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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: husband has to maintain wife at any cost…Both staying separately from 7 years

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

JUDGMENT

Om Prakash Vs. State of Rajasthan & Anr.

(S.B. Criminal Revision Petition No.1220/2010)

S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C.

Date of Order :- April 29, 2011

PRESENT

HON’BLE MR. JUSTICE R.S. CHAUHAN

Mr.Arvind Gupta, for the petitioner.

Mrs.Alka Bhatnagar, Public Prosecutor.

Mr.Laxmi Kant Sandilya, for the respondent.

REPORTABLE

BY THE COURT:

Aggrieved by the order dated 07.02.2009, passed by the Additional Chief Judicial Magistrate No.2, Jaipur District, Jaipur, whereby the learned Magistrate has allowed the application of the respondent-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’, for short) and aggrieved by the order dated 23.10.2010, passed by the Additional District and Session Judge No.2, Jaipur District Jaipur, whereby the learned Judge has upheld the former order, the petitioner has approached this Court.

The brief facts of the case are that the respondent-wife filed an application under Section 12 of the Act against the petitioner-husband before the trial court wherein she claimed that she got married with the petitioner twelve years back in Jaipur. But ever since her marriage, her in-laws and husband have tortured her for dowry demands. She further claimed that due to the torture committed on her, she is living separately from the petitioner since last seven years. Thus, she prayed for maintenance. The respondent-husband filed reply to the application and denied the contents thereof. After hearing both the parties, vide order dated 07.02.2009, the learned trial court allowed the application and directed the petitioner to pay Rs.800/- per month as maintenance to the respondent-wife. Being aggrieved by the said order, the petitioner-husband filed an appeal before the appellate court. However, vide order dated 23.10.2010, the learned appellate court upheld the order dated 07.02.2009 and dismissed the appeal. Hence, this petition before this Court.

Mr. Arvind Gupta, the learned counsel for the petitioner, has vehemently contended that according to the complainant herself, she was married with the petitioner twelve years prior to 2008. Moreover, according to her, the petitioner and the respondent are living separately ever since 2001. Therefore, ever since 2001, no act of domestic violence has been committed. Yet, both the learned courts below have allowed an application under Section 12 of the Act. Since the Act came into force on October 26, 2006, the Act cannot be given a retrospective effect and cannot be made applicable to the alleged acts of domestic violence, which may have taken place prior to 2001. In order to buttress this contention, the learned counsel has relied upon the case of Hema @ Hemlata (Smt.) & Anr. Vs. Jitender & Anr. [2009 (1) Cr.L.R. (Raj.) 291].

On the other hand, Mr. Laxmi Kant Sandilya, the learned counsel for the respondent-wife, has strenuously contended that Section 3 of the Act defines the term domestic violence which includes economic abuse. An explanation in Section 3 of the Act defines the term economic abuse as the denial of maintenance and denial of Stridhan. Although it is true that the parties have been living separately since 2001, but the fact remains that after the Act came into force in 2006, even thereafter, the respondent-wife is not being maintained by the petitioner-husband. Therefore, her economic right to maintenance is being violated. Since the civil wrong is continuously being violated, therefore the Act is certainly applicable. Hence, the question of retrospective application of the Act does not even arise. In rejoinder, Mr. Gupta has contended that since the respondent-wife is not living with him, the Act cannot be applied upon him. Moreover, since he happens to be a handicapped person, the direction to pay Rs.800/- per month, imposes a harsh financial burden upon him, which he cannot possibly discharge.

Heard the learned counsel for the parties, perused the impugned order as well as the case law cited at the Bar.

Section 3 of the Act defines the term domestic violence as under :

3. Definition of domestic violence.-

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-

For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband. In case the said right is violated as a civil wrong the Act provides a remedy to the aggrieved person. Admittedly, even after coming into force of the Act on October 26, 2006, the respondent-wife is not being maintained by the petitioner-husband. Therefore, she is being subjected to economic abuse. Since a civil wrong is continuously being committed after October 26, 2006, obviously the Act would apply to the petitioner. Therefore, the question of retrospective application of the Act does not even arise in the present case. The case of Hema @ Hemlata (Smt.) (Supra), does not come to the rescue of the petitioner-husband. For, the case of Hema @ Hemlata (Smt.) (Supra) and the present case are distinguishable on the factual matrix itself. In the case of Hema @ Hemlata (Smt.) (Supra), admittedly the couple was divorced in the year 2003 and the act of domestic violence alleged against the husband was prior to the year 2003. Since the couple was divorced in 2003, since the couple was living separately since 2003, the question of committing domestic violence post 2006 did not even arise. Therefore, this Court had opined that the Act cannot be given retrospective effect and cannot be applied to pre-2006 acts and omissions. However, in the present case, the marriage continues to subsist; the parties are living separately since 2001. But the facts remains that after 2006, no maintenance is being paid by the respondent-husband to the respondent-wife. Thus, as stated above, the economic rights are being violated by the petitioner-husband post-2006. Hence, the Act is certainly applicable in the present case. Therefore, the ratio laid down in the case of Hema @ Hemlata (Smt.) (Supra) is inapplicable to the present case. The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Therefore, the contention that merely because the petitioner-husband happens to be a physically challenged person, the Act is inapplicable to him, the said contention is unsustainable.

Moreover, poverty is not a defence against the right of a woman. Therefore, the petitioner is both legally and morally bound to pay maintenance of Rs.800/- per month to the respondent-wife.

Furthermore, the Act does not require that the aggrieved person must stay with the offending husband. Hence, merely because the respondent-wife is not staying with the petitioner-husband, it would not absolve the husband from his liability under the Act. Therefore, the contention raised by the learned counsel for the petitioner is without any foundation.

For the reasons stated above, this Court does not find any illegality or perversity in the impugned orders. This petition, being devoid of any merit is, hereby, dismissed. The stay petition also stands dismissed.

(R.S. CHAUHAN) J.

Manoj solank

Categories: DV Judgements

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

Categories: Judgement

HC: After getting Ex Parte Divorce if husband marries again then first wife only can claim Permanent Alimony

L.MOHAPATRA, J & C.R.DASH, J.

W.P.(C) NO.14412 OF 2008 ( Decided on 11.08.2010).

SIDDHARTH DIXIT .. Petitioner.

.Vrs.

SMT. SUJATA DIXIT Opp.Party.

CIVIL PROCEDURE CODE -1908(ACTNO. 5 OF 1908) ORDER-9 RULE-13

For Petitioner – M/s. Yeesan Mohanty, B.C.Mohanty & G.N.Dash.

For Opp.party – M/s. S.K.Padhi, M.Padhi, G.Misra, & A.Das.

M/s. G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty

& B.K.Sahoo.

L.MOHAPATRA, J. This writ application is directed against the order dated 2.9.2008 passed by the learned Judge, Family Court, Rourkela in Misc.Case No.5 of 2008 filed under Order 9, Rule 13 of the Code of Civil Procedure( in short ‘C.P.C.’) for setting aside the ex parte decree of divorce.

2. The petitioner and the opposite party got married on 18.2.1991 as per Hindu rites and customs at Kolkata. Both of them were blessed with two children, a son namely, Siddhant in the year 1994 and a daughter namely, Shraddha in the year 1999. There were differences between both of them during this period and subsequently the relationship became such that they had to remain away from each other. The petitioner thereafter filed Civil Proceeding No.227 of 2005 in the court of the learned Judge, Family Court, Rourkela seeking for divorce. Notice was issued to the opposite party but, the same could not be served. Thereafter, steps for service of notice as provided under Order 5, Rule 20 C.P.C. were taken and in spite of paper publication, the opposite party having not appeared in the case, an ex parte

decree of divorce was passed on 9.3.2006. After waiting for the appeal period, the petitioner contracted second marriage with another woman. The opposite party coming to know about the ex parte decree, filed Misc.Case No.5 of 2008 before the learned Judge, Family Court, Rorurkela under Order 9, Rule 13 C.P.C. to set aside the ex parte decree. In the impugned order, the learned Judge, Family Court having set aside the ex parte decree, this writ application has been filed challenging the same.

3. As it appears from the discussion made by the learned Judge, Family Court in paragraphs 3, 4, 5 and 6 of the impugned order, after filing of the Civil Proceeding, notice was issued to the opposite party, who was staying at Kolkata then. Notice could not be served due to want of time and an application was filed by the petitioner for substituted service under Order 5, Rule 20 C.P.C.. The said petition having been allowed, notice was published in the ‘Times of India’. In spite of publication of notice, opposite party having not appeared, an ex parte decree was passed by the court. In the application filed under Order 9, Rule 13 C.P.C., the learned Judge, Family Court came to hold that there was no material before the court to come to a conclusion that the opposite party was avoiding service of notice on her and in absence of such a finding, the application filed by the petitioner under Order 5, Rule 20 could not have been allowed and, therefore, the substituted service made by the petitioner by way of paper publication cannot be held to be a valid service of notice and, accordingly, the ex parte decree of divorce is liable to be set aside.

4. Shri Yeesan Mohanty, learned Senior Counsel appearing for the petitioner assailed the impugned order stating that after the ex parte decree was passed, the petitioner waited for the appeal period to be over and, thereafter married for the second time. Under these circumstances, application under Order 9, Rule 13 C.P.C. could not have been allowed and the only course open to the opposite party was to pray for permanent alimony. In this connection, reliance is placed by the learned Senior Counsel on a decision of the Allahabad High Court in the case of S.P.Srivastva Vrs. Smt. Premlata Srivastava reported in A.I.R. 1980 Allahabad 336. In the said reported case, the husband filed a suit for divorce under Section 13 of the Hindu Marriage Act. The suit was decreed ex parte on 2.6.1973. The wife filed an application under Order 9, Rule 13 C.P.C. on 15.4.1976 for setting aside the ex parte decree on the allegation that she had never been served with summons on divorce petition. The husband had contracted a second marriage with another woman on 14.4.1976. The trial court having allowed the application filed by the wife under Order 9, Rule 13 C.P.C., the matter was brought before the High Court. The High Court on consideration of different orders passed by the trial court came to a finding that there were some irregularities in service of summons but that would not be a ground for setting aside the ex parte decree and allowed the revision.

5. Though the above decision is silent about the submission of Shri Y. Mohanty, learned Senior Counsel for the petitioner that the only option available to the opposite is to claim for permanent alimony, another decision of Rajasthan High Court supports such a submission. In the case of Surrender Kumar Vrs. Kiran Devi reported in AIR 1997 Rajasthan 63, it was held that after an ex parte decree of divorce is passed, if the husband has contracted a second marriage after expiry of appeal period, the petition filed under Order 9, Rule 13 C.P.C. at the instance of the wife is not maintainable and the wife can file an application under Section 25 of the Hindu Marriage Act claiming permanent alimony.

6. Shri Dutta, learned counsel appearing for the opposite party submitted that the first notice issued by the court admittedly was not served on the opposite party. The subsequent publication of notice in the ‘Times of India’ in pursuance of an order passed by the court for substituted service was on a date on which the opposite party was in China and, therefore, had no scope to know about publication of such notice. This submission of the learned counsel, Shri Dutta was seriously opposed by the learned counsel appearing for the petitioner. There is no material before us to show that on the date of publication of notice in the ‘Times of India’, opposite party was in China. This point was also never taken before the trial court and had such a point been taken, the parties would have been directed to adduce evidence in this regard. Therefore, we decline to entertain a disputed question of fact raised for the first time in this writ application.

7. So far as finding of the learned Judge, Family Court in setting aside the ex parte decree is concerned, we are of the view that such a finding is not sustainable. Admittedly, notice could not be served on the opposite party on the first occasion due to want of time. Therefore, an application was filed by the petitioner under Order 5, Rule 20 C.P.C. and permission having been granted by the court, notice was published in a widely distributed English Newspaper. The court being satisfied with regard to compliance of requirement of Order 5 Rule 20 C.P.C., had permitted the petitioner to take steps for substituted service by way of publication in a widely distributed English Newspaper. Therefore, it is not open for the trial court now to say that grant of permission to the petitioner at that stage was not justified. The ex parte order has not been set aside in any other ground by the trial court in the impugned order.

8. For the reasons stated above, we are of the view that the ground on which the trial court has set aside the ex parte decree is not sustainable and, accordingly, the impugned order is set aside. The petitioner may approach the trial court in an application under Section 25 of the Hindu Marriage Act for permanent alimony in view of the changed circumstances and in the event, such an application is filed, the trial court shall permit the parties to adduce evidence and determine the permanent alimony on the basis of such evidence.

The writ application is accordingly disposed of.

Writ petition disposed of

Categories: Judgement

HC: Husband screwed in DV Act, 75000/- maintenance per month

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on : 29.04.2011

+ CS (OS) 1307/2010

EVENEET SINGH ….. Plaintiff Through : Sh. Y.P. Narula, Sr. Advocate with Ms. Shobhana

Takiar, Advocate.

Versus

PRASHANT CHAUDHRI AND ORS. ….. Defendants Through : Ms. Geeta Luthra, Sr. Advocate with Sh. Jatin Sehgal, Advocate, for Defendant No. 1.

Sh. Ankur Mahindro, Advocate, for Defendant No.2.

CORAM:

HON’BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers YES

may be allowed to see the judgment?

2. To be referred to Reporter or not? YES

3. Whether the judgment should be YES

reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

I.A. No. 1401/2011 (Under Section 151 CPC) in CS (OS) 1307/2010

%

1. This Court had by its judgment and order dated 20.12.2010 disposed of certain applications in the two pending suits.

2. By the directions contained in that judgment, the Court had upheld the right of the plaintiff in one of the suits, (hereafter referred to as “Eveneet”) to residence in terms of Section 17 of The Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as “the Domestic Violence Act”). However, the Court, on a consideration of the other materials on record formed the opinion that it would be in the best interest of the parties that Eveneet should

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 1 not continue to reside in the shared household, drawing inspiration from the judgment in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors. FAO (OS) 341/2007 (decided on 26.10.2010), as well as Section 19(1)(f) of the Domestic Violence Act, and instead directed that she ought to be given alternative accommodation. As an interim measure, she was held entitled to ` 30,000/- per month (towards rent) over and above the monthly maintenance amount determined at ` 45,000/-.

3. The operative portion of the Court’s directions contained in paras 19 to 21 are as follows: “XXXXXX XXXXXX XXXXXX

19. In the present case, Eveneet and Prashant were living together. No doubt, the suit premises are not owned by either of them; the documents on record prima facie disclose that exclusive title and right is of Kavita, the mother-in-law. Yet, having regard to the previous discussion, Kavita is undoubtedly a “respondent” in whose household, the couple lived together. The Court here cannot be oblivious of the circumstance that Prashant moved out when the relationship became stormy; the possibility of the eviction suit having been filed as a pre-emptive move, to bring it within the Batra formulation cannot be ruled out at this stage. In the context,the Court holds that what cannot be done directly, cannot be achieved indirectly through stratagem. If the Court can look beyond the facts, and in a given case, conclude that the overall conspectus of circumstances, suggests manipulation by the husband or his relatives, to defeat a right inhering in the wife, to any order under Section 19, such “lifting of the veil” should be resorted to. Therefore, the plaintiff indeed has a right of residence under the Domestic Violence Act.

20. Now the question is what should be the order that the Court should make. As held earlier,though Eveneet has made a complaint under the Domestic Violence Act, in which orders have not been made, yet this Court also has concurrent jurisdiction under Section 26 to make appropriate orders in this regard, and mould the relief. The documentary evidence also suggests that Kavita is suffering from an acute cardiac condition; though Eveneets counsel submitted that the illness has been exaggerated, the Court cannot rule out aggravation, if the daughter-in-law continues in the premises, under a Court order, or the Court mandate. In this context, it has been observed by a division bench of this Court in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors., (F.A.O. (OS) 341/2007, Decided On: 26.10.2010) that

“the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property.”

The above approach is consistent with the power under Section 19 (1) (f), which enables the Court to direct “the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require “. The

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 2 plaintiff is thus, entitled to residence in a property commensurate with her lifestyle and her current residence, keeping in mind Kavitas health condition.

21. The documentary evidence and pleadings suggest that Prashants monthly outgoings in respect of the New York property are US$ 4500/-, which works out to Rs.2,05,000/-. He is also paying rent to the tune of Rs.27,000/- per month. With this expenditure, the Court can safely incur that his personal expenses would not be less than about Rs. 40,000/- per month. In these circumstances, to support this kind of lifestyle, Prashants average monthly income would not be less than Rs.450,000/- to Rs. 500,000/-. On the other hand, Eveneets income is about Rs. 50,000/- per

month; Prashant alleges it to be more. Having regard to his offer to pay Rs. 20,000/- per month towards alternative accommodation, the Court is of opinion that she should be entitled to an amount of Rs. 30,000/- per month towards rent, for alternative accommodation, and an amount of Rs. 45,000/- per month maintenance. In order to facilitate and effectuate this order, the parties are directed to appear before the Court handling the complaint under the Domestic Violence Act, on 4th January, 2011, which shall oversee that Prashant complies with Section 19 (1)(f), within ten weeks from today. Till such alternative accommodation is made available, Eveneet would be entitled to continue in the suit premises, and also entitled to receive Rs. 45,000/- per month. The application for maintenance is allowed with effect from the date it was filed; arrears shall be paid within six weeks.

4. It appears that both Eveneet and her husband Prashant have carried the said matter in appeal. Eveneet contests the operative portions, contending that she has the right to reside in the shared household whereas Prashant’s grievance in respect of the order apparently is that Eveneet is not entitled to the amounts or the alternative accommodation, as directed by the Court. Learned senior counsel for the parties have also brought to the notice of this Court that by an order dated 11.02.2011, the Division Bench had left it open to Eveneet to shift into the flat leased by Prashant which was then being used by him.

5. Learned senior counsel for Eveneet contends that since the appeals are pending, it would not be appropriate for this Court to make any determination or clarification as is being sought by Prashant in this case. It is pointed-out that Eveneet’s rights having been declared in Para 19 of the judgment, and the matter has to be relegated for appropriate effectuation by the Magistrate dealing with the complaint under the Domestic Violence Act. It is also argued that even though the Division Bench by its order of 11.02.2011 gave an option to Eveneet to shift to the premises in Defence Colony, it was just that (only an option), which she was free to accept or reject.

6. Learned senior counsel for Prashant argues that this Court ought to clarify explicitly

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 3 having regard to the directions in paras 20 and 21 that once alternative accommodation is made available or offered to Eveneet and she chooses not to accept it, her right to reside in the premises would not continue. It is submitted that this follows from a fair reading of paras 20 and 21, particularly latter portion of para 21 where even the time limit of 10 weeks has been specified.

