Withdrawing consent to a mutual divorce under Section 13B(2) of the HMA does not constitute an abuse of process of law, allowing criminal proceedings to continue.

JUDGMENT :

NEELA GOKHALE, J.

1. The Petitioner seeks quashing of criminal proceedings bearing C.C. No. 1336/PW/2018 pending before the Metropolitan Magistrate, 15th Court at Sewree, Mumbai, arising out of C. R. No. 63 of 2018 dated 19th April 2018 registered with the Kalachowki Police Station, Mumbai for the offences punishable under Sections 498-A & 406 read with 34 of the Indian Penal Code, 1860 (“IPC”).

2. The issue for determination in the present proceedings is, whether withdrawing consent to a mutual divorce as contemplated under the provision of Section 13B(2) of the Hindu Marriage Act, 1955 (“HMA”) amounts to abuse of process of law, sufficient to justify quashing of the criminal proceedings impugned herein.

3. The proceedings between the parties have a checkered history. It began with a Petition for divorce bearing HMA No. 669 of 2022, filed by the Petitioner herein against the Respondent No. 2 in the Family Court, Saket, New Delhi. Pursuant to a reference to mediation, a Settlement Agreement was executed. In terms of the Settlement Agreement, the parties had filed a First Motion under Section 13B(1) of the HMA before the Family Court, Saket, New Delhi and the Court recorded the statements of the parties. By an Order dated 14th September 2022, the Family Court allowed the First Motion and also recorded an advise to the parties to reflect on their motion and make efforts to save their marriage as per the intent of Section 13B provision. Liberty was given to the parties to approach the Court with the Second Motion as contemplated under Section 13B(2) of the HMA, if they were determined to dissolve their marriage by a Decree of Divorce.

4. The Settlement Agreement recorded certain terms and conditions to be complied with by the parties prior to filing of the Second Motion. It is the contention of Respondent No. 2 that, some conditions in the Settlement Agreement reproduced in the Affidavit-cum-Undertaking supporting the First Motion, were not complied with by the Petitioner. Moreover she claims that, her consent to the Settlement Agreement and the Affidavit supporting the First Motion were not free and she was coerced into agreeing for the same on account of certain circumstances etc. Hence, she decided not to proceed with the Second Motion under Section 13B(2) of the HMA, as she was allowed so to do under the provision itself.

5. The Petitioner filed a Contempt Petition No. 1342 of 2022 before the Delhi High Court. The learned Single Judge of the Delhi High Court vide its Judgment and Order dated 9th August 2023, held the Respondent No. 2-wife to have willfully violated the Settlement Agreement and acted in breach of the undertaking submitted before the Family Court in the 13B(1) motion. Thus the learned Single Judge held the Respondent No. 2 guilty of civil contempt under Section 2(b) of the Contempt of Courts Act, 1971. The Court also imposed a fine of Rs. 2,000/- on the Respondent No. 2 and sentenced her to undergo simple imprisonment for a term of one month and a further period of 15 days in default of payment of fine. The said Court further directed that, in case the Respondent No. 2 expressed any apology by complying with the terms and conditions of the Settlement Agreement within a period of two weeks from the date of Order and further undertakes not to proceed with the legal proceedings already initiated by her against her husband and also furnishes an unconditional apology with the Court, the sentence of simple imprisonment shall stand recalled. It further directed that in the event she fails to comply with the apology etc. in terms of complying the terms and conditions of the Settlement Agreement, she shall appear before the Registrar General of the Delhi High Court for surrender. The Registrar General was directed to take all necessary steps to have the convicted Respondent No. 2-wife to be taken in custody and sent to the Tihar Central Jail under an appropriate warrant of commitment.

6. The Respondent No. 2 assaile