further waiting period will

only prolong their agony and the parties have genuinely settled their

differences including alimony, custody of child or any other pending

issues between the parties. Hence, regular applications can be filed

one week after the first motion giving reasons for the prayer for

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waiver. If the above conditions are satisfied, the waiver of the

waiting period for the second motion will be in the discretion of the

concerned Court. The waiving period intra in Section 13-B(2) can

be waived in the interest of justice, where, there is no chance of

reconciliation and the parties were already seperated in a longer

period than the period mentioned in Section 13-B(2) is not

mandatory, but, directory, it will be open to the concerned Court to

exercise its discretion in the facts and circumstances of the case. At

this juncture, it is relevant to note Paragraph No.19 of the above

said judgement and it reads as follows:-

“19.Applying the above to the present
situation, we are of the view that where the Court
dealing with a matter is satisfied that a case is made
out to waive the statutory period under Section 13-
B(2), it can do so after considering the following:

(i) the statutory period of six months
specified in Section 13-B(2), in addition to the
statutory period of one year under Section 13-B(1) of
separation of parties is already over before the first
motion itself;

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(ii) all efforts for mediation / conciliation
including efforts in terms of Order 32-A Rule 3 CPC /
Section 23 (2) of the Act / Section 9 of the Family
Court Act to reunite the parties have failed and there
is no likelihod of success in that direcstion by any
further efforts;

(iii) the parties have genuinely settled their
differences including alimony, custody of child or any
other pending issues between the parties;

(iv) the waiting period will only prolong
their agony.”

The waiver application can be filed one
week after the first motion giving reasons for the
prayer for waiver. If the above conditions are
satisfied, the waiver of the waiting period for the
second motion will be in the discretion of the Court
concerned.”

10.(ii). Hence, this Court is of the view that this case

satisfies all the conditions enumerated by the Hon’ble Apex Court.

In view of the same, the concerned Family Court has to consider the

petition of the first petitioner and the second respondent in its right

perspective. Thus, this Court finds that the compromise between

the parties are genuine and their grievance is redressed and the

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petitioners have to make the balance payment and also to conclude

the Family Court proceedings, within the stipulated period and to

report to this Court about the completion of entire payment and

obtaining divorce by mutual consent by taking all these factors.

11. In view of the above observations, this Court is

inclined to allow this petition and the conviction and sentence

imposed on the petitioners by the lower courts are set aside and the

petitioners are acquitted from all charges framed against them.

12. Registry is directed to post the matter on 07.09.2020

under the caption “for reporting compliance” before this Court.

27.02.2020

Index : Yes/No
Internet : Yes/No
tsg
To

1.The Judicial Magistrate No.VI, Madurai.

2.The Additional District Sessions Judge
/ Fast Track Court No.I, Madurai.

3.The Inspector of Police,
All Women Police Station,
Thirupparankundram, Madurai District.

4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.

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M.NIRMAL KUMAR, J.

tsg

Crl.RC.(MD)No.78 of 2010

27.02.2020`

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