Beant Kaur vs Mukand Singh

K.K. Srivastava, J.

This is a petition filed under Section 482 of Code of Criminal Procedure seeking the quashing of criminal complaint, copy Annexure P1, filed under Sections 420/406 of Indian Penal Code by the respondent husband and the order of summoning, copy Annexure P2, dated 18.3.1997 passed by Chief Judicial Magistrate, Fatehgarh Sahib vide which the petitionerwife has been ordered to be summoned under Sections 420/406 of Indian Penal Code.

The petitioner Smt. Beant Kaur was married with the respondent Mukand Singh on 5.4.1992 at village Mahmood Pur, Tehsil Bassi Pathana, District Fatehgarh Sahib by way of Anand Karaj ceremony. Thereafter, the petitionerwife went to the house of her husband Mukand Singh respondent and lived together in village Sounda, Tehsil and District Fatehgarh Sahib for about one year. The relations between the petitioner and respondent, however, became strained and there were allegations of maltreatment and cruelty. The efforts to resolve the dispute between the couple were, however, not successful and eventually they agreed to separate from each other and agreed to seek divorce by mutual consent under Section 13B of the Hindu Marriage Act. It was agreed between the parties i.e. the petitionerwife and the respondenthusband that the respondent husband would pay to the petitionerwife a sum of Rs. 2,60,000/ in full and final settlement of all claims regarding the value of the dowry property/Istri Dhan and permanent alimony. The petitionerwife in pursuance to the mutual agreement appeared in the Court of competent jurisdiction and made a statement regarding taking divorce by mutual consent and on that day i.e. on 24.5.1996 she admitted having received a sum of Rs. 1,50,000/ out of the total agreed amount of Rs. 2,60,000/. She is also alleged to have stated before the said Court that she was making the statement without any pressure from anyone and of her free will. The Court thereafter fixed the next date for 27.11.1996 for disposal of the petition filed under Section 13B of the Hindu Marriage Act. On the date fixed i.e. on 27.11.1996 the petitionerwife, however, resiled from her earlier stand and refused to proceed with the case, as a result of which the petition under Section 13B of the Hindu Marriage Act was dismissed by the said Court. The husbandrespondent Mukand Singh filed a criminal complaint, copy Annexure P1, which is impugned in this petition filed by the wife Beant Kaur, in the Court of Chief Judicial Magistrate, Fatehgarh Sahib under Sections 420/406 of Indian Penal Code. The respondenthusband alleged that the petitionerwife Beant Kaur misappropriated the amount of Rs. 1,50,000/ of the complainant and refused to pay the same to him and has, thus, committed the offence punishable under Sections 420/406 of Indian Penal Code by dishonestly misappropriating the amount of Rs. 1,50,000/ and cheating the complainanthusband. The respondenthusband went to the Police Station Sirhind to lodge the report against wifepetitioner but the Police refused to register FIR. Consequently, the impugned complaint was filed on 4.12.1996.

The learned Chief Judicial Magistrate, Fatehgarh Sahib after considering the statement of the complainant and witnesses Balbir Singh, PW2, Ujagar Singh AW3 which were recorded in the preliminary evidence, passed the impugned order of summoning on 18.3.1997 and held that there were sufficient grounds to proceed against the accused under Sections 420/406 of Indian Penal Code. Resultantly, he summoned the accusedwife under the aforesaid Sections.

