Archive
Supreme Court: Wife cannot implicate one and all in Domestic Violence case…Quashed against 9 respondents
, , , ,
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 43 OF 2013
(SPECIAL LEAVE PETITION (CRL.)NO.8522 OF 2010) ASHISH DIXIT & ORS. APPELLANTS VERSUS
STATE OF U.P. & ANR. RESPONDENTS O R D E R
1. Leave granted.
2. This appeal is directed against the judgment and order dated 05.07.2010 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No.8358 of 2008. By the impugned judgment and order, the High Court has refused to quash the proceedings initiated against the petitioners by the respondent no.2-wife, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity “the Act, 2005”).
3. In the petition filed by respondent no.2, apart from arraying her husband and her parents-in-law as parties to the proceedings, has included all and sundry, as
: 2 :
respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.
4. In a matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by respondent no.2 be confined to her husband as also her parents-in-law and should not have allowed the impleadment of respondent nos.4 to 12.
5. In view of the above, while allowing this appeal in part, we quash the proceedings as against appellant nos. 4 to 12 in Case No.240 of 2007. We direct the learned Chief Judicial Magistrate, Agra to proceed with the aforesaid case; only against the husband i.e. Shri Ashish Dixit, S/o. Padmakar Dutt Sharma, her father in law, Shri Padmakar Dutt Sharma, S/o.late Pt.Diwakar Dutt Sharma and Smt.Girja Dixit, W/o.Shri Padmakar Dutt Sharma, her mother in law.
: 3 :
6. We are of the opinion that the direction issued by the High Court, inter-alia, directing the appellants herein to appear before the Trial Court and seek bail is wholly unnecessary. …………………..J.
(H.L. DATTU)
…………………..J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI;
JANUARY 07, 2013.
Reportable judgement from SC: SC set aside proceedings initated under 498A and 304B
, , , ,
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.__174___ OF 2013
(Arising out of SLP (Criminal) No. 4883 of 2008)
Rajiv Thapar & Ors. …. Appellants
Versus
Madan Lal Kapoor …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. Rajiv Thapar (appellant no. 1 herein) married Dr. Monica Kapoor on 30.11.1991. After her marriage, Dr. Monica Thapar got admission in a Post Graduate Diploma course in Gynaecology (DGO) at Medical College, Surat, in June 1992. Accordingly, she started working as a Resident at the aforesaid Medical College. At his own request, Rajiv Thapar, who was (and still is) a member of the Indian Revenue Services, was transferred from Ahmedabad to Surat. On 16.9.1992, while the husband and wife were living at Surat, Dr. Monica Thapar fell ill. For her treatment, she was admitted to Mahavir Hospital, Surat. She was diagnosed as suffering from Malaria. Having been treated for the same, she was discharged on 20.9.1992. Two days thereafter, Dr. Monica Thapar again fell ill on 22.9.1992. This time, she was taken to Medical College, Surat i.e., the hospital where she was herself working as a Resident. She was first examined by a radiologist, and thereafter, by Dr. Girish Kazi, a cardiologist. It was suspected, that she has a hole in her heart. Based on the aforesaid diagnosis, Dr. Dumaswala, another cardiologist, conducted Doppler echo-cardiography. The said echo-cardiography confirmed the presence of a large hole in her heart. On the advice of doctors who attended on Dr. Monica Thapar at Medical College, Surat, she was shifted to Urmil Heart and Lung Centre, Surat, on 24.9.1992. While at Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar allegedly suffered a massive heart attack on 26.9.1992. The same supposedly proved fatal.
3. The factum of death of Dr. Monica Thapar was conveyed to the immediate family of Rajiv Thapar, as well as to the family of the deceased. A decision was taken to cremate the dead body at Delhi. Accordingly, after embalming the body of Dr. Monica Thapar, it was transported by rail to Delhi on 27.9.1992. The immediate family of Dr. Monica Thapar including her father Madan Lal Kapoor (respondent-complainant herein) were present at the time of arrival of the body at Delhi.
4. Madan Lal Kapoor made a complaint to the Police Control Room alleging, that he suspected that his daughter had been poisoned. This suspicion was based on the fact, that the body had turned blue. On the aforesaid complaint, the Sub-Divisional Magistrate, Delhi, in exercise of powers vested in him under Section 176 of the Code of Criminal Procedure (hereinafter referred to as, the Cr.P.C.), initiated inquest proceedings. In the first instance, the body of the deceased was subjected to a post- mortem examination, for which the following Medical Board was constituted:-
(i) Dr. Bharat Singh, Medical Superintendent, Civil Hospital, Delhi.
(ii) Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, Delhi. (iii) Dr. Beena Malhotra, Professor, Pathology, G.B. Pant Hospital, New Delhi.
(iv) Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi.
The Medical Board came to the conclusion, that Dr. Monica Thapar had died of cardiac decomposition. The final opinion of the Medical Board, was recorded in a report dated 28.9.1992, in the following words:- “OPINION In view of the clinical reports submitted and post mortem findings observed, the Board of Direcors is of the opinion that, death is consequent to cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension. No definite opinion can be given about falciparm Malaria, histopathological assessment.
Viscera is preserved for chemical analysis as desired by SDM. Time since death is about 48 hours and is consistent with the history.”
(emphasis is ours)
During the post-mortem examination, samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken. These samples were sent for chemical examination to the Central Forensic Science Laboratory, New Delhi. The report of the Forensic Laboratory dated 9.2.1993, recorded the following conclusions:-
“SPECIFICATION OF THE ARTICLE CONTAINED IN THE PARCEL
1. Parcel contained:
(a) One wide-mouth bottle containing stomach, intestine with contents, Exhbt 1a.
(b) One wide mouth bottle containing liver, spleen & kidney, Exhbt 1b.
(c) One phial containing few drops blood, Exhbt 1c.
xxx xxx xxx
RESULTS OF ANALYSIS
The Exhibit nos. 1a, 1b and 1c gave negative tests for common poisons.”
It is therefore apparent, that the Central Forensic Science Laboratory, New Delhi, having analysed the samples from the stomach, intestine, liver, spleen, kidney and blood, concluded that the same did not contain any “common poison”.
5. Insofar as the inquest proceedings initiated by the Sub-Divisional Magistrate, Delhi (hereinafter referred to as the SDM, Delhi) are concerned, it would be relevant to mention, that Madan Lal Kapoor (the respondent-complainant herein) the father of the deceased, in the first instance, refused to record any statement before the SDM, Delhi, on the ground that he would record his statement only after the receipt of the post-mortem report. Even on the receipt of the post-mortem report, the said Madan Lal Kapoor and even his son Rajiv Kapoor, refused to record their statements before the SDM, Delhi, on the assertion, that the mother of the deceased knew the facts best of all, and as such, her statement needed to be recorded first of all. It was pointed out, that her statement could not be recorded immediately because she was in a state of shock. It may be noted, that neither the mother nor the brother of Dr. Monica Thapar appeared before the SDM, Delhi, to record their statements. Madan Lal Kapoor had sought time thrice, from the SDM, Delhi, to get the statement of his wife recorded. Madan Lal Kapoor, father of the deceased, however, eventually recorded his statement before the SDM, Delhi, even though the mother of the deceased had not appeared before the Magistrate to record her statement.
6. The SDM, Delhi, during the course of inquest proceedings, recorded the statements of the following accused persons:-
(i) Rajiv Thapar (husband of the deceased; appellant no. 1 herein).
(ii) Kusum Thapar (mother-in-law of the deceased; appellant no. 5 herein).
(iii) Sangeeta Thapar (wife of the brother-in-law of the deceased; appellant no. 4 herein).
In addition, the SDM, Delhi, recorded the statement of Dr. Pritu Dhalaria (a colleague of the deceased at Medical College, Surat). Insofar as the accusations and counter allegations are concerned, it is not essential to refer to the statements of any of the rival parties. It is however, appropriate to refer to the statement of Dr. Pritu Dhalaria. Since the same is not available on the record of the case, reference thereto in the inquest report, is being extracted hereunder:-
“Statement of Mr. Pritu Dhalaria
Sh. Pritu Dhalaria stated that Monika Thapar was known to him from the date she got admission in the Medical College in June,
92. And he regards her as his elder sister. He further stated that both Monika and Rajeev were happy and living a happy married life. On 17th September, 1992, he came to know that Monika was ill and admitted in the Mahavir Hospital. In the evening of 17.9.1992, when he met Monika he came to know that she was suffering from Malaria. And on 24.9.1992, he came to know that she was admitted in the Urmil Heart Hospital. He further stated after Echo-Cardiography doctor declared that Monika was suffering from A.S.D. (Larger Hole in Heart) and pulmonary Hypertension. He stated that on 26.9.1992, at about 2.00-2.15 p.m., Monika’s situation became serious. And inspite of all attempts of doctors, she got heart attack and died on 3.30 p.m. He also stated that the MS of Civil Hospital, Surat, Dr. Khanna was present alongwith the other doctors at that time.”
(emphasis is ours)
7. The statement of Dr. Pritu Dhalaria fully coincides with the version expressed by the appellants-accused. That Dr. Monica Thapar had two bouts of illness. In the first episode, she was diagnosed as suffering from Malaria. She was treated for the same and discharged. Thereafter, she was diagnosed with a large hole in her heart, on the basis of an echo- cardiography. She died of a massive heart attack on 26.9.1992. At the time of her death, Dr. Khanna and other doctors of the Civil Hospital, Surat, were present.
8. The SDM, Delhi, in his inquest report dated 6.7.1993, recorded the following conclusions:-
“Conclusion
Allegation levelled by Shri Madan Lal Kapoor, father of the deceased regarding harassment and dowry death, it appears that allegation are not correct in the light of the fact of Natural death in the statements the husband and in laws of the deceased produced photocopies of letters written by Sh. Madan Lal Kapoor and Rajiv Kapoor. Perusal of the letter shows that both the families enjoyed a normal happy relationship and not an abnormal and strained relation till the death of Monika.
Sh. Rajeev Thapar has produced copy of telephone Bill of residential phone shows the Telephone Cells are made to Madan lal phone No.574390 at Mohali Chandigarh on 17.09.92, 21.09.92, 24.09.92 and 25.09.92 during the course of illness of Monika
Sh. Rajeev Kapoor, the brother of the deceased well aware of the situation of Monika as per his letter dated 22nd September, 92 and at that time the families are enjoying a very good relationship. So it is not possible in these circumstances that Monkka was harassed by her in-laws. The few lines as under:-
“How are you Now? I hope by now you will have recovered from Malaria. We should have faith in God. Please give top priority to your health.
Off and on I go to Janakpuri, all are very nice there, very affectionate and very caring. You must be knowing that Sanjay Bhai Saheb have been promoted to the rank of Squadron Leader..
The brother is no likely to praise the family of his sister’s in-laws in case his sister is being harassed for dowry.
Statement of Sh. Pritu, Colleague of Mrs. Monika, also shows that Monika and Rajiv enjoyed a very happy and cordial relationship, which also shows that allegations of harassment does not appear to be correct. According to the statements given before me Monika stayed with her in-laws in Delhi only for 4-5 days. Hence the charged of harassment levelled does not appear to be correct. From the statement and evidence produced before me, it does not appear that she was being harassed. Report of Sh. S.K. Pathi M.d. Radiologist during the treatment of Monika.
“Mild Cardiac enlargement with dilated pulmonary vessels and evidence of Pulmonary Dedema. Advise: Echocardiography.”
Report of Dr. J.C. Damaswala M.D. during the treatment of Monika.
“Large osteum secundum ASD Measuring 3.0 cm with Ltd. To Rt. Shunt on colour flow and conventional Doppler.”
Death certificate issued by Urmil Heart and Lung Centre:-
Cause of Death: Cardio-Respiratory arrest due to Malaria ASD C Pulmonary Hypertension.
The post-mortem of the dead body revels that death is due to Cardiac de-compensation due to enlarged atrial Septal Defect and pulmonary Hypertension (As per board of doctors)
The CFSL report of the viscera reveals negative tests for common poison.
Inquest proceedings started on 27.09.1992 and till now mother of the deceased has not come forward to give her statement. Father of the deceased visited SDM office three times but never brought his wife for recording statement. Now there is no point in waiting for her statement when death is proved natural and beyond any doubt.
The case of the death is clearly determined to be natural inquest proceedings under Section 176 Cr.PC may be closed as foul play in the death of Smt. Monika Thapar is completely ruled out and the allegation made in the PCR called on 29.09.1992 have not been turned out by the evidence on record. Sd/-
Sub-Divisional Magistrate, Kotwali, Delhi.
6.7.1993”
A perusal of the inquest report reveals that the SDM, Delhi, concluded that “… foul play in the death of Smt. Monika Thapar is completely ruled out…” The SDM, Delhi, also held “…death is proved natural and beyond any doubt…”
9. On 29.9.1992, Madan Lal Kapoor (the respondent-complainant), father of the deceased Dr. Monica Thapar, filed a complaint before the Commissioner of Police, Delhi. Prior thereto, on the same issue, he had filed similar complaints before the Police Commissioner, Surat, Police Officer Incharge, Umra Police Station, Athwa Lines, Surat and Dy. Commissioner, Athwa, Crime Women Cell, South Moti Bagh, Nanakpura, New Delhi. The aforesaid complaints had been filed by the father of the deceased praying for registration of a First Information Report, interalia, under Sections 304B and 498A of the Indian Penal Code. Since the complaints filed by Madan Lal Kapoor did not bear any fruitful result, he filed a criminal complaint before the Metropolitan Magistrate, Delhi on 6.7.1993 alleging unnatural death of Dr. Monica Thapar, by poisoning. Relevant portion of the complaint made by Madan Lal Kapoor (the respondent- complainant) is being extracted hereunder:-
“10. That in the second week of September, 1992, accused no.1 Rajiv Thapar called his mother from Delhi, on the false pretext that Monika was pregnant and needed care. As a matter of fact, it was in the pursuance of the conspiracy hatched by the accused themselves to do away with the life of Monika in some mysterious manner and on the pretext the mother of Rajiv Thapar accused no.1 was called from Delhi, and sometimes thereafter on that pretext she was admitted in some hospital of their choice, where the conspiracy could be implemented.
11. That on 26.9.1992 the complainant enquired on telephone from accused no.2 about the welfare of his daughter but now she was quite alright and there was nothing worry about her. The complainant enquired from him about the details of her illness and hospital where she was admitted, but accused no.2 did not disclose as the voice of Mr. Thapar accused no.2 was some what in co-herent on the phone, the complainant suspected something wrong, when the complainant told him that he along with his wife was going to Surat, accused no.2 told him that there was no need of going and everything was alright, but when the complainant told him in clear term that he apprehended something wrong regarding the illness of his daughter, on which accused no.2 told the complainant on phone that Monika had expired.
12. That accused no.2 in conspiracy with his co-accused did not disclosed the kind of illness, of the treatment she was given with a criminal intention that the complainant and his wife may not able to see their daughter and give her proper treatment. Mrs. Monika was not suffering from any disease. Of course, due to constant harassment, torture, physical and violent and mental torture, her health had broken down and she fell ill. Her death was due to constant torture for not meeting the illegal demand of a Maruti Car.
13. That the dead body of Monika was brought to Delhi under mysterious circumstances, no permission was obtained for taking dead body from Surat to Delhi in the train.
14. That the complainant and his wife reached Delhi and saw some poisonous substance had been administered to her, on this report of the complainant, the post-mortem was conducted at Delhi.
15. That the complainant was moved hell and earth in the matter. He has given complaint to police Commissioner, Surat. Deputy Commissioner, Athwa Crime Women Cell, South, Moti Bagh, Nanakpura, New Delhi, Police Officer Incharge, Umra , Police Station, Athwa Lines, Surat and another authority; but no action has been taken, even the copy of the Post Mortem Report has not been supplied to the complainant.
16. That the death of Mrs. Monika took place within a year of her marriage under mysterious circumstances on account of demand of dowry which demand was not met and thereafter she was tortured mentally and physically and leading to her illness and in that condition she was administered some poisonous matter. The accused have committed serious offences under Sections 304B/120B/498A/109 I.P.C. They be tried according to law and convicted.
Sd/-
Dated 6.7.93 Madan Lal Kapoor Complainant”
(emphasis is ours)
10. The complaint extracted above, reveals mere aspersions, based on suspicion. The complaint did not express any concrete fact disclosing how the appellants-accused were responsible for having taken his daughter’s life. In fact, the narration of facts hereafter reveal, the shifting stance of the father of the deceased, about the cause of his daughter’s death. On 24.5.1995, Madan Lal Kapoor (the respondent-complainant) examined himself and his son Rajiv Kapoor before the Metropolitan Magistrate, Delhi in order to substantiate the allegations levelled by him in respect of the unnatural death of his daughter Dr. Monica Thapar. Based on the statements made by Madan Lal Kapoor (the respondent-complainant) and his son Rajiv Kapoor, the Metropolitan Magistrate, Delhi, vide order dated 24.8.1995, summoned the accused. The Metropolitan Magistrate, Delhi, while summoning the accused, recorded the following observations:- “It is further alleged that at the time of her death she was doing Diploma in Gynaecology in territories at Surat where his son in law was employed. The complainant did not receive any telephone call either from his daughter or son in law and he therefore rang up to Ramesh Thapar at Delhi to enquire about the welfare of his daughter and Ramesh Thapar told him on telephone that his wife Kusum Thapar had been called to Surat to look after his daughter as she was said to be pregnant but subsequently she was aborted. The complainant enquired from him as to the particulars of the hospital where she was admitted and what was the ailment she was suffering from, she replied that her daughter was quite all right and he should not worry about her welfare again insisted to given particulars of the hospital and the complainant suspected that her in-laws were not behaving with her properly and were harassing, therefore, he insisted that he himself and his wife shall go to Surat and he told him that he suspected some foul play in the matter on which Ramesh Thapar told him from Delhi that his daughter Monika has already expired, and he enquired as to where she will be cremated. The accused brought the dead body of his daughter from Surat to Delhi but they did not allow him and his family members to see the dead body but on their insistence, they saw the dead body of his daughter and he saw that the face and mouth of his daughter was blue. He suspected that her daughter has been given some poisonous matter, as a result of which she had died. He informed the police and the police came and got the post mortem of the dead body conducted, but thereafter nothing was done by police in this matter. He sent a registered letter to the Police Commissioner, Delhi and he went to Surat and filed a complaint before the Police Commissioner but nothing was done. The complainant suspect that his daughter has been admitted because his daughter had not brought sufficient dowry according to the status and had also failed to fulfill the demands of above named accused persons of bringing dowry and Maruti Car and cash.
I have carefully considered the argument put forward by Ld. Counsel for complainant. I have also carefully gone through the complaint and have carefully considered the preliminary evidence adduced by the complainant in support of his case, and from the material on record in my considered opinion, there are sufficient grounds for proceedings against all the accused persons for committing offence punishable u/s. 304B/498A/406/120B IPC.
Accordingly, I order that accused Rajiv Thapar, Ramesh Thapar, Sangeet Thapar and Mrs. Kusum Thapar be summoned for 19.12.1995 on filing of PF.”
11. The appellants assailed the aforesaid summoning order dated 24.8.1995, by filing a petition under Section 482 of the Cr.P.C. before the High Court of Delhi (hereinafter referred to as, the High Court). The challenge raised was primarily on the ground, that Madan Lal Kapoor (the respondent- complainant) had suppressed vital material, in his complaint. It was alleged, that the complainant did not disclose the particulars of the post-mortem examination, the report of the Central Forensic Science Laboratory, as also, the inquest report. The High Court dismissed the aforesaid petition summarily on the premise, that the same had been prematurely filed. Accordingly, liberty was granted to the appellants to move the trial Court, if they were so advised, for seeking a recall of the summoning order (dated 24.8.1995). Immediately, on the disposal of the petition by the High Court, the appellants moved an application before the Metropolitan Magistrate, Delhi, praying for a recall of the summoning order dated 24.8.1995. The aforesaid application was dismissed by the Metropolitan Magistrate, Delhi on 23.5.1998 by observing that “… I am of the opinion that at this stage, there is no ground to review or recall the order dated 24.8.1995 passed by my L.D. Predecessor, whereby he summoned the accused for the above stated offences after taking cognizance…”
12. Thereupon, the Metropolitan Magistrate, Delhi, recorded preliminary evidence. Based thereon, and having formed an opinion, that there was sufficient material to proceed against the accused under Sections 498, 496, 304B read with Sections 120-B of the Indian Penal Code, the Metropolitan Magistrate, Delhi, committed the case to the Court of Sessions, as the offence under Section 304B is exclusively triable by a Court of Sessions.
13. While examining the matter further, with the pointed object of either discharging the accused (under Section 227 of the Cr.P.C.) or framing charges against them (under Section 228 of the Cr.P.C.), the Additional Sessions Judge, Delhi took notice of the fact that Madan Lal Kapoor (the respondent-complainant) had not brought the following record/material/documents to the notice of the Metropolitan Magistrate, Delhi:-
(i) The post-mortem report dated 28.9.1992.
(ii) The inquest report dated 6.4.1993.
(iii) The correspondence made by the respondent and his son. The Additional Sessions Judge, Delhi also felt, that the Metropolitan Magistrate, Delhi, had not fully complied with the provisions of Section 202 of the Cr.P.C. (requiring him to enquire into the case himself). Therefore, the Additional Sessions Judge, Delhi examined the allegations made in the complaint in conjunction with all of the aforesaid material.
14. Since the learned counsel representing Madan Lal Kapoor (the respondent-complainant) had raised an additional plea (before the Additional Sessions Judge, Delhi), that the deceased was also suspected of having been strangulated to death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani and Dr. Amit Banerjee (who were members of the Medical Board, which had conducted the post-mortem examination). The Additional Sessions Judge, Delhi, sought clarifications on the allegations of strangulation, from the two doctors. The Court also recorded the statement of Dr. Amit Banerjee.
15. The Additional Sessions Judge, Delhi then heard detailed arguments on charge. Upon consideration, the Additional Sessions Judge, Delhi, recorded detailed findings, which are being summarized hereunder:- (i) The inquest proceedings conducted by the SDM, Delhi, which interalia contained the broad facts of the married life of the deceased, were inconsistent with the theory of harassment extracted in the complaint.
(ii) The accused Rajiv Thapar, husband of Dr. Monica Thapar (deceased) had been seeking medical advice, and had been getting the deceased’s medical treatment at Surat, whereupon it came to be discovered, that she had a large hole in her heart.
(iii) The Medical Board which conducted the post-mortem examination on the body of the deceased, confirmed the conclusion certified by Urmil Heart and Lung Centre, Surat, that her death occurred because of cardiac de-compensation, and that Dr. Monica Thapar had died a natural death.
(iv) The plea of strangulation raised on behalf of the complainant was held to be unsubstantiated consequent upon the clarification rendered by Dr. L.T. Ramani and Dr. Amit Banerjee.
(v) The post-mortem report and the Central Forensic Science Laboratory’s report, which recorded a negative opinion on poisoning, were taken into consideration to conclude, that the death of Dr. Monica Thapar was not due to poisoning.
(vi) The statement made by Dr. Pritu Dhalaria, a colleague of the deceased at the Medical College, Surat, referred to in the inquest proceedings (relevant portion extracted above), was relied upon to disbelieve the theory of foul play, in the death of Dr. Monica Thapar.
(vii) Based on the facts recorded in the inquest report, as also in the statement of Dr. Pritu Dhalaria, that Dr. Monica Thapar had died after her admission and treatment in the Urmil Heart and Lung Centre, Surat, it was deduced, that Rajiv Thapar, the husband of the deceased could have neither strangulated nor poisoned the deceased, while she was admitted for treatment at the Urmil Heart and Lung Centre, Surat.
Based, interalia, on the aforesaid evaluation of the complaint filed by Madan Lal Kapoor (the respondent-complainant), the Additional Sessions Judge, Delhi concluded, that no prima facie case was made out against the appellants/accused either under Section 304B of the Indian Penal Code or under Section 498 of the Indian Penal Code. The Additional Sessions Judge, Delhi, accordingly discharged the appellants/accused by an order dated 7.8.1999.
16. Dissatisfied with the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, Madan Lal Kapoor (the respondent-complainant) filed a Criminal Revision Petition (bearing no. 42 of 2000) in the High Court. The aforesaid Criminal Revision Petition was dismissed in default on 11.8.2005. The order dated 11.8.2005 was assailed through a Special Leave Petition (bearing no. SLP (Crl.) no. 3303 of 2006) before this Court. The aforesaid Special Leave Petition was allowed by this Court on 31.8.2007. The matter was remanded back to the High Court for adjudication on merits. It is thereupon, that the High Court passed the impugned order dated 8.5.2008, setting aside the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi. The instant order dated 8.5.2008 is the subject matter of challenge in the present appeal.
17. A perusal of the order of the High Court would reveal that the Additional Sessions Judge, Delhi, had primarily relied on certain observations made in the judgment rendered by this Court in Satish Mehra Vs. Delhi Administration, (1996) 9 SCC 766:-
“15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself”
Madan Lal Kapoor (the respondent-complainant), before the High Court, had relied upon the judgment in State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, to contend that the judgment relied upon by the Additional Sessions Judge, Delhi, having been overruled, had resulted in an erroneous conclusion. For the same proposition, reliance was placed on the judgment of this Court in Suresh Kumar Tekriwal Vs. State of Jharkhand, (2005) 12 SCC 278. On behalf of the complainant, reliance was also placed on the decision in State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659, to contend, that only the material placed on record by the prosecution, could be gone into at the time of framing charges. And if, on the basis of the said material, the commission of the alleged offence was prima facie made out, the charge(s) was/were to be framed. At the stage of framing of charges, it was submitted, that the requirement was not to determine the sufficiency (or otherwise) of evidence to record a conviction. For this, reliance was placed on State of M.P. Vs. Mohanlal Soni (2000) 6 SCC 338, wherein this Court had concluded, that the requirement was a satisfaction, that a prima facie case was made out. On behalf of Madan Lal Kapoor, reliance was also placed on State of A.P. Vs. Golconda Linga Swamy (2004) 6 SCC 522, to contend that at this stage, meticulous examination of the evidence was not called for.
18. As against the submission advanced on behalf of Madan Lal Kapoor (the respondent-complainant), the appellants/accused contended, that the Court was justified in considering the material on the record of the case, and on the basis thereof, to arrive at a just and reasonable conclusion. In this behalf, it was averred that the post-mortem report, the report of the Central Forensic Science Laboratory, the inquest proceedings recorded by the SDM, Delhi, and the letters addressed by the family members of the complainant (duly noticed in the inquest proceedings), were a part of the record of the case, and as such, were to be taken into consideration while passing the orders contemplated under Sections 227 and 228 of the Cr.P.C. The submission advanced on behalf of Madan Lal Kapoor (the respondent- complainant) before the High Court, was accepted. The High Court arrived at the conclusion, that the Additional Sessions Judge, Delhi had erroneously placed reliance on the decision rendered by this Court in Satish Mehra Vs. Delhi Administration (supra), which had already been overruled by the judgment rendered by a larger Bench in State of Orissa Vs. Debendra Nath Padhi (supra).
19. While considering the contention advanced on behalf of the appellants/accused, the High Court concluded, that the material/documents/record which the complainant was placing reliance on, did not fall within the ambit and scope of the term “record of the case” contained in Section 227 of the Cr.P.C. According to the High Court, the record of the case referred to in Section 227 of the Cr.P.C. was only such record, documents and articles which, on consideration by the Magistrate, are sent to the Court of Sessions, consequent upon passing an order of commitment. The material and documents relied upon by the appellants/accused in the present controversy would, therefore, not fall within the zone of consideration at the hands of the Court of Session under Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the behest of the appellants/accused were declined. For the aforesaid reasons, the High Court accepted the Criminal Revision Petition filed by Madan Lal Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly quashed. The parties were accordingly directed to participate in the further proceedings before the Court of Sessions.
20. We have considered the submissions advanced at the behest of the rival parties. We are of the view, that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 of the Cr.P.C. specially because the Additional Sessions Judge in his order dated 7.8.1999, had concluded, on the basis of the material relied upon by the accused, that no case was made out against the accused. This according to learned counsel, was permissible in view of the inherent jurisdiction vested in the High Court under Section 482 of the Cr.P.C. Section 482 of the Cr.P.C. is being extracted hereunder:-
“482. Saving of inherent power of High Court
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice. This Court had an occasion to examine the matter in State of Orissa Vs. Debendra Nath Padhi, (supra) (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent-complainant), wherein it was held thus:-
“29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.”
(emphasis is ours)
Recently, this Court again had an occasion to examine the ambit and scope of Section 482 of the Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & Ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 of the Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed, that under Section 482 of the Cr.P.C., the High Court was free to consider even material, that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 of the Cr.P.C. in the facts and circumstances of this case.
21. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.
24. The complaint made by Madan Lal Kapoor (the respondent-complainant) proceeds on the assumption, that his daughter Dr. Monica Thapar was administered poison. The said assumption was based on the fact, that the respondent-complainant, (as also the members of his family), found the body of their daughter had turned blue when they laid their eyes on it for the first time after her death. The motive disclosed in the complaint is non- cordiality of relations between the deceased Dr. Monica Thapar, and the family members of her husband (the appellants herein), on account of non- fulfillment of dowry demands. Insofar as the allegation, that the appellants had poisoned Dr. Monica Thapar to death is concerned, the appellants have placed reliance on the post-mortem report dated 28.9.1992, chemical analysis findings recorded in the Central Forensic Science Laboratory’s report dated 9.2.1993, the inquest report dated 6.7.1993, and the order passed by the Additional Sessions Judge, Delhi, dated 7.8.1999. It is clear, that Madan Lal Kapoor (the respondent-complainant), was associated with the investigative process from the very moment the body of Dr. Monica Thapar arrived at Delhi. It was at his instance, that the post- mortem examination was conducted. The body of the deceased, after the same was subjected to the post-mortem examination, was handed over jointly to Madan Lal Kapoor (the father of the deceased) and to Rajiv Thapar (the husband of the deceased). The cremation of the body of Dr. Monica Thapar was carried out jointly by the two families. A high level Medical Board, constituted for conducting the post-mortem examination, in unequivocal terms returned a finding, that “cardiac decompensation due to enlarged atrial septal defect & pulmonary hypertension” was the cause of Dr. Monica Thapar’s death. It would be pertinent to notice, that samples from the stomach, intestine, liver, spleen, kidney and blood of the deceased’s body were taken for forensic examination in order to verify the allegation of poisoning levelled by Madan Lal Kapoor. The Central Forensic Science Laboratory, New Delhi, in its report dated 9.2.1993 negatived the aforesaid allegation by concluding, that the samples did not indicate the presence of any common poisoning substance. Relying on the inquest report dated 6.7.1993, rendered by the SDM, Delhi, it was sought to be asserted, that echo-cardiography conducted at the Urmil Heart and Lung Centre, Surat, disclosed the presence of a large hole in Dr. Monica Thapar’s heart. Even according to the Urmil Heart and Lung Centre, Surat, Dr. Monica Thapar had suffered a massive heart attack, and had died at the said hospital on 26.9.1992. It was the submission of the learned counsel for the appellants, that the aforesaid material is evidence of sterling quality which was sufficient to demonstrate, that there was not the remotest possibility, that the trial against the appellants would lead to their conviction.
25. The evidence, relied upon by the appellant has not been contested or refuted by Madan Lal Kapoor (the respondent-complainant), even though he was aware of the same when he filed the complaint. During the course of the proceeding before the committing Magistrate, and even before Sessions Court and the High Court, the appellants had placed emphatic reliance on the material referred to above. The same remained unrefuted in the pleadings filed on behalf of Madan Lal Kapoor. During the course of hearing at the stages referred to above, the veracity of the documents/material referred to above was not contested. The aforesaid position has subsisted even before this Court. It was accordingly submitted on behalf of the appellants, that even if trial is allowed to proceed against the appellants, at the culmination thereof, it would be impossible to return a finding of guilt against any of the accused.
26. According to the learned counsel for the appellants, the material in the nature of the post-mortem report, the Central Forensic Science Laboratory’s report, as also the inquest report, would be sufficient to exculpate the appellants from the allegations and accusations levelled in the complaint.
27. We are one with the aforesaid submission. From the documents/material relied upon by the appellants, for exactly the same reasons as have been projected on behalf of the appellants, we are satisfied to conclude, that the death of Dr. Monica Thapar was not caused by poisoning. Merely because her body had turned blue, when it arrived at Delhi, in our view, is not a sufficient basis to infer that she had been poisoned to death. In fact material relied upon by the appellants is sufficient to condemn the factual basis of the accusation as false.
28. It also needs to be noticed, that Madan Lal Kapoor (the respondent- complainant) took a summersault before the Additional Sessions Judge, Delhi by alleging, that Dr. Monica Thapar had been strangulated by the appellants, (even though the assertion in the complaint was, that she had been poisoned to death). To determine the veracity of the allegation of strangulation, as the cause of her death, the Additional Sessions Judge, Delhi summoned Dr. L.T. Ramani, Chief Medical Officer, Civil Hospital, New Delhi and Dr. Amit Banerjee, Professor, Cardiothoracic Surgery, G.B. Pant Hospital, New Delhi (members of the Medical Board which had conducted the post-mortem examination) to clarify the altered accusation levelled by Madan Lal Kapoor. The aforesaid doctors, as is apparent from the order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi, opined in the negative. They affirmed, that the death of Dr. Monica Thapar had not been caused by strangulation. We are therefore satisfied to affirm, that the death of Dr. Monica Thapar has not been shown to have been caused by strangulation. On an overall examination of the matter, we have no other option, specially in the absence of any submission to the contrary, but to conclude, that the material relied upon by the appellants would lead to the indubitable conclusion, that Dr. Monica Thapar had not died on account of having been strangulated.
29. We shall now advert to the allegation made in the complaint by Madan Lal Kapoor, that there was non-cordiality of relations between the deceased Dr. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in consistent and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as “very affectionate and very caring”. The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint.
30. Even though the statement of Dr. Pritu Dhalaria has been relied upon by the SDM, Delhi in the inquest report, which completely knocks out all the pleas advanced by Madan Lal Kapoor (the respondent-complainant), we are of the view, that it would be improper to make any reference thereto in deciding the present controversy. Reliance on the statement of Dr. Pritu Dhalaria would be permissible only after the same is recorded by a court on oath, whereupon, he has to be subjected to cross-examination. Only then, his statement would acquire credibility for reliance. Any fact situation based on the oral testimony, by one or the other party, cannot be the basis of a determination, akin to the one in hand.
31. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory’s report dated 9.2.1993 which has not been disputed by the respondent-complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent-complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent-complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.
32. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased, who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.
33. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds.
…………………………….J.
(D.K. Jain)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 23, 2013.
False rape case filed by lady. SC Quash FIR. Her lie is nailed by call details…
, , , ,
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 175 OF 2013
(Arising out of SLP (Criminal) No. 1800 OF 2009)
Prashant Bharti …. Appellant
Versus
State of NCT of Delhi …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Leave granted.
2. On 16.2.2007, Priya (hereinafter referred to as, the complainant/prosecuterix), aged 21 years, a resident of Tughlakabad Extension, New Delhi, made a phone call to the Police Control Room (hereinafter referred to as, the PCR). Police personnel immediately reached her residence. She made a statement to the police, leading to the registration of first information report no. 47 of 2007 at Police Station Lodhi Colony, New Delhi, under Sections 328 and 354 of the Indian Penal Code. In her statement to the police, the complainant/prosecuterix alleged, that the appellant herein Prashant Bharti (hereinafter referred to as, the appellant-accused) was known to her for about four months. The appellant-accused was a resident of Lodhi Colony, New Delhi. It was alleged that on the preceding day i.e., on 15.2.2007, the appellant-accused had made a phone call to the complainant/prosecuterix, at about 8.45 pm, and asked her to meet him at Lodhi Colony, New Delhi. When she – reached Lodhi Colony, he drove her around in his car. He also offered the complainant/prosecuterix a cold drink (Pepsi) allegedly containing a poisonous/intoxicating substance. According to the complainant/prosecuterix she felt inebriated after taking the cold drink. In her aforesaid state, the appellant-accused started misbehaving with her. He also touched her breasts. Inspite of the complainant/prosecuterix stopping him, it was alleged, that the appellant-accused continued to misbehave with her. The complainant/prosecuterix then got the car stopped, and hired an auto-rickshaw to return to her residence. In her statement, the complainant/prosecuterix requested the police to take legal action against the appellant-accused.
3. Immediately after recording the statement of Priya (the complainant/prosecuterix) on 16.2.2007, the police took her to the All India Institute of Medical Sciences (hereinafter referred to as, the AIIMS), New Delhi. She was medically examined at 1.44 pm. It is sufficient to record herein, that as per the medical report prepared at the AIIMS, there was no evidence of poisoning.
4. Based on the statement made by the complainant/prosecuterix, the appellant-accused Prashant Bharti was arrested at 6 pm, on the same day on which the complainant recorded her statement, i.e., on 16.2.2007, a day after the occurrence.
5. After a lapse of five further days, on 21.2.2007, at 8.20 am, the complainant/prosecuterix made a supplementary statement to the police. On this occasion, she alleged, that Prashant Bharti, the appellant-accused, had been having physical relations with her in his house, on the assurance -
that he would marry her. It was alleged by the complainant/prosecuterix, that the appellant-accused had subsequently refused to marry her. With reference to the incident of 15.2.2007, she alleged, that she had been administered some intoxicant in a cold drink (Pepsi) by Prashant Bharti, so as to enable him to have a physical relationship with her. But, it was alleged, that she did not succumb to his said desire on 15.2.2007. The complainant/prosecuterix further alleged, that after she returned to her residence on 15.2.2007, she did not feel well and accordingly, had gone to sleep. She therefore explained, why she had made her earlier complaint, on the following day of the incident. In her supplementary statement, she requested the police to take legal action against Prashant Bharti, the appellant-accused, for having physical relations with her (on 23.12.2006, 25.12.2006 and 1.1.2007) at his residence, on the basis of a false promise to marry her.
6. Immediately after recording her supplementary statement, the complainant/prosecuterix was taken to the AIIMS. She was medically examined at the AIIMS at 12 noon, on 21.2.2007. In the medical report prepared at the AIIMS after her examination, it was recorded, that she had no external injuries, and that her hymen was not intact. It was pointed out, that a vaginal smear was not taken, because more than a month had elapsed from the date of the alleged intercourse(s). Likewise, it was pointed out, that her clothes were not sent for forensic examination, because she had changed the clothes worn by her at the time of the alleged occurrence(s). In other words, the assertions made by the -
accused could not be tested scientifically, because the complainant was being medically examined, after a substantial delay.
7. Based on the supplementary statement of Priya (the complainant/prosecuterix) recorded on 21.2.2007, the offence under Section 376 was added to the case.
8. On 27.2.2007, the statement of the complainant/prosecuterix was recorded under Section 164 of the Code of Criminal Procedure by the Metropolitan Magistrate, New Delhi (in first information report no. 47 of 2007). A relevant extract of the aforesaid statement, is being reproduced below:-
“… then Prashant asked for my number and detail of address. I gave my office telephone number to him. In evening, Mr. Prashant Bharti called me and talked about loan and after some days, Prashant Bharti came to meet in my office and thereafter we became good friends and one day, Prashant Bharti told me that he loves me and wish to marry me and thereafter, we started meeting frequently and I consented for marriage.
One day, when all the family members were gone somewhere, Prashant Bharti called me to his home for party and he told me that he will marry me soon and will inform to his parents about our relationship and he made relation with me. And, whenever his home was vacant, he usually calls me up and when his parents came, I asked him to tell them about our relationship and he did not inform this and on this issue, we have fight with each other and I informed to his parents. Then his parents called Prashant about this and Prashant Bharti denied our relationship to his father and neither he wish to marry me and on that day, I was sent to my home by his parents.
After two days, Prashant Bharti called me and asked me to meet him, as he wish to tender apology and when I was going to reach my home from office, then I, through auto rickshaw, reached at Central School, Lodhi Colony, where Prashant Bharti was standing near to his Santro Car, and he met me there and he asked me that he has committed mistake and he wish to tender apology and after some -
time, he took me to his car and thereafter, he told me that he is feeling thirsty and thereafter, he brought Pepsi in car and we both took the Pepsi. And, after drinking the same, I lost my conscious and thereafter, he started misbehaving with me and I asked him that why he was doing so, then he told me that, as I complained to his father, he will take revenge from me, and he forcibly misbehaved with me, and I immediately got down from the car and by Auto, I came to my house and as I was unwell, I could not lodge my complaint with police. On the next day, I called 100 number PCR and there police official, accompanies me and I informed everything to SHO Surinder Jeet and on that basis, he was arrested.”
9. By an order dated 12.3.2007, the Additional Sessions Judge, Delhi granted bail to the appellant-accused. In the aforesaid order passed on 12.3.2007, the following factual position was relied upon, to extend the benefit of bail to the appellant-accused. The appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer, on the basis of his mobile phone call details. Verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. The complainant/prosecuterix, on and around the time referred to in the complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at -
Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. Even though the complainant/prosecuterix was married to one Manoj Kumar Soni, S/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was not married. At the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled further allegations against the accused of having repeatedly raped her (on 23.12.2006, 25.12.2006 and 1.1.2007), on dates preceding the first complaint.
10. On 28.6.2007, the police filed a chargesheet under Sections 328, 354 and 376 of the Indian Penal Code. In the chargesheet, it was clearly mentioned, that the police investigation, from different angles, had not yielded any positive result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged – against the appellant-accused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below:- “I the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 IPC.”
