Held that in a matrimonial dispute involving Section 406 IPC, the High Court directed the lower court to refer parties to a Family Welfare Committee for mediation within 15 days. Coercive action was stayed for two months unless mediation fails.
Application disposed of direction for mediation relief granted interim stay on coercive action
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Court No. - 44
Case :- APPLICATION U/S 482 No. - 22677 of 2018
Applicant :- Washim Aslam And 4 Ors Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Deepak Gaur Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Deepak Gaur, learned counsel for the applicants, and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 23.4.2018, passed by the Chief Judicial Magistrate, Etawah in Complaint Case No. 6356 of 2017 (Smt. Nazmi Shafat Vs. Washim Aslam and Others), under Sections 406 IPC, P.S. Kotwali Shahar District Etawah as well as the entire proceedings of the aforesaid complaint case.
Learned counsel for the applicants submits that the applicant No.1 is the husband, applicant No.2 is the father-in-law and applicant No.3 is the mother-in-law of the opposite party No.2. He, therefore, submits that the dispute between the parties is a matrimonial dispute, and in case the matter is referred to the Mediation Centre, the parties may get the opportunity to settle their dispute.
The Apex Court in the case of Rajesh Sharma and Others Vs. State of U.P. and another, reported in 2017 AIR (SC) 3869 , has issued certain directions regarding disputes covered under section 498-A IPC. Paragraph 19 of the judgement which contains the directions so issued, is reproduced hereunder:-
"19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
(i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the
complaint is referred to it latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
(ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;
(iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
(iv) If a bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
(v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
(vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
(vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the offences involving tangible physical injuries or death."
In view of the aforesaid, no useful purpose would be served by keeping the proceedings of the aforesaid case pending before this Court. The Court below is directed to refer the parties to the committee constituted for mediation at District concerned within a period of 15 days from the date of receipt of the certified copy of this order.
The mediation centre shall submit its report within one month from the date of receipt of the case before the learned Magistrate.
For a period of two months from today or till the submission of the report by the mediation centre, no coercive action shall be taken against the applicants. If bail application is filed by the applicants, the same shall be decided according to the direction contained in Rajesh Sharma's case (supra).
It is however provided that in case the mediation fails, the applicants shall be at liberty to file a fresh application under Section 482 Cr.P.C.
With the aforesaid observations, this application under Section 482 Cr.P.C., stands disposed of.
Order Date :- 6.7.2018 Arshad
2 issues framed by the court
Whether the proceedings in a matrimonial dispute involving Section 406 IPC should be quashed or referred for mediation under the principles of Rajesh Sharma.
Whether coercive action against the applicants should be stayed pending mediation under the guidelines issued in Rajesh Sharma.
Colour shows how this judgement treated each authority
Rajesh Sharma and Others Vs. State of U.P.Relied on¶8
Rajesh Sharma and Others Vs. State of U.P. and another, 2017 AIR (SC) 3869 · Who else cites this
2 provisions across 2 enactments
Washim Aslam And 4 Ors
Rajeev Misra
As recorded by the court registry
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