Archive

Archive for the ‘CrPC 125’ Category

Delhi HC: CrPC 125 is often being misused by greedy women

Delhi High Court
Santosh Malhotra vs Ved Prakash Malhotra And Others on 18 May, 2012

* 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

Categories: Judgement

HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application

Punjab-Haryana High Court
Smt. Sushila & Another vs Suresh Kumar on 18 May, 2012

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

Categories: Judgement

Calcutte HC: Even after grant of divorce, divorcee wife is entitled to grant a maintenance under CrPC 125

Criminal Procedure, 1973 vs Unknown on 2 August, 2012
Author: Kanwaljit Singh Ahluwalia

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. )

Categories: Judgement

Husband ordered to pay 1.5 lakh per month by HC though wife has 2 crores, plot and stays in husbands house

February 21, 2012 1 comment
Delhi High Court
% Ashwani Mehta vs Mrs. Vibha Mehta on 17 February, 2012

* 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

http://indiankanoon.org/doc/24284804/

Categories: Judgement

If order of maintenance is passed under section 18 HAMA or section 125 Cr.PC then wife can file for divorce under section 13(2)(iii)

Delhi High Court
Satinder Singh vs Bhupinder Kaur on 2 November, 2011

IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT APP. No.20/2011 & CM No. 5645/2011

Judgment delivered on: 02 November, 2011

Satinder Singh ……Petitioner Through: Mr. Hari Shankar, Adv.

Vs.

Bhupinder Kaur ……Respondent Through: Mr.Shailender Dahiya, 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 read with section 151 CPC, the Appellant seeks to challenge the Order dated 16.8.2010 passed by the learned trial court whereby a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act was passed in favour of the respondent.

 

2. Brief sequence of events that has led to the filing of the present appeal is that the respondent filed a petition for divorce under section 13(2)(iii) of the Hindu Marriage Act and MAT APP.20/2011 Page 1 of 11 the appellant filed an application under Order VII rule 11 for rejection of the plaint which was dismissed vide order dated 13.11.2009. A revision was filed against the said order which was dismissed by this court vide order dated 17.12.2010. Thereafter the petition for divorce was decided and the respondent was granted divorce vide order dated 16.8.2010 and feeling aggrieved by the same, the appellant has preferred the present appeal.

3. Assailing the said judgment and decree, learned counsel representing the appellant submits that the order passed under Section 125 Cr.PC was an interim order and based on the interim order the learned matrimonial court could not have exercised jurisdiction to grant a decree of divorce in terms of section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that any interim order passed in any proceedings will always remain an interim order which would ultimately be subject to passing of a final order and the final order can always vary and in a given case may be against the party in whose favour an interim order has been passed. Counsel thus submits that jurisdiction under Section 13(2) (iii) of the Hindu Marriage Act may be exercised by the matrimonial court only when a final order was passed under Section 125 Cr.PC and, therefore, the MAT APP.20/2011 Page 2 of 11 expression ‘order’ referred to under section 13(2) (iii) of the Hindu Marriage Act must be read as a final order and not as an interim order. Counsel also submits that the respondent has also misled the matrimonial Court by not disclosing the fact that she got remarried and due to such suppression of a material fact on the part of the respondent she was not entitled to the grant of decree under section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that the learned matrimonial court has also not appreciated that the earlier divorce petition filed by the respondent under section 13(1) (ia) of the HM Act was dismissed and the said finding being against the respondent and in favour of the appellant, the learned trial court ought not to have passed a decree in favour of the respondent under section 13(2) (iii) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant has placed reliance on the following judgments :-

1.Gita Massant vs. Narain Dass, 27 (1985) DLT 374

2.Snehlata Seth vs. V.Kewal Krishan Seth, 27(1985) DLT 449.

3.Prem Chandra Agarwal vs. U.P. , JT 2009(8) SC 118

4. Amarjeet Singh vs. Devi Ratan, AIR 2010 SC 3676

5. Kalabharati Advertising vs. Hemant Vimalnath, AIR 2010 SC 3745

4. Opposing the present appeal, counsel for the respondent submits that the appeal filed by the appellant is a MAT APP.20/2011 Page 3 of 11 gross abuse of process of law and the appellant has suppressed from this court that he had filed an application under Order VII Rule 11 CPC before the matrimonial Court to seek rejection of the said petition filed by the respondent under section 13(2) (iii) of the HM Act and that the said application of the appellant was dismissed by the trial court. Counsel further submits that against the said order the appellant had also filed a revision petition before this Court which was also dismissed vide order dated 17.12.2010. Counsel thus submits that because of suppression of these vital facts, the appellant is not entitled to the grant of any relief by this Court in the present appeal. Counsel further submits that in the order passed by the Hon’ble High Court in the said revision petition, the finding has already been given by this Court that the interim order passed under section 125 Cr.PC would give jurisdiction to the matrimonial court to pass a decree under section 13(2) (iii) of the HM Act and the said finding not being challenged by the appellant, the same attained finality and in view of this also the appellant now cannot agitate the same grievance again before this Court. Counsel also submits that so far as the remarriage of the respondent is concerned, same has taken place after the passing of the decree of divorce in favour of the respondent.

MAT APP.20/2011 Page 4 of 11

5. I have heard counsel for the parties at considerable length and gone through the records.

 

6. The Law Commission in its 59th report recommended adding section 13(2)(iii) to the Act wherein it provided an additional ground of divorce to the wife. The intent of introducing the said section was to give the wife the right to seek divorce if she has been neglected or not maintained by her husband after an order of maintenance has been passed in her favour. There was discussion with regard to the said provision being made available to the husband equally but it was concluded that such right would ultimately lead to the husband misusing the provision, who in the bid to get rid of his wife would abandon her and compel the wife to move the court for the grant of maintenance and thereafter himself fully submit to the order of payment of maintenance knowing that he would be entitled to get a decree of divorce after the said period of one year has elapsed. Therefore the said provision was brought on the statute book to enable only the wife to seek a decree of divorce if after passing of the order of maintenance there has been no cohabitation for one year which would mean that the husband has ceased to value the society of the wife and their need for each others company has MAT APP.20/2011 Page 5 of 11 prima facie come to an end. Earlier it was suggested that the period under the section be of three years but later on it was reduced to one year as being appropriate. Thereafter Section 13(2)(iii) of the Hindu Marriage Act in its present form was introduced in the Act through the Marriage Laws (Amendment ) Act, 1976 (Act 68 of 1976). Hence by virtue of the said provision, an additional ground of divorce has been made available to the wife to seek dissolution of her marriage by a decree of divorce on the ground that a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife either in a suit filed by the wife under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure and since the date of passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. For better appreciation, Section 13(2) (iii) is reproduced as under: “Section 13(2): A wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground,-

(iii) that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the corresponding section 488 of the Code of

Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed

against the husband awarding maintenance to the MAT APP.20/2011 Page 6 of 11 wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been

resumed for one year or upwards;”

 

7. It would be evident from a plain reading of the above provision that for a wife to claim divorce under the said provision she is required to satisfy the following conditions: (a) A decree or order has been passed in her favour and against the husband awarding maintenance to her either in a suit filed by her under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure; and

(b) That the wife has been living apart since passing of such a decree or order; and

(c) There has been no resumption of cohabitation between the parties for a period of one year or upwards. Hence, in a petition filed by the wife under the said section if she is able to satisfy the aforesaid three conditions, then she would be entitled to a decree of divorce. In the facts of the case at hand, the contention raised by the counsel for the appellant is that the order which gives a right to the wife to seek divorce under the said section is a final order and not an interim order. The appellant had urged this ground for filing an application MAT APP.20/2011 Page 7 of 11 under order 7 rule 11 for rejection of the petition for divorce filed by the wife on the basis of the interim order dated 2.3.2005 under section 125 CrPC where the court while dismissing the said application vide order dated 13.11.2009 held that the word ‘order’ would include an interim order as well and the appellant herein had then challenged the order before this court in the revision petition which was also dismissed by this court vide order dated 17.12.2010 with the following observations: “As per this Section, wife is entitled to file a petition for dissolution of marriage by a decree of divorce on the basis of proceedings under Section 125 Cr.P.C. wherein a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife. The word “order” appearing in this Section includes the interim order as well as the final order and does not speak only of the final order passed on a petition under Section 125 Cr.P.C. for seeking dissolution of marriage by a decree of divorce under the above provisions of law” Admittedly, the above said order of this court was not challenged by the appellant and thus attained finality laying the controversy to rest to whether the order under the said section would mean an interim order as well and the ground cannot be allowed to be reagitated by the appellant herein.

 

8. Even otherwise, a bare look at the section13(2)(iii) would manifest the intention of the legislature as two separate expressions have been used in the said Section i.e. ‘decree’ or MAT APP.20/2011 Page 8 of 11 ‘order’, which would necessarily mean either an interim or a final order. The intention of the legislature is to give a right to the wife to invoke the said provision in a case where even an interim order has been passed in either of the said proceedings, which is also clear from the language used in the said section beginning with the words “in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure , wherein the words ‘in a suit or in a proceeding’ would clearly mean that the order passed during the pendency of the proceedings either under Section 18 or under Section 125 of the Code of Criminal Procedure. There is thus no room to interpret the said provision in a manner suggested by the counsel for the petitioner which otherwise would defeat the very purpose and object of the said section.

 

9. The essence of the said provision is that there should be no resumption of cohabitation between the parties for a period of one year or upwards from the date of the passing of such an order, so this one year gap has to be reckoned from the date of the passing of an order under Section 125 of the Code of Criminal Procedure or under Section 18 of the Hindu Adoptions MAT APP.20/2011 Page 9 of 11 and Maintenance Act and not necessarily a final order or decree. The section does not talk about the payment or non payment of the maintenance amount but of the non resumption of cohabitation of the parties. Clearly, in the facts of the present case the appellant had admitted that there was no resumption of cohabitation for a period of more than one year after the order dated 02.03.2005 under Section 125 Cr.P.C. was passed by the court of the learned Metropolitan Magistrate.

 

10. It is quite pertinent to note that section 13(2)(iii) talks about section 18 under the HAMA and section 125 Cr.PC, which are both the provisions for grant of maintenance available to the wife only unlike section 24 or 25 of the HMA wherein any party can approach the court for the grant of maintenance. It is thus manifest that the order of maintenance passed in the favour of the wife in her petition under section 18 HAMA or section 125 Cr.PC would make her available the right to file for divorce under section 13(2)(iii). If the contention of the counsel for the appellant is accepted and the order in the section is meant to be only a final order then the purpose of the said provision would be negated as the wife who seeks a decree of divorce under the said section would have to wait till a final order under section 18 or MAT APP.20/2011 Page 10 of 11 section 125, as the case may be, which would certainly mean insisting on an invariably long waiting period, which is certainly not the object of the said section. The only desideratum is that the parties have ceased to live together for one year or more and to save the wife from vagrancy she has a order or decree of maintenance in her favour. The judgments relied upon the counsel for the appellant would not be applicable to the facts of the case at hand as they sought to carve a different legal proposition altogether.

 

11. In the light of the above discussion, this court does not find any merit in the present appeal and the same is hereby dismissed.

November 02, 2011 KAILASH GAMBHIR,J MAT APP.20/2011 Page 11 of 11

http://indiankanoon.org/doc/134951262/

Categories: Judgement, Judgement

Permanent alimony granted during Divorce? No further maintenance in CrPC 125

Delhi High Court
Anita vs Rati Ram Chauhan on 4 November, 2011
Author: Mukta Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. Rev. P. 726/2010 & Crl. M.A. 17479/2011 % Reserved on: 8th August, 2011 Decided on: 4th November, 2011

ANITA ….. Petitioner Through: Mr. Ratnesh Bansal, Advocate

versus

RATI RAM CHAUHAN ….. Respondents Through: Mr. Shailender Dahiya, Advocate with Respondent in person.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported Yes in the Digest?

MUKTA GUPTA, J.

1. By this petition the Petitioner seeks quashing of the Judgment dated 10th September, 2010 passed in case number 95/2010 by the learned Additional Principal Judge dismissing the application of the Petitioner seeking maintenance from the Respondent under Section 125 Cr. P. C. Crl. Rev.P. No.726/2010 Page 1 of 8

2. Briefly the facts are that the marriage between the parties was solemnized on 23rd February, 1996. The Petitioner claims that the Respondent and his family members were not satisfied with the dowry articles presented at the time of marriage. They started ill treating her and raised a demand of Rs. 1 Lac and a car. On 17th April, 1996 the Respondent, his father and sister pushed her down from the roof of the matrimonial home resulting in serious injuries to the Complainant. She was then removed by the neighbors to Gupta Nursing Home. The nursing home however did not admit her and referred her instead to Mata Chanan Devi Hospital. On 27th April, 1996 the Petitioner was discharged from Mata Chanan Devi Hospital and since then she has been staying in her parental home. After about 17-20 months, the Petitioner lodged a complaint with the police for the said incident and a case FIR No. 34/98 was registered under Section 498A/307/406/34 IPC. In the said trial the Respondent and his family members were acquitted by the learned Additional Session Judge. The Respondent in May, 1998 filed a petition for dissolution of marriage on the ground of cruelty and the marriage was dissolved by learned District Session Judge vide Judgment and decree dated 26th May, 2007. Vide this Judgment, the Petitioner was granted Rs. 3,000/- per month as alimony. There is however an appeal pending in this court filed by the Petitioner vide Mat. App. 46/2007. The Petitioner Crl. Rev.P. No.726/2010 Page 2 of 8 claims that after her injury, she is unable to move and the Respondent has not made any provision for her medical treatment or maintenance and is refusing to maintain her without any sufficient cause. Hence the present petition.

3. The learned Counsel for Petitioner contends that the learned Additional Principal Judge in the impugned Judgment has placed great reliance on the fact that the Respondent and his family members have been acquitted by the learned Additional Session Judge. According to him this acquittal was not binding on the family court and therefore the maintenance application should have been decided on its own merits de- hors the findings of the learned Additional Sessions Judge in the criminal trial.

4. It is stated that as per Section 125 Cr. P. C if a person with sufficient means neglects or refuses to maintain his wife then he is liable to pay her maintenance. Learned Counsel states that the learned Additional Principal Judge failed to appreciate the fact that during trial the Respondent admitted his liability to maintain the Petitioner but had not shown any intention to take the Petitioner back to the matrimonial home.

Crl. Rev.P. No.726/2010 Page 3 of 8

5. Learned Counsel for Petitioner further states that the Petitioner has appealed against the Judgment dated 26th May, 2007 passed by the learned Additional Session Judge dissolving her marriage which is still pending in this Court. Under these circumstances the alimony of Rs. 3,000/- per month granted to the Petitioner in the divorce proceedings should have been disregarded by the learned Additional Principal Judge while deciding the petition for maintenance.

6. Learned Counsel for Respondent on the other hand contends that the Respondent had never neglected to maintain the Petitioner. On the 17th April 1996, the Petitioner slipped from the stairs when the Petitioner and his father were not at home. The entire medical expenses were borne by the Respondent. The Respondent being a Government employee is entitled to all the facilities of medical treatment under CGHS and had repeatedly asked the Petitioner to get treated at any CGHS hospital. But all she did was demand money in lieu of medical expenses, trying to cause the Respondent wrongful loss. The Petitioner was never meted with cruelty. It is the Petitioner who has deserted the Respondent as she was not interested in maintaining the relations.

7. I have heard learned Counsels for the parties. While adjudicating any issue it is the responsibility of the Judge to consider all the facts and circumstances. Proceedings under Section 125 CrPC are summons trial Crl. Rev.P. No.726/2010 Page 4 of 8 proceedings. The Court is justified on relying upon the findings of the competent Court in a criminal trial for the offences alleged and regarding cruelty by the matrimonial Court. In Inderjit Kaur vs. Union of India (1990) 1 SCC 344 it was held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court. Further in Teja Singh vs. Chhoto 1981Crl. L.J. 1467 (Punjab & Haryana) while dealing with a similar issue it was held that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties is rendered by the civil court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the civil court order by cancelling the order granting maintenance if such is the import of the judgment of the civil court. In case of Sri Jasholal Agrawala @ Jain vs. Smt. Puspabati Agrawala, 1994 Crl.LJ 185 the High Court of Orissa it was held that it has to be taken as an accepted principle that the finding of the civil court in a matrimonial proceeding is binding on the criminal court and the criminal court is not entitled to question the correctness or validity of the civil court decision. Crl. Rev.P. No.726/2010 Page 5 of 8

8. The learned Additional Principal Judge was therefore justified in relying on the fact that the learned Additional District Judge by Judgment dated 26th May, 2007 had dissolved the marriage of the parties on the ground of cruelty by the Petitioner and had the Respondent actually been harassing or neglecting the Petitioner then he would have never succeeded in the divorce petition. The fact that the Respondent allowed bed ridden Petitioner to go to her parental home so that she could be looked after by her mother was also found to be convincing since the Respondent had no female member in his family.

9. It is relevant to note that the Petitioner in her statement has admitted before doctor in the Hospital that she had slipped from the stairs on the day of incident. The Petitioner has not placed anything on record to show that there was any pressure from the side of Respondent on her to give that statement. Further, the father of the Petitioner in his statement before Court admitted that when he visited his daughter in the Hospital she did not tell him anything. From a perusal of the statements of witnesses, it is clear that the claim of the Petitioner that Respondents failed to maintain her and willfully neglected her is not substantiated.

10. As per the record the Respondent had filed the medical bills of Mata Chanan Devi Hospital as evidence of making payment of the same. The father of the Petitioner in his explanation for the bills being in Crl. Rev.P. No.726/2010 Page 6 of 8 possession of the Respondent had stated that the respondent had stolen the bills from him. But this story is completely contradictory to his other statement wherein he had said that the Respondent never visited the Petitioner in the hospital or thereafter. Thus the Respondent had no occasion to commit the theft of the bills from the Petitioner or her father. Therefore it can be safely held that the Respondent bore the expenses of the Petitioner’s treatment in the hospital and he was not negligent in his responsibilities towards the Petitioner.

11. The Petitioner has not been able to adduce any evidence to support her contention of being neglected by the Respondent. Moreover there is no explanation rendered by the Petitioner as to why she did not inform her neighbour or any other person who allegedly removed her to the nursing home that she was thrown by the Respondent or his father. Further the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. The Respondent on the other hand has adduced evidence to show that he had not neglected to maintain the Petitioner and is even paying Rs. 3,000/- per month regularly as directed by the learned Additional District Judge vide the Judgment dated 26th May, 2007.

Crl. Rev.P. No.726/2010 Page 7 of 8

12. Learned Additional Principal Judge has considered all the relevant issues and scrutinize the matter. I do not find any infirmity in the Judgment dated 10th September, 2010.

The revision petition and the application are accordingly dismissed. (MUKTA GUPTA)

JUDGE

NOVEMBER 04, 2011

vkm

Crl. Rev.P. No.726/2010 Page 8 of 8

http://indiankanoon.org/doc/933235/

Categories: Judgement

Multiple maintenance not allowed SC_1

Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin
Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997
JUDGMENT
S.P. Bharucha, J.
1. Special leave granted.
2. The respondent-wife has been served by substituted service but does not appear.
3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.
4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.
5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.
6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.
7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.
8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.
9. The appeal is disposed of accordingly.
10. No order as to costs.

Categories: Judgement

Multiple maintenance not allowed Panjab_and_Haryana_3

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR NO.4813 OF 2009 (O&M)
DECIDED ON : 25.08.2009
Raman Ahuja @ Banti …Petitioner versus
Vandana …Respondent CORAM : HON’BLE MR. JUSTICE AJAY TEWARI Present : Mr. Karan Vir Nanda, Advocate for the petitioner.
AJAY TEWARI, J. (ORAL)
This petition has been filed against the award of maintenance pendente lite of Rs.3,000/- per month. The only prayer made by the learned counsel for the petitioner is that the petitioner is already paying maintenance under Section 125 Cr.PC and Protection of Women from Domestic Violence Act, 2005 and that the petitioner should not have to pay maintenance on independent accounts. In fact what the learned counsel for the petitioner is praying for is really the law. Learned counsel further relied upon the judgment of Hon’ble Supreme Court titled as Sudeep Chaudhary versus Radha Chaudhary 1999 AIR (SC) 536.
Consequently, this petition is dismissed with the clarification that the amount awarded by the impugned order would be set off against the maintenance being paid by the petitioner to the respondent under other proceedings. August 25, 2009 (AJAY TEWARI) sonia JUDGE

Categories: Judgement

Multiple maintenance not allowed Panjab_and_Haryana_2

 

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5775 of 2008
Date of decision : January 20, 2010
Smt. Sonia
….Petitioner
versus
Om Parkash
….Respondent
Coram: Hon’ble Mr. Justice L.N. Mittal
Present : Mr. GP Singh, Advocate, for the petitioner Mr. JS Saneta, Advocate,
for the respondent
L.N. Mittal, J. (Oral)
Smt. Sonia has filed this revision petition under Article 227 of the
Constitution of India assailing order dated 18.9.2008 (Annexure P/2) passed by
learned Additional District Judge, Kaithal, whereby application moved by the
petitioner herein under section 24 of the Hindu Marriage Act, 1955 (in short,
the Act) claiming maintenance pendente-lite and litigation expenses from the
respondent-husband Om Parkash during pendency of divorce petition filed by
respondent herein against the petitioner under section 13 of the Act, has been
disposed of.
The petitioner herein claimed litigation expenses and maintenance
for herself as well as for the minor son Jonny residing with her. Civil Revision
No. 5775 of 2008 -2- The application was resisted by the respondent-husband
alleging that the petitioner had already received Rs 1,60,000/- as maintenance
for herself as well as for the minor child pursuant to compromise effected
between the parties and thereupon petition under section 13-B of the Act had
been filed but subsequently the petitioner herein withdrew her consent for
divorce by mutual consent and therefore, the said petition under section 13-B
of the Act was dismissed. Learned Additional District Judge vide impugned order
Annexure P/2 rejected the prayer of the petitioner herein for maintenance
pendente-lite on the ground that she had already received Rs 1,60,000/- as per
compromise between the parties but the respondent-husband has been directed to pay Rs 5500/- as litigation expenses to the petitioner-wife. I have heard
learned counsel for the parties and perused the case file.
Learned counsel for the petitioner vehemently contended that the
amount of Rs 1,60,000/- which was payable to the petitioner under the
compromise was given to one Jai Bhagwan alias Dayala to be paid to the
petitioner herein after passing of decree of divorce and since petition under
section 13-B of the Act was dismissed, the said amount was paid by Jai Bhagwan alias Dayal to the respondent-husband and not to the petitioner. Reference has been made to affidavit of Jai Bhagwan alias Dayala filed in the instant revision petition. It was pointed out that the husband while appearing as
witness in petition under section 125 of the Code of Criminal Procedure (in
short, Cr.P.C.) admitted that the amount of Rs 1,60,000/- had been kept with
Jai Bhagwan alias Dayala and was to be paid to the petitioner-wife after grant
of divorce.
Civil Revision No. 5775 of 2008 -3- On the other hand, learned counsel for
the respondent contended that the petitioner-wife furnished affidavit with
petition under section 13-B of the Act admitting to have received amount of Rs
1,60,000/- as per compromise. I need not to go into aforesaid contentions
raised by learned counsel for the parties because in petition under section 125
Cr.P.C. filed by the petitioner-wife and minor son Jonny, they have been
granted Rs 750/- per month each as maintenance payable by the respondent-
husband vide order dated 17.3.2009. The said order has attained finality.
Consequently, the petitioner-wife cannot be granted maintenance pendente-lite in the instant proceedings when she had already been awarded maintenance under section 125 Cr.P.C. The quantum of maintenance has also been assessed on the basis of evidence led by the parties. The petitioner cannot get double maintenance for the same period. Consequently, for this reason the impugned order cannot be set aside. As regards litigation expenses, learned Additional District Judge has already granted Rs 5500/- as litigation expenses to the petitioner- wife.
In view of the aforesaid, there is no merit in the instant revision
petition which is accordingly dismissed.
( L.N. Mittal )
January 20, 2010 Judge ‘tiwana’