(emphasis is ours)
11. Aggrieved by the first information report (bearing no. 47 -
of 2007) registered at the Police Station Lodhi Colony, New Delhi, the appellant-accused filed Writ Petition (Crl.) no. 1112 of 2007 before the Delhi High Court for quashing the said first information report on the ground, that the appellant-accused had been falsely implicated. The High Court, dismissed the said writ petition on 27.8.2007, without going into the merits of the controversy, by recording the following observations:- “This Court cannot quash the FIR on the ground that FIR was false FIR. In case of a false FIR, it must be brought to its logical conclusion and Investigating Officer must give a report to that effect. In this case, if it is found that the petitioner has been falsely implicated and the complaint was false, it would be obligatory on the part of the Investigating Officer to register a case and book the prosecuterix for falsely implicating the person in an offence under Section 376 IPC. It is a very serious matter that a prosecuterix just by making a false statement can book somebody in offence under Section 376 IPC, which is serious in nature and invites a minimum punishment of 07 years. I consider that Investigating Officer shall submit a detailed report and in case, it is that the petitioner was falsely implicated, he would take steps for booking the complainant for falsely implicating the petitioner.”
-
12. Interestingly, even the complainant/prosecuterix filed Writ Petition (Crl.) no. 257 of 2008 before the Delhi High Court seeking quashing of the first information report lodged by the complainant/prosecuterix herself. The High Court noticed the observations recorded in the order dated 27.8.2007 (passed in Writ Petition (Crl.) no. 1112 of 2007) and dismissed the writ petition filed by the complainant/prosecutrix.
13. On 1.12.2008, the Additional Sessions Judge, New Delhi, framed charges against the appellant-accused, by observing as under:- “4. Considering the facts and circumstances of the case that prosecuterix has levelled specific allegations against the accused that she was given pepsi to drink and after consuming the same she was intoxicated and accused teased her, moved his hands on her breast and earlier made physical relations with her on the assurance of marriage, I am of the considered opinion that prosecution has brought prima facie sufficient material on record against the accused for charge under Sections 354/328/376 IPC. Let charge be framed accordingly.”
14. Dissatisfied with the action of the trial Court in framing charges against him, the appellant-accused filed Criminal Revision Petition no. 08 of 2009, whereby he assailed the order dated 1.12.2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16.1.2009, by interalia observing as under:- “12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.”
15. Despite notice having been issued to the complainant/prosecuterix by this Court in the present case, she failed to enter personal appearance (or be represented through counsel). To procure her presence, bailable -
warrants were issued in furtherance of this Court’s order dated 12.5.2010 and again on 16.10.2012. Priya, the complainant/prosecuterix entered personal appearance on 8.11.2012. During the course of hearing, consequent upon clarifications sought from her in respect of her marital status (at the time of the alleged occurrences with the appellant-accused), she informed this Court, that even though she was married earlier, she had divorced her previous husband before the dates of occurrence. To verify the factual position pertaining to her marital status as on the dates of occurrence(s), she was asked to produce the judgment and decree of divorce, from her previous husband. She accordingly produced a certified copy of the judgment and decree of the Court of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008. A photocopy thereof duly attested by Priya, the complainant/prosecuterix, and her counsel, were taken on record. A perusal of the same reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. She was divorced from her said husband by mutual consent under Section 13B of the Hindu Marriage Act, 1955, on 23.9.2008. Priya, the complainant/prosecuterix also affirmed, that she had remarried thereafter. She also produced before us a “certificate of marriage” dated 30.9.2008. A photocopy thereof duly attested by Priya and her counsel, was also taken on record. A perusal of the same reveals, that Priya (date of birth, 17.6.1986), daughter of Anup Kumar was married to Manoj (date of birth, 8.12.1983), son of Ram Kumar, on 30.9.2008.
16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecuterix – against the appellant-accused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecuterix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecuterix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant/prosecuterix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, -
it would clearly emerge, that the complainant/prosecuterix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecuterix, that she was induced to a physical relationship by Prashant Bharti, the appellant-accused, on the basis of a promise to marry her, stands irrefutably falsified.
17. Would it be possible for the prosecution to establish a sexual relationship between Priya, the complainant/prosecuterix and Prashant Bharti, the appellant-accused, is the next question which we shall attempt to answer. Insofar as the instant aspect of the matter is concerned, medical evidence discussed above reveals, that the complaint made by the complainant/prosecuterix alleging a sexual relationship with her by Prashant Bharti, the appellant-accused, was made more than one month after the alleged occurrences. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. One’s word against the other. Based on the falsity of the statement made by the complainant/prosecuterix noticed above (and other such like falsities, to be narrated hereafter), it is unlikely, that a – factual assertion made by the complainant/prosecuterix, would be acceptable over that of the appellant-accused. For the sake of argument, even if it is assumed, that Prashant Bharti, the appellant-accused and Priya, the complainant/prosecuterix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the complainant/prosecuterix herself, that the said physical relationship was with her consent consequent upon the assurance of marriage. But then, the discussion above, clearly negates such an assurance. A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.
18. Insofar as the assertion made by the complainant/prosecuterix, in her first complaint dated 16.2.2007 is concerned, it is apparent, that on the basis thereof, first information report no. 47 of 2007 was registered at Police Station Lodhi Colony, New Delhi. In her aforesaid complaint, Priya, the complainant/prosecuterix had alleged, that the appellant-accused had called her on her phone at 8.45 pm and asked her to meet him at Lodhi Colony, New Delhi. When she reached there, he drove her around in his car. He also offered her a cold drink (Pepsi) containing a poisonous/intoxicating substance. Having consumed the cold drink, she is stated to have felt inebriated, whereupon, he took advantage of her and started misbehaving with her, and also touched her breasts. Insofar as the instant aspect of the matter is concerned, the presence of the complainant/prosecuterix, as well as the appellant-accused, at the alleged place of occurrence (Lodhi Colony, New Delhi), on the night of – 15.2.2007 after 8.45 pm, has been established to be false on the basis of mobile phone call details of the parties concerned. Details in this respect have been summarized in paragraph 8 above. The same are not being repeated for reasons of brevity. The proof of the aforesaid factual matter must be considered to be conclusive for all intents and purposes, specially, in view of the observations made by this Court in Gajraj Vs. State (NCT) of Delhi [(2011) 10 SCC 675], wherein it was held as under:- “19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi PW23, pointed out by the learned counsel for the accused-appellant, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the accused-appellant came to be identified during the course of investigation, was legitimate and unassailable. The IEMI number of the handset, on which the accused-appellant was making calls by using a mobile phone (sim) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies . In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid authentic digital evidence which is a byproduct of machine operated electronic record having no manual interference. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the accused- appellant.”
The aforesaid factual conclusion, that the two concerned parties were not present at Lodhi Colony, New Delhi after 8.45 pm on 15.2.2007, as has been established on the basis of the investigation carried out by the police, cannot be altered at the culmination of the trial, since the basis of the aforesaid determination is scientific evidence. Neither has the said material been contested by the complainant/prosecutrix. Once it is concluded, that the complainant/prosecuterix and the appellant-accused were at different places, far away from one another, and certainly not in -
Lodhi Colony, New Delhi on the night of 15.2.2007, it is obvious that the allegation made by Priya, the complainant/prosecuterix against Prashant Bharti, the appellant-accused of having outraged her modesty, was false. What stands established now, as has been discussed above, will have to be reaffirmed on the basis of the same evidence at the culmination of the trial. Such being the fact situation, we have no other alternative but to conclude, that the allegations levelled by the complainant/prosecuterix, which culminated in the registration of a first information report at Police Station Lodhi Colony, New Delhi on 16.2.2007, as well as her supplementary statement, would never lead to his conviction.
19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”) has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor (Criminal Appeal No…… of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under:
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -
482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal -
proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”
20. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16.2.2007 and 21.2.2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. In so far as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant- accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16.2.2007. Secondly, verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. Thirdly, the complainant/prosecuterix, on and around the time referred to in the -
complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16.2.2007. Fourthly, at the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (as per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Fifthly, even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled allegations against the accused for offence of rape. Sixthly, even though the complainant/prosecuterix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was unmarried. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008, the complainant was married to Lalji Porva on 14.6.2003. The aforesaid marriage subsisted till 23.9.2008. The allegations made by the complainant dated 16.2.2007 and 21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and -
15.2.2007, i.e., positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30.9.2008. This is evidenced by a “certificate of marriage” dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship, based on an assurance of marriage. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the “certificate of marriage” dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. Tenthly, The factual position indicated in the charge-sheet dated 28.6.2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the -
complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28.6.2007. Eleventhly, as per the medical report recorded by the AIIMS dated 21.2.2007 the assertions made by the complainant that the accused had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21.2.2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination.
21. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C.
22. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar’s case (supra) stand – satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.
Disposed of in the aforesaid terms.
…………………………….J.
(D.K. Jain)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 23, 2013.
Delhi HC-498A-Statements made either by the deceased or by one to another would definitely fall under hearsay evidence and such statements are not admissible.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APPEAL No.786/2009
% Judgment reserved on :23rd January, 2012 Judgment delivered on:10th April, 2012
SHIV KUMAR ….. Appellant Through: Mr.S.B.Dandapani, Adv.
versus
STATE ….. Respondent Through: Mr.Naveen Sharma, APP for State
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide instant appeal, the appellant has challenged the impugned judgment dated 29.05.2009 passed by learned Additional Sessions Judge (East) FTC, Karkardooma Courts, Delhi whereby he was held guilty and convicted for the offence punishable under Sections 498A and 304B Indian Penal Code, 1860.
2. Also challenged the order on sentence dated 30.05.2009 whereby he has been sentenced to rigorous imprisonment for a term of three years and fine of ` 5,000/- for the offence punishable under Section 498A Indian Penal Code, 1860 and in default of payment of fine, simple imprisonment for three months. He is further sentenced to rigorous imprisonment for ten years for the offence punishable under Section 304B Indian Penal Code, 1860. Both the sentences were Crl.APPEAL No.786/2009 Page 1 of 18 ordered to run concurrently. Benefit of Section 428 Cr. P.C. was also extended to him.
3. Learned counsel for appellant submitted that the present appellant had already deposited the fine amount of ` 5,000/- imposed upon him vide receipt No.0392275.
4. The facts of the case in brief are that the deceased Smt.Nirmal was married to the appellant on 29.06.2001 and was residing at her matrimonial house at D-339, Gali No.12, Laxmi Nagar, Delhi with her husband i.e. appellant and other in-laws. The accused persons in furtherance of their common intention subjected her to cruelty and harassed her for their unlawful demand of dowry. She died on 16.08.2003 in Irwin Hospital, Delhi under unnatural circumstances.
5. Shri Hori Lal Gupta, father of the deceased made his statement to the SDM which culminated into FIR No.363/2003 under Section 498A Indian Penal Code, 1860 at police station Shakarpur, Delhi. After investigation, police filed the charge-sheet for the offence punishable under Section 498A/304B/34 Indian Penal Code, 1860 against appellant, Anand Gupta, brother-in-law (Dever), and Krishan Murari, brother-in-law (elder Jeth). Thereafter, supplementary charge-sheet was also filed against accused Pawan Kumar brother-in-law (younger Jeth), Smt.Kiran Devi, mother-in-law of the deceased, Ms.Sarvesh @ Chanchal, sister-in-law (Nand), Smt.Rekha, sister-in-law (Nand), Manoj Kumar, (Nandoi) husband of above mentioned Rekha, and Lala Ram Gupta, father-in-law of deceased, for the aforesaid offences being committed.
Crl.APPEAL No.786/2009 Page 2 of 18
6. After considering the submissions of accused persons, and on perusal of the record, prima facie case punishable under Section 498A/304B/34 Indian Penal Code, 1860 was revealed. Thereafter, vide order dated 12.04.2004, charges under aforesaid Sections were framed against all the accused persons mentioned above, including the appellant. They pleaded not guilty but claimed trial.
7. The prosecution to substantiate the guilt of accused persons examined, as many as 14 witnesses and thereafter, statement under Section 313 Cr. P.C. of the accused persons were also recorded. Accused persons also examined nine witnesses in their defence.
8. Learned Trial Judge has recorded in the impugned judgment that instant case was very ably conducted and the submissions were supported by cogent, credible and reliable evidence and they have forcefully militated against the certitude of guilt of the appellant and Smt.Kiran Devi, mother-in-law of deceased. The appellant failed to rebut the presumption under Section 113B of the Indian Evidence Act, 1872. However, sufficient evidence did not come on record against other accused persons. On the basis of the clinching evidence, Smt.Kiran Devi and present appellant were found guilty for the offences punishable under Section 498A Indian Penal Code, 1860 and the appellant was also held guilty and convicted for the offence punishable under Section 304B Indian Penal Code, 1860.
9. Learned Trial Judge has recorded that the scales of justice have heavily tilted in favour of the prosecution and against the appellant and co-convict Smt.Kiran Devi. Since, the prosecution could not prove its Crl.APPEAL No.786/2009 Page 3 of 18 case against other accused persons, namely Anand Gupta, Krishan Murari, Pawan Kumar, Ms.Chanchal, Smt.Rekha and Manoj Kumar – as mentioned above, hence they were acquitted.
10. On the quantum of sentence, considering the age of Smt.Kiran Devi, a lenient view was taken against her and the benefit as per the provision of Section 4 of the Probation of Offenders Act, 1958 was extended to her.
11. Learned counsel for appellant submitted that deceased Nirmal married with appellant on 29.06.2001. This was her second marriage. After a few months of the marriage, she had a miscarriage and was admitted in the Lady Harding Hospital for about 08 days. After discharge from the hospital, she joined her husband and was living in her matrimonial home. On 10.07.2003 she fell from the second floor of the house and was admitted in Irwin Hospital in unconscious condition. She was under treatment till 07.08.2003 when the hospital discharged her due to shortage of bed. Nirmal was taken away by her parents. On 16.08.2003, when her condition deteriorated, she was again taken to the same hospital, where she died within one hour. Her post-mortem was conducted on 17.08.2003. The cause of the death was found to be ‘cerebral damage’.
12. PW1 Shri Hori Lal Gupta father of the deceased complained that his daughter was subjected to cruelty and harassed for dowry by her in- laws and they were responsible for her death. Since deceased Nirmal died within seven years of her marriage at her matrimonial home under unnatural circumstances, case was registered against appellant and 09 Crl.APPEAL No.786/2009 Page 4 of 18 other members of the family for the offences punishable under Section 498A and 304B/34 Indian Penal Code, 1860.
13. During trial, accused Lala Ram Gupta, father of appellant expired. Out of the remaining 08 accused persons, 06 were acquitted and only the appellant and his mother were convicted.
14. Learned counsel for appellant has submitted that PW1 Shri Hori Lal Gupta, PW2 Smt.Kamlesh; and PW3 Shri Pardeep found to be star witnesses in this case. The remaining witnesses were formal witnesses.
15. PW1 Shri Hori Lal Gupta, mentioned two instances of dowry demand. Firstly, ` 20,000/- soon after the marriage for purchasing a three wheeler scooter rickshaw; and secondly two years later a demand of ` 2,000/- to secure the release of appellant from police custody who was alleged to have been detained in the police station Shakarpur for stealing a mobile phone. He also claimed that his daughter was subjected to cruelty at her matrimonial home.
16. This witness in his testimony deposed that he was unemployed, his source of income was some rent and the earning made by his sons. He could not tell the exact date on which the demand of dowry was made by the accused persons from his daughter. He also could not tell the date when such demand was communicated to him by his daughter. He had not given any list of dowry to the police articles which were given in the marriage nor any bill thereof were produced. He admitted the factum regarding non-lodging of any complaint regarding harassment or dowry demand by in-laws to his daughter for the period
Crl.APPEAL No.786/2009 Page 5 of 18 from July, 2001 to July, 2003. He claimed that he arranged the amount of ` 20,000/- from a relative, but could not tell the name of said relative. He admitted that accused persons used to come to see his daughter in a normal manner when she was in his house for one year. He also admitted that when accused persons took his daughter to their home again, he did not give any dowry or cash.
17. PW2 Smt.Kamlesh, mother of the deceased also testified on the same lines with some contradictions.
18. PW3 Shri Pardeep, brother of deceased also testified that they had not given the amount of ` 2,000/- to the accused as they were not having that much money. He has also stated that on the date of the incident when he went to the house of deceased, to bring her for Namkaran ceremony of his nephew, he was told by one of the neighbours that his sister was beaten up by the accused persons and she was taken to hospital, but he could not tell the name of that person and by whom she was beaten.
19. PW8 ASI Shamshuddin was the IO of the case. He deposed that till 10.07.2003, no complaint from Nirmal of her parents was received by him. He stated that one Gudiya told him that after an altercation, Nirmal had gone to the roof top and made jump downside. However, this person was not examined by the prosecution as a witness.
20. DW7 Smt.Baikunth Dasi, testified that deceased Nirmal was suffering from fits and used to tear clothes herself.
Crl.APPEAL No.786/2009 Page 6 of 18
21. On merits, learned counsel for appellant has submitted that there is no eye witness, no suicide note and no dying declaration. Learned Trial Judge relied solely on the evidence of PW1 Shri Hori Lal, father of deceased in convicting the accused persons.
22. Appellant was not present in the house when the incident took place. Co-convict, mother of appellant took Nirmal to the hospital. There is nothing in the evidence to show that the deceased had any quarrel before the incident either with the appellant or any of his family members.
23. He submitted that except the bald statements of the interested witnesses, no other evidence was adduced by the prosecution to prove that in actual fact, the accused persons treated the deceased cruelly or any dowry demand was made and given.
24. No complaint was ever made either by the deceased to her parents of cruelty or dowry demand during the period her marriage sustained. Neighbours were not examined to prove whether there was really any incidence of cruelty.
25. As for the nature of death, it was not conclusively proved as to whether it was a suicide or accident. Deceased was suffering from fits and she could have fallen from the roof during once such attacks. The deposition of DW7 regarding the fact that she was suffering from fits was rejected by learned Trial Judge on the ground that no medical evidence was produced, ignoring the reality that in many societies, fits is still believed to be a curse of God and the patient is never taken to a
Crl.APPEAL No.786/2009 Page 7 of 18 doctor but subjected only to certain religious rituals.
26. To strengthen his contentions, learned counsel for appellant has relied upon Durga Prasad & Anr v State of M.P. : 2010 Crl.LJ 3419 wherein it has been held as under:-
“………….. in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be
shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise
than under normal circumstances, within 7 years
of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand
for dowry. Only then would such death be called
“dowry death” and such husband or relative shall be deemed to have caused the death of the woman
concerned.”
27. Further in Gurditta Singh v. The State of Rajasthan : 1992 Crl. L. J. 309 wherein it has been held as under:-
“34. The words “it is shown” occurring in Section 304B are of significance for the reason that the initial burden of proving that circumstances
envisaged by Section 304B, IPC did exist is on the prosecution. This being shown or established, the question of presumption Under Section 113B of the Evidence Act would arise. In other words to draw a presumption Under Section 113B of the Evidence Act, the necessary ingredient that it is shown that soon before her death she was subjected to cruelty or harassment, in connection with the demand of
dowry has to be proved. Only when these facts are proved then by virtue of the deeming provision of Crl.APPEAL No.786/2009 Page 8 of 18 Section 304B, the Court shall presume that the
husband or any relative of the husband had caused dowry death.
34A. Whenever it is directed by the Evidence Act that the Court shall presume a fact, that fact shall be taken as proved unless and until it is disproved. Meaning thereby that the presumption is a
rebuttable presumption. In this view of the matter, the prosecution has to prove the main factor of
cruelty or harassment in connection with any
demand of dowry.
35. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by Section 304B is to be seen before the death of a woman. The
Courts are to scrutinise the evidence carefully
because cases are not rare in which occasionally there is demand and then the atmosphere becomes
Calm and quiet and then again there is demand.
Where a wife dies in the house of the husband
within the short span of seven years of her
marriage, it is of considerable difficulty to assess the precise circumstances in which the incident
occurred because ordinarily independent witnesses are not available as the torture and harassment is confined in the four walls of the house. However, the courts are to be vigilant to scrutinise the
evidence regarding the harassment and torture
carefully if the witnesses are relatives of the
deceased and relations between them and her in-
laws are strained for any reason whatsoever it
might be.”
28. Learned counsel has also relied upon G.K.Devarajula Naidu v. Crl.APPEAL No.786/2009 Page 9 of 18 State of A.P. : 2004 Crl.L.J. 4571 wherein it has been observed as under:-
“…….. It is no doubt true that in several cases it may not be practically possible to get direct
evidence relating to harassment under Section
498A Indian Penal Code, 1860. The statements
said to have been made either by the deceased or by one to another would definitely fall under
hearsay evidence and such statements are not
admissible………”
29. Learned APP on the other hand, submits that PW1 Shri Hori Lal Gupta, deposed that all the accused persons used to taunt his dauthter for bringing insufficient dowry. The appellant and accused persons namely Lala Ram Gupta, Manoj Kumar, Chanchal, Kiran Devi had demanded a sum of ` 20,000/- from his daughter for purchasing a new three wheeler scooter rickshaw for appellant. He arranged the said amount and given the same to accused Lala Ram Gupta, who had come to his house after about 1 ½ months of the said demand with accused Krishan Murari, Manoj Kumar and the appellant. However, the behaviour of the accused persons did not change and after about two months of the aforesaid payment, accused persons had beaten his daughter for dowry. The appellant had struck her head on the wall, due to which had fallen down. At that time, his daughter was pregnant for three months. Convict Kiran Devi, mother-in-law of deceased had given a kick blow on her stomach. Thereafter, accused persons had taken his daughter to Lady Harding Hospital where convict Kiran Devi got done abortion of the child of the deceased. Accused persons after getting his daughter admitted in the hospital did not come back and Crl.APPEAL No.786/2009 Page 10 of 18 looked after her. She remained hospitalised about 08-10 days. She had taken her to his home after the abortion. She remained in the house for about a year. None of the accused persons came to meet her to inquire about her health during that period. After the period of one year, the appellant with accused persons came to his house and requested him to send his daughter. They promised that they will not ill treat her or harass her in future. On their assurances, he sent his daughter with them. On 30.06.2003 his daughter had made a phone call at his house, which was received by his younger daughter Ms.Rekha Rani stating that the appellant was detained by police on the allegations of committing theft of a mobile phone. Therefore, an amount of ` 2,000/- was required for getting him released from the police station. She told that accused Lala Ram was asking her (deceased) to arrange for the amount from him (father of deceased). On 07.07.2003, he had sent his son Pradeep to the house of deceased for inviting accused persons to his house for 10.07.2003 for attending the Naamkaran ceremony of his grandson. Convict Kiran Devi had promised that all of them will come with Niraml. But none came to his house in the said ceremony. He sent his son Pradeep and his son-in- law Mahesh Chand to bring his daughter Nirmal to his house. When they reached at the matrimonial house of deceased, one neighbour told to his son Pradeep that Nirmal was beaten by the accused persons to the extent that she had become unconscious and she was taken to the Irwin Hospital.
30. PW2 Smt.Kamlesh, mother of deceased deposed that on the marriage of deceased they had spent about ` 2.00Lacs, but the accused Crl.APPEAL No.786/2009 Page 11 of 18 persons not satisfied with the dowry given in the marriage. They used to demand dowry from deceased. Her daughter (deceased) had told her that when some sweets were sent to her through her daughter Ms.Rukmani, accused Anand had hit her daughter on her cheeks and convict Kiran Devi had kicked her and made her to spit out that sweet. At that time, her daughter was pregnant by three months and thereafter her daughter was admitted in Lady Harding Hospital and her abortion was got done against her wishes. Rest she supported the deposition made by her husband.
31. PW3 Shri Pardeep Kumar, brother of deceased also supported the version deposed by his parents.
32. PW10 Shri V. P. Singh, SDM deposed that on 16.08.2003 he had joined as SDM at Preet Vihar. On that day he had received the information through SHO Shkarpur, Delhi that one lady Nirmal was taken to LNJP Hospital where she was declared brought dead. He had asked the SHO/IO to get the dead body preserved in the mortuary of Maulana Azad Medical College and Hospital, Delhi. On 17.08.2003 he went to the mortuary of above college and hospital where father of deceased had met him. Statement of Pradeep Kumar and father were recorded in his presence regarding identification of dead body vide Ex.PW3/A and Ex.PW1/B respectively. From No.25.35 was filled up by the IO vide Ex.PW8/A. He sent request for post-mortem vide Ex.PW8/C. Statement of father of deceased was recorded vide Ex.PW1/A by one of his relatives in his presence. On 26.08.2003, parents of deceased with their son came to the office of witness and got
Crl.APPEAL No.786/2009 Page 12 of 18 the statement of mother of deceased was recorded vide Ex.PW2/A in his presence by one of the relatives of Smt.Kamlesh.
33. PW12 Ramashanker Mishra, who took the deceased to Walia Nursing Home deposed that he knew appellant and his family members. On 10.07.2003 at about 09:45AM he head commotion and came out of his house and saw crowd in front of the house of appellant. He saw that wife of appellant was lying in the street in injured condition. He went inside the house. He arranged a three-wheeler scooter, by which appellant brought his wife to Walia Nursing Home. He alongwith mother of appellant went to the shop of Anand where Anand and father of appellant were present. He sent them to the hospital. Appellant was residing at the second floor of the house. He had helped him in taking separate accommodation from his parents.
34. PW14 Dr.Mukta Rani, LBS Hospital, Khichripur, Delhi deposed that on 17.08.2003 she conducted post mortem on the body of the deceased, who was brought in the hospital with alleged history of fall on 10.07.2003 from the second floor. She was discharged from LNJP Hospital but was again brought there on 16.08.2003 at about 01:40PM. She was declared brought dead. She given her report vide Ex.PW14/A.
35. On 26.03.2004, CFSL report No.CFS/EE/2003 (DEL 836) dated 23.02.2004 was placed before her alongwith parcel of post-mortem report of this case for opinion. After perusal of the record, she opined that cause of the death of Nirmal was due to cerebral damage. Her opinion to this effect is Ex.PW14/B.
Crl.APPEAL No.786/2009 Page 13 of 18
36. Learned APP further submitted that all the witnesses mentioned above, fully supported the prosecution case. The deceased died under suspicious circumstances within seven years of her marriage. The allegations of demand of dowry and cruelty are also proved against the appellant. Therefore, the impugned judgment and order on sentence are proper and there is no discrepancy in the same. Therefore, instant appeal deserves to be dismissed.
37. Heard learned counsel for parties.
38. The deceased fell from the second floor of the house on 10.07.2003; thereafter admitted in Irwin Hospital in unconscious condition. She remained under treatment till 07.08.2003, & discharged due to shortage of bed. On 16.08.2003, when her condition got deteriorated, she was again taken to the said hospital, where she died within one hour. In the present case, there is no statement or dying declaration of the deceased. Only PW1 Shri Hori Lal gupta, father of the deceased is star witness, relying whereupon the Trial Court convicted the appellant for the offences mentioned above.
39. During cross-examination, PW1 Shri Hori Lal Gupta, father of the deceased could not tell the date on which the demand of dowry was made by accused persons from his daughter. He also could not tell the date when such demand was communicated to him by his daughter. He failed to file any list of dowry articles to the police which were given in marriage nor any bills thereof were produced in Court.
40. I note that the incident took place on 10.07.2003 and the injured
Crl.APPEAL No.786/2009 Page 14 of 18 succumbed to her injuries on 16.08.2003. In between there is no complaint against the appellant and the same has been admitted by PW1 Shri Hori Lal Gupta, father of the deceased. Even for the alleged amount of ` 20,000/- given to the father of the appellant, after taking from a relative, he could not tell the name of said relative. Even admitted that when accused persons took his daughter again to their house, he did not given any dowry or cash.
41. PW3 Shri Pradeep, brother of deceased also testified that they had not given the amount of ` 2,000/- to the appellant as they were not having that much money. This witness deposed that on the date of the incident, when he went to the house of deceased, to bring her for Namkaran ceremony of his nephew, he was told by one of the neighbours that his sister was beaten up by the accused persons and she was taken to hospital; however, he could not tell the name of that person and by whom she was beaten, nor produced in the court.
42. PW8 ASI Shamshuddin, has admitted the factum that till 10.07.2003, no complaint from parents of deceased was received by him. This witness also deposed that one Gudiya told him that after an altercation, deceased had gone to the top of the roof and jumped downside. However, the prosecution has not produced said Gudiya in the witness box.
43. DW7 Smt.Benkuth Dasi, testified that deceased Nirmal was suffering from fits and used to tear clothes herself.
44. The appellant was not present in the house when the incident
Crl.APPEAL No.786/2009 Page 15 of 18 took place. There is nothing in evidence to show that the deceased had any quarrel before the incident either with the appellant or any of his family members. No complaint was ever made either by the deceased to her parents for cruelty or dowry demand during the period of her marriage sustained. Not a single neighbour was examined to prove whether there was really any incident of cruelty. The Trial Judge did not rely upon the testimony of DW7 regarding the fact that deceased was suffering from fits, however, rejected her evidence on the ground that no medical evidence was produced.
45. To held an accused guilty for the offence punishable under Section 304B Indian Penal Code, 1860, it has to be shown that apart from the fact that a woman died on account burn or bodily injury, otherwise than under normal circumstances, within seven years of her marriage, but it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any other relative of her husband. The question of presumption under Section 113 B of the Indian Evidence Act, 1872 would arise when the necessary ingredients show that soon before her death; she was subjected to cruelty or harassment in connection with the demand of dowry. This fact has to be proved. When these facts are proved only then, by virtue of the deeming provision of Section 304B Indian Penal Code, 1860 the Court shall presume that the husband or any relative of the husband has caused the dowry death. Meaning thereby, the presumption, is a rebuttable presumption. In this view of the matter, the prosecution has to prove the main factor of cruelty or harassment in connection with any demand of dowry. The courts are to be vigilant to Crl.APPEAL No.786/2009 Page 16 of 18 scrutinise the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in-laws are strained for any reason whatsoever it might be.
46. No doubt, it is true that in several cases it may not be practically possible to get direct evidence relating to harassment under Section 498A Indian Penal Code, 1860. The statements said to have been made either by the deceased or by one to another would definitely fall under hearsay evidence and such statements are not admissible.
47. As deposed by PW1 Shri Hori Lal Gupta, father of the deceased that the appellant had struck her head on the wall due to which she had fallen down. These facts have not been proved by PW14 Dr.Mukta Rani, who conducted the post-mortem on the body of the deceased. Even otherwise, the cause of death has been opined as ‘cerebral damage’, which demolishes his deposition to this effect.
48. From the date of the incident, when the deceased fall from the second floor of the house till her death, she remained unconscious. If the deposition of PW1 to be believed, then he would have made the complaint against the appellant regarding the demand of dowry or cruelty being committed with the deceased, immediately on the day of incident. There was no necessity to wait till she died.
49. I find no connectivity with cruelty for the demand of dowry to the death of the deceased. There has to be some atrocities soon before the death, which is, missing in the present case.
Crl.APPEAL No.786/2009 Page 17 of 18
50. Therefore, after considering the submissions of learned counsel appearing for the parties, I am of the considered view that the appellant has wrongly been convicted for the offence under Section 304B Indian Penal Code, 1860. At the best, he could have been convicted for the offence punishable under Section 498A Indian Penal Code, 1860.
51. Therefore, I modify the impugned judgment and order on sentence dated 29.05.2009 and 30.05.2009 respectively and held the appellant guilty and convicted for the offence punishable under Section 498A Indian Penal Code, 1860 only.
52. The appellant has already undergone more than four years’ incarceration; whereas the maximum punishment provided for the offence punishable under Section 498A Indian Penal Code, 1860 is only three years.
53. Accordingly, jail authorities are directed to set the appellant free henceforth, if he not required in any other case.
54. Consequently, Criminal Appeal is partially allowed.
55. Copy of order be sent to the Jail Superintendent, for compliance.
56. Trial Court Record be remitted back immediately.
57. No order as to costs.
SURESH KAIT, J
APRIL 10, 2012/Mk
Crl.APPEAL No.786/2009 Page 18 of 18
SC: Allegations against family members in 498A generall, reckless and vague hence FIR Quashed
, , , ,
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2070 OF 2012
[Arising out of Special Leave Petition (Crl.) No.9092 of 2011]
CHANDRALEKHA & ORS. … APPELLANTS
Vs.
STATE OF RAJASTHAN & ANR. … RESPONDENTS
O R D E R
1. Leave granted.
2. This appeal, by special leave, challenges order dated 14/9/2011 passed by the Rajasthan High Court dismissing the petition filed by one Rajeev Bhandari and appellants 1, 2 and 3 herein (original petitioners 2, 3 and 4 in the Special Leave Petition No.9092 of 2011) under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of FIR lodged by respondent 2 against them under Sections 498A and 406 of the Indian Penal Code.
2. Rajeev Bhandari is the husband of respondent 2. Appellant 1 is the mother-in-law and appellants 2 and 3 are the sisters-in-law of respondent
2.
3. In the special leave petition, Rajeev Bhandari was arraigned as petitioner 1. However, on 9/12/2011, this court dismissed the special leave petition insofar as Rajeev Bhandari is concerned. Therefore, today, the challenge to the impugned order can be said to be raised only by appellants 1, 2 and 3.
4. It is necessary to give a gist of the facts. On 1/4/2009, respondent 2 lodged the FIR in question at Thana Mahila, District Jodhpur against Rajeev Bhandari, his father Meghraj Bhandari and appellants 1, 2 and 3 alleging offences under Sections 498A and 406 of the IPC. In the FIR, she stated that she got married to Rajeev Bhandari on 9/7/2002 at Jodhpur; her father gave cash of Rs.1,25,000/- and gold and silver ornaments, other articles, clothes, household utensils, etc. to her husband’s family; she resided at Ahmedabad with her husband after her marriage; her husband behaved well for about two and half months; after that, the behaviour of Rajeev Bhandari, his father and the appellants 1, 2 and 3 changed; they started harassing her because she had brought less dowry; they did not give her sufficient food to eat; in her absence, appellants 1, 2 and 3 used to scatter her clothes and belongings and they demanded cash of Rs.6 lakhs. It is further stated in the complaint that on 26/1/2003, all of them harassed her and asked her to bring Rs.6 lakhs and gold and silver items from her father and threatened her that if she does not bring them, she will suffer. According to her, she suffered mental shock because of this behaviour and, hence, she left the matrimonial home in the morning of 27/1/2003. Then, her husband Rajeev Bhandari came searching for her and assured that there will be no demand of dowry. Due to this assurance, she again went to the matrimonial home. However, there was no difference in the behaviour of Rajeev Bhandari and appellants 1, 2 and 3. The dowry demand persisted. She, therefore, phoned her father and told him to come to Ahmedabad. On 14/2/2003, her father came to Ahmedabad and took her to Jodhpur on 15/2/2003. Since then, she has been staying with her parents. According to her, her husband Rajeev Bhandari and appellants 1, 2 and 3 have not contacted her thereafter. She contacted them and asked them to return her original degree certificate, silver and gold ornaments and other articles. But, they ignored her request. She, therefore, requested the police to take legal action against her husband Rajeev Bhandari, her father- in-law Meghraj Bhandari and appellants 1, 2 and 3. It must be stated here that during the pendency of the proceedings, Meghraj Bhandari died.
5. Before the Rajasthan High Court, it was submitted that a perusal of the FIR shows that respondent 2 had left her matrimonial home in the year 2003 and was residing in Jodhpur. No offence can be said to have been committed by the appellants in the territorial jurisdiction of Jodhpur. Hence, registration of FIR at Mahila Thana, Jodhpur is illegal. It was also urged that there is delay in lodging the FIR. On these grounds, it was prayed that the FIR be quashed. The Rajasthan High Court was of the view that part of cause of action had accrued at Jodhpur. It was held that since the offence is a continuous offence, FIR cannot be quashed on the ground of jurisdiction. The High Court also refused to quash the FIR on the ground of delay.
6. Before we refer to the submissions of learned counsel for the appellants, we must note that office report dated 16/8/2012 indicates that respondent 2 has been served. However, she has not engaged any counsel. We, therefore, requested Ms. Asha Nair to assist us on her behalf as amicus curiae. Ms. Nair has accordingly assisted us.
7. Learned counsel for the appellants submitted that respondent 2 left the matrimonial home on 15/2/2003 and the FIR was filed on 1/4/2009 after six years. Counsel submitted that the allegations made in the FIR are of general nature and extremely vague. The FIR, therefore, deserves to be quashed. Ms. Nair, on the other hand, has supported the order of the High Court.
8. We must, at the outset, state that the High Court’s view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3.
9. Hence, impugned judgment and order dated 14/9/2011 passed by the Rajasthan High Court in S.B. Criminal Misc. Petition No.1935 of 2009 is quashed and set aside insofar as it refuses to quash the FIR in question against appellants 1, 2 and 3. FIR No.66 of 2009 lodged at Mahila Thana, District Jodhpur, Rajasthan is quashed insofar as it relates to appellants 1, 2 and 3 viz. Smt. Chandralekha, Vandana and Vinita respectively. We make it clear that so far as Rajeev Bhandari s/o. Meghraj Bhandari is concerned, the proceedings shall go on in accordance with law. We have not quashed FIR No.66 of 2009 insofar as it relates to Rajeev Bhandari. Needless to say that the court seized of the complaint shall deal with Rajeev Bhandari’s case independently, without being influenced by anything said by us on the merits of the case and in accordance with law.
10. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
DECEMBER 14, 2012.
———————–
8
Gujrat HC: Non payment of maintenance -> Breach of statement made by husband before the Court does not constitute contempt of the court
MCA/2701/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.
CIVIL APPLICATION No. 2701 of 2008
In
SPECIAL
CIVIL APPLICATION No. 17411 of 2006
=========================================================
MINAXIBEN
PRATAPBHAI PARMAR W/O. MAFATLAL @ MAHESHBHAI – Applicant(s)
Versus
MAFATLAL
@ MAHESHBHAI PARSHOTTAMBHAI DESAI – Opponent(s)
========================================================= Appearance
:
MR
BHUNESH C RUPERA for Applicant
None for
Opponent
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER 21st October, 2008
ORAL
ORDER (Per
: HONOURABLE MS. JUSTICE R.M. DOSHIT)
The
applicant, estranged wife, has taken out this application under the Contempt of Courts Act.
It is the
complaint of the applicant that the opponent-husband has failed to carry out directions issued by this Court in above Special Civil Application No. 17411 of 2006.
Learned
advocate Mr. Rupera has appeared for the applicant. He has submitted that by Order dated 7th March, 2008 made by the learned Single Judge in above writ petition, the opponent was directed to clear arrears of maintenance by 30th April, 2008 and to file an undertaking to that effect in the Court by 14th March, 2008. The said directions have not been complied with by the opponent. Hence, the present Application.
We are
afraid, we are unable to read the order as suggested by Mr. Rupera. The above writ petition was filed by the opponent against the order for payment of maintenance made by the Court below. The said petition has been dismissed with cost by the learned Single Judge. While dismissing the petition, the learned Single Judge has recorded the statement made by the applicant thus, ..the petitioner assured this Court that arrears will be cleared latest by 30.4.2008 and undertaking to this effect shall be filed by the petitioner latest by 14.3.2008. It is evident that the aforesaid sentence was uttered by the opponent i.e., it was the statement made by the opponent before the Court and not a direction issued by the Court to the opponent. Breach of statement made before the Court does not constitute contempt of the court.
Application is misconceived. Hence, rejected.
{Miss R.M
Doshit, J.}
{K.M Thaker, J.}
Prakash*
Gujrat HC: Just admission of dues of maintenance cannot be said to have committed the contempt and willful disobedience of the order of Court: Contempt dismissed
Gujarat High Court Case Information System function loadSearchHighlight() {
var chkParamC = “txtSearch” if (chkParamC == “txtSearch”) {
SearchHighlight(); document.searchhi.h.value = searchhi_string; if( location.hash.length > 1 ) location.hash = location.hash; }
}
MCA/1308/2006 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION – FOR CONTEMPT No. 1308 of 2006
In
SPECIAL
CIVIL APPLICATION No. 8143 of 2005
=====================================================
USHABEN
CHANDUBHAI RAVAT & 1 – Applicant(s)
Versus
CHANDUBHAI
BHIKHUBHAI RAVAT – Opponent(s)
===================================================== Appearance
:
MR MR PRAJAPATI for Applicant(s) : 1 – 2. MR
HARSHADRAY A DAVE for Opponent(s) : 1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/03/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. The
applicant has preferred this application seeking initiation of contempt proceedings against the opponent and after holding the opponent guilty of deliberate and willful disobedience of order dated 18.2.2006 made in Special Civil Application No. 8143 of 2005, punish the opponent.
2. Heard
the learned advocate Mr. MR Prajapati for the applicants and Mr HA Dave for the opponent.
3. Both
the parties are husband and wife. Due to constant harassment, the applicant no. 1 started to live separately with opponent no. 2 and after living separately from opponent, it was difficult for the applicant no. 1 to survive with minor daughter Yuti ? applicant no. 2 herein, and therefore, applicant no. 1 has filed Special Civil Suit No. 54 of 2001 before the 5th Jt. Civil Judge(JD), Junagadh, for getting maintenance amount of 36 months under section 18 and 20 of the Hindu Adoption and Maintenance Act, which was partly allowed on 8.10.2003 against which the opponent had preferred First Appeal No. 361 of 2004 before this Court which was withdrawn on 26.10.2004. It appears that during the pendency of the First Appeal, due to non-compliance of the order dated 27.2.2004, the applicant had initiated contempt proceedings against the opponent by filing Misc. Civil Application No. 1598 of 2005 but it was rejected on 23.8.2005. That after withdrawal of the First Appeal, the applicant no. 1 has initiated execution proceedings against the opponent in the trial court by filing Special Darkhast No. 2 of 2004 and after hearing both the parties, the trial court issued attachment warrant against the opponent. Against the order of attachment warrant, the present opponent has approached this Court by filing Special Civil Application No. 8143 of 2005 and obtained stay against execution proceedings. That after hearing learned advocates of both the parties, this Court has passed an order directing the opponent to pay an amount of Rs. 1 lac to the applicant on 24.10.2005. That before granting interim relief to the applicant, this Court has invited calculations regarding amount of maintenance from both the sides and after going through the said calculation, this Court has passed the said order dated 24.10.2005. In the above Special Civil Application No. 8143 of 2005, on 18.2.2006,this Court has passed the order, which reads as under:
1.Husband, petitioner is directed to pay Rs. 6000/- between 1st to 10th date of every month.
