Quashing of FIR and also consequential charge-sheet on the arrived at amicable settlement in Matrimonial Dispute(after Mutual Consent Divorce).
CASE LAW:
(2022)
ALLMR(Cri) 2550 : (2022) 4 BomCR(Cri) 54 : (2022) 2 CriCC 200 : (2022) 2 Crimes
270
BOMBAY
HIGH COURT (AURANGABAD BENCH)
DIVISION
BENCH
SHAIKH
TASLIM SHAIKH HAKIM — Appellant
Vs.
THE
STATE OF MAHARASHTRA — Respondent
(
Before : V.K. Jadhav and Sandipkumar C.More, JJ. )
Criminal
Application No. 166 of 2022
Decided
on : 29-03-2022
Family Courts Act, 1984 - Section 7 -
Muslim Personal Law (Shariat) Application Act, 1937 - Section 2 - Muslim
Personal Law - Divorce by mutual consent - In terms of provisions of section 2
of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions
about the property, marriage, dissolution of marriage including talaq, illa,
zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts
and trust properties and wakfs the rule of decision in cases where the parties
are Muslims shall be considered as per the provisions of Muslim Personal Law
(Shariat). It further appears from the bare reading of section 7 of Family
Courts Act, 1984, which prescribes jurisdiction, in terms of section 7(1),
Explanation (a) and (b), suit for a declaration as to the validity of a
marriage or as to the matrimonial status of any person can also be a subject
matter before the Family Court - Family Court has rightly applied the
provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the
parties before us and accordingly declared the status of marriage as no more in
existence by mutual consent.
Counsel for Appearing Parties
Mr.Shaikh
Wajeed Ahmed, Advocate, for the Appellant, Mr.S.S. Dande, App, Mr.Samir Shaikh,
Advocate, for the Respondent.
Cases Referred
Gian
Singh vs. State of Punjab and others, (2012) 10 SCC 303
Kulwinder
Singh vs. State of Punjab (2007) 4 CTC 769
Mst.
Zohara Khatoon vs. Mohd. Ibrahim, (1981) 2 SCC 509
ORDER
1. Heard finally with the consent of
learned Counsels for the parties at the admission stage.
2. The applicant/accused is seeking
quashing of FIR bearing Crime No.514 of 2021, registered with Police Station
Nanalpeth, Parbhani for the offences punishable under sections 498(A), 323,
504, 506 of the Indian Penal Code and also consequential charge-sheet bearing
RCC No. 178 of 2022, pending before the Judicial Magistrate, First Class,
Parbhani, on the ground that the parties have arrived at amicable settlement.
3. Learned
Counsel for the applicant submits that applicant - husband and respondent No.2
- wife got separated by mutual consent and accordingly approached the Family
Court, Parbhani for declaration of their matrimonial status in terms of
provisions of section 2 of the Muslim Personal Law (Shariat) Application Act,
1937 read with section 7(1)(b) Explanation (b) of the Family Courts Act, 1984.
By judgment and order dated 09.03.2022 learned Judge of the Family Court at
Parbhani had allowed the petition and declared their status as they are no more
husband and wife in terms of the mutual agreement between them. It is further
agreed between the parties that the applicant-husband shall pay an amount of
Rs.5 lakhs to respondent No.2 as the amount for future maintenance in total.
Learned Counsel for respondent No.2 submits that respondent No.2 has filed
consent affidavit-in-reply and she also received said amount of Rs.5 lakhs.
Learned Counsel for respondent No.2 submits that respondent No.2 is not
interested in prosecuting the applicant in connection with aforesaid crime and
continue with the criminal proceedings arising out of said crime.
4.
