# Amit Agrawal v. Pooja Agrawal Defendant

- **Citation:** (2014) 1 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-25
- **Case number:** First Appeal No. 931 of 2012
- **Bench:** Vineet Saran, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-agrawal-v-pooja-agrawal-defendant-42807
- **Pages:** 5

## Headnote

Hindu Marriage Act, 1956-Section 13-BDivorce on mutual consent basis-before
mediation center-wife given consent for
permanent alimony- provided sum of Rs.
500000/-given by husband towards one
time maintenance-after accepting amount
Division Bench on basis of compromise
quash the criminal proceeding against
husband-as per terms of compromise
divorce petition-on mutual consent basis
filed-18 months elapsed-wife did not turn
up-family court rejected divorce petitionheld-once the wife accepted amount in
furtherance of compromise-given joint
affidavit- physical present not requiredorder
quashed-divorce
decree
passed
accordingly.

Held:Para-8
As such, in view of the aforesaid, the
presence of the wife on the date fixed
before the Family Court was to be
presumed as she had accepted all the
terms of the compromise and had also
acted upon the same by accepting the
permanent alimony, and the criminal cases
having also been quashed/withdrawn with
her consent, and she having signed the
papers for divorce by mutual consent.
Accordingly, the order dated 12.10.2012
rejecting the application of the parties for
grant of divorce on the basis of mutual
consent on account of the respondent-wife
having not appeared in person deserves to
be quashed, and the appellant would be
entitled to the decree of divorce by mutual
consent.

## Text

1 All] Amit Agarwal Vs. Pooja Agarwal

415

12. Keeping in view the aforesaid
legislative intent in enacting the Act and
considering the welfare of the revisionist
with a hope that he may recover himself
after
being
released
on
bail,
by
associating himself to the main stream of
life, it appears expedient in the interest of
justice that his prayer for bail be allowed.

13. In view of the above discussion,
the
revision
is
allowed.
Both
the
impugned orders passed by Juvenile
Justice Board as well as Lower Appellate
Court are quashed and the Juvenile Justice
Board is directed to release the revisionist
on bail on his mother furnishing a
personal bond of Rs.1,00,000/- with two
solvent sureties each in the like amount to
the satisfaction of the Juvenile Justice
Board in Crime No.139 of 2013, under
Sections 147, 148, 149, 307, 324 and 325
of I.P.C., Police Station Khajni, District
Gorakhpur, subject to condition that the
mother of the revisionist will take care of
his education and betterment and will not
allow to indulge him in any criminal
activity and will keep constant check on
his activities. Both the sureties are
directed to be close relatives of the
revisionist juvenile.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE NAHEED ARA MOONIS, J.

First Appeal No. 931 of 2012

Amit Agrawal............ Appellant
Versus
Pooja Agrawal............. Defendant

Counsel for the Appellant:
Sri Krishna Ji Khare, Sri Mritunjay Khare
Counsel for the Respondent:
-

Hindu Marriage Act, 1956-Section 13-BDivorce on mutual consent basis-before
mediation center-wife given consent for
permanent alimony- provided sum of Rs.
500000/-given by husband towards one
time maintenance-after accepting amount
Division Bench on basis of compromise
quash the criminal proceeding against
husband-as per terms of compromise
divorce petition-on mutual consent basis
filed-18 months elapsed-wife did not turn
up-family court rejected divorce petitionheld-once the wife accepted amount in
furtherance of compromise-given joint
affidavit- physical present not requiredorder
quashed-divorce
decree
passed
accordingly.

Held:Para-8
As such, in view of the aforesaid, the
presence of the wife on the date fixed
before the Family Court was to be
presumed as she had accepted all the
terms of the compromise and had also
acted upon the same by accepting the
permanent alimony, and the criminal cases
having also been quashed/withdrawn with
her consent, and she having signed the
papers for divorce by mutual consent.
Accordingly, the order dated 12.10.2012
rejecting the application of the parties for
grant of divorce on the basis of mutual
consent on account of the respondent-wife
having not appeared in person deserves to
be quashed, and the appellant would be
entitled to the decree of divorce by mutual
consent.