The
husband is directed to pay remaining amount i.e. Rs. 5,51,754/- within one month from the date of receipt of the writ.
If
the husband neglected to pay the amount, then he will have to pay 12% interest on the same.??
4. Despite
the above order passed by this Court, the present opponent has not complied with the said order, therefore, the applicant has issued legal notice to the opponent but as the opponent is alleged to have deliberately and willfully disobeyed the order of this Court dated 18.2.2006, the contempt proceedings was launched against the present opponent.
5. After
hearing the learned advocates appearing for both the sides, opponent has filed the statement of the amount paid to the applicant and the amount due to be paid, on page No. 33 of this application. We have perused the said statement. In view of the statement, the applicant no. 1, who is staying at Junagadh, has sent a letter and clarified all due amount and has contended in paragraph-2 of her letter that due to unavoidable circumstances, that is, examination of her daughter, she was unable to come before this court, but if, the Court is required to hear the applicant no. 2, she is ready to come before this court.
6. We
have gone through the contents of the letter of applicant no. 1 and read the reply of opponent, it appears that there is delay in complying with the order passed by this Court, but from the contentions it appears that every person has a right to utilise the provisions of law. In the present case, opponent had challenged the order of the legal fraternity and try to get some justice in her favour. The conduct of the present opponent shows that when a person is utilising the provisions of law, then, none can say that he has disobeyed the order passed by this Court. From the statement in affidavit dated 9.3.2008 produced by the opponent, it appears that he has admitted all dues but from the said admission, it cannot be said that he has committed the contempt and willful disobedience of the order of this Court.
7. From
the aforesaid discussion, it appears that the goal of the applicant which is fulfilled by opponent’s statement, then there is nothing on record to say that the opponent has disobeyed the order of this Court.
8. In
view of aforesaid reasons, the present application is disposed of. No order as to costs. Notice discharged.
(D.A.
MEHTA, J.)
(Z.K.
SAIYED, J.)
mandora/
Karnataka HC: Complainant roped in everyone in 498A including 70 yer mom and 75 year dad, Quashed
Madras HC: DV Act : Unless the complainant, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application….Proceedings Quashed
Dated:- 31.08.2009
Coram:-
The Hon’ble Mr. Justice R.REGUPATHI
Crl. O.P. No. 91 of 2009 and
M.P. No. 1 of 2009
K. Viswanathan … Petitioner
vs.
Sivamalar … Respondent
Prayer: Petition filed under Section 482 of the Code of Criminal Procedure for the relief as stated therein.
For Petitioner : Mr.V. Gopinath,
Senior Counsel
For Respondent : Mr. P. Duraisamy
O R D E R
The 5th respondent in the C.M.P filed before the trial court, admittedly driver of the 1st and 2nd respondents is the petitioner herein and he seeks for a direction to call for the records and quash the proceedings in C.M.P. No. 8207 of 2008 filed under Sections 12, 17, 18 and 19 of the Protection of Women from Domestic Violence Act 2005 before the Judicial Magistrate No. 1, Coimbatore, who took the same on file and ordered issuance of summons. The 5th respondent in the C.M.P. No. 8207 of 2008,
3. Learned Senior Counsel for the petitioner submits that admittedly, the petitioner is neither a family member nor having any domestic relationship with the family of respondents 1 and 2 and under such circumstance, he is erroneously included as one of the respondents in the application. By referring to Para 13a of the application, wherein the applicant prays for a declaration to the effect that she is entitled to reside in the shared household and the prayer at Para 13b for a direction to respondents 1 to 5 to hand over gold jewellery and sridhana property in their custody, learned Senior counsel submits that a person can be included as a respondent in an application of this kind only in the event of the aggrieved person establishing the domestic relationship with such person sought to be taken as respondent as a family member living together in the joint family and contended that the petitioner is not a person coming under the purview of "respondent" and he is not in possession and control over the sridhana property; therefore it is a fit case to quash proceedings against him.
4. Per contra, learned counsel for the respondent submits that specific allegations have been made in Para No. 6 of the application to the effect that the petitioner was always acting as if he was also a family member in the household and playing a dominant role by taking important decisions, but curiously respondents 1 to 4 are under the clutches of the petitioner for unknown reasons. It is also alleged that the petitioner even had the audacity to abuse the husband of the respondent herein in front of his parents.
5. Heard the submissions made on either side and perused the materials available on record.
6. The words "respondent" and "domestic relationship" have been defined in 2 (f) (q) of the Protection of Women from Domestic Violence Act, 2005. 2(f): ""Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family" 2(q) ""respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act."
7. Having regard to the operation of the Act as against the person who is sought to be taken as "respondent" in the proceedings initiated thereunder, it must be pointed out that unless the aggrieved person, namely, respondent herein, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application. If the respondent has any grievance against the petitioner, she is always at liberty to initiate proceedings against him before the appropriate forum for any offence committed by him against her, if she is so advised.
8. Considering the facts and circumstance, I do not find any justification on the part of the trial court in including the petitioner as one of the respondents in the application; therefore, the proceeding pending in CMP No. 8207 of 2008 on the file of the learned Judicial Magistrate No. I, Coimbatore is directed to be quashed in so far as the petitioner / 5th respondent is concerned.
9. Accordingly, the Criminal Original Petition is ordered and consequently, miscellaneous petition is closed. Ar
To
1. Judicial Magistrate No. I,
Coimbatore
Gujrat HC: DV Act :Family members (respondent 2-6) may not be made to suffer for matrimonial dispute between husband and wife. Relief Granted to them
Gujarat High Court Case Information System BODY {SCROLLBAR-FACE-COLOR: #d4d0c8; SCROLLBAR-HIGHLIGHT-COLOR: #808080; SCROLLBAR-SHADOW-COLOR: #d4d0c8; SCROLLBAR-ARROW-COLOR: #ffffff; scrollbar-dark-shadow-color: #ffffff} SPAN.searchword { background-color:yellow; } function loadSearchHighlight() {
var chkParamC = “txtSearch” if (chkParamC == “txtSearch”) {
SearchHighlight(); document.searchhi.h.value = searchhi_string; if( location.hash.length > 1 ) location.hash = location.hash; }
}
CR.MA/2422/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2422 of 2011
=========================================
MAYANKKUMAR
SURESHCHANDRA SHELAT & 5 – Applicant(s)
Versus
STATE
OF GUJARAT & 1 – Respondent(s)
========================================= Appearance
:
MR MAYUR RAJGURU for Applicant(s) : 1 – 6. MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR DAKSHESH MEHTA for Respondent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 28/09/2011
ORAL
ORDER
The
present application has been filed by the petitioners, who are the husband and his family members (petitioner No. 1-husband and petitioner Nos. 2-6 – family members) under sec. 482 of the Code of Criminal Procedure for quashing Complaint No. 3026/2010 under the Domestic Violence Act, 2005 pending before the Court of Metropolitan Magistrate, Court No. 1, Ahmedabad, on the grounds set out in the application.
2. Heard
learned advocate Mr. M. Rajguru for the petitioners and learned advocate Mr. Dakshesh Mehta for respondent No. 2.
3. In
view of rival submissions and considering the details which have been referred giving rise to various litigations and also the facts stated, it requires detailed examination and therefore the matter requires consideration. Submissions have been made by learned advocate Mr. Rajguru that it is an over implication where the complaint has been filed as and by way of abuse of the process of court.
4. On
the other hand, learned advocate Mr. Mehta has pointedly referred to the orders and various details stating that respondent No. 2-wife has been deprived of even legitimate right of maintenance and the husband has not cared to even remain present in the proceedings and has successfully avoided remaining present even in the execution proceedings. He has also stated that the properties have been disposed of denying the right to respondent No.2-wife.
5. However,
as could be seen, petitioner No.1-husband may be responsible for the quarrel between him and respondent No. 2 wife regarding matrimonial ties, but as it appears, prima facie, that for his defaults the family members may not be made to suffer by such further offshoots and the proceedings. In the circumstances, without any further elaboration, the following order is passed:
Rule.
Expedited. Ad-interim relief in terms of para 3(b) qua petitioner Nos. 2 to 6 (family members). It is also directed that petitioner No. 1-husband shall be obliged to deposit the amount of maintenance before he could be heard in the matter.
It
is clarified that it will be open for respondent No. 2 complainant-wife to proceed in accordance with law for recovery of the amount of outstanding maintenance from petitioner No. 1 husband.
D.S.
permitted.
(Rajesh
H. Shukla, J.)
(hn)
Top
AP HC: Respondents 2 and 3 and the complainant did not live together in a shared house…DV act proceedings quashed
CRIMINAL PETITION No.4140 of 2010
2-8-2012
Nagamuthula Kondaiah
State of A.P., rep. by P.P. & another.
Counsel for the Petitioner: Sri P.SRIDHAR REDDY
Counsel for the Respondent No.1: The Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
ORDER:
1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of II Additional Judicial Magistrate of First Class, Kothagudem.
2. The petitioner is the respondent and the second respondent is the complainant in the DVC case. The respondent filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioner herein with a plea to restrain him from dispossessing her from shared household and also to pay compensation.
3. For the sake of convenience, I refer the parties as arrayed in the DVC. It is pleaded and alleged in the complaint as follows.
4. (a) The complainant is the legally wedded wife of Chembeti Chinna Koteshwar Rao, whereas their marriage took place as per Hindu Rites and Customs on 15.11.2008. In fact, her husband was first married to one Uma Maheshwari, daughter of the respondent on 11.8.2000 and a girl by name Keerthi who is aged 7 years was born to them. On 7.3.2008 Uma Maheshwari died. The respondent used to reside in their house as family member. In fact he was looking after the affairs of the house. Her husband reposed implicit confidence on the respondent in all respects. Factually, the husband of the petitioner married her as she was a relative of him and also for taking necessary care of the minor. According to the complainant, further she and her husband have been taking care of the minor. The respondent got no interest in the welfare of the minor. On the other hand, he made several efforts to grab the amounts kept in the name of the minor girl.
(b) She alleges that apart from that, the respondent has also been making efforts to subject her to domestic violence one way or the other for the purpose of ruining the matrimonial house. The petitioner is always under threat and danger in the hands of the respondent. While such circumstances existed, on 30.6.2009 the respondent along with some anti-social elements entered the house and threatened her with dire consequences and expressed his intention to kidnap the minor. Apart from that on 1.7.2009, the respondent attempted to kidnap the minor and in that context, criminally intimidated her again threatening her with dire consequences. Later, she informed about the incident to her husband, following which they gave a report in Palvancha Police Station, which was registered in Cr.No.170 of 2009 under Sections 363, 511, 506 read with Section 34 IPC and then the respondent was arrested by the police. She claims that because of the conduct of the respondent, her health is endangered. It is also stated that the respondent left the sharing roof of the petitioner’s matrimonial house, but he is continuously making an onslaught to wreck vengeance against the family.
5. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.
6. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Act’ are important.
(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. So existence of domestic relationship and living in shared house as defined in Sections 2(f) and 2(s) of the Act are the conditions precedent for the aggrieved party to initiate proceedings under the Act. (b) By virtue of Section 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. The meaning of the proviso can be better understood while analyzing what is meant by domestic relationship.
(c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thereby to constitute domestic relationship in between two parties, they should have lived in a shared house and they are related by consanguinity marriage or through a relationship in the nature of marriage, adoption or as members of a joint family. The person aggrieved, covered by the proviso under Section 2(q) falls within the ambit of the definition of domestic relationship being a relative of the respondent by marriage.
(d) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. Section 3 of the Act contemplates "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if-
(a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."
(e) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Significantly, it is emphasized that to constitute a shared household, it must be a household where the aggrieved person lives or lived in a domestic relationship subject to the other formalities incorporated therein.
7. Thereby the main requirements here are as to whether the complainant and the respondent lived together in a shared house and whether the complainant is related to the respondent by consanguinity, marriage or through a relationship in the nature of marriage, adoption or being a member of a joint family who lived together as envisaged in Section 2(f) with regards to domestic violence. Pertinently, the daughter of the respondent i.e the first wife of the husband of the complainant died, thereby the first marriage of the husband of the complainant does not exist now. Thus, the complainant is altogether a different person, who got no relationship with the respondent by virtue of any marriage otherwise or by consanguinity or by being a member of a joint family within the meaning of section 2(f). What is envisaged under the proviso in Section 2(q), which section defines what is meant by ‘respondent’ that an aggrieved wife or female living in a relationship in the nature of a marriage may file a complaint against a relative of the husband or male person is well within the ambit of the definition of domestic relationship only. In other words, when domestic relationship as defined in Section 2(q) is one of the conditions to file an application under the Act, a relative of the husband or male person must be one who comes within the ambit of that definition which excludes a relative like the respondent in this case.
8. With regards to the question of living in a shared house as defined in Section 2(s), the respondent must have a right to live in the house or allowed to live in the house under an obligation having domestic relationship as contemplated in Section 2(f) with the other inmates of the house which is one of the conditions to initiate the proceedings under the Act. Importantly in the definition of shared house also it is emphasized that the person aggrieved must have lived in a shared house having got domestic relationship which in fact does not include a person like the respondent herein subject to the formalities mentioned. That apart, neither the complainant nor her husband got any obligation to allow him to reside in the house. It is not a case of husband keeping the respondent in the house aiding the respondent to harass the complainant, rather it is admittedly a case of both the complainant and her husband living together harmoniously and both of them facing the alleged conduct of the respondent. If he is residing in the house unwantedly, they can take measures to send him out. Thus, as the respondent cannot be brought within the purview of the provisions enumerated that debars the complainant to file the complaint.
9. In addition to the discussion made above, the complaint is based only on surmises and conjectures. There are no specific allegations, in other words, there are only bald allegations against the respondent. It clearly appear that false allegations were made against the respondent for some purpose. It is something unbelievable in view of the circumstances of the case that the respondent preferred to stay in the house of the complainant and her husband after the death of his daughter, who was the first wife of the husband of the complainant. It is claimed by the respondent that the husband of the complainant has filed D.W.O.P.No.777 of 2009 on the file of the Court of Principal District Judge, Khammam for appointing him as the Guardian of the minor and he has also filed O.S.No.169 of 2009 on the file of the Court of Principal Senior Civil Judge, Kothagudem for damages against him on the ground that he made derogatory allegations against him in another legal proceedings and he also gave report to the Station House Officer, Palvancha Police Station and got him arrested, which establish that the complainant and her husband are bent upon to harass him to force him to accept their terms.
10. Hence good grounds are made out to quash the proceedings in the DVC. No body should be tried or enquired into unnecessarily in any proceeding. If it is done, it is nothing but abusing the process of law and harassing him or her.
11. In the result, the criminal petition is allowed and the impugned proceedings in the D.V.C.No.1 of 2010 are quashed.
______________________
G. Krishna Mohan Reddy, J
Date: 2.8.2012
Note:
L.R. copy be marked.
B/o
DA
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.4140 of 2010
2.8.2012
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.4140 of 2010
Date: 2.8.2012
Between:
Nagamuthula Kondaiah
.. Petitioner/Accused
And
The State of A.P., rep. by its
Public Prosecutor and another.
.. Respondents
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.5558 of 2009
ORDER:
1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of Additional Judicial Magistrate of First Class, Armoor, Nizamabad district.
2. The petitioners are the respondents 1 to 3 and the second respondent herein is the complainant in the DVC case. For the sake of convenience, I refer the parties as arrayed in the DVC.
3. The complainant filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioners herein to pass protection orders, residence order, maintenance order, custody order and to pay monetary relief compensation order and any other reasonable order respectively.
4. The claim of the complainant is as follows.
Her marriage with the first respondent was performed on 14.7.2008 at Tirupati. Before the marriage, the first respondent was engaged to another girl belonging to Ramadugu, by reason of which, he expressed his unwillingness to marry her and therefore the engagement was cancelled subject to paying damages. For two days after the marriage, the first respondent was cordial with her. Later, the parents of the first respondent i.e. respondents 2 and 3 started harassing her expressing that she was not suited to the first respondent and if another girl was married to the first respondent, they would have got a dowry of Rs.20.00 lakhs with the help of which, the husband of their daughter i.e. the fourth respondent could have been sent to foreign countries for getting better jobs. Further it is alleged that the respondents 1 to 4 harassed her asking her to leave the house voluntarily and also suggested her to marry another male person. Further, she was not allowed to take coffee, breakfast and launch by the respondents and she was also not allowed to speak to the first respondent and lead marital life with him. It is further alleged that whenever she was wearing good clothes, they used to irritate her saying where you were going. It is also alleged that the fourth respondent pushed the complainant out of the house while asking her to leave the house expressing that they would conduct another marriage to the first respondent after getting rid of her. It is further alleged unable to bear the torture of the respondents, the complainant left the house and has been staying with her parents house.
5. Learned counsel for the respondents would contend that the marriage between first respondent and the complainant is in dispute, by reason of which alone, the domestic violence case is not maintainable. Further the complainant and the first respondent never lived together and there was no consummation of marriage.
6. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.
7. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) are to be considered.
(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. Thereby the main criteria to file the case is that there should be domestic relationship between the person aggrieved and the respondent. It necessitates to understand what is domestic relationship in this context.
(b) By virtue of Section 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; (c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. So, to satisfy this definition both should have lived or live in a shared house and they are related by consanguinity marriage etc.
(d) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
(e) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. This is the criteria in fact to grant the reliefs under the Sections 18 to 22.
(f) Section 3 of the Act reads – "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if- (a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."
8. From the pleas taken, it appears that after the marriage, the first respondent and the complainant lived together. There is no basis to say that the respondents 2 and 3 and the complainant lived together in a shared house as defined though no doubt the other ingredients are satisfied. On this ground, the complaint is not tenable and hence ultimately the proceedings are to be quashed so far as the respondents 2 and 3 are concerned. In the result, the petition is dismissed so far as the first respondent is concerned and is allowed so far as the other respondents are concerned.
______________________
G. Krishna Mohan Reddy, J
Bombay HC: DV act proceedings cannot be inititated against grand sons to claim monetary and medical relief
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 892 OF 2009
1. Ganesh s/o. Rajendra Kapratwar .. Petitioners Age. 50 years, Occ. Business,
R/o. Talgalli, Degloor,
Tq. Degloor, Dist. Nanded.
2. Abhijeet s/o. Ganeshrao Kapratwar
Age. 24 years, Occ. Service,
R/o. As above.
3. Parijeet s/o. Ganeshrao Kapratwar
Age. 21 years, Occ. Education,
R/o. As above.
Versus
1. The State of Maharashtra .. Respondents
2. Sow. Shantabai w/o. Rajendra Kapratwar
Age. 66 years, Occ. Household,
R/o. Talgalli, Degloor,
Tq. Degloor, Dist. Nanded.
Shri Y.R. Barhate, Advocate for the petitioners. Shri K.M. Suryawanshi, A.P.P. for respondent No.1/State. Shri B.G. Deshmukh, Advocate for respondent No.2. CORAM : P.R. BORKAR,J.
DATED : 10.02.2010
(2)
ORAL JUDGMENT :-
1. This is a petition for quashing and setting aside proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act” for brevity), against the petitioners at the behest of respondent No.2 bearing Misc. Criminal Application No. 75 of 2009, pending before the Judicial Magistrate, First Class, Degloor and also for quashing and setting aside order dated 26.08.2009, taking cognizance of the complaint and issuing notice to the petitioners.
2. Brief facts giving rise to this petition may be stated as below :-
. Admittedly respondent No. 2 is mother of petitioner No.1 and petitioner No.1 is father of petitioner Nos. 2 and
3. It is also not disputed that respondent No.2 has two more sons besides petitioner No.1. Respondent No.2 approached the Court of Judicial Magistrate, First Class, Degloor under section 12 (1) of the Domestic Violence Act. It is stated (3)
therein that respondent No.2 is residing with her second son Anil. Her youngest son Ram is serving at Chandigarh, Haryana along with his family. Petitioner No.1 has his business of finance. His elder son Abhijeet who is petitioner No.2 is serving in Delhi as an Engineer and earning Rs. 30,000/- per month. However, the petitioners are not providing maintenance to respondent No.2. It is further stated that the petitioners are disputing with respondent No.2 on trifle matters and causing her mental torture. The husband of respondent No.2 purchased a plot at Vishal Nagar, Degloor and constructed a house. But the petitioners were threatening to dispossess her forcibly and she is likely to lose shelter. It is further stated that respondent No.2 is suffering from so many diseases such as blood pressure. As there is cataract in her eye, doctor advised surgery. Due to lack of money, respondent No.2 is unable to undergo surgery and therefore she wanted maintenance, so also medical expenses from the petitioners.
3. Along with petition the original application under Domestic Violence Incident Report, Application under Section 23 (1) of the Domestic Violence Act and affidavit are (4)
enclosed. Considering the documents the learned Judicial Magistrate, First Class, Degloor, issued notices to the petitioners by order dated 26.08.2009 and same is challenged in this matter.
4. This Court by order dated 1st October, 2009 refused to entertain the petition so far as petitioner No.1 is concerned and therefore the petition was dismissed as against petitioner No.1. So far as petitioner Nos. 2 and 3 are concerned, they being grand-sons of respondent No.2, the petition is to be considered and notice before admission was issued to respondent No.2
5. Heard Adv. Shri Y.R. Barhate for the petitioners, A.P.P. Shri K.M. Suryawanshi for respondent No.1 and Adv. Shri B.G. Deshmukh for respondent No.2.
6. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission.
7. The learned advocate for the petitioner argued that (5)
petitioner Nos. 2 and 3 are grand-sons of respondent No.2 and as such during lifetime of petitioner No.1 i.e. their father, they are not liable to pay maintenance, nor they are duty bound to provide medical expenses for cataract operation of respondent No.2. He also pointed out that it is not case of respondent No.2 that the petitioner No.1 is not in a position to pay maintenance or he is not able to pay medical expenses because of old age, unemployment or disability etc. It is further argued that when petitioner No.1 is there, respondent No.2 will not be entitled to get medical expenses or maintenance from petitioner Nos. 2 and 3. Thus proceedings under the provisions of Domestic Violence Act against petitioner Nos. 2 and 3 is an abuse of process of law.
8. It is argued that petitioner No.2 is residing at Nioda, (U.P.) and he is serving there and not residing at Degloor; whereas petitioner No.3 is residing with petitioner No.1 at Degloor. On the other hand the learned advocate for respondent No.2 argued that as per Section 2-A of the Domestic Violence Act “aggrieved person” is defined as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any (6)
act of domestic violence by the respondent. Phrase “domestic relationship” is defined under section 2 (f) of the said Act as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. “Domestic violence” is defined in section 3 of the Act.
9. The only allegation regarding domestic violence is that the petitioners quarreled with respondent No.2 on petty matters and/or threatened to dispossess her from the house, which was constructed by her husband on the plot purchased by him. It is nobody’s case that the cataract which requires surgical operation is a result of any domestic violence. So far as maintenance and medical expenses are concerned, section 20 of the Domestic Violence Act is relevant and it lays down that while disposing of application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic (7)
violence and such relief may include, but not limited to the medical expenses.
10. In this case there is no dispute that petitioner No.1 Ganesh was liable to pay maintenance and he would also be liable to incur medical expenses as mentioned in section 20 (1) (b) of the Domestic Violence Act. However, so far as petitioner Nos. 2 and 3 are concerned, under Hindu Adoptions and Maintenance Act, 1956, as grand-sons they would have been liable to pay maintenance under section 22 (1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not not been alive. When the father of petitioner Nos. 2 and 3 is alive and is capable of paying maintenance, section 22 (1) of the Hidu Adoptions and Maintenance Act, will not be applicable and under section 20 of the Hindu Adoptions and Maintenance Act, petitioner No.1 would be liable to pay maintenance to his mother i.e. respondent No.2. As per section 20 (b) of the Domestic Violence Act, the maintenance includes even medical attendance and treatment.
11. So in the above said circumstances, the proceedings under section 12 (1) may not be tenable against petitioner (8)
Nos. 2 and 3 so far as relief of maintenance and medical expenses are concerned. However, residence order under section 19 of the Domestic Violence Act can be passed against all the petitioners. Section 17 which recognizes right to reside in a shared house. It is argued before this Court by the learned advocate for the petitioners that respondent No.2 has been residing separately for 10 years. In-fact, in the Domestic Violence Incident Report, in para 4 it is specifically stated that applicant has been residing with her second son Anil. However, this would be a question of fact and the parties will have to go before the Magistrate, so far as direction is sought against forcible dispossession is concerned. It would be a question of fact whether for 10 years respondent No.2 has been residing separately, and there is threat of her dispossession from the house as claimed.
12. So, in these circumstances, this petition is allowed partly. The petition is dismissed so far as petitioner No.1 is concerned as stated earlier. The proceedings against petitioner Nos. 2 and 3 may proceed, further only in respect of reliefs which could be granted in sections 18 and 19 of the Domestic Violence Act. (9)
13. The Criminal Writ Petition accordingly disposed of. [P.R. BORKAR,J.]
snk/2010/FEB10/crwp892.09
Delhi HC: If Family members did not stay together with complainnant as joint family and stayed separately, cannot be made respondent to the DV act
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 452/2012
% Judgment delivered on: 7th February, 2012
SONIA CHAUHAN RAGHOVE ….. Petitioner Through : Mr.M.B. Singh, Adv.
versus
SANJIVE RAGHOVE & ORS ….. Respondent Through : NEMO.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl.M.A. 1565/2012(Exemption)
Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.
Crl.M.A. 1566/2012(Delay)
Delay condoned.
Criminal M.A. stands disposed of.
+ Crl. M.C. 452/2012
1. Vide the instant petition, the petitioner has challenged the impugned judgment dated 15.11.2011 passed by ld. ASJ (01), District- West Delhi and order dated 16.08.2010 passed by ld. MM in
Crl.M.C.No.452/2012 Page 1 of 6 Complaint Case no. 278/01/2010, filed under Section 12(1)(3(4)(5) read with Sections 18,19,20 and 22 read with Rule 6(1) of the Domestic Violence Act, has issued summons only against respondent no. 1 i.e. husband of the complainant and declined to issue summons against respondent no. 2 to 5.
2. I note in order dated 16.082010, ld. MM of Mahila Court, West Delhi has recorded that respondent no. 1 Dr. Sanjeev Raghav, husband of the applicant, who is residing at Rewari, Haryana. Respondent no. 2 and 3 are residing separately and cannot be stated to be in domestic relationship with the applicant. Therefore, ld. Trial Judge not preferred to issue summons against the aforesaid respondents.
3. Similarly, respondent no. 4 is residing in Delhi. She is the married sister in law, who does not share any domestic relationship with the applicant. Therefore, respondent No.4 has also not been summoned.
4. As far as the respondent no. 5 is concerned, who is stated to be the friend of respondent No.1 and not a relative, therefore respondent No.5, has also been summoned.
5. Being aggrieved by the order dated 16.08.2010 the petitioner has challenged the aforesaid order passed by ld. MM before the court of Sessions.
6. Vide order dated 15.11.2011, ld. ASJ after considering the fact has held that respondent no. 1 is the husband of the applicant and respondent no. 2 to 4 are the father-in-law, mother-in-law and sister-in- law of the applicant respectively and respondent no. 5 is the colleague of respondent no. 1. It is alleged in the application that petitioner had
Crl.M.C.No.452/2012 Page 2 of 6 married with respondent no. 1 on 10.03.2004. After the marriage, they lived together as husband and wife at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. It is further alleged that she was harassed, humiliated and ill-treated by respondent no. 1 to 4 for not fulfilling their demands of dowry. They hatched a conspiracy to turn the complaint out of the matrimonial home and while acting on the same, respondent no. 1 had started applying for the job outside Chandigarh.
7. I note that ld. ASJ, has perused the impugned order dated 16.08.2010, wherein it is recorded that respondent no. 2 to 4 cannot be summoned as they cannot be stated to be in domestic relationship with the complainant. Respondent no. 5 has not been summoned as he is a friend of respondent no. 1 and not the relative.
8. I note ld. ASJ has also dealt the issue raised by ld. Counsel for the petitioner and has referred Section 2 (f) of the Act that respondent no. 2 to 4 being the blood relatives of respondent no.1 and with whom petitioner lived immediately after her marriage fall within the domestic relationship.
9. It is further submitted by the ld. Counsel for the petitioner that as per the provisions of Section 2 (q) of the Act, the male partner of the respondent is liable for violation of the Act. Respondent no. 5 being the business partner of the respondent no. 1 is liable to summoned.
10. Section 2 (a) of the Act defines aggrieved persons. For the convenience, said Section is reproduced as under:- “Aggrieved person means any woman who is, or has been in a domestic relationship with the respondent
Crl.M.C.No.452/2012 Page 3 of 6 and who alleges to have been subjected to any act of domestic violence by the respondent”
11. I note, ld. Addl. Sessions Judge has been guided by the case titled as Vijay Verma vs. State N.C.T of Delhi & Anr. decided by this Court in 2010 (4) JCC 2377 wherein it is recorded as under:
“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:
“(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become Crl. M.C. No. 3878 of 2009 Page 3 of 7 aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot Crl.M.C.No.452/2012 Page 4 of 6 be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married Crl. M.C. No. 3878 of 2009 Page 4 of 7 and establishes her own household with her husband. Such son, daughter, daughter-in- law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time”.
Crl.M.C.No.452/2012 Page 5 of 6
12. It is clear from the judgment recorded by ld. ASJ that complainant had admitted in her application under Section 12 of the Act, that had stayed together at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. However, respondent no. 2 & 3 are living together separately from the petitioner. Respondent no. 4 is the married sister and is also living separately from the petitioner.
13. There is no allegation in the application, which would show that petitioner along with respondent no. 1 and respondent no. 2 to 4 had lived together as a joint family.
14. As respondent no. 5 is concerned, he is alleged to be a business partner of the respondent no. 1. Respondent no. 5 being the business partner of the respondent no. 1 does not fall under the category of the male partner as provided by the proviso to Section 2 (q) of the Act.
15. In the view of above, I find no discrepancy in the order passed by the ld. Trial Courts, therefore I refrain to interfere with the same.
16. Accordingly, the instant petition is dismissed.
17. No order as to cost.
SURESH KAIT, J
FEBRUARY 07, 2012
Jg
Crl.M.C.No.452/2012 Page 6 of 6
AP HC: Proceedings under the DV Act are not maintainable against the female members, the proceedings are liable to be quashed
THE HON’BLE SRI JUSTICE P.SWAROOP REDDY
Criminal Petition No. 4106 of 2008
22-10-2008
Smt. Menakuru Renuka and Others.
Smt. Menakuru Mona Reddy.
2.State of A.P. rep. By Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad.
Counsel for Petitioners : C.Praveen Kumar.
Counsel for Respondent1: K.M.Mahender Reddy.
:Order:
This petition under Section 482 Cr.P.C. is filed by the petitioners, who are respondent Nos. 2 to 4 in D.V.C. No. 1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The first respondent herein, who is the complainant (herein after called as the complainant) in the above D.V.C., filed the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) claiming reliefs under Sections 18, 19 and 20 of the Act.
2. According to the complainant, her marriage with M.S. Mahender Reddy son of the first and second petitioners and the brother of the third petitioner herein was performed on 29.06.1997. According to the complainant, huge amount to a tune of Rs.1.00 crore was given to the petitioners apart from several other articles. After the marriage,
the spouses lived in United States of America for some time. There was harassment by the husband, even after the birth of a child. Even after they returned to India, there was harassment by the husband, as well as parents-in-law, including the sister-in-law. It is the case of the complainant that not only she, but her father was assaulted by the present petitioners. In the D.V.C., she sought reliefs of separate residence, compensation of Rs.8.00 crores and Rs.1.50 Lakhs towards house hold expenses.
3. The contention of the petitioners is that even if the entire allegations in the complaint are taken to be true also, the provisions of the Act would not attract against present petitioner Nos. 1 and 3, as under Section 2 (q) of the Act, women are not liable and the reliefs that are now being claimed by the petitioners can be granted against the husband only and not from any other member of the family, including the present second petitioner, father-in-law. It is also the contention of the petitioners that the complainant has also filed a case against the petitioners and her husband under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act in Crime No.77 of 2008 of Pulivendula Police Station that was registered on 12.6.2008, which perhaps is a counter blast to the report given by the second petitioner herein at Varthuru Police Station, Bangalore City on 6.6.2008.
4. A reading of the complaint given to the Protection Officer would show that the complainant was continuously harassed at USA, as well as in India, in several ways. While they were in USA, the present petitioners – parents-in-law and sister-in-law were instigating her husband to harass her and after they came to India also, all the family members of the husband, including the sister-in- law harassed her and they even assaulted her and her father. In the DVC, the complainant claimed protection under Section 18; provision for residence under Section 19; maintenance under Section 20 and compensation under Section 22 of the Act.
5. In the counter filed on behalf of the first respondent, the allegations in her complaint are repeated mostly and it is contended that the acts of the present petitioners and her husband attract the provisions of the Protection of Women from Domestic Violence Act, 2005; proviso to Section 2 (q) makes women also liable, her husband, parents-in-law and sister-in-law are liable under this Act. According to her, the third petitioner herein, her sister-in-law, used to influence her husband and other family members; she along with her parents instigated and abetted physical violence against her and that criminal cases by both sides have nothing to do with the present case.
6. Learned Senior Counsel – Sri C. Padmanabha Reddy, appearing for the petitioners contends that in view of the provisions of Section 2 (q) of the Act, women are not liable and for that reason the proceedings against them have to be quashed. It is the next contention of the learned senior counsel that the relief claimed in the DVC cannot be claimed against any of the petitioners and for that reason also the proceedings have to be quashed against the petitioners.
7. On the other hand, Sri D. Prakash Reddy, learned Senior counsel appearing for the respondent, contends that in view of proviso to Section 2 (q) of the Act, the DVC is maintainable against women i.e., petitioner Nos.1 and 3 also and the claims made by the first respondent are maintainable against all the petitioners herein, who are the
parents-in-law and sister-in-law.
8. Now, two questions would arise for consideration: — First is whether the proceedings under the Domestic Violence Act are maintainable against women in view of Section 2 (q) of the Act; and
– Second would be whether the reliefs claimed by the first respondent- complainant are maintainable against the petitioners herein.
9. As far as the first question is concerned, Section 2 (q) of the Act reads as under:
“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”.
10. Thus, the Section says “respondent” means any adult male person, there by excluding women altogether; but the proviso provides for filing complaint against the relatives of the husband or a male partner. In view of the same, the learned senior counsel appearing for the first respondent wife contends that women are also liable.
11. As contended, the proviso to Section 2(q) is giving scope for including female relatives of the husband also. Here, any doubt as to whether a female relative can be included, perhaps, is clear from the main Section 2 (q), it covers, the persons having domestic relationship.
As per Section 2 (f) of the Act, “domestic relation” would “include persons that any time lived together in a shared house hold, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family”. Thus, this would cover close members of the husband’s family like mother-in-law, sister-in-law, co-sisters etc. Thus, thereby excluding them (female members of the domestic relationship) from being the respondents, when the Section says adult male persons of the domestic relationship are included, female members of the domestic relationship have to be automatically excluded or else Section 2 (q) of the Act would have been “respondent’ means “any adult person” instead of “any adult male person”. Thus, the question of selfsame female member in domestic relationship excluded as respondent in view of the contents of the main provision again being included under the proviso to the Section may not arise. Therefore, it has to be treated that the proviso intends to include only male persons other than those in domestic relationship also. There appears to be unintentional omission to specifically excluding women in the proviso or it may be because main Section makes it clear that only male persons can be respondents, it is not again specified in the proviso.
12. Clause 4 (1) of the Statement of Objects and Reasons of the Act reads as follows:
“It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Event hose women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
Thus, it would not enable a female relation of husband or a male partner to file a complaint against wife or female partner.
13. As per Section 2 (a) of the Act, “aggrieved person” means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”. As per Section 2 (f) “domestic relationship” as already referred is “a relationship between two persons, who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
Thus, when Section 2 (a) and (f) of the Act are read together, a case of Domestic Violence can be filed by any woman in Domestic relationship, not only by the wife. Wife is generally taken as the wife of the main respondent, who again is, mostly, a son in the family. The above referred Clause 4 (1) of the Statement of Objects and Reasons and Section 2(a) of the Act clarifies that even those women, who are sisters, widows, mothers and single women, living with the abuser are entitled to legal protection under the Act. Thus aggrieved sisters and mothers also can file a DVC and when the intention of the Act is to prevent any female relation of the husband or the male partner to file a DVC against the wife or the female partner, when a DVC is filed by a wife against the brother of her husband, when a sister or mother filed a DVC under the Act against several male members of the family, the question would be who would be wife or female partner that would be entitled to immunity. In such an event, all the wives against whose husbands the DVCs are filed are obviously entitled to immunity. Here, a question may arise as to when DVC is filed only against a female without including her husband like the third petitioner herein or against unmarried girls, what would be the position. My answer is, the intention of the Act is to altogether exclude women, when most women are excluded there is no question of the Act intending to include people like unmarried girls. Thus, it appears that the intention of the Act is to exclude women altogether.
14. In Ajay Kant v. Alka Sharma1, a single Judge of Madhya Pradesh High Court held that “the persons referred to in the proviso of Section 2 (q) of the Act are the persons against whom a complaint can be filed under Sections 31(2) and 33 of the Act, that as there is no definition for the word “complaint” in the Act and, since as per Section 2(d) Cr.P.C., complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under Cr.P.C. that some person, whether known or unknown, has committed an offence, but does not include a police report, that a complaint can be filed for two offences mentioned in Sections 31(2) and 33 of the Act and the word “complaint” that appeared in proviso to Section 2(q) of the Act is only to give right to the aggrieved women to give complaint for contravention of Sections 31(2) and 33 of the Act, but not to include them as respondents in a DVC.
15. There appears to be some confusion in the above decision, as 31(1) of the Act reads that “a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable………”, which again shows that the penalty can be only against the respondent and the question is who is respondent. Section 33 of the Act contemplates action against protection officer, who fails to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause. Here again, the question of failing to discharge the duties of protection officer would arise only in relation to a respondent in the DVC, thereby leading to the same confusion as to who is respondent.
16. Here, it is pertinent to refer to Section 2 (o) of the Act, which says “protection order” means an order made in terms of Section 18′ and Section 18 of the Act provides that the order is contemplated only against the respondent.
17. In the above circumstances, the decision in Ajay Kant’s Case (Supra 1) may not be of any substantial guidance.
18. In view of my above discussion, I hold that female members cannot be made respondents in the proceedings under the Act.
19. Coming to the question of the reliefs claimed by the first respondent before the trial court under Sections 18 to 22 of the Act are concerned – Section 18 of the Act deals with grant of a protection order from domestic violence; from alienating any assets, operating bank lockers etc. which can be definitely granted against the present second petitioner – father-in-law. An order under Section 19, an order for residence, can also be granted against the second petitioner. The reliefs under Sections 20 and 22 also can be granted against the second petitioner, father-in-law.
20. Learned senior counsel appearing for the second petitioner relied on a decision of our High Court in Mohammed Maqeenuddin Ahmed v. State of A.P.2. This is a case where compensation for medical expenses was granted against father-in-law. Perhaps, the above decision is not applicable to the facts of the present case, in view of the nature of the claims made by the complainant herein. In the circumstances, I hold that the reliefs can be granted against the second petitioner.
21. In view of the above finding, as the question of maintainability of the proceedings against the female members is held in favour of petitioner Nos. 1 and 3 herein, holding that proceedings under the Act are not maintainable against the female members, the proceedings are liable to be quashed, as far as petitioner Nos.1 and 3 herein are concerned. Accordingly, the present petition is allowed to the extent of petitioner Nos.1 and 3, quashing the proceedings pending against them in D.V.C. No.1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The petition in so far as it relates to the second petitioner is hereby dismissed.
22. In the result, the Criminal Petition is ordered accordingly.
?1 2008 CRLJ 264
2 2007 CrlLJ 3361
Decree of divorce passed in foriegn country not valid in India as wife did not contest the proceeding in that country
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 990/2010
SHEENAM RAHEJA … Plaintiff Through: Mr. Deepak Anand, Advocate
along with plaintiff in person.
versus
AMIT WADHWA ….. Defendant Through: Defendant is ex parte.
% Date of Decision : September 10, 2012
CORAM:
HON’BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. The plaintiff has filed the present suit seeking a decree of
declaration in favour of the plaintiff and against the defendant,
declaring that the proceedings initiated by the defendant for the
dissolution of marriage between the parties on the ground of
irreconcilable differences, arising out of File No.1-09-FL-149089,
pending before the Superior Court of California, County of Santa
Clara, San Jose, USA are illegal, invalid and void ab-initio.
2. During the pendency of the present suit, however, a decree of
dissolution was passed by the Superior Court of California, County of
CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and
thereupon the plaintiff amended her plaint to seek appropriate orders
declaring the order of dissolution of marriage dated January 14, 2011
and January 18, 2011 passed by the Superior Court of California as
null and void and non-est in the eyes of law.
