Sunday, 14 August 2016

Whether criminal case for offence U/S 498A of IPC can be sent for mediation?

In the matter of scope of withdrawal of the criminal cases involved
between wife and husband, in a recent decision K.Srinivas Rao v.
D.A.Deepa, Civil Appeal No.1794 of 2013 disposed of on 22.2.2013, the
Hon’ble Apex Court in paragraph-35 and 36 has held as follows:
35. We, therefore, feel that though offence punishable
under Section 498- A of the IPC is not compoundable, in
appropriate cases if the parties are willing and if it appears to
the criminal court that there exist elements of settlement, it
should direct the parties to explore the possibility of settlement
through mediation. This is, obviously, not to dilute the rigour,
efficacy and purport of Section 498-A of the IPC, but to locate
cases where the matrimonial dispute can be nipped in bud in an
equitable manner. The judges, with their expertise, must ensure
that this exercise does not lead to the erring spouse using
mediation process to get out of clutches of the law. During
mediation, the parties can either decide to part company on
mutually agreed terms or they may decide to patch up and stay
together. In either case for the settlement to come through, the
complaint will have to be quashed. In that event, they can
approach the High Court and get the complaint quashed. If
however they chose not to settle, they can proceed with the
complaint. In this exercise, there is no loss to anyone. If there is
settlement, the parties will be saved from the trials and
tribulations of a criminal case and that will reduce the burden on
the courts which will be in the larger public interest. Obviously,
the High Court will quash the complaint only if after considering
all circumstances it finds the settlement to be equitable and
genuine. Such a course, in our opinion, will be beneficial to
those who genuinely want to accord a quietus to their
matrimonial disputes. We would, however, like to clarify that 
reduction of burden of cases on the courts will, however, be
merely an incidental benefit and not the reason for sending the
parties for mediation. We recognize ‘mediation’ as an effective
method of alternative dispute resolution in matrimonial matters
and that is the reason why we want the parties to explore the
possibility of settlement through mediation in matrimonial
disputes.
36. We, therefore, issue directions, which the courts dealing
with the matrimonial matters shall follow:
a) In terms of Section 9 of the Family Courts Act, the Family
Courts shall make all efforts to settle the matrimonial disputes
through mediation. Even if the Counsellors submit a failure
report, the Family Courts shall, with the consent of the parties,
refer the matter to the mediation centre. In such a case,
however, the Family Courts shall set a reasonable time limit for
mediation centres to complete the process of mediation
because otherwise the resolution of the disputes by the Family
Court may get delayed. In a given case, if there is good chance
of settlement, the Family Court in its discretion, can always
extend the time limit.
b) The criminal courts dealing with the complaint under Section
498-A of the IPC should, at any stage and particularly, before
they take up the complaint for hearing, refer the parties to
mediation centre if they feel that there exist elements of
settlement and both the parties are willing. However, they
should take care to see that in this exercise, rigour, purport and
efficacy of Section 498-A of the IPC is not diluted. Needless to
say that the discretion to grant or not to grant bail is not in any
way curtailed by this direction. It will be for the concerned court
to work out the modalities taking into consideration the facts of
each case.
c) All mediation centers shall set up pre-litigation desks/clinics;
give them wide publicity and make efforts to settle matrimonial
disputes at pre-litigation stage.
ORISSA HIGH COURT, CUTTACK.
M.A.T.A.No.87 of 2014
In the matter of an appeal under Section 19 of the Family Court’s Act,1984.
----------
Madan Sundar Behera … … Appellant
 -VersusSmt.
Pratima Sahu … … Respondent

PRESENT :
THE HONOURABLE MR.JUSTICE VINOD PRASAD
 A N D
 THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of judgment:19.4.2016

Biswanath Rath, J. This is a Matrimonial Appeal filed by the appellant-husband against
the judgment and order dated 14th July, 2014 passed in Civil Proceeding
No.31 of 2013 (Matrimonial Case No.144 of 2012) by the Judge, Family
Court, Bhawanipatna rejecting an application under Section 13 (1) (ia) (ib) of
the Hindu Marriage Act, 1955.
