Rajesh Mahesh Gupta vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The revisionist in the present revision has questioned the validity of the orders passed by the Court of Additional Sessions Judge / 2nd F.T.C., Haridwar on 13th December, 2010, in Criminal Appeal No. 69 of 2008, Rajesh Mahesh Gupta Vs. State of Uttarakhand and others as well as the order dated 20th November, 2008, passed by the Chief Judicial Magistrate, Haridwar in Misc. Case No. 19 of 2008, Vinod Kumar Mahendra Vs. Rajesh Mahesh and others. Along with that, he has further prayed for the suspension of the proceedings during the pendency of the present Criminal Revision, where the revisionist has questioned the propriety of the aforesaid two orders.

In the Revision, in question, the Revisionist while putting challenge to the impugned order dated 13th December, 2010, and the order dated 20th November, 2008, had contended that the revisionist was married with respondent No. 3 on 2nd October, 1995, and at the time of the marriage of the revisionist with the respondent, it is the case of the revisionist that he was assured by both the respondent Nos. 2 and 3, that respondent No. 3 is a legally divorced wife of one Mr. Sanjeev Malhotra, with whom she was also married earlier and claimed that later was divorced by him. After the marriage with the revisionist, it has been revealed to him that at the time of the marriage, i.e. on 2nd October, 1995, the respondent No. 3 is alleged to have taken only a token divorce from Mr. Sanjeev Malhotra for the purposes of marrying the revisionist and divorce with Mr. Sanjeev Malhotra, which, in fact, actually took place only on 18th December, 1995, i.e. much after the revisionist got married with respondent No. 3.

Considering the aforesaid fact that since the actual divorce between Sanjeev Malhotra and respondent No. 3 has taken place only on 18th December, 1995, whereas, on the contrary, the respondent Nos. 2 and 3 are said to have assured the revisionist that respondent No. 3 is legally divorced at the time of her marriage with the revisionist on 2nd October, 1995, was a false assertion and a story which was developed, it was absolutely a misleading statement, which was exercised by the respondent in order to influence the revisionist to get married with respondent No. 3, because had that fact of continuance of marriage with Sanjeev Malhotra as on the date of marriage, i.e. on 2nd October, 1995, if the marriage subsisted, then it would render the said marriage as to be a marriage which was solemnized by respondent No. 3 during the subsistence of her earlier marriage with Mr. Sanjeev Malhotra and hence, the second marriage with the revisionist would be a nullity and void ab initio.

In support of his contention, the revisionist has further contended that after his marriage with respondent No. 3, believing the fact she was already divorced from Sanjeev Malhotra, he got the marriage registered before the Registrar of Marriages Mumbai and the registration certificate was issued in favour of the revisionist, fortifying the fact of marriage of the revisionist along with revisionist N. 3.

In order to substantiate his contention that the marriage of 2nd October, 1995, was a void marriage, the revisionist has also placed on record the proceedings, which was taken up before the Principal Judge, Family Court, Lucknow between the respondent No. 3 and Mr. Sanjeev Malhotra, purporting to end their marriage and that has only taken place only on 18th December, 1995. This fact, as far as the proceedings held before the Family Court, Lucknow and passing of the order dated 18th December, 1995, cannot be denied because, since the same being based on the orders passed in the judicial proceedings by the competent Courts.

The contention of the learned counsel for the revisionist is that since the subsequent marriage held between the revisionist and the respondent No. 3 was void from its inception and it was null and void since having been solemnized during the subsistence of the earlier marriage, hence the legal status of the respondent No. 3 would not be that of a legally wedded wife of the revisionist, which would entitle her to claim for any maintenance or any other matrimonial benefits accruing on account of the marriage, which was allegedly held between the revisionist and respondent No.3 on 2nd October, 1995.

The revisionist has further contended that though on one hand the respondent No. 3 admits the fact that her marriage was held with the revisionist on 2nd October, 1995, but the respondent No. 3 voluntarily on her own in 2004 has left the house of the revisionist and deserted him and started residing at her parents' home at Haridwar. The contention of the revisionist is that while leaving the residence of the revisionist in 2004, and when she continued to reside with respondent No. 2, she had initiated the proceeding by filing a case being Case No.117 of 2006, invoking Section 125 of the Cr.P.C. praying for the grant of maintenance @ Rs.2,000/- p.m. from the revisionist. The respondent No. 2, on one hand, he admitted the fact of marriage of his daughter with the revisionist on 2nd October, 1995. But, simultaneously, on the other hand, the respondent No. 2 also admits that the dissolution of marriage of respondent No. 3 with her earlier husband had, in fact, taken place only on 8th December, 1995, which could well be established by the evidence which was adduced in the proceedings under Section 125 Cr.P.C. by the respondent No.2 himself.