Categories: Judgement

Multiple maintenance not allowed Panjab_and_Haryana_1

Civil Revision No. 2427 of 2009 -1- ***
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 2427 of 2009
Date of decision : 23.2.2010
Gian Chand
….Petitioner
Versus
Dilpreet Kaur …Respondent CORAM : HON’BLE MR. JUSTICE S. D. ANAND
Present: Mr. G.P.S.Bal, Advocate for the petitioner S. D. ANAND, J.
It is apparent from the record that respondent-wife is in receipt
of two items of maintenance, one out of which had been awarded in her favour in the course of proceedings under Section 125 Cr.P.C. and the other had been
awarded in her favour in allowance of the proceedings under Section 24 of the
Hindu Marriage Act. The learned counsel, appearing on behalf of the petitioner,
states that the interest of justice would be served and the petitioner would be
content if it is ordered that the amount awarded to the respondent-wife in the
proceedings under Section 125 Cr.P.C. is ordered to be set off against the
amount awarded in her favour (for self and the only child of the parties).
There is none on behalf of the respondent to resist the presentation aforementioned.
There can be no dispute with the proposition that a wife can avail
of maintenance in the course of the proceedings under Section 125 Cr.P.C. or it can have the cake in terms of Section 24 of the Hindu Marriage Act. There also can be no dispute with the proposition that the amount awarded in the course of either of the proceedings in favour of the wife has to be set off against the amount awarded to her in the other proceedings.
There is no law which would entitle the wife to resist the indicated set off in
the matter of maintenance awarded in her favour. In the present case,
maintenance at the rate of Rs.1500/- has been awarded by the criminal Court in
Court in favour of the respondent- wife and the only child of the
parties, however, in the course of the divorce proceedings, the learned Trial
Judge awarded maintenance pendent-lite at the rate of Rs.3,000/- per month to
the respondent-wife. In the light of foregoing discussion, the petition shall
stand disposed of with a direction that the amount awarded to the respondent-
wife for self and only child of the parties shall be set off against the amount
awarded in favour of the respondent-wife in the proceedings under Section 24 of the Hindu Marriage Act..
February 23, 2010 (S. D. ANAND) Pka JUDGE

Categories: Judgement

Multiple maintenance not allowed Mumbai_HC

Bombay High Court

Equivalent citations: 1992 CriLJ 1845
Bench: B Wahane
Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991
JUDGMENT
1. In the instant application, the substantial question of law, in the public interest, has been raised and enquires decision from this Court. The substantial question of law raised is as under :
“Whether a Judicial Magistrate First Class trying an application under Section 125 of Cr.P.C., is obliged under law, to stay the proceedings, on the ground that a Civil Court of competent jurisdiction  as seized the matter in a suit, in which identical pleadings are made, and same reliefs are claimed by one and the same applicant/plaintiff, in whose favour the Magistrate has already awarded interim maintenance ?”
2. The facts giving rise to the above question of law, in nutshell, are as under :
The applicant and the non-applicant are the legally married spouses.  Their marriage was solmnised as per the customs and rites of Hindu Religion, some times in the year 1969 at Buldana. Out of the wed-lock, they have two issues viz. first issue is a son – Sagar who  is living with the applicant while the second issue a daughter Miss Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar. The couple had been to Canada and U.S.A. where they stayed for 12 to 13 years along with their children. Both returned some time in the year 1984 to India and stayed at Buldana till 1986. During this  period, their relations became strained and ultimately on 19/5/86, the non-applicant filed an application u/S. 125 of  Cr.P.C. againstthe applicant for maintenance for her and the daughter. Along with the application for maintenance, the wife had also filed an application for interim maintenance @ Rs. 500/- p.m. for both the non-applicants, on the very day. The learned trial Court, after hearing the parties and considering the facts, awarded Rs. 250.0 p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim relief. Since the day of the order, the applicant has paid Rs. 24,000/- to the non-applicants as maintenance allowance and that too in advance. Mr. Vidwanash, the learned counsel for the applicant submitted that the applicant has made the payment in advance till October 1991.
3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed  a regular Civil Suit No. 227/86 or permanent alimony and also for arrears of maintenance. Along with the plaint, an application for the attachment of the property before judgment was also filed. On 28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following order on the said application :
“Perused the application and say at Exh. 64. The prayer of the applicant is that Order of attachment before Judgment be passed or direct the defendants to furnish solvent surety of Rs. one lakh. By way of Exh. 64, the defendants showed their willingness to furnish surety of one lakh. Hence, the defendants are directed to furnish solvent surety of Rs. one lakh”.
In compliance with the above order, on behalf of the defendants, Shri W. Y. Godbole, resident of Nagpur has furnished the solvent surety before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the applicant has filed his written statement in the said Civil Suit,denying the claim of the non-applicants. The case is now posted for filing the documents.
4. The applicant filed an application to stay the proceedings of Misc. Criminal Case No. 114/86 before the Judicial Magistrate, First Class, Buldana, till the decision of the Regular Civil Suit No. 227/86. The application was opposed. After hearing the parties, the learned J.M.F.C., Buldana, rejected the application filed by the applicant for stay of the Misc. Criminal Case No. 114/86 vide his order dated 24-1-1991.
5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant approached this Court.
6. Mr. Vidwans, the learned counsel for the applicant submitted that though the non-applicant wife instituted two proceedings, one in the Criminal Court and another in the Civil Court, but the reliefs are one and the same. The relief sought in the application u/s. 125 of Cr.P.C.is to the following effect “to direct the opponent to pay the subsistence allowance of Rs. 500/- p.m. each to both the applicants Nos. 1 and 2″. In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause (i) is that “It is, therefore, prayed that this Hon’ble Court be pleased to decree the claim of the plaintiffs by passing necessary orders of maintenance against the defendant, directing him to pay arrears of Rs. 7000/- to the plaintiffs and further be  ordered him to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs i.e. total Rs. 1000/- p.m. from the date of filing of this suit and onwards permanently”. The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg. C.S. No. 227/86 are one and the same.
7. Mr. Vidwans, the learned counsel for the applicant submitted that practically pleadings are identical and verbatim in both the cases. He took me through the pleadings of both cases and demonstrated the practically the paras are identical as much as they are in verbatim. Following paras of the application u/S. 125 of Cr.P.C. are identical to the paras of the plaintiff in Reg. Civil Suit. Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.
8. The findings given by the Civil Court are binding on the Criminal Court. Therefore, as the matter is seized with the Civil Court i.e. in respect of the maintenance allowance and that too the similar amount which she alleged to be entitled in the application u/s. 125 of  Cr.P.C., instead multiplying the litigations and to harass the applicant to lead the evidence in different two courts, in the interest of justice, the application pending in the court of J.M.F.C., Buldana  be stayed till the decision in the Reg. C.S. No. 227/86. It is further submitted that any verdict given by the Criminal Court is not binding on the Civil Court but it is vice versa. The reliefs being the one and the same, the evidence will be common, so also the documents, it is the interest of both the parties to get the verdict from the Civil Court.
9. Mr. Vidwans, the learned counsel for the applicant relied upon the case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in para 7 as follows (at page 348) :
“I fail to understand what is the qualitative difference between the two stands. The parties are merely formulating the same propositions in the two proceedings in different words. The distinction made bythe learned Judge is without any difference, as observed by the learned Magistrate and as is also apparent from the record, the dispute in the criminal complaint also revolves on the pivot whether or not respondents are the sole agents of the petitioners for sale and export of the petitioner’s goods to the countries concerned. The learned Addl. Sessions Judge’s interpretation is clearly wrong so far as this aspect is concerned”.
In para 8, Their Lordships observed that :  “The other two reasons given by the learned Magistrate and indicated in para 6 supra, are also sound and the learned Addl. Judge has not bothered himself to consider them. The learned Magistrate’s order staying the prosecution was eminently just and the learned Addl. Sessions Judge should not have interfered with it in revision”.
The reliance also been placed on the case of William J. W. Ross v. Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri  LJ 548). In that case before their Lordships, the wife instituted the proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already instituted the proceedings for divorce in the Divorce Court. Their Lordships observed that – “I am of opinion that the learned Magistrate would have exercised a better discretion on receiving an application u/s. 488 against a husband who had already instituted proceedings in the divorce Court, if he had referred the applicant for her remedy to the Civil Court.  I do not think that it was the intention of the legislature in S.  489 to encourage applicants to resort to criminal Courts up to the very time when an order was passed by a competent Civil Court. As the Civil Court was seized of the matter, it seems to me clear, it is better that the Civil Court should dispose of it, and in the circumstances which have arisen in the present case, I am of opinion that a High Court would stay proceedings in a criminal Court until the conclusion of the divorce petition. We accordingly direct the learned Magistrate to stay the hearing of the application u/s. 488,Cr.P.C., by adjournment from time to time until the conclusion of the divorce petition”.
10. On behalf of the non-applicants, Mr. Khapre, the learned counsel, opposed the application and submitted that the remedies in the criminal  Court and Civil Court are altogether different. According to him, the proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are  the summary proceedings for the immediate relief to the wife and other dependents. In the proceedings u/s 125 Cr.P.C. the Court has jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to each claimant. If this amount is inadequate according to clainming spouse or other claimants, the only remedy available is Civil Suit or petition u/s. 25 of the Hindu Marriage Act, 1955. 11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila Karmarkar, entered in the witness box and now the case is posed for her  cross-examination. He further submitted that the principles of res judicata are not applicable in the instant case because though the reliefs claimed in both the proceedings are one and the same, the effect is not one. He further submitted that this Court has no power under any statute to stay the proceedings. To substantiate his submissions, he placed reliance on the case of Mohanlal v. Sau. Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the case before his Lordship, the wife instituted the proceedings  u/s. 125of Cr.P.C. and also husband filed an application for Judicial Separation and alimony in the Civil Court against the applicant under the provisions of the Hindu Marriage Act. An ex parte order  was passedagainst the husband and she was awarded maintenance of Rs. 300/- p.m. The Civil Court granted Rs. 100/- p.m. as permanent alimony to the  wife. In that case, the issue was raised to the effect that the principle of res judicate is applicable. His Lordship held that the Section 11 of the C.P.C. as such, is not, in terms, applicable to the proceedings u/s. 125 of Cr.P.C.
12. In the instant case before me, the question of res judicata is not involved. Shri Vidwans, the learned  counsel for the applicant also has not raised this issue. Therefore, the observations made in the case supra are not of  any assistance to the non-applicants.
13. Reliance also been palaced on the case of In re Taralakshmi  Manuprasad reported in AIR 1958  Bom 499 (DB) : (1939 (40) Cri LJ 91). In that case their Lordships observed that :
“The mere existence of a decree of a Civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order u/s. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make u/s. 488 and the Magistrate should make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid”.
In the instant case before me, there is no decree passed by the Civil Court. For the same relief, the non- applicant wife knocked the doors of the Civil Court as well as of Criminal Court. So, the facts of the case which was before their Lordships of the Bombay High Court are  altogether different having no relation with the facts and circumstances before me and, therefore, it is also not of any assistance.
14. Reliance has also been placed on the case of A. Joseph Fernando v.Maria Navis reported in (1987) II DMC 342 (Madras, S.B.).  It is held that :
“The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier though the order in the civil suit was passed earlier. In such circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is perfectly maintainable notwithstanding a Civil Court’s order for maintenance. The criminal proceedings can not be quashed”.
In the instant application, the applicant has not prayed for quashing the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C. The only limited prayer is that the matter being seized with the Civil Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the case decided by the learned Court in the case supra and the facts before me, being altogether different, this case is also not of any assistance to the non-applicants.
15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (DB), in respect of the same subject matter, there were two suits instituted though the relief was based on different cause of action. The subject-matter in controversy in both the suits being the same, arises out of the same contract and from the same transaction, the later suit was stayed till the decision of the earlier suit.
16. Considering the facts and circumstances and the submissions made by the learned counsel for the parties, the relief in both the cases, being one and the same, and the Civil Court being seized with thematter, in the interest of justice, the proceeding pending in the court of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No. 277/86.
17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Courts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.
18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the matter. Staying the proceedings pending in the Court of J.M.F.C.,Buldana, will not cause any pre-judice to the non-applicants because they are already receiving the maintenance allowance @ Rs. 250/- p.m. for wife and Rs. 150/- p.m. for the daughter.
19. In these terms the application is allowed. Rule made absolute.
20. Ordered accordingly.

 

Categories: Judgement

Multiple maintenance not allowed Gujrat_HC_1

SCR.A/2080/2010 2/2 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 2080 of 2010
=========================================================
HEMLATABEN MAHESHBHAI CHAUHAN – Applicant(s)
Versus
STATE OF GUJARAT & 1 – Respondent(s)
========================================================= Appearance :
MR HEMANT B RAVAL for Applicant(s) : 1, MR KARTIK PANDYA ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2,
=========================================================
CORAM :
HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 21/10/2010
ORAL ORDER
Petitioner is wife of the respondent No.2. She has challenged the order dated 25^th August 2010 passed by the learned Additional Sessions Judge, Ahmedabad allowing the appeal of the respondent No.2. Wife had prayed for interim maintenance before the learned Magistrate in proceedings arising out of the Protection of Women from Domestic Violence Act. Such prayer was granted. Husband challenged the said order dated 19.12.2009. Learned Additional Sessions Judge allowed the said appeal and set aside the order of the learned Magistrate.
Upon hearing the learned advocate for the petitioner and perusing the documents on record, it emerges that the wife had already instituted proceedings for maintenance under Section 125 of Code of Criminal Procedure wherein the competent Court has granted maintenance to the tune of Rs.750/- in favour of son, whereas no maintenance was granted to the wife since it was found that she was serving in a factory earning Rs.2500/- every month, she was able to maintain herself.
When initial order under Section 125 of the Cr.P.C. was already passed by the competent court which has also attended finality by way of interim arrangement, unless and until strong reasons, learned Magistrate could not have granted maintenance to the wife. In the event of change in the circumstances, it is always open to the wife to seek modification of the maintenance order under Section 127 of the Cr.P.C.. Learned Additional Sessions Judge has, therefore, committed no error in passing the impugned order.
Learned Magistrate shall, however, dispose of the pending proceedings under the Domestic Violence Act unmindful of this order since I am concerned only with the interim stage in this matter.
Petition is, therefore, dismissed.
( AKIL KURESHI, J. )
kailash

 

Categories: Judgement

Multiple maintenance not allowed Delhi_HC_2

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 25, 2010
Date of Order: 30th August, 2010
Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010 % 30.8.2010

Rachna Kathuria … Petitioner Through: Mr. P.Narula, Advocate
Versus
Ramesh Kathuria … Respondent Through:Mr. S.S.Saluja, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.

August 30, 2010 SHIV NARAYAN DHINGRA, J. vn

 

Categories: Judgement

Multiple maintenance not allowed Citation Compilations Delhi_HC_1

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 22nd September, 2010
Date of Order: September 27, 2010
CRL. R.P. No. 633 of 2010, CRL. M.A. NO. 15451/2010 % 27.09.2010
RENU MITTAL … Petitioner Through: Mr Shiv Charan Garg with Mr.
Imran Kha, Advs.
Versus
ANIL MITTAL & ORS. … Respondents Through: Mr O.P. Saxena, Addl. PP for the State.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest? JUDGMENT
1. This Revision Petition has been filed by the petitioner against an order dated 20th May, 2010 whereby learned Additional Sessions Judge (ASJ) dismissed an appeal filed by the petitioner against the order of learned Metropolitan Magistrate (MM) partly allowing the application under Protection of Women from Domestic Violence Act, 2006 (‘Domestic Violence Act’ for short) and partly rejecting the application under Domestic Violence Act.
2. The petitioner had married the respondent in the year 2006 and a dispute arose between her and her husband soon after the marriage and in the year 2007 itself the petitioner filed a petition under Section 125 of Code of Criminal Procedure (Cr. P.C.) against the respondent for grant of maintenance. Learned MM awarded a maintenance of ` 6,000/- p.m. The petitioner also filed an FIR u/s 498A/406 IPC against respondent and thereafter filed an application under Section 12 of Domestic Violence Act seeking therein, apart from maintenance, compensation under various heads of ` 1.00 lakh, ` 2.00 lakh, ` 3.00 lakh and ` 5.00 lakh. She had also asked for rights of residence. The learned MM after considering the averments made by both the parties, observed that Section 12(2) of the Domestic Violence Act provides that compensation can be claimed by the parties for the injuries under civil suit as well. The petitioner had made astronomical claims for compensation without specifying grounds for different compensations in her petition. At one place the claim was of ` 1.00 lakh, at another place for ` 2.00 lakh, at third place for ` 3.00 lakh and at fourth place for ` 5.00 lakh. In support of these claims no documents etc. were filed. She also claimed Istridhan and dowry, while she had already preferred a criminal case under Section 498-A/406 of IPC against the respondent and issue of dowry demand or non return of any article was pending before the competent Court and that Court was to decide if any Istridhan/ dowry article was still with the respondent. The Court therefore allowed the application of the petitioner only partly to the extent of re-confirming the maintenance of ` 6,000/- p.m. and as awarded to her by the learned MM under Section 125 of Cr. P.C. dismissing the rest of the claim. Learned ASJ after going through the entire material upheld the order of MM.
3. The revision petitioner has argued that learned ASJ did not fix maintenance after considering the evidence of the parties and fixed the maintenance on the basis of order passed by the Court of MM under Section 125 of Cr. P.C.
4. It must be considered that for granting maintenance, a party can either approach the Court of MM under Domestic Violence Act soon after commission of Domestic Violence or under Section 125 Cr. P.C. claiming maintenance. The Jurisdiction for granting maintenance under Section 125 Cr. P.C. and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 Cr. P.C. after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another MM under Domestic Violence Act should again adjudicate the issue of maintenance. The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of MM under Section 125 Cr. P.C., re-adjudication of the issue of maintenance cannot be done by a Court of MM under Domestic Violence Act. I, therefore, consider that learned MM was right in allowing maintenance only to the tune of ` 6,000/- p.m.
6. So far as other reliefs are concerned, the learned MM and ASJ had given liberty to the petitioner to approach the Civil Court and prove that she had suffered loss and was entitled for compensation. I find no ground to interfere with this order of learned ASJ as the order is not without jurisdiction. I also find force in the reasoning given by learned ASJ that since the matter regarding dowry articles and Istridhan was pending before another court, it was rightly not gone into by MM as it would not have been appropriate for the Court of MM under Domestic Violence Act to initiate simultaneous adjudication in respect of Istridhan and dowry articles, when another court was seized with the matter.
7. I, therefore, find no force in this petition. The petition is dismissed.
SEPTEMBER 27, 2010 SHIV NARAYAN DHINGRA, J. acm

Categories: Judgement

Multiple maintenance not allowed Calcutta_HC_1

03.04.09
C.O. No.3925 of 2008
Anutosh Datta
Versus
Manasi Datta @ Sona
Mr. Jiban Ratan Chatterjee
Mr. T. N. Halder .For the petitioner
Mr. Sanat Chowdhury For the O.P.
This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.
It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.
Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.
Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3 pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).
Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.
In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)
Heard both sides.
From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”
There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.
Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order.
The application is disposed of accordingly. There is no order as to costs.
C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)

 

Categories: Judgement

Multiple maintenance not allowed Bihar_HC_1

Equivalent citations: I (2001) DMC 6
Bench: S Mishra
Sandhya Kumari vs State Of Bihar on 7/2/2000
JUDGMENT
S.N. Mishra, J.
1. In this criminal revision application the petitioner has prayed for setting aisde the order dated 9.8.1999 passed by the learned Magistrate whereby he has rejected the prayer for maintenance in terms of Section 125, Cr.P.C. It appears that petitioner Sandhya Kumari has filed an application for grant of maintenance under Section 125, Cr.P.C. before the learned Chief Judicial Magistrate, Samastipur, which was registered as Misc. Case No. 46 of 1999.
2. Shortly stated that case of the petitioner is that the petitioner was married the opposite party No. 2 Manish Kumar on 21.5.1986 according to Hindu customs and rituals at Samastipur. It is further alleged that father of the petitioner invested a lot of money on the marriage of the petitioner by giving clothes, jewellery, furniture, utensils, refrigerator, colour T.V., car etc. and cash according to his capacity. The opposite party-husband is an architect and is working in private sector. He made a demand of Rs. 4-5 lacs for starting business but the petitioner’s parents showed their inability to fulfil his demand, as a result the petitioner is being tortured and harassed for non-fulfilment of demand. Ultimately, it is alleged that the in-laws have finally turned out the petitioner of her matrimonial house. In spite of the several attempts made from the side of the petitioner’s family in order to restore the conjugal life of the petitioner and the opposite party all went in vain. It is further alleged that since the opposite party was interested for re-marriage he filed a matrimonial suit for divorce. It is alleged that the petitioner is unemployed and totally dependent on her parents since 1991 whereas the opposite party is quantified Engineer having substantial immovable property, out of which he is getting Rs. 25,000-30,000/- as per month income. The opposite party in order to get remarried, has filed a petition for divorce on 31.1.1994 which was registered as Matrimonial Case No. 2 of 1994 before the learned 2nd Additional District Judge, Sitamarhi. Ultimately, the learned Judge by his judgment and decree dated 23.8.1996 decreed the suit and directed to pay a sum of Rs. 2,500/- per month by way of monthly allowance to the petitioner. Against the said direction, the opposite party has filed an appeal before this Court being F.A. No. 478 of 1996. Similarly, the petitioner has also challenged the judgment and decree of the Court below and, accordingly, filed an appeal before this Court being F. A. No. 429 of 1996. Both these First Appeals are pending before this Court for disposal. During the pendency of the matrimonial suit, the learned Judge directed the opposite party to pay maintenance pendente lite and cost of litigation to the petitioner in terms of Section 24 of the Hindu Marriage Act retrospectively w.e.f. March 1994, by his order dated 97.1996. Against the order directing to pay the maintenance, the opposite party has challenged the order by filing Civil Revision No. 1292 of 1996 and by order dated 21.1.1996 the said order of ad interim maintenance was set aside. It is alleged that since the petitioner is not getting a single farthing from the opposite party in terms of the judgment and decree passed by the Court below, she has filed application for maintenance under Section 125, Cr.P.C for grant of maintenance as she has no source of income and totally depends upon her parents. The learned Magistrate has refused to grant maintenance mainly on two grounds; firstly, that because of the decree of divorce passed by the Civil Court she cannot be said to be the wife for grant of maintenance under Section 125, Cr.P.C. and, secondly, having regard to the fact that she has really been granted maintenance under the provisions of the Hindu Marriage Act, she cannot claim the maintenance under the provisions of the Code of Criminal Procedure.
3. The reasons assigned by the learned Magistrate cannot be accepted for the simple reason that the divorced wife is equally entitled to maintenance in terms of Section 125, Cr.P.C. The Explanation appended to Section 125, Cr.P.C. where from it appears that “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The said Explanation appended to Section 125, Cr.P.C. reads thus :
“(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried……”
Admitted position is that the petitioner has not remarried as yet.
4. The second reason assigned by the teamed Magistrates also seems to be misconceived one in view of the fact that the scope of Section 125, Cr.P.C. as well as Section 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Cr.P.C. I am supported by a decision in the case of Sudeep Chaudhary v. Radha Chaudhary, reported in AIR 1999 SC 536, wherein it has been held that when the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C., in that event, the maintenance amount granted under Section 125, Cr.P.C. is to be adjusted against the amount awarded in matrimonial proceeding. Admittedly, not a single farthing has been paid to the petitioner as yet in terms of the decree passed by the Civil Court. In that view of the matter, the petitioner, being a wife though divorced one, is still entitled to the maintenance in terms of Section 125, Cr.P.C. However, the amount of maintenance allowed under the provisions of Hindu Marriage Act is subject to adjustment of the amount granted in terms of Section 125, Cr.P.C.
5. After having heard the learned Counsel for the parties and going through the materials on record, the order dated 9.8.1999 passed by the learned Magistrate is hereby, set aside. This application is, accordingly allowed

 

Categories: Judgement

Husband showed income as 2000/-PM. Family court ordered 3000/- PM !!