2. Short fact involved in the case is that the marriage between the
parties was solemnized as per their caste, custom and rituals on 22.2.2006
in the respondent-wife’s parents house at Kumbharpada in Bhawanipatna. 2
The parties were blessed with a girl child on 13.1.2007. It is alleged by the
appellant-husband that the matrimonial dispute arose in between them
when the respondent-wife started ill-treating him after her return to her
matrimonial home with the new born child and insisted the appellant to
sleep in a separate bed. In the month of March, 2007, while the respondent
was washing clothes of the child, respondent-wife threw the bucket in the
well showing her abnormal behaviour and she also threatened to commit
suicide, unless she is taken to her parental house in Bhawanipatna
immediately. It is further alleged that since then the abnormal behavior and
attitude of the respondent-wife towards the appellant as well as his parents
increased day-by-day so much so that, even the respondent went to the
extent of asking the appellant to leave their village by selling his parental
property and to stay at Bhawanipatna, which the appellant refused. It is
further submitted by the appellant that in order to bring change in the mindset
of the respondent, the respondent was taken to her parental house and
while she was staying there, she got admission in Hindi Ratna and
Computer in the year 2008 and at a subsequent point of time, the
respondent joined as a teacher in a English Medium School at
Bhawanipatna without any information to the appellant. It is further averred
that since January, 2010 there is no marital relationship between the parties
and the respondent continued to behave in an abnormal manner and
refused to return to the matrimonial home for which the appellant convened 3
a meeting involving responsible persons of their caste society for settlement
of the dispute, where the respondent disclosed that she cannot stay with the
appellant at her matrimonial place but she is agreed to stay with her
husband at Bhawanipatna. It is further alleged that respondent lodged a
report at Bhawanipatna Town Police Station against the appellant, his
parents and sister for offences under Sections 507/498-A/506/34 of the
Indian Penal Code read with Section 4 of the Dowry Prohibition Act. The
mother of the appellant was arrested and there was also seizure of some of
the properties. The appellant claimed that under the circumstances, there is
total breakdown in the marital relationship between the parties and
consequently by filing the aforesaid matrimonial case, the appellant
requested for a decree of divorce by way of dissolution of marriage.
3. In opposition, the respondent by filing a written statement contended
that there exists marriage in between the appellant and the respondent and
they have also been blessed with a girl child but she alleged that illtreatment,
both physically and mentally was inflicted on her after she gave
birth to a girl child. Denying the allegation that the respondent left the
matrimonial home on her own volition, she contended that she was forced to
leave the matrimonial home in the month of May, 2010 to stay in her parents
house. It is further contended that when the dispute was taken up for reconciliation,
the parents of the appellant demanded Rs.1,50,000/- to enable
the appellant to get a job of Panchayat Secretary and when she realised4
that she realized that she will never be accepted by the appellant, unless
the aforesaid amount is given to them, she was compelled to lodge a report
at Bhawanipatna Town Police Station against the appellant and his parents.
On the basis of the aforesaid pleadings, evidence as well as the material
documents, the matrimonial case was finally decided by the Family Court on
14th July, 2014 with the following order:
“That the petition filed by the petitioner under U/s.
12(1) (ia) (ib) of the Hindu Marriage Act, 1955 against
his wife-respondent is dismissed on contest, but without
any cost in the peculiar facts and circumstances of the
case.”
4. Upon hearing the contentions of the respective parties, an attempt
for conciliation was undertaken by this Court and on 16.12.2014 this Court,
after due deliberation, passed the following order:
“Both the spouses along with their respective counsel
and parents are present before us.
The wife has got apprehension from her father-in-law,
who, according to her statement, may create
disturbance inasmuch as in the past he had assaulted
her many a time. She wants to live with her husband,
but in a separate house.
The husband does not have any objection to the
above proposition.
In view of the above, we direct as follows:
(1) Both the spouses shall search for a house in the
village for themselves away from the parental house of
the husband and live there together.
(2) The father of the husband shall not interfere in any
manner in the life of the spouses, although he can make
visit to his grand-daughter as and when he likes.