It is also as case of the revisionist that the respondent No. 3 had also instituted the proceedings under Section 9 of the Hindu Marriage Act, seeking restitution of the conjugal rights with the revisionist, but she herself has withdrawn the said case voluntarily on her own decision.

From the aforesaid proceedings, few aspects which are quite apparent viz : (a) that the factum of divorce with the previous husband; (b) the factum of withdrawing of proceedings under Section 9, initiated by the respondent No. 3 and, (c) the other proceedings, which has been held under Section 24 of the Hindu Marriage Act, goes to show that, in fact, there did not subsist any relationship of husband and wife, which could be legally recognized in the eyes of the law prior to 18th December, 2007, when the decree of divorce was granted in favour of the respondent No. 3.

However, despite of it, Case No. 4740 of 2007, Alka Vs. Rajesh, which was initiated by respondent No. 3 before the Court of Chief Judicial Magistrate, Haridwar, being the proceedings under Section 406 of the I.P.C., it was, therein, the case was raised pertaining to the claim of stridhan of respondent No. 3, as a consequence of dissolution of marriage dated 18th December, 2007, in which, the order was passed by the Chief Judicial Magistrate, Haridwar.

What would be important for the present controversy would be that the revisionist owing to the matrimonial relationship which he thought it to be legally executed between him and respondent No. 3 had been discharging his matrimonial obligation, apart from opening the PPF account in favour of the respondent No. 3 and also Memorandum of Understanding which was arrived at between the respondent No. 3 and the revisionist.

Inspite of these proceedings, all these proceedings which has ultimately culminated, the revisionist submits that the respondent Nos. 2 and 3 concealing the material fact of the proceedings initiated under Sections 18, 19, 20, 21, 22 and 23 of the Act No. 43 of 2005, P.S. Jwalapur, District Haridwar and further concealing the proceedings under Section 26 (3) of the Act, yet the respondent No. 3 proceeded to raise the claim seeking benefit of the provisions contained under the Domestic Violence Act. However, in the proceedings, it is the case of the respondents that though the revisionist had sufficient knowledge of the pendency of the proceedings, he had not participated in the same and the said case was decided ex parte against him by the order dated 20th November, 2008.

Though the fact of service of notice of the proceedings under Section 13 of the Domestic Violence Act was denied by the revisionist but the fact remains that the Court of Judicial Magistrate by the ex parte impugned judgment dated 20th November, 2008, passed the Misc. Case No. 19 of 2008, had directed the payment of the maintenance in the following manner :-

"अतः न्यायालय प्रथम दृष्टया संतुष्ट है कि विपक्षी राजेश गुप्ता द्वारा परिवादिनी संख्या-2 श्रीमती अलका गुप्ता के साथ धरेलू हिंसा की गया है तथा परिवादिनी श्रीमती अल्का गुप्ता निम्नलिखित अनुतोष प्राप्त करने की अधिकारिणी है-

1-विपक्षी को आदेषित किया जाता है कि वह परिवादिनी संख्या 2 श्रीमती अलका गुप्ता को विघावती चैरिटेबिल ट्रस्ट परिसर तथा धर में प्रवेश करने दे तथा प्रवेश करने से रोकने का कोई कार्य न करें न कराये।

2- श्रीमती अल्का गुप्ता के संयुक्त बैंक खातों, लाकर्स, शेयर्स, स्त्रीधन को बिना न्यायालय की अनुमति के संक्रामित न करें।

2- श्रीमती अल्का गुप्ता जिस निवास स्थान में निवास करती थी उन्हें पुन वह निवास स्थान अथवा समकक्ष स्थान निवास को अपलब्ध कराये।

4- श्रीमती अल्का गुप्ता को 20,000 रू (बीस हजार रूपये) भरण पोषण भत्ता प्रतिमाह जीवन यापन हेतु अदा करें।