7. This Court has considered the submissions of parties. Whilst there can be no two views on the issue that the Court upheld Eveneet’s right to shared household, equally the Court had given due consideration to Kavita’s (i.e. the mother-in-law) cardiac condition, and therefore, required that Eveneet should be given alternative accommodation within the specified time. As an interregnum, the Court had mandated that she would be entitled to ` 45,000/- per month. The reference to the Court dealing with the complaint under the Domestic Violence Act was purely a facilitating mechanism. If the rights of the parties as spelt-out in the order are understood in this perspective, it is clear that Eveneet’s right to continue in the premises was for a period of 10 weeks. Prashant is no doubt under an obligation to offer alternative accommodation this process was to be monitored by the Court dealing with the complaint under the Domestic Violence Act.

8. This Court is conscious of the further events which took place by way of an order of the Division Bench dated 11.02.2011, when Eveneet was given yet another option to move into premises leased by Prashant. Apparently, that option is still open even though she has chosen not to exercise it. Having regard to the overall circumstances, the Court clarifies that the judgment and order necessarily implied that in the event of alternative accommodation being offered “made available” to Eveneet before the concerned Court, her right to continue in the premises would cease.

9. In the light of the above clarification, the parties are relegated to the concerned Magistrate Ms. Priya Mahindra, learned MM (Saket), who is dealing with the Complaint No. 98/1. The said Court shall consider the option furnished by Prashant to Eveneet in line with this Court’s order, and make suitable orders as to whether Eveneet accepts the same or not. In the event of the Court’s determination of any premises to be appropriate or suitable, Eveneet shall be given reasonable time of two weeks to shift to the same. In the event of her failing to do so, it is open to the Defendant No. 2 to take appropriate proceedings for the implementation of the order of Court. The parties are directed to be present before the concerned Magistrate on 02.05.2011.

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 4 The said officer shall endeavor to complete the proceedings within four weeks. I.A. No. 1401/2011 is disposed of in the above terms. Order Dasti.

S. RAVINDRA BHAT

(JUDGE)

APRIL 29, 2011

‘ajk’

I.A. NO. 1401/2011 IN CS (OS) 1307/2010 Page 5

Categories: DV Judgements

HC: 498A filed oblique motive and maliciously and not honestly…Quashed

CRIMINAL MISCELLANEOUS No.11378 OF 2003 —-

In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. —-

1. SACHIDANAND SINGH, SON OF LATE PARMANAND SINGH

2. AGAM KUMAR SINGH, SON OF LATE PARMANAND SINGH

3. PANKAJ KUMAR, SON OF AGAM KUMAR SINGH

4. MADHUKAR KUMAR, SON OF AGAM KUMAR SINGH

5. SANYUKTA DEVI, WIFE OF AGAM KUMAR SINGH ALL ARE RESIDENT OF VILLAGE KAS TIKARI, POLICE STATION SULTANGANJ, DISTRICT BHAGALPUR. … … PETITIONERS.

Versus

1. THE STATE OF BIHAR

2. SHANTI DEVI, DAUGHTER OF LATE AYODHYAY MANDAL, RESIDENT OF VILLAGE SAUJUWA, POST OFFICE HATHIYOK, POLICE STATION ASARGANJ, DISTRICT MUNGER. … … OPPOSITE PARTIES. —-

For the Petitioners : M/S Krishna Prasad Singh, Sr. Adv. Mithilesh Kr. Singh, Adv.

For O.P. No.2 : M/S Bhola Prasad, Adv. Swapnil Kumar Singh, Adv.

For the State : Mrs.Indu Bala Pandey, A.P.P. —-

P R E S E N T

THE HON’BLE MR. JUSTICE RAKESH KUMAR —-

Rakesh Kumar,J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 17.4.2003 passed in Complaint Case No.1113 of 1999 by learned Chief Judicial Magistrate, Bhagalpur. By the said order, the learned Magistrate has taken cognizance of offence under Sections 498A, 323 and 341 of the Indian Penal code. 2

2. Short fact of the case is that opposite party no.2 filed a complaint, which was numbered as Complaint Case No.1113 of 1999 in the court of Chief Judicial Magistrate, Bhagalpur, alleging therein against all the petitioners for commission of offences under Sections 307, 376, 125, 147, 148, 325, 509, 498A, 323, 334, 352, 355, 358 and 34 of the Indian Penal Code. In the complaint petition, it was alleged that while the opposite party no.2 was returning from court after doing pairvi in her case and she arrived at a lonely place, all the aforesaid accused persons intercepted the complainant and forcibly took her to the house of accused persons where it was alleged that her husband petitioner Sachidanand Singh forcibly kept the complainant in a room and on force, she committed rape. It was alleged that accused persons were demanding huge amount as dowry from the complainant and she was pressurized to withdraw the case, which was instituted by her against the accused persons. On the aforesaid allegation, complaint petition was filed and after conducting enquiry, the learned Magistrate came to the conclusion 3

that since the petitioner no.1 was husband of complainant offence under Section 376 of the Indian Penal Code was not made out. However, the learned Magistrate took cognizance of offence under Sections 498A, 323 and 341 of the Indian Penal code and directed for summoning the petitioners.

3. Aggrieved with the order of cognizance, all the petitioners approached this Court by filing the present petition, which was admitted on 20.10.2005. While admitting, it was directed that during the pendency of this application, interim order passed on 27.9.2004 shall remain operative. The order of stay is still contining.

4. Shri Krishna Prasad Singh, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the present complaint petition was filed maliciously as well as by way of suppression of material fact. Learned Senior Counsel has referred to Annexure-2 to the petition, which is decree prepared in Marriage Case No.4 of 1993. It was submitted that on contest, marriage of petitioner no.1 with opposite party no.2 was 4

finally dissolved by the judgment and decree dated 4.5.1998. It was submitted that order was passed in presence of learned counsel for both the parties. It was submitted that since the marriage had already been dissolved, on contest, the opposite party no.2, by way of suppression of fact, filed the present complaint petition i.e. Complaint Case No.1113 of 1999 on 9.12.1999. It was submitted that in the complaint petition, the complainant had not even whispered that her marriage with petitioner no.1 was already dissolved by the court of competent jurisdiction and due to that reason, the learned Magistrate, while taking cognizance, had refused to take cognizance under Section 376 of the Indian Penal code. In some and substance, it was submitted that the prosecution in the present case was initiated maliciously and by way of suppression of fact and on those grounds, the entire prosecution as well as order of cognizance is liable to be set aside.

5. Shri Swapnil Kumar Singh, learned advocate appearing on behalf of opposite party no.2 has vehemently opposed the prayer 5

of the petitioners. It was argued by him that complaint petition itself constitutes commission of offences committed by all the accused persons and the learned Magistrate had conducted thorough enquiry and thereafter, he had passed the order of cognizance. According to learned counsel appearing on behalf of opposite party no.2, there is no defect in the impugned order of cognizance and as such, according to him, the petition is liable to be rejected.

6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has supported the stand taken by Shri Swapnil Kumar Singh, learned counsel appearing on behalf of opposite party no.2.

7. Besides hearing learned counsel for both the parties, I have also perused the materials available on record. On going through the allegation made in the complaint petition itself, this Court is satisfied that the allegation appears to be doubtful. Moreover, in view of annexure-2 i.e. judgment and decree of divorce passed by the competent court in Marriage Case No.4 of 1993, it is 6

evident that marriage of complainant with petitioner no.1 has come to an end on 4.5.1998. After the divorce decree, filing of the present complaint by the complainant makes it clear that the complaint was not filed fairly and honestly, rather it was filed with some oblique motive and maliciously. On the ground of malicious prosecution as well as suppression of fact, the court is satisfied that the order of cognizance is not tenable in the eye of law and it amounts to abuse of the process of the court.

8. Accordingly, the order of cognizance dated 17.4.2003 passed in Complaint Case No.1113 of 1999 by the Sub Divisional Judicial Magistrate, Bhagalpur is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.)

PATNA HIGH COURT

Dated 13.9.2010

N.A.F.R./N.H.

Categories: 498A Judgements

HC: AB can be cancelled by same session judge if it was obtained by supression of facts

Equivalent citations: 2001 CriLJ 2647, II (2001) DMC 359, 2001 (2) WLC 367
Bench: S K Garg

Smt. Sharda vs State Of Rajasthan And Anr. on 22/1/2001

ORDER

Garg, J.

1. This criminal misc. petition u/S. 482 Cr.P.C. has been filed by the accused petitioner against the order dated 16.9.1999 passed by the learned Sessions Judge, Dungarpur in Criminal Mise. Case No. 282/99 by which he cancelled the bail granted earlier to the accused petitioner u/S. 438 Cr.P.C. on 23.8.1999 in a case FIR No. 99/99, Police Station Vardha for the offence under sections 498A and 307 IPC and later on 302 IPC was added.

(2). It arises on the following circumstances:-

On 18.8.1999, the complainant Oanesh Lal lodged a report before the Police Station Vardha District Dungarpur to the effect that his sister Sarla (hereinafter referred to as the deceased) was married with Vinod S/o Lal Shanker and on 16.8.1999 her husband Vinod Kumar and mother-in-law Smt. Sharda (present accused petitioner) burnt her. On that report, FIR No. 99/99 was registered at the Police Station Vardha for the offence u/S. 307 and 498A IPC and investigation was started.

(3). It is further stated by the accused petitioner that on 16.8.1999, the deceased was admitted in the hospital and her statement was recorded where she has stated that she was preparing food on the stove and stove burst whereby her sari caught fire and she has not been burnt by anybody and in that statement, she did not utter a single word regarding ill-treatment or torture for demand of dowry.

(4). During the pendency of that FIR, a bail application u/S. 438 Cr.P.C. was presented before the learned Sessions Judge, Dungarpur on behalf of accused Vinod, husband of the deceased and Smt. Sharda, mother-in-law of the deceased (present accused petitioner) and the same was granted by the learned Sessions Judge on 23.8.1999 after perusal of the case diary.

(5). Later-on, complainant Ganesh Lal filed an application u/S. 439(2) Cr.P.C. for cancellation of the bail granted to both accused Vinod, husband of the deceased and Smt. Sharda, mother-in-law of the deceased (Present accused petitioner) on the ground that deceased had died on 23.8.1999 at Ahmedabad and her statement was recorded by the Magistrate at Ahmedabad as dying declaration on 19.8.1999 where she has specifically stated that her mother- in-law Sharda, present accused petitioner poured kerosene oil on her and lighted the fire, but this dying declaration was concealed by the present accused petitioner and obtained the bail order and it is further alleged that this dying declaration was within the knowledge of the present accused petitioner as when the statement of the deceased was recorded by the Magistrate, she was present in the hospital at Ahmedabad and thus, accused Vinod and the present accused petitioner Sharda obtained the anticipalory bail from the learned Sessions Judge, Dungarpur on 23.8.1999 by suppressing the material facts and, therefore, anticipatory bail which was granted to accused Vinod and the present accused petitioner Sharda on 23.8.1999 be cancelled.

(6). The learned Sessions Judge, Dungarpur after giving notice to accused Vinod and the present accused petitioner Sharda vide order dated 16.9.1999 cancelled the anticipatory bail granted to the present accused petitioner Sharda, mother-in-law of the deceased, but maintained the order granting anticipatory bail to accused Vinod, husband of the deceased holding inter-alia:-

1. That at the lime when he granted anticipatory bail on 23.8.1999, the fact that deceased had died at Ahmedabad and her statement was recorded by the Magistrate was not brought to his knowledge.

2. That the fact that kerosene oil was poured on the body of the deceased by the mother-in-law Sharda, present accused petitioner was also not brought to his knowledge.

3. That since these material facts were suppressed, the bail granted to the accused petitioner Sharda was liable to be cancelled and he accordingly cancelled it.

(7). Aggrieved from the said order dated 16.9.1999 passed by the learned Sessions Judge, Dungarpur cancelling bail granted earlier to the present accused petitioner Sharda, the present criminal misc, petition u/S. 482 Cr.P.C. has been filed by her with the prayer that the order of the learned Sessions Judge by which anticipatory bail granted earlier to her was cancelled, be set aside and the order of the learned Sessions Judge dated 23.8.1999 granting anticipatory bail to her may be restored.

(8). In this criminal misc, petition, it has been argued by the learned counsel for the accused petilioner:-

1. That it is well settled that once bail has been granted, same cannot be cancelled merely on the ground that higher offence has been added and there is no evidence to suggest that the accused petitioner is trying to tamper with the witnesses.

Note :- It may be stated here that after the death of the deceased on 23.8.1999 at Ahmedabad, in place of 307 IPC, Section 302 IPC was added.

2. That the bail, which was granted to the accused petitioner on 23.8.1999, was granted after seeing the case diary and, therefore, no question of suppression of material facts arises.

(9). On the other hand, the learned Public Prosecutor as well as the learned counsel for the complainant vehemently opposed this petition.

(10). I have heard the learned counsel for the accused petitioner, learned Public Prosecutor and the learned counsel for the complainant.

(11). A detailed reply has also been filed on behalf of the complainant in the present case and from that reply, one striking feature has come into light and the same is that the accused petitioner apart from this petition u/S. 482 Cr.P.C., has also filed a criminal bail application before this Court against the order dated 16.9.1999 passed by the learned Sessions Judge, by which her bail was cancelled and the same was registered as S.B. Cr. Misc. Bail Application No. 2600/2000 Smt. Sharda vs. Slate of Rajasthan. The said bail application was dismissed by this Court by a detailed order dated 8.12.1999 and a copy of that order is also available with this file. From perusing the said order dated 8.12.1999, it appears that arguments, which have been raised in this petition, were also raised by the learned counsel for the petitioner before this Court in the above bail application and the same were negatived by Hon’ble Mr. Justice Mohd. Yamin while rejecting the bail application of the accused petitioner,

(12). The next question that arises for consideration is whether in the above circumstances the order which was passed by the learned Sessions Judge, Dungarpur on 16.9.1999 by which he cancelled the anticipatory bail granted earlier to accused petitioner can be justified or not.

(13). Before proceeding further, it may be stated here that the reasons which have been assigned by Hon’ble Mr. Justice Mohd. Yamin while rejecting the bail application of the accused petitioner vide order dated 9.12.1999 are very cogent one and looking to them, this petition under Section. 482 Cr.P.C. can be dismissed straightway. All the same, to appreciate this, argument that once the bail has been granted, the same cannot be cancelled merely on the ground that higher offence has been added, has to be dealt with.

(14). Under inherent power, the High Court can cancel the bail granted to a person accused even of a bailable offence and in a proper case such power can be exercised in the interest of justice. In this respect, following authorities to the Hon’ble Supreme Court may be seen:-

1.T.H. Hussainvs. M.P. Mondkar(1)

2. Rampati vs. State of Mysore (2)

3. K.P. Tiwari vs. State of M.P. (3)

(15). Sub-section (2) of Section 439 Cr.P.C. expressly conferred powers not only to the High Court but also to the court of Session to cancel the bail. Guidelines for cancelling bail

(16). In the following cases the principles for cancelling bail have been most clearly stated by the Hon’ble Supreme Court :-

1. Talab Hari Hussan vs. Madhukar Mondkar Mondkal (supra)

2. State vs. Jagit Singh (4)

3. Ralilal Bhanji vs. Asstt. Collector of Custom (5)

4. Hajarilal Gupla vs. Rameshwar Prasad (6)

5. Gurcharan Singh vs. State (Delhi Administration) (7)

6. Delhi Administration vs. Sanjay Gandhi (8)

(17). The High Court and even the Sessions Court have powers to cancel the bail granted earlier pending the trial or investigation under Sec. 439(2) Cr.F.C. The High Court can further cancel it by exercise of its inherent jurisdiction u/S. 482 Cr.F.C., apart from powers under Article 227 of the Constitution of India.

Relevant consideration

(18). Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail.

(19). If a Court of Session had admitted an accused to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Sec. 439(2) Cr.P.C. to commit the accused to custody. A court of Session cannot cancel bail granted by him if new circumstances have not arisen after the bail was granted.

(20). In the present case, it is very much clear that when the anticipatory bail was granted by the learned Session Judge vide order dated 23.8.1999, some facts were not brought to his knowledge and the same were that dying declaration of the deceased was recorded at Ahmedabad on 19,8.1999 and thereafter, deceased died at Ahmed-abad on 23.8.1999 and in the dying declaration, she has levelled charges against the accused petitioner that the accused petitioner poured kerosene oil on her and lighted the fire. Since these are very material facts and have not been brought to the knowledge of the learned Sessions Judge when he heard the anticipatory bail application of the accused petitioner on 23.8.1999, therefore, the above circumstances ran be regarded as cogent and overwhelming circumstances and are sufficient to cancel the hail granted earlier to the accused petitioner. In other words, if the bail has been obtained by hoodwinking, that can be cancelled.

(21). Thus, looking to the entire facts and circumstances of the case, the order dated 16.9.1999 passed by the learned Sessions Judge, Dungarpur cancelling the anticipatory bail granted to the present accused petitioner on 23.8.1999 cannot be regarded as illegal one and the learned Session Judge was fully justified in passing the said order dated 16.9.1999.

(22). Hence, the argument that once bail has been granted, the same cannot be cancelled would not be helpful, to the present accused petitioner because of the simple reason that when the anticipatory bail was granted to the accused petitioner by the learned Sessions Judge vide order dated 23.8.1999, some material facts were not brought to his knowledge. Thus, the rulings relied upon by the learned counsel for the accused petitioner in the following cases would not be helpful to the present accused petitioner:-

1. Nand Ram vs. The State of Rajasthan (9)

2. Motilal & Ors. vs. Slate of Rajasthan (10)

3. Jaisa Ram & Ors vs. State of Rajasthan (11)

4. Vijendra Kumar vs. Slate of Rajasthan (12)

(23). The Court is aware of the position of law that considerations for cancelling the bail are totally different from those which are considered for granting bail. The Hon’ble Supreme Court in Aslam Babalal Desai vs. State of Maharashtra (13), has enumerated many grounds for cancellation of bail. But the present case is some what different in the manner that here the bail which was cancelled by the learned Sessions Judge was because some material facts were suppressed or new facts were not brought to his knowledge.

(24). For the reasons stated above, no interference with the order of the learned Sessions Judge, Dungarpur dated 16.9.1999 is called for in exercise of the powers u/S. 482 Cr.P.C

(25). Accordingly, this criminal misc. petition u/S. 482 Cr.P.C. is dismissed. The stay order granted by this Court on 28.10.1999 stands vacated.

Categories: Judgement

HC: Six month delay in complaint, Accused acquitted of 498A and 307

Equivalent citations: II (2000) DMC 444
Bench: S Khare

Ramkumar @ Chhota vs State Of Madhya Pradesh on 12/5/2000

JUDGMENT

S.P. Khare, J.

1. Appellant Ramkumar has been convicted under Sections 498A and 307, I.P.C. and sentenced to rigorous imprisonment for two years and three years respectively. He has also been sentenced to pay a fine of Rs. 1,000/- for the first offence and Rs. 5,000/- for the second offence.

