Laxmi Kant Sharma and Others vs Geeta

Mohini Kapoor, J.—The petitioner Laxmi Kant and the non-petitioner are husband and wife and a decree for divorce was passed by the District Judge, Bundi on basis of a compromise arrived at between them. Before looking into this compromise it may be stated that three proceedings were pending between the parties. The husband instituted proceedings u/s 13 of the Hindu Marriage Act in the court of the District Judge Bundi and the wife had moved an application u/s 125 Cr. P.C in the court of Munsif and Judicial Magistrate, Tonk Another criminal case was pending against the petitioner husband and others for the offences Under Sections 494 and 494 read with 109 IPC and this was also pending against in the court of Munsif and Judicial Magistrate, Took. Whitehall these three cases were pending, the parties arrived at a compromise in the proceedings u/s 13 of the Hindu Marriage Act and this compromise was presented before the District Judge, Bundi on 2nd February, 1988. By virtue of this compromise, a sum of Rs. 35,000/- was paid to the wife and it war agreed that in future she would not be entitled to any maintenance from the husbsnd. It was also mentioned that the wife would not be entitled to any maintenance in the proceedings u/s 125 Cr. P.C. and she would apply before that court for concluding the proceedings. A condition was imposed that if in accordance with this compromise, the wife did not get the proceedings terminated, a certified copy of the compromise would be produced before the court and then proceedings would be dropped. Similarly it was agreed in the aforesaid compromise dated 2-2-88 that the wife would move an application withdrawing the case u/s 494 and 494 read with 109 IPC and in case she did not withdraw the same, a certified copy of the compromise would be presented before the court and it would be stipulated that there has been a compromise in that case also The parties further agreed that the marriage be dissolved by a decree of divorce. This compromise was verified by the District Judge, Bundi and in terms of the compromise a decree for divorce was passed. It has been mentioned in the decree that a sum of Rs, 35,000/- was paid to the wife.

2 In pursuance of this compromise, the wife Geeta Devi did not file an application for withdrawal of the application u/s 125 Cr. PC and for the case u/s 494 and 494 read with 109 IPC In such circumstances, the husband petitioner submitted an certified copy of the compromise before the Munsif and Judicial Magistrate, Tonk in both the cases and requested the court that in view of the compromise both the proceedings should be dismissed.

The learned Munsif and Judicial Magistrate, Tonk rejected the prayer of the petitioners in both the cases. Hnece he has preferred two separate petitions u/s 482 Cr PC. The present petition relates to the cass u/s 494 and 494 read with 109, IPC.

The learned Counsel for the petitioners has contended that on the basis of the compromise presented before the District Judge, Bundi and agreed to by both the parties, proceedings Under Sections 494 and 109 IPC should also be dropped, as there is a clause in the compromise for concluding these proceedings. The compromise application presented in this case bears the signatures of the non-petitioner as well as the petitioners, who are accused in the case, and it is contended that the compromise should be acted upon.

As against this, the learned Counsel for the non-petitioner has contended that only the petitioner No. 1 was a party to the divorce petition and other petitioners were not party to those proceedinge and as such, no order could have been passed by the District Judge, Bundi in respect of the other petitioners Besides this, according to him a compromise in one civil matter cannot be effective in another criminal ease because, u/s 320(2) Cr. PC. an offence u/s 494 IPC can be compounded only with the permission of the court before which, prosecution for such offence is pending.

I have considered the rival contentions. So long, as there is no permission from the court where the prosecution is pending, a compromise cannot be said to be a compromise which could be given affect. This permission cannot be granted by any other court and as such, even if the decree of the District Judge, Bundi says something about withdrawal of this case, then it cannot be taken as a permission to compound the case. u/s 320(9) Cr.PC, no offence can be compounded except as provided by this Section. When the permission for compounding is not the permission of the court before which a prosecution is pending, compounding of an offence is not in accordance with the provisions of Section 320 Cr. PC and cannot to given effect.

In S.K. Kakkar and Anr. v. Yaswant Singh and Anr. 1985 (I) WLN 601 a matter arose as to how a compromise in a criminal case is to be verified. An application in a case where the offences, were compoundable u/s 320(1) Cr. PC was accepted even though the complainant expressed his desire not to get the compromise verified. The Court arrived at a conclusion that the parties had compromised the matter and considered the material sufficient to act upon it without verification by the complainant because there was no provision for verification of the compromise, but only for the satisfaction of the Magistrate.

The offence in the present case is u/s 494 read with 109 IPC and this is compoundable only with the permission of the court before which the prosecution is pending and when this Court has not given the permission, the compromise arrived at between the parties in some other proceedings or in the same proceedings but without the permission of the court cannot be acted upon. There cannot be an automatic disposal of the proceedings, on the basis of the decree of the District Judge, Bundi.

In view of this position, this petition fails and is, therefore, dismissed.