3. The plaintiff and defendant were married on 15th April, 2000
according to Hindu rites and ceremonies at New Delhi. The marriage
was duly registered under the Hindu Marriage Act, 1955 on 24th
April, 2000. From the wedlock two female children were born on 17th
August, 2001 and 2nd July, 2004, aged 9 years and 6 years
respectively. Both the children are presently in the custody of the
defendant, who, as detailed in the plaint, has taken them away
clandestinely. Shorn of details, the marriage of the plaintiff ran into
troubled waters on account of cruelty inflicted upon her by the
defendant, his mother, sister and other relatives. The mother and sister
of the defendant publicly humiliated the plaintiff for dowry, whenever
she visited India, even though for short spells. On account of said
cruelty and harassment, the plaintiff had become unwell, and on 7th
July, 2008, when the plaintiff came to India along with her two
CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period
the mother-in- law of the plaintiff, without the knowledge and consent
of plaintiff, preponed the already confirmed tickets of the two
children for 17th August, 2008 and took them away with her to USA
on 5th August, 2008. The aforesaid act of the plaintiff’s mother-in-law
naturally caused apprehension in the mind of the plaintiff about her
safety and security in USA, as it became clear to her that the
defendant had no intention to call her to USA. The mother-in-law of
the plaintiff with malafide intentions locked the matrimonial home i.e
H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff
therein. Since the parents of the plaintiff had limited financial
resources, the plaintiff in order to withdraw money from her savings
bank account visited the State Bank of Patiala, Branch Pusa Road,
New Delhi and was flabbergasted to discover that her savings had
already been withdrawn fraudulently by the defendant and his
relatives by forging her signatures. On coming to know that her bank
account had been cleaned out in this manner, the plaintiff informed
the law enforcing agencies and got registered FIR bearing
No.164/2009 under Sections 420/467/468/471/120-B IPC with the
CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the
matter is still pending for investigation. To be noted at this juncture
that the plaintiff had also lodged a complaint in USA against the
defendant for domestic violence committed in the USA.
4. As averred in the plaint, the plaintiff in the third week of
March, 2010, through a whisper campaign amongst close relatives of
the plaintiff and defendant, came to know that the defendant has filed
some proceedings before a Court in USA. The plaintiff checked the
website of the said Court and came to know that a case for dissolution
of marriage of the parties on the ground of irreconcilable differences
had been filed by the defendant before the Superior Court of
California, County of Santa Clara, San Jose, USA. It is the allegation
of the plaintiff that the plaintiff was never served with the petition and
other pleadings by the defendant, who has played a fraud on the
judicial process to the extent that he did not even disclose the address
of the plaintiff to the Californian Court. The plaintiff on 8th April,
2010 after obtaining copies of the Court papers through her friends in
USA sent a letter to the Court at California, disputing the jurisdiction
of the said Court to entertain the petition of the defendant for
CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the
provisions of the Hindu Marriage Act, 1955. The plaintiff also
instituted the present suit seeking a declaration that the proceedings
before the Superior Court at California were illegal, invalid and void
ab-initio.
5. During the pendency of this suit, the plaintiff learnt that a final
order of dissolution of marriage was granted by the Superior Court of
California, County of Santa Clara, San Jose, USA in favour of the
defendant on January 14, 2011 (vide notice of entry judgment dated
January 18, 2011). The plaintiff now seeks to assail the said order of
dissolution of the marriage as null, void and non-est by amendment of
the plaint.
6. Summons of the institution of the present suit were issued to
the defendant on 18th May, 2010. By an order of the same date this
Court opined that prima facie the continuance of proceedings in the
Superior Court of California, County of Santa Clara, San Jose, USA
would act to the prejudice of the plaintiff, as she did not appear to
have any means to contest the said proceedings, and, in the
circumstances, the defendant was restrained from proceeding further
CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order
of this Court along with the copy of plaint and application by all
modes including E-mail, Registered A.D post and UPC at the local
address and at the USA address-3651, Cabernet, Vineyards Circle,
San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,
signifying the receipt of the copy of the plaint and the injunction
order of this Court, duly served upon the defendant by the United
States Postal Service and Indian Postal Service, are placed on record
by the plaintiff. It is pleaded that despite being aware of the restraint
order passed by this Court, the defendant knowingly, wilfully and
intentionally continued to proceed with the case in USA in breach of
the interim injunction passed by this court. The plaintiff also served
upon the defendant legal notice dated 12th October, 2010, making the
defendant aware of the consequences ensuing from the breach of
injunction order dated 18th May, 2010 passed by this Court, but to no
avail.
7. Mr. Deepak Anand, the learned counsel representing the
plaintiff, had drawn my attention to the fact that the order of the
Superior Court of California, County of Santa Clara, San Jose, USA
CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this
Court was on the file of the said Court. The relevant portion of the
order of the Superior Court of California states:
“The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010
(sic.)-purports to prohibit Husband from
proceeding with his divorce action in
California based on the theory that California recognizes divorce based on a finding of
irreconcilable differences which, according to the order, is contrary to Indian marriage law.”
8. After noting that this Court had prohibited the husband from
proceeding with the divorce action in California, the Court at
California, however, observed that the Indian order did not indicate
that the husband was ever served with the Indian order. The learned
counsel for the plaintiff contended and I think rightly so, that the said
observation is of no consequence in view of the fact that there is proof
of service upon the defendant on 5th June, 2010, through the United
States Postal Service, which even bears the signatures of the
defendant, namely, Amit Wadhwa with the date and time of service
i.e 05-June-2010 – 10.35 A.M endorsed on it. This is quite apart from
CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes
including E-mail, proof whereof has been placed on record. The
learned Superior Court of California, despite full and complete
knowledge of the existence of the injunction order passed by this
Court, authorized the defendant to proceed with his request to enter
the plaintiff’s default in case bearing No.1-09-FL-149089 for legal
separation and dissolution of marriage initiated by the defendant in
USA.
9. The learned counsel for the plaintiff on the aforesaid facts and
on the basis of the affidavits by way of evidence filed by the plaintiff
contends that the marriage between the parties having been
solemnized and registered under the provisions of the Hindu Marriage
Act, 1955 in New Delhi, within the jurisdiction of this Court, its
dissolution could be effected only under the said Act. Both the parties
are Indian citizens holding Indian passports and are permanent
residents of India, hence are governed by Indian laws. The Superior
Court of California does not have the jurisdiction to grant decree of
divorce as per the provisions of Hindu Marriage Act, 1955, as neither
the marriage between the parties was solemnized in USA nor the
CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of
California at the time of the presentation of the petition. The
jurisdiction assumed by the foreign Court as well as the grounds on
which the relief is claimed must be in accordance with the
matrimonial law under which the parties are married i.e. the Hindu
Marriage Act, 1955. The plaintiff and the defendant have both resided
together in India and hence as per Section 19 of the Hindu Marriage
Act, 1955, the jurisdiction for the grant of decree of divorce vests
with the Courts in India. It is further the contention of the learned
counsel for the plaintiff that the plaintiff has till date not submitted
herself to the jurisdiction of the foreign Court i.e Superior Court of
California, County of Santa Clara, San Jose, USA nor was she
represented through counsel and the Court passed the decree in her
absence.
10. The learned counsel placed reliance on the provisions of
Section 13 of the Code of Civil Procedure, 1908 to contend that the
plaintiff is entitled to a decree of declaration as claimed by her. For
the sake of facility of reference, the provisions of Section 13 of the
CPC are reproduced hereunder:-
CS (OS) No.990/2010 Page 9 of 21 “13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties
under whom they or any of them claim
litigating under the same title except-
(a) where it has not been pronounced by a
Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the
proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) where the proceedings in which the
judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a
breach of any law in force in India.”
11. Mr. Anand relied on the decision in the case of Y. Narasimha
Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC
451, where the Hon’ble Supreme Court interpreted each and every
clause of Section 13 of the Civil Procedure Code vis-à-vis
matrimonial law with a view to secure required certainty and protect
the sanctity of the institution of marriage and the unity of family
which are the cornerstones of our societal life. Clauses (b), (c), (d)
CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the
following manner :
“16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the
merits of the case, the courts in this country will not recognise such judgment. This clause
should be interpreted to mean (a) that the
decision of the foreign court should be on a ground available under the law under which
the parties are married, and (b) that the
decision should be a result of the contest
between the parties. The latter requirement is fulfilled only when the respondent is duly
served and voluntarily and unconditionally
submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without
appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a
representative for objecting to the jurisdiction of the court, should not be considered as a
decision on the merits of the case. In this
respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.
17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the
judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the
CS (OS) No.990/2010 Page 11 of 21 customary or the statutory law in force in this country. Hence, the only law that can be
applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign
judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a
judgment which is in defiance of the law.
Hence, it is not conclusive of the matters
adjudicated therein and, therefore, unenforceable in this country. For the same
reason, such a judgment will also be
unenforceable under clause (f) of Section 13, since such a judgment would obviously be in
breach of the matrimonial law in force in this country.
18. Clause (d) of Section 13 which makes a
foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the
matrimonial disputes, this principle has to be extended to mean something more than mere
compliance with the technical rules of
procedure. If the rule of audi alteram partem has any meaning with reference to the
proceedings in a foreign court, for the
purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is
necessary to ascertain whether the respondent was in a position to present or represent
himself/herself and contest effectively the said proceedings. This requirement should apply
equally to the appellate proceedings if and
CS (OS) No.990/2010 Page 12 of 21 when they are filed by either party. If the
foreign court has not ascertained and ensured such effective contest by requiring the
petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where
necessary, it should be held that the
proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial
matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European
Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be
recognised only if it is of the forum where the respondent is domiciled or habitually and
permanently resides, the provisions of clause (d) may be held to have been satisfied.”
12. The Supreme Court thereafter deduced the following rule as
regards to the binding effect of a decree of dissolution of marriage
passed by a foreign court :-
“The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the
matrimonial law under which the parties are
CS (OS) No.990/2010 Page 13 of 21 married. The exceptions to this rule may be as follows:- (i) where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently
resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the
respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”
13. Reliance was also placed by Mr. Anand on the decision of
Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT
635, wherein a learned Single Judge of this Court, Hon’ble Mr.
Justice D.P.Wadhwa (as his Lordship then was) after noting that the
petitioner had never contested the proceedings for divorce filed by the
respondent in the Supreme Court at Nova Scotia, held that it would
not mean that she conceded the jurisdiction of that Court or that the
Supreme Court at Nova Scotia was the Court of competent
jurisdiction. The silence of the wife, which the learned Judge
observed, was not because of her own volition but because of the
CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings
there, could not confer jurisdiction on that Court, more so as the
husband was not permanently residing within the jurisdiction of the
Supreme Court of Nova Scotia. The Court further observed as under:-
“It is also clear that the ground on which
the decree of divorce had been granted by
the foreign Court is not a ground on which
such a decree could be granted under the
Act. Since the petitioner wife was not in a
position to contest the proceedings in a
foreign Court as she had no means to go
there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit
Canada complete, the rules of natural
justice stood violated. It is a matter of
common knowledge that mere buying an air
ticket is not enough to visit Canada. There
are various other formalities to be
completed. I am of the firm view that the
foreign judgment on which the husband
relied has no legal validity in this country.”
14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT
682, this Court relying upon the decision of the Supreme Court in the
case of Narasimha Rao (supra), held that as laid down by the
Supreme Court, the first and foremost requirement of recognising a
foreign matrimonial judgment is that the relief should be granted to
the petitioner on a ground available under the matrimonial law under
CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and
effectively submits to the jurisdiction of the forum and contests the
claim which is based on a ground available under the matrimonial law
under which the parties are married. On the facts of the case before it,
the Court further held as under:-
“25. The ground on which the marriage of
the defendant was dissolved is not available in the Hindu Marriage Act. The parties are
Hindus. Their marriage was solemnised
according to the Hindu rites. Their
matrimonial dispute or relationship was,
therefore, governable by the provisions of
Hindu Marriage Act. Since the plaintiff did
not submit to the jurisdiction of the USA
Court nor did she consent for the grant of
divorce in the US Court the decree obtained
by the defendant from the Connecticut Court
of USA is neither recognisable nor
enforceable in India.”
15. The learned counsel for the plaintiff also vehemently contended
that the defendant-husband has practiced fraud upon the Court at
USA inasmuch as no summons were ever served on the plaintiff at
any point of time. The proof of service of summons do not have any
acknowledgement/receipt/signature of the person to whom the
summons and copies were delivered. The issue of service of
CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the
observations made hereinafter.
16. In the instant case, the Superior Court of California has passed
the decree of dissolution of marriage on the ground of irreconcilable
differences. The said ground, not being a ground available for
dissolution of marriage under Section 13 of the Hindu Marriage Act,
1955 under which the marriage between the parties was contracted, it
cannot be said that the judgment is passed on merits. Further, it can,
by no stretch of imagination, be said that the decision of the Superior
Court of California was the result of the contest between the parties.
On the contrary, the judgment dated 14.01.2011 shows no application
of mind or appreciation of facts and is merely mechanical in its form
as well as substance. Moreover, the impugned proceedings and the
decree of dissolution are in violation of the principles of natural
justice, which the Supreme Court in the case of Narasimha (supra)
interpreted to mean something more than mere compliance with the
technical rules of procedure. It was observed by the Supreme Court
that it should not be deemed sufficient that the respondent had been
duly served with the process of the court but it must also be
CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or
represent himself/herself and contest effectively the said proceedings
and if the foreign court had not ascertained and ensured effective
contest by requiring the petitioner to make all necessary provisions
for the respondent to defend including the costs of travel, residence
and litigation where necessary, it should be held that the proceedings
were in breach of the principles of natural justice. In this regard, the
order dated 18.05.2010 passed by this Court and the order dated
03.09.2010 passed by the Superior Court of California are of
significance. This Court on 18.05.2010 concluded that prima facie the
continuance of proceedings in the Superior Court of California would
act to the prejudice of the plaintiff, as she did not appear to have any
means to contest the said proceedings, and, in the circumstances, the
defendant was restrained from proceeding further with the aforesaid
case till the next date of hearing which was 21.10.2010. The Superior
Court of California on 03.09.2010, despite being aware of the order of
this Court, disregarded the same merely on the technical ground that
the order did not indicate that the husband was ever served with the
Indian order and in completely ignoring the principles of natural
CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the
husband’s petition for dissolution of marriage and that there was no
legal basis to stay the divorce proceedings, authorizing the husband to
proceed with his request to enter wife’s default.
17. The cumulative effect of the aforesaid facts, in my considered
opinion, is that the decree of dissolution of marriage passed by the
Superior Court of California cannot be said to have been passed on
merits nor can it be said to be in compliance with the principles of
natural justice. The plaintiff-wife did not contest the claim nor agree
to the passing of the decree. In fact, the plaintiff in the present case
did not have the wherewithal to contest the impugned proceedings. As
noticed above even her bank account had been fraudulently operated
by the defendant and his relatives by forging her signatures and First
Information Report in this regard was lodged by her being FIR
No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect
of which Status Report has been filed by the Investigating Agency
from time to time. In these circumstances, the judgment, having been
passed in default of wife’s appearance, is clearly in violation of the
principle of audi alteram partem as enunciated by the Supreme Court
CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,
where the wife is not in a position to contest the case in a foreign
jurisdiction, resulting in grave injustice to the wife.
18. Lastly, this Court cannot help but refer to the following
observations made by the Hon’ble Supreme Court in Neeraja Saraph
(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case
pertained to desertion of an Indian wife by an NRI husband:-
“…But the rule of domicile replacing the
nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be
examined by incorporating such provisions as-
(1) No marriage between a NRI and an
Indian woman which has taken place in
India may be annulled by a foreign
court;
(2) Provision may be made for adequate
alimony to the wife in the property of the
husband both in India and abroad.
(3) The decree granted by Indian courts
may be made executable in foreign
courts both on principle of comity and by
entering into reciprocal agreements like
Section 44-A of the Civil Procedure Code
which makes a foreign decree executable
as it would have been a decree passed by
that court.”
CS (OS) No.990/2010 Page 20 of 21
19. Regretfully the plight of women and their exploitation by NRI
husbands is yet to be ameliorated through legislative measures as
suggested in the said case.
20. In view of the aforesaid, the decree of dissolution of marriage
passed by the Superior Court of California in favour of the defendant
can not be said to be conclusive under Section 13 of the Civil
Procedure Code and hence is not enforceable in India. The decree of
dissolution of marriage dated January 14, 2011 and judgment entered
on January 18, 2011 passed by the Superior Court of California,
County of Santa Clara, San Jose, USA in favour of the defendant be
and is hereby declared null and void and unenforceable in India being
opposed to the laws in force in this country.
21. Resultantly, the suit stands decreed in terms of the prayer made
by the plaintiff. The plaintiff shall also be entitled to recover cost in
the sum of Rs.2 lakhs from the defendant.
22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012
stand disposed of.
REVA KHETRAPAL
(JUDGE)
September 10, 2012/’k’
CS (OS) No.990/2010 Page 21 of 21
Government cannot cancel appointment of candidate on the ground that 498A or a criminal case is pending
Original Application No. 331/2011
This the 12th day of September, 2012
Honble Mr. Justice Alok Kumar Singh, Member (J)
Honble Sri S.P.Singh, Member (A)
Vineet Kumar aged about 32 years son of Sri Vijay Pal Singh resident of 741, Civil Lines, Kalyani Devi, Unnao.
.
Applicant
By Advocate: Sri P.K. Srivastava
Versus
1. Union of India through Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
2. Director, Central Bureau of Investigation, Govt. of India, 5B, 7th Floor, CGO Complex, Lodhi Road, New Delhi-110003.
3. Staff Selection Commission, through its Chairman, Block No.12, CGO Complex, Lodhi Road, New Delhi-110003.
4. The Regional Director (NR), Staff Selection Commission, Block No. 12, CGO Complex, Lodhi Road, New Delhi-110003.
Respondents
By Advocate: Sri S.P. Singh
(Reserved on 10.9.2012)
ORDER
By Honble Mr. Justice Alok Kumar Singh, Member (J)
This O.A. has been filed for the following reliefs:-
i) to quash the orders dated 12.5.2011 and 17.6.2011 contained in Annexure 1 and 2 to this O.A. holding such orders bad in law, not enforceable and simultaneously directing the opposite parties to appoint the petitioner on the post of Assistant Public Prosecutor in CBI in pursuance of his selection by the Staff Selection Commission (SCC) within a specified time limit that may be allowed by this Honble Tribunal. ii) to issue any other order or direction as this Honble Tribunal deems fit and proper may also be passed along with the costs of the original application.
2. In short, the case of the applicant is that the Staff Selection Commission (SSC) (Respondent No.3) advertised 17 vacancies for selection for the post of Assistant Public Prosecutor (APP) for Respondent No.2 i.e. C.B.I. vide advertisement published in the employment news / weekly news 22-28 August, 2009. Reservation for the relevant categories were also made and the applicant belonging to OBC category, being eligible for the post, participated in the selection and after interview, he was finally selected in the month of July, 2010. He stood at position No. 10 in the select list and second amongst the OBC category candidates. On 12.8.2010, CBI, New Delhi asked for certain documents which were to be sent by registered post or in person latest by 31.8.2010 along with two set of attestation form were also enclosed for filling. The applicant appeared in person on 26.8.2010 in the office of the CBI, New Delhi along with the requisite certificate. Thereafter, when the applicant did not receive any communication and other selected candidates were being given appointment letters for joining by 15.1.2011, he preferred an application under Right to Information Act on 29.4.2011 and received communication dated 20.5.2011 enclosing therewith point-wise reply furnished by CBI on 12.5.2011. The SSC also issued a show cause notice of the same date i.e. 12.5.2011 to the applicant calling upon him to show cause as to why not the candidature of the applicant be cancelled because he has misled the SCC regarding his involvement in the criminal case. He submitted a detailed reply on 25.5.2011 (Annexure -9) saying that the candidature of the applicant has been rejected in an arbitrary manner without application of mind. It has also been clarified that at the time of submission of forms in response to the advertisement , no criminal case was pending against the applicant. At that relevant time, he was staying at Banaras Hindu University pursuing his PHD. During that period, a matrimonial discord brewed up with his elder brother Pradeep Kumar Singh and his wife who were staying in Vikas Nagar, Lucknow. His elder brother filed a divorce suit. On the other hand, his brothers wife lodged an FIR under case Crime No.43/2010 u/s 498-A, 323, 504 and 506 IPC and > Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur falsely roping therein the entire family which included the applicant , his married sister and Bua etc. (Annexure 10). During investigation, the police added Section 324, 292, 294 ,452 IPC also. But the applicant was enlarged on bail on 27.5.2010 (Annexure 11).
3. It has been further pleaded that the police finally submitted charge sheet against all the family members except the father and the Learned CMM, Kanpur took cognizance on 27.5.2010. As already said at the time of filling form, neither there was any requirement by the SSC nor there was any occasion for the applicant to inform the SSC as regard the lodging of FIR in the criminal case. Similarly, at the time of interview held on 23.6.2010 also, whatever information was sought by the SSC were duly supplied. Nothing has been concealed by the applicant at both the above stages. During course of time, some of the family members also challenged the charge sheet u/s 482 Cr PC before the Honble High Court vide Misc. Application No. 23046/2010 and the proceedings of the lower court were stayed. Thereafter, the matter was sent to the mediation centre for amicable resolution. The efforts however failed and ultimately the above case was also dismissed on 8.3.2011. After the applicant was declared successful by the SCC and recommended for appointment in response to the letter dated 12.8.2010, it was for the first time the applicant had to submit attestation form to CBI answering certain queries as mentioned at point No.12 as under:- 12 a) Have you ever been arrested? Yes/No
b) Have you ever been prosecuted? Yes/No
c) Have you ever been kept under detention? Yes/No
d) Have you ever been bound down? Yes/No
e) Have you ever been fined by a court of law? Yes/No
f) Have you ever been convicted by a court
of law for any offence Yes/No
g) Have you ever been debarred from any
Examination or rusticated by any University? Yes/No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination? Yes/No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes/No
j) detention /fine/conviction/ sentence
Punishment etc and /or the name of the
Case pending in the Court/ university
Educational authority etc. at the time of
Filling up this form? Yes/No
Note 1) Please also see the WARNING at the top of this attestation form.
2) Specific answer to each of the question should be given by striking out Yes/No as the case may be.
The warning at Point No. 1,2 and 3 mentioned in the said attestation form are being berating been reproduced herein:-
1. The furnishing of false information of suppression of any factual information in the application for would be a disqualification and is likely to render the candidate unfit for employment under the Govt.
2. If detained, arrested prosecuted bound down, fined, convicted debarred acquitted etc. subsequent to the completion and submission of this form the detail should be communicated immediately to the Union Public Service Commission or the authority to whom the attestation form has been sent earlier as the case may be, failing which it will be deemed to be suppression of factual information.
3. If the act that information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.
4. The applicant answered the aforesaid questions correctly including about the criminal case and he also gave complete description of the criminal case at the foot of the point No. 12. Thus at no point of time, he concealed any thing either from the CBI or from the SSC. Reference has also been made to para 2.2.7 of the chapter 2 of the Manual of CBI (Admn.) of Govt. of India, New Delhi which provides for verification of character and antecedents. It is also provided that even if a person has been convicted after obtaining specific approval of the Govt. if appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, he may be appointed. In the case of the applicant, he has not been convicted and there is no provision in the rules including the CBI manual that selection of a candidate may invite ineligibility in case a criminal case is found to be pending. Still his candidature has been canceleld without any application of mind . Hence this O.A.
5. The O.A. has been contested by filing a detailed CA on behalf of the CBI (R.No.1). It has been admitted that the applicant was finally selected but the SSC while recommending the names of the candidates for appointment in the CBI had advised to verify their character/antecedents before issuing offer of appointment. The applicant was therefore, directed to furnish the required information in the attestation form for verification of his character/ antecedents vide letter dated 12.8.2010. The applicant filled the attestation form under his signature. In column No.12 of the Attestation form, he has furnished information as under:- a) Have you ever been arrested? Yes
b) Have you ever been prosecuted? No
c) Have you ever been kept under detention? No
d) Have you ever been bound down? No
e) Have you ever been fined by a court of law? No
f) Have you ever been convicted by a court
of law for any offence No
g) Have you ever been debarred from any
Examination or rusticated by any University
or any other educational authority/
institution? No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination/ selection? No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes
6. It has been also admitted that the applicant has further mentioned that a case Crime No. 43/2010 dated 21.2.2010 u/s 498-A/323/504/506 IPC and > of DP Act has been registered against him in the Police Station Kidwai Nagar, Kanpur. It was further mentioned that Honble High Court has referred the matter to the mediation centre and proceedings has been stayed. Based on the information furnished by the applicant, the District Magistrate, Unnao was requested vide letter dated 6.9.2010 for verification of character /antecedents of the applicant. He sent his report on 31.12.2010. Similarly, S.P. Unnao also sent his report on 5.10.2011 mentioning about the pendency of the above criminal case. The verification about the conduct of the applicant was also made by the CBI itself through its Dy. S.P. who reported on 28.9.2010 that the charge sheet dated 6.6.2010 under the aforesaid sections has been filed, which is under trial. After examining the above reports, it was found that the applicant is involved in the above criminal case which is still pending . Though he has not been convicted, it was decided not to appoint him in the organization. Accordingly, his dossier was returned to SSC vide letter dated 3.2.2011 followed by letter dated 15.2.2011 requesting to sponsor another candidate of OBC category in his place. The applicant was also informed about this vide letter dated 12.5.2011 with reference to his application dated 29.4.2011 under RTI. Thereafter, SSC issued a show cause notice dated 12.5.2011 to the applicant . He submitted his reply to the SSC on 25.5.2011. After due consideration of the reply, the SSC vide its letter dated 17.6.2011 had cancelled the candidature of the applicant.
7. The applicant also filed Rejoinder Reply reiterating his averments contained in the O.A. and also saying that now even the criminal case against him and his family members has been decided on 29.3.2012 and all the accused along with applicant have been acquitted. After this judgment, no appeal has been filed in the higher court of law. Therefore, the applicant deserves to be appointed in pursuance of his selection by the SSC.
8. No Counter Reply has been filed on behalf of SSC which has passed the impugned order dated 17.6.2011 (Annexure -2).
9. We have heard the learned counsel for parties and perused the material on record.
10. Before entering into the merit of the case, certain facts are required to be mentioned which are either admitted or not denied from the other side. It is worthwhile to mention that out of the four respondents, including Union of India, CBI and SSC, only CBI has filed Counter Reply.
11. Admittedly, the applicant got finally selected by the SSC for the post of Assistant Public Prosecutor for CBI in response to the advertisement published in the employment news/weekly news 22-28 August, 2009. He stood at position No.10 in the select list and second amongst the OBC category candidates. On 12.8.2010, the CBI, New Delhi asked for certain documents which were required to be sent by registered post or to be made available in person latest by 31.8.2010. Those documents also included two set of attestation forms which were to be filled by the applicant. The applicant personally submitted those forms/ documents on26.8.2010 in the office of the CBI, New Delhi.
12. Earlier, in response to the advertisement in question, the applicant had filled the form (Annexure 5) on 21.6.2010 showing him a practicing advocate in Unnao Bar Association from 11.1.2003. This form consisted of 16 columns which we have gone through but did not find any column requiring to give any particulars of involvement in any criminal case. Similarly, the typed copy of the advertisement in question, which has been brought on record also does not show any such requirement. It is also noteworthy that till that relevant time, only an FIR has come into existence in case Crime No. 43/2010 dated 21.2.2010. But any charge sheet/ criminal case was not pending. It has also not been denied that at that time, the applicant was staying at BHU pursing his PHD and during that period , a matrimonial discord brewed up with his elder brother and elder brothers wife who were staying in Vikas Nagar, Lucknow. His elder brother filed a divorce suit. On the other hand his elder brothers wife lodged an FIR under case Crime No. 43/2010 U/Ss 498-A, 323, 504 and 506 IPC and > Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur. It is a matter of common knowledge that in such unfortunate matrimonial disputes, cases are lodged from both sides and from the side of the wife, when an FIR is lodged, allegation of harassment on account of non-fulfillment of demand of dowry etc. are usually made not only against the husband but also against all the family members and some times even against married sisters etc. as has been done in the present case also. The applicant was however, released on bail. Thus, at the time of filling form, neither there was any requirement in the form or in the advertisement issued by the SSC nor there was any occasion for the applicant to inform the SSC in respect of lodging of FIR in a criminal case. For the first time, after his final selection, such information was sought vide letter dated 12.8.2010 in the shape of attestation form at point No.12. It is also not disputed that the applicant furnished correct information in column No.12. The relevant sub columns are (a) and (i) : a) Have you ever been arrested? Yes
i) Is any case pending against you
in any Court of law at the time of filling
up this Attestation form? Yes
13. In fact these replies have been categorically admitted in para 8 of the counter reply filed by the CBI itself. Not only this, it has also been fairly admitted in the same paragraph of Counter reply that the applicant has also gave particulars such as case Crime No. 43/2010 dated 21.2.2010 U/Ss 498-A, 323, 504, 506 of IPC and > of D.P. Act Police Station, Kidwai Nagar, Kanpur and that the Honble High Court has referred the matter to the Mediation Centre and proceedings have been stayed and that the applicant was granted bail by the CMM Court, Kanpur. In the show cause notice issued on 12.5.2011 (Annexure -8), it is mentioned as to why the candidature may not be cancelled as the candidate has mislead the Commission regarding his involvement in criminal case. But in fact, there does not appear to be any concealment or act of misleading on the part of the applicant because admittedly, he has revealed the relevant information with full particulars in response to the relevant columns of the attestation form as mentioned above. Probably, that was the reason that while passing the impugned order dated 17.6.2011 (Annexure -2), cancelling the candidature of the applicant, the ground of concealment or misleading has not been mentioned. Instead it has been simply said that on account of his involvement in the said case, it has been decided not to appoint him in the CBI as APP. We would come to that question hereinafter. But we find that the explanation/ reply was sought unnecessarily and wrongly from the applicant by means of show cause notice dated 12.5.2011 that he has mislead the Commission regarding his involvement in the criminal case, whereas he had furnished all the required information correctly in response to para 12 of the attestation form as already mentioned. This becomes further clear from the reply submitted by the applicant in response to the above show cause (Annexure -9). It is a detailed reply comprising 10 paragraphs. The relevant paragraphs of the reply are as under:- 4. It so happened there after that a criminal case wide CR Case No. 43/2010/ U/S 498-A, 323, 504, 506 IPC and > D.P.Act has been registered at police station Kidwai Nagar, Kanpur (U.P. on 21.2.2010 on the complaint of Smt.Meera Devi. The said Smt. Meera Devi is wife of elder brother of the applicant namely Pradeep Kumar Singh. Entire family of the applicant and also certain distant relatives has been roped in the said criminal case which is essentially the matrimonial dispute between my elder brother and his wife. The Axe has also fell upon the applicant only because he is the younger brother of husband of said Smt.Meera Devi as he has also being named in the said case.Teh copy of the FIR enclosed as Annexure -1.
5. The applicant came to know of such FIR only on 14.3.2010 when he was arrested while he was staying in Lucknow. The applicant was released on bail wide order dated 15.3.2010 by CMM, Kanpur . Copy is enclosed as Annexure No.2. Mother was also named in the FIR was released on bail on 15.3.2010 the elder brother was also released on bail on 20.3.2010. I.O. supplemented the charge with sections 324, 292, 294, 452 on 17.3.2010. For which the applicant was released on bail 27.5.2010 by the CMM Court, Kanpur. Rest of the person named in FIR sought stay on their arrest by preferring the writ petition .Wherein the Honble High Court, Allahabad wide order dated 29.3.2010 stayed the arrest of remaining.
6. The applicant received the interview letter from SSC conveying the interview date fix on 23.6.2010.The applicant was required to submit the biographical data at the time of interview. The format was sent along with the interview letter. The applicant appeared in the scheduled interview on 23.6.2010 and also submitted the biographical data. It is pertinent to mention that there was no requirement as per the information sought in the said biographical data to bring in the notice of the SSC as to any criminal case which could have been lodged/ instituted after the submission of the application form till the date of interview. The applicant was neither only inquired in this behalf by the SSC in all bonafides and good faith. He submitted the biographical data without any concealment of information , he was expected to fill in prescribed bio data form.
7. The applicant was declared successful when the result was declared in July/ August, 2010.
8. Thereafter, the applicant received letter dated 12.8.2010 from the CBI, HO , New Delhi where under he was required to submit certificate in support of date of birth, education certificate, caste certificate in original before the CBI by 31.8.2010. Two attestation form fully filled by the candidate was also required to be submitted by 31.8.2010, attestation form was also enclosed with this letter.
9. The applicant appeared before the CBI, H.O. on 26.8.2010 for the purpose of verification of his certificates and submissions of attestation form in response to the letter of CBI. The applicant submitted the attestation form the said form contained every detail of which the applicant was required to make disclosure at point No.12, therein the applicant was required to answer various questions by putting in yes/ no option, a few of which questions pertaining to the arrest / prosecution conviction criminal case etc. the applicant made true and correct disclosure to every question wide point no. 12 of the form. The applicant in all bonafide and with a view to give complete information regarding the criminal case in which he was unfortunately found involved by writing details of the same in his own handwriting at the foot of the page no. 4 below the point No.12 (i) .At the point of time, Honble High Court , Allahabad ordered dated 15.7.2010 the dispute seems to be between husband and wife, matter was referred to mediation centre and further proceedings of criminal case No. 43/2010 was remain stayed. The copy of the order is enclosed as Annexure No. 3. It is also relevant to mention that it was not required in the attestation form that SSC is also to be informed by the candidate as regard to lodging of criminal case.
10. The applicant never concealed anything at any point of time either from the SSC or from the CBI. The application form submitted to the SSC was duly filled in and complete in all respect. Since no case was lodged against the applicant by that time, there was no occasion of any concealment on the part of the applicant. Again there was no requirement in the application form that SSC has to be kept informed regarding future involvement in criminal case, subsequent to submitting the application form neither was there any column in biographical data sent by the SSC along with the interview letter. Requiring the applicant to disclose the criminal case lodged after submitting the application form till the date of interview. Again there was no occasion for the applicant to conceal anything from the SSC when he was not asked for the same by the SSC, in the first place. For the first time, after the submission of application form in connection with the present requirement process the applicant was required to disclose the criminal case pending against the applicant when he had to submit the attestation form sent by the CBI and where in the applicant mentioned everything without even iota of any concealment .The applicant did never have any point of time nor will in future any intention to mislead either the SSC or CBI. In view of the above, it is most humbly requested the candidature of the applicant may not be cancelled. The applicant sincerely desires to serve the institution of the CBI with complete determination and dedication and if he is given appointment on the said post he would ever feel obliged.
Applicant
Sd/-
25.5.2011
14. Now, we come to the impugned order of cancellation of candidature of the applicant which has been passed after considering the above reply comprising 10 paragraphs running into four pages. In comparison to the above, the impugned order is very short which consists of only seven lines and there is not even a whisper about the main and sole point i.e. the applicant has concealed or mislead the Commission about his involvement ina criminal case. It appears that when the Commission did not find any act of misleading or concealment, then they left that point and instead passed an order saying that on account of his involvement in the criminal case, it has been decided not to appoint him. The detailed explanation / reply submitted by the applicant has not been discussed at all. Thus, there does not appear to be any sequence or proximity or coherency between the show cause notice, the detailed reply submitted by the applicant vis-a-vis the above order passed by the SSC. There also does not appear any application of mind in passing the impugned order. It is also not a reasoned order because none of the points raised by the applicant in his reply have been dealt with. Not only this, there also does not appear to be any rule or provision in the CBI manual or elsewhere as claimed by the applicant that a person duly selected by the SSC shall be held ineligible or unsuitable for appointment in the CBI merely because of pendency of a criminal case. There was also no direct involvement of the applicant in this case. Being husbands brother (Devar), he along with his married sister and Bua who were living separately, were also implicated. It was also not a case of moral turpitude or any serious offence. Reference has also been made in the pleadings contained in O.A. to para 2.2.7 of the chapter 2 of the Manual of CBI (Admn.), Govt. of India, New Delhi which provides for verification of character and antecedents. It says that even if a person has been convicted then after obtaining specific approval of the Govt. , if appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, he may be appointed. In the present case, what to say of conviction, the applicant has been finally acquitted on 29.3.2012 and no appeal has been filed in the higher court of law. In the present case, the SSC has not even filed any Counter reply. It is only the CBI who has filed Counter Reply. Thus, the author of the impugned order i.e. the SSC (R-3) has not even dared or cared to controvert the pleadings of the O.A. Therefore, as against the SSC, the pleadings of the O.A. stand uncontroverted and admitted.
15. From the side of the applicant, reliance has been placed on the following four case laws:-
(1) Commissioner of Police and others Vs. Sandeep Kumar (2011) 4 SCC 644. Before Markandey Katju and Gyan Sudha Misra, JJ. The case in hand appears to be substantially covered by the preposition of law laid down in this case law. In the above case, in the application form itself, an information was sought as to whether the applicant has been arrested, prosecuted, kept under detention, convicted by any court of law etc. But the candidate i.e. Sandeep Kumar wrongly answered in negative , though he was involved in a case U/Ss 325/ 34 IPC. The selection was for the post of Head Constable (Ministerial). In the case before us, the selection is for APP in CBI wherein no such information was sought at the time of filing of form and he did neither conceal any information nor give any wrong information. Coming back to the case of Sandeep Kumar (Supra), after applying in February, 1999, he was qualified in all the test for selection. Then on 3.4.2001, he filled the attestation form, wherein for the first time, he disclosed that he had been involved in a criminal case with his tenant which later on has been compromised in 1998. Therefore, in August, 2001, a show cause notice was issued to him as to why his candidature may not be cancelled on account of concealment of the fact that he was involved in the above criminal case and for making a wrong submission in his application form. He submitted his reply but the authorities were not satisfied and canceled the candidature of the applicant in May 2003. Sandeep Kumar filed a petition before CAT, which was dismissed but the Honble Delhi High Court allowed it. Thereafter, an appeal was filed by the Commissioner of Police. The Honble Apex Court did not find any substance in the appeal and therefore upheld the judgment of Delhi High Court. The relevant paragraphs are as under:- 8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character Jean Valjean in Victor Hugo’s novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed: I come now to Mr Watkin Powell’s third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to showand to show to all students everywherethat this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this landand I speak both for England and Walesthey strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bardsof the poets and the singersmore melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrongvery wrongin going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed. (Vide Morris v. Crown Office1, QB at p. 125C-H.) In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
13. For the reasons given above, this appeal has no force and it is dismissed. No costs.
As said above, the case in hand is substantially and squarely covered by the above case law.
2. Ram Kumar Vs. State of U.P. and others reported in 2011 (3) LBESR 544. Before R.V. Raveendran and A.K. Patnaik, JJ. This case has been decided by the Honble Apex Court in August 2011 i.e. after about 4 months of the decision of the above case of Commissioner of Police (supra) which was decided in March 2011. In this judgment, the aforesaid case of Commissioner of Police (supra) was also cited and considered. From the other side, reliance was placed on the judgment of Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437, in which the case under sections 323, 341, 294, 506-B read with Section 34 IPC was pending and this material was suppressed in the attestation form. The criminal case was however, withdrawn. Appointment in question was on the post of Physical Education Teacher in Kendriya Vidyalaya Sangathan. On these facts, the Honble Apex Court held in that case that he was to serve on the said post and he could not be suitable for that post because the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. Therefore, his dismissal from service was not interfered with. On the other hand, the facts of the case of Ram Kumar (supra) were that the post in question was of a constable and the applicant had submitted an affidavit dated 12.6.2006 to the recruiting authority in the proforma of verification roll. In para 4,he had stated that no criminal case was registered against him. He was selected and appointed as male constable and deputed for training. Thereafter, Police Station, Jaswant Nagar, Etawah submitted a report about pendency of criminal case under Sections 324/323/ 504 IPC. Subsequently the criminal case was disposed of on18.7.2002 and the appellant was acquitted. Along with the above report of the police station, the order of acquittal was also enclosed. The said report was however, submitted to the SSP, Ghaziabad who by order dated 8.8.2007 cancelled the order of selection on the ground that he has submitted an affidavit stating wrong facts and concealed correct facts and his selection was irregular and illegal. Aggrieved by this order, a writ petition was filed before a single judge who dismissed it on 30.8.2007, in the light of the judgment of Kendriya Vidyalaya Sangathan (supra). Then a special appeal was filed before the Division Bench which has also dismissed it on 31.8.2009. After considering all the facts and circumstances, the Honble Supreme Court observed as under:-
7. We have carefully read the Government Order dated 28.04.1958 on the subject Verification of the character and antecedents of government servants before their first appointment and it is stated in the Government order that the Governor has been pleased to lay down the following instructions in supercession of all the previous orders:
The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point.
8. It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
9. In the facts of the present case, we find that though Criminal Case No.275 of 2001 under Sections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.
10. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment.
In respect of Kendriya Vidyalaya Sangathan (supra), the Hnble Apex Court observed that the facts of that case were therefore, materially different from the facts of the case of Ram Kumar (Supra). Therefore, the Honble Apex Court allowed the appeal and set aside the appeal of Learned Single Judge and Division Bench of the High Court of Allahabad and quashed the order passed by the SSP, Ghaziabad with a direction that the applicant will be taken back in service within a period of 2 months from the date of receipt of order. But he will not be entitled for any back wages for the period he has remained out of service. Thus, this case is applicable in the present case before us with full strength.
3. Awadhesh Kumar Sharma Vs. Union of India and others reported in (2000) 1 UPLBEC 763. Before M. Katju and Shitla Prasad Srivastava, JJ. According to the facts of this case, the petitioner applied for appointment as Mazdoor in Central Ordinance Department, Kanpur and he was finally selected for the post vide letter dated 7.1.1989.However, he did not mention about his involvement in a criminal case under Sections 147/323/352/504 IPC which was later converted into Section 307 IPC. Hence, his selection was cancelled. However, in the criminal case, he was acquitted vide judgment and order dated 7.7.1989. Thereafter, he made representation that since he has been acquitted in the criminal case, he may be permitted to join duty. But he was informed by letter dated 12.10.1990 that he can be considered as a fresh candidate as and when vacancies are released. He then filed a petition before the CAT which was dismissed and the review application was also dismissed. Then he filed writ petition. The Division Bench of our High Court opined that when the petitioner was acquitted, it has to be deemed in law that he was never involved in any criminal case. It is settled law that every statute ordinarily operates prospectively unless expressly made retrospectively whereas every judgment of a Court of law operates retrospectively unless expressly made prospectively. The only material against the petitioner was the criminal case in which he was acquitted. Therefore, the Honble High Court mandated that since he has been selected, he must now be allowed to join duty. The impugned orders dated 26.2.1997 and 24.12.99 were quashed and the mandamus was issued to appoint the petitioner within 6 weeks in accordance with law in pursuance of selection letter issued in his favour earlier. This case law also applies in the present case with full force.