2. After hearing the learned Counsel for both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellant for the aforesaid offences is not sustainable. Bundabai (P.W. 2) is wife of the appellant. She has three children from him. The marriage took place about 14 years ago. She has deposed that she was sleeping and at about 1 a.m. the accused poured kerosene on her and set her on fire as he suspected her fidelity. She reported the matter to the police after six months of the incident. The accused was getting her burn injuries treated by a doctor. Ralli (P.W. 3) is her father. He has deposed that his daughter Bundabai (P.W. 2) did not tell him that her husband has caused burn injuries to her. Ganeshia (P.W. 4) is mother of Bundabai (P.W. 2). She has. deposed that Bundabai (P.W. 2) told her that her husband has caused these injuries to her, and this was revealed by her in the presence of her father Ralli (P.W. 3). It is not probable that the father of the victim would not support her testimony. The evidence of both the parents is contradictory. Hira Singh Yadav (P.W. 5) has deposed that a Panchayat was convened in which Bundabai (P.W. 2) disclosed that she herself set on fire out of anger. Though this witness has been declared hostile his version finds support from the testimony of the father of Bundabai. Therefore, a reasonable doubt is created whether the accused caused burn injuries to his wife or she herself poured kerosene of her body and ignited the match stick. The medical evidence of Dr. B.P. Mishra (P.W. 1) shows that this woman had sustained burn injuries as per his report Ex. P-2 but he could not throw light on the point whether the burns were self-inflicted or caused by someone else. Bundabai (P.W. 2) has submitted an application before this Court for permission to compound the offence. As both the offences are non-compoundable the application is rejected. But the charges against the appellant are not proved beyond reasonable doubt and, therefore, he must be acquitted of those charges.

3. The appeal is allowed. The conviction and sentence are set-aside and the appellant is acquitted of the charges under Sections 498A and 307, I.P.C. Fine amount if deposited, be refunded to him.

Categories: 498A Judgements

HC: Threats & attempts to commit suicide & lodging false 498A is ground for divorce

Equivalent citations: AIR 1996 P H 98
Bench: S Saksena

Rama Kanta vs Mohinder Laxmidas Bhandula on 7/2/1995

JUDGMENT

1. The appellant wife has assailed the judgment and decree dated 5-10-1991 passed in H. M. Case No. 67 of 1988.

2. Uncontroverted facts of the case are that the appellant was married to the respondent on 6-5-1987 at Akola. The respondent is a resident of Akola, while the appellant was residing at Ludiana along with her family members. In this wedlock she gave birth to a son on 28-2-1988. Since 8-6-1988 they are living separately. The respondent served a notice Exhibit P. 43 on her to which she replied.

3. The factual matrix of the case is that the respondent filed a divorce petition against the appellant on 6-6-1988 at Akola for annulment of marriage on the ground of fraud and in the alternative for a decree for divorce on the ground of cruelty. In a nut shell the petitioner’s case was that before his marriage, the appellant’s brother Harish Kundan Lal Hora came to Akola to settle the marriage. After initial talks the respondent and his family members were invited to come to Ludhiana to approve the appellant. Thereafter in November, 1986 the respondent and his elder brother came to Ludhiana. They approved the appellant. It was agreed that the marriage will be performed at Akola and at that very time Roka ceremony was performed. In February 1987 engagement was done. Finally on 6-5-1987 they were tied together in the marital tie. On the first nuptial night, he found some scar on her abdomen. On being enquired, he was told by the appellant that many years ago she was operated for apendis. When she was in the family way, he took her to Dr. Asha (P W 5) who also finding the same scar on her abdomen enquired about it. The appellant declined to give any answer. Dr. Asha made queries through the respondent from the appellant’s brothers and sisters. Letters were exchanged, telegrams were sent, but they were only infomed that she was operated for faborid tumour.

4. In the matrimonial home the appellant’s behaviour was not cordial, She insisted that he should live seperately with her. Thus he was compelled to take another apartment on rent for their living. Even thereafter she insisted that he should have no relation with his parents brothers and sisters. She always quarrelled and insulted the respondent and his family members. She refused to do any household work. When the respondent insisted to disclose the reason of scar on her abdomen, she threatened him to commit suicide in case he persisted in asking her about that scar. On many occasions, she threatened to commit suicide. Later on the respondent came to know through Ashok Kumar (PW 9) and Shri Mohan Lal Jhanji, Advocate (Court witness No. 1) that earlier the appellant was married to Ashok Kumar Kalra. She gave birth to a son from his loins and at that time she had undergone a caesarean operation. After obtaining divorce from Ashok Kumar she was married to Kurum Jhanji, but he obtained divorce against her. These facts were not disclosed to him before the settlement of marriage or even thereafter. Thus these material facts were concealed deliberately. Had he known these facts he would not have consented for marriage. Thus a fraud was committed to obtain his consent. On these facts on the ground of fraud, he prayed for annulment of marriage and on the ground of cruelty for a decree of divorce.

5. The appellant in her reply denied that before marriage she had undergone a caesarean operation. According to her, all the facts of her past life were disclosed to the respondent before marriage. When he came to Delhi to meet her, she again disclosed all those facts to him. Thus it is denied that incidents of her past life were concealed. It is also denied that her behaviour was cruel towards the respondent and his family members. No doubt they started living in a separate room, but it was not because of her insistence. The respondent was not happy with the dowry given at the time of marriage. He wanted her brother to purchase a house for him. He maltreated her even after her delivery in the hospital, thereby she had to undergo another minor operation. Thus she denied both the counts on which the petition was filed.

6. The petition was filed at Akola. The appellant filed a petition along with her affidavit in the Supreme Court and prayed that since she is residing at Ludhiana, the case be transferred to that place. Her petition was allowed by their Lordships of the Supreme Court. Hence the case came to the trial Court.

7. Parties adduced evidence in Support of their pleadings. Scanning the evidence minutely, the trial Court came to the conclusion that before marriage those facts that the appellant was married twice earlier and was divorced and she gave birth to a son and had undergone a caesarean operation were not disclosed to the respondent before marriage and thus his consent to marriage was obtained by practising a fraud. On this count, the decree for annulment was granted. Trial Court further held that the respondent has proved that the appellant treated him with cruelty and on this count also in the alternative decree for dissolution of marriage was granted.

8. The appellant’s learned Counsel stressed vehemently that before marriage respondent was informed by appellant’s brother as well as by Mukand Kulkarni and by the appellant herself that the appellant was earlier married to Ashok Kumar Kalra. In that wedlock she gave birth to a son and had undergone a caesarean operation. After obtaining divorce from him she was married to Kusum Jhanji who also divorced her. The respondent belongs to a middle class family He, his brothers and sisters are Teachers in educational institution. The respondent agreed to marry the appellant because she belongs to very rich family of Ludhiana. Her brothers own Cinema Houses and other landed properties. It was agreed that her brother will purchase a house for the respondent at Akola which he did purchase for him. The appellant is a beautiful and double Graduate woman. The respondent had no objection in marrying a divorcee as is evident from the advertisement given for his marriage in the Tribune by Mukand Kulkarni (PW 2) who was a mediator for the settlement of this marriage becuase he is an employee of Chand Threatre owned by appellant’s brothers and his brother is respondent’s neighbour at Akola. Even in the advertisement Ex. RW-2/1 it was made clear that he is willing to marry a divorcee. This advertisement was given for publication by Mukand Kulkarni (RW 2) at the behest of the respondent. Hence he argued that the respondent falsely made an accusation that the incidents of appellant’s past life were not disclosed and his consent was obtained under a fraud. Accordi ng to the petitioner-respondent Shri Mohan Lal Jhanji, Advocate, told him that earlier appellant was married to Ashok Kumar Kalra and in that wedlock she gave birth to a son, but Mohan Lal Jhanji has denied this fact.

9. The appellanl’s learned Counsel also contended that the respondent has utterly failed to prove the ground of cruelty. She was subjected to cruely and beating by the respondent. He also made it clear that the affidavit filed in the Supreme Court along-with the transfer petition bears her signatures, but she signed on blank papers without knowing their contents.

10. The respondent’s learned Counsel supported the judgment and pointed out that Mukand Kulkarni being appellant’s brother’s servant for the last 10 years has falsely stated that on the respondent’s request he got advertisement published in the Tribune about his marriage. According to him, it is proved on record that the matrimonial negotiations were going on between the parties from November 1986. In December, 1986 when the respondent and his brother came to Ludhiana and approved the appellant, at that time Roka ceremony was performed. Thereafter in January, 1987 there was no question of giving matrimonial advertisement. Further even Mukand Kulkarni has admitted that the respondent is Khatri by caste. His biodata is at Ex. R-1 wherein his age is shown as 29-21 years because there is over-writing on it and his height is given as 5′-8″ but in the said advertisement the caste of boy is mentioned as Arora, hight 5′-6″ and age 37 years. On this count, it is also evident that the alleged advertisement does not refer to the respondent.

11. The respondent’s learned Counsel further pointed out that if it would have been a fact that before marriage the respondent was informed that earlier appellant was married to Ashok Kumar Kalra, she gave birth to a son in this wedlock by undergoing a caesarean operation, after divorcing him she was married to Kusum Jhanji who also divorced her, then there was no reason for the appellant not to disclose correctly when being asked by him as well as by Dr. Asha about the scar on her abdomen. In those circumstances she would have told him and to the Doctor clearly that it is a scar of caesarean operation, but from the queries made by the Doctor Asha, (letters written byappellant’s sister and brothers, telegram given which all are on record) it is evident that a positive deliberate attempt was made by the appellant as well as by her siblings not to discose that she had undergone a caesarean operation.

12. He further took me to the evidence on record and argued that the respondent has duly proved that the appellant treated him with cruelty. Her behaviour in the matrimonial home was not cordial and respectful. She abused and insulted her husband and his family members. She insisted that he should live away from them. He acceded to her demand and started living in a separate room. She again persisted in her demand that he should break all his ties with his family members. Whenever they used to come to her she insulted them. She declined to do any household work and whenever the respon dent asked her about the said scar on her abdomen, she was so irritated that on 3/4 occasions on this count she tried to commit suicide. He also pointed out that she lodged a false report against the respondent and his family members and in that case the respon dent’s father was arrested. Her this be haviour also amounts to cruelty, thereby she has made his life miserable. According to him, the trial Court has rightly granted decree of divorce on the ground of cruelty.

13. I find that the trial Court has rightly weighed the panies’ evidence on record and has arrived at correct conclusions. The findings of the trial Court do not call for any interference. Even in her affidavit filed in the Supreme Court as well as in the reply to the respondent’s petition (unamended) she never admitled that she had undergone a caesarean operation or she was earlier married to Ashok Kumar Kalra and Kusum Jhanji or these facts were disclosed to the respondent before the settlement of marriage. After getting positive information about her previous marriage with Ashok Kumar Kalra and Kusum Jhanji and the fact of her undergoing a caesarean operation, he amended his petition accordingly and thereafter in reply, she admitted all these facts. From the letters on record it is evident that there was a positive deliberate attempt made by appellant’s brothers and sisters to conceal the fact of her undergoing a caesaren operation. If before marriage the respondent would have been informed about her previous marriages with Ashok Kumar Kalra and Kusum Jhanji and her giving birth to a son from the loins of Ashok Kumar Kalra, there was no necessity of hiding that fact of caesarean operation. The respondent as PW I has clearly stated that when his marriage with the appellant was settled he was not informed of these facts. If he would have known these facts he would not have consented to marry her. He is duly corroborated by his brother Sataya Pal (PW 8), Mukand Kulkarni (RW 2) is servant of appellant’s brother in the Cinema House for the last 10 years. The appellant as RW 1, Mukand Kulkarni (RW 2) and Harish Chander (RW 3) have testified that when the negotiations about the marriage of the parties were going on, the respondent and his brother were told about the post life of the appellant. The respondent agreed to marry a divorcee and hence the marriage was settled. These witnesses have named certain independent persons who were present when the alleged disclosure was made, but the appellant has failed to examine those witnesses. Harish Chander (RW 3) is her brother and Mukand Kulkarni is paid employee of her family. Hence they are bound to corroborate her.

14. Witnesses may tell lies, but circumstances never tell lie. As mentioned above, the appellant and her brothers and sisters made a persistent positive attempt to hide the fact that the appellant had undergone a caesarean operation. So many documents are on record to prove this query and their evasive replies. This circumstance by itself proves that before marriage the respondent was not informed that the appellant was married twice earlier and she gave birth to a son in the first wedlock by undergoing a caesarean operation. The alleged matrimonial advertisement, as is pointed out above, does not relate to the respondent. The appellant has admitted on oath that she was married to Ashok Kumar Kalra, she gave birth to a son by undergoing a caesarean operation. Then they executed an agreement and got mutually divorced. Thereafter she was married to Kusum Jhanji who also obtained a decree of divorce against her. Thus I find that the trial Court has rightly held that these facts were not disclosed to the respondent before marriage and thus a fraud was practised on him. On this count, under Section 12 of the Hindu Marriage Act, 1955 the marriage of the parties was rightly annulled.

15. So far as the ground of cruelty is concerned, from the statements of the respondent, his father Laxmi Dass (PW 6) and his brother Satya Pal (P W 8) it is evident that after marriage the appellant’s behaviour in the matrimonial home was not cordial. She never cared to do household chores. She was disrespectful towards her in-laws. On her insistence, the respondent took a separate residence. She again insisted that he should sever all ties from his family members. The respondent has also proved that when she was asked to disclose the cause of scar on her abdomen, she became so much annoyed that she threatened to commit suicide. Such attempts were made by her on 2/3 occasions. On this point, he is duly corroborated by Siri Krishan (PW 2), Krishan (PW 3) and Babu Rao (PW 4). It is also proved on record that earlier she lodged a complaint against her former husband Ashok Kumar Kalra under Sections 307, 498A, IPC and again she lodged a false report against the respondent and his family members. The respondent’s father Laxmi Dass (PW 6) was arrested and other persons obtained anticipatory bail orders from the Court. After full trial, all these persons were acquitted.

16. Cruelty implies and means harsh conduct of such intensity and persistence which would make it impossible for the spouse to operate the marriage. Cruelty is not defined in the Act. Jt is to be determined on the basis of proved facts and circumstances of the case. No fixed formula can be had for cruelty. It is to be determined keeping in view the culture, temperament and status in life of the parties and many other factors. In a case of similar facts in Gurdip Kaur v. Balbir Singh, 1990 (2) HLR 109 it is held that the wife is guilty of cruelty and on this count, decree of divorce was granted.

17. In the case in hand, herabove conduct in the matrimonial home, her threats and attempts to commit suicide, her act of lodging false complaint against her husband and his relations under Section 498A/ 34, IPC (which ended in acquittal) are incidents of cruel behaviour towards the respondent. Her this conduct made it impossible for the respondent to live peacefully with her in the conjugal home. Thus according to me, the trial Court has not fallen into error in holding her guilty of the offence of cruelty and on this ground granting a decree of divorce in favour of the respondent in the alternative. No other point is pressed before me.

18. Consequently finding no reason to interfere with the trial Court’s findings, the appeal is hereby dismissed with costs.

19. Appeal dismissed.

Categories: Judgement

SC: Allegation of 80000/- bribe against session judge for granting bail but SC did not beleive this

Bench: K Balakrishnan, L S Panta, D Jain

CASE NO.:

Appeal (civil) 2015 of 2006

PETITIONER:

Ramesh Chander Singh

RESPONDENT:

High Court of Allahabad & Anr

DATE OF JUDGMENT: 26/02/2007

BENCH:

CJI K.G. BALAKRISHNAN,LOKESHWAR SINGH PANTA & D.K. JAIN

JUDGMENT:

J U D G M E N T

K.G. BALARISHNAN, CJI

The appellant is a judicial officer in the State of Uttar Pradesh. He joined the Provincial Civil Service (Judicial) in the year 1976 and in May 1994 he was promoted to the Higher Judicial Service and posted as Addl. District & Sessions Judge at Jhansi. A crime No. 180 of 1995 registered by the Police Station at Nawabad was committed to the Sessions Court at Jhansi and allotted to the appellant’s court for trial and disposal. There were three accused in that case, namely, Ram Pal, Raghunath and Rajendra. The crime related to an incident which happened on 22.5.1995. The allegation in the First Information Report was that accused Ram Pal and Raghunath used fire-arms and shot dead Pratap Yadubir Singh and Devendra Pipraiya within the compound of District Panchayat Bhawan at Jhansi. The Police registered the case for the offences punishable under Sections 302, 307 read with Section 34 IPC. Accused Rajendra was granted bail on 19.8.1995. The second accused, Raghunath, who allegedly used the fire-arm and killed one of the victims, was also granted bail on 20.9.1995 by the High Court. Accused Ram Pal continued to be in custody and moved his first bail application on 17.11.1995 which was dismissed by the Sessions Judge, Jhansi. On 11.4.1996, accused Ram Pal moved another bail application and the same was dismissed for default. In the third application, which came up for consideration before the second Addl. Sessions Judge, Jhansi, accused Ram Pal contended that he had no criminal history and that the Executive Magistrate (Tehsildar) who recorded the dying declaration used to reside in the house of the deceased Pratap Yadubir and because of his acquaintance with the deceased, the dying declaration recorded by him was not to be given much credence. Accused Ram Pal further contended that he was a local resident and there was no likelihood of he being absconding. The Sessions Judge dismissed the bail application on 15.5.1996. In the fourth bail application, moved by accused Ram Pal on 19.6.1996, he contended that he was a student; he had surrendered before the Chief Judicial Magistrate, Jhansi, on 8.6.1995; had been in custody for more than one year and that his co-accused had been released on bail. He pleaded that his father was seriously ill and in support of this contention, he produced a medical certificate from a Professor of Medical College at Jhansi to show that his father had suffered a heart-attack on 16.5.1996. By an order passed on 22.6.1996, the appellant herein granted bail to accused Ram Pal. The main reasons attributed by the appellant for granting bail to accused Ram Pal were that the charge sheet had been filed by the police; the accused had stated that his father was dangerously ill; the accused was a student; and that the accused had no previous conviction or involvement in any criminal case. The appellant also observed in the bail order that the Tehsildar who recorded the dying declaration was a close acquaintance of the deceased. Considering the totality of the circumstances and as there was no likelihood of the accused absconding or interfering with the trial of the case influencing the witnesses or committing any fresh offence, the bail application was allowed by the appellant.

It may also be noticed that when the bail application of the accused came up on 22.6.1996, the appellant noticed that the brother of the defacto complainant had filed an application before the Sessions Judge for the transfer of the bail application to some other court. It appears that the hearing of bail petition was adjourned in the morning of 22.6.1996 for want of a specific report from the Addl. District Govt. Counsel (ADGC) and later, on the same day, it was taken up when the ADGC stated that he had full faith in the court and the counsel, who was engaged by the complainant, did not raise any objection and was prepared to argue the bail application. No stay order was produced before the appellant and therefore, the appellant proceeded with the hearing of the case and passed the order on the very same day granting bail to accused Ram Pal on his furnishing a bond for Rs.20,000/- with two sureties.