We have heard learned APP for the
respondent/State. Learned APP Mr. Dande has placed before us a case of Madras
High Court in C.R.P.(NPD) No.161 of 2021, wherein the Madras High Court by
referring the law laid down by the Supreme Court in the case of Mst. Zohara Khatoon Vs. Mohd. Ibrahim,
(1981) 2 SCC 509, submits that mubarat is a form of extra-judicial divorce
based on mutual consent under Islamic Law and same is valid, as it remains
untouched by the Dissolution of Muslim Marriages Act. The Madras High Court in
para No. 17 of the judgment as made following observations :-
"17. Coming to the present case
on hand, the learned Principal District Munsif, Alandur has refused to
entertain the petition in the light of provisions under Order VII Rule 11(d) of
CPC and the Judgment of High Court of Karnataka in Miscellaneous First Appeal
No.200834/2019(FC) [Zuber Vs. Mahezabeen] and the same is challenged in the
present revision. It appears that the petitioner filed O.S. before the learned
Principal District Munsif at Alandur to declare that the Marriage solemnized
between the petitioner and respondent on 01.12.2018 to be dissolved in terms of
MOU entered between them. However, the same was returned several times for want
of several reasons and thereafter, the said petition was dismissed even without
numbering the petition. As already mentioned supra, the Hon'ble Division Bench
of High Court of Kerala at Ernakulaam, had categorically held that 'mubaraat'
is a form of an extrajudicial divorce based on mutual consent under Islamic law
and same is valid, as it remains untouched by the Dissolution of Muslim
Marriages Act. The court below, in such circumstances, is neither called upon
to adjudicate nor called upon to dissolve the marriage by decree of divorce. On
the other hand, the Family Court only has to declare the maritial stauts by
endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section
7(1) of the Family Courts Act. Once a declaration of joint divorce invoking
bubaraat is produced before the Family Court, the Family Court has to pass a
decree declaring the matrimonial status of the parties. The inquiry in such
cases is limited to the extent to find out whether both parties have agreed
upon to dissolve such marriage invoking mubaraat. Once the Family Court is
satisfied that mubaraat is executed by both the parties, it shall declare the
matrimonial status of such parties. Hence, this Court is of the considered view
that the Family Court is bound to entertain a petition for declaration of the
status based on mubaraat. In view of the above, the order passed by the learned
Principal District Munsif, Alandur inO.S.Sr.No.744/2020 dated 28.09.2020 is set
aside and the parties are at liberty to approach the concerned Family Court
with appropriate jurisdiction. Thereafter, the concerned Family Court shall
dispose of the matter, if both the parties have filed petition and after making
a formal inquiry without any further delay treating it as an uncontested matter
in the light of the guidelines issued by the Hon'ble Division Bench, High Court
of Kerala, Ernakulam in the judgment in O.P.(FC) No.352/2020 and connected
cases dated 23/3/2021 and the present Civil Revision Petition is allowed. No
costs.
5.
We have carefully gone through the allegations made in the complaint and also
police papers. It appears that the parties have decided to get separated by
mutual consent and accordingly approached the Family Court by filing a petition
No. F No.28 of 2022 under section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 read with section 7 (1)(b) of the Family Courts Act for
declaration of status. It appears that the parties have arrived at amicable
settlement voluntarily.
6. In
the case of Gian Singh vs. State of
Punjab and others, reported in (2012) 10 SCC 303, the Supreme Court in para
48 has quoted para 21 of the judgment of the five-Judge Bench of the Punjab and
Haryana High Court delivered in Kulwinder
Singh v. State of Punjab (2007) 4 CTC 769. A fiveJudge Bench of the Punjab
and Haryana High Court, in para 21 of the judgment, by placing reliance on the
various judgments of the Supreme court, has framed the guidelines for quashing
of the criminal proceeding on the ground of settlement. Para 21 of the said
case of Kulwinder Singh's judgment is reproduced by the Supreme Court in para
48 of the judgment in Gian Singh. Clause 21 (a) which is relevant for the present
discussion reads as under :-
"21.
(a) Cases
arising from matrimonial discord, even if other offences are introduced for
aggravation of the case."
The
Supreme Court in paragraph no.61 of the judgment of Gian Singh ( supra) has
made following observations :-
"61. The position that emerges from the
above discussion can be summarised thus: the power of the High Court in
quashing a criminal proceeding or FIR or complaint in exercise of its inherent
jurisdiction is distinct and different from the power given to a criminal court
for compounding the offences under Section 320 of the Code. Inherent power is
of wide plenitude with no statutory limitation but it has to be exercised in
accord with the guideline engrafted in such power viz; (i) to secure the ends
of justice or (ii) to prevent abuse of the process of any Court. In what cases
power to quash the criminal proceeding or complaint or F.I.R may be exercised
where the offender and victim have settled their dispute would depend on the
facts and circumstances of each case and no category can be prescribed.
However, before exercise of such power, the High Court must have due regard to
the nature and gravity of the crime. Heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc. cannot be fittingly
quashed even though the victim or victim's family and the offender have settled
the dispute. Such offences are not private in nature and have serious impact on
society. Similarly, any compromise between the victim and offender in relation
to the offences under special statutes like Prevention of Corruption Act or the
offences committed by public servants while working in that capacity etc;
cannot provide for any basis for quashing criminal proceedings involving such
offences. But the criminal cases having overwhelmingly and predominatingly
civil flavour stand on different footing for the purposes of quashing,
particularly the offences arising from commercial, financial, mercantile,
civil, partnership or such like transactions or the offences arising out of
matrimony relating to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have resolved their
entire dispute. In this category of cases, High Court may quash criminal
proceedings if in its view, because of the compromise between the offender and
victim, the possibility of conviction is remote and bleak and continuation of
criminal case would put accused to great oppression and prejudice and extreme
injustice would be caused to him by not quashing the criminal case despite full
and complete settlement and compromise with the victim. In other words, the
High Court must consider whether it would be unfair or contrary to the interest
of justice to continue with the criminal proceeding or continuation of the
criminal proceeding would tantamount to abuse of process of law despite
settlement and compromise between the victim and wrongdoer and whether to
secure the ends of justice, it is appropriate that criminal case is put to an
end and if the answer to the above question(s) is in affirmative, the High
Court shall be well within its jurisdiction to quash the criminal proceeding.