4. Harendra Panwar, Constable Vs. State of U.P.and others reported in 2012 (2) LBESR 94 (All)- Present : Sunil Hali, J. In this case also, pursuant to the advertisement, the petitioner applied for the post of Constable for which he was selected from District Etawah and was appointed as a Constable in the Police Department on 26.11.20005. After completion of the post recruitment training the petitioner was posted as Constable in District Etawah in June 2006. On 18.8.2007, his selection was cancelled by the respondent No.2 for the reasons that he did not disclose that a case Crime No. 32 of 2005 under Sections 147, 148, 149, 307, 504 and 506 IPC at P.S. Kandhala, District- Muzaffar Nagar was against him. The Honble High Court while referring to G.O. dated 28.4.1958, providing for verification of character and antecedents of the Govt. servants as a pre-requisite for being appointed as a Govt. servant, observed that character and antecedents of the appointee shall have to be verified by having an over view of his personality in respect of his moral character and integrity. This is done in order to enable the appointing authority to draw its satisfaction as to whether a person is fit to be appointed to the said post. The Honble Court found that in the G.O. no such obligation is caste on the appointee to disclose any such information regarding his involvement in a criminal case. But in column 11 of the form, it was required to inform as to whether the petitioner has been convicted in any case or not. The Honble High Court then observed that in the case before it , the petitioner was not convicted in any case. Therefore, withholding of an information which was not required to be given by the petitioner could not have become a ground for cancellation of his appointment. The Honble High Court specifically observed that it is trite in law that mere involvement in a criminal case is not an impediment for appointment to the post of a constable. Moreover, after a person has already been acquitted from the criminal charge, the stigma attached to a person is obliterated. The Honble High Court observed that while recording its satisfaction, the appointing authority may on verification of the conduct, antecedents and character come to a conclusion that the over all profile of the petitioner is not conducive for his appointment. This will depend upon many factors including the reputation of the person, his behaviour in the public, his integrity and morality etc. The notes attached to column 3 of the G.O. dated 28.4.58 itself provide that a conviction need not of itself involve the refusal of a certificate of good character. Stands of conviction should be taken into consideration if it involves moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means a Government. The case of Ram Kumar (supra) was also referred, which was followed by the Honble High Court saying that in the order before it also no satisfaction has been recorded by the appointing authority that the petitioner is not suitable to be appointed with reference to the nature of alleged suppression and the nature of criminal case. Therefore, the Honble High Court allowed the writ petition and quashed the impugned order with the direction to the respondents to take back the petitioner in service within a period of one month with all consequential benefits except back wages for the period he remained out of service.
16. From the side of the respondents following case laws have been relied upon:-
(1). State of West Bangal and Others Vs. SK. Nazrul Islam (2011) 10 SCC-184. In this case law there was concealment of fact regarding antecedents. A criminal charge sheet had already been filed against him. The authority i.e. Police Directorate, West Bangal therefore, did not appoint him as a constable. He went to the Tribunal which declined any relief. The Honble High Court however directed to issue appointment letter subject to final decision of pending criminal case. The Honble Apex Court held that no mandamus could have issued by High Court because a criminal case was pending. It was also observed that the person cannot be held to be suitable in the police till he has not been acquitted. The above case law is not applicable here because of different facts and circumstances. Admittedly, there is no concealment of facts regarding antecedents in the case before us. Moreover, here the applicant has already been acquitted. Therefore, this case law is not applicable in the present case.
(2). Arun Kumar Yadav Vs. GNCT of Delhi through Chief Secretary, Delhi Secretariat and Others , O.A.No.2339 of 2008 (Swamynews-52-53)—In this case there was concealment of involvement in a criminal case, though he was acquitted. The Tribunal held that though the applicant was acquitted but the fact remains that he concealed this fact. As said above in the case before us however, there is no such concealment. Therefore this judgment of CAT Principal Bench (decided on 12.8.2010) has also no application in the present matter. Moreover, this was decided on 12.8.2010 by the Principal Bench whereas subsequently in March, 2011 the Honble Apex Court has decided the case of Commissioner of Police (Supra) in which similar question was involved as already discussed on page 15 of this order. We are therefore bound to obey the preposition of law laid down in the above case of Commissioner of Police, being the law of land. Further, from the perusal of the electrostat copy of this judgment as published in Swamynews as filed on behalf of respondents, it appears that following three judgments were also considered by the Principal Bench CAT in that case. We obtained these case laws also from our CAT library and the same were also perused by us. We would like to make a brief mention of these judgments also as under:- (1). Union of India and Others Vs. Bipad Bhanjan Gayen (2008) 11 SCC-314.
(2). R. Raqdhakrishana Vs. Director General of Police and Others (2008) 1 SCC-660.
Both these cases do not apply in the present case because of different facts. In both these cases wrong information was disclosed by the candidate which is not a case here.
(3). Delhi Administration Through its Chief Secretary and Others Vs. Sushil Kumar (1996) 11 SCC-605—According to facts of this case appointment was denied on the ground of undesirability because on verification it was found that his appointment to the post of constable was not desirable. The involvement of the applicant was under Section-304 IPC, 324 read with 34 IPS, which was very serious offence. He was however acquitted. But, the appointing authority took a view that in the background of the case, it was not desirable to appoint him as a constable to a disciplined force. The Apex Court found that appointing authority has rightly focused this aspect and found him not desirable to appoint him to the service. But, in the present case neither any such consideration has been made nor any such order has been passed by the appointing authority. Instead the impugned order has been passed by the Commission. However, that order has no connectivity with the show cause notice as already discussed. The applicant was asked to show cause in respect of alleged concealment of his involvement in the criminal case. But the order cancelling his candidature was passed on the ground of his involvement and not concealment. The sole point of concealment was thus given up. Further, the Commission has not even defended the order passed by it. The Commission has not filed any Counter Affidavit refuting the averments and pleadings of the applicant contained in O.A. Moreover, in the case before us the offence is of not of a serious nature. It was an outcome of a matrimonial dispute and allegations were of harassment on account of non-fulfillment of demand of dowry wherein, the applicants brother-in-law (Devar), was also implicated though, he was living separately in a different district/city making preparations for appearing in competitive examinations as per uncontroverted pleadings. Even, married sister and Bua living separately were also implicated as is normally done these days in such cases. Lastly the above is a case law of 1996. During last 15-16 years, the law has further developed and we do not have any justification to ignore the recent and two consecutive case laws on this point of Honble Apex Court in the above cases of Commissioner of Police (Supra) and Ram Kumar (Supra), both of 2011. Therefore, the respondents cannot derive any benefit from the above case law. A photostat copy of a letter dated 29.8.2012 of CBI (Administration) showing internal correspondence has also been filed alongwith the above case law. In fact no cognizance can be taken of such a paper at this stage because, it is not a part of pleading. It has been filed after closure of final arguments. Still, we have perused it. It is mentioned in this letter that as per verification report dated 14.8.2012 the applicant has been acquitted in the relevant criminal case and the limitation period of filing an appeal has also expired. Further, it is mentioned that another case no.757/2010 under Section-12 of Domestic Violence Act is pending in the Court of Metropolitan Magistrate, Kanpur in which the applicant is also one of the accused. Therefore, a request has been made vide this letter to bring it to the notice of learned counsel for the respondents to apprise this Tribunal before passing final orders. As said above this subsequent fact has not been pleaded in the counter affidavit. This Tribunal cannot travel beyond the pleadings, which are on record. This alleged case also does not find place either in show cause notice or any documents on record including the impugned order of cancellation of candidature. Otherwise also, it appears to be an offshoot of same matrimonial dispute giving rise to above main criminal case which has already ended in acquittal. It is a petty case of similar nature under different Act. It has no significance after acquittal in the main case.
17. Thus in the case before us, firstly there is no concealment at all in respect of involvement in the criminal case. Admittedly the applicant had furnished all the required information with all the particulars. Therefore, the show cause notice in respect of alleged concealment was ab-anitio wrong and against the record and when this fact was specifically pointed out in the reply it was not dealt with at all in the impugned order. Instead the impugned order was passed on a new ground i.e. merely on the ground of involvement in a criminal case, though it has been nowhere provided either in any law or in the Manual of CBI (Admn.) or in the conditions of the relevant advertisement that candidature or selection can be cancelled on this ground. On the converse in para 2.2.7 of the chapt. 2 of the Manual of CBI (Admn.) (as pleaded in O.A. (which is not controverted in C.A.) that even if a person is a convict, he can be appointed after obtaining approval of the Govt., if appointing authority feels that there are redeeming features and reasons to believe that the person has cured himself of the weakness, if any. In the present case, such facts were not considered at all and there was no application of mind by the appointing authority on these points. In fact, appointing authority has not passed any order whatsoever. After receiving of verification report the dossier was admittedly sent from CBI to the Commission which issued show cause notice dated 12.5.2011 and then impugned order dated 17.6.2011 was passed by the Commission cancelling the candidature of the applicant. But even the Commission was not sure as to who took the actual decision. It is a typical order which has been passed by the Commission saying the CBI has decided not to appoint him and at the same time, it is mentioned that Commission has also decided the same. But there is neither any separate decision of the CBI nor any such joint decision of both of them on record. Secondly, as has been observed in the cases of Ram Kumar (Supra ) and Harendra Panwar (supra) in the present case also, no such satisfaction has been recorded by the appointing authority that the applicant was not fit or suitable to be appointed to the post in question. Thirdly, the applicant has been ultimately acquitted in the criminal case and no appeal has been filed which, as laid down in the case of Awadhesh Kumar Sharma (Supra), would mean that he was not involved in any criminal case on the alleged date because the judgment of acquittal in his favour operates retrospectively. Fourthly, it is trite in law that mere involvement in a criminal case is not an impediment for appointment and after acquittal ,the stigma attached to a person is obliterated.
18. In the conspectus of the discussion made hereinabove and having regard to the preposition of law laid down by the Honble Apex Court in the aforesaid judgments, this O.A. is partly allowed. The impugned order dated 17.6.2011 cancelling the candidature of the applicant (Roll No. 0901040793-OBC) is hereby quashed. The other order which has been impugned dated 12.5.2011 is in fact an information furnished under Right to Information Act and as such in respect of it neither any order can be passed nor it is required to be passed. In the follow up action, the opposite parties are directed to appoint the applicant on the post in question in pursuance of his selection, expeditiously. No order as to costs.
(S.P.Singh) (Justice Alok Kumar Singh)
Member (A) Member (J)
HLS/-
My father is very old. Can I remove his name from case?
Your options are as below…
1. If charge sheet is still not filed, then police can file “B” report for your father. For this you have to influence the police by the way of bribe, influence etc
2. If charge sheet is already filed then try for exemption under 205 of crpc
205. Magistrate may dispense with personal attendance of accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of’ the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of’ the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
3. You can also file an application under 227 of crpc for discharge if the case in the court of session or under 239 of crpc if the case in front of magistrate. Read below judgment to understand about discharge under 227.
http://498amisuse.wordpress.com/2010/09/22/landmark-judgement-sc-scope-of-discharge-under-crpc-2227/
Under 239 crpc slightly different stand is taken but principals are same.
4. You can also prefer an application under 482 of crpc in high court or under article 226/227 of constitution of India, as the case may be for Quash. Even if the quash did not succeed, you can ask for a prayer to High Court for a prayer to exempt father citing his age.
5. If nothing works then atleast you can move application for temporary exemption on every hearing date and if the magistrate is liberal then atleast 2-3 dates your father can skip.
Chargesheet delayed is justice denied, FIR Quashed: HC
The killing of a wild sambar deer in 1998 has had to be buried 15 years on with the death of the veterinary doctor who identified the animal. What this means is that the six of the accused – the seventh one is dead – will get away scot free, thanks to the forest department sleeping for 12 years before filing a chargesheet.
Pawan Chandra Shetty, counsel of Prakash Shetty, the accused
Kids are not things, HC tells warring families but advice falls on deaf ears
A division bench of the High Court on Monday ruled that two minor children would live with their father and their maternal grandparents would have the rights to only visit them. That should have been the end of the case. However, the two families were involved in an ugly spat outside the court and almost came to blows in the presence of the children. Despite the best efforts of their advocates the warring parties left the court on a bitter note.
SC lawyer, but still had to wage a 12-year legal war to get back property
He is a senior Supreme Court lawyer who had fought the Indira Gandhi assassination case and the son of former Election Commissioner G V G Krishnamurthy. Yet, it took G Venkatesh Rao 12 long years to get a tenant evicted from his property in Indiranagar. The litigation proved costly, for Rao spent Rs 35 lakh, fought 15 cases and lost Rs 1.5 crore in rents and fell into debt.
Delhi HC: CrPC 125 is often being misused by greedy women
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 3948/2008
Date of Decision: 18.05.2012
SANTOSH MALHOTRA ….. Petitioner Through: Ms. Nandita Rao, Advocate.
versus
VED PRAKASH MALHOTRA AND OTHERS …. Respondents Through: Ms. Arati Mahajan,
Advocate.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition under Section 482 CrPC assails the order dated 23.8.2008 of ASJ passed in criminal revision filed by the petitioner against the order of the M.M. dated 8.3.2007.
2. The petitioner is the wife of the respondent No. 1 and the mother of the respondents No. 2 & 3. She filed a petition under Section 125 CrPC against them seeking maintenance. In the said case, the learned M.M. declined the request of the petitioner for grant of interim maintenance vide his order dated 8.3.2007. The said order was taken in revision by the petitioner in the court of Additional Sessions Judge, who vide the impugned order dated 23.8.2008 granted interim maintenance to the petitioner against her husband (respondent No. 1) at the rate of Rs. 2000/-
Crl.M.C. 3948/2008 Page 1 of 8 per month from the date of the filing of the application. The petitioner has challenged the said order of the ASJ in the present petition and seeks enhancement of compensation against her husband (respondent No.1) as also compensation against her sons i.e. respondents No. 2 & 3.
3. It is noted that all the grounds which have been taken in the present petition under Section 482 CrPC are the same which were taken by the petitioner in the revision petition before the ASJ. Practically, the present petition though, filed under Section 482 CrPC is nothing, but a second revision petition against the order of the M.M. Though, the second revision petition was not maintainable, but having regard to the fact that no findings have been recorded by the ASJ qua the respondents No. 2 & 3 i.e. the sons of the petitioner and respondent No.1, I deem it a case warranting exercise of power of this court under Section 482 CrPC.
4. Before proceeding further, it may be noted that the petitioner and the respondent No. 1 are residing in the same house. This house is three storied comprising of ground, first and second floors. It is undisputed that both the parties are cooking and eating separately. Undisputedly, the respondent No.1 is meeting all the household expenses such as water, electricity charges, maintenance of house, payment of house tax etc. It is also undisputed that respondent No.1 is a person retired from Air India and also that the petitioner owns a house at Mumbai. It is also admitted case that under Section 24 of Hindu Marriage Act, the petitioner was granted Rs. 3500/- per month maintenance from the respondent No. 1 vide order dated 25.11.2009 of ADJ. In CM (M) No. 357/2010, this court enhanced the maintenance to Rs. 4500/- per month and undisputedly, the Crl.M.C. 3948/2008 Page 2 of 8 same is being paid by the respondent No. 1 to the petitioner. It is further undisputed that both the respondents No. 2 & 3, who are the sons of the petitioner and the respondent No.1 are not residing with them in the said house. Respondent No. 2 Prem Prakash is residing at Australia, while respondent No.3 Anil is living sometimes with his sister at Mumbai and sometimes in rented premises.
5. Having noted above the undisputed and admitted facts, the petitioner’s case as set out is that the maintenance of Rs. 4500/- per month is not sufficient and need to be enhanced. She has alleged her husband to be getting Rs. 10,000/- per month as pension and Rs. 15,000/- from the banks as interest on deposits and further, a sum of Rs. 3000/- per month from insurance. With regard to her son Prem Prakash (respondent No.2), who is residing at Australia, she alleged his income to be more than Rs. 2 lakhs per month. Regarding her son Anil (respondent No.3), she alleges him to be working at Mumbai and earning Rs. 30,000/- per month.
6. On the other hand, the respondents pleaded that the petitioner has F.D. to the tune of Rs. 10 lakhs from which, she was getting fixed interest @ Rs. 15,000/- per month. It is alleged that she owns a property at Mumbai, which is lying vacant and can be let out by her. The respondent No. 1 denied that he was earning Rs. 15,000/- per month as interest from bank. It is pleaded that he was getting only Rs. 5000/- per month on the investments made by him in addition to the sum of Rs. 3000/- which he was getting from LIC.
Crl.M.C. 3948/2008 Page 3 of 8
7. I have heard learned counsel for the parties and perused the impugned judgment and also the records.
8. This is a case of really one of the unfortunate family of scattered members. All the four members are living their independent lives. The petitioner seems to be trying to abuse the benevolent provisions of Section 125 CrPC. This Section is designed to help the needy and not the greedy. It is not meant for settling the personal scores, but it is experienced that it is often being misused and the present case is an instance. Here is a lady who owns a house at Mumbai, but is neither prepared to let it out on rent nor give it to her son who is living at the mercy of his sister and sometimes, in some rented house at Mumbai. Though, the petitioner has denied to be having F.D. of Rs. 10 lakhs in the different banks, but she, in any case has admitted the F.D. of Rs. 2 lakhs. She knows that her husband is a retired and ailing person. The pleas that her husband (respondent No.1) is getting Rs. 10,000/- p.m. as pension and Rs. 15,000/- from investments is nothing but a bundle of lies. The respondent No.1 is a retired person and has placed documentary evidence on record to show that he is getting Rs. 3086/- per month as pension through Employee Contributory Scheme based on his own contribution made after his retirement. This fact has already been taken note of by this court in CM (M) No. 357/2010. In the said case, it was the petitioner’s own submission that her husband was getting interest of Rs. 5000/- per month from deposits. Now, she has alleged that he was getting Rs. 15,000/- p.m. without there being any basis for the same. In fact, in the said petition, this court had enhanced the maintenance from Rs. 3500/- Crl.M.C. 3948/2008 Page 4 of 8 per month to Rs. 4500/- per month based on the material available on record to the effect that the income of the respondent No. 1 was Rs. 8000/- per month i.e. Rs. 5000/- as interest from deposits and Rs. 3086/- from Employee Contributory Pension Scheme. Neither before the courts below nor in the CM (M) No. 357/2010 nor in the present proceedings, the petitioner has been able to show her husband’s income as alleged by her. All that she has alleged is vague and baseless.
9. Taking all these into consideration, the learned M.M. observed that she was capable of maintaining herself.
10. From the undisputed factual matrix, it comes out to be that the petitioner owns a house at Mumbai. She has some fixed deposits in the banks, which according to the respondents are worth Rs. 10 lakhs, which according to the petitioner, is only Rs. 2 lakhs. In any case, she is undisputedly getting some interests on these deposits, which has not been disclosed. No evidence has been adduced by either of the parties as regards to deposits amount or the interest therefrom. This emerges to be a triable issue. Undisputedly, she was living in a house where she was not incurring any expenses on rent or other amenities such as water, electricity, cable, house tax etc. She is continuously getting Rs. 4500/- per month from her husband. She was also entitled to the medical facilities of her husband as per his service rules.
11. With regard to the respondent No. 2, who is residing at Australia, it was submitted by the respondents that he is working in a remote area and was the only bread earner of his family and was not in a regular
Crl.M.C. 3948/2008 Page 5 of 8 permanent employment. His salary was stated to be about 800 Australian Dollars per week, which was stated to be insufficient for him and his family needs. With regard to the respondent No.3, it was stated that he is unemployed and even unable to maintain himself and is living at the mercy of his sister at Mumbai.
12. It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).
13. With regard to the claim of the petitioner from her sons (respondents No. 2 & 3), it was submitted on behalf of her son Prem Prakash that his weekly income was about 800 Australian Dollars. The details of the expenses of his family have also been submitted in writing. However, he has offered 100 Australian Dollars per month as maintenance to the petitioner, which according to me, at this stage, seems to be just and reasonable. The petitioner has claimed arrears of maintenance from him, but the same was outrightly refuted saying that this respondent was in a very bad financial condition to give any arrears. With regard to respondent No. 3 Anil also, there is nothing on record at Crl.M.C. 3948/2008 Page 6 of 8 this stage to see his income. But, since he is an able-bodied young boy, it is his moral as well as legal duty to give something to his mother. In the absence of there being any material available on record, he would be liable to pay maintenance to his mother (petitioner) @ Rs. 1500/- per month.
14. The matter does not end here. During the proceedings conducted on 26.3.2012, the respondent No. 1 had stated that he had let out the second floor of the premises to a tenant @ Rs. 10,000/- per month. He offered 50% of the rent i.e. Rs. 5000/- per month to be given to the petitioner w.e.f. 22.4.2012. The petitioner and her counsel agreed to this offer but later, she demanded the whole of the rent and also alleged the rent to be more than Rs. 10,000/- per month. In the proceedings conducted on 26.3.2012, the offer as given by her son Prem Prakash of 100 Australian Dollars per month as also of her husband of Rs. 5000/- per month out of the rent and to continue pay Rs. 4500/- per month as before, was outrightly declined by the petitioner in the subsequent proceedings. This shows the conduct of the petitioner, who seem to be not only greedy and trying to settle the scores, but was extremely aggressive also. However, irrespective of all that, I think that the offers given by the respondents No. 1 & 2 are quite just and reasonable given the facts and circumstances of the case.
15. In view of the above discussion, it comes out to be that the petitioner would be entitled to maintenance @ Rs. 4500/- per month from the date of this order from her husband (respondent No.1) under Section 125 CrPC. In addition, she would be entitled to maintenance of 100 Crl.M.C. 3948/2008 Page 7 of 8 Australian Dollars from her son Prem Prakash (respondent No.2) and Rs. 1500/- per month from her son Anil (respondent No.3). Having regard to the peculiar circumstances of the respondents No.2 and 3, they are directed to pay these amounts of maintenance to petitioner from the date of this order. The issues regarding claims of maintenance from them from the date of application, shall be determined at time of final disposal of the petition by the Trial Court. She would be also entitled to Rs. 5000/- per month w.e.f. 22.4.2012 being half of the rent of the premises of second floor let out by the respondent No. 1. It is clarified that in the event of any increase in the rent amount of the said premises at any point of time, half of the rent whatever may be, shall be continued to be paid to the petitioner by her husband (respondent No.1). Consequently, the impugned order stands modified in the manner as indicated above.
16. Petition along with miscellaneous applications stand disposed of.
M.L. MEHTA, J.
MAY 18, 2012
akb
Crl.M.C. 3948/2008 Page 8 of 8
HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc.No.M-8902 of 2011 (O&M)
Date of decision: 18.5.2012
Smt. Sushila & another
—–Petitioners
Vs.
Suresh Kumar
—–Respondent
CORAM:- HON’BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. J.P. Sharma, Advocate for the petitioners.
None for the petitioner.
—
RAKESH KUMAR GARG, J.
1. Petitioners are wife and daughter of respondent-
Suresh Kumar. They were provided maintenance allowance at
the rate of Rs.750/- per month each under Section 125 CrPC, to
be paid by the respondent vide order dated 22.8.2006.
Subsequently, in an application filed on 11.10.2008 under Section
127 Cr.P.C., the Sub Divisional Judicial Magistrate, Mohindergarh,
vide order dated 20.3.2010, enhanced maintenance allowance to
Rs.2,000/- per month to petitioner No.1 and Rs.1,000/- per month
to petitioner No.2, from Rs.750/-.
2. Feeling aggrieved from the aforesaid order, the
petitioners filed revision petition before the Sessions Judge, CRM No.M-8902 of 2011 2
Narnaul by raising grievance that petitioner No.2-Monika was also
entitled to maintenance allowance at the rate of Rs.2,000/- per
month instead of Rs.1,000/- per month. Vide order dated
27.11.2010, maintenance allowance of Monika was enhanced to
Rs.2,000/- per month, but it was ordered that the enhanced
amount would be payable to both the petitioners with effect from
20.3.2010 i.e. date of order passed by the Sub Divisional Judicial
Magistrate, Mohindergarh. Whereas the enhanced maintenance
allowance should have been awarded from the date of application
i.e. 11.10.2008 instead of date of order.
3. From the aforesaid facts, as narrated above, it may be
noticed that only grievance of the petitioner is that the enhanced
maintenance should have been allowed from the date of
application instead of the date of order of Sub Divisional Judicial
Magistrate, Mohindergarh.
4. It is useful to refer to Section 127 CrPC, which reads
thus:-
127. Alteration in allowance.- (1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance, or interim CRM No.M-8902 of 2011 3
maintenance, as the case may be.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- (a) The woman has, after the date of
such divorce, remarried; cancel such
order as from the date of her
remarriage;
(b) The woman has been divorced by
her husband and that she has
received, whether before or after the date of the said order, the whole of the sum which, under any customary or
personal law applicable to the parties, was payable on such divorce, cancel
such order-
(i) In the case where such
sum was paid before such
order, from the date on
which such order was made,
(ii) In any other case, from
the date of expiry of the
period, if any, for which
maintenance has been
actually paid by the husband
to the woman;
(c) The woman has obtained a divorce
from her husband and that she had
voluntarily surrendered her rights to maintenance or interim maintenance,
as the case may be after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any CRM No.M-8902 of 2011 4
person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance, in pursuance of the said order.”
5. The plain import of Section 127 is that a provision is
made therein for an alteration of the maintenance allowance
consequent upon a change in the circumstances of either party at
the time of application for alteration. However, mere allegation of
change in circumstances in the application are not enough and
the same requires to be proved. Thus, while dealing with such an
application, the Magistrate should consider the matter in the light
of criteria which usually weighs with Court in the proceedings u/s
125 CrPC and after an inquiry, an appropriate order for alteration
can be passed. It may further be noticed that the aforesaid
provision has put no bar on the powers of the Court to order
alteration in the maintenance allowance from the date of
application. In other words, the order for payment of enhanced
maintenance allowance can be made from the date of application,
for the reasons established on the record.
6. In the facts and circumstances of the case, it has
been established that there exists reasons for enhancing the
maintenance allowance from the date of application.
7. At this stage, it is useful to refer to judgments of this
Court in the case of Smt. Tripta v. Sat Parkash 1984 CCC 482, CRM No.M-8902 of 2011 5
wherein it has been observed that it is the discretion of the trial
Court to grant maintenance either from the date of order or from
the date of application and in the case of Bhagat Singh v. Smt.
Parkash Kaur 1972 Vol.LXXIV PLR 952, wherein it has been
held that the Magistrate had the power to make alteration in the
maintenance from the date of application.
8. Thus, keeping in view the aforesaid judgments of this
Court and the discussion, as above, this petition is allowed and
the impugned order is modified to the extent that the enhanced
maintenance allowance to the petitioners shall be payable from
the date of application instead of the date of order of Sub
Divisional Judicial Magistrate, Mohindergarh.
May 18, 2012 ( RAKESH KUMAR GARG ) ak JUDGE
Calcutte HC: Even after grant of divorce, divorcee wife is entitled to grant a maintenance under CrPC 125
1
6.
02.08.2012
d.d.
CRR No.2716 of 2012
In re: Arabinda Mallick
…Petitioner.
- And -
In the matter of : An application under Section 482 of the Code of Criminal Procedure, 1973.
Mr. Haradhan Banerjee,
Mr. Partha Pratim Mukherjee
…… For the Petitioner.
Present petition has been filed under Section 482 of the Code of Criminal Procedure praying that the impugned order dated 16th July, 2012 passed by Judicial Magistrate, Second Court at Sealdah in Miscellaneous Execution Case No.8 of 2012, be set aside, whereby Warrant of Arrest was issued against the petitioner.
Counsel for the petitioner contended that divorce was granted to the petitioner on the ground of desertion by the wife. Hence, divorced wife is not entitled to grant a maintenance.
This Court relying upon Rohtash Singh Vs. Ramendri (Smt) and Ors., (2000) 3 Supreme Court Cases 180 had already held that after grant of divorce, divorcee wife is entitled to grant a maintenance. It will be apposite to reproduce paragraph 10 of Rohtash Singh (supra) and the same reads as under: 2
” Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position. “
At this stage, Counsel for the petitioner submits that this Court need not adjudicate the right of deserted wife to get maintenance as already Criminal Revision No.1251 of 2011 filed by the petitioner is pending in this Court. However, Counsel for the petitioner states that he will limit his prayer to urge that there is no justification for the trial Court to issue Warrant of Arrest as no notice was served upon the petitioner earlier. Counsel has further undertaken that petitioner shall appear before the trial Court on 14th August, 2012, date fixed for appearance.
In view of the undertaking given by the Counsel for the petitioner, present petition is disposed of by issuing a direction that the Warrant of Arrest issued against the petitioner be kept in abeyance till 14th August, 2012 to enable the petitioner to appear before the trial Court on the date fixed, i.e., 14th August, 2012. However, it is made clear that in case petitioner fails to appear before the trial Court on 14th August, 2012, trial Court shall be 3
well within its right to initiate all coercive action against the petitioner to secure his presence.
Let a photostat copy of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Counsel for the petitioner on usual undertakings.
( Kanwaljit Singh Ahluwalia, J. )
Women won’t be called to police stations for statements: Bombay high court
MUMBAI: Women, children and physically handicapped persons, who are either witnesses or complainants, will not be summoned to police stations for recording of their statements from now onwards, the Bombay high court was informed on Monday.
The court was informed through a circular issued by Deven Bharti, inspector general of police (law and order).
The circular issued to all police stations across Maharashtra has directed police to ensure that women, children and physically handicapped are not summoned to police stations for recording of statements.
Asking the police to strictly follow section 160 of the Criminal Procedure Code, the circular states if the statement of any woman, child below the age of 15, and physically handicapped person is required, the policeman concerned will have to go to their residence and record the statement.
The circular was submitted to a division bench of justices AM Khanwilkar and AR Joshi during the hearing of a plea filed by an advocate Geetal Haldankar, who had alleged that when she had gone to lodge a complaint with the police against an estate agent she was made to sit in the police station till late in the night.
According to Haldankar, she had rented a flat in Diva in neighbouring Thane district through one Shubhda Narvekar. She was, however, not given an agreement by Narvekar.
Recently, when she returned from work, the landlord of the house had removed her lock from the door and put his own. When Haldankar approached the Diva police to file a case against Narvekar, the police there refused to take her complaint and made her sit there till late in the night.
Haldankar wrote a letter to the senior police inspector complaining about the behaviour of the police officials but did not receive any reply. The advocate later approached the high court seeking direction to police to lodge a case.
The high court was today also informed that Haldankar’s complaint has been lodged and investigations are on following which her petition was disposed of.
Panjap&Harayana HC: Disowning son will not help him in matrimonial cases
CRM No.M-9277 of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-9277 of 2012
Date of decision : 01.08.2012
Rajinder Kumar Dhingra and others
…Petitioners
Versus
Sunaina
…Respondent
CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: None.
JITENDRA CHAUHAN, J. (Oral)
The present petition under Section 482 Cr.P.C. is for quashing of complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005, titled as ‘Sunaina Versus Abhishek Dhingra and others’ bearing case No.152 dated 28.05.2010 (Annexure P-1).
It is averred in the petition that petitioner Nos.1 and 2 are the parents of the husband of the complainant-Sunaina and they have already disowned their son. A public notice was also issued in this regard. Petitioner No.3 is the married sister-in-law whereas petitioner No.4 is the husband of petitioner No.3. Their marriage was solemnized in the year 1998. It has been averred that the petitioners have no CRM No.M-9277 of 2012 -2- relation with the accused-husband. To fortify their contentions, ration cards, Annexure P-2 to P-5 have been placed on record. It is further contended that after leaving the matrimonial home, the respondent-wife made a complaint to the Superintendent of Police, Amritsar, against the petitioners.
From the perusal of the complaint, specific entrustment to the petitioners is made out. There are specific allegations of violence against the petitioners. FIR No.69 dated 27.04.2010 under Sections 498-A, 406 and 506 IPC stands registered against the petitioners. Keeping in view the averments made in the complaint and the fact that the FIR is lodged way back in the year 2010, not case for grant of relief sought is made out.
Dismissed in limine.
01.08.2012 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter ? Yes / No
Woman SI demands bribe for bail to Sec 498A accused – Tv9
Punjab & Haryana HC: Wife has file false 498A against sister-in-law….Quashed
Criminal Misc. No.M-2116 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-2116 of 2011 (O&M)
Date of decision: 5.7.2012
Channo Devi @ Charno
……Petitioner
Versus
State of Haryana and another
…….Respondents
CORAM: HON’BLE MRS. JUSTICE SABINA
Present: Mr.H.S.Sullar, Advocate,
for the petitioners.
Mr.Gaurav Dhir, DAG, Haryana.
Mr.Sanjay Jain, Advocate,
for respondent No.2.
****
SABINA, J.
Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom.
FIR (Annexure P-1) reads as under:-
“The complainant submits as under:-1. That the complainant was married with accused no. 1 Ram Ji son Criminal Misc. No.M-2116 of 2011 (O&M) 2 of Kuldeep Singh, R/o Village Munak Distt. Karnal as per Hindu Rites and ceremonies at village Sarangpur, P.S. Sadar Ambala, Tehsil and Distt. Ambala on 15.02.2009,
2. That the father of the complainant spent on the marriage of the complainant more than his capacity. He arranged the marriage in Dulhan Farm Hissar Road Ambala city and provided good food and other facilities to the Baraties and spent Rs. 2,00,000/- on marriage party in Dulhan Farm. 3. That at the time of departure of Barat a huge dowry was entrusted to the accused nos. 1 and 2 for the purpose of giving the same to the complainant in her matrimonial house which was for the exclusive use of the complainant a separate list of the dowry article is attached along with the complaint, 4. That accused no. 1 husband and accused no. 2 the father in law of the complainant and Smt. Nahmo Devi alias Bimla accused no. 3 and Nanad Channo Devi were not satisfied with this much and they started to tease the complainant on the pretext that the complainant has not brought anything worthwhile in her marriage and started to say that her (complainant’s) father has not given a car in the marriage and instead has given a Motor Cycle. All the accused started to demand a car and the others to pressurize the complainant to meet out their illegal demand of car and they also started to give beatings to the complainant Criminal Misc. No.M-2116 of 2011 (O&M) 3 every now and then on one pretext or the other 5. That having felt disturbed mentally and harassed the complainant reported the same to her father and told that her in law i.e. husband, father, mother-in-law and Nanad were demanded a car and also told that they often beat her to compel her to met out their illegal demand. The father of the complainant on the receipt of the complainant went to village Munak alongwith members of his Biradari and he alongwith other member panchayat made their best to make the accused persons understand that he could not given anything more than what he had already give in the marriage of his daughter on this all accused persons became furious and they started to quarrel with the father of the complainant and other members of brother hood accompanying him the accused persons also declared that they would not keep the complainant in their house unless a car is not given to them. However with the accused agreed to keep the complainant in her matrimonial house and also promised that they would not demand anything again in future. 6. That time went on going and the accused persons out of lust of dowry again started to demand a car in the same manner and fashion and again started to maltreat the complainant and beat her or the other to pressurize their demand. They also started to deny her food and other Criminal Misc. No.M-2116 of 2011 (O&M) 4 basic amenities of life in her matrimonial house. The complainant continued to bear all the same with the hope that good sense would prevail on the accused persons one day or the other but the accused persons did not mend their habits and they made the complainant to and her life by committing suicide. The accused persons created such an atmosphere in the house that she felt danger to her life. The accused persons harassed the complainant to such an extent to coerced the parents of the complainant to meet the unlawful demand of the accused persons. 7. That when the parents of the complainant did not meet the unlawful demand of the accused persons all the accused persons gave beatings to the complainant on 27.06.2010 and tried to put her on fire by sprinkling on her clothes. The complainant however made hue and cry and on hearing her noise the people from the neighborhood gathered at the spot and they escaped her from the cruel clutches of the accused persons. The complainant left the house of the complainant feeling danger to her life and came to the house of her parents at village Sarangpur P.S. Sadar Ambala Tehsil and District Ambala. She told everything to her parents. Upon which the father of the complainant made an application to S.P. Karnal through the complainant stating there in everything what happened to Criminal Misc. No.M-2116 of 2011 (O&M) 5 her in her in laws house on 28.06.10. The application made to S.P. Karnal was made over to Incharge Parivar Pramarash Kendar Karnal for necessary action but the matter could not be solved and the grievances of the complainant were not redressed for the eye-wash of the complainant and her father the Incharge Parivar Pramarash Kendar Karnal got a fictitious as well as vage compromise effected where in the accused party had promised to take the complainant to her matrimonial house by 15.07.2010 but non has come to take the complainant back in her matrimonial house and she still is living with her parents at village Sarangpur P.S. Sadar Ambala Tehsil and Distt Ambala the accused no. 1 filed a petition u/s 13 of H.M. Act in the courts at Karnal against complainant. 8. That the complainant has not condoned the act of maltreatment meted out to her by the accused persons and all the accused persons are liable to be punished for the criminal acts done by them and all the accused persons are liable to be punished accordingly. 9. That all accused persons have also retained the dowry articles, Jewellery, wearing apparels and other articles entrusted to them at the time of marriage and have not returned them to the complainant and converted the same to their own use. 9. That all the accused have committed an offence punishable under section 498A/307/406/34 Criminal Misc. No.M-2116 of 2011 (O&M) 6 IPC within the cognizance of this Hon’ble Court and this Hon’ble Court has got the jurisdiction to hear the present complaint.”
Learned counsel for the petitioner has submitted that the petitioner was the married sister-in-law of the complainant. The petitioner had got married much before the marriage of the complainant with her brother and was residing in her matrimonial home. The petitioner had been falsely involved in this case as a divorce petition had been filed against the complainant by her husband. The present FIR was a counter blast to the said litigation. Learned State counsel as well as learned counsel for complainant-respondent No.2, on the other hand, have submitted that the petitioner and her co-accused had harassed the complainant on account of insufficiency and demand of dowry. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
“The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible Criminal Misc. No.M-2116 of 2011 (O&M) 7 to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint Criminal Misc. No.M-2116 of 2011 (O&M) 8 are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Criminal Misc. No.M-2116 of 2011 (O&M) 9 In Kans Raj vs. State of Punjab and others, 2000 (2) RCR (Criminal) 696 (SC), their Lordships of the Apex Court have observed that a tendency has developed for roping in all the relations in dowry cases and if it is not discouraged, it is likely to affect case of the prosecution even against the real culprits. The efforts for involving the other relations ultimately weaken the case of the prosecution even against the real accused. In the present case, the marriage of the complainant took place with Ramji Lal, brother of the petitioner, on 15.2.2009. The petitioner is married sister-in-law of the complainant and is residing in her matrimonial home at village Munak. Admittedly, the petitioner was married at the time of marriage of her brother with the complainant. It appears that the petitioner has been falsely involved in this case merely because of her relationship with the husband of the complainant. It is generally seen that in matrimonial disputes all the family members of the husband are involved in criminal litigation by the complainant party with a view to put pressure on the husband and his family members. A perusal of the FIR also reveals that there are general allegations levelled against the petitioner. The petitioner had no reason to demand a car by way of dowry as she could not have used the same being residing in her own matrimonial home. Hence, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law. Accordingly, the petition is allowed. FIR No.124 dated 29.7.2010 under Section 498-A/ 307/ 406/ 34 IPC registered at Criminal Misc. No.M-2116 of 2011 (O&M) 10 Police Station Ambala Sadar, District Ambala (Annexure P-1) and all the subsequent proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA)
JUDGE
July 05, 2012
anita
Women are filing false 498A on Saturday to keep husband in custody on Sunday and deliberately avoiding child access to father – Calcutta HC
1
7.2012
05
r.
C.O. 2453 of 2012
Smt. Banani Acharya (Sarkar)
-vs-
Sri Bikash Sarkar
Mr. S. Mukherjee,
Mr. Susanta Kumar Pal,
……. For the petitioner.
Supplementary affidavit filed by the petitioner be kept with the record. The present application is arising out of an order passed by the learned Additional District Judge in an application for custody of a male child. The learned trial Judge directed the wife to hand over the custody of the child forthwith to the husband and the husband was also directed to produce the child before the Court on first and third Saturday of each month from 11.00 A.M. to 12.30 P.M. when the wife was directed to visit the minor child during such period.
The wife being aggrieved by the said order filed this revisional application. The child is only about 4 years old and has become the pawn in the hands of the parents. In the tug-of-war the helpless child is in quandary with whom he 2
should spend his childhood and his innocent eyes show that he requires both the parents.
The custody proceeding commenced with the filing of the application by the wife under Section 38 of the Special Marriage Act, 1954 on 11th January, 2012 in which the wife prayed for a direction upon the husband to return the minor child and give custody to the wife. Initially, on 9th April, 2012, the learned Civil Judge directed the husband to send the child on each Friday in the afternoon to the house of the wife/petitioner and the petitioner was directed to return the child to the custody of the husband on Sunday evening on each week and such arrangement was to continue until further orders.