On 10.7.1996, complainant Jagdeo Singh sent a complaint to the High Court alleging that the appellant had accepted illegal gratification for granting bail to accused Ram Pal. This complaint was placed before the Inspecting Judge and after going through the material on record the learned Inspecting Judge was of the view that there was a prima facie case against the officer concerned, for dereliction of duty and judicial dishonesty while granting bail. The Administrative Committee initiated departmental enquiry against the appellant. It may further be noticed that in the complaint filed by Jagdeo Singh, he alleged that it was being said in the village that a sum of Rs.80,000/- had been paid to the appellant and bail would be granted by him and that nobody could stop it. He had also mentioned about the transfer application filed by him before the Distt. Judge and alleged that despite the filing of the said transfer application, the bail application was heard and allowed. He prayed for the transfer of the case to some other court.

In the transfer application filed by the brother of the complainant, there was an allegation that a sum of Rs. 80,000/- was paid and that it was settled through a library clerk with the involvement of two other clerks. In the transfer application, he also alleged that the brother and father of accused Ram Pal were found going in and coming out of the residence of the appellant. Despite all these allegations, no charge was framed against the appellant that he had received illegal gratification for granting bail. The charge sheet contained the only allegation that the bail order was passed by the appellant for extraneous consideration with oblique motives on insufficient grounds and that the appellant was guilty of misconduct and failed to maintain absolute integrity and devotion to duty within the meaning of Rule 3 of U.P. Government Servants Conduct Rules, 1956. The charge sheet as well as the statement of facts are clubbed together and the gist of allegations is contained in paragraphs 6 and 7 of the charge sheet.

A sitting Judge of the High Court conducted the enquiry and gave his report. Though there was no charge specifically brought against the appellant that he had received a sum of Rs.80,000/- as illegal gratification, this aspect also was considered by the learned Judge. On behalf of the complainant, PW-1 Jagdeo Singh was examined and he made a specific allegation that the father of the accused had withdrawn Rs.80,000/- from the bank and that the bail application was allowed on the next day. He did not, however, claim to have any direct knowledge. He deposed that he had gathered this information from a labourer. He did not take any steps to summon the bank record. PW-1 was completely disbelieved by the learned Judge who conducted the inquiry. The case set up by the complainant was not supported by other witnesses. The counsel who appeared for the brother of the deceased and moved the application for transfer, stated that the brother of the deceased did not tell him that there was a rumour in the village about payment of Rs.80,000/-. The Judge who conducted the inquiry elaborately considered the various aspects of the matter and concluded that there was no element of truth in the allegation that the appellant had received illegal gratification. The evidence of PW-1 on this aspect was disbelieved. However, the learned Judge inquiring the matter eventually came to the conclusion that the bail had been granted by the appellant in utter disregard of judicial norms and on insufficient grounds and based on extraneous consideration with oblique motive and the charges had been proved. It is important to note that the Judge who conducted the enquiry has not stated in his report as to what was the oblique motive or the extraneous consideration involved in the matter.

Based on the enquiry report, the appellant was served with a notice to show cause as to why his two increments should not be withheld with cumulative effect. The matter was placed before the Full Court on 20.11.1999 and the Full Court by its resolution imposed a major punishment of withholding two annual increments of the appellant with cumulative effect. The appellant filed a review application against the said punishment and the same was rejected. Thereupon, he filed a writ petition under Article 226 of the Constitution challenging the punishment imposed on him. By judgment dated 3.10.2005, the writ petition was dismissed and in the very same judgment the appellant was directed to show cause within three weeks from the date of the judgment as to why the High Court should not consider substitution of the punishment imposed, by removing him from service. Pursuant to the notice, the appellant appeared and presented his case before the Division Bench. By judgment dated 25.11.2005, the appellant was reduced to the rank next below, that is, Civil Judge (Senior Division). Both the judgments of the Division Bench are challenged before us.

The learned Counsel for the appellant contended before us that the appellant was not charged for receiving any illegal gratification for granting bail to the accused in Crime No. 180 of 1995 registered by the Police Station at Nawabad. The charge, if at all, was vague and it only stated that the bail order had been passed by the delinquent officer [appellant] for extraneous consideration with oblique motive on insufficient grounds, without cogent and tangible reasons, and that he attempted to justify his order by superfluous reasoning by making adverse comments on the conduct of the Executive Magistrate, who recorded the dying declaration, fully knowing that it was a broad daylight double-murder case and that the grounds were not fit for granting bail and these factors revealed that the order had been passed for extraneous consideration. It was argued that there was no specific charge that the appellant received any monetary consideration from any of the accused or his relatives. The appellant’s counsel also pointed out that though the complainant specifically alleged that a sum of Rs. 80,000/- was given to the appellant- officer and that this money had been obtained from the bank on the previous day by the father of accused Ram Pal, these allegations were not proved and that the complainant, at the time of enquiry, stated that he had heard of this story from some servants and from the very nature of the allegation, they were disbelieved and that was why a specific charge was not framed against the appellant. It was further argued by appellant’s counsel that though there was no charge against the appellant, the Judge who conducted the enquiry allowed the complainant to adduce evidence, and eventually he came to the conclusion that there was absolutely no evidence to show that the delinquent officer had received any illegal gratification from any party.

The question for consideration is whether the appellant had granted bail on insufficient grounds or was justified in passing such an order. Granting of bail to accused pending trial is one of the significant judicial functions to be performed by a Judicial Officer. In the instant case, neither the State nor the complainant had filed any appeal against the order passed by the appellant. The State did not allege that the accused who had been granted bail was likely to abuse his bail or likely to abscond. It is also pertinent to note that the accused to whom the appellant had granted bail was one of the three accused against whom charge sheet had been filed by the police. The other two accused were Rejendra and Raghu Nath. As per the First Information Report, Ram Pal, to whom the appellant had granted bail, and Raghu Nath, who obtained bail from the High Court, had used fire-arms as a result of which two persons died. As per the prosecution case, the accused Ram Pal is alleged to have caused the death of one of the victims while accused Raghu Nath was alleged to have caused the death of the other victim. Accused Raghu Nath was granted bail by the High Court on 20.9.1995. Accused Rajendra was granted bail as early as 19.8.1995. Accused Ram Pal had been in custody for more than one year. The police had already filed the charge-sheet against him and the court was yet to frame the charge against all the accused. Accused Ram Pal was a student and he alleged that had he suffered a loss of one year’s study. He also alleged that his father was seriously ill due to a heart ailment and he produced a medical certificate from one of the professors working in the local medical college. It was under these circumstances that the bail application filed by Ram Pal came to be heard by the appellant and he granted bail to him by an order passed on 22.6.1996. It is also important that the complainant made an attempt to have the bail application transferred from the court of the appellant to the court of the Principal Sessions Court. Though he filed the application for transfer, he did not press for stay of the proceedings. The appellant-officer came to know about the filing of the transfer application and brought this fact to the notice of the counsel who appeared for the complainant and also the State prosecutor. Both the counsel had no objection to the hearing of the bail application by the appellant and accordingly the appellant heard the bail application and passed the order granting bail to Ram Pal. It is clear that by filing a frivolous transfer application the complainant only intended to create a sense of threat so as to influence the appellant not to grant bail to the accused. The filing of the transfer application by the complainant could not be viewed from any other angle. Despite this, the complainant did not file any application for cancellation of bail granted to the accused.

The learned Judge who conducted the enquiry held that in the facts of the case where a heinous and daring offence had been committed in broad daylight and two persons had been shot dead in a crowded area next to the Collectorate at Jhansi and the accused were named in the FIR as well as in the dying declarations and their bail applications having been considered and rejected twice on merits by the respective courts, the third bail application granted by the charged officer in utter disregard of the judicial norms and on insufficient grounds appears to be based on extraneous consideration. The learned enquiry Judge did not care to take notice of the fact that the co-accused who were similarly situate had been granted bail by the High Court and that accused Ram Pal, who was a student and had been in jail for more than one year was granted bail for cogent reasons, set out in the order passed by the appellant. In the bail order, the appellant stated that there was an allegation that the Magistrate who recorded the dying declaration was once upon a time a tenant in one of the houses owned by the complainant. Taking cognizance of this fact by the appellant in the order could not be said to be a totally unwarranted and a superfluous reasoning. The counsel for the respondent pointed out that on three previous occasions the bail had been declined to the very same accused and as there was no change in the circumstances, the appellant-officer should not have considered the fourth bail application as well. Of course, in the previous bail applications, many of the contentions raised by the accused were considered, but an accused has the right to file bail application at any stage when undergoing imprisonment as an under-trial prisoner. The fact that the two other accused had already been enlarged on bail was a valid reason for granting bail to accused Ram Pal. Moreover, accused Ram Pal had been in jail for one year as an under-trial prisoner and the charge-sheet had already been filed. In our opinion, if accused Ram Pal were to be denied bail in these circumstances, it would have been a travesty of justice especially when all factors relevant to be gone into for considering the bail application were heavily loaded in favour of grant of bail to accused Ram Pal.

We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer’s bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant-officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail in TADA Act or NDPS Act, there was no statutory bar in granting bail to the accused in this case. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently.

This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.

In Iswar Chandra Jain v. High Court of Punjab and Haryana, AIR 1988 SC 1395, this Court observed that while exercising control over subordinate judiciary under Art. 235 of the Constitution, the High Court is under a Constitutional obligation to guide and protect subordinate judicial officers. An honest and strict judicial officer is likely to have adversaries. If complaints are entertained in trifling matters and if the High Court encourages anonymous complaints, no judicial officer would feel secure and it would be difficult for him to discharge his duties in an honest and independent manner. It is imperative that the High Court should take steps to protect honest judicial officers by ignoring ill- conceived or motivated complaints made by unscrupulous lawyers and litigants.

In K.P. Tiwari v. State of Madhya Pradesh, AIR 1994 SC 1031, where the High Court reversed the order passed by the lower court making remarks about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure — contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher court. Every error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or other. That amounts to destruction of judiciary from within.

In Kashi Nath Roy v. The State of Bihar, AIR 1996 SC 3240, this Court observed under a similar circumstance that in our system appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision making in law and in fact. The higher courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct the error in an appropriate case and in a manner befitting maintaining dignity of the court and independence of the judiciary. The higher court should convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellowed but clear and result oriented and rarely a rebuke.

In series of other cases also, this court disfavoured the practice of passing strictures or orders against the subordinate officers. (See : Braj Kishore Thakur v. Union of India, AIR 1997 SC 1157; Alok Kumar Roy v. Dr. S.N. Sarma, AIR 1968 SC 453)

In Lunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881, this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the Judicial Officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Art. 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level.

Apart from the merits of the case before us, we have also gone into the Confidential Reports of the appellant officer. His integrity and honesty had never been doubted at any point of time. In some of the confidential reports except stating that the appellant-officer was not having smooth relationship with the advocates, no other adverse remarks had been entered. Two Senior Judges of the High Court have entered in his confidential register that the appellant is an officer of honesty and integrity. The fact that it was a case of daylight murder wherein two persons died, is not adequate to hold that the accused were not entitled to bail at all. Passing order on a bail application is a matter of discretion which is exercised by a Judicial Officer with utmost responsibility. When a co- accused had been granted bail by the High Court, the appellant cannot be said to have passed an unjustified order granting bail, that too, to an accused who was a student and had been in jail for more than one year. If at all, the Inspecting Judge had found anything wrong with the Order, he should have sent for the officer and advised him to be careful in future. The punishment of reverting the appellant to the post of Civil Judge (Sr. Division), in the facts and circumstances of this case could only be termed as draconian and unjust. The appellant had been in the cadre of District Judge for eight years at the time this grave punishment of reversion to a lower rank was imposed on him. In our opinion, the punishment was clearly disproportionate to the lapse alleged to have been committed by him. The imposition of the punishment of withholding two increments with cumulative effect also appears to be disproportionate to the alleged lapse. Consequently, we set aside the Judgment of the High Court dated 3.10.2005 and also the Judgment rendered by the very same court on 25.11.2005. The appellant shall be immediately posted to the cadre of District Judge and paid all monetary benefits due to him as a consequence thereof. We also set aside the initial order passed by the Full court of the High Court imposing the penalty of withholding two increments to the appellant with cumulative effect. As the Full Court alone is the ultimate competent authority to consider all disciplinary matters and has indeed taken the decision impugned before us, we remit the matter to the Full Court to consider afresh the question of imposition of appropriate punishment on the appellant.

The appeal is disposed of accordingly.

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: Party-In-Person in High Court – 307 IPC

Categories: Judgement

Permanent Lok Adalat has no jurisdiction to proceed with a criminal case

DATED: 24.03.2011

CORAM

THE HONOURABLE Mr. JUSTICE T.RAJA

W.P.No.14956 of 2010 and

M.P.No.1 of 2010

Gulzar Begum … Petitioner

Vs.

1.Lok Adalat,

Tamil Nadu State Legal Services Authority,

Chennai  600 104.

2.Syed Akbar Ali … Respondents

PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus to call for the records of the award dated 21.03.2009 passed by the Lok Adalat on the file of the I Additional Family Court, Chennai, quash the same and to remand back the M.C.No.478 of 2004 to the I Additional Family Court for further and expeditious proceedings.

For Petitioner :Mr.T.Mohan

For Respondent :Mr.A.R.Suresh for R2

ORDER

Aggrieved by the award dated 21.03.2009 passed by the Lok Adalat on the file of the I Additional Family Court, Chennai, the petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking to quash the same with a prayer to remand back the M.C.No.478 of 2004 to the I Additional Family Court for further and expeditious proceedings.

2. Mr.T.Mohan, the learned counsel appearing for the petitioner submitted that the petitioner-Gulzar Begum is the legally wedded wife of the 2nd respondent/Syed Akbar Ali and the marriage between them was solemnized on 18.06.1987. Though they had marital life only for about four years in their matrimonial home at No.18, Yasin Khan Street, Issa Pallavaram, Chennai  600 043, yet during that period, the petitioner/wife was subjected to various acts of violence, torture, abuse and harassment by the 2nd respondent/husband. Further, the learned counsel for the petitioner submitted that the petitioner/wife was deprived of even basic requirements, such as adequate food and on account of such deprivation and physical and mental abuse, her health was got badly deteriorated, which resulted further health complications due to mal-nourishment and abuse. Only after 17 years of marriage, that is, in the year 2004, the petitioner/wife came to light that the 2nd respondent/husband had married another woman by name, A.Mehrunissan and has been living with her at No.34, Thiruvalluvar street, Nehru Nagar, Velachery, chennai. In the year 2004, the 2nd respondent/husband completely deserted the petitioner and moved out of the matrimonial house by living with the said Mehrunissa. The said fact was neither informed nor he obtained the consent from the petitioner before or after marrying the said Mehrunissa and that apart, the 2nd respondent has not even taken any permission from his employer, namely, the Chennai Port Trust, for his second marriage, wherein he was drawing a salary of Rs.30,000/- per month approximately. In view of the hidden fact, the petitioner/wife has filed M.C.No.478 of 2004 before the I Additional Family Court, Chennai, seeking maintenance for a sum of Rs.3000/- per month in the year 2004, as then he was drawing a salary of Rs.15,212/- per month. Further, a criminal case was also filed in C.C.No.24130 of 2004 against the 2nd respondent before the Chief Metropolitan Magistrate, Egmore, Chennai, for commission of offences under Sections 498A, 406 and 494 of IPC and yet another criminal case before the Judicial Magistrate, Tambaram, Chennai, for commission of offences under Sections 147, 448 and 427 of IPC. Surprisingly, when these criminal cases, which are non compoundable in nature, are pending before the competent criminal Court, the I Additional Family Court referred the M.C.No.478 of 2004 for determination and settlement to the Lok Adalat. The Lok Adalat, on receipt of the said case in M.C.No.478 of 2004, after several hearings, passed an award on 21.03.2009 directing the 2nd respondent/husband to pay a sum of Rs.3,000/- per month towards maintenance from 01.04.2009 till the life time of the petitioner/wife without arrears for five years, with a further direction to the 2nd respondent that he will execute a settlement deed in favour of the petitioner/wife by granting her life interest in respect of the house in which the petitioner is residing at No.18, Yasin Khan Street, Issa Pallavaram, Chennai, from the time of their marriage. Besides, the Lok Adalat further held that either parties will withdraw the civil and criminal cases filed by them against each other.

3. At this juncture, the grievance brought forthwith by the learned counsel for the petitioner is that the award passed by the Lok Adalat was not preceded by any proper settlement talks and the terms of the settlements were not explained to the petitioner/wife. Secondly, her erstwhile counsel was also not present during the said proceedings, when the above said award was passed. Thirdly, the petitioner/wife was merely informed that she would get Rs.3,000/- per month immediately and she being in an extremely vulnerable financial position with debts and no means of any financial support, agreed to sign the settlement papers without knowing that this arrangement would continue for her life time and the said arrangement was not even informed to the petitioner. On the other hand, the petitioner under the impression that she could, depending upon her needs, 2nd respondent’s financial position and the impact of inflation, approach the Court for enhancement of maintenance. Though the petitioner’s erstwhile counsel arrived at the Lok Adalat, just prior to the passing of the award, her erstwhile counsel also did not advise the petitioner about the legal implication, as the then counsel was under the impression that the 2nd respondent counsel would have done so.

4. Further grievance of the petitioner, he added, that even this meagre amount of Rs.3,000/- was not even paid by the 2nd respondent/husband, which, ultimately, compelled the petitioner to file Crl.O.P.No.10076 of 2010 before this Court seeking a direction to dispose of the pending M.P.No.427 of 2009 in 478 of 2004 on the file of the I Additional Family Court expeditiously. Noting the indigenous circumstances of the petitioner/wife, this Court has also given a direction, by order dated 30.04.2010, to dispose of the M.P.No.427 of 2009 in 478 of 2004 within a period of three months from the date of receipt of the order.

5. By summing up his case, the learned counsel for the petitioner contended that the Lok Adalat has no jurisdiction to determine any dispute relating to the offences, that are not compoundable under any law, when the petitioner has filed criminal cases against the 2nd respondent under Sections 498A and 147 of IPC. Further, it was contended that the petitioner being an illiterate woman coming from economically a backward family, taking advantage of her illiteracy and without even taking consent to the proceedings, the 2nd respondent obtained an order from the Lok Adalat.

6. In support of his submission, he has also relied upon a judgment of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Ajay Sinha and another (2008 (7) SCC 454) for a proposition that the Permanent Lok Adalat shall not have any jurisdiction in respect of the matter relating to an offence not compoundable under any law.

7. He has relied upon yet another judgment in the case of the Branch Manager, United India Insurance Co. Ltd. Vs. State of Jharkhand and another (IV (2005) ACC 356) to say that if any party wants to challenge the award based on the settlement passed by the Lok Adalat ignoring the pendency of the criminal case of non compoundable offence, the same can be done by filing a petition under Articles 226 or 227 of the Constitution of India, therefore, he contended that the award passed by the Lok Adalat is liable to be set aside.

