Is this criminal breach of trust – DV

[Hari]

Dear Sir,
Our matrimonial dispute was settled mutually in the family court dealing with CrPc 125 filed by wife and it was agreed to live together and both parties will withdraw/quash all the pending cases (details of each case was mentioned in the agreement/settlement deed).

CrPc 125 was disposed of – but later on wife backed out and moved an application for restoration (I have sent separate query to you in this regard).

After one month of the settlement in Domestic Violence case – rather than withdrawing she started crying and moved an application and the Mahila Court Judge (in DV case) awarded ad-interim maintenance. Our advocate told the court that matter has been settled in family court and they are supposed to withdraw the case but Judge did not listen and passed the order.

If at all she was aggrieved then she should have informed the family court where the settlement happened (where she has already moved an application for restoration of disposed case).

Here my query is – Isn’t this CRIMINAL BREACH OF TRUST, suppression of material facts, fraud and cheating with the court and me as well? She has suppressed this order of DV from the family court in her application to reopen the disposed case of CrPc 125.

Or sir please advise what is this in legal terminology and what are my remedies. What should I do and where should I go for cancellation of the order of Domestic violence and can she be prosecuted based on the above facts.

If yes under which section and how sir? Whatever legal options I have please advice sir.

Many thanks again for your expert advice and time.

Hari

[Dr. Ashok Dhamija]

You have yourself mentioned that your advocate told the court that the matter has been settled in the family court and she is supposed to withdraw the case, but the Judge did not listen to the same and passed the order. So, it is not that the Judge was not aware of the settlement since you have yourself informed the Judge in DV case about such settlement. If the case before the DV court is still pending and not withdrawn (since the opposite party refused to withdraw it), then the Judge has the power to pass an order as is required in the facts of the case.

The fact that interim maintenance has already been awarded in the DV case may be brought to the knowledge of the Family Court under Section 125 Cr.P.C. proceedings, and such court will keep it in consideration while passing maintenance order, if any.

Under law, different courts have been given powers with regard to maintenance orders. So, sometimes, there is overlapping. You may bring the maintenance order passed by one court to the knowledge of the other, if similar proceedings are pending in such other court; and, such other court is supposed to keep such earlier order of maintenance passed by the first court in consideration while passing its own order.

While I cannot comment on the facts of your case regarding settlement, etc., it is not uncommon for parties to go back on settlements for various reasons. Sometimes, the reason may be due to the default on the part of the other side also. But, once a party goes back on settlement, and even after that the court is entertaining such party in the peculiar facts and circumstances of the case, I don’t think you can call it criminal act, etc. Of course, if the party going back on the settlement has taken some undue financial benefit under the settlement, you can bring it to the knowledge of the court and take whatever other legal remedies are available against such party.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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