Anjali Raka vs Tushar Raka

I.M. Quddusi, J.—The instant appeal has been filed by the defendant/wife against the impugned judgment and decree dated 23-8-2011 passed by the First Additional Principal Judge, Family Court, Raipur in Civil Suit No. 85 A/2009 (Tushar Raka Vs. Anjali Raka). granting divorce u/s 13 (1-A) (ii) of the Hindu Marriage Act, 1955. Section 13 (1-A) (ii) of the Hindu Marriage Act. 1955 provides that either party to a marriage, whether before or after the commencement of the Act. may, present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

The brief facts of the case are that the marriage between the parties was solemnised on 19-5-2001 at Raipur according to Hindu customs and they remained together till 10-12-2001. The plaintiff/husband had Filed a suit which was registered as Civil Suit No. 85-A/2009 for granting a decree of divorce against the defendant/wife u/s 13 of the Hindu Marriage Act. 1955 on the grounds. inter alia, that since 11-12-2001 the defendant/wife is living separately at her parental house. She had taken back the golden and silver ornaments, clothing, utensils and car. Thereafter, the appellant/husband had filed a suit for restitution of conjugal rights, wherein on 7-3-2006 the decree was passed in favour of the appellant/husband. even then the defendant/wife did not start living with the appellant/husband and still she is residing separately. On the other hand the defendant/wife denied the plaint allegations and stated, inter alia, that the appellant/husband and his family members had been making demand of dowry and for that reason they extend mental torture and harassment to the defendant/wife that is why she had to live separately. The Criminal Case No. 790/2007 is pending in the Court of Judicial Magistrate First Class, Raipur against the appellant/husband and others for the offence u/s 498-A read with Section 34 of the Indian Penal Code and the appellant/ husband had obtained the decree for restitution of conjugal rights while she was living with him.

On 13-3-2012 the parties were directed to remain present on 27-3-2012 for the purpose of reconciliation proceedings. The reconciliation proceedings were held on 27-3-2012, 29-3-2012 and today itself, i.e., 10-4-2012. Today, i.e., 10-4-2012 both the parties have filed a joint application, supported by their affidavits, for settlement of the matter and quashing of the criminal case on the terms mentioned as A to D in the application.

We have heard learned Counsel appearing for the parties and perused the terms of settlement. Both the parties are also heard.

After perusing the averments made in the settlement application dated 10-4-2012 the same are verified from the parties. It appears that there is no scope for reconciliation between the parties to live together.

Hon''ble Supreme Court in B.S. Joshi and Others Vs. State of Haryana and Another, , has held that "the duty of Court is to encourage genuine settlements of matrimonial disputes so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts". It was further held that "the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or compliant and Section 320 of the Code does not limit or affect the powers u/s 482 of the Code."

Section 482 of the Code of Criminal Procedure, 1973, reads as under:--

Saving of inherent power of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In Popular Muthiah Vs. State represented by Inspector of Police, . Hon''ble Supreme Court has held that High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings. Hon''ble Supreme Court in Para 27 of the judgment has held as under:-

While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/or inherent jurisdiction not only when an application therefore, is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extra-ordinary inherent jurisdiction while exercising other jurisdictions in the matter. Keeping in view the intention of Parliament, while making the new law the emphasis of Parliament being "a case before the Court" in contra-distinction from "a person who is arrayed as an accused before it" when the High Court is seized with the entire case although would exercised a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it.

Having regard to the facts situation and the material available on record we dispose of the instant appeal in terms of the application dated 10-4-2012, which shall form part of the decree.

It is held that the marriage between the parties stands dissolved by mutual consent. The proceedings of the Criminal Case No. 790/2007 (State of Chhattisgarh Vs. Tushar and others) pending before the JMFC, Raipur, are quashed.

Both the parties have expressed that there is no dispute regarding possession of car and other articles by the parties. The decree be drawn accordingly. No order as to costs.