8. In reply, Mr.A.R.Suresh, the learned counsel appearing for the 2nd respondent, by filing detailed counter, prayed for dismissal of the writ petition, as the writ petition is not maintainable either on facts or in law. Further, he submitted that the petitioner and the 2nd respondent are the husband and wife and after their marriage in the year 1987, they have lived together happily till 2004. In view of the small misunderstanding in the family, the petitioner filed a complaint in the W1 All women Police Station, Thousand Light, Chennai, for the alleged offences under Sections 498(A), 494 of IPC r/w Section 4 of the D.P.Act in Crime No.16/2004. In view of the criminal complaint, the 2nd respondent was taken by the police and kept in illegal custody. Taking advantage of the said criminal case followed by the illegal custody, the petitioner has taken out the possession of the immovable properties situated at No.18, Yasin Khan Street, Pallavaram, chennai, where the petitioner is now residing in one portion and has let out the other portions for a monthly rent of Rs.22,000/-. Besides, the petitioner has taken the possession of the property at No.27, Kalavai Street, Chindadripet, Chennai, and has also leased out the 2nd floor of the building for Rs.2,00,000/- and also rented out the ground floor and first floor each for Rs.10,000/-, totalling Rs.20,000/- and that apart, she has sold the land at Vepampattu, for a valuable sale consideration of Rs.5,00,000/-. Hence, all put together, she is enjoying the rents of Rs.42,000/- per month, apart from the interest for Rs.7,00,000/-. In the meanwhile, the said criminal complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.24130 of 2004 and the same is also pending. That apart, the petitioner has also preferred a case in M.C.No.478 of 2004 before the I Additional Family Court, Chennai, claiming maintenance. Further, a suit in O.S.No.314 of 2005 filed before the learned District Munsiff, Alandur, and a criminal case preferred in Crime No.65 of 2005 before the Pallavaram Police Station are also pending. Apart from the above said cases, she has also preferred a suit through her brother before the learned XVIII Assistant City Civil Judge, Chennai, in O.S.No.5264 of 2004, alleging that the 2nd respondent has taken a loan of Rs.1,00,000/-.

9. Further, in his submission, it was contended that when the proceedings in M.C.No.478 of 2004 have begun, during the course of cross-examination, the petitioner herself agreed for the compromise before the learned Judge and only after obtaining her consent, the above said matter was referred to the Lok Adalat. Before the Lok Adalat, since the petitioner has given her consent to withdraw all the cases instituted against the 2nd respondent, and to deliver the vacant possession of the remaining portions at Pallavaram and also to deliver the vacant possession of the entire property at Chindatheripet, the 2nd respondent agreed to pay the maintenance at Rs.3,000/- per month and further agreed to settle a part of his property situated at Pallavaram, which is presently under her possession and enjoyment. On that basis, recording the said compromise, the Lok Adalat passed an award. Having agreed to withdraw all the cases, including O.S.No.5264 of 2004, obtained a sum of Rs.25,000/- from the 2nd respondent, hence, it was submitted that it is not open to the petitioner to go against the compromise. Further, it was submitted that as against the agreement to withdraw all the cases, the petitioner has failed to comply the Lok Adalat award by reopening the cases in M.C.No.478 of 2004 through M.P.No.427 of 2009 and O.S.No.5264 of 2004 and also C.C.No.24130 of 2004. As a result, the learned Chief Metropolitan Magistrate, Egmore, conducted the trial and finally, finding him innocent, acquitted the 2nd respondent and his mother and sister from the criminal case for the alleged offences under Section 498(A), 494, 406 of IPC and Section 4 of the Dowry Prohibition Act in C.C.No.24130 of 2004 in judgment dated 21.12.2010 and on that basis, he prayed for dismissal of the present writ petition.

10. Heard the learned counsel appearing on either side and perused the materials available on record.

11. First of all, the question needs answer is, whether the award passed by the Lok Adalat is challengable under Article 226 of the Constitution of India. A three Bench judgment of the Apex Court in the case of State of Punjab & Another Vs. Jalour Singh & Others (MANU/SC/7021/08) answers in the affirmative as follows:- It is true that where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise.

12. In the instant case, it is admittedly true that when maintenance proceedings were initiated by the petitioner/wife in M.C.No.478 of 2004 before the I Additional Family Court, Chennai, and considering the prospects of compromise, the matter was referred to the Lok Adalat, whereat, after the initiatives to compromise the dispute, ultimately, consent was given by the petitioner/wife to withdraw all the cases both criminal and civil cases filed against the 2nd respondent/husband and she being in an extremely vulnerable financial position with debts and no means of any financial support, agreed to sign the settlement papers for a monthly maintenance of Rs.3,000/- without knowing that this arrangement would continue till her life time. However, after the agreement to withdraw all the cases, the petitioner reopened all the cases both criminal and civil cases by filing a petition, as a result, the award passed by the Lok Adalat was neither complied with nor obeyed by both parties, that is, the petitioner/wife failed to adhere to the terms of the award by reopening the criminal cases, that are non-compoundable in nature and from the husband’s side, he failed to pay the agreed monthly maintenance to his wife. At this juncture, the grievance of the petitioner, as pleaded by her counsel, is that the Lok Adalat has committed a serious mistake in passing the award directing the petitioner to withdraw the criminal case relating to Penal offences under the IPC and the Dowry Prohibition Act, which are not compoundable under the Criminal Procedure Code. Further, the Lok Adalat has no jurisdiction whatsoever in the matter, when the value of the property exceeds ten lacs rupees.

13. In this context, it is useful to a refer to a judgment of the Apex Court in United India Insurance Co. Ltd.’s case (cited supra), wherein at paragraph 22, it was held thus:-

22. Section 89 of the Code of Civil Procedure inter alia was enacted to promote resolution of disputes through mutual settlement. Chapter VI-A of the Act seeks to achieve a different purpose. It not only speaks of conciliation qua conciliation but conciliation qua determination. Jurisdiction of Permanent Lok Adalat, although is limited but they are of wide amplitude. The two provisos appended to Section 22-C (1) of the Act curtail the jurisdiction of the Permanent Lok Adalat which are as under :- Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:

Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:

Section 22-C delineates the jurisdiction of Permanent Lok Adalat to take cognizance of cases filed before it and the said provision is extracted below:-

“22-C.- Cognizance of cases by Permanent Lok Adalat :-

1. Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute:

Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:

Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:

Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.

(2) After an application is made under sub- section (1) to the Permanent Lok Adalat, no party to that application shall invoke

jurisdiction of any court in the same dispute.

(3) … …. ….

(4) … …. ….

(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub- section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.

(6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.

(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. (8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute.”

From a bare reading of Section 22(C) of the Act, it is manifest that any party to a dispute may, before going to a Court of Law or other Forum, approach the Permanent Lok Adalat for settlement of the dispute. The proviso to this section very clearly provides that the Permanent Lok Adalat shall have no jurisdiction in respect of any matter relating to an offence non-compoundable in nature. It further provides that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lacs of rupees. Admittedly, in this case, a criminal case was filed in C.C.No.24130 of 2004 against the 2nd respondent/husband before the Chief Magistrate, Egmore, Chennai, for commission of offences under Sections 498A, 406 and 494 of IPC and yet another criminal case before the Judicial Magistrate, Tambaram, Chennai, for commission of offences under Sections 147, 448 and 427 of IPC. In spite of that, the Lok Adalat has wrongly determined the issue involving non compoundable offence and erroneously settled the dispute.

14. Further, a mere reading of the above said provisions goes to show that the Permanent Lok Adalat, in terms of Section 22-D of the Act, while conducting conciliation proceedings or deciding a dispute on merits is not bound by the provisions of the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872. Besides, the party approaching the Lok Adalat will enjoy several benefits like exemption from payment of Court fees. Even if court fee is already paid, the entire amount will be refunded if the dispute is settled at Lok Adalat. Secondly, the parties will have the speedy trial of the disputes, for, there is no strict compliance of procedural laws like Civil Procedure Code and Evidence Act, while addressing the claim by the Lok Adalat. Thirdly, the parties to the disputes can directly interact with the Judge through their counsel. Fourthly, the award of the Lok Adalat is binding on the parties and it has got the status of a decree of a Civil Court and it is non-appealable, which gives quietus to the issue. Fifthly, in deciding the disputes, the Lok Adalat is guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice. Sixthly, the jurisdiction of the Civil Court to call in question any award made by the Permanent Lok Adalat is explicitly barred. Seventhly, it has the jurisdiction to transfer any award to a civil court and such civil court is mandated to execute the order as if it were the decree by a civil court. But, if the Lok Adalat, over-stepping its jurisdiction, proceeds to decide any criminal case, which involves offences of non-compoundable nature, undoubtedly, the award passed would suffer from serious illegality. In other words, if any award is passed in an effort to close down any criminal case involving Penal offences, which are not compoundable in nature, such award will be a nullity. The present case being one such instance, the award passed by the Permanent Lok Adalat directing the petitioner/wife to withdraw criminal cases of non-compoundable in nature, the same cannot be considered to be an award in the eye of law.

15. Admittedly, in the instant case, when the parties appeared before the Lok Adalat, both the parties agreed to withdraw civil and criminal cases filed by them against each other and the husband has agreed to pay a maintenance amount of Rs.3,000/- per month from the first week of April’2009 till the life time of the wife, however, later on, both the parties to the award violated the terms by not fulfilling their commitment. Therefore, as the award passed by the Lok Adalat directing the petitioner to withdraw even the criminal cases filed for offences under Sections 498A and 147 of IPC, which are admittedly non-compoundable in nature, as per the judgment of the Apex court in United India Insurance Co. Ltd.’s case (cited supra), wherein it was held that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence of non-compoundable under any law and also the Permanent Lok Adalat shall not have jurisdiction in the matter where the value of the property in dispute exceeds rupees ten lacs, the same is not maintainable

16. Further, it is pertinent to mention that M.Y.Iqbal, C.J., as His Lordship was then sitting in the Bench of the Jharkhand High Court, had an occasion to decide a similar issue in the case of Branch Manager, United India Insurance Co. Ltd. Vs. State of Jharkhand and another (IV (2005) ACC 356) holding that the Permanent Lok Adalat has no jurisdiction to proceed with a criminal case, which involves offences of non-compoundable in nature registered under Section 379 of IPC.

17. After going through the various judgments of the Apex Court and the High Court of Jharkhan as mentioned above, I am of the opinion that the impugned order passed by the Lok Adalat is bad in law and, is liable to be set aside. This writ petition is, therefore, allowed as prayed for and the impugned order passed by the Lok Adalat is set aside. No Costs. M.P.No.1 of 2010 is closed.

rkm

To

1.Lok Adalat,

Tamil Nadu State Legal Services Authority,

Chennai 600 104

http://indiankanoon.org/doc/1383846/

Categories: 498A Judgements

SC: 498A cannot be compounded even with the permission of the Court

Bench: A Kabir, M Katju

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1619 OF 2008

@ S.L.P. (Crl.) NO.5265 of 2007

Manoj Sharma ..Appellant Vs.

State & Ors …Respondents J U D G M E N T

ALTAMAS KABIR,J.

1. Leave granted.

2. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the 2

matter between themselves, is the question which arises for decision in this appeal.

3. The identical question fell for the consideration of this Court in the case of B.S. Joshi vs. State of Haryana,[2003 (4) SCC 675] wherein also the question arose as to whether criminal proceedings or a First Information Report or complaint filed under Section 498-A and 406 IPC by the wife could be quashed under Section 482 CrPC on account of the fact that the offences complained of were not compoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State.

4. In B.S. Joshi’s case, this Court drew a distinction between compounding an offence as permitted under Section 320 CrPC and quashing of the complaint or criminal proceedings under Section 482 CrPC as also Article 226 of the

3

Constitution. Pointing out that the appellant in the said case had not prayed for compounding the offence as the same was not compoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited vs. Special Judicial Magistrate, [1998 (5) SCC 749], that where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were 4

not circumscribed by Section 320 of the Code of Criminal Procedure.

5. While the appellant herein strongly relied on the decision in B.S. Joshi’s case. Mr. B.B. Singh, learned counsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding compounding of offences, and indicating what offences may be compromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshi’s case required a second look. Relying on the decision of this Court in Inspector of Police, CBI vs. Rajagopal, [2002 (9) SCC 533], K.G. Prem Shankar vs. Inspector of Police and Anr. [JT 2002 (7) SC 30] and also Textile Labour Association and Anr. Vs. Official Liquidator and Anr. [JT 2004 (suppl.1) SC 1], Mr. Singh submitted that in B.S. Joshi’s case there was a departure from the view taken in the first of the two aforesaid cases.

5

6. We have carefully considered the submissions made on behalf of the respective parties and the facts involved in this case, and we are not inclined to accept Mr. Singh’s contention that the decision in B.S. Joshi’s case requires reconsideration, at least not in the facts of this case. What was decided in B.S. Joshi’s case was the power and authority of the High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or complaint whether it be compoundable or not. The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way

limited by the provisions of Section 320 CrPC. 6

We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C. legally and correctly.

7. In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same.

8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but 7

the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the

case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case.

9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility.

8

10. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997 P.S. Vivek Vihar (East Delhi).

_________________J.

(ALTAMAS KABIR)

New Delhi

Dated:October 16, 2008

9

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.___________OF 2008

[@ Special Leave Petition(Criminal_ No. 5265 of 2007] Manoj Sharma .. Appellant -versus

State & Others .. Respondents

J U D G M EN T

Markandey Katju, J.

1. I have read the judgment of my learned brother Hon. Kabir, J. and I respectfully agree with his conclusion that the appeal should be allowed and 10

the judgment of the High Court as well as the criminal proceedings pending before the Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar (East Delhi) against the appellant should be quashed.

2. However, I wish to give a separate concurring judgment in view of the importance of the issue involved in this case.

3. The question involved in this case is whether an FIR under Section 420/468/471/34/120-B IPC can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution when the accused and the complainant have compromised and settled the matter between themselves.

4. The allegations in the FIR are as follows: “Statement of Sanjay Pal S/o Mahendra singh Pal R/o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma – Vijay Lakshmi Finance & Investment Company before two years back for a consideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R/o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has not been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the 11

new R.C.. I returned him the old R.C. He suggested me that now the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp nor used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has come to my notice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a notice stating that I will make the payments of the installments in the name of Real Auto Deals but you are not doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 O’clock he came to me in Jhilmil along with an unknown person, I can recognize him if he comes to me, took my said Maruti Van with his help without my consent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in connivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is correct. Sd/- English. Sanjay Pal 31.1.97 Attested Sd/- Snglish Satya Narayan ASI 31.1.97″.

5. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the complainant against financing of the vehicle in different accounts. It is also 12

alleged in the FIR that the appellant sold the vehicle of the complainant to some other party by making forged signature and by playing fraud with him.

6. On the basis of the above FIR charges were framed against the appellant and co-accused Man Mohan Sharma.

7. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been compromised between the complainant and the accused. In that writ petition an affidavit was filed by the complainant stating that in view of the settlement between the parties he is withdrawing the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and a further sum of Rs. 45,000/- would be paid to the co-accused Man Mohan Sharma.

8. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal.

9. It may be mentioned that under Section 320(1) Cr.P.C. certain offences in the IPC can be compounded by the persons mentioned in the 3rd column of the table in that provision. Also, in view of Section 320(2) 13

certain other offences can be compounded with the permission of the Court. However, Section 320 (9) specifically states: “No offence shall be compounded except as provided by this Section”.

10. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120-B IPC (with are mentioned in the FIR in question) cannot even be compounded with the permission of the Court. In fact, Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions mentioned in the FIR in question could not be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC.

11. There are other provisions in the IPC e.g. Section 498A which apparently cannot be compounded even with the permission of the Court in view of Section 320 (9) Cr.P.C.

14

12. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others vs. State of Haryana 2003(4) SCC 675 [= JT 2003(3) SC 277 = AIR 2003 SC 1386]. In that decision this Court referred to its own earlier decision in Madhu Limaye vs. State of Maharashtra 1977 (4) SCC 551 in which it was held (vide para 8) that the power under Section 482 should not be exercised when there is an express bar in some other provision of the Code. The Court in B.S. Joshi’s case (supra) also referred to the decision in Surendra Nath Mohanty vs. State of Orissa AIR 1999 SC 2181 which held that since the offence under Section 326 IPC is not compoundable the High Court cannot compound the offence.

13. Despite the above decisions this Court in B.S. Joshi’s case (supra) relying on its own decision in State of Karanataka vs. L. Muniswamy 1977 (2) SCC 699 observed that the High Court under Section 482 Cr.P.C. can quash the criminal proceedings if it comes to the conclusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a compromise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the criminal proceedings to continue. They should, therefore, be quashed by exercising power under 15

Section 482 Cr.P.C. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692, G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 for taking the same view.

14. In B.S. Joshi’s case (supra) this Court devised a creative solution to the problem and quashed the proceedings in exercise of its power under Section 482 Cr.P.C.. The said decision was followed by this Court in Nikhil Merchant vs. Central Bureau of Investigation & another JT 2008 (9) SC 192.

15. Shri B.B. Singh, learned counsel for the respondent submitted that the High Court or even this Court would not be justified in giving directions to quash a criminal proceeding in view of the compromise between the parties when the offence has been expressly made non-compoundable by Section 320 Cr.P.C. He urged that the Court cannot ignore any substantive statutory provision dealing with the subject and cannot issue a writ or a direction in violation of the statute.

16. Ordinarily we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasized repeatedly by this Court e.g. in Divisional Manager, Aravali Golf Club & another vs. Chander Hass & 16

another JT 2008(3) SC 221, Government of Andhra Pradesh & others vs. Smt. P. Laxmi Devi JT 2008 (2) SC 639 restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.

17. Since Section 320 Cr.P.C. has clearly stated which offences are compoundable and which are not, the High Court or even this Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has expressly prohibited. Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence. 17

18. However, it has to be pointed out that Section 320 Cr.P.C. cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads: ” Saving of inherent power of High Court. – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

19. The words “Nothing in this Code” used in Section 482 is a non obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. The words “or otherwise to secure the ends of justice” in Section 482 implies that to secure the interest of justice sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.P.C.

20. It is true that in certain decisions of this Court it has been observed that the power under Section 482 Cr.P.C. cannot be exercised to do something which is expressly barred under the Code vide Mosst. Simrikhia vs. Dolley Mukherjee AIR 1990 SC 1605 (vide paras 2 & 4), R.P. Kapur vs. State of Punjab AIR 1960 SC 866 (vide para 6), Sooraj Devi vs. Pyare Lal & another AIR 1981 SC 736 (vide para 5) etc. 18

21. However, in my opinion these judgments cannot be read as a Euclid’s formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclid’s theorem vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University 2008(8) JT 621, Bharat Petroleum Corporation Ltd. & another vs. N.R. Vairamani and another AIR 2004 SC 4778. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in B.S. Joshi’s case (supra), which has also been followed in other decisions e.g. Nikhil Merchant’s case (supra). Even in the judgment of this Court in Divisional Manager Aravalli Golf Club (supra) where emphasis has been laid on judicial restraint it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the country or society (vide para 39 of the said judgment). Judicial activism was rightly resorted to by the U.S. Supreme Court in Brown vs. Board of Education 347 U.S. 483, Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord Denning in England in several of his decisions.