The petitionerwife seeks the quashing of the complaint on the ground that there is no allegation or averment that the amount paid to her was being paid as a consideration of divorce. On the other hand, the alimony was being paid for expenses incurred on dowry articles and for maintenance which the husband was bound under the law to pay even when no divorce was granted. The dowry articles were entrusted to the husband at the time of the marriage which he was bound to return and failure to do so attracted the penal proceedings under Sections 4 and 5 of the Dowry Prohibition Act. It was alleged that the payment of a sum of Rs. 1,50,000/ by the respondentcomplainant to the petitionerwife fulfilled the part of the legal obligations. A copy of the petition filed under Section 13B of the Hindu Marriage Act is annexed with this petition as Annexure P3. The statements for withdrawal of the petition under Section 13B aforesaid made by the petitioner as well as the respondent were annexed as Annexures P4 and P5. It was also contended that under the settled law, the petitionerwife even after the filing of the petition for divorce on mutual consent could, prior to the grant of divorce, withdraw the consent. It was, thus, urged that no offences punishable under Sections 406/420 of Indian Penal Code were prima facie committed by the petitionerwife and as such, the impugned complaint and impugned order of summoning were liable to be quashed as they amounted to abuse of process of law.

Notice of motion was issued to the respondenthusband, who appeared and filed his reply. The stand taken in the reply filed by the husbandrespondent is that after three months of the marriage, the relations between him and the petitionerwife became strained and it became difficult for them to live together as husband and wife. All the efforts by near relatives to effect a compromise between them failed and the parties decided to part company. Since there was no chance of any reconciliation between them, both the parties agreed to dissolve the marriage by a decree of divorce by their mutual consent. The petitioner, it was contended, demanded that the price of the articles of dowry and the gifts exchanged, the expenses incurred on the marriage be paid to her and an agreement was arrived at between the parties and it was agreed that the respondent would pay a sum of Rs. 2,60,000/ to the petitioner towards expenses incurred on the marriage and for her future maintenance. The respondent paid a sum of Rs. 1,50,000/ in cash to the petitioner and the remaining amount was to be paid on the date of dissolution of marriage. It was agreed that the application under Section 13B of the Hindu Marriage Act would be moved and as such, the application, copy Annexure R1, was moved by the petitionerwife wherein she admitted that she had received full and final payment towards her maintenance and for her dowry articles. She undertook not to claim maintenance and dowry articles from her husband, the second party to the agreement. When the application under Section 13B of the Hindu Marriage Act was presented, a joint statement of the petitionerwife and the respondenthusband was recorded by the Additional District Judge, Fatehgarh Sahib, a copy of which has been placed on record as Annexure R2. In this joint statement the petitionerwife specifically admitted that the relations between the parties had become unreconcilable and they had decided to part company and with that end in view had moved this application with mutual consent. She also admitted that the compromise was for Rs. 2,60,000/ which included the future maintenance and the price of the articles given at the time of the marriage. Out of the agreed amount she received a sum of Rs. 1,50,000/ and the balance amount of Rs. 1,10,000/ was to be paid on the next date of hearing. The respondent has mentioned that instead of proceeding with the petition under Section 13B of the Hindu Marriage Act for divorce on mutual consent, the petitionerwife on the date fixed i.e. 27.11.1996 made a statement through her counsel that she did not want to proceed with the petition, which was accordingly dismissed. The respondent further contended that at the time of marriage there are three types of articles which are exchanged :

i) The articles, such as ornaments, clothes, gifts on behalf of the husband to the wife in the shape of `Vari''.

ii) Articles given by the wife''s side comprised of the following :

1) to the girl as articles of dowry;

2) Articles for common use such as furniture, almirah etc.

3) Articles given as gifts to the husband;

4) Articles given as gifts to the near relatives of the husband such as clothes.

iii) Articles served as food.

The case of the respondent is that out of aforesaid three types of articles, the husband and his parents are supposed to hand over all such articles as are given to the girl as articles of dowry at the time of marriage which forms her Istri Dhan. However, the articles of common use or the articles given to the husband or the articles served as food are not to be accounted for and returned. At the time of the agreement to seek divorce with mutual consent, all the expenses on four types of articles were accounted for as well as the future maintenance which the wife could claim till her marriage as permanent alimony were included and the gross amount arrived at was Rs. 2,60,000/ which was paid in cash. He also mentioned that the petitionerwife had moved an application under Section 125 of Code of Criminal Procedure claiming maintenance, a copy of which was annexed as Annexure R3. Husband respondent contended that on one hand the petitioner had agreed to the amount of Rs. 2,60,000/ including the amount of maintenance and on the other hand, she has filed an application under Section 125 of Code of Criminal Procedure for maintenance despite having already received a sum of Rs. 1,50,000/. The respondent contended that the parties belong to a lower strata of the Society and are not well off. The respondenthusband has arranged money after mortgaging his meagre holdings. The petitionerwife has falsely and intentionally induced the respondent to part with a sum of Rs. 1,50,000/ on the promise of obtaining divorce by mutual consent but has subsequently resiled from that with dishonest intention.