(3) The local police is directed to visit the residence of the
spouses at least twice a week and make enquiry from
the wife regarding her welfare.5
(4) If the father of the husband unnecessarily interferes in
the life of the couple, police is directed to arrest him,
keep him in jail and produce him before us.
 Both the spouses are directed to appear before us
again on 13.3.2015, when this appeal shall be listed for
further orders.
After the aforesaid order was passed, the wife
seemed to be very insistent. We, therefore, direct that
the above order shall remain in abeyance. List this
appeal on 31.01.2015. Meanwhile, the spouses shall
consult each other and express before us whether they
want to live together.”
5. The matter was subsequently taken up on 20.02.2015 on which date
finding impossibility for re-conciliation, this Court passed the order as
follows:
“Both the parties along with their respective
counsels are present in Court today.
All our efforts to see the spouses live together
since last two or three attempts has not yielded any
result. We do not see existence of any reason for it
as on date also and now all hopes of re-uniting the
family has dwindled out.
Appeal has to be decided judicially and therefore
in joint agreement with both the sides list this appeal
on 12th March, 2015 for final argument. Personal
appearance of both sides is dispensed with. Let the
trial court record be summoned.”
6. On failure of conciliation and finding that there is no agreement
between the parties to stay together and the case hinges only on
adjudication of permanent alimony, on affording sufficient chance to the
parties to arrive at a joint conciliation in the matter of divorce on grant of
appropriate permanent alimony, finally on 10.11.2015 and 9.12.2015 the
respondent as well as appellant filed their respective affidavits arriving at a
joint decision to have the decree of divorce on payment of fixed permanent 6
alimony of Rs.5,00,000/- (Rupees five lakhs) with further condition that upon
grant of a decree of divorce with payment of permanent alimony of
Rs.5,00,000/-, the respondent-wife shall withdraw all cases filed against the
appellant. The affidavits of the respondent-wife as well as appellanthusband
dated 10.11.2015 and 9.12.2015 respectively are on record. The
matter was next taken up on 30.3.2016 on which date this matter was
concluded finally recording the consent of the parties for a decree of divorce
subject to payment of Rs.5,00,000/- (Rupees five lakhs) as permanent
alimony with the condition that the respondent shall withdraw all cases
pending involving their matrimonial issue in court(s). This Court also
recorded that the husband has tendered a draft of Rs.5,00,000/- (Rupees
five lakhs) bearing No.788208 dated 16.3.2016 from State Bank of India in
Court and said draft was handed over to the respondent-wife, who was
allowed to get it encashed. The criminal proceeding between the parties
vide P.S. Case No.139 dated 13.7.2012 under Section 507/498(A)/ 506/34
of the Indian Penal Code read with section 4 of the Dowry Prohibition Act
pending before the S.D.J.M., Bhawanipatna in C.T. Case No.538 of 2012,
which matter is now pending vide Criminal Appeal No.29 of 2015, is directed
to be decided in terms of the compromise by the appellate court concerned.
From the affidavit of the appellant it also appears that there is another
criminal proceeding in between the parties vide Criminal Proceeding No.42
of 2014 arising out of an order dated 6.9.2014 passed by the Judge, Family 7
Court, Bhawanipatna in Criminal Proceeding No.152 of 2013. The
respondent in her affidavit dated 10.11.2015 in paragraph-3 has stated as
follows:
“3 xxx xxx xxx
i) The appellant/ husband shall pay Rs.5,00,000/-
towards permanent alimony to the respondent-wife.
ii) That, the respondent wife undertakes to withdraw all
the cases filed against her husband appellant and shall
appear before the appropriate Court where the cases are
pending for the purpose of compromise/withdrawal of the
proceedings/cases after receipt of entire amount of
Rs.5,00,000/- towards permanent alimony.”
7. In the matter of scope of withdrawal of the criminal cases involved
between wife and husband, in a recent decision K.Srinivas Rao v.