22. While in the present case I respectfully agree with my learned brother Hon’ble Kabir J. that the criminal proceedings deserve to be quashed, the 19

question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the basis that the parties have entered into a compromise.

23. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor’s foot. 20

24. I am expressing this opinion because Shri B.B. Singh, learned counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi’s case (supra) should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private individual.

25. With these observations, I respectfully agree with my learned brother Hon’ble Kabir J. that this appeal is to be allowed and the criminal proceedings in question are to be quashed. Appeal allowed. No costs. …………………………..J.

(Markandey Katju)

New Delhi;

16th October, 2008

Categories: 498A Judgements

Repeated 482 Cr.P.C. Applications for the same relief without change of circumstances and facts not maintainable-482Cr.P.C. Applications dismissed.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Criminal Miscellaneous Application No.30030 of 2009
C.P. Singh …………………… Applicant
Versus
State of U.P. & another ………………. Opposite Party.

Connected with

Criminal Miscellaneous Application No.33719 of 2009
Raj Kumar Sachan & another …………………. Applicants
Versus
State of U.P. & another …………………. Opposite Party.

Hon’ble Vinod Prasad, J.

The above two Criminal Miscellaneous Applications arises out of the same Criminal Case No.6437 of 2008, State Versus Raj Kumar Sachan and others,(relating to Crime No. 467 of 2007),under Sections 363, 392, 342, 323, 504, 506 IPC, Police Station Kalyanpur, District Kanpur Nagar pending before VI M.M. Kanpur Nagar and hence it both were clubbed together and are being disposed off by this common order. Challenge in these two Applications by the three Applicants- C.P.Singh, Raj Kumar Sachan and Ramanuj Katiyar,are to their summoning order dated 14.10.2008 and continuance of aforesaid criminal case against them. Criminal Miscellaneous Application No.33719 of 2009 was ordered to be connected with other Applications and were nominated to this Bench by the order of the Acting Chief Justice dated 18.2.2010 and hence both the aforesaid Applications along with other two Applications are listed before this bench.
Background facts relating to aforesaid two surviving Applications have got chequered facts and consequently, in seriatum, they are registered thus.
Jagmohan Singh son of Late Jaipal Singh, informant victim, moved an application under Section 156(3) Cr.P.C. before VIII Kanpur Nagar against Raj Kumar Sachan, Ramanuj Katiyar,(both Applicants) Subodh Kumar, C.P. Singh(Applicant) and four or five unknown persons dressed as IIT Security Personnels for committing offences under Sections 147, 363, 392, 342, 323, 504, 506 IPC. Allegations by informant victim were that he had instituted a complaint case No.1065 of 2007 against Raj Kumar Sachan (Administrator) and Subodh Kumar Sachan (erstwhile Secretary) of Technology Consumer Cooperative Society Limited, IIT, Kanpur,U/S 138 N.I. Act, which was pending. Complainant informant victim was the Store Keeper of the said Co-operative Society. Annoyed and motivated by the proceeding under Section 138 N.I. Act, aforesaid accused persons armed with country made pistol and accompanied by two or three unknown persons dressed as security personnels of IIT Kanpur cordoned of informant on 9.6.2007 at 6.00 p.m., when he was returning to his house, near the main road crossing of IIT Kanpur and at gun point robbed the keys of the godown and Rs.1900/- from the complainant victim. During the incident Ramanuj Katiyar had also assaulted the victims by fists. Complainant victim was dragged to the store where he was forced to sign on same blank papers. Victim was then pushed out of godown informing him that his services had been terminated. Resistance by victim and his threat that he will seek police help resulted in dragging him by Subodh Kumar Sachan, and then he was pushed into a white Maruti Van and was driven to and a house were he was kept in illegal confinement. He was also tied in chair with a rope and there accused persons conspired to falsely implicate him in a cooked up theft case of gas cylinders. With the help of some unknown persons victim , however, got himself freed on 11.6.2007 and then he came to know that place of his wrongful confinement was the house of applicant Raj Kumar Sachan. He vainly endeavoured to lodge a report with PS Kalyanpur, district Kanpur Nagar and left with no option, victim Jagmohan Singh wielded Magistrate’s powers U/S 156(3) Cr.P.C. On 14.6.2007 seeking his direction for registration of his FIR and investigation into the crime vide Miscellaneous Application No.254 of 2007, Jagmohan Singh Vs. Raj Kumar Sachan. VIII Metropolitan Magistrate, Kanpur Nagar, after obtaining a report from the police, directed for registration of FIR and investigation into the offences on 29.6.2007. It transpires that under the orders of the Magistrate police registered crime no.467 of 2007,U/Ss 147, 363, 392, 342, 323, 504, 506 IPC on 6.7.2007 at 8.15 p.m. against malefactors Raj Kumar Sachan, Subodh Kumar Sachan, C.P. Singh, Ramanuj Katiyar and unknown persons.
Investigation into the crime concluded in filing of FR No. 128 of 2007 on 1.8.2007. Victim informant protested acceptance of FR by filing a protest petition on 30.10.2007. Vide order dated 30.11.2007 M.M. VI, Kanpur Nagar accepted the protest petition, rejected acceptance of FR and directed further investigation into the offences. Further investigation again concluded in submission of FR for the second time on 26.6.2008. Informant repeated his exercise of filing a protest petition again on 29.8.2008 and this time VI Metropolitan Magistrate registered Criminal Case No. 6437 of 2008, State versus Raj Kumar Sachan And others, summoned the applicant accused to stand trial for aforesaid offence on 14.10.2008 while rejecting FR submitted by the investigating officer.
After being summoned all the named accused persons- Ramanuj Katiyar, Subodh Kumar Sachan, Raj Kumar Sachan and C.P. Singh moved to this court by filing 482 Cr.P.C application No.2762 of 2009 on 3.2.2009 praying thereunder that their summoning order dated 14.10.2008, Annexure No.9 and proceeding of aforesaid Criminal Case No.6437 of 2008, State Vs. Raj Kumar Sachan and others be quashed. In the aforesaid 482 Cr.P.C. application, applicant no.2 Subodh Kumar Sachan was the deponent in the affidavit appended therewith mentioning in paragraph 1 thereof that he himself was applicant no.2 and was doing parvi on behalf of applicant nos. 1, 3 and 4. Aforesaid 482 Cr.P.C Application came up for admission on 5.2.2009 and after hearing counsel for the Applicants at a great length the same was dismissed being bereft of merit and not maintainable.
Another fact which requires to be taken note of at this juncture is that 138 N.I. Act proceeding was also challenged by the accused Subodh Kumar Sachan and Raj Kumar Sachan by filing 482 Cr.P.C. application No.2865 of 2008, which was dismissed by this Court on 11.3.2008. Concealing first rejection, those accused, through Sri Sujeet Kumar Rai advocate, filed second 482 Application No. 2966 of 2009 on 4.2.2009. At the time of admission of later 482 Application, Sri D.P. Singh, Advocate appeared for the complainant victim and produced the earlier order and consequently the second exercise by those two accused for getting proceeding under Section 138 N.I. Act quashed recoiled back and their second exercise in 482 Application No. 2966 of 2009 was dismissed by imposing a cost of Rs.25,000/- by this Court.
It was after the aforesaid two failure exercises, that accused applicant C.P. Singh preferred second 482 Cr.P.C. Application being Crl. Misc. Application No. 30030 of 2009 for the same relief which was already rejected by this court on the earlier occasion of getting the prosecution of Case No.6437 of 2008, State Vs. Raj Kumar Sachan and others quashed including summoning order dated 14.10.2008.In original Application applicant had not divulged fact of filing of earlier 482 Cr.P.C Application No.2762 of 2009 and applicant succeeded in obtaining a stay of proceeding order from this Court on 7.12.2009. Following suit two other accused Ramanuj Katiyar and Raj Kumar Sachan filed another 482 Cr.P.C. Application No.33719 of 2009 with identical prayer. Noticeable here is another fact that interregnum one of the accused Ramanuj Katiyar had also approached this Court under Section 482 Cr.P.C. and had obtained an order for expeditious disposal of his bail on 7.12.2009 in Application 30266 of 2009.
At the time of admission of 482 Application no. 33719 of 2009 this court on 10.2.2010 noted that the first 482 Cr.P.C Application filed by the two accused Raj Kumar Sachan and Ramanuj Katiyar was dismissed by this Bench in earlier 482 Cr.P.C. Application No.2762 of 2009 that His Lordship was pleased to send the matter before Acting Chief Justice for nomination along with other 482 Cr.P.C. Applications No.2762 of 2009 and 30030 of 2009 vide order dated 10.2.2010. All the Applications were placed before Hon’ble The Acting Chief Justice, who was pleased to nominate this Bench on 18.2.2010 and that is how all the Applications came up before this Bench.
When the two undisposed off 482 Cr.P.C. Applications 30030 of 2009, C.P. Singh Vs. State and Crl. Misc. Application No. 33719 of 2009, Raj Kumar Sachan and another Vs. State of U.P. came up for admission before this Court then Sri D.P. Singh, counsel for the informant, objected to filing of second 482 Cr.P.C. petition on behalf of C.P. Singh as his the earlier Application was dismissed on merits as well as for the reason that the same was not maintainable. Sri Samit Gopal, learned counsel for C.P. Singh accused filed a Misc. Application on 19.1.2011 with the prayer “to declare the Criminal Misc. Application No. 2762 of 2009, Ramanuj Katiyar and others Vs. State of U.P. and another as not been filed either by the applicant or on his instructions otherwise applicant may suffer irreparable loss and injury”. On such an application, this Court directed for giving notice in writing to the counsel who had filed earlier 482 Cr.P.C. Application and after his appearance has questioned him as to whether he had filed earlier 482 Cr.P.C. application or not, on which, the aforesaid counsel Sri Sujeet Kumar Rai informed the Court that he had filed earlier 482 Cr.P.C. Application No. 2762 of 2009 on behalf of all the accused. To make the pleadings complete and bring entire facts on the record, Sri Sujeet Kumar Rai, Advocate was directed to file an affidavit disclosing his stand. Sri Rai has filed an affidavit of his clerk Sri Gyanendra Kumar Yadav, a copy of which has been duly served on Sri Samit Gopal, counsel for accused-applicant C.P. Singh and also on Sri D.P. Singh, counsel for the informant-victim. On personal knowledge, clerk Gyanendra Kumar Yadav has sweared that the three applicants namely Ramanuj Katiyar, Subodh Kumar and Raj Kumar Sachan had approached Sri Sujeet Kumar Rai, Advocate and had requested him to file 482 Cr.P.C. Application on their behalf as well as on behalf of C.P. Singh. They had also informed the aforesaid counsel that they will disclose the parentage of applicant C.P. Singh later on. By mistake, the parentage of C.P. Singh could not be entered in that 482 Cr.P.C. Application No. 2762 of 2009 but it was under the instructions of C.P. Singh that the aforesaid 482 Cr.P.C. application was filed by him.
On the above facts, I have heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Samit Gopal advocate for the applicant C.P. Singh, Sri D.P. Singh advocate for the informant and learned AGA for the State in opposition.
As a preliminary argument, Sri Chaturvedi submits that earlier 482 Application was not filed by C.P.Singh and he had not instructed other three accused to file Application on his behalf as well. C.P. Singh had not engaged Sri Rai as his counsel and therefore instant 482 Application be treated to be first exercise and therefore be considered on merits. It was next submitted that applicant C.P. Singh had no connection with rest of the accused and he has been roped in maliciously and therefore his prosecution be quashed.
Per contra, counsels for the informant and learned AGA refuted those submissions and contended otherwise. In their submission second exercise for the same relief is not maintainable or this court can review it’s earlier order in exrcise of it’s inherent power U/S 482 of the Code. On merits also it was submitted that since prima facie offence are disclosed therefore prosecution should not be scuttled at it’s inception and applicants be relegated to face the trial.
I have considered rival contentions and have perused all connected 482 Applications. What is unerringly culled out from the facts disclosed above is that the three applicants C.P. Singh, Raj Kumar Sachan and Ramanuj Katiyar had approached this Court earlier also by filing 482 Cr.P.C. Application No. 2762 of 2009 and the aforesaid application was dismissed on merits as well as on the ground of being not maintainable as the offences for which applicants were summoned were prima facie disclosed as was perceptibly clear from their impugned summoning order dated 14.10.2008, which was annexed as annexure no.9 to that Application. Further for supporting payer of quashing no material collected during investigation was filed and hence that 482 Application was based on suppression of material and relevant uneshewable facts which were relevant and germane for considering prayer for quashing and hence that Application was also dismissed as not maintainable. Neither any collected material during investigation was filed nor any recorded statement under 161 Cr.P.C. was annexed. Forming such an opinion this court had no option but to negative prayer for quashing on 5.2.2009, which order has attained finality as the same was not challenged in any higher forum. At that stage no detailed examination was required as there was no material before this court to undertake such an exercise. Otherwise also from the impugned summoning order sufficient evidences were disclosed for prosecuting applicant and hence detailed order was not required at all. In this respect regard can be had from the apex court decision in Madhumilan Syntex Ltd. Vs Union Of India: AIR 2007 SC 1481 wherein it has been observed by the apex court as follows:-
“18. Similarly, we do not see force in the contention that the petition could not have been dismissed in limine without recording reasons. It was not a substantive appeal which was heard by a Court. An application for discharge of accused was rejected by the trial Court. Revision petition was also dismissed by the Sessions Court and the said order was challenged before the High Court under Section 482 of the Code (Inherent power of High Court). If the High Court did not think it fit to exercise inherent powers in the light of the controversy raised, question involved and the stage at which the applicants had approached the Court, it cannot be said that the Court must pass detailed speaking order or record reasons in support of such order. That contention also, therefore, has no force.”
Turning towards preliminary contention that said 482 Application 2762 of 2009 was not filed by C.P. Singh or on his instructions, it is to be noted that deponent of affidavit filed in support of that Application was one of the co accused and an applicant himself. Paragraph 1 of the affidavit clearly averred that the deponent in the aforesaid affidavit was doing pairvi on behalf of rest of the applicants 1, 3 and 4. Through supplementary affidavit filed in the present 482 Cr.P.C. Application No. 30030 of 2009, C.P. Singh has no where averred that the averments of Subodh Kumar in the earlier 482 Cr.P.C. Application No. 2762 of 2009 that he was pairokar of the applicant was a false statement. C.P. Singh has not initiated any proceeding against Subodh Kumar for filing a false affidavit before this Court. He has not moved any application under Section 340 Cr.P.C. Unbelievable is the fact that it was unbeknown to C.P. Singh that said 482 Application No. 2762 of 2009 was also filed on his behalf for complete a year and he did not gain knowledge about it albeit he was a co accused in that very case where prayer for quashing was negatived by this court. Contention of C.P. Singh that he had not instructed anybody to approach this Court on an earlier occasion to get the proceeding quashed is not acceptable as mere ipse dixit of C.P. Singh applicant is unacceptable and unconvincing. Subodh Kumar deponent in earlier 482 Cr.P.C. application will never accept that he was not instructed by C.P. Singh and contrary C.P. Singh had no defence except to plead that he had never instructed Subodh Kumar. This court has no reason to disbelieve statement by Sri Rai and affidavit by his clerk that earlier Application was also required to be filed on behalf of C.P.Singh as well. Be that as it may, the conduct of all the applicants in approaching this Court repeatedly without disclosing complete material and correct facts are that of unscrupulous litigants indulging into insalubrious and unholy practice.
For above view support can be drawn from past conduct of applicants who are in the habit of filing successive Applications for the same relief U/S 482 Cr.P.C. in this Court without change of fact situations and without disclosing factum of filing of earlier 482 Cr.P.C. Applications. Exemplar situation are that for quashing of proceedings under Section 138 N.I. Act, two of the accused Subodh Kumar and Raj Kumar Sachan had approached this Court twice for the same relief without change of circumstances in 482 Cr.P.C. Applications No. 2865 of 2008 and Application No. 2966 of 2009. Two of the accused Raj Kumar Sachan and Ramanuj Katiyar, for the same relief without any alteration of facts, for getting their prosecution for offences of robbery, illegal confinement, abduction and other offences quashed, approached this court twice, firstly in 482 Cr.P.C. Application No. 2762 of 2009 and secondly in 482 Cr.P.C. Application No. 33719 of 2009. C.P. Singh also filed instant 482 Application without disclosing about earlier Application and it was only when the case was nominated to this bench that he filed supplementary affidavit disowning earlier Application. By change of Advocate, they wanted to cheat the Court by suppression of material facts of dismissal of their identical prayers on the earlier occasions. Their summoning order dated 14.10.2008, which was considered on the earlier occasion in 482 Cr.P.C. Application No. 2762 of 2009 on merits also dis-entitled them for any relief whatsoever.
Another reason for taking opinion against the applicants is that earlier order dated 5.2.2009 dismissing identical prayers, without change of circumstances and materials, on the subsequent occasion, can not and should not be reviewed by this court. Section 362 Cr.P.C. comes in way of this court to entertain second exercise for the said relief without change of fact situations. This aspect of the matter had already been concluded by a catena of decisions of this court as well as by the apex court. Power U/S 482 Cr.P.C. can not be utilized to alter concluded final decisions by the same bench or bench of co-ordinate jurisdiction and reliance in this respect can be placed on an apex court decisions in : AIR 1979 SC 87 wherein it had been held by the apex court as follows:-
” 20……….Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W. B. v. Mohan Singh, AIR 1975 SC 1002 by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra’s case (AIR 1955 SC 633) (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review on revision can be entertained against that judgments as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.”
(underline emphasis supplied)
In Hari Singh Mann V.Harbahjan Singh Bajwa : (2001)1 SCC 169apex court has taken the same view as follows:-

” 9. There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87 : (1979 Cri LJ 462) held (para 20 of AIR Cri LJ) :
“Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides, 1958 SCR 1226 : AIR 1958 SC 376 : (1958 Cri LJ 701) relates to the power of the High Court to cancel bail. The High Court took the view that under S. 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in 72 Ind App 120 : AIR 1945 PC 94 : (1945 (46) Cri LJ 662) (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under S. 561A. In Sankatha Singh v State of U. P. (1962) Supp (2) SCR 871 : AIR 1962 SC 1208 : (1962 Cri LJ 288) this Court held that S. 369 read with S. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for a re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of S. 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside itself and re-hear the appeal observing that “Section 369 read with S. 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed except for the purpose of correcting a clerical error. Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh, AIR 1975 SC 1002 : (1975 Cri LJ 812) by Mr. Patel, learned Counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra’ s case AIR 1955 SC 633 : (1955 Cri LJ 1410) (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.”
10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain’s case (AIR 1958 SC 376 : 1958 Cri LJ 701) (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.”
Same view has been affirmed by the apex court in Mohd. Yasin Vs State of U.P.: (2007) 7 SCC 49 and hence this court is bound by the above view.
Prosecution of the applicants is pending for more than two years. By indulging into unfair practices, applicants have successfully installed their criminal trial till this date. Dockets of Courts are being saddled because of such unholy practices for which there is so much of criticism in spite of all the best efforts being put in by this Court to clear the racks of backlog cases. Our heuristic experience inform us of filing of successive 482 Cr.P.C. Applications by unscrupulous litigants for the same reliefs without disclosing complete facts, which are burdening this Court with unprecedented load of work.
Concluding this order, for the above reasons I find no ground to entertain either of the 482 Cr.P.C. Applications being Criminal Misc. Application No. 30030 of 2009,C.P. Singh Vs. State of U.P. and Criminal Misc. Application No. 33719 of 2009, Raj Kumar Sachan and another Vs.State of U.P., and hence both the aforesaid 482 Cr.P.C. Applications are dismissed.
Interim order granted by this Court in 482 Cr.P.C. Application No. 30030 of 2009,C.P. Singh Vs. State,dated 7.12.2009 as is extended from time to time stands vacated. Trial court will do well to take up the case without delay and endeavour to complete it expeditiously.
Dt.3.3.2011
RK/AKG/-

Categories: Judgement

HC: Exclusive property – when can be divided u/s 27 of the Hindu Marriage Act

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
First Appeal No. 582 of 1998
Hemant Kumar Agrahari … Appellant
Vs
Laxmi Devi … Respondent

Hon’ble Yatindra Singh, J
Hon’ble Mukteshwar Prasad, J.