Mahendrasinh vs Jignasa on 11 August, 2011
Author: M.R. Shah,

Gujarat High Court Case Information System

 

Print

 

 

 

 

SCR.A/1689/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL

CRIMINAL APPLICATION No. 1689 of 2011

======================================

 

MAHENDRASINH

GANPATSINH PARMAR – Applicant

Versus

 

JIGNASA

MAHENDRASINH PARMAR D/O JASHVANTSINH K RAJPUT & 1 – Respondents

====================================== Appearance

:

MR

JV JAPEE for the Applicant. None for Respondent No.1. MR LB

DABHI, APP for Respondent No.2.

======================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 11/08/2011

 

ORAL

ORDER

 

 

 

1. The

present petition under Article 227 of the Constitution of India has been preferred by the petitioner – husband to quash and set aside the impugned order dated 30/10/2010 passed by learned Additional Judge, Family Court, Vadodara in Criminal Misc.Application No.1624 of 2010, by which, learned Family Court has awarded a sum of Rs.3,000/- per month to respondent No.1 – wife towards maintenance.

 

 

 

2. Ms.Japee,

learned advocate appearing on behalf of the petitioner has submitted that learned Family Court has materially erred in awarding a sum of Rs.3,000/- per month to respondent No.1-wife towards maintenance when income of the petitioner-husband is Rs.2,000/- per month. She has submitted that the petitioner is serving as temporary employee in Airtel Company and his salary is Rs.2,000/- per month and that respondent No.1-wife has failed to produce any documentary evidence with respect to the income of the petitioner- husband. It is further submitted that in absence of any documentary evidence on record with respect to income of the petitioner- husband, learned Family Court has materially erred in awarding Rs.3,000/- per month to respondent No.1 – wife towards maintenance.

 

 

 

3. Heard

Ms.Japee, learned advocate appearing on behalf of the petitioner and considered the impugned judgement and order passed by learned Family Court, Vadodara.

 

 

 

4. At

the outset, it is required to be noted that as observed by learned Trial Court, the petitioner has tried to suppress his income. It is also required to be noted that the petitioner has not produced his salary slip issued by the Company. It is not believable that the Company like Airtel would not issue salary slip to the petitioner. It is also not believable that income of the petitioner is Rs.2,000/- per month. In the facts and circumstances of the case more particularly considering price rise, inflation, etc, it cannot be said that learned Family Court has committed any error and/or illegality in awarding amount of maintenance to respondent No.1-wife, which calls for interference of this Court in exercise of power under Article 227 of the Constitution of India.

 

 

 

5. In

view of the above and for the reasons stated hereinabove, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed.

 

 

 

[M.R.SHAH,J]

 

*dipti

 

Top

http://indiankanoon.org/doc/1133652/

 

Categories: Judgement

HC: 4500/- PM maintenance on a montlhy salary of 12000/- PM which is nearly nearly 38%

Yunus vs State on 29 July, 2011
Author: M.R. Shah,

Gujarat High Court Case Information System BODY  

CR.RA/644/2010 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

CRIMINAL

REVISION APPLICATION No. 644 of 2010

 

 

=========================================

 

YUNUS

FAKIR MOHAMMED BELIM – Applicant(s)

Versus

 

STATE

OF GUJARAT & 2 – Respondent(s)

========================================= Appearance :

MR

HARSHAD K PATEL for Applicant(s) : 1, MR LB DABHI, APP for Respondent(s) : 1, None

for Respondent(s) : 2 – 3. =========================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 29/07/2011

 

ORAL

ORDER

 

 

 

1. The

present Criminal Revision Application has been preferred by the applicant-husband to quash and set aside the impugned judgment and order dated 08/07/2010 passed by the learned Principal Judge, Family Court, Rajkot in Criminal Miscellaneous Application No. 1654/2008.

 

 

2. The

maintenance application was submitted by respondents nos. 2 and 3 for maintenance under Section 125 of the Code of Criminal Procedure, being Criminal Miscellaneous Application No. 97/2004 and the learned trial Court granted the maintenance at the rate of Rs. 1,500/- per month to respondent no. 2-wife and Rs. 1,000/- to respondent no. 3-minor child. Thereafter, after a period of four years, respondents nos. 2 and 3 submitted an application before the learned Family Court for enhancement of the amount of maintenance under Section 127 of the Code of Criminal Procedure and the learned Family Court considering the income of the applicant at Rs. 12,190/- partly allowed the said application, being Criminal Miscellaneous Application No. 1654/2008 and enhanced the amount of maintenance from Rs. 1,500/- to Rs. 2,500/- per month to respondent no. 2-wife and from Rs. 1,000/- to Rs. 2,000/- per month so far as respondent no. 3-minor child is concerned. Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Judge, Family Court, Rajkot in directing the applicant to pay a total sum of Rs. 4,500/- per month to respondents nos. 2 and 3 by way of maintenance the applicant-husband has preferred the present Criminal Revision Application.

 

 

 

3. Having

heard Shri Yogesh Jani, learned advocate appearing for Shri Harshad Patel, learned advocate appearing on behalf of the applicant and considering the impugned order and considering the income of the applicant at Rs. 12,190/- and considering the fact that the applicant is serving in government school in the pay-scale of Rs. 5000-180-8000 and considering the price rice and the value of rupees etc., it cannot be said that the learned Family Court has committed an error and/or illegality and/or has awarded exorbitant amount of compensation, which calls for the interference of this Court in exercise of revisional jurisdiction. No case is made out to interference with the impugned order in exercise of revisional jurisdiction.

 

 

 

4. In

view of the above, the present Criminal Revision Application deserves to be dismissed and is accordingly dismissed.

 

 

(M.R.

SHAH, J.)

 

 

 

siji

 

Top

Categories: Judgement

HC: If recovery petition is pending in HC then similar application in HC is not maintainable

Bachubhai vs Ketan on 3 August, 2011
Author: M.R. Shah,

Gujarat High Court Case Information System

 Print

 SCR.A/1180/2011 1/ 1 ORDER

 IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 1180 of 2011

=========================================

BACHUBHAI

CHUNILAL KOTHARI – Applicant(s)

Versus

 

KETAN

BACHUBHAI KOTHARI & 1 – Respondent(s)

========================================= Appearance

:

MS.FALGUNI

D.TRIVEDI for Applicant(s) : 1, None for Respondent(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 2,

=========================================

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 03/08/2011

 

ORAL

ORDER

 

1. Present

petition under Article 226 of the Constitution of India has been preferred by the petitioner for execution of the order passed by the learned Family Court, by which the order of maintenance has been passed in favour of the petitioner. It is not in dispute that petitioner has already initiated the proceedings before the Family Court for recovery of the amount as provided under the provisions of the Code of Criminal Procedure, 1973 by way of recovery application as well as the warrant has also been issued, hence, present petition is not entertained. Even otherwise, for execution of the order passed by the learned Family Court, petition under Article 227 of the Constitution of India is not maintainable and/or is not required to be entertained. As and when any proceedings are taken up before the learned Family Court for execution and/or for recovery of the amount, the same are ordered to be expedited.

 

 

 

2. With

this, present petition is dismissed.

 

 (M.R.

Shah, J.)

 

*menon

 

Top

Categories: Judgement

HC: Though cruelt by wife against husband is proved but Judges are giving suggestion to wife to file CrPC 127 for more maintenance !!!

Sneh Lata vs Raja Bahadur Rayakwad on 21 July, 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 29/2011

Sneh Lata

W/o Sri Raj Bahadur Rayakwad,

D/o Late Sri Sompal Singh

R/o Quarter No. 219, Type-3, Sector I,

BHEL, Ranipur, Haridwar,

Tehsil & District Haridwar.

…..Appellant

Versus

Raja Bahadur Rayakwad

S/o Sri Bihari Lal,

R/o Quarter No. 219 Type-3, Sector-1,

BHEL, Ranipur, Haridwar,

Tehsil & District Haridwar.

…. Respondent

Mr. D.S. Mehta, Advocate, present for the appellant.

July 21, 2011

Coram :Hon’ble Prafulla C. Pant, J.

Hon’ble Servesh Kuar Gupta, J.

PRAFULLA C. PANT, J. (Oral)

This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 24.3.2011, passed by the Judge, Family Court, Haridwar in Suit No. 204 of 2005, whereby said Court has decreed the suit for divorce instituted by the respondent (husband) by moving petition under Section 13 of the Hindu Marriage Act, 1955.

2. Heard learned Counsel for the appellant and perused the lower court record. None turned up on behalf of respondent even after service of notice.

3. Brief facts of the case are that appellant Sneh Lata got married to respondent Raja Bahadur Rayakwad on 6.3.1972, following Hindu rites. Two daughters, namely, Gitanjali and Varsha, were born out of the wedlock in the 2

year 1974 and 1975 respectively. Out of the two daughters, Varsha is already married and she lives in Germany with her husband. Another daughter Gitanjali was doing MCA when the said petition was filed. In the divorce petition, filed by the respondent Raja Bahadur Rayakwad, who was aged 59 years at the time of filing the petition, pleaded that for more than 10 years, appellant (wife) was not discharging her matrimonial obligations and continuously treated him with cruelty. It is further pleaded by the husband that at the time of marriage, appellant was not well educated, and he got her educated thereafter. He also pleaded that he is looking after both the daughters. As to the cruelty, committed by his wife, it is pleaded by the husband in the petition for divorce that neither the wife cooks food for him nor allows him to enter in the kitchen so that he may cook food for himself. This has made the life of the husband miserable. He is left to go to hotels to have his every meal. It is also pleaded by the husband that a case under Section 125 of CrPC was filed by the wife, though she was living with her husband in his house, in which, vide order dated 21.9.2004, he was directed to pay maintenance @ ` 3,000/- per month, which he is paying to her. It is also alleged by the husband in the petition for divorce that his wife threatens him that if his ailing mother dared to enter in his house, she would sprinkle the kerosene oil and set herself on fire. The extreme allegation in the petition for divorce made by the husband is that his wife has gone to the extent of alleging that the respondent (husband) had illicit relations with her own sister. With these allegations, the decree of divorce was sought.

4. Appellant, who was respondent before the trial court, filed written statement in which she admitted that she was married to the present respondent and two daughters 3

were born out of the said wedlock. However, she denied the allegations of cruelty. She pleaded that her husband is a man of loose character. It is also alleged by her that after the retirement, the present respondent wants to withdraw his provident fund, etc. and deprive the appellant from the same. She has also pleaded that though she is living in the quarter of BHEL allotted to her husband, but she has no other house to go.

5. On the basis of the pleadings of the parties, the trial court framed following issues:

(i) Whether the opposite party treated the petitioner with cruelty, as alleged in the petition? If so, its effect?

(ii) Whether the petitioner has illicit relations with other women? If so, its effect?

(iii) To what relief, if any, the petitioner is entitled to?

6. The petitioners (present respondent in this appeal) got himself examined as PW1 Raja Bahadur Rayakwad, in support of his case. Wife also got her affidavit filed, but she did not produce herself for cross-examination even after being given several dates, and ultimately, her evidence was closed. In the circumstances, the trial court heard the learned Counsel for the parties and found that the husband has made out a case for divorce on the ground of cruelty committed by his wife.

7. Shri D.S. Mehta, learned Counsel for the appellant, argued before us that the appellant has no house to go, and at the old age, the respondent has neglected her. However, we are of the view that real issue before the trial 4

court was whether the wife treated her husband with cruelty or not. We find that it is proved by the husband, by adducing evidence, that the wife treated the husband with so much of cruelty that his life became miserable. Neither any food was given to him nor he was allowed to enter in the kitchen to cook for himself (He had to go to hotels for his every meal). Not only this, making allegation against the husband that he is in illicit relationship with his real sister, is a grave case of mental cruelty. It is also brought on record that appellant told her husband that if he dared to invite his ailing mother in the house, she would set herself on fire. All these instances, proved on the record, show nothing but cruelty on the part of the appellant against her husband. As such, we are in agreement with the trial court that the husband has proved that he was subjected to cruelty by his wife, and entitled to decree of divorce. In the circumstances, we do not find any scope of interference, in this appeal, with the findings recorded by the trial court and the decree of divorce passed by it.

8. As far as the maintenance is concerned, it is also proved on the record that under Section 125 of CrPC, the appellant is already getting ` 3,000/- per month as maintenance. In case, said amount is insufficient, as more than six years have gone by since the order was passed, the appellant (wife) may move an application under Section 127 CrPC for enhancement of the maintenance.

9. For the reasons as discussed above, this appeal has no force and the same is dismissed. No order as to costs.

(Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 21.7.2011

PRABODH

Categories: Judgement

HC: Duration of marriage insignificant while considering the application for maintenance under Section 125 CrPC

Sikandar vs Shabanabanu on 12 July, 2011
Author: M.R. Shah,

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; }

}

 

Print

 

 

 

 

SCR.A/933/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 933 of 2011

======================================

 

SIKANDAR

MOTIBHAI QURESHI – Applicant

Versus

 

SHABANABANU

D/O MOHHAMMAD RAFIK SHAIKH & 1 – Respondents

====================================== Appearance :

MR

FEROZ H PATHAN for the Applicant. None for Respondent No.1. MR

KP RAWAL, APP for Respondent No.2.

======================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

Date

: 12/07/2011

 

ORAL

ORDER

 

 

 

1. By

way of this petition under Article 226 of the Constitution of India, the petitioner – husband has prayed to quash and set aside the impugned order dated 11/03/2011 passed by learned Principal Judge, Family Court No.1, Ahmedabad passed below Exh.19 in Criminal Misc.Application No.1346/2007, by which, learned Judge has directed the petitioner to pay a sum of Rs.2,000/- per month to respondent No.1 – wife towards maintenance.

 

 

 

2. Mr.Pathak,

learned advocate appearing on behalf of the petitioner has vehemently submitted that there is a marriage span of four months only and the petitioner is required to look after his old aged parents and, therefore, learned Family Court has materially erred in awarding Rs.2,000/- per month to respondent No.1- wife towards maintenance.

 

 

3. Having

heard learned advocate appearing on behalf of the petitioner and considering the impugned order in awarding Rs.2,000/- per month to respondent No.1 – wife towards maintenance and in the facts and circumstances of the case, it cannot be said that the learned Family Court has committed any error and/or illegality in awarding the amount, which is too excessive and which is required to be interfered with by this Court in exercise of power under Article 226 of the Constitution of India.

 

 

 

4. Now

so far as contention on behalf of the petitioner that the marriage span is four months only is concerned, the same is insignificant while considering the application for maintenance under Section 125 of the Code of Criminal Procedure. In these hard days and price rise, etc. and considering the fact that the petitioner is rickshaw driver of the Transport Vehicle in Industrial area, it cannot be said that the learned Family Court has committed any error in awarding Rs.2,000/- per month towards maintenance to the respondent No.1- wife. No case is made out to interfere with the order passed by the learned Family Court, Ahmedabad.

 

 

 

5. In

view of the above, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed.

 

 

 

[M.R.SHAH,J]

 

 

 

*dipti

 

Top

Categories: Judgement

Gujrat HC: Husband released from Jail only after he pays 50% maintenance and expenditure for wife

Kishorbhai vs State on 19 July, 2011
Author: M.R. Shah,

Print

 

 

 

 

SCR.A/1683/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 1683 of 2011

=========================================================

 

KISHORBHAI

HAKABHAI DANIDHARIYA – Applicant(s)

Versus

 

STATE

OF GUJARAT & 3 – Respondent(s)

========================================================= Appearance

:

MRPRATIKYJASANI for

Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, None

for Respondent(s) : 2 -

4.

=========================================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE M.R. SHAH

 

 

 

Date

: 19/07/2011

 

ORAL

ORDER

 

 

 

Mr.P.Y.

Jasani, learned advocate appearing on behalf of the applicant has stated at the bar that applicant has already deposited Rs.35,000/- with learned Family Court, which would be 50% of the arrears of maintenance. He has requested to grant some more time to deposit the balance amount of maintenance by way of installments. However, he has requested to release the applicant on bail. He has also stated at the bar that so far as the regular amount of maintenance is concerned, the applicant shall continue to pay as ordered by the learned Family Court. Hence Notice returnable on 2nd August,2011 on condition that applicant shall deposit a further sum of Rs.4,000/- with Registry of this Court towards the probable cost/expenditure to be incurred by respondent nos.2 and 3 for appearing in the present matter, which shall be permitted to be withdrawn by respondent nos.2 and 3 irrespective of outcome of the present Special Criminal Application . It will also be open for the respondent nos.2 and 3 to withdraw the amount of Rs.35,000/-, which the applicant has deposited with the Family Court without any further order, which shall be paid to them by the concerned Family Court by account payee cheque and on proper identification and verification. In the meantime, applicant is ordered to be released on bail on his furnishing personal bond of Rs.5,000/-to the satisfaction of the Jail Authority. Direct service is permitted.

 

 

 

 

 

(M.R.SHAH,J.)

 

 

Vahid

 

Top

Categories: Judgement

Gujrat HC: 140 days jail to husband for 14 months of arrears of maintenance

CR.MA/1040/2011 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1040 of 2011

In

SPECIAL CRIMINAL APPLICATION No. 2065 of 2010

=========================================================

JAVIDBHAI AKBARBHAI AJMERI – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MS BENAZIR M HAKIM for Applicant(s) : 1,MR MA SAIYAD for Applicant(s) : 1,

MR DC SEJPAL, APP for Respondent(s) : 1, MRS NASRIN N SHAIKH for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 28/01/2011

ORAL ORDER

1. Rule. Learned APP Mr. Sejpal waives service of rule for respondent State.

2. Petitioner is husband of respondent no.2. He has been taken in custody for nonpayment of maintenance. By an order dated 11.1.2011 passed by the Family Court, Rajkot, he is ordered to undergo imprisonment for 140 days for 14 months of arrears.

3. Counsel for the petitioner submitted that petitioner could not pay the amount because of acute financial difficulties. He however, intends to clear all arrears including arrears arising subsequent to the Family Court passed the order. She pointed out that as of now the petitioner is in arrears of approximately Rs.75,000/- of maintenance. She prayed for a reasonable time for clearing the arrears looking to the weak financial condition of the petitioner.

4. Learned advocates drew my attention to order dated 17.1.2011 passed by this Court in Special Criminal Application No.2065/2010 which was passed in husband’s petition for reduction in maintenance. While not interfering with order of maintenance passed by the Family Court, petitioner was granted time upto 31.3.2011 to clear all arrears. This order however, was passed unmindful of the fact that petitioner is already taken in custody pursuant to the order passed by the Family Court on 11.1.2011, since this development was not known to the learned advocates also.

5. Under the circumstances, the petition is disposed of with following directions :

i. The petitioner shall deposit with the Family Court a sum of Rs.10,000/- latest by 10.2.2011.

ii. The petitioner shall deposit further sum of Rs.25,500/- with the Family Court latest by 15.4.2011.

iii. Remaining amount of arrears of maintenance shall be deposited with the Family Court latest by 31.7.2011. iv. On condition that petitioner shall abide by the above time frame of payments, he is ordered to be released forthwith from custody, pursuant to order dated 11.1.2011 which order in effect shall be kept in abeyance.

v. In case the petitioner makes default in depositing the amounts, on an application filed by wife before the Family Court, it would be open for the the Family Court to issue directions for taking him back in jail.

vi. As and when amounts are deposited before the Family Court, same will be disbursed in favour of wife without waiting for no objection from the petitioner or his advocate. These directions shall be effective in supersession of time limit granted in order dated 17.1.2011 in Special Criminal Application No.2065/2010.

At this stage in view of above-formula provided, legality of order dated 11.1.2011 is not gone into.

It is expected that petitioner shall continue to pay prospective monthly maintenance regularly.

Rule made absolute accordingly.

(Akil Kureshi,J.)

Categories: Judgement

Gujrat HC: Husband in jail for non-compliance of the order of maintenance to wife

SCR.A/813/2011 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 813 of 2011

=============================================

BILAL TAIYABBHAI – Applicant(s)

Versus

STATE OF GUJARAT & 2 – Respondent(s)

============================================= Appearance :

THROUGH JAIL for Applicant(s) : 1, MR AJ DESAI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 – 3. =============================================

CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE

Date : 06/04/2011

ORAL ORDER

This petition is preferred by the petitioner-convict for grant of parole leave to prefer an appeal before this Court for non-compliance of the order of maintenance to be paid to his wife as ordered by the Family court, Panchmahal.

Considering overall facts and circumstances of the case, the petitioner can make suitable arrangement through office of the Central Jail, Vadodara and/or may also approach the Legal Services Authority to file an appeal.

No parole leave can be granted at this stage. This petition is rejected.

[ANANT S. DAVE, J.]

Categories: Judgement

HC: Applicant wife in tears in Judges chanber and gets favorable order in CrPC 125 and Contempt

Bench: S Ambwani

Shail D/O Late Sone Lal vs Manoj Kumar Yadav, D.I.G. And The Family Court on 30/11/2005

JUDGMENT

Sunil Ambwani, J.

1. This contempt petition was filed on 18.11.2002, impleading Shri Manoj Kumar Yadav, a Head Constable in civil police posted at Jalaun (now under suspension), D.I.G., Head Quarter, Allahabad and Family Court Kanpur Nagar with the allegations that the Family Court has not complied with the order dated 4.9.2002, to decide her application under Section 125 Cr.P.C. for maintenance against her husband Shri Manoj Kumar Yadav By the order dated 4.9.2002 in Criminal Misc. Application No. 7688/2002, the Court directed the Family Judge, Kanpur Nagar to decide case No. 535/2002 under Section 125 Cr.P.C, within four month from the date of presentation of the certified copy of the order. On 3.12.2003 following orders were passed:

This contempt petition tells a pathetic story of the functioning of Family Courts in the State of uttar Pardesh. The facts giving rise to this contempt-petition demonstrate the manner in which Family Judges are, dealing with the sensitive issues arising before them. The object and purpose of the establishment of the family Courts was to promote conciliation in, and secure speedy settlement of disputes, relating to marriage and family affairs and for matters connected therewith. The law commission in its 59^th report (1994) stressed that in dealing with disputes concerning the family, the Count ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts of settlement before commencement of the trial. The 1976 amendment to civil procedure code providing for special procedure in such matters concerning the family, did not achieve the desired result. The Courts continued to deal with family disputes in the same manner as other civil matters and the same adverrsary approach prevailed.

The Family Court Act 1984 was, enacted to set up for speedy settlement of family disputes. The reliefs concerning properties, declaration as to legitimacy in person, guardianship of a person are custody of a manner and maintenance including proceedings under Chapter- IX of the code of criminal procedure are entrusted to these special Courts, It has been made obligatory under Section 9 on the Family Court to make efforts for settlement. Section 11 provides that proceedings may be held in camera fi the family Courts desires and shall be so held if either party so desires. The assistance of medical and family welfare experts can be taken under Section 12, or such persons (preferably a woman was available), including professional services for assisting the Family Court in discharging the functions imposed by the Act, The facts and circumstances in which this matter arose, giving rise to these contempt proceedings, and the manner the Family Court dealt with the matter completely frustrates, the object and purpose of the Act.

