Allowed

Abhishek Bhupendra Rathi and Ors. v. Hema Abhishek Rathi Nee Ms Hema Dinesh Manihar W/O Abhishek Rathi and Anr.

Bombay HC24 Sept 2021APL/506/2021

Case brief

AI extract

What is this about?

In Family Court mediated matrimonial dispute, parties settled amicably. Respondent voluntarily consented to quash FIR and charge-sheet. High Court, relying on Giansingh, held continuation futile and allowed application to quash proceedings under IPC to secure ends of justice.

What did the court decide?

Criminal Application allowed; FIR No.425/2016 and Charge Sheet No.1732/2018 quashed

Abhishek Bhupendra Rathi and Ors. Vs Hema Abhishek Rathi… — Domestic Violence | Bombay HC (2021)

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Digitally signed by LAXMIKANT LAXMIKANT GOPAL GOPAL CHANDAN CHANDAN Date: 2021.09.25 15:36:11 +0530

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(9) cri.apl-506.21.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.506 OF 2021

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`1]`	`Mr. Abhishek Bhupendra Rathi` `s/o. Bhupendra Rathi` `Adult Hindu, Age – 35 years, Occ : Service`	`]` `]` `]` `]`
`2]`	`Mr. Ashish Bhupendra Rathi` `s/o. Bhupendra Rathi` `Adult Hindu, Age – 33 years, Occ : Service`	`]` `]` `]` `]`
`3]`	`Mrs. Surajkiran Bhupendra Rathi` `w/o. Bhupendra Rathi` `Adult Hindu, Age – 55 years, Occ :`	`]` `]` `]` `]`
`4]`	`Bhupendra Ghanshyamdas Rathi` `S/o Ghanshyamdas Rathi` `Adult, Hindu, Age – 61 years, Occ : Service`	`]` `]` `]` `]`
	`All are residing at Flat No.H-103,` `Neel Kamal CHS Ltd.,`	`]` `]`
	`Chincholi Fatak`	`]`
	`Malad (West), Mumbai – 400 064`	`]….. Petitioners`
	`Email I.D. - [email protected]`	`] Applicant No.1 to 4`
	`versus`
`1]`	`Mrs. Hema Abhishek Rathi`	`]`
	`Nee Ms. Hema Dinesh Manihar`	`]`
	`W/o Abhishek Rathi` `Adult, Indian Hindu Inhabitant,`	`]` `]`
	`Aged about 32 years, Occ : Business` `R/o House No.4, Sai Garden,` `Ambodi Road, Vasai (West),` `Dist – Paklghar – 401 202`	`]` `]` `]` `]`
	`Email I.D. - [email protected]`	`]….. Respondent No.1`
`2]`	`State of Maharashtra` `(Malad Police Station, Dist. Mumbai S.D.`	`]` `]` `]….. Respondent No.2`

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(9) cri.apl-506.21.odt

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Mr. Dashrath Parab a/w Ms. Shobha Chandala for the Applicants.
Mr. Diwakar Dwivedi a/w Mr. Pankaj Dwivedi for Respondent No.1.
Ms. M H Mhatre, APP for the Respondent No.2/State.
Respondent No.1 is present in Court.

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CORAM :S. S. SHINDE,
N. J. JAMADAR, JJ

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DATE :24th September 2021

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ORAL JUDGMENT : (PER S. S. SHINDE, J)

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1Rule. Rule made returnable forthwith and heard finally with the
consent of learned counsel appearing for the parties.

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2The learned counsel appearing for the Respondent No.1 has
tendered across the bar the affidavit of first Respondent. The same is taken on
record.

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3This learned counsel appearing for the Applicants and the first
Respondent jointly submit that the parties have amicably settled the dispute
and consent terms have been filed before the Family Court, Bandra, Mumbai.
It is submitted by the learned counsel for the Applicants that the amount
mentioned in the consent terms has already been deposited in the Family
Court, Bandra and on conclusion of the proceedings pending before the said
Court, the first Respondent will receive the said amount.

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4The first Respondent is present before this Court. She is identified

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by her advocate. We have interacted with the first Respondent. She stated that
it is her voluntary act, without any coercion, to enter into such amicable
settlement and file the consent terms before the Family Court, Bandra. She
confirmed that the amount mentioned in the consent terms has been deposited
by the Applicants in the Family Court, Bandra, and she will receive the said
amount on conclusion of the proceedings pending before the said Court. She
stated that she has no objection for quashing the impugned FIR and the
charge-sheet.