(Delivered by Hon’ble Yatindra Singh J.)
1. This case involves diverse emotions–from happiness to disappointment and then determination to start new life. It also involves the interpretation and scope of section 27 of Hindu Marriage Act (the Act) as well as jurisdiction of the matrimonial courts to dispose of exclusive property of the spouses.

FACTS
2. Smt. Laxmi Devi (the wife) was married with Sri Hemant Kumar (the husband) on 30th April 1996. The marriage was not successful. It did not last long; it was not even consummated. According to wife her husband was already having physical relationship with one Sushri Sunita Pathak and continued to have it even after the marriage. Few meetings were held for settlement of dispute between the parties but were unsuccessful. The wife filed a petition for divorce under section 13 of the Act on the ground of adultery and cruelty. She also prayed for relief for return of the goods/amount given at the time of marriage and apart from her husband, impleaded her father-in-law and Sunita Pathak in the suit. The defendants denied the case of the wife. The court below framed necessary issues. The wife examined herself (PW-1) and produced two witnesses namely her brother Sri Ram (PW-2) and one Shri Mool Chand Gupta (PW-3). The defendants examined Hemant Kumar (DW-1), one Juggi Lal (DW-2) real Mausa of the husband and one Shri Shiv Prakash Kushwaha (DW-3) cousin of the husband. The court below recorded the following findings;
The husband was having relationship of husband and wife with Sunita Pathak since before the marriage and has continued the same even after it.
The marriage was not consummated.
The husband is guilty of cruelty
The wife has justifiable reasons to live separately from the husband.
The goods mentioned in item nos. 4 and 5 of the plaint and Rs. 75,000/- cash were given at the time of marriage.
On the basis of aforesaid finding, the court below decreed the suit for divorce and for return of Rs. 75,000/- in cash and goods mentioned at item numbers 4 and 5 of the plaint.

3. The husband and his father have filed this appeal against that part of decree by which the court below has ordered return of cash and goods mentioned at item nos. 4 and 5 of the plaint. The wife has filed cross-objection against that part of decree by which the court has refused to grant decree for the return of the cash and goods mentioned at item nos. 1 to 3 and 6 of the plaint. Neither the finding of the court below that the husband continued to have husband-wife relationship with Sunita Pathak has been challenged in this appeal, nor any one has challenged the decree of divorce granted by the court below.

POINTS FOR DETERMINATION
4. We have heard Sri Salil Kumar Rai counsel for the appellants and Sri RN Bhalla, counsel for Laxmi Devi (Plaintiff-respondent). Following points arises for determination in this case:
(i) Whether the wife is entitled to return of cash and goods? Whether the return of cash and the goods (mentioned at item nos. 4 and 5 of the plaint) has been decreed on the basis of inadmissible evidence?
(ii) Whether the goods ordered to be returned are not specific and no decree ought to have been passed?
(iii) Whether the cash/goods were exclusive property of the wife? Whether the court below had jurisdiction to decree return of the cash/goods?

POINT NO. 1: THE FINDING REGARDING CASH/GOODS IS CORRECT
5 Th Sri Salil Kumar Rai counsel for the appellants and Sri RN Bhalla, counsel for Laxmi Devi (Plaintiff-respondent). Following points arises for determination in this case:
(i) Whether the wife is entitled to return of cash and goods? Whether the return of cash and the goods (mentioned at item nos. 4 and 5 of the plaint) has been decreed on the basis of inadmissible evidence?
(ii) Whether the goods ordered to be returned are not specific and no decree ought to have been passed?
(iii) Whether the cash/goods were exclusive property of the wife? Whether the court below had jurisdiction to decree return of the cash/goods?

POINT NO. 1: THE FINDING REGARDING CASH/GOODS IS CORRECT
5 The counsel for the appellants submitted that the court below has decreed the return of cash and goods on the basis of photostat copy of minutes of panchayat dated 15.7.1997: it is secondary evidence and can not be relied upon.

6. The wife had produced photosat copy of minutes of panchayat. It is alleged to be signed by father of the husband, brother of the wife and is attested by the witnesses. Moolchand Gupta PW-3 is one of the witnesses of this document. He has stated that the origina1 was given to the father of the husband. He has also deposed as to what was agreed in the panchayat. Neither the husband, nor any of his witnesses have stated anything about this panchayat. They have also not stated whether father of the husband signed this document or not. Nevertheless the document produced was a photostat copy of the original and secondary evidence. It was not admissible under section 65 of the Evidence Act unless notice to produce as contemplated under the Evidence Act was given to the other side. There is no evidence that any such notice was given. It seems an inadvertent mistake on part of the counsel of the wife. However the photostat copy is inadmissible. But the decree may not be set aside if this finding is supported by other evidence on record.

7. The court can take judicial notice of the fact that in our society parents present gifts to their daughters and son-in-laws. Unfortunately some time it is forced, but often it is voluntary for the bright future of the newly weds. There is presumption that gifts must have been given from girl’s side during marriage. In this case the wife produced herself and made a statement about the goods gifted to her during marriage. She has also stated that cash of Rs. 75,000 was given at ”tilak’. The witnesses produced on behalf the defendant-appellants accepted having received many items, though the gift of Rs. 75000/- was disputed. According to them only Rs. 5000/- in cash was given. The trial court had the opportunity to watch the demeanor of the witness and found the statement of the wife trustworthy on this aspect. We see no reasons to doubt it. The court below has rightly held that the goods mentioned in item nos. 4 and 5 of the plaint and cash Rs. 75000/- were given and this finding is upheld.

8. The court below has mentioned that no specific thing is mentioned in item nos. 1 to 3 and item no. 6 and has not ordered for the return of the same. We agree with the findings recorded by the trial court in this respect also. There is no justification to decree the suit for the item other than those decreed by the court below.

POINT NO. 2: MONEY DECREE SHOULD BE PASSED
9. The counsel for the appellants submitted that in item nos. 4 and 5 of the plaint no details of the specific goods have been mentioned and decree can not be executed.

10. It is correct that specific details of the goods i.e. model, year of manufacturing, size, brand and other specification have not been given in the petition. The wife also did not disclose them in her evidence. The husband disclosed that the TV, which was given to him in the marriage, was black & white. On the other hand, the wife stated that colour TV was given. Dispute may arise at the time of execution of decree and a number of objections may be raised in the execution proceedings regarding condition of the goods and brand etc. This may cause further delaythe cash given at the time of marriage, we assess the value of the goods mentioned in the item nos. 4 and 5 at Rs. 1 lac. The appellants are liable to return Rs. 1 lac (value of goods in item nos. 4 and 5) and Rs. 75,000/- given in cash (total one lac and seventy five thousand) to the wife. As the appellants are using the goods/cash since marriage between the parties; they are liable to pay simple interest at the rate of 6 per cent on this amount from the date of judgment of the court below till the date of actual payment.

12. We would like to clarify that no arguments were advanced before us regarding maintenance to the wife and we have not considered it. It would be open to her to claim the same if permissible under the Act.

POINT NO. 3: COURT BELOW HAD JURISDICTION
13. Counsel for the appellants brought to our notice section 27 of the Act (see below)2 and submitted that two conditions are necessary under this section:
(i) The property must have been gifted at or about the time of marriage.
(ii) It must jointly belong to the husband and wife.
According to him, most of the property is exclusive property of the wife and no decree can be passed for their return.

14. Section 27 of the Hindu Marriage Act is similar to section 42 of the Parsi Marriage and Divorce Act. Both of them provide that the matrimonial courts have power to deal with the property presented at or about the time of marriage. There is some conflict among the High Courts about the true interpretation and area of operation of these sections. The High Courts disagree whether the courts are entitled to deal with exclusive property of the parties or not. The Delhi High Court, Orissa High Court, Jammu and Kashmir High Court, and Punjab and Haryana High Court (see below for citation of these cases)3 have held that exclusive property of the parties can not be dealt by the matrimonial courts under section 27 of the Act and they should seek remedy before regular civil courts.

15. The Allahabad, High Court, Bombay High Court, and MP High Court (see below for citation of these cases)4 have taken a contrary view and have held that exclusive property of the parties can also be dealt by the matrimonial courts. The Allahabad and MP High Court were concerned with the ornaments (stridhana) given to the wife at the time of marriage. The Bombay High Court was concerned with the ornaments given at the time of marriage and some other property that the wife had purchased from her own earnings during marriage i.e. property not presented at or about the time of marriage and exclusively belonging to the wife. This view has been taken on the basis that section 27 of the Act does not prohibit the disposal of the exclusive property belonging to one of the parties and matrimonial courts can deal with it under inherent powers of the courts.

16. The decision from the Bombay High Court was taken in appeal to the Supreme Court. It was partly overruled in Balkrishna R Kadam vs. Sangeeta B Kadam (AIR 1997 SC 3652=1997 (7) SCC 500) (the Balkrishna case). The Supreme Court held:
‘It [Section 27 of the Act] includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression “at or about the time of marriage” has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their “joint property”, implying thereby that the property can be traced to have connection with the marriage. All such property is covered by Section 27 of the Act.’

17. In substance the Supreme Court in the Balkrishna case held that property covered under section 27 must be traced to marriage and should be connected with it. In this case cash and goods were presented at the time of ’tilak’ or marriage. The ceremony of ’tilak’ is normally held at boy’s place: sometimes immediately before marriage and sometimes many days before it; however it is part of marriage. The gifts given at ’tilak’ are also property given at or about the time of marriage, they are connected with it. Cash or goods in dispute are property within meaning of section 27 of the Act as explained in the Balkirshna case.

18. The counsel for the husband submitted that it was not enough that property should have connection with marriage but should jointly belong to the parties. According to him though some of them (sofa, almirah or TV etc.) could be joint property of the parties, but others (jewelery etc.) though presented at the time of marriage were exclusive property of the wife and no decree could be passed in respect of them. With due respect, the Supreme Court did not lay down any such proposition in the Balkrishna case.

19. Matrimonial cases are tried by the District Court and if Family Court has been established then by the Family Court. They are decided by the senior Judges at the district level and civil procedure code is applicable. The entire proceeding is like a regular suit; though court is required to conciliate between the parties. The Judges manning matrimonial courts are senior enough to decide about exclusive property on the regular side. Same procedure is applicable in the matrimonial cases. It is correct that section 13 of the Family Courts Act declares that a party shall not have right to legal representation, but court can always permit legal representation . In case complicated questions are involved, permission for legal representation in the family court is normally granted; more so in a case where complicated questions regarding disposal of property are involved. In case the matter is before matrimonial court, then it is proper that all disputes relating to the parties should be settled by one court at the same time: leaving a part of the dispute to be decided in future in another suit would prolong acrimony and agony. Life should be spent in a fruitful way, rather than wasting it in constant bickering. There seems to be no reason as to why joint property presented at the time of marriage can be disposed of, but exclusive property presented at the time of marriage should be disposed of separately. This will not only result in multiplicity of the proceedings, but will also cause delay in final settlement and start of new life by the parties.

20. Lord Denning in Allen vs. Alfred Mc Alpine; 1968(1) AllER 543 said:
”Law’s delays have been intolerable. They have lasted so long as to turn the justice sour.’
It is truer in our country. We must adopt such interpretation as to avoid delay and multiplicity of proceedings.

21. Section 27 uses the phrase ‘property presented at the time of marriage, which may belong jointly to both the husband and the wife’ This section has one prerequisite as laid down in the Balkrishna case: the property must be connected with the marriage. So far as the question of property being jointly owned by the parties is concerned, suffice to say that the section nowhere uses mandatory word ‘must’ as being suggested by the counsel of the husband; it uses the word ‘may’. The phrase ‘which may belong jointly’–because of the use of the word may–includes within it penumbra the property which may not belong jointly to the parties. In our opinion, section 27 of the Act does not confine or restrict the jurisdiction of matrimonial courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage.

AN OBSERVATION
22. Generally wife is a house maker and stays at home and the husband is the earning member. He earns and acquires property in his own name: it is treated as his separate property. There is no decision in our country that separate properties of the spouses may be pooled and divided among them: at least we are not aware. However, in some parts of the world exclusive property of the parties is treated as community property or family asset and is divided between the two at the time of divorce.5 The reason is that house makers also work but they cannot acquire property as they are not paid in terms of money. It is for this reason that such laws were enacted and upheld in other parts of the world. Should we enact such a provision? Should section 27 be amended to include joint and exclusive property of the parties that are not presented at or about the time of marriage? Should the matrimonial courts have power to deal with entire dispute? Will the courts adopt procedure and interpret the law as done in some other parts of the world under their inherent powers even in absence of such provision? We have to wait for the future to disclose.

CONCLUSION
23. Our conclusions are as follows:
(a) Under section 27 of the Hindu marriage Act, Matrimonial courts have jurisdiction to dispose exclusive property of the spouses provided it was presented at or about the time of marriage.
(b) Photostat copy of the minutes of the panchayat was secondary evidence and was not admissible in absence of notice under section 66 of the Evidence Act. However, the finding regarding cash and goods mentioned in item no. 4 and 5 of the plaint is not vitiated as it can be sustained on other evidence.
(c) The court below, instead of return of the goods, ought to have decreed the suit for return of their value in terms of money.

24. In view of our conclusions, the appeal filed by the husband and the cross objection filed by the wife are dismissed. However, the decree passed by the Court below is modified to the extent that the marriage between the parties (Smt. Laxmi Devi and Sri Hemant Kumar) stands dissolved by a decree of divorce. The wife (plaintiff -respondent) shall be entitled to recover a sum of Rs. 1.75 lacs from the appellants (value of the goods mentioned at item nos. 4 & 5 of the plaint and Rs. 75,000/- given in cash) alongwith simple interest at the rate of 6 per cent per annum from 6.10.1998 (date of judgment passed by the court below) till the actual date of payment. Costs on the parties.
Date:14.5.2003
BBL

Categories: Judgement

HC: HM Act S 9-Plaintiff failed to produce best evidence to prove marriage – adverse inference drawn

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

FIRST APPEAL NO. 522 OF 1998

Smt. Surekha and another
versus
\ Jitendra alias Deshpal.

Hon’ble Yatindra Singh,J.
Hon’ble R.K.RAstogi,J.

( Delivered by Hon’ble R.K. Rastogi,J.)
1. This is an appeal against judgment and decree dated 5.10.1998 passed by Sri Chandrabhan, Judge Family Court, Meerut in matrimonial suit no. 495 of 1996, Jitendra alias Deshpal Vs. Smt. Surekha and another, decreeing the suit for restitution of conjugal rights.
2. The facts giving rise to this appeal are that the plaintiff respondent filed the aforesaid suit against the defendants appellants under section 9 of the Hindu Marriage Act with these allegations that the marriage of respondent Jitendra alias Deshpal had taken place with defendant appellant no. 1 Surekha on 17.6.1995 according to Hindu religion in presence of a large number of persons. Photographs of the marriage ceremony were also taken. Thereafter Smt. Surekha went to the plaintiff’s house at village Sarurpur Kalan and resided with him for three to four days, thereafter she went back to her parents’ house when her brother came for her Vida. There after she did not come to the plaintiff”s house inspite of his repeated efforts and she had deserted the plaintiff without any reasonable and lawful excuse. She had also taken with her the ornaments which were given to her by the plaintiff. Then the plaintiff had suspicion that her parents might have forcibly detained her and might have been forcing her to lead adulterous life with Gulvir, defendant no.2. Then he moved an application before the Sub Divisional Magistrate, Baghpat and got Surekha summoned
through police. Smt. Surekha appeared and denied her marriage with the plaintiff, Jitendra. Her brothers, uncles and maternal grand mother also gave the same statement. Then the authorities instead of giving her in the custody of the plaintiff , sent her back to her parents’ house. Then the plaintiff filed this suit for restitution of conjugal rights.
3. The defendant appellants no. 1 and 2 filed a joint written statement in which they denied the allegation of marriage of Surekha with the plaintiff Jitendra. It was further stated that photographs filed by the plaintiff are false and fictitious. No ornaments were given by the plaintiff to Surekha. Actually the marriage of Surekha had taken place with Gulvir, defendant no.2 and both of them are residing as husband and wife. Since no marriage had taken place between Jitendra and Surekha, Jitendra was not entitled to the decree of restitution of conjugal rights and his suit was liable to be dismissed.
4. Following issues were framed by the Judge, Family Court in the aforesaid suit:
(1) Whether the defendant no.1 is legally wedded wife of the plaintiff and whether she had deserted the plaintiff without any lawful excuse?

(2) Relief?