I have heard learned counsel for the petitioner and learned counsel for the respondent and have carefully perused the impugned complaint and order of summoning and also records of the case.

Section 406 of Indian Penal Code provides punishment for criminal breach of trust and lays down as under :

"Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

The criminal breach of trust has been defined in Section 405 of Indian Penal Code, which provides as under :

"Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."

So far as the offence punishable under Section 420 of Indian Penal Code is concerned, it provides for punishment for cheating and dishonestly inducing delivery of property and lays down as under :

"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

A perusal of the pleadings, which have been referred to above, will go to show that the petitionerwife Beant Kaur and the respondenthusband Mukand Singh were having strained relations and they agreed to seek divorce on mutual consent and thus part company. The petitioner claimed a sum of Rs. 2,60,000/ in full and final settlement of all her claims towards dowry/Istri Dhan and maintenance. This will be clear from the perusal of the copy of the petition filed in the Court of Additional District Judge, Fatehgarh Sahib on 24.5.1996, copy of which has been placed on record by both the sides as Annexures P3 and R1. In para 3 of the petition it was mentioned that :

"That after 6 months of the marriage the relations of the parties became strained. Due to the stressed relations it had become difficult for them to live together as husband and wife. All the efforts by the near relatives to effect compromise between them have failed and the parties have decided to live separate from each other. As there is no chance of reconciliation between them, both the parties have agreed to dissolve the marriage by a decree and divorce by their mutual consent."

In para 4 the agreement to pay a sum of Rs. 2,60,000/ by the second party to the first party i.e. by the husband to the wife was referred to. The payment of Rs. 1,50,000/ by the husband to the wife was also mentioned therein. In para 4 it is mentioned that :

"That the party No. 2 have agreed to pay Rs. 2,60,000/ to the party No. 1 for the expenses of dowry articles and for her maintenance. The party No. 1 have received Rs. 1,50,000/ from party No. 2 today. Both the parties have decided their remaining amounts will be paid to party No. 1 on the date of dissolution of marriage."

In para 5 it was categorically alleged that party No. 1 i.e. wife received full and final payment from party No. 2 i.e. husband for her maintenance and for her dowry articles and that party No. 2, respondentwife will not claim any maintenance and the dowry articles from party No. 1. The contents of this para may also be noted for appreciation as under :

"That party No. 1 have received full and final payment from party No. 2 for her maintenance and for her dowry articles as mentioned in above para. The party No. 1 will not claim any maintenance and the dowry articles from party No. 1 as she has received full and final payment of the same from party No. 2."

In para 8 it was alleged that there (was) left no chance for reconciliation between the parties.

Statements of Beant Kaur petitioner and Mukand Singh respondent was recorded in the Court of Additional District Judge, Fatehgarh Sahib on 24.5.1996, copy Annexure R2. The following statement of the parties is relevant to be noted :

"We have filed this application for divorce by mutual consent. There is no undue influence nor it is the result of collusion. We cannot live together under the same roof. We may be granted divorce. Our application may be allowed. According to our compromise Mukand Singh has to pay Rs. 2,60,000/ as permanent alimony and the price of articles of dowry, out of which Mukand Singh has paid Rs. 1,50,000/ to Beant Kaur. The remaining amount will be paid on the next date of hearing in the presence of the Court."

