(1) CRI. APPLN-448.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.448 OF 2010 1. Rakhmaji S/o Bhausaheb Bewale, Age : 26 years, Occu.: Agri., 2. Bhausaheb S/o Sahebrao Bewale, Age : 48 years, Occu.: Agri., 3. Manjulabai w/o Bhausaheb Bewale, Age : 43 years, Occu.: Household, 4. Appa S/o Bhausaheb Bewale, Age : 27 years, Occu.: Agri. All R/o. Mangrul, Tq. Ghansawangi, Dist. Jalna APPLICANTS VERSUS 1. The State of Maharashtra Police Station Gondi, Dist. Jalna (Copy served through P.P. High Court of Judicature of Bombay Bench at Aurangabad) 2. Sangita Rakhmaji Bewale, Age : 22 years, Occu.: Household, R/o. Jamkhed, Tq. Ambad, Dist. Jalna RESPONDENTS ..... Mr. P.A. Kulkarni, Advocate for the Applicants. Mr. B.V. Wagh, A.P.P. for the Respondent-State. Mr. B.R. Kedar, Advocate for respondent no.2 ..... CORAM : M.T. JOSHI, J. DATED : 11TH APRIL, 2011 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith. With (2) CRI. APPLN-448.2010 the consent of the parties, the Criminal Application is heard finally at the stage of admission. 2. In the present Application, the applicants are seeking quashment of the F.I.R. dated 4.10.2009 filed by respondent no.2-Sangita with Gondi Police Station, Dist. Jalna for the offences punishable under section 498-A, 323, 504 r/w. 34 of the Indian Penal Code. 3. In the FIR, respondent no.2-Sangita had in short alleged that during her co-habitation with present applicant no.1 Rakhmaji and his relatives i.e. rest of the applicants, she was treated cruelly for the reason that she did not bring an amount of Rs.50,000/- from her maternal relatives and that she was unable to bear a child. She further alleged in the FIR that in view of this ill-treatment, she was ultimately driven away from the matrimonial home about six months back and since then she is residing at her parental house at village Jamkhed. 4. It is an admitted fact that previous to the filing of the FIR, an application for maintenance (3) CRI. APPLN-448.2010 under section 125 of the Code of Criminal Procedure was filed by the present respondent/complainant- Sangita bearing Criminal Application no. 147 of 2007 before J.M.F.C. Ambad. The said application was filed on 27.6.2007. In that application, she had alleged that since there were temperamental difference between her and her husband i.e. present applicant no.1-Rakhmaji, she started residing away from home since for about 5-6 months preceding to filing of application for maintenance. In the said maintenance application, a pursis was filed by both the parties on the same day of filing of the application i.e. 27.6.2007. 5. In the said consent terms, the following agreements were reached:- i) That the marital relations between the parties were declared to have come to an end and therefore both the parties would be free to marry again. ii) That the present applicant no.1- Rakhmaji had paid permanent alimony of Rs.1,00,000/- to the present respondent/complainant-Sangita and in (4) CRI. APPLN-448.2010 view of the said payment, present respondent/complainant-Sangita had relinquished all her claim regarding any alimony or about any charge over the property of the present applicant no.1- Rakhmaji. 6. Learned J.M.F.C. recorded that both the parties and their Advocates were present. The compromise was perused by the learned J.M.F.C. It was further observed that in view of the contents of the compromise terms, both the parties did not want to proceed with the matter and the application for maintenance was disposed of on the same date i.e. 27.6.2007. 7. The couple thereafter, filed petition for decree for dissolution of marriage by divorce under section 13(B) of the Hindu Marriage Act bearing Hindu Marriage Petition no. 130 of 2008 before the learned C.J.S.D., Jalna. It appears that, complainant- Sangita withdrew her consent to obtain such decree vide her Objection Application dated 12.9.2008. In the said Application, the present respondent/complainant-Sangita had submitted that her (5) CRI. APPLN-448.2010 signatures were obtained from the side of her husband i.e. present applicant no.1 over some blank document by representing that her signature was required for making the application to the Gram Panchayat for the purposes of registering her name etc. She also further submitted that based on such signature over a blank paper, the petition for seeking decree for dissolution of marriage was filed and, therefore, she submitted that she had no consent for obtaining decree. 8. In this background, the FIR bearing no. 151 of 2009 came to be filed on 4.10.2009 as detailed supra. 9. The learned counsel for the applicants submits that the filing of the FIR is nothing but pure abuse of process of law. In the maintenance application, allegations were that due to differences of temperamental, the parties were unable to reside together and therefore, the maintenance was sought. Further, the compromise pursis filed before the learned J.M.F.C., so also the remarks of the learned J.M.F.C. would show that the counsel for (6) CRI. APPLN-448.2010 respondent/complainant-Sangita has not only signed the compromise pursis but was present at the time of recording of the order by the learned J.M.F.C. He further submits that while in the Objection Application before the learned C.J.S.D., the complainant/respondent states that her signatures were obtained over one blank paper, which has been allegedly misused for the purposes of preparing Petition for decree of divorce, already she had put the signature over the consent terms before the learned J.M.F.C. in view of which the maintenance application was disposed of. He further submits that the parties are admittedly residing separately since the year 2007 and now making totally contradictory allegations after 2 years in the FIR to the statements made in the application under section 125 of the Code of Criminal Procedure, is nothing but abuse of process of law and, therefore, the said FIR deserves to be quashed. 