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5It will be appropriate to reproduce Paragraphs 1 and 2 of the
affidavit filed by the first Respondents, which read thus :-

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“1 The Petitioner No.1 married to me on 17^th January 2013 and out of said wedlock son Yuvan was born on 27/1/2014. Since the petitioner no.1 had treated e with cruelty therefore I lodged a complaint with Malad police station which was recorded vide Cr No.425 of 2016 against petitioners. It appears that the charge sheet is filed by Malad police station and the case is numbered as 1732/pw/2018. That the petitioner no.1 also filed petition no. A-2110 of 2018 in family court, inter alia for dissolution of marriage dated 17^th January 2013. During pendency of said petition before the family court Bandra, Mumbai the matter was referred to mediastor and parties to the said petition, the dispute between the respondent no.1 was amicably settled and a consent terms dated 20^th February 2021 came to signed by petitioner no.1 and the respondent no. 1 and their advocate. Pursuant to said consent terms dated 20^th February 2021 the parties to the said consent terms agreed to dissolve the marriage dated 17^th January 2013 on the terms and conditions stipulated in the said consent terms. The said consent terms is annexed to the petition as EXHIBIT-B. I crave leave to refer to and

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relied to the consent terms then produce.

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2 In the said consent terms particularly in clause 8 I have given undertaking to co-operate with the petitioner to quash/dispose/withdraw the proceedings and file necessary affidavit as required. In view of the undertaking, I hereby confirm that the dispute between petitioners and myself is amicably settled pursuant to consent terms dated 20^th February 2021 therefore I hereby consent for quashing of the FIR No.425 of 2016 and CC No.1732/pw/2018.

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6Since the proceedings have been instituted by the Applicant No.1
and the first Respondent for divorce with mutual consent and since the first
Respondent has stated that she does not wish to pursue the allegations made in
the impugned FIR and, filed her affidavit before this Court giving her consent
for quashing the impugned FIR and Charge-Sheet, no fruitful purpose would be
served in continuation of further proceedings in CC No.1732/PW/2018 arising
out of the impugned FIR No. 425 of 2016 registered at Malad Police station at
the instance of the first Respondent against the Applicants for the offences
punishable under Sections 498(A), 406, 377, 354, 323, 504, 506 & 34 of the
Indian Penal Code.

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7 The Supreme Court in the case of Giansingh v. State of Punjab and Another 1 has held that, the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, 1 2012 (10) SCC 303

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mercantile, civil, partnership or such like transactions or the offence arising out
of matrimony relating to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have resolves their entire
dispute. In this category of cases, the High Court may quash the criminal
proceedings if in its view, because of the compromise between the offender and
the victim, the possibility of conviction is remote and bleak and continuation of
the criminal case would put the accused to great oppression and prejudice and
extreme injustice would be caused to him by not quashing the criminal case
despite full and complete settlement and compromise with the victim. It is
further held that, as inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline engrafted in
such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the
process of any court.

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8In view of the amicable settlement between the parties and
pursuant to it, the parties have filed the consent terms before the Family Court,
Bandra, we are of the opinion that in order to secure the ends of justice and to
prevent the abuse of the process of law/Court, this Criminal Application
deserves to be allowed and the same is allowed in terms of prayer clause (a)
which reads thus :-

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“(a) That this Hon’ble Court may be pleased to quash the F.I.R./C.R. No.425/2016, dated 30/08/2016 registered with Malad Police Station, u/s. 498 (A), 406, 377, 354, 323, 504, 506 & 34 of I.P.C. by the Respondent No.1

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Mrs. Hema Abhishek Rathi nee Hema Dinesh Manihar as
well as police caes W/1732/2018 and charge sheet filed
in said FIR/CR No.425/2016.”

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9Rule is made absolute to the above extent and the Criminal

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Application stands disposed of accordingly.

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10It is informed that the next date before the Family Court, Bandra is
on 13th October 2021; we impress upon the Family Court, Bandra to conclude
the proceedings preferably on next date. The parties shall extend full
cooperation for early disposal of the said proceedings pending before the
Family Court, Bandra.

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Abhishek Bhupendra Rathi and Ors. v. Hema Abhishek Rathi Nee Ms Hema Dinesh Manihar W/O Abhishek Rathi and Anr.

Case brief

What is this about?

What did the court decide?

Abhishek Bhupendra Rathi and Ors. v. Hema Abhishek Rathi Nee Ms Hema Dinesh Manihar W/O Abhishek Rathi and Anr.

Case brief

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What did the court decide?

What the court decided

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