(Delivered by Hon'ble Vineet Saran, J.)

1. This is an appeal challenging the
order dated 12.10.2012 whereby the
divorce petition filed by the appellanthusband under section 13-B of the Hindu
Marriage Act, 1956 (hereinafter referred
to as "the Act") has been dismissed on the
ground that the respondent-wife was not
present and since more than 18 months
416 INDIAN LAW REPORTS ALLAHABAD SERIES

had passed after the filing of the petition
jointly by the husband the wife, mutual
divorce could not be granted in the
absence of the respondent-wife.

2. We have heard Sri Krishna Ji
Khare, learned counsel for the appellant.
In view of the order of date passed on the
order-sheet, whereby service on the sole
respondent has been deemed to be
sufficient, this appeal is being disposed of
at this stage.

3. The facts leading to the filing of
the petition under section 13-B of the Act
for divorce by mutual consent are that
after the marriage of the appellant with
the respondent in the year 2006, a First
Information Report was lodged by the
respondent (wife) against her husband
(appellant), which was registered as case
crime no. 244 of 2010 under sections 498A, 323 IPC and section 3⁄4 Dowry
Prohibition Act. Challenging the same,
the appellant filed Criminal Misc. Writ
Petition No. 14341 of 2010. In the said
writ petition, the matter was referred to
the Mediation Centre of this Court, in
which an amicable settlement was arrived
at between the parties on 1.5.2011.
However, in the meantime, the said
Criminal
Misc.
Writ
Petition
was
dismissed
in
default,
in
which
a
restoration/recall application was filed.
Thereafter,
on
8.7.2013,
the
order
dismissing the Criminal Misc. Writ
Petition no. 14314 of 2010 in default was
recalled and the writ petition was allowed
with the following order:-

"Heard learned counsel for the
petitioners and the learned A.G.A. for the
State.

Learned counsel for the parties point
out that the dispute has been resolved
between the parties and there is a report of
the mediation centre dated 8.5.2011 to
this effect.

From the perusal of the mediation
report, it appears that the petitioners and
respondent no. 3 have amicably settled
their dispute and they have decided to live
separately. The respondent no. 3 is no
more
interested
in
prosecuting
the
petitioners in the present case arising out
of Case Crime No. 2442 of 2010 under
Sections 498-A, 323 I.P.C. and 3/4 of
Dowry Prohibition Act, Police Station
Baradari, District Bareilly.

In this view of the matter, the writ
petition is allowed and the criminal
proceedings arising out of the FIR dated
26.7.2010 registered at Case Crime No.
2442 of 2010 under Sections 498-A, 323
I.P.C. and 3/4 of Dowry Prohibition Act,
Police Station Baradari, District Bareilly
are hereby quashed. The interim order, if
any, stands confirmed."

4. By the said order, the report of the
Mediation
Centre
dated
8.5.2011
confirming the settlement between the
parties on 1.5.2011, was accepted. The
settlement dated 1.5.2011 had been signed
by the appellant and the respondent, as
well as their respective counsel. The
relevant paragraph 5 of the said settlement
is reproduced below:-

"5. The parties hereto confirm and
declare that they have voluntarily and of
their own free will arrived at this
Settlement Agreement in the presence of
the Mediator/Conciliator.

a. That Sri Amit Agarwal (petitionerhusband)
and
Smt.
Pooja
Agarwal
(Respondent no.3-wife) were married on
21.4.2006. After some time of the
1 All] Amit Agarwal Vs. Pooja Agarwal

417
marriage, the relation between husband
and wife became strained and hence they
are living separately. Out of the aforesaid
wedlock, they were blessed with a female
child namely Gauri who born on
24.10.2007.

b. That a joint affidavit in the shape of
an agreement between the parties has already
filed before the family court, Bareilly on
7.4.2011, in case no. 331 of 201, which is
part of this agreement. In view of the
aforesaid affidavit, now both the parties have
decided to separate/take Mutual Divorce on
the condition of a permanent alimony
amount of Rs. 5,00,000/- (Rs. Five lacs)
being paid through the bank draft in the
name of Smt. Pooja Agarwal/wife by Sri
Amit Agarwal/husband.

c. That Sri Amit Agarwal/husband
has already paid Rs. 5,00,000/- on
7.4.2011 in the following manner:-

(i) Bank draft no. 323949 of Rs.
1,00,000/- drawn on Punjab & Sindh
Bank, Dalmiya Eye Hospital, Civil Lines,
Rampur, issued on 6.4.2011.