The wife in the said proceeding, thereafter, filed an application for modification of the order upon proof of change of circumstances. The change of circumstances alleged in the said petition was that since the passing of the order dated 9th April, 2012, the husband on his own whims violated and disrespected the order dated 9th April, 2012 and never sent the said minor male child to the house of the petitioner with the dishonest intention to torture the petitioner mentally and thus committed offences which are punishable under the Contempt of Courts Act, 1971. On 16th May, 2012, the petitioner got information from one of her well-wisher that on 10th May, 2012 a street dog bite her minor child and the said child was in acute distress. 3
Following receipt of such information, the petitioner on 16th May, 2012 visited the matrimonial home when she found that the said child was lying in an unconscious condition with high fever and with the help of the well-wishers and inhabitants of the locality, she rescued her minor son and, thereafter, arranged for necessary medical treatment. Gradually, the son recovered and the said male child is under the supervision of the medical practitioner who alleged to have suggested in his prescription dated 20th June, 2012 that the child requires bed rest for seven days. The wife relied upon the Photostat copy of the patient cards issued by the Department of Health & Family Welfare, Govt. of West Bengal in the name of the minor child between 10th May, 2012 and 20th June, 2012 regarding treatment. On 10th June, 2012 at about 6.00 p.m., the respondent husband along with some miscreants alleged to have trespassed into the house of the petitioner and demanded dowry of Rs.1,00,000/- and threatened the petitioner with dire consequences, in the event, such amount is not paid by the petitioner. It was alleged that the said petitioner along with miscreants forcibly wanted to take away the child who was under treatment but due to the resistance of the petitioner and inhabitants of the locality they could not succeed and left the place with the threat of repeating such offensive acts in future. Subsequently, on 19th June, 2012 similar attempts were made but they were not successful. In short, the custody of the child to the father was sought to be resisted, inter alia, on the following grounds:-
i. The opposite party/husband has criminal records;
4
ii. She is well placed in life so as to take care of the minor. iii. The family environment would be conducive of a balanced up bringing of the minor.
iv. The minor is likely to receive adequate education, medical treatment and cultural training having regard to his socio-economic position in society.
v. The minor is expected to have a reasonably good start in life at the end of his minority.
It was on the aforesaid basis the wife claimed permanent custody of the child. The said matter was contested by the husband. It appears that the husband contended before the trial Judge that in terms of the direction for custody passed on 9th April, 2012, the child was handed over to the mother but the mother refused to hand over the child after 2nd June, 2012 and since 2nd June, 2012 the minor is in the custody of the petitioner/wife. The wife also did not permit the husband to see and take back the minor child to his place in terms of order dated 9th April, 2012. It was also submitted that the said child is studying in a school which is adjacent to the house of the husband and the school would reopen after summer vacation and soon after the reopening of the school on 26th June, 2012, the examination would start. In view thereof, it is important that the child should be handed over to the father. It appears that both the parties have lodged general diary with the respective Police Station alleging violation of the order passed by the trial Judge. The respondent/husband also appears to have filed a petition on 2nd June, 2012 5
praying for a direction upon the wife to hand over the custody of the child. On careful consideration of the record, the trial Judge before arriving at the conclusion observed that the custody of the minor was with the father and for which the mother prayed for custody of the child by filing the said petition along with a prayer for divorce and after hearing the parties, initially, an order was passed on 9th April, 2012 by way of an interim arrangement. On the basis of the materials on record the learned Civil Judge arrived at a finding that the wife claimed to have taken custody of the child only on 16th May, 2012 after getting the information that the child was suffering from fever and lying in distress condition. The medical examination record shows that the child was treated in the Naihati State General Hospital on 10th May, 2012 and 15th May, 2012 and on 4th June, 2012 was fixed for further medical examination. Accordingly, it cannot be said that the child was not treated by the father. In fact, when the child was sick he was under the custody of the father and the child was treated on 10th May, 2012 and 15th May, 2012 at the Naihati State General Hospital. The child was further treated on 8th June, 2012, 11th June, 2012 and 20th June, 2012 respectively when the child was under the custody of the mother. The mother did not complain that the child was not handed over to her till 16th May, 2012 alleging refusal by father to hand over the child and even no application alleging violation of the order dated 9th April, 2012 was moved on 30th May, 2012 when the suit was fixed for hearing. On 9th June, 2012 during the hearing of the matter, the learned Civil Judge passed an order in which an 6
observation was made by the Court that the male child used to reside with his father and after enquiring from the child by the Court it was found that the child was not willing to go with his mother. The Court also recorded the difficulties being created by the petitioner in effecting service on her of the petitions filed by the husband. The learned Civil Judge, on the basis of the earlier recordings and materials on record considered the interim custody of the child keeping in mind that the welfare of the child should be the paramount consideration. It is very unfortunate that a child only of 4 years had to suffer such mental trauma only because of the fights between his parents. In allowing the said application for interim custody in favour of the father, the proximity of the school, the reluctance of the child to go along with his mother, the immediate treatment of the child by the father during his stay with his father and refusal of mother to hand over the child to the father in compliance of the order dated April 9, 2012 were taken into consideration and, accordingly, the wife was directed to hand over the custody of the child forthwith to the husband with certain visitation rights and, accordingly, the trial Judge fixed on 7th July,2012 for production of the child. Thereafter what happens really shocks the judicial conscience and brings out certain disturbing features as to how the orders of the Civil Court have been attempted to be nullified or rendered otiose. Such facts are revealed from a supplementary affidavit affirmed by the wife on 17th July, 2012 after the petitioner was successful in persuading one of the learned single Judges to release the matter on grounds which are admonishable, to put it mildly. In fact, it appears that the present petition was initially heard by Justice Prasenjit Mandal. After some 7
extensive hearing it was submitted on behalf of the petitioner that the petitioner had lost confidence in the Court and in view of such submission, the matter was released by His Lordship. It is extremely unfortunate that such submission was made before His Lordship without disclosing the reason for losing confidence of the Court.
In the supplementary affidavit, the wife stated that on 22nd June, 2012 the wife lodged a complaint against the husband in the Barasat Police Station for committing offences under Sections 498A/406/448/506/120B of the Indian Penal Code, 1860 which was registered as Barasat P.S. Case No.1292 dated 22nd June, 2012 which resulted in an arrest of the opposite party/husband on 14th July, 2012 from the residence of the opposite party and it is contended that on production of the husband on 15th July, 2012, the learned Chief Judicial Magistrate at Barasat rejected his bail application and remanded him to jail custody till 27th July, 2012. It is significant to mention that on 13th July, 2012 the learned Advocate for the petitioner was successful in releasing the matter from the learned single Judge and on the very next date the husband was arrested by the police. In the application before the Civil Court, the wife alleged that she was driven out of the matrimonial home on 25th March, 2008 and in July, 2010 the husband on the pretext of keeping the son with whom for a day or two took the son from her custody but did not return which had resulted in an application filed under Section 38 of the Special Marriage Act, 1954 in which an order was passed on 9th April, 2012.
8
It is a fact that the wife did not return the child nor produce the child on 7th July, 2012 as directed by the impugned order. In order to render the order passed by the Civil Judge on 4th July, 2012 ineffective and inimplementable recourse was taken to such proceedings with an ulterior motive. The police arrested the husband on the basis of an application filed on June 22, 2012 under Section 156(3) of the Code of Criminal Procedure, 1973. The basis of the said petition is a general diary lodged on June 16, 2012. The police arrested the husband on 14th July, 2012 and produced him on 15th July, 2012. The said production resulted in a routine order of remand being passed by the learned Chief Judicial Magistrate at Barasat, North 24-Parganas on 15th July, 2012. This Court in great anxiety observed that in most of such cases police arrests the so- called accused on the basis of such complaints mostly on Saturdays so that they are produced on Sundays before a Court which are practically non-functional resulting in routine orders of remand. This a clear infringement of fundamental rights of a citizen and it shakes the basic fabric of administration of justice. The police have an important role to play. It is unfortunate that in many cases such arrests are made on the basis of false complaint and usually such arrests are made on Saturday in order to ensure custody on Sunday since routine orders of remand are ordinarily passed at times even without requiring the police to produce the case dairy. In most of the cases, case diaries are not produced and the Investigating Officer is let off without any stricture or punitive orders. If a case is registered on 22nd June, 2012 this Court is unable to appreciate as to 9
why the said husband/opposite party was arrested on 14th July, 2012. The reasons are obvious. It calls for an investigation. The wife did not disclose the proceeding initiated under Section 156(3) of the Criminal Procedure Code. before the Civil Court. However, since the Chief Judicial Magistrate is in seisin over the matter it is expected that he should conduct a proper enquiry into the matter and must be very cautious in future in dealing with such matters arising out of matrimonial disputes especially when it involves custody matters since it has become the regular feature that matrimonial disputes are initiated in Criminal Courts by taking recourse to proceedings under Section 498A of the Indian Penal Code, 1860. The Courts are required to be extremely cautious and circumspect in passing an order in an application filed under Section 156(3) Criminal Procedure Code and in dealing with bail application. The advice given to the wife to initiate such proceeding in order to frustrate the order of Civil Court would be disastrous for the wife once the Court comes to a finding that such proceedings are mala fide, vexatious and an abuse of the process of law and such advisor cannot escape his or her liability and responsibility. Such irresponsible and improper acts are deprecated.
The date of filing of the petition under Section 156(3) Criminal Procedure Code the date of arrest of the husband and the subsequent order of remand give a clear impression that such process was initiated with an ulterior motive to render the order of the Civil Judge ineffective.
10
The learned Counsel on behalf of the petitioner refers to two decisions reported in AIR 1992 Madras 272 (Mrs. Umamaheswari v. V.Sekar) and AIR 1990 SC 1156 (Manju Tiwari v. Rajendra Tiwari) for the proposition that the mother should be given the custody of a child less than 5 years of age with liberty to the father to visit the father during the weekends.
In determining the question relating to the custody of a child, the paramount consideration should be the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts.
In Ashish Ranjan v. Anupma Tandon & Ors. reported in 2010 (14) SCC 274 after considering the earlier decisions on this point the Hon’ble Supreme Court held:-
“18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as 11
well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.”
In Mohan Kumar Rayana V. Komal Mohan Rayana reported in 2010 (5) SCC 657 while considering the custody of a minor under the Hindu Minority and Guardianship Act, 1956, the Hon’ble Supreme Court observed that wishes of the minor need to be given due weightage. In that case, the order of the family court directing custody of child to continue with the mother was upheld on the basis of the wishes expressed by the minor. In Anjali Kapoor v. Rajiv Baijal reported in 2009 (7) SCC 322, the Hon’ble Supreme Court while considering Section 17 of the Guardians and Wards Act, 1890 held that when a conflict arises between the rights of natural guardians vis-à-vis welfare of the child what would best serve welfare and interest of the child should be the sole and predominant criteria. The Children are not mere chattels as observed in Rossy Jacob v. Jacob A. Chakramakkal reported in 1973 (1) SCC 840. The Hon’ble Supreme Court in Anjali Kapoor (supra) quoted with approval observations of the English Court and the other foreign Courts in deciding such custody matters giving predominance to the welfare of the child as it appears from Paragraphs 19 to 21 which are reproduced hereinbelow:-
12
“19. In McGrath (infants), Re 1893 (1) Ch 143 it was observed that: “… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
20. In American Jurisprudence, 2nd Edn., Vo.39, it is stated that: “…An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.”
21. In Walker v. Walker & Harrison (1981 New Ze Recent Law 257) the New Zealand Court (cited by British Law Commission, Working Paper No.96) stated that: “Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequach of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”
The learned Civil Judge, in my mind, upon taking into consideration the aforesaid factors and the wishes of the child restored the custody of the child in favour of the father by way of an interim arrangement. Such custody orders are 13
always interlocutory in nature which can be varied and/or changed with the change of circumstances.
On the basis of the order of remand it is sought to be argued that in view of such changed circumstances the order of trial judge is to be reviewed and the child should be allowed to remain with the mother. The said submission cannot be accepted. This Court before passing this order has enquired from child his wishes. The impression of this Court is that the child wants to see the father and be with the father although he was brought to the Court by the mother. The child was in a complete helpless condition. It is unfortunate that the said beautiful child has been dragged unnecessarily in this unfortunate litigation. If the mother is really fond of her child and want her child to have a proper and better living, she should not have initiated such criminal proceeding against the husband and make an attempt to render the order of the Civil Judge nugatory. In the absence of any materials on record as to whether the Chief Judicial Magistrate at Barasat was informed of the said custody matter and the orders passed by the Civil Judge, it would not be proper for this Court to make any remark on the order passed by the Chief Judicial Magistrate in entertaining the application filed under Section 156(3) Criminal Procedure Code or in passing an order of remand. However, the Chief Judicial Magistrate at Barasat is directed to immediately call for the record and consider the prayer for bail of the petitioner forthwith upon receipt of this order and to pass appropriate orders. If the said Chief Judicial Magistrate found that the said complaint is malicious, vexatious, 14
mala fide and filed with an ulterior motive, the learned Magistrate should dismiss such complain. Furthermore, if it appears to the learned Magistrate that the Investigating Officer has acted improperly or on the basis of insufficient materials, appropriate order should be passed against the Investigating officer. The learned Civil Judge should also pass appropriate orders taking into considerations the order passed by the Chief Judicial Magistrate and to ensure that the welfare of the child does not suffer in any manner whatsoever. The Civil Judge should decide the custody of the child till the husband is released on bail. Meanwhile as an interim measure the wife/petitioner must ensure that while in her custody, the welfare and the benefit of the minor is not compromised. This is the primary consideration for not disturbing the present custody of the child and subject to the order that may be passed by the Civil Judge.
A copy of this Order be immediately forwarded by the learned Registrar General, High Court, Calcutta to the learned District Judge, Barasat, the learned 5th Additional District Judge at Barasat, learned Chief Judicial Magistrate at Barasat, North 24-Parganas and the Director General of Police for compliance and necessary action.
Since this revisional application is dismissed no notice is required to be sent upon the opposite party/husband. However, the learned Registrar General is directed to effect service of this order on the husband/opposite party. Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the petitioner in compliance of necessary formalities. (SOUMEN SEN, J.)
15
If notice is returned as “Unclaimed” then it is “deemed as served” DV Case – Karnataka HC
HC: Refusal to have sexual life with spouse amounts to cruelty-Husband granted divorce
HC: Wife and husband misuse 498A to grab parrents’s property- Quashed
Criminal Misc.No.M-18643 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM No.M-18643 of 2008
Date of Decision:- 21.2.2012
Smt.Sunita Goyal & Ors. …Petitioners Vs.
State of Punjab & Anr. …Respondents CORAM: HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Akshay Bhan, Advocate for the petitioners.
Mr.Palwinder Singh, Senior DAG Punjab for respondent No.1.
Mr.Ashok Singla, Advocate for
Mr.Ravish Bansal, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
Petitioners Smt.Sunita Goyal, Vijay Goyal, unfortunate parents-in- law and Abhishek Goyal, brother-in-law (Devar) of complainant Soni Goyal, wife of Mahavir Goyal respondent No.2 (for brevity “the complainant”), have directed the instant petition for quashing the impugned FIR, bearing No.246 dated 15.9.2007 (Annexure P5), registered against them, on accusation of having committed the offences punishable under Sections 406, 498-A, 323, 506 and 120- B IPC by the police of Police Station Division No.5, Ludhiana.
2. Concisely, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the present petition and emanating from the record, are that the marriage of the complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery, weighing 80 Tolas, cash and dowry beyond his capacity at the time of Criminal Misc.No.M-18643 of 2008 -2- her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. It was claimed that although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She and her husband also apprehend danger to their lives at the hands of the petitioners. On 30.8.2007 at 8 A.M., they were stated to have given severe and merciless beatings to the complainant and her husband Mahavir Goyal. The matter was reported to the police, where DDR No.12 dated 31.8.2007 was entered, but no action was taken by the police against them.
3. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the petitioners have harassed, treated her with cruelty in connection with and on account of demand of dowry and gave severe beatings to her as well as to her husband on 30.8.2007. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioners-accused, by virtue of FIR (Annexure P5) in the manner indicated hereinabove.
4. The petitioners did not feel satisfied with the initiation of criminal prosecution against them and preferred the instant petition, for quashing the FIR (Annexure P5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC inter-alia on the grounds (i) that the impugned FIR (Annexure P5) has been registered ostensibly on the complaint of Soni Goyal in furtherance to the oblique motive of aforesaid Mahavir Goyal, Soni Goyal and Chuhar Lal Garg by misusing the provisions of Sections 406 and 498-A of I.P.C. The impugned FIR was got registered as a counter-blast and in retaliation to the aforesaid complaint dated 30.08.2007 (Annexure P1) lodged by petitioner no.2 with P.S. Division No.5, Ludhiana under Section 384 read with section 120-B of I.P.C. against Mahavir Goyal, Soni Goyal and Chuhar Lal Goyal and also as a counter-blast to the disassociation and de-linking of Mahavir Goyal by petitioner no.2 from their property and the filing of the civil suit (Annexure P4) by petitioner Criminal Misc.No.M-18643 of 2008 -3- no.1 against Mahavir Goyal and Soni Goyal; (ii) the criminal case was lodged by the complainant with the sole intention to pressurize and blackmail them to transfer their property in the name of her husband Mahavir Goyal; (iii) the allegations in the FIR are absolutely concocted, false, frivolous and evince the element of malafide, after thought and maliciously & vexatiously registered against the petitioners in order to wreak vengeance and the incident of 30.8.2007 and story of payment of Rs.2,50,000/- were concocted by the complainant party; (iv) the complainant has concealed the fact that the Zen car has already been transferred in the name of Soni Goyal (complainant) on 22.4.2008, as per the transfer report/documents (Annexure P9 colly); (v) the dowry articles given at the time of marriage have already been given to the complainant, vide letter (Annexure P10). She did not make any grievance against the petitioners during five years after her marriage. As soon as, petitioner No.2 refused to part and disowned the husband of the complainant from his property, then she filed the false criminal case against them in order to take the revenge and no offence whatsoever is made out against the petitioners. On the strength of aforesaid grounds, the petitioners sought to quash the criminal prosecution against them, as depicted hereinbefore.
5. The complainant-respondent No.2 did not file any reply to deny the specific personal allegations contained in the petition. However, the DSP Crime filed the reply on behalf of State of Punjab (respondent No.1), taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the prosecution that as per the inquiry report (Annexure R1/T) and during the course of investigation, both the parties were called and the complainant’s father-in-law agreed to give the share of Rs.25 lacs from his property to Mahavir Goyal, husband of the complainant, out of which, Rs.10 lacs were already taken by him (husband) and the remaining amount was to be paid subsequently. Consequently, the complainant and her husband agreed to shift to residential HIG Flat No.11-FF, opposite Khalsa College, Ludhiana, as per Criminal Misc.No.M-18643 of 2008 -4- report (Annexure P13). Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has reiterated the allegations contained in the impugned FIR (Annexure P5). However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.
7. Ex facie, the celebrated argument of learned counsel that since there are direct allegations of cruelty, maltreatment and harassment to the complainant by the petitioners, so, no ground for quashing the criminal prosecution against them is made out, is neither tenable nor the observations of Hon’ble Supreme Court in case Central Bureau of Investigation v. K.M.Sharan 2008(4) S.C.C. 471, are at all applicable to the facts of the present case, wherein a criminal case was registered against the then Vice Chairman of the Delhi Development Authority and other senior officials for entering into conspiracy with Dharmbir Khattar and others to give undue favour to M/s DLF Universal Limited, New Delhi in the matter of allowing 300 Floor Area Ratio (FRA) in respect of one of the projects of DLF Universal by charging rates much below the prevailing rates and obtained or agreed to obtain illegal gratification from M/s DLF as quid pro quo. The total bribe amount was 1.10 crores. During the course of investigation and subsequent search conducted at the residence of son of one of the accused A.M.Sharan, who was at that time, Commissioner (Land Disposal, DDA), certain papers/documents relating to assets acquired/expenses incurred by him and his family members besides the cash amount of Rs.36 lacs were recovered and seized by the CBI. The CBI collected sufficient oral as well as documentary evidence constituting the grave Criminal Misc.No.M-18643 of 2008 -5- offences. On the peculiar facts and in the special circumstances of that case, it was observed that “where there are direct allegations and evidence to support the criminal offence, the High Court was not justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under Section 482 Cr.PC.”
8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the complainant in the present controversy, particularly when the Hon’ble Apex Court in cases Dhariwal Tobaco Products Limited and others v. State of Maharashtra and another, 2009(2) SCC 370; M/s Pepsi Foods Limited v. Special Judicial Magistrate 1998(5) SCC 749; Ashok Chaturvedi v. Shitul H.Chanchani 1998(7) SCC 698 and Central Bureau of Investigation v. Ravi Shankar Srivastava (2006)7 SCC 188 has ruled that “whenever the High Court comes to the conclusion that allowing the criminal prosecution to continue would be an abuse of the process of court and that, the ends of justice require that the proceedings should be quashed, it would not hesitate to do so, in exercise of inherent powers irrespective of other factors.”
9. Such thus being the legal position and material on record, now the short and significant question, though important that, arises for determination in this petition is, as to whether the criminal prosecution initiated against the petitioners deserves to be quashed or not under the present set of circumstances?
10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the affirmative and the criminal prosecution cannot be permitted to continue in this respect.
11. As is evident from the record, that the marriage of complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery,weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, Criminal Misc.No.M-18643 of 2008 -6- maltreating her and demanded more dowry articles. Although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She is working as a teacher in National College, Dakhan. Petitioner Nos.1 and 2 are her parents-in-law, whereas petitioner No.3 is her brother-in-law (Devar). She has not intentionally arrayed her husband Mahavir Goyal in a dowry related case in the array of the accused. According to the petitioners that on 30.8.2007, Mahavir Goyal and his wife (complainant) created nuisance in the house, broke the crockery & centre table and threatened the petitioners that in case the half share of the property and the money were not given to them, they would falsely implicate them in some false criminal case. Petitioner No.2 objected to it, then his son Mahavir Goyal, husband of the complainant, slapped him (his father petitioner No.2). The matter was reported to the police by petitioner No.2, through the medium of complaint of same date (Annexure P1). So much so, he disowned his son Mahavir Goyal from his whole movable and immovable properties and published the notice dated 1.9.2007 (Annexure P2) in Hindustan Times, Chandigarh in this connection. At the same time, in order to avoid the possibility of false implication, Sunita Goyal (petitioner No.1) wrote a UPC letter dated 3.9.2007 (Annexure P3 colly), asking her daughter-in-law (complainant) to take all the dowry articles and her other belongings.
12. Not only that, petitioner No.1 filed a civil suit for a decree of permanent injunction restraining the complainant and her husband Mahavir Goyal from interfering in the peaceful possession of their residential house, by way of plaint (Annexure P4 colly). Admittedly, in civil suit, bearing No.206 dated 13.9.2007 filed by petitioner No.1, counsel for the complainant and her husband (defendants therein) suffered a separate statement that they shall not interfere in the possession of the plaintiff in the suit property and they have no objection in case her (petitioner No.1) suit is decreed to that extent. In this manner, on the basis of statements of the parties, the suit of petitioner No.1 was decreed and the Criminal Misc.No.M-18643 of 2008 -7- complainant and her husband were restrained from interfering in her possession over the suit property, vide order dated 28.7.2010 (copy taken on record as Annexure P14).
13. It is not a matter of dispute that neither the complainant nor her husband made any complaint, raising any accusing finger towards the petitioners at any point of time before lodging the FIR (Annexure P5) nor made any such averment/statement during the course of pendency of the civil suit between them. Therefore, the arguments of learned counsel that the petitioners have been falsely implicated to pressurize and blackmail them to transfer the property and the complainant has lodged the false criminal case against them (intentionally excluding her husband in dowry related matter) vexatiously and maliciously in order to wreak vengeance, have considerable force.
14. The matter did not rest there. Even as per the FIR (Annexure P5), the father of the complainant gave a Maruti Zen Car and gold jewellery, weighing 80 Tolas besides cash. It was also alleged that the petitioners demanded more dowry articles and her father gave Rs.2,50,000/- in cash to them. That means, very very vague allegations of demand of dowry and payment of indicated amount are assigned to the petitioners. Above-all, the mere fact that the complainant did not name her husband as accused that the dowry articles were entrusted to him at the time of marriage or he has also demanded the more dowry articles, is indicative of the fact that she colluded with her husband and lodged a false complaint, on the basis of which, the FIR (Annexure P5) was registered against the petitioners without any material/evidence muchless cogent in this behalf.
15. Moreover, the indicated Zen car has already been transferred in the name of complainant, by means of transfer of ownership report/documents (Annexure P9 colly). The petitioners have specifically mentioned in their petition that whatever dowry articles were given at the time of marriage of complainant, have already been given to her, vide Annexure P10 (colly). That is the only reason Criminal Misc.No.M-18643 of 2008 -8- that the complainant intentionally did not file any reply to controvert all these vital personal aspects of the matter contained in the main petition, for the reasons best known to her. In this manner, no overt act or specific role, except one minor incident of 30.8.2007, which appear to have been concocted after the complaint (Annexure P1) of petitioner No.2 and notice (Annexure P2), are attributed to the petitioners. It is very highly impossible to believe that the petitioners would treat the complainant with cruelty or demand the dowry articles from her in the absence of her husband. She appears to have intentionally colluded with her husband in order to grab the property in this regard as discussed hereinabove.
16. It is now well settled proposition of law that, in order to attract the penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioners to indicate that the dowry articles were actually entrusted to them and they have misappropriated the same or they further demanded any dowry articles and evidence in support thereof. All other relatives of the husband cannot, in all cases, be held to be involved in the demand of dowry, especially when in this case, the husband of the complainant is not an accused. In cases, where such accusation is made, the overt acts attributed to persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences related to demand of dowry. As all the essential ingredients to constitute the offences and complicity of petitioners are totally lacking, therefore, to me, no criminal prosecution can legally be permitted to continue against them.
17. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if Criminal Misc.No.M-18643 of 2008 -9- not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction.
18. An identical question came to be decided by this Court in cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of section 498-A IPC.”
19. Sequelly, if the crux of the allegations levelled against the petitioners as discussed hereinabove, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R.(Criminal) 92. Such malafide prosecution if allowed to continue, it will inculcate and perpetuate injustice to the petitioners and is nothing else, but sheer and deep misuse/abuse of process of criminal law in this relevant connection, which is not legally permissible. Therefore, the contrary submissions of learned counsel for complainant “stricto sensu” deserve to be and are hereby repelled Criminal Misc.No.M-18643 of 2008 -10- under the present set of circumstances, as the indicated Bench mark and the ratio of law laid down in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Thus, seen from any angle, to my mind, no offences whatsoever are made out against the petitioners, in the obtaining circumstances of the case.
20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
21. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR (Annexure P5) and all other subsequent proceedings arising therefrom are hereby quashed and the petitioners are discharged from the indicated criminal case registered against them. (Mehinder Singh Sullar)
Judge
21.2.2012
AS
Whether to be referred to reporter ? Yes/No
Denying sex to spouse on first night ground for marriage annulment: Delhi high court
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 21.03.2012
FAO No.185/2001
Smt. Shashi Bala ……appellant. Through: Mr. Atul Bandhu, Adv.
Vs.
Shri Rajiv Arora ……Respondents Through: Mr. R.G. Srivastava, Adv.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim FAO 185/01 Page 1 of 19 filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.
2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty FAO 185/01 Page 2 of 19 to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on FAO 185/01 Page 3 of 19 these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.
3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant FAO 185/01 Page 4 of 19 took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to FAO 185/01 Page 5 of 19 live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.
4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-
(i) Whether the respondent has treated the petitioner with cruelty? (ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the respondent without any reasonable cause or excuse? If so, its effect. The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.
5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one FAO 185/01 Page 6 of 19 year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.
6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. FAO 185/01 Page 7 of 19 Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.
7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even FAO 185/01 Page 8 of 19 towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-
1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.
8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them. FAO 185/01 Page 9 of 19
9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage FAO 185/01 Page 10 of 19 without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:
“In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman’s mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.” The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:
“(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.”
Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the FAO 185/01 Page 11 of 19 authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:- “(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”
Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred FAO 185/01 Page 12 of 19 bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.
10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and FAO 185/01 Page 13 of 19 according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the FAO 185/01 Page 14 of 19 whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.
“55.From the evidence on record, it is gathered that on the wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be performed but the respondent wife refused to participate in the same. This version of PW 2 has been fully corroborated by his father PW 3. The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1 in her cross-examination has stated that their marriage had been consummated on that very night and her husband had come to her and she did not have to persuade the petitioner. On the other hand the petitioner has stated that their marriage could not be consummated on their wedding night and he had sex with his wife for the first time only on 25.2.91. RW1 in her cross-examination has stated that the atmosphere that night was very tense and both the parties could not sleep and they did not speak to each other and her husband had grievance about the insufficient dowry which had been given in the marriage . RW 1 has also admitted that on 18.2.91, she did not take proper food as she was not feeling well. This version of RW1 that she did not take food that night is corroborated by the version of PW1 who has stated that on the wedding night at the time when the dinner was served the attitude of the respondent was indifferent and she did not take any dinner but she took only a little sweet.” FAO 185/01 Page 15 of 19
11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent FAO 185/01 Page 16 of 19 especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the FAO 185/01 Page 17 of 19 best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent.
12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual FAO 185/01 Page 18 of 19 relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.
13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.
KAILASH GAMBHIR, J
21.03. 2012
FAO 185/01 Page 19 of 19
Bail Faq
Can my bail cancelled by court?
Considerations for cancelling the bail are totally different from those which are considered for granting bail….
Bail can be cancelled only under two conditions
1) if it was obtained by supression of facts OR
2) The accused violates any conditions which were imposed while granting the bail…
This judgement you must read. It will solve most of your doubts regarding “Grounds on which bail can be cancelled”
http://498amisuse.wordpress.com/2012/02/15/supreme-court-grounds-on-which-bail-can-be-cancelled/
You may also go through “HC: AB can be cancelled by same session judge if it was obtained by supression of facts”
http://498amisuse.wordpress.com/2011/05/02/hc-ab-can-be-cancelled-by-same-session-judge-if-it-was-obtained-by-supression-of-facts/
And regarding general knowledge about bail read all judgements at
http://498amisuse.wordpress.com/category/resource/bail-resource/judgement-bail/
- Where should I apply for AB? Should I apply to High Court only or any other court can give AB?
- Anticipatory bail has to be applied in the Sessions court or District Court. If your application is rejected in this court then you need to appeal against that order in High Court and then in Supreme Court. Magistrate courts or trial courts or any court below the rank of Sessions or District courts cannot give Anticipatory bail.
- What is AB
- Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
- Here is an explanation of Anticipatory bail given by the Supreme Court
- (http://ipc498a.files.wordpress.com/2007/09/sc-ab-gurbaksh-singh-sibbia-1980.pdf). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file.
Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offenses for which he is arrested.
- (http://ipc498a.files.wordpress.com/2007/09/sc-ab-gurbaksh-singh-sibbia-1980.pdf). A person can apply for AB even after the FIR is filed, but not if the person has been arrested. Read the excerpts to get an understanding of AB:
- WHEN CAN A PERSON APPLY
- When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him,
He has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
- When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him,
- CONDITIONS THAT MAY BE IMPOSED BY THE COURT
- The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
(a) a condition that the person shall make himself available for interrogation by the police officer as and when required;
(b) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(c) a condition that the person shall not leave India without the previous permission of the court.
- The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
- ARREST
- If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.
- ANTCIPATORY BAIL NOT A BLANKET ORDER
- The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.
- CANCELLATION
- An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
- Factors, which are relevant for considering the application for grant of anticipatory bail, are :
- The nature and gravity or seriousness of accusation as apprehended by the applicant;
The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested;
The possibility of the appellant, if granted anticipatory bail, fleeing from justice.
- The nature and gravity or seriousness of accusation as apprehended by the applicant;
- ANTICIPATORY BAIL NOT AVAILABLE IN UTTAR PRADESH
Woman arrested for lodging false complaint
Woman arrested for lodging false complaint
Bangalore, March 7 2012, DHNS:
The KG Nagar police arrested a woman for lodging a false complaint that she was robbed of her gold chain by unidentified persons.
On Wednesday morning, Bhagyalakshmi had gone to her relative Shanthakumar’s house in KG Nagar, and left her gold chain in the bathroom. She went out thereafter.
Once she reached Allama Prabhu Road, she reportedly called Shanthakumar and told him that two men accosted her and robbed her of the gold chain.
Shanthakumar rushed to the spot, and took her to the police station to lodge a complaint.
When the police took her to the spot where she was supposedly robbed, her replies raised suspicions.
Meanwhile, a domestic help at Shanthakumar’s house found the gold chain in the bathroom and alerted him. The police then confronted Bhagyalakshmi, who admitted that her complaint was false. She was subsequently arrested. Further investigations are on.
http://www.deccanherald.com/content/232849/woman-arrested-lodging-false-complaint.html
HC: Maintenance under HMA25 is valid even if divorce is rejected
Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
in
S.B.Civil Misc.Appeal No.1049 of 2010
Vishram Singh
vs.
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
PA
HC: Maintenance under HMA25 is valid even if divorce is rejected
Rajasthan High Court
Vishram Singh vs Smt Bholi Bai on 1 March, 2012
name=”textfield” rows=”27″ cols=”100″>
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur
S.B.Civil Misc. Stay Application No.785 of 2010
in
S.B.Civil Misc.Appeal No.1049 of 2010
Vishram Singh
vs.
Smt. Bholi Bai @ Bholeshwari @ Kamlesh
Date of Order : 01.3.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr.J.R.Tantia for the appellant/applicant.
Mr. Pankaj Gupta for the respondent.
By the Court:
1.Heard learned counsel for the parties.
2.Vide order dated 16.4.2010, this court while issuing notice to the respondents had directed the appellant to continue to pay the maintenance at the rate of Rs.5,000/- per month and stayed the recovery of arrears of maintenance. Today, the matter has come up for confirmation of the said stay order.
3.It has been sought to be submitted by learned counsel Mr.J.R.Tantia for the appellant that the court below could not have passed the permanent alimony under section 25 of Hindu Marriage Act, when the divorce petition of the appellant was dismissed. According to him, in view of section 25(1) of the said Act, the amount of arrears be stayed during the pendency of the appeal. There is no force in the submissions of learned counsel for the appellant, inasmuch as under section 25 of the said Act, any court exercising its jurisdiction under the said Act may at any time of passing of any decree or at any time subsequent thereto, on application to it for the purpose of maintenance direct the concerned respondent to pay maintenance. In the instant case, the court below had specifically framed the issue with regard to the permanent alimony to be paid to the respondent-wife and while dismissing the divorce petition filed by the appellant, the court had directed the appellant to pay maintenance at the rate of Rs.5,000/- per month from the date of application i.e. 30.8.2005 till the date of payment. There is no reason to stay the said order. Hence, in the opinion of the court, the appellant is liable to pay entire amount arrears with interest as directed by the court below and also to continue to pay Rs.5,000/- per month to the respondent-wife.
4.In that view of the matter, it is directed that the appellant shall deposit the entire amount of arrears within eight weeks from today.
5.The application stands disposed of accordingly.
(BELA M. TRIVEDI) J.
om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Om Prakash
PA
HC: Dying declaration itself does not spell out offence punishable under Section 306 as also under Section 498A IPC: Acquitted
Bombay High Court
Criminal Appeal No. 275 Of 1996 vs Unknown on 17 February, 2012
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 275 of 1996
Applicant : State of Maharashtra
versus
Respondent : Vasant Kumar s/o Dindayal Chudiwale, aged about 35 years, resident of Hospital
Road, Wardha
Mr S. S. Doifode. Additional Public Prosecutor for appellant-State Mr Ashish Chawre, Advocate for respondent
———
Criminal Revision Application No. 114 of 1996
Applicant : Madanchand s/o Saheblal Kashyap, aged about 70 years, resident of Central
Avenue, Bhawsar Chowk, Nagpur
versus
Respondents : 1) The State of Maharashtra 2) Vasant Kumar s/o Dindayal Chudiwale,
aged about 35 years, resident of Hospital
Road, Wardha
2
Mr Sharma, Adv h/f Mr R. M. Daga, Advocate for applicant Mr S. Doifode, Additional Public Prosecutor for State Mr Ashish Chawre, Advocate for respondent no. 2
Coram : A. P. Bhangale, J
Dated : 17th February 2012
Oral Judgment
1. By Criminal Appeal No. 275 of 1996 and Criminal Revision Application No. 114 of 1996, acquittal of original accused Vasant Kumar Chudiwale is under challenge.
2. Accused Vasant Kumar had married with Maya on 27.6.1985 at Wardha. After marriage the couple resided at Wardha and Amravati where accused was working. Out of wedlock, accused and Maya were begotten with girl child. After two years of marriage, it is alleged that accused started ill-treating Maya on the ground that she had illicit relations with Rakeshkumar (PW 8), husband of her sister Meena. He insisted upon Meena to admit to the position and he will forgive her. Maya declined to admit such position which was non- existent. They came to Nagpur some time on 19.7.1987 and stayed at the house of Madanchand, uncle of deceased Maya. Looking at the tense situation, Madanchand called father and brother of Maya and a meeting took place in which it was decided to obtain clarification from Rakeshkumar. Therefore, brother of Maya by name Ramkumar went to Raipur, however, in the mean-while on 22.7.1987 Maya committed suicide by pouring kerosene on her person and 3
setting herself on fire in her uncle Madanchand’s house. Special Executive Magistrate recorded the dying declaration of Maya at the Government Hospital. It is alleged that Maya blamed accused for her suicide. Maya died on 25.7.1987. Brother of Maya lodged report at Police Station, Tahsil, Nagpur. After investigation, accused was charge-sheeted for the offences punishable under Sections 498A and 306 of the Indian Penal Code.
3. Learned Assistant Sessions Judge, Nagpur convicted the accused on both the counts and sentenced him to suffer rigorous imprisonment for one year each for the offences punishable under Sections 498A and 306 of the Indian Penal Code and directed him to pay fine of Rs. 500/- on each count.
4. Accused preferred appeal against the order of conviction and sentence and learned Extra Joint District Judge and Additional Sessions Judge, Nagpur while allowing the appeal, set aside the same. Aggrieved by the order of acquittal, the State has preferred appeal while uncle of deceased Maya by name Madanchand has preferred revision.
5. Learned Additional Public Prosecutor appearing for State and learned counsel appearing for revision-applicant tried to assail the judgment of acquittal by pointing dying declaration and they contend that Maya clearly and in specific words stated that her husband (accused) always used to say that she had illicit relations with her Jijaji (P. W. 8 Rakeshkumar) which she could not tolerate and that was the reason why she poured kerosene on her person and set herself on fire. Learned counsel further contend that Maya also blamed Rakeshkumar because of whose version, her husband suspected her chastity.
6. It is not in dispute that main plank of the prosecution case is the 4
said Dying Declaration (exhibit 35). Said Dying Declaration was recorded by the Special executive Magistrate and it bears thumb impression of Maya. It was recorded in Hindi language. She disclosed her name as Maya Chudiwale d/o Kewalchand Kashyap and Vasant Chudiwale as husband’s name and stated that she was residing at Wardha with joint family consisting of mother-in-law, brother- in-law, wife of brother-in-law. When questioned about how she was burnt, she disclosed thus :
Then she was asked about the cause, she stated thus : Reading the above dying declaration as it is, would at the most indicate intolerant nature of deceased as a result of which she decided to end her life by pouring kerosene upon her own body and igniting it. The reason stated was that accused was suspecting because of some statements made by Rakeshkumar (who is not acused) that he had illicit relation with Maya. In order to constitute 5
the offence under Section 306 of the Indian Penal Code, it is necessary that there must be some evidence that the accused has abetted the deceased to commit suicide. It is necessary that accused must have instigated the person who has committed suicide or intentionally aided by any act or illegal omission causing the doing of that thing. The Apex Court in Ramesh Kumar vs. State of Chhatisgarh reported in (2001) 9 SCC 618 has held as under : “Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the 6
offence of suicide should be found guilty.”
7. Thus, there should be positive act on the part of the accused necessary to spell mens rea. It is settled legal position that “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as “to go and die”, cannot be taken to be uttered with requisite mens rea. Section 306 of the Indian Penal Code requires abetment as an essential ingredient which is defined under Section 107 of the Penal Code which lays down that “a person abets the doing of a thing who, firstly instigates any person to do that thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing, is said to have committed the abetment.
8. Bearing the above principles in mind, in the present case, the dying declaration in question does not spell out offence punishable under Section 306 as also under Section 498A of the Indian Penal Code. Considering the evidence led before the trial Court, in my opinion, the lower Appellate Court was right in reaching to a conclusion of acquittal and to set aside the judgment and order passed by the trial Court for want of essential ingredients to make out offences punishable under Section 306 and 498A of the Indian Penal Code. I do not find any valid ground or reason to interfere with the impugned judgment and order. 7
9. In the result, both the criminal appeal as well as criminal revision application fail and are dismissed.
A. P. BHANGALE, J
joshi
Court orders man to apologize to estranged wife on Facebook
A court in the US has ordered a man to post an apology to his estranged wife on his Facebook page for 30 days to avoid a jail sentence for blasting her on the social networking site, a case that stirred controversy over freedom of speech rights.
Mark Byron, a Cincinnati-based photographer, was so bothered by his pending divorce and child visitation issues that he wrote a nasty note to “vent” out his frustration.
“I just went on Facebook to vent,” Byron said. “I kind of likened it to having a drink with a friend at a bar and telling them about things.”
The note implied that his wife was out to ruin his life. “If you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely – all you need to do is say you’re scared of your husband or domestic partner and they’ll take him away!” the note on his Facebook wall said.
Despite Byron blocking his wife from seeing his Facebook wall, she learnt of the post which touched off a battle that resulted in a Hamilton County judge ordering Byron jailed for his Facebook rant.
To avoid 60-days in jail, Byron was asked to post on his page an apology to his wife and all of his Facebook friends, something free-speech experts found troubling.
“The idea that a court can say, ‘I order you not to post something or to post something’ seems to me to be a 1st Amendment issue,” free-speech expert Jack Greiner said.
Magistrate Paul Meyers said Byron could either go to prison and pay a USD 500 fine or post an apology and pay child support.
The apology was written by the judge and Byron has been posting all the news stories about his case on his Facebook page.
NRI woman dupes Punjabi husband, seeks divorce
MOGA: Close on the heels of a Canadian NRI conspiring to eliminate his wife by hiring contract killers, a case of an Australian NRI woman duping her Punjabi husband has come to light.
Bagipura village resident Gurwinder Singh had married Amandeep Kaur, who has been living in Australia, in 2009 and sent her Rs 16.70 lakh for further studies, said family members of Gurwinder.
While leaving for Australia after solemnizing the marriage, Amandeep had promised to help Gurwinder reach Australia after getting visa for him, which she never did. Instead, she sent divorce papers to Gurwinder some days ago.