7. In the instant case, in terms of
provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937,
all the questions about the property, marriage, dissolution of marriage
including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower,
guardianship gifts, trusts and trust properties and wakfs the rule of decision
in cases where the parties are Muslims shall be considered as per the
provisions of Muslim Personal Law (Shariat). It further appears from the bare
reading of section 7 of Family Courts Act, 1984, which prescribes jurisdiction,
in terms of section 7(1), Explanation (a) and (b), suit for a declaration as to
the validity of a marriage or as to the matrimonial status of any person can
also be a subject matter before the Family Court. Further, we have also gone
through the law laid down by the Supreme Court in the case of Mst. Zohara (
supra), in para 22 of the judgment, the Supreme Court has made following
observations :-
"22.In these circumstances we are therefore,
satisfied that the interpretation put by the High Court on the second limb of
clause (b) is not correct. This seems to be borne out from the provisions of
Mahomedan law itself. It would appear that under the Mahomedan law there are
three distinct modes in which a muslim marriage can be dissolved and the
relationship of the husband and the wife terminated so as to result in an
irrevocable divorce.
(1) Where the
husband unilaterally gives a divorce according to any of the forms approved by
the Mahomedan law, viz, Talaq ahsan which consists of a single pronouncement of
divorce during tuhar (Period between menstruations) followed by abstinence from
sexual intercourse for the period of iddat; or Talak hasan which consists of
three pronouncement made during the successive tuhrs, no intercourse taking
place between three tuhrs; and lastly Talak-ul-bidaat or talalk-i-badai which consists
of three pronouncements made during a single tuhr either in one sentence or in
three sentences signifying a clear intention to divorce the wife, for instance,
the husband saying 'I divorce thee irrevocably' or 'I divorce thee, I divorce
thee, I divorce thee'. The third form referred to above is however not
recognised by the Shiah law. In the instant case, we are concerned with the
appellant who appears to be a Sunni and governed by the Hanafi law (vide
Mulla's Principles of Mahomedan Law, Sec. 311, p. 297). A divorce or talaq may
be given orally or in writing and it becomes irrevocable if the period of iddat
is observed though it is not necessary that the woman divorced should come to
know of the fact that she has been divorced by her husband.
(2) By an agreement between the husband and the wife
whereby a wife obtains divorce by relinquishing either her entire or part of
the dower. This mode of divorce is called 'khula' or Mubarat. This form of
divorce is initiated by the wife and comes into existence if the husband gives
consent to the agreement and releases her from the marriage tie. Where,
however, both parties agree and desire a separation resulting in a divorce, it
is called mubarat. The gist of these mode is that it comes into existence with
the consent of both the parties particularly the husband because without his
consent this mode of divorce would be incapable of being enforced. A divorce
may also come into existence by virtue of an agreement either before or after
the marriage by which it is provided that the wife should be at liberty to
divorce herself in specified contingencies which are of a reasonable nature and
which again are agreed to by the husband. In such a case the wife can repudiate
herself in the exercise of the power and the divorce would be deemed to have
been pronounced by the husband. This mode of divorce is called 'Tawfeez' (vide
Mulla's Mohmedan Law, Sec. 314. p. 300.)
(3) By obtaining a decree from a civil court for
dissolution of marriage under s. 2 of the Act of 1939 which also amounts to a
divorce (under the law) obtained by the wife. For the purpose of maintenance,
this mode is governed not by clause (b) but by clause (c) of sub-section (3) of
s. 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would
be covered by clause (b) of sub-section (3) of s. 127."
8. It thus appears that the learned Judge
of the Family Court has rightly applied the provisions of Muslim Personal Law
(Shariat) Application Act, 1937 to the parties before us and accordingly
declared the status of marriage as no more in existence by mutual consent.
9.
In view of above and the ratio
laid down by the Supreme Court in above cited cases, we proceed to pass
following order :-
ORDER
(i)
The Criminal Application is allowed in
terms of prayer clause (A-1).
(ii)
The
Criminal Application is accordingly disposed of.