(ii) Two bank draft nos. 961528
dated 6.4.2011 of Rs. 1.5 lakh and 961520
dated 4.4.2011 of Rs. 2.5 lakhs drawn on
State Bank of India, Railway Road,
Saharanpur.

The aforesaid drafts have already
been paid to Smt. Pooja Agarwal by Sri
Amit Agarwal/husband and she has
received the same. It is made clear
between the parties that after receiving the
aforesaid amount, Smt. Pooja Agarwal
shall not be entitled to claim any kind of
maintenance etc. for herself or her
daughter Gauri from her husband or his
family members.

d. That both the parties have agreed
that their daughter Gauri shall remain in
the custody of her mother and she will
look after the welfare of her daughter in
all manner.

e. That it has been agreed between
the parties that this compromise will be
treated as their consent for mutual divorce
and they shall be free to take formal
decree
of
divorce
from
the
court
concerned.

f. That in the view of above noted
agreement between the parties, both the
parties agree that all civil and criminal cases
filed by them against each other including
the above noted ones, shall be treated to be
withdrawn and the decree of divorce to be
passed for all practical purposes from today
itself. They also agree that they will file
proper application before the appropriate
court for the purpose."

5. From a perusal of the aforesaid
agreement, it is thus confirmed that the
respondent Pooja Agrawal (wife) has
received a sum of Rs. 5 lacs from the
appellant Amit Agrawal (husband) by
three Demand Drafts of Rs. 1 lac; Rs. 1.5
lacs and Rs. 2.5 lacs. In terms of the said
compromise, the criminal case filed by
the respondent-wife against the appellanthusband had also been quashed. Clause
(e) of paragraph 5 of the compromise
agreement (signed by both the parties)
clearly mention that the said compromise
would be treated as the consent of both
the parties for mutual divorce and they
shall be free to take formal decree of
divorce from the court concerned.

6. It is not disputed that both the parties
have fulfilled their commitment in terms of
the said compromise to the extent of
418 INDIAN LAW REPORTS ALLAHABAD SERIES

payment of Rs. 5 lacs by the appellant to the
respondent, withdrawal of criminal case
against the appellant by the respondent and
also filing of the divorce petition by mutual
consent.
However, after having once
received the amount of Rs. 5 lacs, and filing
of the petition for divorce by mutual consent,
it appears that the respondent-wife remained
a silent spectator and did not appear before
the Family Court to enable the court to pass a
decree of divorce by mutual consent. She has
also chosen not appear before this Court. The
Family Court has taken the view that the
presence of the wife was necessary within
the stipulated period of 18 months and that
the Statute required both the parties to be
present, and in the absence of the respondent
(wife) the case has been dismissed vide the
impugned order dated 12.10.2012.

7. It is true that in cases where
divorce is granted on the basis of mutual
consent of the parties, the presence of the
parties would normally be necessary for
allowing such petition but in the facts of
the present case, where the respondentwife has filed an affidavit before the
Family Court and thereafter in terms of
the settlement arrived at between the
parties in the mediation proceedings (on
the basis of which the writ petition filed by
the appellant was allowed and the permanent
alimony, as agreed between the parties, has
already been paid to the respondent-wife),
the view of this Court would be that consent
of respondent-wife can be presumed on the
basis of compromise agreement which had
been signed by the respondent-wife in
presence of the Mediators and has been
accepted by the Division Bench of this Court
vide order dated 8.7.2013 passed in writ
petition no. 14314 of 2010 and also as she
has accepted and received the permanent
alimony. If this is not so presumed, then the
very purpose of the compromise would be
defeated. The wife cannot be permitted to
accept one part of the compromise and even
after accepting the permanent alimony of Rs.
5 lacs and giving her consent for divorce by
mutual consent, choose not to appear before
the trial court so as to frustrate the very
purpose of entering into compromise. The
respondent wife has taken the benefit of the
compromise
agreement
and
thereafter
refused to fulfill her commitment by not
appearing in the court, which, according to
us, if permitted would encourage the litigants
to conveniently withdraw from performing
their part of the obligation as enumerated in
the compromise agreement, after having
taken benefit of the same.

