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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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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Crl.R.C.(MD)No.78 of 2010
M.NIRMAL KUMAR, J.
tsg
Crl.RC.(MD)No.78 of 2010
27.02.2020`
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