Police have booked Amandeep Kaur, her father Ajmer Singh, mother Jasbir Kaur and brother Amarinder Singh for fraud and cheating. Amarinder was arrested on Wednesday.
It was on Tuesday when Moga’s Nihal Singh Wala police booked Gurjit Singh of Canada for allegedly hiring contract killers to eliminate his Punjabi wife Harpreet Kaur. The victim had told the police that she came to know of her husband marrying again in Canada, and had been pressurizing her for divorce.
कोर्ट ने कहा, बनावटी थी निशा की दहेज वाली कहानी
नोएडा।। याद है आपको नोएडा की निशा शर्मा? 2003 में एक दिन अचानक मीडिया ने सेक्टर-56 में रहने वाली निशा को सुर्खियों में ला दिया, क्योंकि उसने दहेज मांगे जाने पर भरे मंडप में शादी से इनकार कर दिया था और बरात लौट गई। लेकिन कोर्ट ने बुधवार को नौ साल पहले निशा की ओर से दर्ज कराए गए दहेज के आरोप को बनावटी कहानी ठहरा दिया।
निशा से शादी करने पहुंचे मुनीष दलाल ने इस केस में नौ साल तक कोर्ट के चक्कर काटे। बुधवार को दिल्ली के विकासपुरी स्थित अपने घर में मुनीष ने कहा कि हमें इंसाफ तो मिला, लेकिन जिंदगी बर्बाद होने के बाद। हम इस मामले को ऐसे ही नहीं छोड़ेंगे। झूठे केस में फंसाने पर निशा और उसके पिता डी.डी. शर्मा के खिलाफ हर्जाने का केस करेंगे।
कोर्ट ने बुधवार को निशा शर्मा के दहेज केस को न सिर्फ बनावटी कहानी माना, बल्कि मामले में एकतरफा रिपोर्टिंग करके चारों आरोपियों की मानहानि करने के आरोप में एक बड़े अखबार के रिपोर्टर के खिलाफ मुकदमा शुरू करने का आदेश भी दिया। इन चारों आरोपियों मुनीष, उनकी मां विद्या दलाल, बुआ सावित्री देवी और निशा के कथित प्रेमी नवनीत को बाइज्जत बरी कर दिया गया। कोर्ट ने कहा कि जब निशा शर्मा की मुनीष दलाल के साथ शादी ही नहीं हुई, तो दहेज ऐक्ट कैसे लागू हो सकता है।
सीजेएम ने निशा की कहानी पर कई सवाल खड़े किए। फैसला सुनने के लिए निशा की ओर से वकील समेत कोई भी व्यक्ति कोर्ट में नहीं था। इससे पहेल भी इस केस की सुनवाइयों में गवाही देने निशा शर्मा कभी नहीं पहुंची और न ही उनके पिता डीडी शर्मा शादी की तैयारियों की सीडी और जरूरी सबूत पेश कर सके।
http://navbharattimes.indiatimes.com/articleshow/12093143.cms
Woman chews off boy’s fingers in jail
AJMER: In a freak incident, a 35-year-old woman chewed off the fingers of a four-year-old-boy in Central Jail in Ajmer on Wednesday.
The woman Barfi, who has been serving sentence for throwing her son from a running train, attacked the child who has been staying with his mother, also a prisoner. While trying to rescue her son, the woman too was attacked.
The jail administration has lodged a complaint against Barfi at the Civil Lines police station, and sent the injured to JLN Hospital.
According to sources, the incident occurred during lunch hour, when Salma went to collect her food, and her son Arman was playing in the jail premises.
“Barfi saw my son and started beating him. She later, chewed off his fingers,” said an inconsolable Salma. Seeing her son crying in pain, she rushed to save him. “But, Barfi attacked me and bit my hand,” she said.
The child has been in state of shock, and not uttered a word since the incident occurred.
Barfi was arrested by the Railway police last month when she had thrown her child from a train running between Jaipur and Ajmer. She was remanded in judicial custody.
Sources said Barfi would spend long hours sitting quietly in a corner but often got angry on seeing Arman.
Jail administration, however, denied to comment on the incident.
Separate Investigation & Prosecution Cadre Proposed for Speedy Justice
PrintGovernment of India
Ministry of Home Affairs
Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping.
He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.
While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it.
He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.
The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:
The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.
Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.
Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.
The following members of Consultative Committee were present at the meeting:
Shri H.K. Dua, Nominated, Dr. K. Keshava Rao, INC, Andhra Pradesh, Shri Thomas Sangma, NCP, Meghalaya, Dr. Vijay Mallya, IND, Karnataka from Rajya Sabha. Shri Bhisma Shankar alias Kushal Tiwari, BSP, U.P., Shri D.B. Chandre Gowda, BJP, Karnataka, Shri Ismail Hussain, INC, Assam, Shri J.P. Aggarwal, INC, Delhi, Shri Kalyan Banerjee, AITC, W.B., Shri Lalu Prasad, RJD, Bihar, Dr. Rattan Singh Ajnala, SAD, Punjab, Shri Sheeshs Ram Ola, INC, Rajasthan, Dr. Thokchom Meinya, INC, Manipur, Shri Yogi Aditya Nath, BJP, U.P. from Lok Sabha.
***
IJ/PT
Wife fined 2 lakh wrt DV Act proceedings for “making mockery of the judicial process”, Contempt and for suppression of facts!!
Delhi High Court
Douglas Breckenridge vs Jhilmil Breckenridge on 21 February, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 20.12.2011
% Judgment delivered on: 21.02.2012 + CONT.CAS(C) 815/2011 and C.M. No. 20360/2011 DOUGLAS BRECKENRIDGE ….. Petitioner Through: Mr. Neeraj Kishan Kaul, Senior
Advocate, with Mr. P. Banerjee &
Mr. Atreyi Chatterjee, Advocates.
versus
JHILMIL BRECKENRIDGE ….. Respondent Through: Ms. Geeta Luthra, Senior Advocate,
with Mr. Harish Malik, Advocate.
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The present petition has been preferred under Sections 10 and 12 of the Contempt of Courts Act, 1973 read with Article 215 of the Constitution of India, with the allegations to the effect that the respondent has deliberately and willfully disobeyed the orders dated 30.09.2010 and 05.04.2011 passed by the Guardianship Court, Saket Courts, New Delhi, CONT.CAS(C) 815/2011 Page 1 of 57 passed in Guardian Case No.66/2010 and also the orders of the Metropolitan Magistrate dated 13.10.2011 in CC No.332/1, and of the Additional Sessions Judge dated 19.10.2011 passed in Protection of Women from Domestic Violence Act, 2005 (DV Act) proceedings.
2. The petitioner and the respondent are husband and wife. Out of their wedlock, they have four sons. The petitioner has preferred a divorce petition against the respondent.
3. The petitioner filed a custody petition before the Guardianship Judge, Saket, New Delhi. In the petition the petitioner stated that he resides with his three elder children at C-87, Anand Niketan, New Delhi, of whom he has custody, whereas the respondent resides with her parents at 68, Friends Colony (West), New Delhi. According to the petitioner, the respondent abandoned the matrimonial home on Raksha Bandhan day, i.e. 24.08.2010. She left the three elder children with the petitioner, and took away the youngest child Liam with her. The custody petition had been preferred to seek custody of the youngest son Liam from the respondent wife. The petitioner also moved an application in those proceedings to seek interim custody under Section 12 of the Guardians and Wards Act, 1890. CONT.CAS(C) 815/2011 Page 2 of 57
4. The petitioner apprehended that the respondent would take the child Liam with her to U.K., where she was allegedly having an adulterous relationship with one Dr. Nooruddin Ahmed of Aylesbury, U.K. On 09.09.2010, the Guardianship Judge recorded the undertaking of the respondent that she shall not take the child Liam from the territorial jurisdiction of the Court, without the permission of the Court.
5. The proceedings before the Guardian Court were fixed on 30.09.2010. The respondent had, in the meantime, left for U.K. to allegedly meet her alleged paramour. She could not take the child Liam with her on account of her undertaking given to the Guardianship Judge on 09.09.2010. According to the petitioner, the child Liam, who was left by the respondent with her parents in Friends Colony, was handed over by his parents-in-law to him.
6. Accordingly, on 30.09.2010, the child Liam was produced by the petitioner before the Court. The learned Guardianship Judge saw for himself that the petitioner had the custody of the child Liam, who was produced in Court by the petitioner. Consequently, the learned Guardianship Judge, upon consideration of the matter and looking to the facts and circumstances of the case, that the custody of the child Liam had come into the hands of the CONT.CAS(C) 815/2011 Page 3 of 57 petitioner, disposed of the application under Section 12 of the Guardian and Wards Act., 1890.
7. The order dated 30.09.2010 is relevant and, therefore, reproduced herein below:
“G No 66/10
30.09.2010
Present: Sh.P. Banerjee and Liza Baruah advocate for petitioner with petitioner.
None for respondent.
In the morning one advocate appeared on behalf of respondent and filed reply to the petition of the petitioner along with extra copy for the petitioner. The copy of the petition has been supplied to petitioner.
It is informed by counsel for petitioner that
respondent left Delhi and went to U.K. On 16.09.2010 by leaving the child Liam at her father’s home. It is further submitted that the parents of respondent dropped the child at the residence of petitioner and since, then the child in the custody of petitioner. It is further submitted that since the child has already come in the custody of petitioner, therefore, the application for interim relief may kindly be disposed of. Considered. The petitioner is present with the child in the court. Keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody therefore the prayer made in an application under Section 12 of the Guardian and Wards Act stands satisfied, thus, the application under Section 12 is disposed of.
CONT.CAS(C) 815/2011 Page 4 of 57 Petitioner seeks time for filing rejoinder to the reply of the respondent. Heard. Allowed. Let the same be file within three weeks from today with advance copy to opposite party. Be put up for rejoinder the petitioner, if any, otherwise admission denial of documents and framing of issues on 27.11.2010.” (Emphasis supplied)
8. In December 2010, the respondent moved an application before the Guardianship Judge. In this application, the respondent contended that the petitioner had, inter alia, “barred access of the applicant to all four children of the parties….. ….. …..” She complained that she is denied the use of any room in the matrimonial house, and she is forced to stay only in the living room. She also complained that the keys of the house are not provided to her. She also complained that she is not allowed to join her children and the petitioner on family outings. The prayer made by the respondent in this application was to seek a direction “that the children of the parties are allowed to access to the Applicant and be permitted to interact with her and that no inconvenience, interference or annoyance be caused in her relationship with their children and that the Non-Applicant not assume to himself the unilateral authority to decide how the children should behave or when and which manner the Applicant, subject to his absolute discretion, associates and interacts with them”.
CONT.CAS(C) 815/2011 Page 5 of 57
9. While this application was pending, the matter again came up before the learned Guardianship Judge on 05.04.2011. The parties, with a view to amicably settle their disputes, agreed to refer the matter to the Mediation Centre, Delhi High Court, New Delhi. The Court, inter alia, gave the following directions on the said date:
“Heard. Till the parties explore the possibility for amicable resolution of dispute before the Mediation Centre, the following arrangement is made with respect to the visitation rights of the respondent with the minor children without prejudice to the rights and contentions of both the parties.
1. The petitioner has agreed that he will hand over the key of the house to the respondent for having free access to the house.
2. It has been agreed between the parties that the respondent will have free access to all the minor children so that she may have healthy relationship with the children and she may offer motherly affection to them.
3. The respondent is not permitted to take the minor children out of NCR.
The aforesaid arrangement shall continue till further orders.
Matter be put up for compromise between the parties, if any, otherwise for arguments on application under Order 7 Rule 11 CPC moved by the respondent and other pending applications of parties, if any, on 20.05.2011. Copy of order be given dasti to both the parties.” (Emphasis supplied) CONT.CAS(C) 815/2011 Page 6 of 57
10. While the aforesaid orders were holding sway, the respondent, it is alleged, picked up Liam from the school on 13.10.2011 at about 1:30 p.m. and disappeared without intimating as to where she was taking Liam. Upon enquiry, it transpired that Liam had been taken by the respondent to her place of residence, i.e. 68, Friends Colony (West), New Delhi.
11. The respondent, it appears, instituted proceedings under Section 12 of the DV Act on 12.10.2011, and moved an interim application in those proceedings to seek a restraint against the petitioner from interfering in the respondent’s custody of the minor son Liam. The definite case of the respondent was that she had the actual custody of child Liam.
12. This petition under Section 12 of the DV Act was registered as CC No.332/1 and came up before the learned Metropolitan Magistrate on 13.10.2011. The respondent/complainant was represented through her senior counsel Ms. Geeta Luthra with Mr. Sanjeev Sahay, Advocate. The petition had been filed by Sh. Shashank Kumar Lal, Advocate on behalf of the respondent. The learned Metropolitan Magistrate, after hearing the arguments of the respondents counsels, passed, inter alia, the following order:
CONT.CAS(C) 815/2011 Page 7 of 57 “Present; Complainant and child with Sr. Adv. Geeta Luthra and Sanjeev Sahay, Adv.
Arguments heard. It is stated by Sr. counsel that there is imminent apprehension that the respondent may remove the youngest child namely Liam from the custody of aggrieved person unlawfully.
I have gone through the petition filed by the complainant as well as considered the submissions carefully. In para no. 68 of the petition filed by the aggrieved person there is reference to the proceedings filed by the respondent herein with regard to the youngest child Liam in Guardianship court. However, the language used in the said para is ambiguous and does not reflect clearly the orders passed by the Ld. Judge in the Guardianship court. Counsel for complainant seeks time to file amended petition and also seeks liberty to file orders passed in the Guardianship court in the petition filed by the respondent.
Put up for consideration on 14.10.2011 at 3:00 pm.” (emphasis supplied)
13. From the aforesaid, it is clear that the learned Metropolitan Magistrate noticed the averment made in para 68 of the petition preferred by the respondent under Section 12 of the DV Act and, as the same appeared to be ambiguous, granted time to the respondent/complainant to file an amended petition, and also to file orders passed in the guardianship petition by the Guardianship Court.
CONT.CAS(C) 815/2011 Page 8 of 57
14. It appears the respondent filed an application to seek amendment, inter alia, in para 68 of the petition under Section 12 of the DV Act. After incorporating the aforesaid corrections, the corrected para 68 of the said petition reads as follows. For the sake of better understanding, the words which have been replaced have also been incorporated, but have been struck of.
“68. In order to succeed in his purpose to discredit the complainant by fabricating and creating evidence, the respondent had filed two petitions against the complainant (1) guardianship of the youngest child under Section 7 and 10 of the Guardians and Wards Act. The said child was of around 4 years of age and the petition was filed in August, 2010. Although the respondent had sought directions for handing over the custody of the child Liam to from the complainant, no such Order was made however, the
respondent complainant did not have any objection to the Order regarding Non removal of child Liam from the territorial jurisdiction of the Hon’ble Court as the complainant is residing and has been working for gain within the territorial jurisdiction of the Hon’ble Court. (2) Petition under Section 27(1) (d) (e) of the Special Marriage Act for Decree of Divorce of Marriage on the alleged ground of cruelty, unsoundness of mind and adultery. The said petition was filed on 07.01.2011″. (amended words have been shown in bold)
15. It appears, the respondent produced only an uncertified copy of the statement made by her on 09.09.2010 in the guardianship proceedings, before the learned Magistrate dealing with the D.V. Act proceedings. The CONT.CAS(C) 815/2011 Page 9 of 57 respondent/complainant did not file the order dated 09.09.2010, and also did not file the subsequent orders passed in those proceedings, including the orders dated 30.09.2010 and 05.04.2011, as aforesaid.
16. On 14.10.2011, the learned Metropolitan Magistrate passed the order, the relevant extract whereof reads as follows: “C.C. No.332/1
14.10.2011
Present; Complainant with Sr. Adv. Ms. Geeta Luthra along with Adv. Jatin Sehgal, Shashank
Kumar Lal.
An application has been filed now on behalf of
complainant seeking permission to correct the typographical errors in the petition filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act). It is stated by counsel for complainant that due to inadvertence, certain typographical errors have occurred in the petition which are stated in the instant applications. The counsel for complainant further requests that correct complaint may be taken on record. Heard. The errors stated by the
complainant in the instant application appear to be only typographical errors and do not change the cause of action in any manner. Therefore, application is allowed. Amended/corrected petition under Section 12 of DV Act is taken on record. Counsel for complainant has also filed uncertified copy of statement dated 09.09.2010 made by the complainant in the court of Ms. Ravinder Bedi, JSCC CUM ASJ Guardian Judge. However, the complainant has not filed any order dated 09.09.2010 passed by Ld. Guardian Judge.
CONT.CAS(C) 815/2011 Page 10 of 57 File perused. Arguments heard. This is a petition under Section 12 of DV Act. There are sufficient grounds to summon the respondent.
xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx
At this stage, it is stated by counsel for complainant that complainant and respondent are residing together
presently at C-87, Anand Niketan, New Delhi. It is also stated by counsel for complainant that there is imminent apprehension that the respondent, who is a US citizen, may remove the youngest child of the parties namely Liam Dorje Breckenridge outside the territorial jurisdiction of the court. Therefore, counsel for complainant has sought ex-parte interim protection to the respondent not to interfere in the custody of minor son Liam Dorje
Breckenridge aged about 5 years with the complainant. xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx
I have bestowed my careful consideration to the
submissions of Ld. Sr. Adv. for complainant and also perused the petition filed under Section 12 of DV Act along with documents. The respondent has already filed petition before the Guardianship court under Section 7 and 10 of Guardians and Wards Act with regard to the custody of minor son Liam Dorje Breckenridge, which is pending consideration before Ld. Guardian Judge. In the
circumstances of the case, I am of the opinion that the aggrieved person is entitled for some ex-parte interim protection order under Section 21 of DV Act. Accordingly, respondent is restrained from removing the child Liam Dorje Breckenridge from the territorial jurisdiction of this court till further orders. No ground is made out for passing any other order at this stage. The applicant is directed to serve the instant ex-parte order passed today on the respondent forthwith by way of RC and filed an affidavit to CONT.CAS(C) 815/2011 Page 11 of 57 this effect within 3 days. Copy of this order be given dasti to the aggrieved person.” (Emphasis supplied)
17. According to the petitioner, the aforesaid order did not satisfy the respondent, as this order merely injuncted the petitioner from removing the child Liam from the territorial jurisdiction of the Court till further orders. However, the said order did not vest custody of the child Liam in the respondent, which had passed into the hands of the petitioner, as observed by the learned Guardianship Judge in his order dated 30.09.2010. The respondent, therefore, preferred an appeal before the District and Sessions Judge, Saket under Section 29 of the DV Act.
18. The grievance made by the respondent in her appeal under the DV Act was to the following effect:
“The Ld. Trial Court without taking into consideration the facts and circumstances and the apprehension of the appellant passed an erroneous impugned order whereby the Ld. Trial Court after considering that the appellant has the custody of minor child, restrained the respondent from removing the minor child outside the territorial jurisdiction of this Hon’ble Court and by inadvertently not mentioning that the respondent should also be restrained from removing the child from the custody of the
Appellant. Copy of the Domestic Violence Complaint along with all the annexures is annexed as ANNEXURE P-2. Furthermore, the Ld. Trial Court committed an error while passing the impugned order by not granting a stay CONT.CAS(C) 815/2011 Page 12 of 57 to the appellant from dispossession, even after taking into consideration that the appellant is living in the shared household with the respondent and all four children, where she has a legal right. Therefore, the appellant being aggrieved from the impugned order is filling the present appeal as there is no other efficacious remedy available.”
19. From the aforesaid, it is clear that the definite and positive case of the respondent before the appellate court was that she had the actual physical custody of the child Liam, when the petition under the DV Act was preferred and also when she preferred the appeal under the aforesaid Act.
20. The learned ASJ dealing with the respondents said appeal passed an order on 19.10.2011. The relevant extract from the said order reads as follows:
“19.10.2011
Present: Ms. Geeta Luthra Senior Advocate with Sh. Jatin Sehgal, Ld. Counsels for the
applicant/appellant.
xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx I have heard the submissions of the Ld. Counsel. The only urgent relief on which the ld.Counsel for the applicant/appellant had laid emphasis is regarding the custody of the child namely Master Laim Dorge
Breckenridge aged about five years. This child is already with the applicant/appellant namely Jhilmil Breckenridge. It is mentioned in the complaint under Section 12 of the Act in Para 68 that respondent Doughlas Breckenridge has filed a CONT.CAS(C) 815/2011 Page 13 of 57 petition under Section 7 and 10 of the Guardian and Wards Act for the custody of the minor child namely Master Liam Dorge Breckenridge. In the proceedings before the Guardian Judge the applicant/appellant Jhilmil
Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge
Breckenridge is with the applicant/appellant.
Ld. Counsel for the applicant/appellant has submitted that the applicant/appellant has genuine apprehension that the respondent in the Appeal namely Doughlas Breckenridge may not deprive her from the custody of the child Master Liam Dorge Breckenridge forcefully and illegally. Therefore, she has sought for some interim protection till Appeal heard on merit.
I have considered the facts and circumstances of the case and gone through the Trial Court Record and the urgency of the relief which has been sought.
Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.
Since the matter is now listed for 11.11.2011 before the concerned court, the matter will be taken up on the said date. keeping in view the nature of the matter, I deem it appropriate to issue notice to the respondent on filing of CONT.CAS(C) 815/2011 Page 14 of 57 PF/RC regarding the Appeal for the date already fixed. File be sent back to the concerned court.” (emphasis supplied)
21. In the aforesaid background, the submission of Mr. Neeraj Kishan Kaul, learned senior counsel for the petitioner is that the respondent has blatantly, deliberately and willfully breached the orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge, which clearly acknowledge and recognize the fact that the custody of the child Liam had passed into the hands of the petitioner, and was with the petitioner. The Respondent mis-stated and misrepresented before the Ld. MM as well as before the Ld.ASJ dealing with the DV Act proceedings, that she had the custody of the child Liam, by only producing her own undertaking recorded before the Ld. Guardianship Judge on 09.09.2010, and by suppressing the subsequent proceedings and orders of the Guardianship Court, and in particular the orders/ proceedings dated 30.9.2010 and 05.04.2011. Under the cover of the orders obtained from the learned Metropolitan Magistrate in proceedings under the DV Act, which have been obtained by suppression of the proceedings and orders of the learned Guardianship Judge, the respondent has sought to take away the child Liam from the custody of the petitioner, and into her own custody. Mr. Kaul, therefore, submits that the CONT.CAS(C) 815/2011 Page 15 of 57 orders dated 30.09.2010 and 05.04.2011 stand blatantly and willfully breached by the respondent.
22. He further submits that the conduct of the respondent in not disclosing the proceedings and orders passed in the guardianship case on 30.09.2010 and 05.04.2011, despite the directions of the learned Metropolitan Magistrate dealing with the DV Act complaint, as well as her conduct in not filing the said proceedings of the guardianship case in her appeal under the DV Act before the learned ASJ, clearly tantamount to gross abuse of the process of the Court on account of suppression of the said proceedings; to playing a fraud upon the court, and; also amounts to contempt of court. In this regard, he places reliance on the decision of a Division Bench of this Court in Satish Khosla v. Eli Lilly Ranbaxy Limited & Anr., 71(1998) DLT 1 (DB).
23. Ms. Geeta Luthra, learned senior counsel appearing for the respondent has argued that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not qualify to be termed as “order” as defined in Section 2(14) of the Civil Procedure Code (CPC). She submits that an “order” within the meaning of the CPC mean the formal expression of any decision of a civil court which is not a decree. She submits that the so-called order CONT.CAS(C) 815/2011 Page 16 of 57 dated 30.09.2010 does not contain any decision of the learned Guardianship Judge. In fact, the said so-called order was obtained by the petitioner behind the respondents back by making a self serving statement before the Court. She submits that there was no question of the respondent agreeing to the petitioners claim that he had got the custody of the minor child Liam, as the respondent on the same day, i.e. 30.09.2010 filed her reply in the guardianship proceeding clearly stating that the custody of the child Liam was with her.
24. Ms. Luthra submits that even the so-called order dated 05.04.2011 is not an order within the meaning of Section 2(14) CPC. These proceedings merely record that the parties have agreed that the matter be referred to the Mediation Centre, and the order also records the arrangement arrived at by the Court with regard to visitation rights of the respondent qua the minor children.
25. She submits that even the petitioner admits that the custody of the minor child Liam was with the respondent, and it is precisely for this reason that the petitioner preferred the guardianship petition. She submits that the respondent never ever gave up the custody of her minor child. The respondent continued to have the custody of the minor child Liam CONT.CAS(C) 815/2011 Page 17 of 57 inasmuch, as, she was staying in and out of the matrimonial home, i.e. C-87, Anand Niketan, New Delhi with her children and, in particular, the minor child Liam.
26. In para 13.3 of the guardianship petition, the petitioner himself acknowledges that the respondent left the matrimonial home on 24.08.2010 and had taken with her child Liam. It is an acknowledgment of the fact that the custody of the child Liam was with the respondent, and it is for this reason that the respondent was asked to give an undertaking to the Court that she would not remove the child Liam from the territorial jurisdiction of the Guardianship Court without the permission of the said Court, on 09.09.2010. She further submits that there is no order of any Court divesting the custody of the child Liam from the respondent, and vesting the same with the petitioner.
27. Ms. Luthra submits that the respondent, being the mother of the said minor child, is his natural guardian. She submits that even if the respondent had gone out of town leaving the child Liam with her parents, the same does not mean that the respondent has lost the custody of the minor child Liam. She submits that even a perusal of the order dated 05.04.2011 shows that the respondent had unrestricted access to the matrimonial home, CONT.CAS(C) 815/2011 Page 18 of 57 where the petitioner was residing with the children. In fact, the respondent had preferred an application under Order 7 Rule 11 CPC on 27.11.2010 on the premise that the respondent was living in her matrimonial home with the petitioner and her four children. In response to the aforesaid application, the petitioner admitted that the respondent has been residing at the matrimonial home.
28. She submits that the respondent had preferred an application for directions in December 2010 before the Guardianship Judge, as the petitioner was trying to forcefully divest the custody of the children from the respondent. Reference is also made to the reply filed by the petitioner to said application, wherein the petitioner himself admits that the respondent has access to all the four children. In para 11 of the said reply, the petitioner does not dispute the respondents case that Liam is allowed to meet the respondent, and is allowed to sleep with the respondent. She submits that the respondent had filed a second application under Order 7 Rule 11 CPC in the guardianship proceedings. In his reply to the said application filed in July 2011, the petitioner admitted that the respondent has been residing in the matrimonial home with the children. According to the respondent, the parties are leading a normal life. Reference is made to the averments made CONT.CAS(C) 815/2011 Page 19 of 57 by the respondent in her rejoinder to the second application under Order 7 Rule 11 CPC before the learned Guardianship Judge.
29. Ms. Luthra points out that the conduct of the petitioner himself is not aboveboard, inasmuch, as, the petitioner filed an amended petition under the Guardianship Act in July 2011, wherein the petitioner, without the permission of the Court, introduced an averment in Column 4 as follows: “Custody of minor is with Mr. Douglas Breckenridge. At the time of filing of the petition Liam was in the illegal possession of the Respondent. However, on 30.09.2010 the custody of minor Liam has been reverted to the Petitioner”.
30. Ms. Luthra submits that the respondent, being the mother, is entitled to protect her custody of the children under Section 21 of the DV Act. She defends the averments made by the respondent in her petition in para 68 under Section 12 of the DV Act. In support of her submissions aforesaid, she places reliance on the following decisions: i) Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand & Ors., (1963) Supp. SCR 242;
ii) Dr. Manju Varma v. State of U.P. & Ors., 2004 (9) Scale 463;
iii) Devarkonda Edl. Society V. All India Council for Technical Education & Ors., AIR 1997 A.P. 389; and
CONT.CAS(C) 815/2011 Page 20 of 57 iv) Vidyacharan Shukla v. Khubchand Baghel & Ors., AIR 1964 SC 1099.
31. Ms. Luthra submits that the respondent, in any event, did not understand the proceedings of 30.09.2010 and 05.04.2011 before the learned Guardianship Judge as “orders” within the meaning of Section 2(14) CPC. In these circumstances, there is no contempt made out, on account of the alleged suppression of the so-called orders from the Courts dealing with the DV Act proceedings. In support of this submission, she places reliance on the following decisions:
i) Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., 2010 (10) Scale 647;
ii) Anshuman Sharma v. Manika Jain, 114 (2004) DLT 47; iii) Dr. Ashish Ranjan v. Dr. Anupama Tandon,
2010 (12) Scale 577.
32. Ms.Luthra has also sought to make submissions that the petitioner abused the respondent physically, sexually and mentally, and was responsible for wrong treatment of her bi-polar disorder. These allegations, in my view, are of no relevance to these proceedings and are, therefore, not being gone into.
CONT.CAS(C) 815/2011 Page 21 of 57
33. In his rejoinder, Mr. Kaul has submitted that the entire submission of the respondent fails to take note of the manner in which “civil contempt” has been defined under the Contempt of Courts Act. Civil contempt is defined as:
” (b) “Civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”. He, therefore, submits that civil contempt is defined very widely to not only take within its ambit willful disobedience to decrees, directions and orders, but also other processes of a Court.
34. Mr. Kaul submits that the order dated 30.09.2010 is, even otherwise, an “order” within the definition of that expression contained in Section 2(14) of the CPC. He submits that merely because the respondents counsel chose not to appear before the learned Guardianship Judge on 30.09.2010, when the matter was taken up, would not mean that the proceedings held before the learned Guardianship Judge, and recorded by him, do not amount to an order. He submits that the petitioner had moved an application under Section 12 of the Guardians and Wards Act to seek interim custody of the minor child Liam. On 30.09.2010, the petitioner had CONT.CAS(C) 815/2011 Page 22 of 57 appeared before the learned Guardianship Judge with the child Liam, and the Court saw for itself that the custody of the said minor child was with the petitioner. Mr. Kaul submits that the Court recorded the petitioners submissions and duly considered the same and also appreciated the factual position placed before it. Thereafter, the learned Guardianship Judge gave his decision that, keeping in view the fact that the child whose custody was sought by the petitioner has already come in his custody, the prayer made in the application under Section 12 of the Guardians and Wards Act stands satisfied. In the light of the aforesaid position, the learned Judge disposed of the petitioners application under Section 12, as aforesaid.
35. Mr. Kaul, therefore, submits that the order dated 30.09.2010 has all the ingredients of an order under Section 2(14) of the CPC. Mr. Kaul submits that it is not necessary that the formal expression of the decision of the civil court has necessarily to pertain to a final decision. He submits that the respondent did not either seek review of the said order, or challenge it before a higher court. The said order, in so far as it deals with the aspect of interim custody of the minor child Liam, has attained finality, until and unless it is disturbed/ changed due to material change of circumstances. CONT.CAS(C) 815/2011 Page 23 of 57
36. With a view to counter the allegations of the respondent regarding her alleged ill treatment by the petitioner, Mr. Kaul has also drawn the attention of the Court to the email communication sent by the father of the respondent to the petitioner on 07.08.2010, wherein he expressed the apprehension that the respondent may take Liam with her to U.K. The respondent’s father himself advised the petitioner to keep Liam’s passport and that of the other boys too, under lock and key. Reference is also made to email communications allegedly exchanged between the respondent and her alleged paramour, to submit that the respondent, in any event, is not fit to retain even temporary custody of the minor children on account of her alleged adulterous relationships.
37. I first proceed to consider the submission of the respondent that the proceedings of 30.09.2010 and 05.04.2011 recorded before the learned Guardianship Judge do not tantamount to an “order” within the meaning of Section 2(14) C.P.C. Section 2(14) C.P.C defines “an order” to mean “the formal expression of any decision of a Civil Court which is not a decree”. “Decree” has been defined inter alia, to mean “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either primary or final”. The CONT.CAS(C) 815/2011 Page 24 of 57 distinction between an “order” and a “decree”, therefore, is that, whereas a decree is the result of an “adjudication”, an order is the “expression of any decision” of a Civil Court. Moreover, while a decree conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit, as regards the Court expressing it, an order may not be a conclusive determination of the rights of the parties, as regards the Court formally expressing its decision.
38. Reliance placed by the learned senior counsel for the respondent on Jaswant Sugar Mills Limited (supra), Dr.Manju Varma (supra), Devara Konda Educational Society (supra) and Vidya Charan Shukla (supra) does not advance the submission of learned senior counsel for the respondent that the orders/proceedings dated 30.09.2010 and 05.04.2011 do not amount to orders. Jaswant Sugar Mills Limited (supra) was a case wherein the Supreme Court was examining the issue whether an appeal may be entertained in exercise of powers under Article 136 of the Constitution of India against the direction of a Conciliation Officer issued in disposing of an application under Clause 29 of the order promulgated by the Government of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, when an appeal lay to the Labour Appellate Tribunal under the Industrial Disputes (Appellate Tribunal) Act, 1950. In that context the Supreme Court examined CONT.CAS(C) 815/2011 Page 25 of 57 the issue as to what constitutes a decision judicial. The criteria that must be satisfied to make a decision judicial is stated as follows:- “(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule;
(2) it declares rights or imposes upon parties obligations affecting their civil rights and
(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.”
39. There can be no manner of doubt that the proceedings before the learned Guardianship Judge are judicial proceedings. Therefore, the decision in Jaswant Sugar Mills is not relevant for the present purpose. Dr.Manju Varma (supra) merely restates the aforesaid criteria laid down in Jaswant Sugar Mills Limited. In Deverakonda (supra) the Andhra Pradesh High Court held that while rendering its decision under Section 23 of the All India Council for Technical Education (AICTE) Act , 1987, the AICTE acts as a quasi judicial authority. It is required to act objectively, judicially and judiciously. In that context the High Court observed in Para 27 as under:- CONT.CAS(C) 815/2011 Page 26 of 57 “Normally speaking, ‘decision’ means “making up one’s mind, may be even personal decisions leading to real and true conclusions. Actually it is a judgment based on conclusions” (Page 309 of Oxford Advanced Learner’s-Dictionary supra). As a verb, ‘decide’ means to “to give a judgment in a case”, and as a noun ‘decision’ means “Judgment in a Civil Court, making up one’s mind to do something, act of coming to a decision, it is a decision making process” (Page 67 of Dictionary of Law by P.H; ColI in supra). In the legal sense of the meaning; a ‘decision’ is a “determination arrived at after consideration of facts and in the legal context of law, a popular rather than technical or legal word, a comprehensive: term having, no fixed, legal meaning. It may be employed as referring to- ministerial acts as well as to those that are judicial or of a judicial character.”
40. Once again, I do not see how the aforesaid observations of the Andhra Pradesh High Court advance the respondent’s submission with regard to the nature/character of the two orders dated 30.09.2010 and 05.04.2011 passed by the learned Guardianship Judge. In Vidya Charan Shukla the Supreme Court was, inter alia, examining the manner in which an order may be framed by a Tribunal under Section 98 or Section 99 of the Representation of the People Act, 1951. It was held that the Election Tribunal may issue two documents – one embodying the reasons for the decision and the other, the formal expression of its decision; the former will be its judgment and the later its order. It may issue both in the same document in which case the CONT.CAS(C) 815/2011 Page 27 of 57 judgment as well as the order is embodied in the same document. I fail to appreciate how this decision has any relevance to the case at hand.
41. Keeping in mind the aforesaid position, a perusal of the order/proceedings dated 30.09.2010 leaves no manner of doubt that the same qualifies as an “order” within the meaning of Section 2(14) of the C.P.C. The learned Guardianship Judge gave its decision on the petitioner’s application under Section 12 of the Guardian and Wards Act while passing the said order, after appreciating the factual position presented before him that the child Liam was in fact in his custody on the said date. The application under Section 12 of the Guardian and Wards Act had been preferred to seek interim custody of the said child from the respondent. As the said interim custody had, by turn of events, vested in the petitioner, the prayer made in the interim application under Section 12 of the Guardian and Wards Act stood satisfied and, consequently, that application was disposed of by the learned Guardianship Judge after considering all the aforesaid aspects. Merely because the order was passed in the absence of the respondent or her representative, the said order does not cease to be a “decision” of the Court. By this decision, the Court recognized the factual position that the interim custody of the child Liam had passed into the hands of the petitioner. The learned Guardianship Judge has recorded his reason CONT.CAS(C) 815/2011 Page 28 of 57 for disposing of the application under Section 12 of the Guardian and Wards Act.
42. So far as the proceedings/order dated 05.04.2011 is concerned, the same in my view also tantamounts to an “order” within the meaning of Section 2(14) of the C.P.C. Firstly, the same has been passed after hearing the parties. Secondly, the same contains a decision in so far as the aspect of the visitation rights of the respondent are concerned in relation to the minor children. This decision was made without prejudice to the rights and contentions of both the parties, since the parties had expressed their readiness and willingness to settle their disputes amicably and for that purpose to appear before the Judge In-Charge, Mediation Centre, Delhi High Court.
43. The Gujarat High Court in Vijaya Park Co-operative Group Housing Society V. Trivedi Bhartiben w/o. S.S.Trivedi & Ors., (2003) 1 GLR 190, rejected a similar contention that because the trial Court had not given any reason in its order rejecting an application under Order 1 Rule 10 read with Order 6 Rule 17 C.P.C., the same did not amount to an order. The High Court held that while detailed reasons have not been assigned by the learned Judge while dismissing the application, the learned trial Judge had CONT.CAS(C) 815/2011 Page 29 of 57 indicated his reasons by observing that by seeking amendment in the cause title of a plaint, a new person is sought to be introduced as plaintiff in place of the original plaintiff and therefore, the amendment was not competent. The Gujarat High Court held that whether, or not, the High Court may agree with the aforesaid reasons of the trial Court, it cannot be said that the order has been passed without any reasons.
44. In the present case as well, the order dated 05.04.2011 does not explicitly state the reasons for the arrangement worked out by the Court with respect to the visitation rights of the respondent in relation to the minor children. However, that, by itself, would not reduce the force of the said proceeding/order as the said order contains a binding decision, which the learned Guardianship Judge directed, shall continue till further orders.
45. In any event, whether or not the proceedings/orders dated 30.09.2010 and 05.04.2011 constitute an “order” within the meaning of Section 2(14) C.P.C, or not, is of no avail to the respondent. As pointed out by Mr. Kaul, civil contempt has been broadly defined to mean “willful disobedience of decree, judgment, direction, order writ or other process of a Court……………” (emphasis supplied). The proceedings of 30.09.2010 and 05.04.2011, even if assumed for the sake of argument as not constituting CONT.CAS(C) 815/2011 Page 30 of 57 “orders”, within the meaning of Section 2(14) of the C.P.C, certainly are processes of a Court inasmuch, as, they record the proceedings of the learned Guardianship Court in the petitioner’s guardianship petition before it.
46. When the matter was finally heard on 20.12.2011, I had directed the counsel for the respondent, who represented the respondent in proceedings under the D.V. Act to file an affidavit disclosing whether, or not, the said counsel for the respondent was aware of the passing of the orders dated 30.09.2010 and 05.04.2011 in the Guardianship proceedings when the proceedings under the D.V. Act were filed initially, as well as at the appellate stage. An affidavit was also called from the respondent, disclosing whether she had made her counsel aware of the said orders of the Guardianship Court before filing the petition under the D.V Act, or at any time thereafter.
47. Two affidavits dated 28.12.2011 have been filed, one, of the respondent and the other of Mr. Sashank Kumar Lal, Advocate.
48. Mr. Sashank Kumar Lal, in his affidavit has stated that the orders dated 30.09.2010 and 05.04.2011 were not in his knowledge, and the respondent had not instructed him about these orders. He has stated that due CONT.CAS(C) 815/2011 Page 31 of 57 to absence of instructions and due to bona fide belief, he did not place the orders dated 30.09.2010 and 05.04.2011 before the learned M.M and the Ld. ASJ at the time of filing and hearing of the complaint under the D.V. Act and the appeal arising therefrom.
49. So far as the respondent is concerned, she has filed a detailed affidavit which goes far beyond the direction issued by the Court. In this affidavit, the respondent has, for the first time, asserted that she was not at all aware of the order dated 30.09.2010 when she preferred the complaint under the D.V. Act and the appeal arising therefrom. She states in para 15 of this affidavit that “I did not give any instructions to my present counsel with regard to orders dated 30.09.2010 and 05.04.2011. Even otherwise, I had no knowledge of order dated 30.09.2010″. She states that she did not produce the orders dated 30.09.2010 and 05.04.2011 before the learned M.M, and before the learned Additional Sessions Judge, as she did not have copies of the said orders. She has also sought to tender an unconditional apology “for any act which may have caused hindrance to the administration of justice”. This stand taken by the respondent, taken in her affidavit dated 28.12.2011, is strikingly at variance from her stand taken in her reply filed to the contempt petition.
CONT.CAS(C) 815/2011 Page 32 of 57
50. I have perused the entire reply filed by the respondent and there is not an iota of averment made by her in the said detailed reply to state that she was not aware of the order dated 30.09.2010 passed by the learned Guardianship Judge at the time of filing of her complaint under the D.V. Act, and the appeal arising therefrom. All that she says is that, firstly, the order dated 30.09.2010 was obtained behind her back and, secondly, that the said order was passed on a self serving statement made by the petitioner. Thirdly, she further states that it is not an “order” within the meaning of Section 2(14) of the C.P.C. In this regard, I consider it appropriate to set out paragraphs 12, 14 and the relevant extracts of para 30 of the contempt petition, and the corresponding reply given by the respondent herein below:- Petitioner’s averment
“12. On 30.09.2010 the said child was reverted to the custody of the petitioner as the respondent had left for UK to meet her paramour and could not take the child with her as apprehended due to her undertaking to the Guardian Judge on 09.09.2010. The said fact was duly recorded by the Learned Guardian Judge a copy of which is annexed herewith as Annexure-D. In sum and substance, the said order clearly held that as the custody of the said child had already come in the hands of the petitioner therefore, the relief sought in the interim application under Section 12 of the said Act stood satisfied and the application was accordingly disposed of. A copy of the said interim application under Section 12 of the said order is annexed hereto as Annexure-E.”