The Family Courts Act 1984 was enforced in Uttar Pradesh by notification No. 79/1/86-145 dated 4.9.1986 w.e.f. 2.10.1986. It is significant to note here that the High Court has not made the Family Courts Rules as provided under Section 21 of the Act so far, and that all the family Court in the State have devised procedures for its functioning, adapting almost the same old adversarial approach to the issues arising before these Courts.

The petitioner Shail appeared in person. In the entire proceedings, and even in this Court, she has not sought any professional help. The applicant belongs to a poor back ground, and is at present employed as. Class IV employee in a school. She is a weak, frail but persuasive and full of Courtesy to Court. She is not aware of technicalities of law but is quite confident pleading her matters. 1 did not find her absent on any dates fixed in the matter when the matter came up before me. A first information report under Section 328/376 IPC.-P.S. Naka Hindola, Lucknow, was lodged registering case crime No. 55/2002, by the applicant alleging that she was raped by Sri Manoj Kumar Yadav, Head Constable on 18. 1.2002 at Apsara Hotel, Police Station Naka Hindola Lucknow. The applicant alleges that accused Sri Manoj Kumar Yadav, thereafter to avoid his prosecution persuaded the applicant for solemnizing marriage with him. On. his persuasion and in order to save herself from social disgrace, and stigma on her character, she agreed to marry him. The marriage took place on 20.7.2002. After marriage, Sri Manoj Kumar Yadav deserted her. He was not prepared to fulfill the marital obligations and did not take care of the applicant. She was left is destitution without any help from him. She filed an application under Section 125 Cr.P.C. for maintenance from her husband Sri Manoj Kumar Yadav before the family Court Kanpur Nagar, The proceedings were pending. The applicant filed a Criminal Misc. Application No. 7688 of 2002, which was disposed of with the following order;

Supplementary affidavit is taken on record. Heard Smt. Shall, applicant appeared in person and learned AGA.

This application under Section 482 Cr.P.C. has been filed with a prayer to issue a direction to the judge family Court Kanpur Nagar to decide the case of the application No. 535 of 2002 of the applicant expeditiously. It is further prayed that the Judge, Family Court be directed to disposed of the application of the applicant for interim mandamus, It is stated by Smt. Shail that she is unable to maintain herself and her husband, opposite party No. 3 Sri Manoj Kumar Yadav is Head Constable in U.P. Police. As such, an interim mandamus be awarded to her.

After pursuing the entire material on record, this application is finally disposed of with a direction to the Judge, Family Court Kanpur Nagar to dispose of Case No. 535 of 2002 under Section 125 Cr.P.C. within a period of four months from the date of presentation of the certified copy of the order.

With the aforesaid direction this application is disposed of.

Dt. 4.9.2002

Sd/-

Hon. V.K. Chaturvedi, J.

She filed another criminal miscellaneous application No. 10073 of 2003 under Section 482 Cr.P.C. before this Court in which by an order dated 17.1.2003, this Court gave following direction;

This case was earlier listed on 16.1.2003 but the applicant appearing in person told that she has not the sufficient means to come on the next date from Kanpur. Request has therefore been made that here case be taken today and she be permitted to appear in person. She has also been provided assistance of Amicus Curie, On her request this application is taken up today.

This application under Section 482 of the Code of Criminal Procedure (which is hereinafter called as the I Code’) has been brought for issuing appropriate direction to this Court of IV Additional Chief Judicial Magistrate, Lucknow for expediting the disposal of the criminal case I crime No. 55 of 2002} under Sections 328, 376 I.P.C. police station Naka Hindola, Lucknow. It is said that the applicant was raped by Sri Manoj Kumar Yadav, Head Constable on 18.1.2002 at Apsara Hotel Police Station Naka, Lucknow. Report of this incident was lodged by the applicant at the police station which was registered at crime No. 55 of 2002 at that police station. Sri Manoj Kumar Yadav thereafter persuaded the applicant for solemnizing marriage so as to avoid his further prosecution. On his persuasion she agreed to m marry with the applicant on 20.7.2002. After marriage Sri. Manoj Kumar Yadav again deserted her. He was not prepared to fulfill his obligations as husband and was not, even taking care of the applicant. She was left as destitute without any money. Resultantly she has to bring the proceedings under Section 125 of the Code before the Family Court, Kanpur Nagar. Those, proceedings are still pending. She has not been paid any money by Sri Manoj Kumar Yadav. At this stage the prayer is confined that gher case which is pending before the Family Court, Kanpur Nagar, be expedited so that she may not suffer aqony any longer.

Looking to the facts and circumstances of the case, Principal Judge, Family Court, Kanpur Nagar is directed to expedite the disposal of the maintenance proceedings under station 125 of the Code, pending before him prefer4ably within a period of four months.

With these observations this application is finally disposed of.

Dt.17, January, 2003

Sd/-

Hon. S.S. Kulshrestha, J.

This contempt petition was filed by applicant under Section 12 of the Contempt Courts Act on 18.11.2002 against Manoj Kumar Yadav, D.I.G. Headquarters Allahabad, and Family Courts Kanpur Nagar alleging that she filed a certified copy of the order dated 4.9.2002 in Family Court, Kanpur Nagar, but the order was not complied with within time and that warrants be issued to the opposite parties. On 19.11.2002, this Court directed her to file a supplementary affidavit and that on 11:2.2003 following order was passed on the contempt petition;

Supplementa7 affidavit filed today is taken on record.

Non-compliance of the order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 is alleged in the contempt petition.

By the aforesaid order dated 4.9.2002 passed in Crl. Misc. Application No. 7688 of 2002 respondent No. 3 Judge Family Court Kanpur Nagar was directed to decide case No. 535 of 2002 under Section 125 Cr.P.C. within a period of four months from the date of representation of the certified copy of the order.

Respondent No. 3 Judicial Officer and is a part of the administration of justice. It is expected that every person will give due regard to the orders of the Court. If for some reason he was unable to decide the case within the time fixed by this Court he had to approach this Court and obtain further time. Every citizen of this country has a right to legal remedy for which he approaches Courts and if any direction is issued; by this Court the same must be complied with within time allowed by the Court. It does not depend on the sweet will of any person to ignore any part of the order. Non-compliance of the order is clear contempt. A division bench of this Court in case of P.N. Srivastava v. State reported in 199 (1) Local Bodies and Educational Service Reporter page 742 (Lucknow Bench) held that:

The direction issued by the High Court of Supreme Court in its decision carry equal importance as that of a statute or Rules and hence directions are required to be complied with and disobedience amounts to contempt as such the decision of Court partakes the position of statutory rule.

Relying on the case of All India Reporter Karamchari Sangh and Ors. v. All India Reporters Ltd. And Ors. AIR, 1988 Supplement SCC 472 the Court further held:

In view of the decision of this Court dated 27.8.1996 the opposite parties had no option but to complete the enquiry within four months (time allowed by the Court in that case). It further implies that in case opposite parties were unable to do so they could approach the Court and seek further extension of time. In M.L. Sacndev v. Union of India and Ors. the apex Court held that

Government under duty to comply with the other within time set by Court and in any case if it was not possible to comply with the order within the time for whatsoever reason then the only course open was to seek extension of time or further instructions (also see State of Bihar v. Subhash Singh 1997 (1) SC 430)

From the above decisions it in apparent that the directions of the Court are else as good as statutory rules. The parties to whom the direction is issued have no care to carry out the orders of the Court.

Whenever the Court uses the words “preferably’ as far as possible, expeditiously, at an early date” in its judgment and order, the direction is to he complied with within the time allowed by the Court, in the order s and judgment. Even Section 20 of the Contempt of Courts Act provides limitation for initiating contempt proceedings if the order is not obeyed by the contemnor, hence it is imperative that the order of the Court in which even no time is fixed are to be faithfully complied with in letter and spirit within a reasonable time, say four months from the date of the communication of the order. This would be in order to enable the parties to come before the Court within a reasonable time for initiation of contempt proceedings, if they choose to file the same. Sometimes plea of filing of appeals do not give any handle to the authorities/ officers for not complying with the orders of the Court in letter and spirit when no interim orders are granted by the appellate Court staying the order impugned.

The respondent (s) did not comply with the order within the time given by this Court nor applied far extension of time. The time has expired and the respondent has taken the order very lightly.

Issue notice to respondent No. 3 to show cause within one month why contempt proceedings may not be drawn against him for deliberate and willful disobedience of the orders of this Court dated 4.9.2002 passed in criminal Misc. Application No. 7688 of 2002.

However, in view of the guidelines given by the Hon’ble Supreme Court in case of Suresh Chandra Poddar 2007 (I) SC 766, I give one more opportunity to respondent No. 3 to comply with the order dated 4.9.2002 passed by this Court in Criminal Miscellaneous Application No. 7688 of 2002 within a period of one month. In case the said order is complied with he shall no he personally present. In case the said order is not complied with, he shall he personally present on the date fixed.

List after one month.

Dt 11.2.2003

Sd/-

Hon. Rakesh Tiwari, J.

That on 28.3.2003, the registry of ‘this Court received a letter from Sri Vishal Chandra Saxena, Principal Judge, Family Court Kanpur Nagar No. 40/03/ Family Court Kanpur Nagar dated 25.3.2003, The Family Court informed this Court that applicant filed a case under Section 125 Cr.P.C. on, 27.7.2002 alongwith a copy of the order dated 17.7.2002 in Civil Misc. Writ Petition No. 1O] 56 of 2002. By this order, the High Court found that it was not possible to give reliefs claimed in the writ Petition as the allegations made by her, required investigation from the competent authority, and in the absence of any evidence no conclusion can be drawn. The applicant was directed to make complaint to the appropriate authorities. The Munsarim raised objections on the application under Section 125 Cr.P.C. On 27. 7.2002 stating that she has not stated anywhere in the application and affidavit as to how (he marriage ‘was performed between her “and Manoj Kumar Yadav, and that the documents annexed with the application and the order dated 17.7.2003 does not establish that she is legally married, for which no proof was given alongwith her application. The case was not registered and since the Family Court was lying vacant the Civil Judge, Senior Division was looking after the work.. The matter was fixed on 12.8.2002 for hearing on 24.8.2003 and thereafter on 13.9.2002. On that date petitioner/applicant produced a Copy of the order of the High Court dated 4.9.2002 in which the case number in the Family Court was shown as case No. 535 of 2002, to be decided in four months. At that time both the Family Courts were lying vacant and thus the matter was fixed on 28.9.2002, The concerned clerk registered her application as Crl. Case No. is 108 of 2002 Thereafter the matter was fixed on 7.11.2002. From 28.9.2002 to 1.12.2002 the jurisdiction of Kanpurnagar was transferred to District Fatehpur. The Civil Judge, Senior Division Fatehpur/Incharge Officer found that the application under Section 125 has not been registered. On 7.’1.2002, he gave applicant an opportunity, to file objections and fixed the t matter on (0.12.2002. The applicant did not remove the defects; she filed two applications on’ 11.11.2003 and appeared in person before the District Judge Fatehpur. After hearing her, an order was passed by -District Judge, Fafehpur that until the defeats are removed, the hearing was not possible. Sri Vishal Chandra Saxena, further, reported to this Court that applicant resorted to incorrect facts before the High Court and gave a wrong case number. He took over charge as Principal Judge Family Court on 28.10.2002. On 10. 12.2002 when the matter was put up before him he found that case No. 535 of 2002 under Section 125 Cr.P.C. is between Smt. Akila Kanwar and Mohammad wasim Khan. The applicant did not appear on 10.12.2002, and did not file any objections to the office report. The case was thus fixed for 16.1.2003. On that date the applicant again did not appear and the matter was fixed on 26.4.2003. He informed this Court in his report that he has not committed any contempt and that in fact the applicant has not removed defects. She filed the application before the High Court, with wrong case number and that the contempt notice be discharged.

The applicant filed an application during summer vacations on which the matter was nominated by Hon’ble Senior location Judge on 2.6.2003 to be heard by me. I found that the simple matter of deciding application under Section 125 Cr.P.C. has been made complicated by Principal Judge Family Court Kanpur Nagar, The application was disposed of with following directions:

I further find that the Principal Judge, Family Court Kanpur Nagar instead of helping the petitioner and getting the defects in her petition cured has tried to put the blame upon her. A lady appearing to person and claiming maintenance for destitution under Section 125 of Cr.P.C. has to be given a helping hand, and a healing touch by the Court. Instead of providing necessary assistance, the Principal Judge, Family Court, Kanpur Nagar, acting against the object of establishment of family Courts ‘and has tried to put the blame upon her. He has also casted aspersions upon her for providing wrong case number to the Court It was apparently a, mistake and could have been easily ignored by the Family Court. This Court takes exception to the report of the Family Judge by which he has sent the matter back to the Court and is trying to unnecessary delay the proceeding and harasses the applicant.

In the aforesaid circumstances, 1 direct Special Judge. Family Court to provide all possible assistance to the applicant to cure the defects in her application, and to pass necessary orders as expeditiomly as possible and preferably within one month. He is reminded on the fact that he is impleaded as a contemnor, and has to purge the contempt instead of aggravating the contemptuous actions.

List on 22.7.2003

Dt. 3.6.2003

Sd/-

Hon. Sunil Ambwani, J.

On 12.9.2003, the matter again came up before me. The applicant informed the Court that in pursuance of the order dated 3,6.2003, the Family Court has issued summons, and assured her that in case her husband does not appear, the proceeding will be taken ex pane against him. She submitted that inspite affixing dates nothing has been does in the matter. On this mention, I directed the Family Court to conclude the matter as expeditiously as possible, within intimation to the Court and fixed the matter on 20.10.2003.

On 29.10.2003, the applicant filed an application complaining that inspite of aforesaid directions, the Principal Judge Family Court has not decided the matter so Jar. She filed a copy of the order dated 28.7.2003 passed by Family Judge in which it was staled that inspite of notices sent to Manoj Kumar Yadav and thereafter sending notices through the Director General of Police, he has not appeared and thus the matter was directed to proceed ex-parte against her husband. This Court took notice of the fact that inspite of repeated directions, the Family Judge is not deciding the matter. The applicant pleaded that she is on the verge of destitution, and that her husband who was earlier accused of rape has deserted her,” and is was not prepared to fulfill his obligations as husband and was not even taking care of the applicant. She was left as destitute without any money. She informed the Court that the Family Judge makes uncalled comments on her appearance, and takes pleasure on asking unnecessary questions. On these allegations Sri Vishal Chandra Saxena was required to appear before this Court on 1 7,11.2003. Following observations were made while summoning] him to this Court;

It is matter of serious concern that a Judicial Officer/ Subordinate to the Court, is taking the directions casually. This Court has repeatedly requested him and advised him to expedite the matter. Once the orders passed by this Court came to his knowledge, it was his duty to pass necessary orders expeditiously and in accordance with law.

On 17 11.2003 Sri Vishal Chandra Saxena, ‘ Principal Judge, Family Court Kanpur Nagar (now District Judge J.P. Nagar) appeared before this Court. Sri O.P. Singh, Principal Judge, Family Court, Kanpur Nagar was also present and had brought the records of case No. 708/2003, under Section 125 Cr.P.C. along with him. Sri Saxena informed the Court that the Application under Section 125 Cr.P.C. was finally decided by him on 5.8.2003. On the ‘request made by Sri S.K. Garg, learned standing Counsel, the matter was taken up in chamber at 1.30 PM.

I have heard applicant in person and the explanation given by Sri Vishal Chandra Saxena. The applicant was anguished, hurt and was in tears in explaining the conduct of the Family Judge. She stated that whenever dates were fixed, he called and heard only the clerks presenting the matter and went on fixing dates. She was taken by surprise and was not aware of order dated 5.8.2003 by which her application was dismissed. She questioned, the manner in which she has been dealt by the Family Court. Initially she was harassed for not giving correct details of her marriage and fixing dates after dates. She stated that in order to avoid compliance her application number wax changed without informing her The clerks in the office of Family Judge treated her shabbily, and told her that she will get nothing from the Court. She also questioned the authority of Family Court in disbelieving her marriage and rejecting tyer application for maintenance inspite of the fact that the matter was proceeding ex-parte against her husband. She submitted that if the Family Court was not satisfied with her affidavit, she should have been given a; chance to establish her marriage. She accused the Family Judge to have questioned her marriage and thereby putting her to disrepute in society. According to her no one disputed the marriage and in] the ex-parte proceedings, the Family Judge had no right and authority to disbelieve her marriage and to take away her rights against the person who had raped her and thereafter married her.

Sri Vishal Chandra Saxena explained that in proceedings under Section 125 Cr.P.C. the wife must” establish the marriage. Thee was no pleading of the date of marriage or the manner in which the marriage was performed. The applicant absented on 5.8.2003 and thus he had no option but to dismiss the application.

The order dated 5.8.2003 shows that the matter was proceeding ex-parte and that her husband had not appeared. The family Court proceeded, to examine’ the affidavit and found that whereas she had pleaded that on 18.1. 2003 after the incident she had accepted the opposite party as her husband and was discharging duties of wife and was given some amount towards maintenance, The Family Judge found that there was no pleading as to how her marriage was solemnized. Since she had not produced any documentary proof or evidence of her marriage, the Family Court found that she is not legally married wife of the opposite party. The Family Judge thereafter recorded the observations of this Court in Writ Petition which was decided on 17.7.2002, commented on her conduct of giving wrong Case number to the High Court and the fact that she made a mention to the Family Court on 10.7.2003 to adjourn the proceedings for one hour as she has to take leave from Juhari Devi College from where she is serving. The Family Court observed that the applicant is serving in Juhari Devi College and rejected the application.

This Court takes strong objection to the manner in which the Family Court decided the matter. The statement given by Sri Vishal Chandra Saxena that the applicant absented herself is doubtful. The applicant has been diligently pursuing the proceedings. She has appeared in High Court on several occasions and was always present in the Court. Her manners and demeanor in Court demonstrated her desperation and destitution. Almost all the orders passed by this Court were ignored by the Family Judge. He was aware of the direction of this Court to decide the matter within four months. Inspite of the fact that the applicant kept on appearing before him and sought compliance of the directions could not persuade the Family Judge to give her even a brief hearing. Inspite of the fact that the matter was proceeding ex parte, he chose to dismiss the application under Section 125 Cr.P.C. on the ground that she has no been able to establish her marriage. There was clear and specific averments in her application supported by her affidavit that Sri Manoj Kumar Yadav is her husband. The opposite party did not appear in the matter and that the matter proceeded, ex parte. Inspite of these glaring facts and the object and the purpose of maintenance under Section 125 Cr.P.C. as well as Family Court Act 1984, the District Judge chose to reject the application under Section 125 Cr.P.C. in her absence. This Court is deeply pained and anguished in the manner the applicant armed with four orders of this Court was dealt with by the Family Judge. Sri Vishal Chandra Saxena, the then Family Judge, Kanpur Nagar failed to discharge his duties as a Family Court Judge and appears to be prejudiced by the persistence of the applicant and the orders passed by this Court requesting him to expedite the matter. I find, that the explanation given by Sri Saxena for delay in deciding the matter, cannot be accepted and reprimanded him for his conduct.

After the order was reserved the applicant moved two applications dated 20.11.2003, to transfer the matter. Both the applications are rejected.

The order rejecting the application under Section 125 dated 5.8.2003, has concluded the proceedings. The Court, however, finds that Sri Vishal Chandra Saxena, District Judge, U.P. Nagar was negligent in discharge of his duties in deciding the matter within the time fixed by this Court, on 4.9.2002, which was filed on record by the applicant in Family Court on 13.9.2002. He took notice of the order on 10.12.2002 but did not care to decide the matter, within reasonable time. The two reminders given to him by this Court on 11.2.2003 and thereafter on 3.6.2003 were ignored by him. He fixed long dates (on 16.1.2003n he fixed the matter for 26.4.2003) and proceeded ex-parte by his order dated 10.7.2003 and thereafter decided the matter on 5.8.2003 in the absence of the applicant who was appearing in person, without giving her any opportunity to give any evidence of her marriage.

The Courts subordinate to the High Court must carry out the orders. It was the duty of the Family Judge, Family Court, Kanpur Nagar to decide the matter within the time fixed by this Court. If he found that there was some procedural delay or that the proceedings cannot be concluded for any reason, if he should have applied to this Court for extension of time or at. least sent his report. He was reminded time and again to conclude the proceedings. Repeated orders of this Court dated 4.9.2002, 17.1.2003, 11.2.2003 and thereafter a warning given to him by order dated 3.6.2003 were ignored. The Family Judge proceeded to decide the matter as a routine matter without caring for the repeated orders issued by this Court. In the meantime, the applicant suffered harassment and humiliation by the officials in his Court. He could not even find a few minutes of his precious time to hear the applicant.

Sri Vishal Chandra Saxena, Principal Judge, Family Court Kanpur Nagar, now posted as District Judge, J.P. Nagar has clearly disobeyed the orders of this Court. He was heard in person on 17.1.2003. He did not choose to file any explanation in writing nor sought any time to give a reply. His submission in defence is not satisfactory. He had full knowledge of the directions of this Court dated 4.9.2002 and 17.1.2003. He submitted a report to the Court on 25.3.2003, making allegations against the applicant but did not decide the matter. He did not submit any further report, nor sought extension of time to decide the matter. Having proceeded ex parte, he chose to decide the matter in petitioner’s absence. He ahs willfully and deliberately avoided the timely compliance of the orders. He has not only disobeyed the orders of this Court but has also acted in breach of the object and purpose of the Family Court’s Act 1984. The registry shall place this order before the Registrar General for information to the Court, to take appropriate action against Sri Vishal Chandra Saxena now District Judge, J.P. Nagar. The Contempt Petition is disposed off accordingly.

The petitioner filed SLP (Crl.) No. 585/2004 in the Supreme Court. The Supreme Court after hearing her in person passed an order on 29.3.2004, which is quoted as below:

The petitioner, appearing in-person, is heard on the question of grant of leave to appeal.

The facts of this case disclose an uncommon story. The petitioner was victim of an offence under Section 376 and 328 of Indian Penal Code at the hands of the respondent Manoj Kumar. To save himself from the peril of conviction, the respondent agreed to enter into a marriage with the petitioner and the petitioner too agreed to do so. The dream of happy married life soon turned out to be a nightmare as the petitioner was deserted by the respondent. On these averments the petitioner filed an application under Section 125 Cr.P.C. seeking maintenance before the Principal Judge, Family Court, Kanpur Nagar. The delay in disposal of the application persuaded the petitioner to knock the doors of the High Court. The High Court showed indulgence to the petitioner by directing the Family Court to expeditiously conclude the proceedings. As no substantial relief was forthcoming, the petitioner this time invoked the contempt jurisdiction of the High Court complaining of non-compliance with the orders of the High Court by the Presiding Judge, Family Court. By order dated 29.10.2003, the learned Judge of the High Court has expressed his anguish having found a prima facie case of non-compliance with the orders of the High Court having been made out. The High Court has directed summoning of the Presiding Judge of the Family Court to appear before the High Court in-person for the purpose of framing charges for willfully disobeying the orders of the High Court. The petitioner seeks leave to file appeal against the order of the High Court. Her grievance is that the initiation of the proceedings in contempt is alright but then she has been left still high and dry as no relief has been allowed to her. Appearing in-person, she submits that the High Court ought to have directed award of maintenance to her and ought to have seen to some relief being granted to her so as to save her from destitution.

In Surya Dev Raj v. Ram Chander Rai and Ors. , this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. Iv convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance with its directions, if the same relief the subordinate Court has failed to grant or to enforce. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by impatience.

