Jean K. Abraham and Mariyamma Abraham v. State of Kerala and Swapana George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **Crl.MC.No.3050 OF 2020(A)** ## **AGAINST CC NO.638/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, PATHANAMTHITTA CRIME NO.1568/2017 OF ARANMULA POLICE STATION, PATHANAMTHITTA** ## **PETITIONERS:** |**1**|**JEAN K. ABRAHAM**| |---|---| ||**AGED 47 YEARS, S/O. LATE MATHAI ABRAHAM,**| ||**KOTTACKATTETHU, KOZHANCHERRY, ARANMULA,**| ||**PATHANAMTHITTA.**| |**2**|**MARIYAMMA ABRAHAM**| ||**AGED 79 YEARS, W/O. LATE MATHAI ABRAHAM,**| ||**KOTTACKATTETHU, KOZHANCHERRY, ARANMULA,**| ||**PATHANAMTHITTA.**| **BY ADVS. SRI.V.C.RAJESH SRI.K.J.GLADIS** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY S.H.O., ARANMULA POLICE STATION, PATHANAMTHITTA DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 SWAPANA GEORGE AGED 41 YEARS, D/O. V. S. GEORGE, VALIPLACKKAL, KUMBAZHA VADAKK, KUMBAZHA, ARANMULA, PATHANAMTHITTA689653.** **R2 BY ADV. SRI.C.V.MANUVILSAN R2 BY ADV. SRI.P.HARI HARAN NAIR R2 BY ADV. SRI.O.A.ANJU R2 BY ADV. SHRI.SARATH KRISHNAN T.** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3050 OF 2020(A) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.3050 of 2020 ---------------------------------------------Dated this the 09[th] day of November, 2020 ## **O R D E R** The prayers in the aforecaptioned Criminal Miscellaneous Case filed on 24.06.2020, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), are as follows:- _"i) Quash Annexure A, final report in CC No:-638/2019 in the file of he Hon'ble Judicial First Class Magistrate Court 1, at Pathanamthitta in Crime No:-1568/2017 of Aranmula Police Station and acquit/discharge the petitioners/accused._ _ii) Grand such other reliefs, which are just and necessary in the interest of justice.”_ 2. The petitioners herein have been arrayed as accused 1 & 2 among the two accused in the instant First Information Report (FIR) in crime No.1568/2017 of Aranmula Police Station, Pathanamthitta District, for offences punishable under Sections 498A read with Section 34 of the Indian Penal Code (IPC), on the basis of the First Information Statement (FIS) given by the 2[nd] respondent (lady _de-facto_ complainant) in that Crl.MC.No.3050 OF 2020(A) 3 regard. The police after investigation has now filed the impugned Annexure-A Final Report/Charge Sheet on 15.09.2018 for the abovesaid offfences as against the petitioners/accused therein. 3. The 1[st] petitioner herein (A1) had married the 2[nd] respondent herein. The 2[nd] petitioner herein (A2) is the mother of the 1[st] petitioner herein. The allegations are to the effect that after the marriage of the abovesaid spouses, the petitioners herein (accused persons) have harassed and treated the 2[nd] respondent with cruelty, etc. The father of the petitioner herein was also arrayed as a accused in the above case and he is no more. 4. The petitioners pointed out that difference of opinion between the spouses have given rise to matrimonial litigative proceedings between them. M.C. No.87/2017 was filed by the 2[nd] respondent before the Chief Judicial Magistrate's court, Pathanamthitta, under the Protection of Women from Domestic Violence Act, 2005. O.P. No.402/2017 (for recovery of gold), O.P. No.442/2016 (for custody of children) and O.P.No.444/2016 (for divorce) was also filed before the Family Crl.MC.No.3050 OF 2020(A) 4 Court, Pathanamthitta by the parties concerned. Later, the Chief Judicial Magistrate Court had referred the matter for mediation and after several rounds of mediation talks, the petitioner and the 2[nd] respondent have settled all the pending cases and have entered into agreement as per Annexure-C, whereby a comprehensive agreement was arrived at between the parties for resolution of all the disputes in the abovesaid pending matrimonial litigative proceedings. Further it is pointed out by the 1[st] petitioner has given an amount of Rs.53,50,000/- (Rupees Fifty three lakhs and fifty thousand) to the 2[nd] respondent and Rs.10,00,000/- (Rupees ten lakhs only) to be given to each of the minor children. Further that, the 1[st] petitioner had allowed taking all ornaments of the 2[nd] respondent, which was kept in their joint bank locker and custody of the two children was also given to the 2[nd ] respondent. Further that it was then agreed by the parties to settle the abovesaid matter in Annexure-A, C.C.No.638/2019 on the file of the Judicial First Class Magistrate Court-I, Pathanamthitta. 5. The 1[st] petitioner would urge that he has complied with all the conditions as per Annexure-C agreement and that Crl.MC.No.3050 OF 2020(A) 5 though the 2[nd] respondent had unconditionally agreed in Annexure-C settlement to give visitation rights of the minor children to the 1[st] petitioner. The said condition was totally breached by the 2[nd] respondent and that she had not permitted the petitioner to visit the children and to interact with them. The 1[st] petitioner would thus point out that he was then constrained to file I.A. No.1/2020 in the abovesaid O.P. No.442/2017 (which is earlier filed for custody of children) before the Family Court, Pathanamthitta, seeking for interim custody of the children. The 1[st] petitioner has clearly stated that he was compelled to do so only as the 2[nd] respondent has blatantly violated the terms and conditions in Annexure-C settlement agreement for visitation rights of the children to him and that the 1[st] petitioner is ready to withdraw the aforesaid I.A. No.1/2020 in O.P.No.442/2017 before the Family Court, Pathanamthitta, if the 2[nd] respondent herein would at least give visitation rights of the children to him and allow him to have reasonable opportunity to interact with the children. 