CONT.CAS(C) 815/2011 Page 33 of 57 Reply to the above para
“12. That the contents of para 12 of the petition are wrong and hence denied. It is denied that on 30.09.2010 or before that Liam was reverted to the custody of the petitioner. At the outset it is denied that the child was reverted to the custody of the petitioner vide order dated 30.09.2010. The said order is not an order in terms of Section 2 (14) of the Civil Procedure Code as the same has been passed in the absence of the respondent and not on merits. The said order is based on self serving statement of the petitioner which cannot be interpreted in any manner through which it can be said that the Court has granted custody to the petitioner. The circumstance under which the said order has been passed has been explained, and hence the same are not repeated for the sake of brevity.” Petitioner’s averment
14. That accordingly, the said orders were governing the custody and visitation with respect to the said child qua the parties. The said orders are still subsisting and have not been either vacated or modified by either the learned Guardian Judge or any appellate Court.
Reply to the above para
“14-15. That the contents of para 14 and 15 of the petition are wrong and hence denied. It is submitted that the orders governing the custody and visitation of the child in question are still in subsistence. At the outset it is submitted that the petitioner is trying to mislead this Hon’ble Court by intentionally making contemptuous statement as the Ld. Guardian Judge has not passed any speaking order in respect of the custody and visitation of the minor child. The petitioner is intentionally interpreting the orders dated 30.9.10 and 5.4.11 passed by the Ld. Guardian Court in order to mislead this Hon’ble Court in order to get an order which he failed to get from the Ld. Guardian Judge.”
CONT.CAS(C) 815/2011 Page 34 of 57 Extract of Petitioner’s averment
“30. A bare perusal of the said petition and the application would reveal that an off the cuff reference has been made with respect to the pendency of the petition filed by the petitioner before the Guardian Judge under Section 7, 10 and 25 of the said Act in para 68 of the aforesaid application. There is not even whisper about the passing of the said order nor has a copy of the said order been annexed to the petition. ….. ….. ….. …..” Reply to the above para
“30. The contents of para 30 of the petition are a matter of record and need no reply. However at the outset, it is submitted that the respondent had disclosed and placed on record the undertaking given by her on 9.9.2010.”
51. Pertinently, the respondent in her reply does not specifically deal with the “grounds” urged by the petitioner in the contempt petition, wherein too, the petitioner has made categorical assertions that the respondent has suppressed, concealed and mis-stated the material facts and documents, namely, the orders dated 30.09.2010and 05.04.2011 passed by the learned Guardianship Judge while pursuing the proceedings under the D.V. Act before the learned M.M. and the learned ASJ.
52. The stand now taken by the respondent in her affidavit, filed in response to the order dated 20.12.2011 that she was not aware of the order dated 30.09.2010 therefore, cannot be accepted. This is clearly an afterthought on the part of the respondent and an attempt on her part to get CONT.CAS(C) 815/2011 Page 35 of 57 out of the tight spot that she finds herself in, because of her acts of suppression and concealment of the orders dated 30.09.2010 and 05.04.2011 from the concerned Courts dealing with the D.V Act proceedings. This stand is now being taken for the first time after the close of the hearing, which means that the petitioner has no occasion or opportunity to say anything in the matter. Moreover, this stand is belied by the fact that in the amended guardianship petition, the petitioner had stated that “….. On 30.09.2010, the custody of the minor Liam has been reverted to the petitioner”. This amended petition was filed by the petitioner some time around 13.08.2011, whereas the D.V. Act proceedings were launched by the respondent only in October, 2011. From the said averment, it is clear that the respondent was put to notice that the petitioner claimed himself to be in actual custody on and from 30.09.2010. Pertinently, in relation to the order dated 05.04.2011, the respondent has no such explanation to offer, as she has taken benefit of the said order. However, even this order was suppressed and concealed from the learned M.M and the learned ASJ dealing with the D.V Act proceedings, evidently for the reason that this order too would have betrayed the fact that it was the respondent who was being granted visitation rights, and not the petitioner. This obviously would have meant that the actual custody of the children, including the child Liam was with the CONT.CAS(C) 815/2011 Page 36 of 57 petitioner and not the respondent. If this order had been produced before the Ld. MM and the Ld. ASJ in the D.V. Act proceedings, the claim of the respondent- that she has custody of the child Liam, would have been belied. In the light of the aforesaid discussion, I have no hesitation in rejecting the affidavit now filed by the respondent on 28.12.2011 as per the direction of the Court. In my view, the same further compounds the dubious conduct of the respondent in trying to play hide and seek with the courts.
53. Turning to the examination of the affidavit filed by Shri Sashank Kumar Lal Advocate, I find that his conduct too does not appear to be completely beyond suspicion. He discloses that he was engaged by the respondent as her counsel in proceedings before the Guardianship Judge in May, 2011. This means that he had access to the case file of the proceedings pending before the learned Guardianship Judge. Access not only to the counsels file but even to the Court record. He would have been aware of the fact that the respondent had moved an application in December, 2010 to seek access to the children, meaning thereby that the respondent was actually not having custody of any of the four children, including the child Liam.
CONT.CAS(C) 815/2011 Page 37 of 57
54. I have called for the Guardianship case record from the family court where the same is pending. It is seen that the Vakalatnama has been filed by Mr. Jatin Sehgal and the Mr. Jai Kush Hoon on 20.05.2011. In fact, Mr. Shashank Kumar Lal has not filed any Vakalatnama. I have also called the inspection application register. The inspection application register does not shows that an application for inspection was made by the aforesaid newly engaged counsel upto 01.07.2011, when the case was transferred to the Court of the Principal Judge, Family Court. The case was assigned to the Court of Smt. Renu Bhatnagar, Judge 2, Family Court, Saket, where it is now pending. It appears that no inspection application register is being maintained in her court. An intimation to this effect has been received from her.
55. Pertinently the proceedings under the D.V.Act were initiated in October, 2011 i.e., five months after the aforesaid counsels were engaged by the respondent as her counsel in the guardianship proceedings. I may note that Mr. Shashank Kumar Lal, Mr. Jatin Sehgal and Mr. Jai Kush Hoon share the same chamber, i.e. 109 Lawyers Chambers, Delhi High Court, New Delhi, and while Mr. Shashank Lal has appeared in the Guardianship proceedings, Mr. Jatin Sehgal has appeared in the DV Act proceedings. Mr. Shashank Lal has inspected the Guardianship proceedings on 11.01.2012. It CONT.CAS(C) 815/2011 Page 38 of 57 is, therefore, clear that they work jointly on matters and belong to the same chamber.
56. It is also pertinent to note that when the D.V. Act proceedings were drafted, in Para 68 the same counsel made ambiguous and unclear averments. It is even more pertinent to note that when the D.V. Act proceedings were taken up by the learned M.M. on 13.10.2011, she specifically raised the issue with regard to the ambiguous averments made in Para 68 of the petition, whereupon the counsel for the complainant sought time to file an amended petition and also to file orders passed by the Guardianship Court. Despite the aforesaid, the counsel did not clearly amend the petition to make a complete disclosure of the orders passed by the learned Guardianship Judge, including the orders dated 30.09.2010 and 05.04.2011. He also did not file these orders before the learned Magistrate dealing with the D.V. Act proceedings. Inconsequential amendments were carried out in Para 68 of the petition which concealed the aforesaid orders of the Guardianship Judge.
57. It is not for a litigant to spoon feed his counsel with regard to earlier proceedings undertaken before a court, once he is engaged as the counsel in a pending case, even if it were to be assumed that the litigant may be either CONT.CAS(C) 815/2011 Page 39 of 57 ignorant, or may not deliberately disclose the earlier proceedings undertaken in the case to his counsel. It becomes the obligation of the counsel who accepts the responsibility from a litigant, in an already pending proceeding, or when he is engaged to file a fresh proceeding, to acquaint himself with all that has transpired on the record. It is clear that Mr. Sashank Kumar Lal was acting as the respondent’s counsel in the guardianship proceedings since May 2011. It was his obligation to inspect the orders passed in the guardianship proceedings to acquaint himself fully with all such proceedings, particularly when he was preparing another proceeding under the DV Act, to claim an overlapping relief. No counsel worth his salt can proceed to deal with a case in which he is engaged, without fully acquainting himself of the orders and proceedings in the case which may have already been undertaken. Mr. Sashank Kumar Lal could not have assumed that the custody of the minor child Liam was with the respondent in the face of: (i) the fact that in the amended guardianship petition the petitioner had himself categorically stated that since 30.09.2010 he had the custody of the minor child Liam; (ii) the fact that the respondent did not actually have the custody of the minor child Liam, ever since the engagement of the counsel Mr. Sashank Kumar Lal/Mr. Jatin Sehgal/Mr. Jai Kush Hoon in May, 2011; (iii) the fact that after the passing of the order CONT.CAS(C) 815/2011 Page 40 of 57 dated 13.10.2011 by the learned M.M in the D.V. Act proceedings, wherein the Court had raised the issue about the ambiguous averments made in Para 68 of the complaint, the counsel had sought time to file the amended petition as also to file orders passed by the guardianship court in the guardianship proceedings.
58. It is not explained, why Mr. Sashank Kumar Lal did not inspect the record of the case to obtain the knowledge and copies of the order dated 30.09.2010 and 05.04.2011, in spite of taking time from the learned Magistrate to file the same before him. This omission on his part is suggesting of the fact that he had copies of these orders in his record.
59. If the claim of the respondent’s counsel Mr. Sashank Kumar Lal, that he was not aware of the orders dated 30.09.2010 and 04.10.2011, were to be accepted, for the sake of argument, the only other conclusion one can draw is that he has acted with gross negligence, which is unbecoming as an officer of this Court. Shri Sashank Kumar Lal in his affidavit relies upon the prayer made by the petitioner in his amended guardianship petition which was to the effect that he seeks a direction to the respondent to hand over the custody of the minor child to the petitioner. However, he conveniently omits to take note of the averment made in the amended petition to the effect that CONT.CAS(C) 815/2011 Page 41 of 57 the custody of the child Liam, since 30.09.2010, was with the petitioner. As a counsel Shri Sashank Kumar Lal should have known that interim custody, or defacto custody, of the minor child is one thing, whereas permanent custody or dejure custody- upon adjudication of the relevant issues by the guardianship court, is quite another thing. The prayer made in the amended guardianship petition was to seek the permanent custody of the child Liam.
60. I have great difficulty in accepting the affidavit of Shri Sashank Kumar Lal, Advocate and to swallow his solemn averment that he had no knowledge of either the order dated 30.09.2010 or the order dated 05.04.2011 passed in the guardianship proceedings when he prepared, presented and pursued the D.V. Act proceedings.
61. The two orders dated 30.09.2010 and 05.04.2011 were highly relevant and material, and ought to have been placed before the learned M.M and learned ASJ dealing with the D.V. Act proceedings. A material fact would mean a fact which is material for the purpose of determination of the lis. The logical corollary of this is, whether , the same was material for grant or denial of the relief (See Arunima Baruah vs. UOI: (2007)6 SCC 120). Had the learned M.M and the learned ASJ dealing with the D.V. Act proceedings been made aware of the aforesaid two orders passed by the learned CONT.CAS(C) 815/2011 Page 42 of 57 Guardianship Judge there, obviously, would have been no occasion for either of them to have passed any orders restraining the petitioner from removing the child Liam from within the jurisdiction of the Court, or directing that the custody of the child Liam (falsely claimed to be with the respondent) shall not be disturbed except by due process of law. A perusal of the orders passed by the learned M.M. and the learned ASJ dealing with the D.V. Act proceedings clearly shows that by calculatedly producing the statement made by the respondent before the learned Guardianship Judge on 09.09.2010 – to the effect that she shall not remove the child from within the jurisdiction of the Guardianship Court without the permission of the Court, she sought to mislead the learned M.M as well as the learned ASJ that she had actual custody of the child Liam. This is clearly recorded in the order passed by the learned ASJ on 19.10.2011. As noticed hereinabove, he observes as under:-
“……………In the proceedings before the Guardian Judge the applicant/appellant Jhilmil Breckenridge has already given statement that she will not remove the child Master Liam Dorge Breckenridge from the territorial jurisdiction of this court without the permission of this court. These facts prima facie show that the custody of the minor child namely Liam Dorge Breckenridge is with the applicant/appellant. ……………………………..
Since the minor child Master Liam Dorge Breckenridge is already in the custody of the applicant/appellant Jhilmil CONT.CAS(C) 815/2011 Page 43 of 57 Breckenridge, so it is directed that till the next date of hearing fixed in the Appeal the custody of the minor child Master Liam Dorge Breckenridge with the applicant/appellant Jhilmil Breckenridge (mother) shall not be disturbed except by due process of law and of course subject to the order, if any passed by the Guardian Judge on this issue in the petition under section 7 and 10 of Guardian and Ward Act, because the applicant/appellant has not conveyed any order passed by the Guardian Judge in this regard to this court.” (emphasis supplied).
62. As aforesaid, it is not explained by the respondent or her counsel as to why, despite the learned M.M requiring the production of the orders passed in the guardianship proceedings, and despite a statement being made that the respondent shall produce the orders passed by the Guardianship Court, the same were not produced. Even the order passed by the learned ASJ discloses that he was not satisfied with the conduct of the respondent in not producing the orders passed by the Guardianship Court, and that is why he specifically observed in his order dated 19.10.2011 that the order passed by him is subject to orders, if any, passed by the Guardianship Judge “because the applicant/appellant has not conveyed any order passed by the Guardianship Judge in this regard to this Court”.
63. From the above discussion it is clear that the respondent has deliberately and willfully sought to breach and disobey the orders dated 30.09.2010 and 05.04.2011 by concealing the said orders while filing the CONT.CAS(C) 815/2011 Page 44 of 57 proceedings under the D.V. Act before the learned M.M. and the appeal proceedings before the learned ASJ, with a view to legitimize her conduct of taking away the custody of the child Liam from the petitioner under the garb of the orders obtained in those proceedings by sheer concealment and deliberate and calculated mis-statements made by her.
64. I had occasion to deal with another case involving suppression of relevant and material facts by a party while preferring a writ petition in Ayodhya Devi vs. DDA & Anr., 156(2009) DLT 346. Unfortunately, like in the present case, in that case too, the conduct of the counsels was not completely above board, and they appeared to have played a role in the suppression and concealment of relevant facts. In the course of that decision, I had occasion to consider the judgment of the Division Bench of this Court in Satish Khosla vs. M/s. Eli Lilly Ranbaxy Ltd. & Anr.: Vol.71 (1998) DLT 1 (Division Bench) which in turn deals with other relevant judgments including those of the Supreme Court. I consider it apposite to quote relevant extracts from the said decision:-
“21. In Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd. & Anr. 71 (1998) DLT 1 (DB), a Division Bench of this Court dealt with a similar situation. The respondent preferred an earlier suit being Suit No.3064/1996. It sought ex parte interim orders to restrain the appellant from giving on hire the lawns, adjoining the cottage in the tenancy of the respondent, for CONT.CAS(C) 815/2011 Page 45 of 57 marriages and private parties. The respondent failed to obtain any ex parte orders. Thereafter, the respondent preferred a subsequent suit, being Suit No.261/1997 making a similar prayer for interim relief. On 06.02.1997 the learned Single Judge passed an ex parte ad interim order of injunction against the appellant. The appellant preferred an appeal before the Division Bench and also filed a contempt petition for initiating criminal contempt proceedings against the respondents for having intentionally and deliberately filing the proceedings and application being Suit No.261/1997 and I.A. No.1124/1997. After comparing the various averments made in the two suits, the Court considered the issue whether it was obligatory for the respondent to have disclosed to the Court in the subsequent suit, the earlier suit filed by it and the factum that the Court had not granted any stay in favour of the respondent in the earlier suit. The Court referred to S.P. Chengalvaraya Naidu v. Jagannath & Ors. AIR 1994 SC 853, wherein the Supreme Court held that the Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. “It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”
22. The Division Bench held that:
“……………..by withholding the plaint and the application in the earlier suit from the court and by not disclosing to the Court about the
proceedings in the earlier suit and the stay having not been granted to it, the plaintiff/respondent had tried to get an advantage from the Court and was, therefore, guilty of playing fraud on the Court as well as on the respondent.”
CONT.CAS(C) 815/2011 Page 46 of 57
23. The Division Bench relied upon the following passage from S.P. Chengalvaraya Naidu (supra):
“……………………… We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to Court with a true case and
prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of Law are meant for imparting justice between the parties. One who comes to the Court, must come with clean
hands. We are constrained to say that more often
than not, process of the Court is being abused.
Property-grabbers, tax-evaders, bank- loan-
dodgers and other unscrupulous persons from all
walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on false- hood, has no right to approach the Court. He can be summarily thrown out at any
stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents
executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the
opposite party.”
24. The Division Bench further observed that:
“………………… A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival
contentions of the parties. In our view, a litigant, who approaches the Court, must produce all the
documents which are relevant to the litigation and he must also disclose to the court about the
CONT.CAS(C) 815/2011 Page 47 of 57 pendency of any earlier litigation between the part is and the result thereof. …………..It was only after 20th January, 1997 when the case was
adjourned to May, 1997 that the respondent filed
the second suit and though in one of the
paragraphs it is mentioned that it had filed an
earlier suit for injunction, however, it did not
disclose to the Court either in the plaint or in the application as to what had transpired in the Court on the dates when the said suit was fixed nor it was disclosed to the Court that injunction has not been granted in its favor by the Court and the relief
claimed in the application in the earlier suit was almost similar to the relief which had been claimed in the subsequent suit. In our opinion, it was
obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing
before it, may be Hon’ble the Single Judge was
persuaded not to grant any exparte stay in favor of the respondent. ……………… We are, therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed
material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over-reaching the Court.”
25. On the aspect of role of the counsel for the respondent, the Division Bench held that:
“As held by the Supreme Court in T.
Arivandandam Vs. T.V. Satyapat and Another,
AIR 1977 SC 2421, the pathology of litigative
addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of
parties to launch frivolous and vexatious cases. “It CONT.CAS(C) 815/2011 Page 48 of 57 may be a valuable contribution to the cause of
justice if Counsel screen wholly fraudulent and
frivolous litigation refusing to be beguiled by
dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of
India, we hope will activate this obligation. We are constrained to make these observations and hope
that the co-operation of the Bar will be readily
forthcoming to the beach for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain
litigation is the gullible grant of ex-parte orders tempts gamblers in litigation into easy Courts. A Judge who succumbs to ex-parte pressure in
unmerited cases helps devalue the judicial
process.” 20. We are of the opinion that the above noted passage of the aforesaid judgment in T.
Arivandandam Vs. T.V. Satyapal’s case is fully
applicable to the facts and circumstances of the
present case. Having not succeeded in getting stay in Suit No. 3064/96, in our view, the Lawyer should have refused to move an application for stay in the second suit.”
26. The Division Bench held that the respondents were guilty of contempt and that they had made an attempt to overreach the Court by playing a fraud upon the Court and the opposite party. The respondent was, therefore, non suited in respect of the subsequent suit and was warned to be more careful in future. To the same effect is the decision of this Court in Holy Health and Educational Society (Regd.) v. Delhi Development Authority 80 (1999) DLT 207.
Xx xx xx xx xx xx
CONT.CAS(C) 815/2011 Page 49 of 57
32. In T. Arivandandan v. T.V. Satyapal (1977) 4 SCC 467, the Supreme Court cautioned lawyers by observing that “It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.” Unfortunately, I regret to observe that the counsels for the petitioners have not heeded to the aforesaid advice of the Supreme Court.
33. The facts of this case compel me to take note of what the Supreme Court had the occasion to observe in Sanjiv Datta, Dy. Secretary, Ministry of Information & Broadcasting, In re v. (1995) 3 SCC 619:
“20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a
model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tiredness role played by the
stalwarts in the profession to strengthen them. They took their profession seriously and practised it with CONT.CAS(C) 815/2011 Page 50 of 57 dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the
members of the profession to introspect and take
the corrective steps in time and also spare the
courts the unpleasant duty. We say no more.
Need I say more?”.
65. The Supreme Court in A.V. Pappaya Sastry & Anr. Vs. Govt. of A.P & Ors., (2007) 4 SCC 221 has held that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Such a judgment, decree or order which is obtained by playing a fraud on court or on Tribunal or authority is a nullity and non-est in the eyes of law. The Court observed that fraud and justice cannot dwell together, and fraud and deceit ought to benefit none. In Para 26 the Supreme Court observed as under:-
CONT.CAS(C) 815/2011 Page 51 of 57 “26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants”.
66. It is evident that the respondent, seemingly with the aid and advice of her counsel had sought to mislead the courts dealing with the D.V. Act proceedings by suppressing material facts and orders passed by the learned Guardianship Judge with a view to gain advantage in the proceedings under the D.V. Act. It is clear that the respondent sought to overreach the Guardianship Court, and the orders passed by the said Court. The conduct of the respondent, seemingly aided and supported by conduct of her counsel, clearly tantamounted to playing a fraud upon the Court dealing with the D.V. Act proceedings as well as upon the petitioner. The respondent had abused the process of the Court by filing the D.V. Act proceedings with concealment of the orders, and proceedings already passed and undertaken before the learned Guardianship Judge. This concealment was calculated to hamper the due course of justice i.e to interfere with the order dated 30.09.2010 passed by the learned Guardianship Judge. CONT.CAS(C) 815/2011 Page 52 of 57
67. The respondent has made a mockery of the judicial process that undermines the dignity of the Court and the majesty of law. The conduct of the respondent tends to bring the authority and administration of law into disrespect and disregard. It seriously interferes with the rights of the petitioner. Abuse of the process of Court calculated to hamper the due course of judicial proceedings or the orderly administration of justice tantamount to contempt of Court (see Advocate General, State of Bihar V. Madhya Pradesh Khair Industries, (1980) 3 SCC 311 and Delhi Development Authority V. Skipper Construction & Anr, JT 1995(2) SC 391). Accordingly, the respondent is clearly guilty of contempt of Court.
68. The respondent cannot be heard in these proceedings unless she purges herself of the contempt so committed by her by forthwith placing the child Liam in the custody of the petitioner. As aforesaid, the proceedings launched under the D.V. Act are tainted by fraud, suppression and concealment and the orders passed therein by the learned M.M and learned ASJ are therefore a nullity.
69. So far as the conduct of the respondent’s counsel is concerned, the same is highly suspicious. If he is given the benefit of the doubt, his conduct is highly negligent and unprofessional, and the same deserves to be CONT.CAS(C) 815/2011 Page 53 of 57 deprecated in the strongest terms. It is such conduct of counsel which brings the noble legal profession into disrepute and erodes the confidence of the litigating public and the courts in the professionals practicing the legal profession. The administration of judicial process and dispensation of justice by the Courts would become extremely difficult, if the members of the Bar do not maintain the highest standards of integrity and professionalism in pleading their cases before the Courts. Justice would become a casualty, even if temporarily. Though the law provides remedies to tackle such conduct on the part of litigants and their lawyers, and such myopic street smartness invariably eventually fails, it consumes a tremendous amount of material and other resources of the litigant who is a victim of such fraud, and also leads to immense waste of productive time of the Court which would otherwise be utilized in dealing with more deserving cases.
70. Now I may deal with two other decisions relied upon by the respondent. The reliance placed on the decision in Dinesh Kumar Gupta (supra) by the respondent is wholly misplaced. In this case, upon examination of facts the Court came to the conclusion that no case of contempt of court was made out. It was in this background that the Court observed that if an order is capable of more than one interpretation giving CONT.CAS(C) 815/2011 Page 54 of 57 rise to variety of consequences, non-compliance of the same cannot be held to be willful disobedience of the order so as to make out a case of contempt entailing serious consequences. In the present case, it is evident that the orders dated 30.09.2010 and 05.04.2011 were unambiguous and clearly brought out the fact that the defacto custody of the child Liam was with the petitioner. There was no question of there being any ambiguity in those orders, or of their being interpreted in any other manner.
71. For the same reason, reliance placed on the decision in Anshuman (supra) is also of no avail to the respondents. The decision in Dr. Ashsih Ranjan (supra) has absolutely no relevance to the facts of the present case. That was a case where the visitation rights of the father had been frustrated by the respondent-mother who had the custody of the child. The Supreme Court held that on account of the denial of the visitation rights and the tutoring of the minor child, and in the light of the changed circumstances, the petitioner-father could seek review/modification of the orders regarding custody before the appropriate Court. The decision in the aforesaid case does not mean that in every case where there is willful and deliberate breach of the orders of the Court, or orders are obtained by playing a fraud upon the Court and the opposite party, the party guilty of committing contempt of CONT.CAS(C) 815/2011 Page 55 of 57 Court can be allowed to get away with such contempt without being suitably dealt with by the Court.
72. In the light of the aforesaid discussion, I allow this petition. The respondent is found guilty of committing contempt of Court.
73. The respondent is guilty of disobeying the orders dated 30.09.2010 and 05.04.2011 passed by the leaned Guardianship Judge by removing the child Liam from the custody of the petitioner and by taking the said child into her own custody. The respondent is guilty of contempt of Court as she has abused the process of the Court, calculated to hamper the due course of judicial proceedings or the orderly administration of justice. She has made mockery of the judicial process.
74. I direct the respondent to purge the contempt by forthwith restoring the custody of the child Liam with the petitioner. I hold the orders passed by the learned Metropolitan Magistrate and learned ASJ in the proceedings initiated by the respondent under the D.V Act, in so far as they deal with the aspect of custody of the minor child Liam, to be null and void. I call upon the respondent to show cause as to why she should not be punished for contempt of Court. Let the requisite notice issue to her for this purpose. CONT.CAS(C) 815/2011 Page 56 of 57
75. The counsel for the respondent, Mr. Sashank Kumar Lal is cautioned for minding his conduct in future. He is advised to adhere to the highest standards of professionalism, ethics and integrity as an Advocate.
76. I subject the respondent to costs of Rs. 2,00,000/-, out of which Rs.1,00,000/- be paid to the Delhi Legal Services Committee and the remaining amount be paid to the petitioner within four weeks from today. (VIPIN SANGHI)
JUDGE
FEBRUARY 21, 2012
sr/ms
CONT.CAS(C) 815/2011 Page 57 of 5
Live-in partner falsely accused of RAPE, Granted bail by High Court
The High Court of Karnataka has granted bail to a 27-year-old sous-chef working for a star hotel in the city who is accused of raping and cheating his ex-colleague.
Anup, who had to spend 21 days in jail after his arrest, was granted bail on February 23 on the basis of the hotel’s electronic attendance log which showed that he was on duty at the time when he was accused of having raped 25-year-old Roopika (both names changed to protect identity).
In her complaint filed at Jalahalli police station last month, Roopika stated that she first met Anup six years ago when both of them were working at Hotel Lalit Ashok. After Roopika left the job, the duo came in contact with each other on Facebook in September last year. Meanwhile, Anup joined MoveNPick Hotel and both of them continued to be in touch with each other through SMS, Facebook and Google Talk.
Roopika alleged that Anup proposed to her and she accepted. They met a few times and Anup asked her to join him to celebrate his birthday at his home on October 19, 2011. She met him between 3 pm and 4 pm and he forced her to have sex with him, she stated in the complaint.
They continued to chat about sex and he told her that he wanted to have sex with her without protection. Though she refused, Anup forced her to have sex with him on several occasions till January 25, 2012, promising to marry her. After that, Anup told her that he was using her only to satisfy his physical needs and had no intention of marrying her, Roopika alleged.
A case of rape and cheating was filed against Anup and he was arrested on February 1, 2012. He was sent to judicial custody after a fast track sessions court rejected his bail application.
LIVE-IN PARTNERSHIP
While the hotel’s attendance records show that Anup was at work at the time when he was accused of raping Roopika at his home, there were also allegations that the two were live-in partners for some time.
Anup’s advocate RLN Murthy said, “There is misuse of old provisions of law these days. Society has changed a lot and we live in what can be termed e-society. However, men continue to be made victims of old laws which were instituted to protect women.”
Child Access & Custody Guidelines- Approved by Bombay High Court, Courtesy “Child Rights Foundation”
Child Access & Custody Guidelines- Approved by Bombay High Court
:
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.
Subject : Child Access & Custody
Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon’ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.
I convey my gratitude for your kind gesture in preparing a detail
guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.
With regards,
Yours faithfully,
Registrar (Inspection – II)
Estranged wife steals job letter, passport & work visa; hubby tells HC he can’t pay alimony
An attempt to get even with her estranged husband boomeranged on the wife. Saurav Chowdhary, 31, and Sangeetha, 28, tied the knot a few years ago, but are now involved in a messy divorce case.
‘PM’ comes to soothe harassed husbands
If you’ve ever nursed an ambition to be photographed with the prime minister, today’s your chance. Gurmeet Singh, who is in Bangalore to promote his debut movie The Wedding Gift, looks so much like Manmohan Singh that even Sonia Gandhi ends up being muddled.
In fact, it was an episode with Sonia that made film director Suhaib Ilyasi cast Gurmeet as the prime minister in his film. “At a public function in New Delhi, I saw Sonia Gandhi get up to welcome prime minister Manmohan Singh. To everyone’s surprise, it turned out to be Gurmeet Singh. I immediately knew I had the actor for my film. He is not only Manmohan’s lookalike, but even his voice is similar,” Ilyasi said.
Gurmeet loves the confusion that he leaves in his wake and does nothing to set it right. On the contrary, he wears Manmohan’s trademark blue turban and white kurta-pyjama in public, leaving security personnel at their wits’ end. He even flummoxed staff at the hospital where Manmohan underwent a heart surgery by walking around.
Gurmeet is an All India Congress Committee (AICC) media co-ordinator and knows the PM. “I have met the prime minister on a few occasions. He calls me by my name. I have met his family members also,” says the 67-year-old,” he said.
He was into the family’s cold storage business in Delhi until 2004 when Manmohan became the prime minister. Leaving the business to his brother, Gurmeet joined the Congress.
“I was a close friend of Ajit Jogi. It was because of him that I joined. I have worked as a campaign organiser for Manmohan Singhji. I can go on about the many funny incidents that take place because of my resemblance to him,” says Singh.
The latest confusion happened two days ago when Gurmeet went to watch India play against Italy in the Olympics Hockey qualifiers. The television commentator announced that the prime minister was watching the match and it was only later that he realised his mistake and revealed that it was Gurmeet the lookalike.
PM’s press meet
Gurmeet Singh will be answering questions about the Indian Penal Code and other laws allegedly misused by women to harass their husbands. No, he’s no activist. But, his film ‘The Wedding Gift’ is about the misuse of Section 498(A) of the IPC.
1 / 1
Judge booked for attempt to rape
SATTUPALLY (KHAMMAM): A junior civil judge from Khammam district was booked for allegedly trying to outrage the modesty of his domestic help here on Wednesday. Following a complaint by the 24-year-old woman, a case under Section 354 ( attempt to rape) of IPC was registered against additional first class judicial magistrate Kuravath Balachander.
Town deputy superintendent of police K Rangan Goud told TOI that the complainant alleged that the magistrate attempted to outrage her modesty while she was working in his house on the morning of February 17.
The DSP said they will investigate the matter from all angles.
The woman, who had been working at the magistrate’s residence for some time, said Balachander called her to his room and asked her to fulfill his carnal desire. When she refused, Balachander allegedly dragged her into his bedroom.
The woman, however, managed to flee from the house.
Mustering courage after her relatives and villagers convinced her to file a complaint, the woman, a resident of Langapally village in Pinabelly mandal, approached the town police on Tuesday.
Sources said some police officials tried to convince the woman and her relatives to take back her complaint but in vain. Meanwhile, Balachander has gone on leave from Wednesday afternoon.
Husband ordered to pay 1.5 lakh per month by HC though wife has 2 crores, plot and stays in husbands house
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th February, 2012
+ FAO 448/2011
% ASHWANI MEHTA ….Appellant Through: Mr. Vikas Arora, Adv.
Versus
MRS. VIBHA MEHTA ….. Respondent Through: Mr. K.K. Manan, Adv. with Mr. Mustafa Arif & Mr. Nipun Bhardwaj,
Advs.
AND
+ FAO 521/2011
% MRS. VIBHA MEHTA ….. Appellant Through: Mr. K.K. Manan, Adv. with Mr. Mustafa Arif & Mr. Nipun Bhardwaj,
Advs.
Versus
ASHWANI MEHTA ….Respondent Through: Mr. Vikas Arora, Adv.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. Both parties, being husband and wife, are dissatisfied with the order dated 09.09.2011 of the Family Court in exercise of powers under Section 125 of the Cr.P.C. awarding a sum of `60,000/- per month as maintenance FAO Nos.448/2011 & 521/2011 Page 1 of 9 to be paid by the husband to the wife from the date of filing of the petition i.e. 09.08.2005. When the appeal preferred by the husband came up before this Court, on the objection of the Registry as to the maintainability of the appeal, vide order dated 19.10.2011 the appeal was held to be maintainable and notice thereof was issued and the order of the Family Court in so far as qua the payment of arrears, was stayed.
2. The counsels have been heard. After hearing arguments on 03.01.2012, the husband was given an opportunity to sort out certain matters. Thereafter again on 18.01.2012, the counsels were heard.
3. The wife had claimed maintenance at the rate of `1,50,000/- per month. She is aggrieved from the grant of maintenance at the rate of `60,000/- per month only and in her appeal seeks maintenance at the rate of `1,50,000/- as claimed.
4. The Family Court has in the impugned order noticed/observed held:
(i) that the parties were married on 19.01.1981 and have two children from the wedlock;
(ii) they have been living separately in the same house;
(iii) that the matter regarding maintenance was settled on 01.02.2002 when the husband had agreed to pay maintenance of `1,50,000/- per month to the wife;
(iv) that the maintenance in fact was so paid at the said rate for four months but subsequent payments were stopped;
FAO Nos.448/2011 & 521/2011 Page 2 of 9 (v) the wife is not working and has no source of income;
(vi) the husband is a well qualified Doctor running Kolmet Hospital at Pusa Road, New Delhi and earning `35/- lakhs per annum as per income tax record and also holds several other properties;
(vii) it was the case of the husband that he was looking after all the financial needs of the wife and as such she did not require any maintenance;
(viii) that the wife was an active partner of hotel Marina and had 8% profit sharing in the said partnership;
(ix) that in a dispute relating to the partnership of hotel Marina, a sum of `2/- crores had been deposited in the Court to be withdrawn by the wife;
(x) that the wife also owned a 1000 sq. yards plot at Faridabad and an Opel Astra car;
(xi) that though the wife had led evidence but no evidence was led by the husband;
(xii) that the needs of the wife like food, electricity, residence etc. were being looked after by the husband since she was staying in the same house;
The Learned Family Judge arrived at the figure of `60,000/- per month as maintenance.
FAO Nos.448/2011 & 521/2011 Page 3 of 9
5. We will first deal with the argument of the need of the wife for maintenance when she is residing in the matrimonial house and when admittedly she has not to spend any amount on her food, residence and residential amenities. We are unable to accept the contention of the husband that, the husband if provides food and residence, owes nothing further to the wife. Attention of the counsel for the respondent is invited to age old concept of “Kharcha-i-Pandan” as also noticed by privy council in Nawab Husaini Begam v. Nawab Khwaja Muhammad Khan MANU/PR/0007/1910. The women, even when rarely going out of the house and when the entire expense of the household was met by the husband, were still found entitled to an amount for their own spending. In certain regions, the said amount also went by the name of “Hath Kharch”. The expression used in the English system was “Pin Money”. Even otherwise, it is unbelievable that if the relations had been good, the husband if had been providing boarding and lodging, would not have provided anything further to the wife. The Supreme Court recently in Vinny Parmvir Parmar v. Parmvir Parmar (2011) 7 SCALE 741 has reiterated that the test to be applied in adjudication of maintenance is, to place the wife in the same position as she would have been if the relationship had continued. It has come on record that the wife has a car which she states is thirteen years old, however money is required for running the car. Similarly, money is required to fulfill the other day-to-day needs including of clothing, personal effects etc. of the wife. Similarly money is required for entertainment. A life on alimony is not to be a life different from what the wife would have led if the relationship had not gone sour. The quantum of maintenance inter alia depends upon the status of the husband.
FAO Nos.448/2011 & 521/2011 Page 4 of 9
6. During the hearing before us also, it was admitted that the wife is not working. It was further admitted that she was a partner in hotel Marina. However, it is further admitted that disputes and differences had arisen with respect to the said partnership in which the father of the husband and certain other persons are other partners. While the father of the husband claims that the „wife‟ in a litigation with respect to the said partnership had agreed to dissolution thereof on receipt of `2/- crores and which was deposited, the wife controverts the same. The fact remains that the said sum of `2/- crores has not come into her hands and the dispute relating to partnership is still pending. It is also a fact that owing to the said dispute, the wife is not getting any share of profits of the said partnership. Thus the wife has no source of income.
7. The wife, as aforesaid is the owner of a plot of land ad-measuring 1000 sq. yards at Faridabad. However the said plot also is not earning her any income. The argument is that she can sell the same and would get enough sale consideration, to be not entitled to any maintenance. On the contrary, the wife contends that neither she is in possession of the documents of title of the said plot and nor she is in a position to immediately sale the same owing to her husband and his family members having allowed some other persons to encroach thereon. After the hearing on 03.01.2012, we had adjourned the matter to explore the possibility of sale of the said plot. However, no possibilities thereof emerged. The ownership of the said plot thus cannot be a factor influencing the quantum of maintenance.
8. That leaves us with the question of quantum of maintenance. The wife has predicated her claim at `1,50,000/- per month on the basis of FAO Nos.448/2011 & 521/2011 Page 5 of 9 agreement of the year 2002. The said agreement was proved by the wife in her evidence before the Family Court. The said agreement is as under:-
“We, Ashwini and Vibha are married and we
confirm that we would like to continue loving and living with each other.
We also confirm that we will like to live our lives in absolute harmony and perform all the responsibilities of a husband and wife.
We, commit to be faithful in our married life,
provide financial, emotional and mental support in all times.
In case of any breach of trust on account of being unfaithful, Ashwini would provide his wife, Vibha Mehta.
i) Continue to live on the 2 nd Floor of D- 196/D-197, Defence Colony, New Delhi, freely.
ii) Provide financial monthly support of `1,50,000/- (Rupees One Lakh Fifty Thousand
Only) to Vibha.
He will be responsible in bringing up the children and provide for them.
FAO Nos.448/2011 & 521/2011 Page 6 of 9 This document cannot be used in any form or forum without the consent of Anil Taneja, the arbitrator for this document.
This entire document has been written by arbitrator Anil Taneja, in his own handwriting.
This document is signed on 18 th Feb’ 2002 in New Delhi at D-196/197, Defence Colony.”
9. We have asked the counsel for the husband as to why the husband should not be held bound by the same.
10. He contends (i) that the said agreement is forged, (ii) that the same was not to be used before any fora, (iii) that the husband had thereunder agreed to provide financial support of `1,50,000/- only in the event of being unfaithful and it has not been proved that he was unfaithful.
11. We have perused the cross examination of the wife by the counsel for the husband on the aspect of the said agreement. Therefrom, we are unable to hold that there is any challenge to the genuineness of the same. It has not been so contended strenuously either. The husband did not step into the witness box to deny the said argument. Once the agreement is established, mention therein of the condition of being unfaithful, for such financial support or not to use the same in any Court are meaningless and not found to be relevant as far as the quantum of maintenance is concerned. The financial support of `1,50,000/- per month which the husband in the said agreement had agreed to pay cannot be said to be a compensation for being unfaithful which in any case is an offence in law. The word unfaithful in FAO Nos.448/2011 & 521/2011 Page 7 of 9 the said agreement connoted the parties being unable to stay as husband and wife and which admittedly they are not. The term therein of non use thereof in Court without permission of Mr. Anil Taneja also has not been established. As aforesaid, the husband has chosen not to come in the witness box. The husband has not established that Mr. Anil Taneja has any objection to the use of the said document in the Court. Moreover, it is quite evident that the document was created to bind the husband and hence the clause therein to the effect that it cannot be used in Court without the consent of Mr. Anil Taneja is found to be not preventing the wife from relying thereon.
12. The husband as aforesaid has failed to appear in the witness box. The only inference which can be drawn is that had he so appeared, he would have been forced to admit his income and assets to be enough to justify what he had agreed to pay i.e. `1,50,000/- p.m.
13. The Family Court however in the judgment impugned in these appeals has not given any reason to not bind the husband to the rate of maintenance which he had agreed in the said agreement.
14. We do not see any reason to differ from the quantum of maintenance agreed by the parties themselves specially when we have nothing before us to show that there is any reduction in the income of the husband since the year 2002 when he had agreed to the said quantum. Rather with the passage of time in the normal course, the income of the husband would have gone up.
FAO Nos.448/2011 & 521/2011 Page 8 of 9
15. However, since maintenance is in the form of subsistence, we are of the view that while the arrears in terms of order of the Family Court should be confined to maintenance at the rate of `60,000/- per month, the future maintenance should be in terms of the agreement at the rate of `1,50,000/- per month.
16. Accordingly, the husband is directed to pay the arrears of maintenance at the rate of `60,000/- per month within six weeks hereof and if has not paid maintenance since then @ ` 1.50 lac p.m. to pay difference between `60,000/- and `1,50,000/- with effect from the date of the order of the Family Court and till the end of February, 2012 within four weeks hereof and to with effect from the month of March, 2012 pay maintenance at the rate of `1,50,000/- per month, to the wife.
17. FAO 448/2011 preferred by the husband is accordingly dismissed and FAO 521/2011 preferred by the wife is partly allowed. The matters having been disposed of expeditiously, no order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
FEBRUARY 17, 2012
„gsr‟..
FAO Nos.448/2011 & 521/2011 Page 9 of
HC: 498A filed with oblique motive to harass husband and his parrent and hence quashed
DO NOT COPY
Visitor’s Location
Live Feed
Recent Comments