It is not necessary to grant leave to appeal against the order dated 29.10.2003 of the High Court. There is nothing in the impugned order by which the petitioner may feel aggrieved. Let the petitioner appear before the High Court on the next date of hearing and seek appropriate interim and urgent relief from the High Court which if deserving, we have no reason to assume why the High Court shall not grant to the petitioner.

The special leave petition be treated as disposed of.

Let a copy of this order be communicated to the High Court forthwith.

Sd/-

(R.C. Lahoti, J.)

Sd/-

(Ashok Bhan, J.)

Sd/-

(Arun Kumar, J.)

New Delhi;

March 29, 2004.

The applicant moved an application along with the order of the Supreme Court and requested that the matter be heard for grant of maintenance. On this application the following order was passed:

Having regard to the entire facts and circumstances of the case and the order of Hon’ble Supreme Court dated 29.3.2004 the order of this Court dated 3.12.2002 to the extent that the Contempt application was disposed off is recalled and for reasons given in my order dated 3.12.2003, the operation of order of the Family Judge, Kanpur Nagar dated 5.8.2003 deciding and dismissing Criminal Case No. 108/2003 under Section 125 Cr. P.C. is stayed. Issue notice to Sri Manoj Kumar Yadav, Head Constable posted in district Jalaun at Urai through Senior Superintendent of Police, District Jalaun. Notices shall also be issued to Deputy Inspector General of Police, Headquarters, Allahabad. Both the notices shall enclose a copy of this order.

During the pendency of this proceeding, Sri Manoj Kumar Yadav is directed to pay a sum of Rs. 3000/- per month as interim maintenance to the applicant Smt. Shail and Rs. 25,0007- towards interim cost of these proceedings which have been drawn upto the Supreme Court. This amount shall be deducted by S.S.P. Jalaun from the salary of Sri Manoj Kumar Yadav to the extent that the deductions are not made beyond half of the amount of salary including allowances drawn by him, per month and shall be paid and remitted by S.S.P., Jalaun every month to Smt. Shail C/0 PPN Girls Inter College Compound Pared, Kanpur Nagar (UP) by Bank Draft prepared in her favour. Copy of the order may be given to the petitioner appearing in person on payment of usual charges within 24 hours.

2. The SSP Jalaun complied with the order and started remitting the amount of maintenance deduced out of the salary of Shri Manoj Kumar Yadav, to the applicant. There were some defaults on which it was reported by the SSP Jalaun that Shri Manoj Kumar Yadav has been suspended for his unauthorised absence from duties and that the applicant was being paid from making deductions from his suspension allowance.

3. Shri Manoj Kumar Yadav did not put in appearance in these proceedings. He absented from duties and was suspended. Inspite of deductions made from his suspension allowance, and having full knowledge of these proceedings, for the reasons best known to him he avoided to appear in the matter. It was found that the entire proceedings were taken ex-parte against Manoj Kumar Yadav and that it was not possible to decide the matter in his absence. In the circumstances firstly bailable warrants were issued against him, which could not be served and thus non-bailable warrants were issued on 24.5.2005 to procure his attendance. Shri Amitabh Yash, Superintendent of Police, Jalaun at Orai filed his affidavit through the Chief Standing Counsel II on 12.7.2005 stating that in compliance of the Court’s order Manoj Kumar Yadav was arrested by the police and produced before the Chief Judicial Magistrate, Jalaun, Urai, who had issued direction for sending him Jail and keeping him in police custody. He was detained in the District Jail on 24.6.2005 and shall be produced before the Court on 12.7.2005.

4. Shri Manoj Kumar Yadav entered appearance and applied for bail. He was granted bail after giving undertaking that he will appear in the proceedings on all subsequent dates. On the request of Shri Prem Prakash Yadav, learned Counsel for Shri Manoj Kumar Yadav the original record of the maintenance matter was summoned from the Family Court, Kanpur Nagar. In the supplementary affidavit of Shri Ram Niwas Yadav, the maternal uncle of Manoj Kumar Yadav and the rejoinder affidavit of Shri Manoj Kumar Yadav filed on 12.7.2005 and 19.9.2005, he has denied the allegations of rape, sexual harassment and the fact that any marriage was solemnized between him and the applicant. In para 9 of his rejoinder affidavit he states that he is married to Smt. Pushpa Devi in 1996, who is his legally wedded wife and also has a daughter aged about eight years from the wedlock, and has relied upon a copy of the Parivar Register of House No. 213 of Village Shobhavpur, Tehsil Dalmau, District Rai Bareily. He further states that in the application dated 27.7.2002 filed by Shail in the Court of the Family Judge, Kanpur it was pleaded that the deponent should marry him otherwise the deponent should pay half his salary to her. He has also relied upon his Counter Affidavit filed in Civil Misc. Writ Petition No. 10156/2002 in which he has stated in paragraph 6 that Shri Sone Lal father of the applicant Shail was a Class IV employee in a college at Kanpur and had died in harness. Her mother is also a Class IV employee in P.P.N. Girls Enter College, Kanpur. The applicant Shail was appointed as Peon on compassionate ground in Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur and used to live in the compound of P.P.N. Girls Enter College in Kanpur with her mother and brother. She used to behave in an abnormal manner on which the residents of the compound made a representation to the Superintendent of Police, Kanpur Nagar, Nagar.

5. The Principal of Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur also wrote a letter on 11.11.97 to S.S.P. Kanpur Nagar about her abnormal behaviour. The college issued charge sheet against the petitioner with several allegations and terminated her services on 30.4.98, after which she was appointed as Home Guard in Zila Commandant, Kanpur Nagar. There too her conduct was not found proper and her appointment was cancelled by Zila Commandant, Home Guard, Kanpur Nagar vide order dated 18.1.2000. The District Commandant, Home Guard, on her application for re-enlisting sent his comments to the Regional Commandant, Home Guard, Region Kanpur on 18.8.2000 stating that the petitioner is undisciplined lady and is habitual of making false complaints.

6. With regard to the incident of sexual harassment of rape dated 18.1.2002 at Lucknow it is stated by him in his affidavit in writ petition No. 10156/02 and annexed to the Supplementary Affidavit of Shri Ram Niwas Yadav, the maternal uncle of Shri Manoj Kumar Yadav that he never misbehaved with the petitioner nor reside in Apsara Hotel with her on 18.1.2002. He has relied upon the affidavit of Shri Rakesh Kumar, the Manager of the hotel and Shri Ravi Sharma in which it was clearly stated that there was no lady accompanying him on 18.1.2002, when he stayed in the hotel. The FIR lodged by the applicant Shail was investigated and it was found that the allegations leveled against the accused were false and bogus. It was also reported that the applicant is habitual in making false complaints. The final report dated 2.3.2002 in FIR No. 11/2002 in Crime No. 86/2002 under Section 376/328 IPC P.S. Naka, Lucknow is annexed with the copy of the counter affidavit.

7. Shri P.P. Yadav, the learned Counsel for Shri Manoj Kumar Yadav alleges that the applicant Shail has a doubtful character. She made false complaints and accusations against the respondent Shri Manoj Kumar Yadav in which a Final Report was submitted and was accepted by the Magistrate. She is still employed in Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur. The entire proceedings taken by her are the figment of her imagination. It is contended by him that she had earlier filed a writ petition No. 10156/2002 with the prayer to issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 (Manoj Kumar Yadav) to marry her and to maintain her as his wife. The Division Bench on 17.7.2002 after taking into account the Counter Affidavit, filed by Shri Manoj Kumar Yadav found that the writ petition is not the appropriate remedy as the allegations require a thorough investigation by the competent authority, and for the absence of the evidence and inquiry no conclusion could be drawn. The writ petition was disposed of with liberty to the petitioner to avail such remedies as are available to her under law.

8. It is contended by Shri Yadav that thereafter, the applicant filed case No. 108/02 for maintenance under Section 125 Cr.P.C. alleging in paragraph 1 and 2, that after the incident dated 181.2002 the applicant has accepted the opposite party as her husband and has been performing her duties as his wife. In the short application she alleged that the opposite party has stopped paying her maintenance and has made her destitute along with her mother. He is a Police Hawaldar drawing Rs. 8000/-, and that she is entitled to half his salary as maintenance. The contempt proceedings were dragged for a long period on account of absence of Shri Manoj Kumar Yadav. If he had put in appearance after receiving summons, this mater could have been disposed of long ago. This Court spent almost one year to secure his attendance for which bailable and non-bailable warrants were issued and that he was ultimately apprehended, arrested and produced before the Court. Shri Manoj Kumar Yadav abandoned his job as a Policemen, to avoid these proceedings. The Court draws adverse inference from his conduct and find that there is much to hide, and that that Shri Manoj Kumar Yadav absented, both from service and from appearing in this Court, for some oblique purposes.

9. Shri P.P. Yadav has relied upon Savita Ben Somabhai Bhatiya v. State of Gujarat and Ors. 1 (2005) DMC 503 SC) in which it was held that the expression ‘wife’ as per Code of Criminal Procedure refers only the legally married wife. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. it was held that expression ‘wife’ used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word “wife’ is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. The expression must be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having living spouse in a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act. The fact that the husband was treating the applicant as his wife is inconsequential and there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression “wife’.

10. I have already found in the order dated 3.12.2003 that the Family Court committed gross illegality in refusing maintenance in his order dated 5.8.2003. The husband had not put in appearance in the proceedings. The findings of the Family Judge that there was no pleading as to how the marriage was solemnized and there is no documentary proof of her marriage, were not called for in exparte proceedings and that the Family Judge, held without any material on record that she was employed and thus she was not entitled to maintenance. Further the Family Judge was fully aware of the direction of this Court dated 4.9.2002 and 17.1.2003, and still did not decide the matter for a long period of time. It was only when he received the summons in this contempt petition that he decided the matter exparte but recorded findings against the applicant. The powers under Article 227 of the Constitution of India, on the legal position explained by the Supreme Court in these very proceedings, are invoked to grant relief to the petitioner. The order of the Family Judge, as such, cannot be sustained and must be set aside.

11. I have examined the Final Report submitted by the Investigating Officer in Crime No. 86/2002 under Section 376/328 IPC P.S. Naka, Lucknow with regard to the allegation of rape by the complainant Shail against Manoj Kumar Yadav, a serving Policemen at Kanpur. She made a complaint, registered at Police Station Naka, Sadar, District Lucknow on 10.3.2002 that while she was going for some personal work to railway station at Kanpur, Shri Manoj Kumar Yadav met her and persuaded her to go to Lucknow where he made her stay at Apsara Hotel. He offered cold drink to her in which he had put some intoxicating material and raped her while she was unconscious. Instead of investigating the incident, it was reported by the Investigating Officer that the complainant is a woman of doubtful character. He stated in his final report that the complainant was removed from service of Zuhari Devi Girls Post Graduate College, Canal Road, Kanpur, and the Department of Home Guard. Her stay in Apsara Hotel is not proved and that she has lodged the FIR as she had treated the accused as her husband in her dreams.

12. The Final Report of the investigation carried out by SSI, shows that instead of investigating the incident he led more emphasis, on the character of the applicant and the fact that she was terminated from service and was also removed as a Home Guard. The Investigating Officer did not try to verify the incident in which a Police Officer was involved, and tried to close the matter by making insinuations against the applicant. The investigation as such was incomplete and was wholly illegal. In the allegation of rape, the character of woman is hardly material. It is unfortunate that the police in the State considers a woman of doubtful character, to be an object of ridicule and draws adverse inferences against her while investigating the complaint of rape. The entire approach, puts a question mark on the competence and mentality of the Police Officers. It is apparent that in order to save a fellow Policeman, the Sub-Inspector of Police, tried to close the matter by making allegations against the complainant. The Final Report and the order accepting the Final Report also as such deserve to be set aside by this Court.

13. In the facts and the circumstances the contempt petition is disposed of, confirming the observation made in the order dated 3.12.2003, setting aside the order of the Family Court, Kanpur Nagar dated 5.8.2003 in case No. 108/02, and the Final Report dated 2.3.2002 in Crime No. 86/02 under Section 376/328 IPC Thana Naka, Lucknow and the order accepting the Final Report.

14. The record of the Family Court shall be sent back without any delay. The Family Court shall issue fresh notice to both the parties and decide the matter in accordance with law. The Police is also directed to complete the investigation of the case against Shri Manoj Kumar Yadav, as expeditiously as possible. The investigation shall be carried out by the officer not below the rank of Superintendent of Police.

15. Shri Manoj Kumar Yadav is discharged from this contempt proceedings. His bail bonds are also discharged. It will, however, be open to the Police Department to keep him under suspension. The applicant Shall will continue to draw interim maintenance as directed earlier till the conclusion of the proceedings under Section 125 Cr.P.C.

Categories: Judgement, Judgement

HC: Contempt cannot be initiated when recovery proceedings can be started in family court

CR.MA/5081/2011 1/1 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5081 of 2011 In

CRIMINAL MISC.APPLICATION No. 12747 of 2010 In SPECIAL CRIMINAL APPLICATION No. 2469 of 2009 ========================================================= HANSABEN MAHENDRA SHAH – Applicant(s) Versus

MAHENDRA SOMABHAI SHAH – Respondent(s) ========================================================= Appearance :

MR KL DAVE for Applicant(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM :

HONOURABLE MR.JUSTICE JAYANT PATEL and

HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/05/2011

ORAL ORDER

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) It is an admitted position that the petitioner has the remedy of taking out appropriate proceedings before the Family Court, for recovery of the amount. Under the circumstances, we are not inclined to initiate action under the Contempt of Court Act, hence, dismissed. (JAYANT PATEL, J.)

(J.C.UPADHYAYA, J.)

(binoy)

Top

Categories: Judgement, Judgement

PUNJAB AND HARYANA HC: Maintenance in one case to be set off against another case

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR NO.4813 OF 2009 (O&M)

DECIDED ON : 25.08.2009

Raman Ahuja @ Banti …Petitioner versus

Vandana …Respondent CORAM : HON’BLE MR. JUSTICE AJAY TEWARI Present : Mr. Karan Vir Nanda, Advocate for the petitioner.

AJAY TEWARI, J. (ORAL)

This petition has been filed against the award of maintenance pendente lite of Rs.3,000/- per month. The only prayer made by the learned counsel for the petitioner is that the petitioner is already paying maintenance under Section 125 Cr.PC and Protection of Women from Domestic Violence Act, 2005 and that the petitioner should not have to pay maintenance on independent accounts. In fact what the learned counsel for the petitioner is praying for is really the law. Learned counsel further relied upon the judgment of Hon’ble Supreme Court titled as Sudeep Chaudhary versus Radha Chaudhary 1999 AIR (SC) 536.

Consequently, this petition is dismissed with the clarification that the amount awarded by the impugned order would be set off against the maintenance being paid by the petitioner to the respondent under other proceedings. August 25, 2009 (AJAY TEWARI) sonia JUDGE

Categories: Judgement, Judgement

Kolkata High Court: 125 CrPC to be adjusted against HMA maintenance

03.04.09

C.O. No.3925 of 2008

Anutosh Datta

Versus

Manasi Datta @ Sona

Mr. Jiban Ratan Chatterjee

Mr. T. N. Halder

.For the petitioner

Mr. Sanat Chowdhury

For the O.P.

This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.

It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. 2

During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.

Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.

Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3

pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. 4

In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).

Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under 5

Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.

In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)

Heard both sides.

From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the 6

evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”

There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, 7

Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.

Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order. 8

The application is disposed of accordingly.

There is no order as to costs.

C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)

Categories: Judgement, Judgement

HC: CrPC 125 maintenance to be adjusted against HMA

Equivalent citations: I (2001) DMC 6
Bench: S Mishra

Sandhya Kumari vs State Of Bihar on 7/2/2000

JUDGMENT

S.N. Mishra, J.

1. In this criminal revision application the petitioner has prayed for setting aisde the order dated 9.8.1999 passed by the learned Magistrate whereby he has rejected the prayer for maintenance in terms of Section 125, Cr.P.C. It appears that petitioner Sandhya Kumari has filed an application for grant of maintenance under Section 125, Cr.P.C. before the learned Chief Judicial Magistrate, Samastipur, which was registered as Misc. Case No. 46 of 1999.

2. Shortly stated that case of the petitioner is that the petitioner was married the opposite party No. 2 Manish Kumar on 21.5.1986 according to Hindu customs and rituals at Samastipur. It is further alleged that father of the petitioner invested a lot of money on the marriage of the petitioner by giving clothes, jewellery, furniture, utensils, refrigerator, colour T.V., car etc. and cash according to his capacity. The opposite party-husband is an architect and is working in private sector. He made a demand of Rs. 4-5 lacs for starting business but the petitioner’s parents showed their inability to fulfil his demand, as a result the petitioner is being tortured and harassed for non-fulfilment of demand. Ultimately, it is alleged that the in-laws have finally turned out the petitioner of her matrimonial house. In spite of the several attempts made from the side of the petitioner’s family in order to restore the conjugal life of the petitioner and the opposite party all went in vain. It is further alleged that since the opposite party was interested for re-marriage he filed a matrimonial suit for divorce. It is alleged that the petitioner is unemployed and totally dependent on her parents since 1991 whereas the opposite party is quantified Engineer having substantial immovable property, out of which he is getting Rs. 25,000-30,000/- as per month income. The opposite party in order to get remarried, has filed a petition for divorce on 31.1.1994 which was registered as Matrimonial Case No. 2 of 1994 before the learned 2nd Additional District Judge, Sitamarhi. Ultimately, the learned Judge by his judgment and decree dated 23.8.1996 decreed the suit and directed to pay a sum of Rs. 2,500/- per month by way of monthly allowance to the petitioner. Against the said direction, the opposite party has filed an appeal before this Court being F.A. No. 478 of 1996. Similarly, the petitioner has also challenged the judgment and decree of the Court below and, accordingly, filed an appeal before this Court being F. A. No. 429 of 1996. Both these First Appeals are pending before this Court for disposal. During the pendency of the matrimonial suit, the learned Judge directed the opposite party to pay maintenance pendente lite and cost of litigation to the petitioner in terms of Section 24 of the Hindu Marriage Act retrospectively w.e.f. March 1994, by his order dated 97.1996. Against the order directing to pay the maintenance, the opposite party has challenged the order by filing Civil Revision No. 1292 of 1996 and by order dated 21.1.1996 the said order of ad interim maintenance was set aside. It is alleged that since the petitioner is not getting a single farthing from the opposite party in terms of the judgment and decree passed by the Court below, she has filed application for maintenance under Section 125, Cr.P.C for grant of maintenance as she has no source of income and totally depends upon her parents. The learned Magistrate has refused to grant maintenance mainly on two grounds; firstly, that because of the decree of divorce passed by the Civil Court she cannot be said to be the wife for grant of maintenance under Section 125, Cr.P.C. and, secondly, having regard to the fact that she has really been granted maintenance under the provisions of the Hindu Marriage Act, she cannot claim the maintenance under the provisions of the Code of Criminal Procedure.

3. The reasons assigned by the learned Magistrate cannot be accepted for the simple reason that the divorced wife is equally entitled to maintenance in terms of Section 125, Cr.P.C. The Explanation appended to Section 125, Cr.P.C. where from it appears that “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The said Explanation appended to Section 125, Cr.P.C. reads thus :

“(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried……”

Admitted position is that the petitioner has not remarried as yet.

4. The second reason assigned by the teamed Magistrates also seems to be misconceived one in view of the fact that the scope of Section 125, Cr.P.C. as well as Section 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Cr.P.C. I am supported by a decision in the case of Sudeep Chaudhary v. Radha Chaudhary, reported in AIR 1999 SC 536, wherein it has been held that when the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C., in that event, the maintenance amount granted under Section 125, Cr.P.C. is to be adjusted against the amount awarded in matrimonial proceeding. Admittedly, not a single farthing has been paid to the petitioner as yet in terms of the decree passed by the Civil Court. In that view of the matter, the petitioner, being a wife though divorced one, is still entitled to the maintenance in terms of Section 125, Cr.P.C. However, the amount of maintenance allowed under the provisions of Hindu Marriage Act is subject to adjustment of the amount granted in terms of Section 125, Cr.P.C.

5. After having heard the learned Counsel for the parties and going through the materials on record, the order dated 9.8.1999 passed by the learned Magistrate is hereby, set aside. This application is, accordingly allowed.

Categories: Judgement, Judgement

SC: Amount awarded under 125 CrPC is adjustable against the amount awarded in the matrimonial proceedings

Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin

Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997

JUDGMENT

S.P. Bharucha, J.

1. Special leave granted.

2. The respondent-wife has been served by substituted service but does not appear.

3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.

4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.

5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.

6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.

7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.

8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.

9. The appeal is disposed of accordingly.

10. No order as to costs.

Categories: Judgement, Judgement

HC: Wife refused to stay with Husband…CrPC 125 rejected

Categories: Judgement

HC: CrPC 125 & DV Act together are not Double Jepordy but DV quashed as husband already got divorce

THE HONOURABLE SRI JUSTICE K.G.SHANKAR

CRIMINAL PETITION No.7124 OF 2008

01-04-2011

A.Sreenivasa Rao and others

The State of A.P., rep. by its Public Prosecutor,High Court of A.P., Hyderabad and another

Counsel for the Petitioners: Sri D.Madhava Rao

Counsel for the Respondent No.1: Public Prosecutor

Counsel for the Respondent No.2: M/s. K.Ananda Rao

:ORDER:

1. There is no representation for the 2nd respondent-wife. The petitioners are Accused Nos.1 to 5 in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad. The 1st accused is/was the husband of the 2nd respondent. Alleging that A-1 to A-5 committed matrimonial offences, the 2nd respondent/wife laid D.V.A.No.18 of 2007.

2. As there is prior litigation between the parties, the 2nd respondent laid M.C.No.175 of 2003 seeking for maintenance from the 1st petitioner herein. She was indeed successful in obtaining an order from the Court granting maintenance in her favour. It would appear that the order has become final.

3. While so, the 2nd respondent laid C.C.No.226 of 2003 on the file of the XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad. She made allegations against the petitioner herein in C.C.No.226 of 2003 under Section 498-A and other matrimonial offences. The case had ended in acquittal. The judgment was pronounced on 30.4.2007.

4. In the interregnum, the 1st petitioner/husband laid O.P.No.366 of 2004 on the file of the Family Court, Hyderabad seeking the dissolution of his marriage with the 2nd respondent by divorce on the ground of cruelty on the part of the wife. The learned Judge, Family Court, Hyderabad granted divorce in favour of the petitioner through orders in O.P.No.366 of 2004 on 5.5.2006.

5. It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent. Sri Ashish Samanth, learned Counsel for the petitioners contended that laying of D.V.C.No.18 of 2007 is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. I do not agree with this contention of the learned Counsel for the petitioner for the reason that the protection envisaged by the Article 20(2) of the Indian Constitution as well as by Section 300 Cr.P.C., which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in D.V.A.No.18 of 2007 cannot be considered to be criminal proceedings. Like proceedings under Section 125 Cr.P.C., perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of the Indian Constitution or under Section 300 Cr.P.C.

6. At the same time, by the time the D.V.A.No.18 of 2007 was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of D.V.A.No.18 of 2007, the case in D.V.A.No.18 of 2007 prima-facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not entitled to proceed against the petitioner under the provisions of the Domestic Violence Act.

7. I wholly agree with the contention of the learned Counsel for the petitioners that the proceedings in D.V.A.No.18 of 2007 are not maintainable in view of the divorce between the 1st petitioner and the 2nd respondent having been granted by a competent Civil Court. Proceedings against the petitioners herein are quashed in D.V.A.No.18 of 2007 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad.