6. Per contra, Sri.C.V. Manu Vilsan, learned counsel appearing for the 2[nd] respondent would point out that the Crl.MC.No.3050 OF 2020(A) 6 abovesaid allegations of the 1[st] petitioner are practically wrong and that the 2[nd] respondent has not, in any manner, violated the terms and conditions of Annexure-C agreement and that she is fully willing to give visitation rights of the children to the 1[st] petitioner and thus to give a reasonable opportunity to interact with the children as stipulated in Annexure-C settlement agreement. 7. The learned counsel appearing for the 2[nd] respondent would submit on the basis of the instructions that the 2[nd] respondent was fully willing to settle the matters in relation to the impugned Annexure-A, C.C. No.638/2019, on the file of the Judicial First Class Magistrate Court-I, Pathanamthitta and it is only on account of the adamant stand of the 1[st] petitioner in having filed the abovesaid I.A. No.1/2020 in the disposed O.P. No.442/2020, so as to reopen the custody battle that the 1[st] petitioner was not willing for settlement of the present case. On being querried, the learned counsel appearing for the 2[nd] respondent would submit on the basis of instructions that the 2[nd] respondent would undertake that the terms and conditions of Annexure-C agreement including the one for Crl.MC.No.3050 OF 2020(A) 7 visitation rights of the children are to the 1[st] petitioner and the 1[st] petitioner fully owned and complied with by her and that she would certainly permit the 1[st] petitioner to have visitation rights of the children to the 1[st] petitioner and to give reasonable opportunity with him (children), etc. 8. The learned counsel appearing for the petitioner would then submit on the basis of instructions that if that be so, the 1[st] petitioner will wait for about 4 weeks to 6 weeks and ascertain as to whether the 2[nd] respondent is true to her words and would comply with the abovesaid undertaking and if visitation right of the children are given to the 1[st] petitioner and he is thus given reasonable opportunity to interact with the children, then he will certainly take steps to close the abovesaid I.A. No.1/2020 filed in O.P. No.442/2016, before the Family Court, Pathanamthitta, as not pressed, etc. The abovesaid submissions of both sides are recorded. 9. After hearing both sides, it is seen that this Court has taken the view in various decisions including the one in _**Thomas v. State of Kerala**_ [2016 (1) KLT 694] that where a mediation settlement agreement has been entered into between Crl.MC.No.3050 OF 2020(A) 8 the parties, and the parties to such an agreement cannot be permitted to withdraw the same after the settlement has come into effect and that in such cases, when there is a comprehensive agreement for settling all such matrimonial disputes, a criminal proceedings as in this case for the offence as per Sec.498 A of the IPC, etc., could be quashed by the court in exercise of its discretion, etc. The Division Bench of this Court in the decision in _**Teena M. Ansari v. Rinoj Eapen**_ [2019 (3) KLT 114 (DB)] has held that after entering into a settlement agreement, through process of mediation and after the court as well as the parties are acted upon the settlement, one of the parties cannot be permitted to unilaterally withdraw the same, etc. 10. Taking note of the totality of the facts and circumstances of the case, as the matter is now regulated by a comprehensive mediation settlement agreement and parties have already acted upon the same and the marital relationship between the spouses has also been dissolved, and taking into account the dictum laid down by this Court in the aforecited decisions, etc., this Court is of the considered view that further Crl.MC.No.3050 OF 2020(A) 9 continuance of the impugned criminal proceedings at Annexure-A, CC No.638/2019 on the file of the Judicial First Class Magistrate Court-I, Pathanamthitta, will be an abuse of process of this Court and is to be interdicted at the hands of this Court in exercise of the inherent powers conferred under Sec.482 of the Cr.P.C. 11. The abovesaid submissions and undertakings made by the parties in relation to the visitation right of the children are hereby recorded. The parties now submit that they will act upon their undertakings as mentioned hereinabove. These aspects shall also be duly taken note of by the Family Court, before whom I.A. No.1/2020 has been filed in O.P. No.444/2016. 12. Taking into account the totality of the facts and circumstances of this case and in the interest of justice it is ordered that the impugned Final Report/Charge Sheet, filed in Crime No.1568/2017 of Aranmula Police Station, which has now led to the pendency of Calendar Case, CC No.638/2019 on the file of the Judicial First Class Magistrate Court-I, Pathanamthitta, and all consequent proceedings emanating Crl.MC.No.3050 OF 2020(A) 10 therefrom as against the petitioners/accused herein will stand quashed and set aside. The Registry will forward a copy of this order to the Family Court, Pathanamthitta, who is dealing with I.A. No.1/2020 in O.P. No.442/2016, for necessary information. The petitioners will produce certified copies of this order before the Investigating Officer concerned, as well as before the Judicial First Class Magistrate Court-I, Pathanamthitta, who is dealing with CC No.638/2019, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//20112020 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE A** **THE CERTIFIED COPY OF THE FINAL REPORT IN CC NO.638/2019 OF THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, PATHANAMTHITTA IN CRIME NO.1568/2017 IN ARANMULA POLICE STATION.** **ANNEXURE B THE CERTIFIED COPY OF THE FIR IN CRIME NO.1568/2017 OF ARANMULA POLICE STATION.** **ANNEXURE C THE CERTIFIED COPY OF THE MEDIATION AGREEMENT DATED 30.10.2018.** **ANNEXURE D THE CERTIFIED COPY OF THE ORDER IN MC NO.87/2017 DATED 19.03.2019.** **RESPONDENTS' EXHIBITS: NIL**