From the perusal of the copy of the zimni order dated 27.11.1996 of the Court of Additional District Judge, Fatehgarh Sahib, it will appear that Shri R.S. Grewal, counsel for petitioner No. 1 Beant Kaur made a statement on oath as under :

"I do not want to proceed with the petition and the same may be dismissed as withdrawn."

The learned Additional District Judge recorded the statement of Shri N.S. Tiwana, counsel for petitioner No. 2husband, a copy of which is Annexure P5, which reads as under :

"Statement of Shri N.S. Tiwana, counsel for petitioner No. 2 (on oath).

In view of the statement made by the counsel for petitioner No. 1, I also do not want to proceed with the petition.

Sd/ ADJ

27.11.1996

These documents prima facie show that the petitioner herself had agreed to seek divorce on mutual consent from her husband and agreed to settle all her claims towards dowry articles/Istri Dhan and maintenance for a sum of Rs. 2,60,000/ out of which she was paid a sum of Rs. 1,50,000/ on the date of the recording of the joint statement i.e. 24.5.1996. The petitionerwife by her act and conduct of entering into a compromise with her husband induced the husband to pay a sum of Rs. 1,50,000/ with the assurance to seek divorce by mutual consent, but resiled from her stand and got the petition filed under Section 13B of Hindu Marriage Act dismissed by refusing to proceed with the petition for divorce by mutual consent. These averments prima facie show the offences punishable under Sections 420/406 of Indian Penal Code. If the petitionerwife had changed her mind and decided not to seek divorce by mutual consent, then she should have returned the amount of Rs. 1,50,000/ received from her husband under the agreement. Instead of doing so, the petitioner wife retained the amount of Rs. 1,50,000/ on the ground that her husband respondent was liable under the law to return the dowry articles/Istri Dhan and to pay for her maintenance. A perusal of the copy of the application filed under Section 125 of Code of Criminal Procedure in the Court of Judicial Magistrate Ist Class, Fatehgarh Sahib, Annexure P3, will go to show that the petitionerwife claimed maintenance @ 800/ per month from her husband and this application was presented on 13.10.1997 much after the amount of Rs. 1,50,000/ had been received by her. There is no dispute regarding the settled position of law regarding the right of the wife or husband to withdraw the consent for seeking divorce by mutual consent.

Reference is made to Harcharan Kaur v. Nachhattar Singh, A.I.R. 1988 Punjab and Haryana 27 and Smt. Sureshta Devi v. Om Parkash, A.I.R. 1992 Supreme Court 1904 wherein it was held that a party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent and the consent once given is not irrevocable.

The grievance of the respondenthusband, who is the complainant in the impugned complaint, is about the wife cheating him and misappropriating the amount of Rs. 1,50,000/ out of the agreed amount of Rs. 2,60,000/ under the agreement arrived at between the parties. It cannot, therefore, be urged by the petitionerwife that the allegations made in the impugned complaint do not prima facie make out the offences punishable under Sections 420/406 of Indian Penal Code. The petitionerwife will have an adequate opportunity before the trial Magistrate to raise all her pleas which are sought to be taken by her in this petition. The law regarding the quashing of the FIR/criminal complaint is now well settled. Reference is made to the decisions of the Supreme Court in State of U.P. v. O.P. Sharma, JT 1996(2) SC 488, State of Bihar v. Sri Rajendra Agrawalla, 1996(1) RCR (Crl.) 530 : JT 1996(1) S.C. 601 and M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR (Crl.) 761.

A perusal of the order of summoning, Annexure P2, will go to show that the learned Magistrate has considered the material on record and after giving valid reasons for the same has passed the impugned order. In the facts and circumstances, which have been discussed above, I find no infirmity in law in the impugned order of summoning.

After carefully considering the rival contentions of the parties and the material placed on record, I find no merit in this petition which deserves to be dismissed. The observations on merit made in this judgment shall not bind in any way the Court dealing with complaint case. Resultantly, the petition is dismissed.