10. In support of his contention, the learned counsel relied in Imran and ors. Vs. State of U.P. and ors. 2010(2) Acquittal 639 (All.) and Mohd. (7) CRI. APPLN-448.2010 Shamim and ors. Vs. Nahid Begum and anr. 2005(1) Acquittal 184 S.C. 11. As against this, learned counsel for the respondent/complainant-Sangita submitted that the alleged consent deed filed before the learned J.M.F.C. would show that a void agreement has been recorded by the learned J.M.F.C. The said agreement is vitiated in view of the provisions of section 28 of the Contract Act. The filing of the application under section 125 of the Code of Criminal Procedure and filing of the consent terms on the same date of filing of the said application, would show that the signatures were obtained by fraud. He further submitted that the learned J.M.F.C. should not have recorded the consent terms. His alternative submission is that now the chargesheet is filed on the basis of the said FIR and, therefore, entire material being before the learned J.M.F.C., the applicants can very well file application for discharge before the learned J.M.F.C. In support of his contention regarding the legality of the agreements in the consent terms, the learned counsel (8) CRI. APPLN-448.2010 relied in Tejaswini S.T. Vs. Chandrakant Kisanrao Shirsat and anr. 2005(2) Bom.C.R. (Cri.) 946. 12. The record shows that the consent terms was filed before the learned J.M.F.C. in the maintenance application, wherein upon receipt of amount of Rs.1,00,000/-, the respondent/complainant has contracted out her right of maintenance. The statement in the application under section 125 of Cr.P.C. made by the respondent/complainant was that due to difference of opinion or temperamental, the parties were not able to reside together. The consent terms bear the signature not only of the parties but also of the Advocates of both the parties, as has been recorded by learned J.M.F.C. Thereafter, the Petition for seeking the decree for dissolution of marriage by divorce with mutual consent was also filed, in which thereafter the respondent/complainant-wife raised objection and submitted that her consent was not a valid consent. 13. All these facts on record shows that the parties not once but twice had signed over certain documents, reaching to certain settlement. The (9) CRI. APPLN-448.2010 Advocates for the parties were present atleast at the time of recording of the consent by the learned J.M.F.C. The contents of the application for maintenance show that there were no allegations of any ill-treatment much less ill-treatment over unlawful demand of any money. The parties are residing separately atleast since the year 2007. In such situation, the allegations in the present FIR after 2 years are that the respondent-complainant was being severely ill treated over the unlawful demand of Rs.50,000/- by her husband and the in-laws and the same was the reason for driving her away from the matrimonial home. Thus, there are material contradictions between the pleadings made in the application under section 125 of the Code of Criminal Procedure and the FIR now filed afresh in the Police Station. 14. The learned counsel for the respondent/complainant stressed much on the submission that the learned J.M.F.C. ought not have recorded the consent terms, since it was illegal. Reliance was placed in case of Tejaswini cited supra. (10) CRI. APPLN-448.2010 In that case this Court has held that a marriage cannot be dissolved by entering into consent deed between the parties and the right of maintenance also cannot be relinquished. It was further held that there cannot be any customary divorce deed and under the circumstances, the consent terms between the parties therein filed in application under section 125 of the Code of Criminal Procedure were held to be illegal. 15. In the present case, we are not entering into the dispute as to whether the parties were legally able to declare that the marital ties between them had ended or not. Further, we also are not dealing with the question as to whether the respondent/complainant was legally able to contract out her right of maintenance upon receipt of permanent alimony. It is however, an admitted fact that in the pleadings before the learned J.M.F.C. the respondent/complainant-wife had alleged the reason of separation as temperamental differences, while in the FIR filed after two years thereafter, she had given the reason as ill-treatment due to some unlawful (11) CRI. APPLN-448.2010 demand of Rs.50,000/-. Thus, the application under section 125 of the Code of Criminal Procedure as well as the consent terms filed before the learned J.M.F.C. show that immediately after the estrangement there were no allegations of ill-treatment or any unlawful demand. 16. In view of all these facts, the ratio of Tejaswini would not be applicable in the present case, since we are not dealing with the termination or continuation of a proceeding under section 125 of the Code of Criminal Procedure on the basis of the consent terms but as to filing of FIR after two years of the separation, that too on totally contradictory grounds than the earlier pleadings made in the application under section 125 of the Code of Criminal Procedure. 17. In view of all these facts, continuation of the proceedings on the basis of the FIR filed by the respondent/complainant-wife would be an abuse of process of law. Therefore, under the inherent jurisdiction of this Court, the FIR needs to be quashed. The Criminal Application is thereby (12) CRI. APPLN-448.2010 allowed. FIR bearing no.151 of 2009 filed by respondent no.2 with Police Station, Gondi, Dist.Jalna is hereby quashed and set aside. Rule made absolute in the above terms. Sd/- [M.T. JOSHI, J.] arp