1 160.10 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.160 OF 2010 WITH CIVIL APPLICATION NO.2 OF 2011 IN FAMILY COURT APPEAL NO.160 OF 2010 Smt.Pranita S.Padwal ...Appellant Versus Sandesh Padwal ...Respondent WITH CRIMINAL WRIT PETITION NO.1106 OF 2011 Sandesh Manohar Padwal & Ors. ...Petitioners Versus Mrs.Pranita Sandesh Padwal & Anr. ...Respondents ...... Ms.Hutoxi Tavadia with Mr.H.V.Kode for Appellant in FCA/160/2010 & for Respondent No.1 in Cri.WP/1106/2011. Mr.S.P.Kadam for Respondent in FCA/160/2010 & for Petitioners in Cri.WP/1106/2011. Mrs.M.R.Tidke, A.P.P. for Respondent No.2 in Cri.WP/1106/2011. ...... CORAM:- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR, JJ. (IN CHAMBERS) DATED:- APRIL 19, 2011. P.C. 1. This Appeal takes exception to the Judgment and Decree passed by the Family Court, Mumbai and Bandra dated 28th September, 2010 in M.J. Petition No.A-714/2006 whereby, the marriage solemnised between the 2 160.10 parties on 24th December, 2004 came to be dissolved by a decree of divorce under Section 27(1)(d) of the Special Marriage Act, 1954. 2. During the pendency of this Appeal, by ad-interim order, the Court called upon the parties to undergo medical test to ascertain the correctness of the allegation made by the husband against the wife. The medical examination report of Government Hospitals i.e. JJ Hospital and K.E.M. Hospital respectively have been received. The medical reports certify that both husband as well as wife can perform sexual intercourse normally. We have no reason to doubt the correctness thereof. In the light of the said report, we tried to counsel the parties. After some deliberation, the parties expressed that they have been living separately since March, 2006 and more particularly, they would not be able to discharge their obligations as husband and wife because of lack of compatibility. In the circumstances, they have now decided to opt for divorce by mutual consent instead of one granted by the Family Court at Mumbai which is impugned in the Appeal. 3. In the light of the said agreement reached between the husband and wife, they have executed Consent Terms dated 19th April, 2011 signed by each of them as well as their respective Advocates. The Consent Terms 3 160.10 tendered by the parties, taken on record and marked `X’ for the sake of identification. The parties are inviting order on the terms agreed upon between them as mentioned in the Consent Terms handed in to the Court dated 19th April, 2011. In the interest of justice, we would accede to the request of the parties to allow them to convert the M.J.Petition No.A-714/2006 to one under Section 28 of the Special Marriage Act, 1954 and to pray for decree of divorce by mutual consent. 4. As aforesaid, the parties have not stayed together since March, 2006 and they have not been able to live together since then. Further, it is unlikely that they would be able to continue the marriage inspite of their best efforts due to lack of compatibility. In the circumstances, in the interest of justice, we also accede to the request of the parties for granting decree of divorce by mutual consent under Section 28 of the Special Marriage Act, 1954 on the terms and conditions agreed upon between them as recorded in the Consent Terms dated 19th April, 2011. 5. As a result of this arrangement, the parties have withdrawn all allegations made against each other in the Petition or otherwise and have resolved to separate gracefully, leaving all the acrimony due to the 4 160.10 allegations made against each other, behind. The assurance so given by the parties personally present in Chambers as well as reiterated in the Consent Terms is placed on record and is accepted. The parties also agree that after disposal of the Appeal in terms of this order, none of the party will have any subsisting claim against the other party nor would set-up any claim in future against each other. Even that assurance given by the parties is placed on record and accepted. We once again reiterate that both parties have withdrawn all the allegations against each other which necessitated them to undergo medical test. 6. The Appeal is, therefore, disposed of on the above terms with no order as to costs. 7. In view of the above order, nothing survives for consideration in the Civil Application. The same stands disposed of. CRIMINAL WRIT PETITION NO.1106 OF 2011 1. The husband and his parents have filed Criminal Writ Petition No. 1106 of 2011 in this Court for quashing of C.R.No.266/2006 registered at 5 160.10 Juhu Police Station, Mumbai and proceedings bearing CC No. 1637/PW/2007 pending on the file of the 10th Metropolitan Magistrate Court, Andheri, Mumbai in exercise of powers under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure. The said criminal complaint was filed by the wife, against the husband and his parents who are petitioners in the Criminal Writ Petition, in relation to matters arising from the matrimonial dispute. As the parties have decided to amicably resolve the matrimonial dispute for the good, they have also agreed that the wife will not precipitate the criminal action against the husband or his parents. Instead, she would agree for quashing of the said proceedings initiated at her instance. The learned A.P.P. on instructions of Mr.S.K.Tadlapurkar, Senior P.I., Worli Traffic Division, Mumbai, states that after registration of F.I.R., the matter was investigated and police report under Section 173(2) of the Code of Criminal Procedure has been filed in the 10th Metropolitan Magistrate Court, Andheri. 2. Be that as it may, taking overall view of the matter and to meet the ends of justice, we accede to the request of the petitioners to quash the criminal proceedings instituted against them by the respondent-wife. The respondent wife is present in Chambers and has consented for such order 6 160.10 being passed by the Court. De horse the said consent, we have no hesitation in taking the view that no fruitful purpose would be served in precipitating the criminal action instituted by the wife against the husband as well as parents. In the circumstances, we allow this Writ Petition in terms of prayer clause (b), which reads thus: “b) That by writ of Mandamus and or any other appropriate writ issued by this Hon’ble Court, the offence Registered vide C.R.No.266/2006 of Juhu Police Station, Mumbai and proceedings vide C.C.No.1637/PW/2007 pending in the files of Ld. 10th Metropolitan Magistrate Court, Andheri, Mumbai may kindly be quashed.” (MRS.MRIDULA BHATKAR, J.) (A.M.KHANWILKAR, J.)