A party to a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent, but if they retain any money or property received under the agreement after withdrawing consent, it may constitute offenses under Sections 420/406 of the Indian Penal Code.

K.K.Srivastava, J.

1. This is a petition filed under Section 482 of Code of Criminal Procedure seeking the quashing of criminal complaint, copy Annexure P1, filed under Sections 420/406 of Indian Penal Code by the respondent- husband and the order of summoning, copy Annexure P2, dated 18.3.1997 passed by Chief Judicial Magistrate, Fatehgarh Sahib vide which the petitioner-wife has been ordered to be summoned under Sections 420/406 of Indian Penal Code.

2. The petitioner Smt. Beant Kaur was married with the respondent Mukand Singh on 5.4.1992 at village Mahmood Pur, Tehsil Bassi Pathana, District Fatehgarh Sahib by way of Anand Karaj ceremony. Thereafter, the petitioner-wife went to the house of her husband Mukand Singh respondent and lived together in village Sounda, Tehsil and District Fatehgarh Sahib for about one year. The relations between the petitioner and respondent, however, became strained and there were allegations of maltreatment and cruelty. The efforts to resolve the dispute between the couple were, however, not successful and eventually they agreed to separate from each other and agreed to seek divorce by mutual consent under Section 13-B of the Hindu Marriage Act. It was agreed between the parties i.e. the petitioner-wife and the respondent-husband that the respondent- husband would pay to the petitioner-wife a sum of Rs. 2,60,000/- in full and final settlement of all claims regarding the value of the dowry property/Istri Dhan and permanent alimony. The petitioner-wife in pursuance to the mutual agreement appeared in the Court of competent jurisdiction and made a statement regarding taking divorce by mutual consent and on that day i.e. on 24.5.1996 she admitted having received a sum of Rs. 1,50,000/- out of the total agreed amount of Rs. 2,60,000/-. She is also alleged to have stated before the said Court that she was making the statement without any pressure from anyone and of her free will. The Court thereafter fixed the next date for 27.11.1996 for disposal of the petition filed under Section 13-B of the Hindu Marriage Act. On the date fixed i.e. on 27.11.1996 the petitioner-wife, however, resiled from her earlier stand and refused to proceed with the case, as a result of which the petition under Section 13-B of the Hindu Marriage Act was dismissed by the said Court. The husband-respondent Mukand Singh filed a criminal complaint, copy Annexure P1, which is impugned in this petition filed by the wife Beant Kaur, in the Court of Chief Judicial Magistrate, Fatehgarh Sahib under Sections 420/406 of Indian Penal Code. The respondent-husband alleged that the petitioner-wife Beant Kaur mis-appropriated the amount of Rs. 1,50,000/- of the complainant and refused to pay the same to him and has, thus, committed the offence punishable under Sections 420/406 of Indian Penal Code by dishonestly mis-appropriating the amount of Rs. 1,50,000/- and cheating the complainant-husband. The respondent-husband went to the Police Station Sirhind to lodge the report against wife-petitioner but the Police refused to register FIR. Consequently, the impugned complaint was filed on 4.12.1996.

3. The learned Chief Judicial Magistrate, Fatehgarh Sahib after considering the statement of the complainant and witnesses Balbir Singh, PW2, Ujagar Singh AW3 which were recorded in the preliminary evidence, passed the impugned order of summoning on 18.3.1997 and held that there were sufficient grounds to proceed against the accused under Sections 420/406 of Indian Penal Code. Resultantly, he summoned the accused-wife under the aforesaid Sections.

4. The petitioner-wife seeks the quashing of the complaint on the ground that there is no allegation or averment that the amount paid to her was being paid as a consideration of divorce. On the other hand, the alimony was being paid for expenses incurred on dowry articles and for maintenance which the husband was bound under the law to pay even when no divorce was granted. The dowry articles were e