Categories: DV Judgements, Judgement

HC: maintenance of 1/5th of salary is reasonable

Categories: Judgement

IA under CrPC 125 rejected by Principal Judge, Family Court, Bangalore

Categories: Judgement

HC on confusion due to simultaneous proceeings in DV Act and CrPC 125

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 593 of 2009

Akhilesh Kumar Applicant. Versus

Smt. Sarita Respondent.

Mr. Prashant Khanna, Advocate holding brief of Mr. R.P. Nautiyal, Advocate for the applicant.

Mr. Pawan Mishra, Advocate for the applicant / respondent. Date of Order: 29.03.2011

BARIN GHOSH, CHIEF JUSTICE

Clarification Application No. 278 of 2011 The words, “If any amount is paid under Section 125 of Criminal Procedure Code by the petitioner to the respondent, the same shall be adjusted against the amount of Rs. 5,000/- per month directed to be paid by this Court” is causing the confusion. In fact, a proceeding was initiated under Section 125 of the Criminal Procedure Code. In that proceeding, there was a direction to pay maintenance. Such maintenance was paid for sometime. Subsequent thereto, that proceeding was compromised. When no order was passed for payment of maintenance, in as much as the husband and the wife represented to the Court that they will henceforth live together. Subsequent thereto, wife was compelled to initiate a proceeding under the provisions of the Protection of Women from Domestic Violence Act, 2005. In that, the Magistrate awarded maintenance of Rs. 7,000/-. The Sessions Judge, at the instance of the husband, refused to interfere. This Court, as an interim measure, reduced the quantum of such maintenance from Rs. 7,000/- to Rs. 5,000/-. While doing so, the above observation was made. The said observation was made only for the purpose of ensuring that wife does not get anything more than Rs. 5,000/- per month. The Court did not permit the husband to adjust amount paid on earlier occasions in a closed proceedings with the amount directed to be paid by the Court by its order dated 14th June, 2010.

2

2. With the above clarification, the application made therefor is disposed of.

(Barin Ghosh, C.J.)

29.03.2011

Amit

Categories: DV Judgements, Judgement

Children need to maintain their father : Gujrat HC

CR.RA/759/2009 4/4 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 759 of 2009

For Approval and Signature:

HONOURABLE MR.JUSTICE AKIL KURESHI

=================================================

1

Whether Reporters of Local Papers may be allowed to see the judgment ?

2

To be referred to the Reporter or not ?

3

Whether their Lordships wish to see the fair copy of the judgment ?

4

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether it is to be circulated to the civil judge ?

=================================================

HASMUKHBHAI NARANBHAI VIRAMIYA & 1 – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

================================================= Appearance :

MR PRADEEP PATEL for Applicant(s) : 1 – 2. PUBLIC PROSECUTOR for Respondent(s) : 1,

RULE SERVED for Respondent(s) : 2,

MR JL HAJARE for Respondent(s) : 2,

=================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 09/02/2011

ORAL JUDGMENT

1. Petitioners are sons of respondent No.2. Respondent No.2 father had filed Criminal Miscellaneous Application No.585 of 2008 before the Family Court, Rajkot seeking maintenance from his sons contending that in old age he has no independent source of income and he is unable to maintain himself.

2. Learned Judge of Family Court, Rajkot by impugned order dated 9.9.2010 allowed the application partly and directed both the sons to pay Rs.600/- each per month to the father. He thus received a total of Rs.1200/- by way of maintenance from two sons.

3. In the present case, the petitioners have opposed the order of maintenance on various grounds, namely, that the father had deserted the family many years back and has started leaving with another lady without any valid marriage. From such cohabitation he also has one son and one daughter against whom no claim is made. It is also the case of the petitioners that the petitioners are willing to look after the father if he resides with them. The case of the petitioners further is that they do not have sufficient means to pay maintenance to the father.

4. Counsel for the petitioners drew my attention to the evidence on record to point out that the cohabitation of the father with another lady and this lady giving birth to two children out of such cohabitation are admitted by him. Counsel for the petitioners submitted that the father had not supported the family yet sold away certain immovable properties from which he has received considerable amount. He also instituted several proceedings seeking eviction of the petitioners from the residential premises occupied by them.

5. Counsel for the respondent No.2 was absent on numerous occasions, I, therefore, had no benefit of his arguments.

6. So far as the contention that the father has sold certain immovable properties and raised considerable amount which could be source for his sustenance is concerned, admittedly there is no evidence on record in this regard. Such oral averments, raised for the first time in the High Court, cannot be accepted.

7. In so far liability of the petitioners to maintain their father, who has no independent source of income, flows clearly from sub-Section(1) of Section 125 of the Criminal Procedure Code. It reads as follows:-

“Section125. Order for maintenance of wives, children and parents(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child ( not being married daughter) who has attained majority, where such child is, by reason of any physical or mental, abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

xxx xxx xxx

8. In absence of anything on record to suggest that the father had any source of income whatsoever, the Family Court rightly believed that he was unable to maintain himself, particularly, looking to his age of about 72 years.

9. It has also come on record that the father is not only aged but he is also infirm and suffers from sickness time and again.

10. Regarding ability of the petitioners to pay maintenance, learned Judge though discarded the averment of the father that the sons are earning Rs.12,000/- to 20,000/- per month, on the basis of evidence on record, learned Judge believed that the petitioner No.1 would be earning approximately Rs.3000/- per month and petitioner No.2 Rs.3,500/- per month. Considering their family liabilities, he asked them to pay Rs. 600/- each to the father. With this assessment or the ultimate direction, I find no infirmity whatsoever.

11. It is true that the father had admitted that he had entered into an agreement of friendship with one lady in the year 1990 and from such cohabitation two children were also born. However, the petitioners are currently stated to be aged 52 years and 48 years respectively. In the year 1990, therefore, they were fully grown up in the age group of 28 and 22 respectively. It, therefore, cannot be stated that the father abandoned them in their infancy. Further the fact that the father has not claimed any maintenance from other son, can hardly be a ground to absolve these petitioners from their responsibility to look after their father in his old age.

12. Under the circumstances, the petition is dismissed. It is, however, clarified that if the petitioners have any evidence to show that the father, by virtue of sale of properties, has received considerable amount, which could be his source of income, it would be open for them to file application under Section 127 of the Criminal Procedure Code before the Family Court.

13. With above observations, petition is dismissed. Interim relief stands vacated. Rule discharged.

(Akil Kureshi, J. )

sudhir

Top

Categories: Judgement

HC: DNA test of husband rejected in CrPC 125 case

HIGH COURT OF MADHYA PRADESH : JABALPUR M.Cr.C. No. 5273/2010

Lallu Lal Patel

-Vs-

Smt.Anar Kali @ Tannu Bai Yadav and another PRESENT : Hon. M.A.Siddiqui,J.

Shri Ashok Lalwani , Adv. for petitioner. Shri Paritosh Trivedi, Adv.for respondents. ORDER RESERVED ON 14/02/2011.

ORDER PASSED ON 21/02/2011. ORDER

This petition under Section 482 of Cr.P.C. has been filed by the petitioner to invoke the extra ordinary powers of this Court to order for DNA test of respondent no.2 Sanju Yadav @ Munna Lal Yadav in proceeding under Section 125 Cr.P.C.pending before JMFC, Mandla. (2) In brief, the petition is that respondent no.1 is not the wife of petitioner and respondent no.2 is not the legitimate/illegitimate son of petitioner. Proceeding for maintenance of respondent no.2 is pending before JMFC, Mandla where n application for DNA test of respondent no.2 has been filed. On 19.1.10 the application for DNA test has been rejected by JMFC, Mandla and on revision by Cri.Revision No.21/10, on 19.4.10, request for DNA test has been refused. It is alleged that it is necessary not -2-

only for deciding the case, but also to wash off the stigma of illegitimate child which respondent no.2 has to carry with him through out his life. Respondent has objected the test. Aggrieved by the orders, this petition has been filed by the petitioner.

(3) Learned counsel for petitioner submits that petitioner is not the husband of respondent no.1 and he got declaration through a civil suit and she wrongly filed a case under Section 125 Cr.P.C. not for herself but for her son Sanju. Petitioner has got acquittal from the criminal case of rape in ST No. 153/98 on 22nd April,1999. He got the decree from civil suit that he is not the husband of respondent no.1. Petitioner has rightly moved application for DNA test of the boy Sanju to ascertain the paternity, but same has been wrongly refused by the two Courts below. He prays that direction to do the DNA test of the boy Sanju may be given. (4) Respondents have opposed the request and supported both the orders of the Courts below on the ground that both are reasoned orders and it has been rightly discussed that it is the duty of the petitioner to prove his own case and he cannot make the Court as a tool to collect the evidence and DNA test is a test which cannot be ordered against the Will of the person. -3-

(5) Learned counsel for petitioner submitted the case law of Kerala High Court in Sajeera vs. P.K.Salim 2000 Cri.L.J.1208 which has also been relied on by the trial Court in which it has been held that under Section 112 of Evidence Act, for evidence of legitimacy and paternity of child, no one can be compelled to undergo blood test. Blood test should be conducted only with the consent of the person. Learned counsel for petitioner has placed reliance on H.M.Prakash alias Dali vs.State of Karnataka 2004 (3) KarLJ 584 which is based on section 53 of the Cr.P.C. and which is about direction to the police officer and it has no relevancy with the case in hand. In C.Rajaram vs. Jothi and another Crl.O.P.No. 35499 of 2007 order of DNA test was given as lady gave birth to a child before nine months of the marriage. So this authority is also of no relevance. (6) Learned counsel for petitioner has placed reliance on a decision of Apex Court in Buridi Vanajakshmi vs. Buridi Venkata Satya Varaha Prasad Gangadhar Rao & Anr. AIR 2010 AP 172 wherein it has been held that under Hindu Marriage Act for the dispute as to paternity of child, DNA test could be ordered by the High Court under its inherent powers, but against it is the authority of Apex Court Goutam Kundu vs. State of West Bengal -4-

AIR 1993 SC 2295 wherein it has been held that nobody can be compelled to give sample of blood for analysis. Almost similar view has been reiterated in Smt. Selvi & Ors. vs. State of Karnataka AIR 2010 SC 1974 wherein it has been held that for Narco analysis consent is a must.

(7) In Banarsi Dass vs. Teeku Dutta (Mrs.) And Another (2005) 4 SCC 449 it has been held that under Section 112 and 4 of Evidence Act, the conclusiveness of presumption under S.112 cannot be rebutted by DNA test. The proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption and DNA test is not to be directed as a matter of routine, it is to be directed only in deserving cases.

(8) So, looking to the above circumstances of the case, I find no ground to invoke the extra ordinary jurisdiction of this Court under S.482 Cr.P.C. Petition being devoid of merits is hereby dismissed.

(M.A.Siddiqui)

JUDGE

/02/2011.

Jk.

Categories: Judgement

HC: Wife give birth within 5 month of marriage: Still maintenance allowed

February 26, 2011 3 comments

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

PRESENT:

THE HON’BLE MR. JUSTICE KALIDAS MUKHERJEE

C.R.R. NO. 1844 OF 2003

Bhopal Majee

Vs.

The State of West Bengal & Anr..

For the Petitioner: Madhusudan Mondal

For the O.P. No. 2: Mr. Arindam Sen

Mr. Josojeet Mukherjee

Heard On : 8.4.2010 & 22.6.2010.

Judgment on: 30.6.2010.

Kalidas Mukherjee, J. :

1. This is an application under Article 227 of the Constitution of India assailing the order dated 19.2.2003 passed by learned Additional District & Sessions Judge, Fast Track Court (4th), Raghunathpur, Purulia in Criminal Revision No. 15 of 2001 whereby and whereunder the order dated 21.1.2001 passed by learned Judicial Magistrate in Misc. Case No. 23 of 1993 was affirmed. The learned Magistrate directed the O.P./husband to make payment of maintenance allowance @ Rs.350/- per month to the wife and @ Rs.250/- per month for her son from the date of the order.

2

2. The case of the petitioner in the application under Section 125 Cr.P.C. is that the applicant is the legally married wife of the O.P. Bhopal Majee and the marriage was solemnized on 20th Ashar, 1393 B.S. After marriage petitioner used to live with the O.P. as husband and wife and gave birth to a son out of their lawful wedlock. The son is aged about six years at the time of filing of the petition under Section 125 Cr.P.C. In the matrimonial home the O.P. began to ill treat with the petitioner and he also assaulted her very often and ultimately drove her out from the matrimonial home. The petitioner/wife came with her minor son to her paternal house. The O.P. did not take any information of the applicant and her minor son. The O.P. has sufficient means to pay maintenance. The O.P. is an able bodied person having 40 bighas of landed property from which he earns 15,000/- per year. Besides the O.P. is a Railway employee working at Garbeta under Southern Railway as class IV staff.

3. The O.P./husband filed written objection before the learned Magistrate contending, inter alia, that there was marriage between the parties on 20th Ashar, 1393 B.S. but the petitioner gave birth to a male child within four months twenty days from the date of marriage. It has been contended by the O.P./husband that the petitioner as well as her father fraudulently concealed and suppressed the fact of pregnancy of the petitioner on the date of marriage. It is alleged by the O.P. that he had no access to and/or even acquaintance with her prior to the marriage 3

and the petitioner became pregnant by someone excepting to the O.P. After the delivery of the child the petitioner’s father came and took back his daughter along with the new born baby. The petitioner and her father promised and assured at that time that they would have no claim on the basis of the marriage between the parties. It has been alleged that because of suppression of material, the marriage was void and the O.P./husband filed a suit bearing T.S. No. 69 of 1993 against the petitioner for a declaration that there was no legal relationship of husband and wife between the parties and the petitioner was not the legally married wife of the O.P. The husband preferred a Misc. Appeal bearing No. 20 of 1993 before the learned District Judge, Purulia. The O.P./husband has contended that the petitioner/wife is not entitled to get any maintenance allowance.

4. The learned Magistrate allowed the petition under Section 125 Cr.P.C. holding that in T.S. No. 69 of 1993 it was held that the petitioner was made pregnant by the O.P./husband and the marriage between the parties was legal, valid and subsisting. The learned Magistrate further held that the finding of the Civil Court was binding upon the Criminal Court and there was no scope for fresh adjudication on that point. The learned Magistrate accordingly held that the marriage between the parties was legal, valid and subsisting and the son born to the womb of the petitioner was by the loins of the O.P. The learned Magistrate further held that the O.P. by challenging the legality and validity of the 4

marriage and in course of challenge raised doubt about the chastity of the petitioner and denied the paternity of the child which was, by itself, sufficient ground for separate living by the petitioner. The learned Magistrate held that the O.P. did not say about his monthly salary though it was within his special knowledge. It was held that the O.P. being an employee in the Railway must have sufficient means to pay maintenance. The learned Magistrate further held that the petitioner having no income to maintain herself and her child, was entitled to get maintenance.

5. The O.P./husband preferred a Criminal Revision bearing No. 15 of 2001 before the learned Additional District Judge who relying on the judgment in T.S. No. 69 of 1993 held that the marriage between the parties was legal, valid, subsisting and the petitioner was made pregnant by the O.P./husband. It is also found from the findings of the learned Judge that the judgment and decree passed in Title Suit was affirmed in Title Appeal No. 39 of 1996. The learned Judge further observed that without going for DNA test, the Court can take into account the accessibility of the parties at the material point of time when the child came to the womb of the wife. The learned Judge dismissed the Criminal Revision and affirmed the order passed by the learned Magistrate.

6. In this application the leaned Counsel for the petitioner/husband made submission in part on 8.4.2010, but, subsequently when the case was 5

taken up for further hearing the learned Counsel did not appear and the argument of the learned Counsel of the O.P./wife was heard.

7. The learned Counsel for the O.P. submits that the marriage between the parties is admitted and there is no ground to interfere with the findings of the learned Additional District Judge. The learned Counsel submits that the wife subsequently filed an application under Section 127 Cr.P.C. for enhancement of the maintenance allowance which was allowed on consent and the maintenance was raised to Rs.1,300/- per month for petitioner and her child. The learned Counsel for the O.P. herein has referred to the decision reported in (2003)6 SCC 1993 [Amina Vs. Hassn Koya] para 4. It has been held by the Apex Court in para 4 as follows:-

” It is very difficult to believe that a woman who is five months’ pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant specially when the pregnancy is five months’ old. Therefore, we cannot accept that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void.”

8. It appears from the impugned order that there was a finding of the Civil Court holding that the marriage between the parties was legal, valid and subsisting and that the petitioner/wife became pregnant by the 6

O.P./husband. In the instant case, the marriage is admitted and the only objection of the O.P./husband is the paternity of the child. In the decision cited above it has been held that the plea of the husband that he was not aware of the pregnancy of the wife, was not accepted. Moreover, from the order dated 14.9.2009 passed in Misc. Case No. 21 of 2008 (Kalabati Majee Vs. Bhupal Majee) in the Court of Judicial Magistrate, 1st Class, Raghunathpur it appears that the maintenance allowance was enhanced under Section 127 Cr.P.C. to Rs.1,300/- per month on consent of the parties. It appears that learned Court below discussed all the points and the learned Judge rightly rejected the Revisional Application. There is no ground to interfere with the findings of the learned Judge.

9. In the result the application under Article 227 of the Constitution of India fails and the same is dismissed.

10. Let a copy of this order be sent down to the learned Court below immediately.

11. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.

(Kalidas Mukherjee, J. )

Categories: Judgement

Wife’s maintenance rejected by FC but HC awards 1 lakh as permanent alimony

February 26, 2011 1 comment

MISC. APPEAL No.215 OF 2010

1-SANTOSH KUMAR SINHA S/O SRI SURESH LAL R/O VILL.- DAYAL CHHAPRA, P.S.- CHARPOKHARI, DISTT.- BHOJPUR —– Petitioner-Appellant

Versus

1-MADHUBALA SINHA D/O SHYAM KISHORE PRASAD R/O VILL.- RATANPUR, P.S.- ARRAH MUFFASIL, DISTT.- BHOJPUR —–Opposite Party-Respondent

———–

PRESENT

THE HON’BLE MR. JUSTICE NAVIN SINHA

THE HON’BLE MR. JUSTICE JYOTI SARAN

Navin Sinha & The appellant was married to the respondent on Jyoti Saran,

J.J. 12.6.1991. Matrimonial acrimony led to the institution of Charpokhari P.S. Case No. 68 of 1992, under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, by the father of the respondent against the appellant and his family members. The accused were taken into custody. They were subsequently released on bail. The matter is then stated to have been compromised. Thereafter the respondent is alleged to have sent a legal notice making certain allegations and demanding Rs. 250/- per month which was denied by the appellant stating that the respondent was leading an adulterous life. The appellant then filed Matrimonial Case No. 02 of 1993, from which the present 2

appeal arises. The Family Court unsuccessfully attempted reconciliation on more than one occasion. The respondent expressed her willingness to go back to the matrimonial home. The appellant on account of custody, consequent to the criminal prosecution denied restoration of matrimonial harmony. The respondent in the matrimonial case filed a counter claim for restitution of conjugal rights. The respondent also filed Title Suit No. 103 of 1993 for getting monthly allowance and for the return of her matrimonial properties, ornaments, other articles etc. In the matrimonial suit the appellant alleged cruelty against the respondent social, mental and physical. The respondent denied the allegations alleging bad behaviour on part of the appellant sought to be justified by institution of Charpokhari P.S. Case No. 68 of 1992 by her. The Family Court noticed that during her evidence the respondent sought to suppress the filing of Title Suit No. 103 of 1993 by her. It appears from the judgment under appeal that the suit has also been dismissed. The Family Court came to the conclusion that there was an irretrievable break down of the marriage since the parties had not been residing together for nearly 17 years, opining that it may be cruelty to compel them to live together. While granting divorce it granted permanent alimony of Rs. 3,00000/- (three lakhs) 3

to the respondent.

Learned counsel for the appellant contended that the amount of permanent alimony awarded is fanciful and he does not have the capacity to pay the same. He is a licensed deed writer in the Civil Court at Ara in the District of Bhojpur and has no source of income. Strong reliance was sought to be placed on the judgment and decree in Title Suit No. 103 of 1993 at paragraph-25 of the same.

Learned counsel for the respondent reiterated the submission for willingness to revive matrimonial harmony. The judgment in Title Suit No. 103 of 1993 is acknowledged to have attained finality not having been questioned in appeal. We find no error in the judgment under appeal on merits in the peculiar facts and circumstances of the case to the extent that it grants divorce and rejects the counter claim for restitution of conjugal rights. Matrimonial relations are based on mutual trust and belief in each other. Once the trust and belief collapses and more than reasonable time elapses before efforts could be made to restore the faith and trust, an irretrievable situation is created. Perhaps the English adage that distance makes the heart grow fonder takes effect in the reverse direction. On the issue of the quantum of permanent alimony awarded, considering the submission of both sides as also the judgment in Title Suit No. 103 of 1993, we are 4

satisfied that the amount of permanent alimony awarded is excess. The respondent has not brought any materials before us to satisfy of the economic status or financial capacity of the appellant. On the contrary, the appellant has a judicial finding in his favour. At this stage, learned counsel for the respondent submitted that she would be satisfied, if at least a permanent alimony Rs. 1,50,000/- is awarded to her and the judgment under appeal may be modified to that extent. Prima facie we were inclined to accept the submission of the respondent as reasonable. The appellant however reiterated his inability to pay relying upon the judgment in Title Suit No. 103 of 1993.

In absence of any cogent material before us placed by the respondent to counter the findings given in the Title Suit filed by her, but at the same time keeping her interest in mind, the case of the appellant himself that he is a deed writer and that his father does possess joint family property also, we consider it proper to modify the amount of permanent alimony to make it reasonable which the appellant shall be able to pay. The fact that he may encounter difficulty in payment does not impress us at it is his bounden duty in law to provide for his separated wife unless the law exempts him from that responsibility. Being an able bodied male it is for him to find the resources to pay permanent alimony to his 5

wife. We therefore modify the amount of permanent alimony Rs. 3,00000/- to Rs. 1,00000/- payable in two equal installments. We further direct that the first installment of the alimony of Rs. 50,000/- shall be paid to the respondent within a period of one month. The balance amount of Rs. 50,000/- shall be paid after an interval of one month from the date of payment of first installment of Rs. 50,000/-. The appeal is disposed off with the aforesaid modification in the quantum of permanent alimony. ( Navin Sinha, J.)

(Jyoti Saran, J.)

Patna High Court,

Dated 14th July, 2010

Categories: Judgement

HC: Duty of the husband to maintain wife first, then only brother, sister and mother

February 26, 2011 1 comment

CR.RA/587/2009 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 587 of 2009

=========================================================

MOHD.IRFAN USMANGANI SHEIKH – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR PRATIK B BAROT for Applicant(s) : 1, MS ML SHAH, APP for Respondent(s) : 1, MR MM TIRMIZI for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 19/07/2010

ORAL ORDER

Petitioner is husband of respondent no.2. He has challenged an order dated 31.3.2009 passed by the Family Court, Ahmedabad directing to pay maintenance of Rs. 1500/-per month to wife.

Counsel for the petitioner submitted that amount of maintenance fixed is excessive. That the cohabitation out of the marriage lasted for less than five months. Petitioner is not able to earn enough to support wife and other family members which include his brother, sister and mother.

From the perusal of the judgement under consideration, however, I find that the petitioner is stated to be doing stitching work. He is residing in the city of Ahmedabad. He is stated to be about 23 years of age. As an able bodied person and being a skilled worker, it cannot be believed that petitioner does not earn anything at all. Brother of the petitioner is stated to be about 26 years of age. If the petitioner was keen to look after his brother, it was his first duty to maintain his wife.

Considering all these aspects of the matter, in my opinion, order passed by the Family Court does not suffer from any infirmity. Petition is therefore, dismissed.