5- श्रीमती अलका गुप्ता एवं विपक्षी श्री राजेश गुप्ता की पुत्री दीपाली को श्रीमती अल्का गुप्ता से एकान्त में मिलवाया जाये तथा यदि कु दीपाली श्रीमती अल्का गुप्ता के साथ रहना चाहे तो कु0 दीपाली की अभिरक्षा श्रीमती अलका गुप्ता को दी जाये। इस कार्यवाही की व्यवस्था हेतु सम्बन्धित पुलिस अघीक्षक को इस आदेश की प्रति प्रेषित की जाये।

इस आदेश की एक प्रति धारा 24 के अन्तर्गत परिवादिनी को निशुल्क प्रदान की जाये तथा एक-एक प्रति सम्बन्धित थाने के भार-साधक अधिकारी को तथा संरक्षण अधिकारी को प्रेषित की जाये। एक प्रति विपक्षी के निवास स्थान वाले जनपद के पुलिस अधीक्षक को आवश्यक कार्यवाही हेतु प्रेषित की जाये।

दिनांक 20.12.3008"

The learned counsel for the revisionist had preferred the present Revision being aggrieved against the orders dated 20th November, 2008 and 13th December, 2010, by virtue of which, the appeal preferred by the revisionist was dismissed.

During the course of the argument, the learned counsel for the revisionist has brought on record the proceedings which was held before this Court arising out of the order passed under Section 125 of the Cr.P.C. and the proceedings which was held under Section 406 I.P.C. which has attained finality upto the Apex Court in Criminal Appeal No. 757 of 2012, which was decided by the Hon'ble Apex Court by the judgment dated 4th May, 2012. However, at this stage, it would not be out of place to mention that in the proceedings held before this Court in Criminal Misc. Case No. 935 of 2007, which was arising from the Criminal Complaint Case No. 4740 of 2007, Smt. Alka Vs. Rajesh and others, where the revisionist has put to challenge the order dated 9th October, 2007, passed by the Chief Judicial Magistrate, the parties have placed on record a Memorandum of Understanding dated 20th September, 2004, which was notorized at Pune, Maharashtra and the fact of the execution of the said memorandum dated 22nd September, 2004, was not denied in the proceedings held in the 482 application and which was decided in view of the said settlement, which was arrived by the Coordinate Bench of this Court by the order dated 14th March, 2013.

This order passed by the Coordinate Bench of this Court in C482 Application was put to challenge by the respondent before the Hon'ble Apex Court by preferring Special Leave to Appeal (Cri) No. 5218 of 2013 and the same has been dismissed by the judgment dated 14.03.2013.

From the above discussion what is reflected is that as far as the settlement of rights between the parties, which was emanating out of the matrimonial relationship, which is said to have been solemnized between the revisionist and the respondent No. 3 on 2nd October, 1995, the same stood settled in terms of the compromise which constituted the basis for decision for 482 Application by the Coordinate Bench of this Court and what would be relevant to mention at this stage that it would be that the contents of the said settlement dated 22.09.2004 which was arrived at between the parties, wherein, the respondent No. 3 has candidly accepted that she would not be raising any claim of any nature whatsoever, pertaining to the grant of maintenance as would be apparent from the condition No.10 of the said settlement, which reads as under :-

"10) By accepting this payment as mentioned hereinabove and by signing this M.O.U. the wife completely given up a right of any maintenance in all circumstances or all forums of law."

In view of the fact that the petitioner had already settled the controversy after accepting a sum of Rs. 6 lacs as full and final settlement from the present revisionist and there was a complete severement of relationship of husband and wife and when in terms of the memorandum of understanding dated 22.09.2004, the wife has completely given up any right of maintenance, in such an eventuality, the Court ought to have considered the propriety of the said settlement which has been affirmed upto the Apex Court vide its judgment dated 15.07.2013 that as a consequence of the full and final settlement by payment of sum of Rs.6 lacs, no amount of maintenance was due to be paid to respondent No. 3, more particularly, when the marriage itself has been held out to be void ab initio on the date of when it was solemnized during the subsistence of the earlier marriage of respondent No. 3.

In these circumstances, the present Revision deserves to be allowed and the impugned order as passed by the Court of Additional Sessions Judge / 2nd F.T.C., Haridwar on 13th December, 2010, in Criminal Appeal No. 69 of 2008, Rajesh Mahesh Gupta Vs. State of Uttarakhand and others as well as the order dated 20th November, 2008, passed by the Chief Judicial Magistrate, Haridwar in Misc. Case No. 19 of 2008, Vinod Kumar Mahendra Vs. Rajesh Mahesh and others, deserve to be quashed. The same is accordingly quashed.

The Revision is accordingly allowed.