8. As such, in view of the aforesaid, the
presence of the wife on the date fixed before
the Family Court was to be presumed as she
had accepted all the terms of the compromise
and had also acted upon the same by accepting
the permanent alimony, and the criminal cases
having also been quashed/withdrawn with her
consent, and she having signed the papers for
divorce by mutual consent. Accordingly, the
order dated 12.10.2012 rejecting the application
of the parties for grant of divorce on the basis of
mutual consent on account of the respondentwife having not appeared in person deserves to
be quashed, and the appellant would be entitled
to the decree of divorce by mutual consent.

9. For the foregoing reasons, this
appeal stands allowed. The order dated
12.10.2012 passed by Family Court,
Bareilly in case no. 331 of 2011 is
quashed. The case no. 331 of 2011, which
was filed under section 13-B of the Hindu
Marriage Act for grant of a decree of
divorce by mutual consent, is allowed and
it is declared that the marriage between
the appellant and the respondent stands
dissolved.
--------
1 All] M/s Shree Balaji Aromatics Pvt. Ltd. & Anr. Vs. Union of India & Ors.

419
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE SHASHI KANT, J.

Civil Misc. Writ Petition No. 1062 of 2007

M/s Shree Balaji Aromatics Pvt. Ltd. & Anr.
......... Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Pankaj Bhatia

Counsel for the Respondents:
A.S.G.I., Sri B.K.S. Raghuvanshi

Central Excise Act 1961-Section -11BB-
Claim of interest-on delayed payment of
refund-denial on ground the petitioner
orally given consent for not putting any
claim for interest-held-if refund delayed
beyond 3 month-payment of interest is
automatic and mandatory- can not be
govern by consent of parties.

Held: Para-13
In view of the above, we are of the view
that the petitioner is entitled for the
interest under Section 11BB of the Act on
the refunded amount, if the amount has
been refunded after three months from the
date of receipt of the application. Having
regard to the facts and circumstances, of
the present case, we are not impressed
with the argument of learned counsel for
the petitioner that the petitioner is entitled
for interest on interest.

Case Law Discussed:
2011(273)
ELT,
3(SC);
2013(298)
ELT,
41(All.); 2006(196) ELT, 257(SC)

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri Pankaj Bhatia, learned
counsel
for
the
petitioners
and
Sri
B.K.S.raghuvanshi, learned counsel appearing
on behalf of the respondents.

2. By means of the present writ
petition, petitioner is seeking a direction
to the respondents to pay the refund as
claimed in various refund claims along
with interest thereon, filed under Section
11-BB of the Income Tax Act, 1961.

3. The petitioner filed some of the
refund claims in the year 2005, some in the
year 2006 and some in the year 2007. The
details of the claim are mentioned in the order
of adjudication dated 08.05.2007. The said
refund claim has been allowed by order dated
08.07.2007. However, interest on the pending
refund claim has been denied in view of the
letter dated 26.04.2007, the correct date of
letter is 20.04.2007, by which the petitioner
has informed that they have decided not to
claim the interest against the claim.

4. Learned counsel for the petitioner
submitted that out of the total refund
claims in respect of some of the refund
claims, despite the refund claims being
allowed, show cause notices have been
issued by the Assistant Commissioner to
deny the refund claims. However, in
respect of some claims, refund has been
granted. Submission of learned counsel
for the petitioner is that, interest under
Section 11BB of Central Excise Act, 1944
(hereinafter referred to as the "Act") being
statutory and automatic, is payable
without any claim in case, if refund is not
made within thirty days from the date of
receipt of the application. It does not
depend upon the claim and can not be
denied on the ground of waiver of the
claim of interest by the party. Thus, even
though the petitioner has written a letter
for not claiming the interest, the claim of
interest can not be denied under Section