However, if the petitioner pays arrears in six equal monthly installments, starting from 10.8.2010, there shall be no coercive recovery against him, provided he continues to deposit prospective monthly maintenance. However, in case of any violation of above conditions, it would be open for the Family Court to proceed further with the recovery proceedings.

(Akil Kureshi,J.)

Categories: Judgement

HC: 4200 PM maintenance on income of 15000 PM (assessed income by HC)

February 26, 2011 1 comment

SCR.A/1627/2010 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 1627 of 2010

=========================================================

PARESHBHAI ARVINDBHAI PATEL – Applicant(s)

Versus

REKHABEN BABUBHAI PATEL & 2 – Respondent(s)

========================================================= Appearance :

MR PRADIP D BHATE for Applicant(s) : 1, None for Respondent(s) : 1 – 2.

MS CHETNA SHAH ADDL PUBLIC PROSECUTOR for Respondent(s) : 3, =========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 17/09/2010

ORAL ORDER

Petitioner is husband of the respondent No.1 and father of the minor respondent No.2. He is required to pay monthly maintenance of Rs.2200/- to his wife and Rs.2000/- to his minor son by order dated 30^th November 2009 passed by the learned Magistrate, Dahod. His revision application against the said order came to be dismissed by the Sessions Court vide order dated 27^th July 2010. He has, therefore, filed the present petition.

Counsel for the petitioner submitted that the Courts below have wrongly assessed income of the petitioner going against the documents on record. He submitted that amount of maintenance is excessive and calls for interference.

From the orders under challenge and in particular one passed by the learned Magistrate, it clearly emerges that the petitioner is only son of his father. His mother is also passed away. Father has retired from Railways Department which is a pensionable service. Sister of the petitioner is married in USA and settled there. His father has been frequently visiting her in USA. He has also in past traveled to London for some social reasons.

It further emerges that the petitioner in his cross examination admitted that he is owner of one residential house which is in his exclusive name. Admittedly the father of the petitioner is also co-owner of piece of agricultural land.

Averments of the wife before the Courts below was that the husband is doing electrical work since he has done technical course in this field and has two shops from where he operates. Husband, however, has produced certificate of Mamlatdar suggesting that his yearly income is only Rs.20,000/-.

Two courts below have assessed income of the petitioner much higher on the basis of the evidence, some of which, I have recorded hereinabove.

These are purely factual findings. I have no reason to take different view though version of the wife is that he is earning Rs.50,000/- per month was discarded by the Courts. However, the Courts below believed that the petitioner is able bodied person and has been involved in the electrical work, would be earning about Rs.15,000/- per month. Other family circumstances and living style lead by the family convince me not to interfere with the impugned orders.

Petition is, therefore, not entertained and stands dismissed accordingly.

( AKIL KURESHI, J. )

kailash

Categories: DV Judgements, Judgement

Multiple maintenance not allowed: Gujrat HC

SCR.A/2080/2010 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 2080 of 2010

=========================================================

HEMLATABEN MAHESHBHAI CHAUHAN – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

MR HEMANT B RAVAL for Applicant(s) : 1, MR KARTIK PANDYA ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 21/10/2010

ORAL ORDER

Petitioner is wife of the respondent No.2. She has challenged the order dated 25^th August 2010 passed by the learned Additional Sessions Judge, Ahmedabad allowing the appeal of the respondent No.2.

Wife had prayed for interim maintenance before the learned Magistrate in proceedings arising out of the Protection of Women from Domestic Violence Act. Such prayer was granted. Husband challenged the said order dated 19.12.2009. Learned Additional Sessions Judge allowed the said appeal and set aside the order of the learned Magistrate.

Upon hearing the learned advocate for the petitioner and perusing the documents on record, it emerges that the wife had already instituted proceedings for maintenance under Section 125 of Code of Criminal Procedure wherein the competent Court has granted maintenance to the tune of Rs.750/- in favour of son, whereas no maintenance was granted to the wife since it was found that she was serving in a factory earning Rs.2500/- every month, she was able to maintain herself.

When initial order under Section 125 of the Cr.P.C. was already passed by the competent court which has also attended finality by way of interim arrangement, unless and until strong reasons, learned Magistrate could not have granted maintenance to the wife. In the event of change in the circumstances, it is always open to the wife to seek modification of the maintenance order under Section 127 of the Cr.P.C.. Learned Additional Sessions Judge has, therefore, committed no error in passing the impugned order.

Learned Magistrate shall, however, dispose of the pending proceedings under the Domestic Violence Act unmindful of this order since I am concerned only with the interim stage in this matter.

Petition is, therefore, dismissed.

( AKIL KURESHI, J. )

kailash

Top

Categories: DV Judgements, Judgement

Husband pays 40Lakhs for settlement :(

February 22, 2011 1 comment
Bench: D Bhandari, D Verma

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION(CRL.)NO.637 OF 2009

S.G.RAJGOPALAN PRABHU & ORS. … PETITIONER(S) VERSUS

VEENA & ANR. … RESPONDENT(S) O R D E R

The matter was referred to the Supreme Court Mediation Centre. By the efforts of the Mediator, the matter has been settled. Parties have entered into a compromise. A Compromise Petition has been handed over to us in Court, which is taken on record. In terms of the compromise arrived at between the parties, the petitioners have agreed to pay a sum of Rs.40 lacs in full and final settlement of all claims of respondent-Mrs.Veena Rao. A Pay Order for a sum of Rs.40 lacs has been given to her in Court. Both the parties have prayed that following cases filed by them be quashed in view of the settlement. The details of cases pending in Courts are reproduced as under :-

i) Criminal Case NO.54/2008 lodged by 1st Respondent accusing the petitioners – pending investigation at Vastrapur Police Station, Ahmedabad (Gujarat),

ii) A petition filed by Respondent No.1 against the petitioners under the provisions of Domestic Violence Act, 2005, being Petition No.887 of 2008 pending before the 2nd Joint Judicial Magistrate Court, Ahmedabad Rural, Mirzapur, Ahmedabad (Gujarat),

iii) A petition for maintenance u/s.125 Crl.P.C., being No.553 of 2009 pending before the 3rd Judicial Magistrate Court, Gandhinagar (Gujarat). 2

In view of the compromise between the parties, we deem it appropriate to quash aforementioned cases pending inter se between the parties. In the facts and circumstances of this case, we deem it appropriate to pass a decree of divorce by mutual consent. In view of this order, the proceedings being HMOP No.111/2009 pending before the 2nd Joint Senior Civil Judge, Gandhinagar (Gujarat) also stand quashed. Parties undertake to abide by the other terms and conditions which have been recorded in the Compromise Deed. No further directions are necessary.

The Transfer Petition is, accordingly, disposed of. ……………….J.

(DALVEER BHANDARI)

……………….J.

(DEEPAK VERMA)

NEW DELHI;

26TH JULY, 2010

Whether live-in women eligible for maintenance in CrPC 125: CJI to make bench for it

February 22, 2011 5 comments
Bench: G Singhvi, A K Ganguly

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._____ OF 2010

(Arising out of SLP (Civil) No.15071 of 2009) Chanmuniya ..Appellant(s) Versus

Virendra Kumar Singh Kushwaha & Anr. ..Respondent(s) J U D G M E N T

GANGULY, J.

1. Leave granted.

2. One Sarju Singh Kushwaha had two sons, Ram Saran (elder son) and Virendra Kumar Singh Kushwaha (younger son and the first respondent). The appellant, Chanmuniya, was married to Ram Saran and had 2 daughters-Asha, the first one, was born in 1

1988 and Usha, the second daughter, was born in 1990. Ram Saran died on 7.03.1992.

3. Thereafter, the appellant contended that she was married off to the first respondent as per the customs and usages prevalent in the Kushwaha community in 1996. The custom allegedly was that after the death of the husband, the widow was married off to the younger brother of the husband. The appellant was married off in accordance with the local custom of Katha and Sindur. The appellant contended that she and the first respondent were living together as husband and wife and had discharged all marital obligations towards each other. The appellant further contended that after some time the first respondent started harassing and torturing the appellant, stopped her maintenance and also refused to discharge his marital obligations towards her.

4. As a result, she initiated proceedings under Section 125 of the Cr.P.C. for maintenance (No.20/1997) 2

before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. This proceeding is pending.

5. She also filed a suit (No.42/1998) for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the Court of 1st Additional District Judge, Ghazipur.

6. The Trial Court decreed the suit for restitution of conjugal rights in favour of the appellant on 3.1.2004 as it was of the opinion that the appellant had remarried the first respondent after the death of Ram Saran, and the first respondent had deserted the appellant thereafter. Thus, it directed the first respondent to live with the appellant and perform his marital duties.

7. Hence, the first respondent preferred a first appeal (No.110/2004) under Section 28 of the Hindu Marriage Act. The main issue in appeal was whether there was any evidence on record to prove that the appellant was the legally wedded wife of the first respondent. 3

The High Court in its judgment dated 28.11.2007 was of the opinion that the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, had not been performed between the first respondent and the appellant and held that the first respondent was not the husband of the appellant and thus reversed the findings of the Trial Court.

8. Aggrieved by the aforesaid judgment of the High Court, the appellant sought a review of the order dated 28.11.2007. The review petition was dismissed on 23.01.2009 on the ground that there was no error apparent on the face of the record of the judgment dated 28.11.2007.

9. Hence, the appellant approached this Court by way of a special leave petition against the impugned orders dated 28.11.2007 and 23.01.2009.

10.One of the major issues which cropped up in the present case is whether or not presumption of a 4

marriage arises when parties live together for a long time, thus giving rise to a claim of maintenance under Section 125 Cr.P.C. In other words, the question is what is meant by `wife’ under Section 125 of Criminal Procedure Code especially having regard to explanation under clause (b) of the Section.

11.Thus, the question that arises is whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance.

12.On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers [(1849) II HLC 331], in which their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law 5

will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.

13.In Lieutenant C.W. Campbell v. John A.G. Campbell [(1867) Law Rep. 2 HL 269], also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefore, following the ratio of the decisions of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v. The Attorney-General [(1876) 1 AC 686], that the presumption of marriage is much 6

stronger than a presumption in regard to other facts.

14.Again in Sastry Velaider Aronegary & his wife v. Sembecutty Viagalie & Ors. [(1881) 6 AC 364], it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. 15.In India, the same principles have been followed in the case of A. Dinohamy v. W.L. Balahamy [AIR 1927 P.C. 185], in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

7

16.In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors. [AIR 1929 PC 135], the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. 17.In the case of Gokal Chand v. Parvin Kumari [AIR 1952 SC 231], this Court held that continuous co- habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. 18.Further, in the case of Badri Prasad v. Dy. Director of Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy 8

burden lies on him who seeks to deprive the relationship of legal origin.

19.Again, in Tulsa and Ors. v. Durghatiya & Ors. [2008 (4) SCC 520], this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.

20.Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, a legal member of Viceroy’s Council, described the object of Section 125 of the Code (it was Section 536 in 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences.

21.Then came the 1898 Code in which the same provision was in Chapter XXXVI Section 488 of the Code. The exact provision of Section 488(1) of the 1898 Code runs as follows:

“488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the 9

District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.”

22.In Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521], the Supreme Court observed with respect to Chapter XXXVI of Cr.P.C. of 1898 that provisions for maintenance of wives and children intend to serve a social purpose. Section 488 prescribes forums for a proceeding to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief.

23.In Nanak Chand v. Chandra Kishore Aggarwal & Ors. [1969 (3) SCC 802], the Supreme Court, discussing Section 488 of the older Cr.P.C, virtually came to the same conclusion that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties.

10

24.In Captain

Ramesh

Chander Kaushal v. Veena Kaushal

and Ors. [AIR 1978 SC 1807], this Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Speaking for the Bench Justice Krishna Iyer observed that- “We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause- the cause of the derelicts.” (Para 9 on pages 1809-10)

11

25.Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife’ the Court held:

“…The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife’ consistent with the objective… ” 26.Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage 12

without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent. 27.The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it recommended that the word `wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period. 28.The Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum & Ors. reported in [(1985) 2 SCC 556], considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The 13

Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. 29.In a subsequent decision, in Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr. [(1999) 7 SCC 675], this Court held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 of IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. (See para 9)

14

30.However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, reported in AIR 1988 SC 644, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. (See para 6). The learned Judges also held (paras 4 & 8) that the expression `wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

31.Again in a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and others, reported in AIR 2005 SC 1809, this Court held however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife’. The Bench held that this inadequacy in law can be amended only by the Legislature. While coming to the aforesaid finding, 15

the learned Judges relied on the decision in the Yamunabai case (supra).

32.It is, therefore, clear from what has been discussed above that there is a divergence of judicial opinion on the interpretation of the word `wife’ in Section

125.

33.We are inclined to take a broad view of the definition of `wife’ having regard to the social object of Section 125 in the Code of 1973. However, sitting in a two-Judge Bench, we cannot, we are afraid, take a view contrary to the views expressed in the abovementioned two cases.

34.However, law in America has proceeded on a slightly different basis. The social obligation of a man entering into a live-in relationship with another woman, without the formalities of a marriage, came up for consideration in the American courts in the leading case of Marvin v. Marvin [(1976) 18 Cal.3d 660]. In that context, a new expression of 16

`palimony’ has been coined, which is a combination of `pal’ and `alimony’, by the famous divorce lawyer in the said case, Mr. Marvin Mitchelson.

35.In the Marvin case (supra), the plaintiff, Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement which provided that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” The parties allegedly further agreed that Michelle would “render her services as a companion, homemaker, housekeeper and cook.” Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. The Supreme Court of California held as follows:

(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision.

17

(2) The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

36.Though in our country, law has not developed on the lines of the Marvin case (supra), but our social context also is fast changing, of which cognizance has to be taken by Courts in interpreting a statutory provision which has a pronounced social content like Section 125 of the Code of 1973. 37.We think the larger Bench may consider also the provisions of the Protection of Women from Domestic Violence Act, 2005. This Act assigns a very broad 18

and expansive definition to the term `domestic abuse’ to include within its purview even economic abuse. `Economic abuse’ has been defined very broadly in sub-explanation (iv) to explanation I of Section 3 of the said Act to include deprivation of financial and economic resources.

38.Further, Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125 Cr.P.C. [Section 20(1)(d)]. 39.Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act.

40.In terms of Section 26 of the Act, these reliefs mentioned above can be sought in any legal proceeding, before a civil court, family court or a 19

criminal court, affecting the aggrieved person and the respondent.

41.Most significantly, the Act gives a very wide interpretation to the term `domestic relationship’ as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of `domestic relationship’ under Section 2(f) of the Act.

42.Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act. 43.We are thus of the opinion that if the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. It seems to us that the same view is confirmed by Section 26 of the said Act of 2005.

20

44.We believe that in light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C. and accordingly, a broad interpretation of the same should be taken. 45.We, therefore, request the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

21

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

46.We are of the opinion that a broad and expansive interpretation should be given to the term `wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section

125.

47.We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual. 22

…………………J.

(G.S. SINGHVI)

…………………J.

(ASOK KUMAR GANGULY)

New Delhi

October 07, 2010

Categories: DV Judgements, Judgement

HC: 125 CrPC dismissed, DV dismissed, Divorce granted: Dream come true for husband :)

Gujrat HC: Husband in jail for non payment of maintenence

January 13, 2011 1 comment

CR.RA/653/2010 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 653 of 2010

=========================================================

NARESHBHAI MAGANBHAI PRAJAPATI – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

========================================================= Appearance :

THROUGH JAIL for Applicant(s) : 1, MR DC SEJPAL, APP for Respondent(s) : 1, None for Respondent(s) : 2,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 11/01/2011

ORAL ORDER

This application is received through jail. The petitioner has been ordered to undergo sentence of 240 days for non-payment of maintenance to his wife which is accumulated to more than Rs.76,000/-. In this application, no grounds are made out why the said order of sentence should be set aside and the petitioner should be released. The petition is therefore dismissed. He, however, would have liberty to file proper application indicating the reasons why his early release is necessary. With these observations, the petition is disposed of. The order be communicated to the petitioner in jail.

(Akil Kureshi, J.)

Categories: Judgement

Gujrat HC: Multiple maintenance is not illegal

SCA/15511/2010 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 15511 of 2010

=========================================================

KAUSHIKBHAI DHULABHAI DARJI – Petitioner(s)

Versus

PRAGNABEN KAUSHIKBHAI DARJI D/O RAGHUBHAI BHAGWANDAS – Respondent(s)

========================================================= Appearance :

MR BHARAT JANI for Petitioner(s) : 1,

None for Respondent(s) : 1,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE KS JHAVERI

Date : 11/01/2011

ORAL ORDER

1. By way of this petition, the petitioner has prayed to quash and set aside the impugned order dated 08.04.2010 passed by the learned Principal Senior Civil Judge, Mehsana below application Exh. 24 in H.M.P. No. 27 of 2009 and the order dated 30.09.2010 passed by the learned Additional District Judge, Mehsana in Civil Revision Application No. 2 of 2010 whereby the said application was rejected.

2. The short facts of the case are that the respondent-wife had preferred Criminal Misc. Application No. 730 of 2007 under Section 125 of Cr. P.C. before the trial Court claiming maintenance. The trial Court after hearing the parties, vide order dated 25.02.2009 allowed the said application and fixed the maintenance allowance at Rs.600/- per month. Against the said order, the respondent preferred Criminal Revision Application No. 47 of 2009 before the Criminal Court, which came to be allowed vide order dated 01.06.2009. Against the said order, the petitioner preferred Special Criminal Application No. 1575 of 2009 before this Court, This Court vide order dated 03.02.2010 allowed the said application and set aside the order dated 01.06.2009 passed by the Criminal Court.

2.1. Against the said order, the respondent-wife preferred an interim application under Section 9 of the Hindu Marriage Act, for interim maintenance, which came to be allowed vide order dated 08.04.2010. Being aggrieved by the said order, the petitioner preferred Civil Revision Application No. 2 of 2010 before the revisional Court. The revisional Court vide order dated 30.09.2010 rejected the said application. Hence, this petition.

3. Heard learned counsel for the petitioner and perused the documents on record. The petitioner had filed a revision application in question against the order passed by the trial Court on an interim application whereby, the petitioner has been directed to pay an amount of Rs.400/- per month as maintenance to the respondent herein. It appears from the record that in the separate proceedings filed under Section 125 of Cr. P.C. the concerned criminal Court has also directed the petitioner to pay an amount of Rs.600/- per month as maintenance to the respondent. One of the contention raised by the petitioner was that when the criminal Court concerned had already directed the petitioner to pay maintenance to the respondent which the petitioner has been paying, then the trial Court in the H.M.P. Proceedings ought not to have ordered the petitioner to pay the maintenance on an interim application. However, I am not impressed by the above contention raised by the petitioner inasmuch as by now it is well settled that the proceedings under H.M.P. and the proceedings under Section 125 of the Cr.P.C. are totally different and a person can seek maintenance under both the proceedings. Therefore, so far as interim maintenance under two different acts are concerned, the same is permissible.

4. So far as the income of the petitioner is concerned, the revisional Court has recorded that the petitioner was earning Rs.2,500/- per month as salary from the Milk Co-operative Society and another Rs.4,000/- per month by doing additional work. Considering the income of the petitioner and the present day expenditure, the amount of maintenance awarded by the trial Court is just and reasonable. In my view the revisional Court has rightly appreciated the law on the subject and has rejected the revision application of the petitioner. I am in complete agreement with the reasonings given by the revisional Court in the impugned order and hence, find no reasons to interfere with the same.

5. Consequently, the petition is dismissed. No order as to costs.

[K.S. JHAVERI, J.]

Categories: Judgement, Judgement

All State amendments to Section 125CrPC are invalid

Bench: M Katju, G S Misra

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 107 OF 2011 (arising out of S.L.P. (Crl) No(s).6568 of 2009) MANOJ YADAV Appellant(s) VERSUS

PUSHPA @ KIRAN YADAV & ORS. Respondent(s) O R D E R

Heard learned counsel for the parties. We also wish to express our appreciation of Ms. Kamini Jaiswal, learned counsel, whom we had appointed as Amicus Curiae in the case, and she has been of great assistance to us.

Leave granted.

This Appeal has been filed against the impugned judgment of the High Court of Madhya Pradesh, Bench at Gwalior, dated 23.01.2009 passed in Criminal Revision No. 12/2008. That judgment was given in a criminal revision filed against the order dated 04.10.2007 of the learned Additional Family Court, Gwalior granting maintenance of Rs. 1,500/- per month under Section 125 Cr.P.C. to respondent No. 1. Respondent No. 1 by means of her criminal revision applied for enhancement of the maintenance. :1:

By the impugned judgment the High Court has granted a sum of Rs. 4,000/- per month as maintenance with effect from

01.01.2009 to the wife-respondent No. 1 in this case. That order has been challenged before us.

Learned counsel for the appellant submitted that the amount which could be granted as maintenance under Section 125 Cr.P.C. in the State of Madhya Pradesh could at most be Rs. 3,000/- in view of the amendment to Section 125 Cr.P.C. by Madhya Pradesh Act 10 of 1998. It appears that Section 125 Cr.P.C. has been further amended in Madhya Pradesh by a subsequent amendment by Madhya Pradesh Act 15 of 2004 which does not contain any upper limit in the maintenance to be granted under Section 125 Cr.P.C. and it is left to the discretion of the magistrate. Hence, there is no substance in the submission of the learned counsel for the appellant.

Moreover, we are of the opinion that after the amendment to Section 125 Cr.P.C., which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words “not exceeding five hundred rupees in the whole”, all State amendments to Section 125 Cr.P.C. by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid. :2:

For the reasons given above, there is no merit in the Appeal and it is dismissed accordingly. …………………..J.

(MARKANDEY KATJU)

…………………..J.

(GYAN SUDHA MISRA)

NEW DELHI;

JANUARY 11, 2011.

Categories: Judgement

No maintenance to wife who failed to prove allegations

December 1, 2010 1 comment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10

CASE NO.:

Appeal (crl.) 1059 of 2003

PETITIONER:

Deb Narayan Halder

RESPONDENT:

Vs.

Smt. Anushree Halder

DATE OF JUDGMENT: 26/08/2003

BENCH:

N. SANTOSH HEGDE & B. P. SINGH.

JUDGMENT:

JUDGMENT

(Arising out of Special Leave Petition (Crl.) No.4047 of 2002)

B.P. SINGH, J.

Leave granted.

The appellant herein is the husband of the respondent.

He has preferred this appeal against the judgment and order

of the High Court of Judicature at Calcutta in CRR No. 973

of 2001 dated 26.11.2001 whereby the High Court while

allowing the Revision Petition preferred by the respondent

directed the appellant to pay a sum of Rs.1500/- per month

by way of maintenance to the respondent and also to pay

costs of Rs.2000/-. While doing so it set aside the order of

the Judicial Magistrate, First Class, Sealdah dated

15.12.2000 passed on the application filed by the respondent

under Section 125 Cr. P.C., in so far as the learned

Magistrate refused the prayer of the respondent for grant of

maintenance to her. The learned Magistrate, however, had

directed the appellant to pay a sum of Rs.1500/- per month

for the maintenance of his son who was residing with the

respondent.

It is not in dispute that the appellant and the

respondent got married on 24th February, 1985. A son was

born to them on 14th January, 1987. They continued to live

together for many years at different places around the city of

Calcutta. On 11th March, 1997, the respondent left her

matrimonial home along with her son and came to reside

with her parents in Calcutta. According to her, she was

tortured over the years by the appellant and ultimately on

11th March, 1997, the appellant forced her to leave her

matrimonial home and threatened her with dire

consequences if she did not do so. For fear of her life and

the life of her son she was compelled to leave the

matrimonial home on that day. Only 4 days later, on 15th

March, 1997, she filed an application under Section 125

Cr.P.C. claiming maintenance for herself and her son.

