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.
Page 1 of 6
::: Uploaded on – 11/04/2017 12/04/2017 00:39:02 :::
suresh 910-WP-1260.2017.doc
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
Page 2 of 6
::: Uploaded on – 11/04/2017 12/04/2017 00:39:02 :::
suresh 910-WP-1260.2017.doc
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Terms cannot be withdrawn by the complainant/wife unless she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.
Page 3 of 6
::: Uploaded on – 11/04/2017 12/04/2017 00:39:02 :::
suresh 910-WP-1260.2017.doc
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
Page 4 of 6
::: Uploaded on – 11/04/2017 12/04/2017 00:39:02 :::
suresh 910-WP-1260.2017.doc
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,
Page 5 of 6
::: Uploaded on – 11/04/2017 12/04/2017 00:39:02 :::
suresh 910-WP-1260.2017.doc
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.)
Page 6 of 6
::: Uploaded on – 11/04/2017 12/04/2017 00:39:02 :::