D.A.Deepa, Civil Appeal No.1794 of 2013 disposed of on 22.2.2013, the
Hon’ble Apex Court in paragraph-35 and 36 has held as follows:
35. We, therefore, feel that though offence punishable
under Section 498- A of the IPC is not compoundable, in
appropriate cases if the parties are willing and if it appears to
the criminal court that there exist elements of settlement, it
should direct the parties to explore the possibility of settlement
through mediation. This is, obviously, not to dilute the rigour,
efficacy and purport of Section 498-A of the IPC, but to locate
cases where the matrimonial dispute can be nipped in bud in an
equitable manner. The judges, with their expertise, must ensure
that this exercise does not lead to the erring spouse using
mediation process to get out of clutches of the law. During
mediation, the parties can either decide to part company on
mutually agreed terms or they may decide to patch up and stay
together. In either case for the settlement to come through, the
complaint will have to be quashed. In that event, they can
approach the High Court and get the complaint quashed. If
however they chose not to settle, they can proceed with the
complaint. In this exercise, there is no loss to anyone. If there is
settlement, the parties will be saved from the trials and
tribulations of a criminal case and that will reduce the burden on
the courts which will be in the larger public interest. Obviously,
the High Court will quash the complaint only if after considering
all circumstances it finds the settlement to be equitable and
genuine. Such a course, in our opinion, will be beneficial to
those who genuinely want to accord a quietus to their
matrimonial disputes. We would, however, like to clarify that 
reduction of burden of cases on the courts will, however, be
merely an incidental benefit and not the reason for sending the
parties for mediation. We recognize ‘mediation’ as an effective
method of alternative dispute resolution in matrimonial matters
and that is the reason why we want the parties to explore the
possibility of settlement through mediation in matrimonial
disputes.
36. We, therefore, issue directions, which the courts dealing
with the matrimonial matters shall follow:
a) In terms of Section 9 of the Family Courts Act, the Family
Courts shall make all efforts to settle the matrimonial disputes
through mediation. Even if the Counsellors submit a failure
report, the Family Courts shall, with the consent of the parties,
refer the matter to the mediation centre. In such a case,
however, the Family Courts shall set a reasonable time limit for
mediation centres to complete the process of mediation
because otherwise the resolution of the disputes by the Family
Court may get delayed. In a given case, if there is good chance
of settlement, the Family Court in its discretion, can always
extend the time limit.
b) The criminal courts dealing with the complaint under Section
498-A of the IPC should, at any stage and particularly, before
they take up the complaint for hearing, refer the parties to
mediation centre if they feel that there exist elements of
settlement and both the parties are willing. However, they
should take care to see that in this exercise, rigour, purport and
efficacy of Section 498-A of the IPC is not diluted. Needless to
say that the discretion to grant or not to grant bail is not in any
way curtailed by this direction. It will be for the concerned court
to work out the modalities taking into consideration the facts of
each case.
c) All mediation centers shall set up pre-litigation desks/clinics;
give them wide publicity and make efforts to settle matrimonial
disputes at pre-litigation stage.
8. Following the settlement between the parties to resolve their dispute
to pronounce a decree of divorce annulling their marriage subject to the
payment of Rs.5,00,000/- (Rupees five lakhs) as permanent alimony in
favour of the respondent-wife and further subject to condition that the
respondent-wife shall withdraw all criminal cases initiated by her, therefore
following the principles laid down by the Hon’ble Apex Court in the case of
K.Srinivas Rao v. D.A.Deepa (supra), we dispose this MATA proceeding9
in terms of the settlement between the parties as clearly indicated in the
affidavits dated 10.11.2015 and 9.12.2015 by granting a decree of divorce
between the parties on payment of Rs.5,00,000/- (Rupees five lakhs) as
permanent alimony, which amount has already been paid in the Court.
Further, according to the terms of the settlement so arrived, this Court
directs that all criminal cases pending between the parties shall be disposed
of consequent upon the respondent taking necessary steps in the
respective courts within a period of one month from the date of this
judgment in that regard.
9. The matrimonial appeal stands allowed as aforesaid. However, there
shall be no order as to cost
 …………………………….
 Biswanath Rath, J.
Vinod Prasad, J. I agree.

 …………………………….
 Vinod Prasad, J.
 Orissa High Court, Cuttack.
The 19th day of April,2016/sks. 
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