In her application the respondent alleged that within

15 days of the marriage the appellant started torturing her

both mentally and physically on account of the fact that the

appellant was not satisfied with the meagre dowry brought

by her and also on account of the fact that her appearance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10

appeared to the appellant to be ugly. According to the

respondent, the appellant is quarrelsome by nature and he

had the habit of causing annoyance and disturbances to her

for petty reasons. He did not give her the respect due to a

wife and treated her like a maid servant. She tolerated the

cruel treatment meted out to her for many years but

ultimately when she was threatened on 11th March, 1997 by

her husband, she had no option but to leave her matrimonial

home out of fear. She was thereafter forced to live with her

parents. She further stated that her husband was a bank

employee drawing a salary of about eight to ten thousand

rupees per month while she had no source of income. She,

therefore, claimed a sum of Rs.1500 each by way of

maintenance for herself and for her son, and also claimed

costs.

In reply, the appellant stated that he had not

demanded any dowry at the time of marriage nor was any

dowry given. Some gifts were no doubt given to him as well

as his wife which were in the custody of his wife. He did

not torture her nor did he ever misbehave with her for the

reason that she had brought a meagre dowry or that she was

not good looking or for any other reason. However, since

May, 1996 his mother-in-law as well as his wife started

insisting that he should shift his residence to Calcutta. They

picked up a quarrel with him on this issue and in the process

they even abused him. The brother of the respondent and

some others who had come to his house assaulted him,

which compelled the appellant to lodge a report with the

police. After lodging of the report the behaviour of his wife

and mother-in-law became worse, so much so that the

respondent had mixed some poisonous substance in his

drinking water after consuming which the appellant fell ill.

He had lodged a General Diary Entry No.207/97 at the local

police station. He denied the allegations made in the

application and stated that on 11th February, 1997, the

respondent had gone away with her mother along with her

son and came back only on 16th February, 1997. They were

still insisting on the appellant shifting to Calcutta and on his

refusal to do so he was assaulted for which he had lodged a

complaint at the local police station. On 11th March, 1997,

the respondent with her son left on her own after their son

completed his school examination on that day. She left the

home without his consent and during his absence. She did

so on her own without any justifiable cause and only to

compel him to shift his residence to Calcutta. He was still

willing to live with her.

Before the learned Magistrate the respondent

examined three witnesses namely, herself PW-1, her

mother as PW-2 and a bank employee PW-3. On the other

hand, apart from examining himself as OP W-1, the

appellant examined eight other witnesses to prove that he

had never treated the respondent with cruelty, and also to

prove the complaints lodged with the police and some

letters.

The learned Magistrate after examining the evidence

on record came to record the following findings :-

1. There is no evidence to prove that the appellant

ever demanded dowry from the parents of the respondent

before marriage or even after marriage. Even PW-1 did not

state that he had ever demanded dowry but only stated that

he was not happy with the gifts given. Even her mother,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10

PW-2 had to admit that the appellant never demanded dowry

but added that he expected dowry. The case, therefore, set

up by the respondent that on account of meagre dowry the

respondent was being harassed was not true. There was not

an iota of evidence of the fact that the appellant had at any

stage even after his marriage demanded any specific article

which was not given to him as a result of which he had

started torturing his wife. No letter was produced to prove

that the respondent ever wrote to anyone in the course of

twelve years complaining about the ill treatment given by

the appellant.

2. Though in the complaint the respondent alleged

that the appellant started torturing her within 15 days of their

marriage, according to PW-2, the mother of the respondent,

she came to know about the ill treatment of his daughter 5 to

6 years after the marriage. On the other hand in her

complaint to the police Ex. 1, PW â\200\2231 stated that she told her

parents about her being tortured by the appellant 8 years

after the marriage. All this shows that the allegations made

by the respondent about her ill treatment at the hands of the

appellant was not true.

3. Though the evidence disclosed that the parties

lived at different places around Calcutta during the period of

twelve years after marriage, no witness was examined by the

respondent to prove that she had been subjected to torture

and cruelty at the hands of the appellant.

4. As regards the second reason namely, the ugly

appearance of the respondent, though such an allegation was

made in the complaint, in the course of her deposition the

respondent did not utter one word in support of the said

allegation. Even in the police report lodged by her, there is

no allegation that she was being ill treated because of her

ugly appearance.

5. There is no evidence to suggest that in view of

their strained relationship any effort was made by the

parents or other relatives to settle their dispute and to effect

a conciliation. It appeared that the father had no say in the

matter, and he was not even examined as a witness to

support the case of the respondent.

6. Though the respondent asserted that she had

made several complaints to the police regarding her ill

treatment by the appellant no such report was proved. The

only report proved, Ex. 1 was lodged after the respondent

had left the matrimonial home.

7. Even the testimony of the respondent proves

that they regularly visited hill stations and other places of

interest on holiday trips, sometimes accompanied by the

relatives of the respondent. She also admitted that the

respondent while talking to others used to give credit to the

respondent for the good performance of their son in his

studies. She also admitted that she completed her B.A. after

marriage while living with the appellant. These facts

disclosed a normal marital relationship and the allegations of

torture and harassment did not appear to be true.

In view of these findings the learned Magistrate came

to conclusion that the respondent had left her matrimonial

home on her own and that she was not compelled by the

appellant to leave her matrimonial home, nor had he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10

threatened the respondent with dire consequences if she did

not leave his house. There was no ground for the respondent

to apprehend that if she lived with the appellant her life

would be in danger and that she will be subjected to torture

or cruelty. In sum and substance she had no justifiable

reason to desert the appellant. The fact that the application

for grant of maintenance was filed within four days of her

leaving her matrimonial home without any effort for

reconciliation, was also significant. The learned Magistrate

therefore held that the respondent having left her

matrimonial home without any justifiable ground was not

entitled to the grant of maintenance. However, since her son

was residing with her, the appellant was liable to pay

maintenance for his son. He, therefore, ordered that the

appellant shall pay a sum of rupees 1500 per month by way

of maintenance to his son.

Aggrieved by the order of the learned Magistrate the

respondent preferred a Revision Petition before the High

Court of Calcutta. A learned Judge of the High Court by his

order dated 26th November, 2001 allowed the Revision

Petition and directed the appellant to pay a sum of Rs.1500/-

per month to the respondent also for her maintenance from

the date of filing of the maintenance case and also awarded

costs. The judgment and order of the High Court leaves

much to be desired. The sole virtue of the judgment

appears to be its brevity. The learned Judge allowed the

Revision Application and set aside the order of the learned

Magistrate without even noticing the findings recorded by

the Magistrate, nor is there any discussion in the judgment

of the evidence on record. The only relevant observation in

the judgment is the following :-

” I have perused the evidence of P.W.1 (the

Petitioner herself) and the evidence of PW 2, her

Mother and I find that the Petitioner could prove

her case quite properly. It transpires from the said

evidence that the Petitioner had sufficient reason

for staying away from her matrimonial home as

she was subjected to torture and neglect. On the

contrary, the evidence of the Opposite Party was a

feeble attempt to ward off the allegations made

against him and were not quite convincing. The

evidence of O.P.W. No. 2 who went to make

payment pursuant to the directions of O.P.W. No.

1 does not also appear to be quite convincing. The

evidence of O.P.W. No. 3 in whose house the

Opposite Party has been residing was the Father of

his friend further appears to have been tuned to

suit the case of the Opposite Party. So, also the

evidence of Opposite Party No. 4.

Accordingly, I am of the view that the

finding of the learned Magistrate refusing the

prayer of the Petitioner for maintenance cannot

stand and she is entitled to an order of maintenance

as otherwise she has been able to prove her case

and the finding of the learned Magistrate that she

“has left the house of O.P. without any just ground

and has not been succeeded to establish the

apprehension of danger to her life she is not

entitled to get maintenance from the O.P.” cannot

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10

be accepted.”

The appellant has impugned the aforesaid judgment of

the High Court before us. We had summoned the parties to

explore the possibility of a conciliation but counsel for the

parties informed us that the respondent was not willing to

live with the appellant.

Learned counsel for the appellant submitted before us,

and with justification, that the judgment and order of the

High Court does not disclose application of mind to the

evidence on record, or to the findings recorded by the Trial

Court, which were sought to be set aside by the impugned

judgment and order. The finding of the High Court is as

vague as it can be and it is not possible to cull out the

reasons which persuaded the learned Judge to set aside the

findings recorded by the Trial Court. We have earlier

quoted the relevant part of the judgment which justifies the

criticism of the learned counsel. It is well settled that the

Appellate or Revisional Court while setting aside the

findings recorded by the Court below must notice those

findings, and if the Appellate or Revisional Court comes to

the conclusion that the findings recorded by the Trial Court

are untenable, record its reasons for coming to the said

conclusion. Where the findings are findings of fact it must

discuss the evidence on record which justify the reversal of

the findings recorded by the Court below. This is

particularly so when findings recorded by the Trial Court are

sought to be set aside by an Appellate or Revisional Court.

One cannot take exception to a judgment merely on the

ground of its brevity, but if the judgment appears to be

cryptic and conclusions are reached without even referring

to the evidence on record or noticing the findings of the

Trial Court, the party aggrieved is entitled to ask for setting

aside of such a judgment. In normal course we would have

remanded the matter to the High Court for a fresh

consideration of the evidence on record, but having regard to

the nature of the dispute, we do not consider it necessary to

prolong the proceeding any further, particularly when the

evidence has been placed before us, and with the assistance

of counsel appearing for the parties we have gone through

the evidence on record. We, therefore, proceed to consider

the evidence on record and dispose of the matter finally.

The respondent was examined as PW-1. In her

deposition, she stated that within 15 to 20 days of the

marriage the appellant started ill treating her without any

reason and even went to the extent of slapping and kicking

her. This was because the articles gifted to them were not to

his liking and he needed more. He used to quarrel with her

for petty reasons and assaulted her on many occasions even

though he did not arrange for her food and clothing. Many a

times he drove her away from his house after assaulting her

and she used to come to her father’s house for shelter.

However, her parents used to persuade her to go back to the

appellant. All this her husband did because of greed. She

referred to the police reports that she lodged, but they were

not produced before the Court. She admitted that the

appellant had taken an agency of Unit Trust of India in her

name and for that purpose he had a joint account with her in

the bank.

We may only notice at this stage that there is not even

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10

a whisper by the respondent about the second ground

mentioned in the application namely that the appellant

disliked her on account of her ugly appearance. She has

referred to a few incidents which resulted in her lodging

reports before the police and her treatment in a hospital, but

no evidence was produced to prove such facts nor have the

particulars been mentioned by her. She, however, admitted

that she passed her B.A. after her marriage while she was

living with her husband. She also admitted that she and her

husband often went to different places such as Shimla,

Nainital, Kousani etc. every two years. Some photographs

were shown to her from which it appeared that on some

occasions her elder sister and brother-in-law accompanied

them. She also admitted in the course of her crossexamination

that her husband used to praise her before

others and give her credit for the good performance of her

son in studies. He used to say that their son performed well

because of the care bestowed by her. She also admitted that

she attended Yoga classes while at Dum Dum. She also

admitted that when she was taking the B.A. examination her

husband used to accompany her to the examination center.

She stated in her deposition that she was often assaulted

and was made to leave the matrimonial home and had to

seek shelter in the house of her parents but she has not stated

when she first informed her parents about such behaviour of

the appellant. There is only some indication in the

complaint Ex. 1 lodged by her after she left her matrimonial

home wherein she had stated that she had told her parents

about the behaviour of the appellant about eight years after

her marriage. According to PW-2, her mother, the

respondent had told her about such facts some 5 to 6 years

after marriage. No letter written by the respondent to

anyone has been produced to prove that she had ever

complained to anyone about her ill treatment. In substance

there is no evidence of contemporaneous nature to

substantiate the allegations regarding ill treatment of the

respondent. The only complaint which has been brought on

record is the General Diary Entry Ex. 1 recorded on 12th

March, 1997, that is, after she left her matrimonial home.

PW-2, the mother of the respondent deposed in

support of the application. She also stated that her son-inlaw,

namely the appellant, was not satisfied with the items

gifted at the time of marriage since these were not to his

liking and that is why he tortured her daughter who had told

her about such incidents. She, however, admitted that it was

only 5 or 6 years after the marriage that she came to know

that her daughter was being tortured. It appears rather

surprising that if such occurrences took place at regular

intervals, and started within 15 days of the marriage, the

mother of the respondent would have come to know about it

5 or 6 years after the marriage. However, in the General

Diary Entry got recorded by PW-1 she had stated that she

told her mother about such occurrences eight years after

their marriage. There is nothing in the evidence of PW-2 to

support the case that the appellant ever demanded dowry.

On the other hand PW-2 admitted that the appellant never

demanded any dowry even after marriage, but added that

though he never made any demand it was in his mind. From

the evidence on record it appears that the gifts given at the

time of marriage were the usual gifts which are given on

such occasions such as bed, almirah, dressing table, watch,

tape recorder and ornaments for the bride. There is no

evidence whatsoever on record to suggest that before the

marriage, at the stage of negotiations, any demand was made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10

or any particular amount or thing was asked for by the

appellant.

On the other hand the appellant has examined himself

as OPW â\200\2231 and denied all the allegations made against him.

He asserted that he had never demanded any dowry at the

time of marriage or thereafter. In fact his relatives and

friends knew that he was in principle against the dowry

system. There was, therefore, no question of his torturing

his wife for not bringing sufficient dowry or for not being

happy with the gifts brought by her. He asserted that he

took good care of his wife and even after marriage he

permitted her to continue her studies and she obtained her

B.A. degree after marriage. He had a joint account with her

which she could operate and he had secured an agency of

Unit Trust of India for her so that it could keep her engaged.

On the contrary, he stated that it was in the year 1996 that

some untoward incident took place and that was because his

mother-in-law as well as the respondent insisted that he

should shift his residence to Calcutta. About such incident

he lodged a report at the police station. He further stated

that on 11.2.1997 the parents of respondent had come to his

house and asked him to live in their house or to take a rented

house near their house in Calcutta. After some argument

they went away. Again on 16th February, 1997, they came

and threatened him that they will take away their daughter

and grandson. An incident took place on that day also,

details of which have been disclosed by him. He also stated,

as was stated by PW-1, that after marriage they frequently

visited many places of interest to them. On the first

marriage anniversary he gifted a Guitar to his wife. In the

year 1986 they went together to Varanasi, Lucknow,

Allahabad. In 1988 they went to Shillong, Guahati, Kamrup

etc. and in 1990 they went to Nainital, in 1993 to

Panchmarhi, Patni, Jabalpur etc. They had gone to Shimla,

Kulu, Manali in 1995. Some photographs were produced

which were taken when he and his wife had visited such

places. The appellant also examined witnesses to prove that

he and his wife enjoyed cordial relationship and this fact

was known to relatives and family friends. He examined

witnesses to prove that while they were together there was

no disturbance in their family life and their relationship was

cordial. The witnesses also support his case that even after

the respondent left his house he had sent his friends to her

with money for her necessary expenses. OPW-2, is a family

friend. He deposed that he had attended the function when

the appellant and respondent got married. He also stated

that he did not find any disturbance in their family life but

he came to know about it in mid 1997. He had once gone to

pay cash to the respondent but the respondent did not accept

it. OPW-3, is a landlady of the appellant. According to her

the appellant took care of his wife and son and did not

torture her even though the respondent was not very

obedient.

Surprisingly, to this witness a suggestion was made

by the cross â\200\223examining counsel that the appellant was in

love with her daughter-in-law and that is why he used to go

to her house. This was of course stoutly denied by OPW-3.

This fact has been noticed by the learned Magistrate but

counsel for the respondent in the course of his argument

before the Magistrate did not pursue this line any further and

stated that the respondent had no grievance about the

character of the appellant. We are surprised that counsel for

the respondent put such a question to the witness when such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10

was not the complaint in the application under Section 125

Cr. P.C. nor had the respondent as PW-1 or her mother as

PW-2 stated anything to the effect that the appellant had an

affair with any other lady. Without there being any basis in

the pleadings, or even in the evidence examined by the

applicant, the learned Magistrate should not have permitted

such a question to be put to the witness, particularly when it

reflected not only on the character of the appellant but also

on another lady who was not a party to the proceeding. In

our view, learned Magistrate was remiss in permitting such a

question to be put to the witness and in recording the answer

given by the witness. He should not have permitted such

matters to go on record. This however, discloses the attitude

of the respondent and the extent to which she could go to

malign the appellant and tarnish his image.

OPW-4, is a childhood friend of the appellant and was

present when the negotiation for the marriage took place.

According to him, there was no demand for dowry or any

particular article. After the marriage he used to visit the

house of the appellant and he found that their relationship

was very good. He had also gone two times to the house of

the respondent after she left her matrimonial home at the

behest of the appellant to give some money to her but she

did not accept it. OPW â\200\2236 stated that he was known to the

parties and he had once gone to the house of the father of the

respondent to hand over a letter and some cash and books

etc., but the respondent did not accept them. This witness

also stated that money orders were sent by the appellant to

the respondent.

From the evidence on record we are satisfied that the

findings recorded by the learned Magistrate were fully

justified as they were based on the evidence on record and

appear to us to be reasonable. In her application the

respondent had given two reasons for her ill treatment by the

appellant namely his greed for dowry and that she was not

good looking. So far the second reason is concerned, in the

course of her deposition, the respondent has not said a word

about it. So far as the first reason is concerned, on a careful

scrutiny of the evidence on record, we have also come to the

conclusion that no dowry was ever demanded either before

the marriage or after the marriage. Even PW-2, the mother

of the respondent had to admit that the appellant had never

demanded any dowry or gift. Of course she added that all

this was in his mind. We are, therefore, satisfied that the

Trial Court properly appreciated the evidence on record

while recording the finding that there was never any demand

for dowry by the appellant. There was, therefore, no reason

for him to ill-treat his wife for this reason. We, therefore,

find that both the reasons given in the application for her ill

treatment are non-existent.

We have also perused the evidence on record with a

view to ascertain whether for any other reason the

respondent was ill treated by the appellant. We have found

from the evidence on record that the behaviour of the

appellant has been throughout normal. It is admitted by the

parties that they frequently went during vacations to visit

different places. On some occasions they were even

accompanied by the relatives of the respondent. The

appellant permitted the respondent to continue her studies

even after her marriage and that is how she secured her B.A.

degree after marriage. He also arranged an agency of the

UTI to keep her engaged and also opened a joint account in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10

a bank which she could operate. All these facts go to

indicate that for several years after their marriage they

enjoyed normal marital relationship. In fact, there is

evidence to show that the appellant used to praise his wife in

the presence of others by complimenting her and giving her

credit for the good performance of their son in his studies.

This even the respondent has admitted in the course of her

deposition. Apart from these we find it difficult to believe

that if the appellant started torturing the respondent within

15 days of the marriage, the respondent would not have

reported this matter at least to her mother. According to her

mother, she came to know about her ill treatment 5 to 6

years after marriage. According to the respondent in her

complaint Ex. 1 she had mentioned about such happenings

to her mother about eight years after her marriage. While

there is reference to reports lodged by the respondent to the

police regarding torture by the appellant, not one such report

has been brought on record which may have been lodged

before the respondent left her matrimonial home. Even

relevant particulars are not disclosed. The only police report

brought on record is one lodged after the respondent left her

matrimonial home. We do not attach much importance to

this report. There is no contemporaneous document in the

form of letters which may have been written by the

respondent to her friends or relatives mentioning about her

being subjected to torture or harassment by the appellant.

The respondent being an educated lady, it is difficult to

believe that she would not have written letters to her friends

and relatives during the twelve years that she lived with the

appellant as husband and wife. Apart from her mother, the

respondent has produced no evidence of prove that she was

tortured and harassed by the appellant. The learned

Magistrate also noticed that though they lived at different

places around Calcutta during the period of twelve years

after their marriage, not one witness was examined by the

respondent to prove that the appellant treated the respondent

with cruelty. On the other hand, some witnesses have been

examined by the appellant to prove that they lived a normal

life and there was no question of the respondent being

tortured by the appellant for any reason whatsoever. Even

the other facts which we have found support the case of the

appellant that he had not treated the respondent with cruelty

for any reason whatsoever. Learned counsel for the

respondent laid great emphasis on the observation of the

Magistrate that the appellant being a bank employee leaving

for his work in the morning and returning late in the evening

hardly had any time to ill treat the respondent. No doubt,

there is such an observation in the order of the Magistrate,

but that is not the basis of his findings. Too much emphasis

on such a stray observation in the order is not justified.

We therefore hold that the High Court was not

justified in setting aside the findings recorded by the learned

Judicial Magistrate. We have reached this conclusion after

appreciating the evidence on record since there is no

discussion of the evidence in the judgment of the High

Court. Counsel for the respondent posed before us a

question as a part of his submission as to why the respondent

should leave her matrimonial home without any reason. In

cases where there is a dispute between husband and wife it is

very difficult to unravel the true reason for the dispute.

After separation when the relationship turns sour, all sorts of

allegations and counter allegations are made against each

other. Evidence of contemporaneous nature therefore plays

an important role in such cases as it may reveals the thinking

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10

and attitude of the parties towards each other at the relevant

time. Such evidence is usually found in the form of letters

written by the parties to each other or to their friends and

relatives or recorded in any other document of

contemporaneous nature. If really the respondent was

subjected to cruelty and harassment in the manner alleged by

her, we have no doubt she would have written about such

treatment to her friends and relatives with whom she may

have corresponded. The reports allegedly made by her to

the police may have thrown some light on this aspect of the

matter. Such evidence is completely absent in this case. It

appears to us that the parties lived happily for many years

after the marriage till about the year 1996, whereafter there

was some misunderstanding which ultimately resulted in

their separation. Why this happened, it is difficult to

fathom, but the evidence on record does not convince us that

the respondent was subjected to torture and harassment by

the appellant, and certainly not for the reasons alleged by

her. The Court is not permitted to conjecture and surmise.

It must base its findings on the evidence produced before it

by the parties. The enquiry by the Court is restricted to the

evidence on record and the case pleaded by the parties. It is

not permissible to the Court to conjecture and surmise and

make out a third case not pleaded by the parties only to

answer the query such as the one posed to us.

In the result this appeal is allowed and the impugned

judgment and order of the High Court is set aside.

During the pendency of the proceeding before this

Court it was contended by the respondent that the appellant

had not paid the amount which was payable by way of

maintenance to the son. We had directed the appellant to

pay up the arrears of maintenance and according to the

appellant the amount has been paid. The respondent,

however, has raised some dispute about the amount payable

and according to her some amount is still due. We do not

wish to express any opinion on this dispute and leave it to

the parties to take appropriate proceeding before the

appropriate forum, if so advised.

Categories: Judgement

wife staying separately without sufficient cause she is not eligible for maintenance

December 1, 2010 1 comment

In the high court of State of Punjab and Haryana at Chandigarh

Criminal Misc. No.M-24684 of 2008 (o &M)

POONAM                                                                                                    …Petitioner

VERSUS

MAHENDER KUMAR                                                                            …Respondent

 

Criminal Misc. No.M-24684 of 2008 (O&M)

Present:         Mr.P.L. Goyal,  Advocate,

for the  petitioner.

Mr. S.D. Bansal,  Advocate,

for the  respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the  same  time,   affirming  the  finding    recorded    by  the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and  have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only  in  getting    maintenance allowance     and  taking

 

-3-

Criminal   Misc. No.M- 24684 of 2008  (O&M)

divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the  above,    the present petition   is  dismissed being  without any merit.

March  19  , 2009.                                                (   MOHINDER  PAL )

ak                                                                                  JUDGE

Categories: Judgement