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Nipul Chandravadan Panchal And … vs The State Of Maharashtra And Anr on 7 April, 2017

suresh 910-WP-1260.2017.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1260 OF 2017

1. Nipul Chandravadan Panchal,
Age 40 years, Occ: Architect

2. Mrs. Neela Chandravadan Panchal,
Age 63 years, Occ: Housewife

3. Chandravadan Panchal,
Age 70 years, Occ: No

Residing at 302, Mary Anne Heights,
3rd Road, GPS III, Opp: Cafe-Coffee Day,
Santacruz (East), Mumbai-400 055. …. Petitioners

– Versus –

1. The State of Maharashtra

2. Mrs. Vaishali Nipul Panchal,
Age 36 years, Occ: Service,
R/a Room No.7, Building No.1,
Kangra Bhavan, 232, Dr. Anny
Besent Road, Opp: Potdaar
Hospital, Warli, Mumbai. …. Respondents

Mr. P.R. Yadav i/by Ms Priyanka Dubey for the
Petitioners.
Dr. F.R. Shaikh, APP, for the Respondent-State.
Mr. D.V. Saroj for Respondent No.2.

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CORAM: S.C. DHARMADHIKARI
PRAKASH D. NAIK, JJ.

DATE : APRIL 07, 2017

ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.)
:

1. Rule. The respondents waive service. By consent,

rule is made returnable forthwith and the petition is taken up for

final disposal.

2. The complainant Vaishali is present in Court. She

admits that on 4-6-2015 her statement was recorded by the

concerned police station, namely, Vakola Police Station, Mumbai

and an FIR was registered. The FIR No.254/2015 alleges

offences punishable under Sections 498A, 406, 341, 504, 323

and 34 of the Indian Penal Code.

3. A request is made by the accused including the

husband of the respondent/original complainant to quash this

FIR.

4. The only contention raised in support of this petition

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is that, this is a fall out of a matrimonial dispute. That discord

and dispute led to the husband approaching the Family Court at

Bandra, Mumbai with a petition seeking divorce. That petition

bearing No.A-1425 of 2015 was later on sought to be converted

into a petition and a joint one. The relief was altered to that of a

decree of divorce by mutual consent under Section 13-B of the

Hindu Marriage Act, 1955.

5. Our attention has been invited to the Consent Terms

tendered in the Family Court and the altered Consent Terms.

Pages 77 to 84 of the paper-book have been perused by us

carefully. One of the clauses in the Consent Terms postulates

that the sum deposited in the account and mentioned in the

Terms cannot be withdrawn by the complainant/wife unless she

agrees to quashing of this criminal proceedings.

6. The nature of this settlement and which prima facie

appears to us to be one sided, compelled us to call upon the

Advocate appearing for the second respondent/complainant to

request her to remain present.

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7. She has remained present and has tendered an

affidavit confirming the above arrangement.

8. She says that she is completely familiar and can

speak and equally read and write in English language. She has

perused the affidavit. That is drafted as per her instructions and

reflects the position correctly.

9. Though she is not aware of the legal proceedings

and provisions, we have sufficiently clarified to her that the

affidavit being tendered on record and the prosecution being

quashed on the ground that it is purely a private one arising out

of a strained matrimonial relationship, then, she would have

waived her rights which she has as wife and stated to be

voluntarily. We called upon her and repeatedly, whether this

arrangement and as reflected in the affidavit is arrived at

willingly and her consent is free and unequivocal.

10. This query was raised by us especially because there

are rights of a child, a minor son at the relevant time aged eight

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years. The custody of this minor son is handed over to the wife.

The mother is now going to fend for herself in a City like

Mumbai with only a sum of Rs.84 lakhs, that too deposited in

the Bank account and as permanent alimony. The same is full

and final settlement for all claims of the wife/mother including

for permanent alimony. No separate amounts are provided for

the child as well.

11. Upon our limited questioning, she says that she

wants an end to all these proceedings and desires to resume her

life with her son. She wants nothing more from the in-laws or

the husband.

12. Once she repeatedly says that she is agreeable to the

criminal prosecution being quashed and with the above

understanding as well, then, we have no alternative but to quash

this criminal prosecution which is a fall out of a dispute between

the husband and wife, a direct impact after the complaint for

domestic violence was lodged, the husband’s petition for

Divorce. Then going by this settlement and which is confirmed,

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we allow the petition. Rule is made absolute in terms of prayer

clause (a). No order as to costs.

13. The consequence being not only the FIR is quashed

but even the criminal case and charge-sheet which is filed in the

Court of the Metropolitan Magistrate, 71st Court, Bandra,

Mumbai.

14. However, since the complainant/wife says that in the

interest of her child as also on account of her lack of faith, trust

and love for the husband, the criminal prosecution should be

quashed and she is ready for the same, in the event the Family

Court’s jurisdiction under Section 26 of the Hindu Marriage Act,

1955 r/w Section 114 of the Code of Civil Procedure, 1908 is

invoked for variation or modification of the Terms and

particularly the clause for payment, our order passed today

quashing the criminal prosecution shall not be an impediment

for the Family Court to exercise its jurisdiction and in

accordance with law. Clarifying thus, the petition is allowed.

(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)

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