5. The learned Judge, Family Court held on issue no. 1 that it was sufficiently proved from the evidence on record that the marriage of the plaintiff had taken place with defendant no.1 Smt. Surekha and she is legally wedded wife of the plaintiff and she had deserted the plaintiff without any lawful excuse. He, therefore, held on issue no.2 that the plaintiff was entitled to the relief of restitution of conjugal rights and so he decreed the suit. Aggrieved with that judgment and decree, the defendants filed this appeal.
6. We have heard learned counsel for the parties and perused the record.
7. The first and foremost question to be determined in the present case is whether actually any marriage had taken place between the plaintiff and defendant no.1. The defendant no.1 Surekha examined herself as D.W.1 and she stated that her marriage never took place with the plaintiff Jitendra and actually her marriage had taken place with Gulvir. Her statement was recorded on 9.9.1998. She stated in her statement that she had also given birth to a daughter, who is the daughter of Gulvir. Gulvir also examined himself as D.W.2 and he stated that his marriage had taken place with Surekha and out of this wedlock a daughter was born to Surekha. The defendant also produced Karan Singh as D.W.3. His age was 76 years on 9.9.1998 when his statement was recorded. He had been Pradhan of the village from 1972 to 1982. He had passed B.Sc. (Agriculture ) Examination in the year 1947. He stated that he has been personally acquainted with Satpal and his daughter Surekha and the marriage of Surekha had taken place with Gulvir resident of village Sisauli and that her marriage had not taken place with any one else.
8. The plaintiff Jitendra examined himself as P.W.1, Kuldip as P.W.2, Bijendra Kumar as P.W.3 and Rameshwar as P.W.4 to prove his marriage with Surekha. Rameshwar P.W. 4 has stated that he is Pandit and had performed the marriage of Surekha with the plaintiff Jitendra. Bijendra Kumar P.W.3 is the photographer who had taken the photographs of their so called marriage. P.W.2 Kuldip is the driver of Maruti Van who had allegedly taken the marriage party of Jitendra to the place of marriage. The plaintiff has also filed 24 Photographs to prove the marriage tie between him and Surekha. However, out of these 24 photographs there is not even a single joint photograph of Jitendra and Surekha. There are some photographs of a lady along with Jitendra but the face of that lady is completely covered in all the photographs and it cannot be said that these photographs of the lady with veiled face are of Surekha.
9. It has been stated by Jitendra P.W.1 that according to the local custom the newly married bride does not open her face at the time of marriage and remains Parda Nashin and she opens her face after going to her in-laws’ house before younger members of the family. The above statement of Jitendra does not inspire confidence. Brides observe Parda with the elder members in the family of her husband but they do not observe any Parda at the house of their parents where they have resided since the time of their birth and so this allegation that Surekha did not open her face at the time of her marriage even at her parents’ house does not appear to be believable. Taxi Driver Kuldip P.W.2 has stated in his very examination-in-chief that at the time of Vida from the house of the parents of Surekha she had come upto the Maruti Van with open face. According to the statement of P.W.1 Jitendra the bride opens her face at the house of her husband before junior members of the family. Photographer Bijendra Kumar P.W.3 has stated that he had taken joint photographs of Jitendra and Surekha in village Sarurpur at the house of Jitendra. In those photographs the face of Surekha must have been open but no such joint photograph of Jitendra and Surekha with unveiled face has been filed. Non production of any such photograph when they had been taken at the house of Jitendra in village Sarurpur creates serious doubts regarding the allegation of marriage of Surekha with Jitendra because the general practice and custom is that after the marriage bride and bridegroom pose for romantic photographs infront of the photographer at their residence.
10. According to the statement of Jitendra P.W.1 father, mother, uncle, aunt, grand father, grand mother, sisters and others relations of Surekha were present at the time of her marriage with Jitendra, but it is to be seen that the father of Surekha, namely, Satpal did not perform Kanyadan of Surekha, and as per the evidence produced from the side of the plaintiff respondent, Kanyadan was done by Khajan, grand-father of Surekha. It is again not clear that when Satpal, father of Surekha was alive and was present in the marriage ceremony, as per statement of Jitendra P.W.1, why he did not perform Kanyadan ceremony of Surekha? P.W. 4 Pandit Rameshwar has stated that he does not know when father of Surekha had died, though he resides in the same village where parents of Surekha reside.
11. It is also to be seen that according to the statement of Kuldip P.W.2 he had taken Barat in Maruti Van no. DBB 820 owned by Yatindra of village Sarurpur. He has, however, admitted that it was a private vehicle and it was not registered as taxi and there was no permit to ply it as a taxi. Even then it was plied as a taxi and fare of Rs.500/- was charged for carrying the Barat.
12. All the above facts and circumstances go to show that the plaintiff had utterly failed to prove his marriage with Surekha. In this connection, it is to be seen that as per the statement of D.W.3 Karan Singh, marriage of the cousin sister of Surekha had taken place with a person residing in the village of the plaintiff Jitendra. Jitendra might have attended that marriage ceremony and he might have liked Surekha for marriage in that ceremony, but his proposal might not have been accepted by Surekha and her parents, and then he with a view to obtain Surekha filed this suit against her with false allegations of marriage producing some photographs which might had been taken at the time of marriage of that cousin sister of Surekha. 13. It is also to be seen that as per the allegations of the plaintiff his marriage with Surekha had taken place on 17.6.1995 and she resided at the house of Jitendra for 3 or 4 days only after the marriage and thereafter she came to her parents’ house and she did not return back to the plaintiff’s house and then he filed the suit for restitution of conjugal rights in the year 1996 which was decreed in the year 1998. A period of more than ten years has elapsed since June, 1995 when Jitendra and Surekha allegedly resided together for 3 or 4 days only and they have not resided together thereafter. On the other hand Surekha and Gulvir, her so called husband, are residing together and two issues have also been born to them. In this view of the matter, when Surekha is willingly residing with Gulvir and with her children born out of her relations with Gulvir, there is no justification for maintaining the above decree of restitution of conjugal rights in favour of Jitendra passed by the learned Judge, Family Court against Surekha, when he has utterly failed to prove his marriage with Surekha.
14. The appeal, therefore, deserves to be allowed and the judgment and decree passed by the learned Judge, Family Court are liable to be set aside and the plaintiff’s suit for restitution of conjugal rights against the defendants appellant no. 1 deserves to be dismissed.
15. The appeal is allowed. The judgment and decree passed by the learned Judge, Family Court, Meerut are set aside and the plaintiff’s suit for restitution of conjugal rights against the defendant no.1 Surekha is dismissed with costs throughout.
Dated:
RPP.

Categories: Judgement

HC:Murder of wife-Presence of husband established-D/D truthful-conviction confirmed

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Jail Criminal Appeal No.6365 of 2008

Sukh Ram……………………………Appellant
Versus
State of U.P……………………..Opposite Party.

Hon’ble Vinod Prasad, J.
Hon’ble Rajesh Chandra, J.

(Delivered by Hon’ble Vinod Prasad, J.)

Appellant Sukh Ram has preferred instant Jail appeal challenging his conviction under Section 302 I.P.C. with imposed sentence of life imprisonment with fine of Rs.5000/- recorded by Additional Sessions Judge, Court No. 2,Hamirpur, vide his impugned judgement and order dated 29.8.2003 passed in S.T. No.110 of 2000, State Vs. Sukh Ram, relating to Crime No.175 of 2000,Under section 302 I.P.C., police station Kotwali District Hamirpur.
Shorn of unnecessarily details and stated briefly, prosecution case is that informant Dulichand P.W.1 and his wife Smt. Sarju Devi P.W.2, both resident of Khalepur locality, Police Station Kotwali, District Hamirpur had four issues including Santosh and Munni Devi, deceased, their third child. She was married to appellant Sukh Ram and had two daughters Sudha and Monu from him. Since the appellant Sukh Ram had developed living relationship with one Guddi, daughter of Kandhi and had two issues from that extra-marital relationship, therefore three or four years prior to the foul incident of her murder, deceased Munni Devi had renounced appellant’s house in District Banda and was living with the informant in his house at Hamirpur, in an adjacent room from that of the informant. A month earlier to her murder, appellant Sukh Ram united with her at his in-laws house. Appellant was also demanding Rs.50,000/- from the deceased and was desirous to separate from her as well. In the night of 5.6.2000 at 2 a.m. appellant set ablaze Munni Devi, after pouring kerosene oil upon her inside their room and thereafter, bolted the door from outside and rushed to the Police Station Kotwali. Shrieks of Munni Devi attracted her parents Sukh Ram and Sarju Devi(PW1 and PW2), who unbolted the door, doused the fire and rushed her to the hospital with the help of neighbours. Doctor P.N. Pariya P.W.6, hospitalised her at 2.15 a.m. and also informed Inspector Kotwali, Hamirpur vide paper number 9-Ka, Ext. Ka-5. Same day informant came to the District court, Hamirpur where he dictated and got typed his written report, Ext. Ka-1, through Balak Ram Pandey, typist and then lodged it at Police Station Kotwali, Hamirpur at 3.10 p.m.
Head Constable Ram Avtar, P.W.7 registered the offences under sections 498A/ 307 I.P.C., prepared the Chik F.I.R. Ext. Ka-7 and relevant GD entry Ext. Ka-8. Investigation of the crime was commenced by S.I. Jiledar Singh P.W.9,who firstly interrogated Head Constable and the informant and then, reaching at the spot, conducted spot inspection and prepared the site plan Ext. Ka-10.Appellant was arrested same day vide arrest memo Ext. Ka 11, and was lodged in the lock up at 7.45 p.m. Other witnesses, including the mother of the deceased, were interrogated by the I.O. on the following day. Munni Devi lost the battle of her life on 10.6.2000 at 3.15 a.m and therefore doctor S.K. Gupta, at 6.45 a.m. same day informed the police vide Ext. Ka 6, and consequently offences were altered to 498A/304B I.P.C. Subsequently, vide GD no.31, offence was further altered U/S 302 IPC under the orders of the Circle Officer of police. During investigation I.O. had also interrogated Naib Tehsildar, Shiv Charan Singh P.W.4, who had recorded deceased dying declaration, Ext. Ka-3, on 5.6.2000 from 5.10 a.m. to 5.25 a.m. and had made it a part of the case diary which he has proved as Ext. Ka-13. Concluding investigation I.O. charge sheeted appellant on 17.7.2000 vide Ext. Ka-12.
Autopsy on the dead body of the deceased was conducted on 10.6.2000 at 2.45 p.m. by doctor Prem Kumar Gupta P.W.3, who had proved his autopsy report as Ext. Ka-2. The deceased was 30 years of age having an average built body, her eyes were closed and mouth open. Rigor mortis had passed off from head, neck and upper extremities and was present in lower extremities. Skin had peeled off and pus discharge was present at burnt places, membarain, brain, spleen, gallbladder,both the kidneys, all were congested with both lungs having pus discharge oozing out. Chambers of heart contained clotted blood. Stomach contained food materials whereas pasty material and gases were present in the small intestine. Large intestine contained faecal matter and gases. Following ante-mortem burn injuries were detected on the corpse of the deceased:-
“Superficial to deep burnt of grade I to V present all over the body including scalp, soles and hands. Burnt 100%. The skin peeled off at places. Line of redness present. The scalp hair singed and pus present at places.”
In doctor’s opinion death was due to septicaemia as a result of ante-mortem burn injuries.
Appellant Sukh Ram was also medically examined vide Ext. Ka-4, by Doctor H.S. Verma P.W.5, on 5.6.2000 at 8.20 p.m., who was brought to him by CP Hriday Kumar Singh of P.S. Kotwali, district Hamirpur. Following injuries were detected on appellant’s body:-
“Superficial burnt on the right side face over the dorsal surface of wrist right hand,over the dorsal of thumb and index finger, over the right knee joint over the inner aspect of upper part of left leg. Blister present at places containing serum fluid.
Area of burnt about 15%
All injury caused by dry flame duration about one day.
On the basis of charge sheet, Ext. Ka-12, Chief Judicial Magistrate, Hamirpur summoned the appellant and finding his committed offence Session’s triable, committed the case to the court of Session’s ,where it was registered as S.T. No.110 of 2000, State Vs. Sukh Ram.
Sessions Judge, Hamirpur, on 14.12.2000, charged the appellant for offences under Section 302 I.P.C. and, in alternative, under Section 304B/498A I.P.C. Since appellant abjured those charges, therefore trial proceeded against him.
In order to cement the charge and establish appellant’s guilt, prosecution in all examined nine witnesses, out of whom informant Dulichand P.W.1, his wife Sarju Devi P.W.2 and Jalil P.W.8 were fact witnesses. Rest of formal witnesses included doctor Prem Kumar Gupta P.W.3 (Autopsy doctor),Naib Tahsildar Shiv Charan Singh (who had recorded dying declaration and had got the inquest conducted) P.W.4, Doctor H.S. Verma (Doctor who had medically examined the appellant) P.W.5, Dr. P.N. Paiya (who had admitted the deceased in the hospital and had appended certificate on the dying declaration) P.W.6, Head Moharrir Ram Avtar(who had registered the FIR and prepared the GD entry) P.W.7,and S.I.Jiledar Singh I.O.P.W.9.
During trial informant Dulichand P.W.1, Sarju Devi P.W.2, both parents of the deceased, besides narrating their allegations contained in the written report Ext. Ka-1 further testified that the appellant had an illicit extra marital relationship with Guddi with whom he had two children. They also testified that the appellant had come to reside in their house at Hamirpur a month prior to the incident. They further deposed that the incident is of 2 a.m. and after hearing the shrieks of their daughter when they reached the spot, they had witnessed appellant bolting the latch of the door from outside.PW1, informant further testified that the room in which the deceased and the informant were residing was adjacent to his bed room. He also deposed that he is a vegetable grocer and had a meagre earning. His further deposition is that the deceased Munni Devi was residing with him since 2-4 years prior to the incident and Guddi was appellant’s concubine. In his cross-examination he had testified that when Dying declaration was being penned down by Naib Tehsildar Shiv Charan Singh P.W.4, then only doctor and PW4 were present inside the ward. It was further deposed that at the time when the incident occurred they were sleeping in Aagan(court yard) whereas deceased and the appellant were inside their room. Prior to the incident they had dinned together at 8.00 p.m. and had some chat. It was further narrated by the informant that he had got the FIR typed and thereafter had lodged it. He also disclosed that the body of the deceased was badly burnt. He has further testified that, at the time of interrogation of the deceased by the I.O., he was sent outside of the ward where the deceased was fighting for her life. He further deposed that the two daughters of the deceased Sudha and Monu were aged about four and three years. He has further deposed that no conversation took place between him and the deceased while she was admitted in the hospital. His further deposition is that he did not endeavour to apprehend the appellant, as he was attempting to douse the flames to save the life of his daughter. He has also stated that the room where the incident occurred had caught fire and he has sustained a loss of Rs. Fifteen thousand because of that. He also testified that the appellant used to assault the deceased many a times because of rapacity. This witness categorically denied the suggestion that the deceased had committed suicide and, in an endeavour to rescue her, appellant had also sustained burn injuries.
PW 2 Smt. Sarju, who is the mother of the deceased, also testified those very facts as were stated by her husband PW1 on all material aspects of the incident. Avoiding repetition and for the sake of brievity, we eschew referring them again and only observe this much that from her cross examination defence has not been able to shake her testimony at all and has failed to elicit any contradiction in her statement from that of PW 1 but for the suggestion given to her wherein it was suggested that a loan was advanced by the appellant to his brother -in-law Santosh(brother of the deceased), which was not being returned by him, inspite of demand being raised by the appellant, and therefore there was fued between brother and sister which resulted in deceased committing suicide by setting herself to fire and, in an attempt to save her, that the appellant had also sustained burn injuries. It was also suggested to her that all the money and ornaments of the appellant were kept with the informant and, pervaded with the intention to usurp it, that the appellant was falsely implicated by them. Both these suggestions have been emphatically denied by this witness. But for this, as has been recorded above, in respect of all other aspects of prosecution allegations, P.W.2 has fully corroborated the testimony of her husband informant Dulichand P.W.1.
Jalil P.W.8, another witness of fact, has fully supported the couple fact witnesses in all material aspects of the incident. He has deposed that on the date of the incident he had seen the deceased standing in a badly burnt condition and the flames were doused by the witnesses. Because of the inferno, even the room of the house of the informant had caught fire. He further testified that, on inquiry being made by him, deceased had informed him that appellant had set her a blaze. He further deposed that P.W.1 Dulichand and other relatives had carried Munni Devi to the hospital where she was treated but expired. He had further deposed that he is a witness of inquest on the dead body of the deceased, which was conducted in his presence, and he had signed the inquest memo, which signature he has proved as Ext. Ka-9. From his cross-examination accused has not been able to bring out any significant contradiction or any fact which can diminish credibility of prosecution version. This witness withstood the test of cross-examination and has remained intact.
All the formal witnesses have given supporting evidences as has been referred to above. Doctor Prem Kumar Gupta P.W.3, who had conducted the autopsy had testified the facts found by him and had proved post-mortem examination report,Ext. Ka-2. He was cross-examined but no material has been brought on record to make his testimonies suspect and unbelievable.
Naib Tahsildar Shiv Charan Singh P.W.4 has deposed regarding recording of dying declaration by him and, according to his testimony, he was ordered by SDM to record it, which order was received to him at 4-4.30 a.m. He had further deposed that he had met the doctor after reaching the hospital at 5 a.m. and he had started recording dying declaration at 5.10 a.m. and finished it 5.25 a.m. He further deposed that he had questioned the injured/deceased but had recorded her answers in a narrative form and not in question answer form. He has further testified that the deceased had informed him that at 2 a.m. appellant had set her to fire after pouring kerosene oil and thereafter had shut the door and had gone out. On shrieks being raised by her, Dulichand P.W.1 and neighbours had saved her and had transported her to the hospital. She had further deposed that the immediate motive of torching her body by the appellant was the illicit extra marital relationship with Guddi. PW4 has proved the dying declaration as Ext. Ka-3. He has also testified that he had taken the certificate of the doctor while recording the dying declaration. He had also narrated that during recording of declaration injured was fully conscious. His testimony lend credence to the deposition of first informant, when he has testified that, at the time of recording of D/D statement, P.W.1 Dulichand was not present inside the ward. He had denied the suggestion that he had manipulated the dying declaration in connivance with the parental relatives of the deceased and the certificate of the doctor was obtained subsequent to the recording. PW4 has further deposed that he had got the inquest report and other papers of the deceased transcribed through S.I R.C. Verma which papers he has proved as Ext. Ka-9 and other relevant papers prepared simultaneously as Ext. Ka-20 to Ka-23. He has further deposed that after sealing the dead body he had dispatched it for post-mortem examination through Head Constable Brij Pal Singh at 10.30 a.m. He has stated that he had started the inquest on the dead body at 9.30 a.m.
Doctor H.S. Verma P.W.5, who had medically examined the appellant,has testified that he had examined him on 5.6.2000 at 8.20 p.m. and had mentioned the same injuries as has already been noted above. He has proved the appellant’s injury report, as Ext. Ka-4. In his cross-examination he has said that these injuries can be sustained by the appellant while saving an inflamed person.
Doctor P.N. Pariya P.W.6, who had admitted injured Munni Devi in the hospital and has given the certificate on the dying declaration has testified the said facts and had further deposed that on 10.6.2000 at 6.45.a.m. her death intimation, Ext. Ka-6, was sent by doctor S.K. Gupta to Inspector Kotwali, Hamirpur. P.W.6 has also deposed that on 5.6.2000 at 2 a.m. he was on emergency duty, when the deceased was brought to the hospital in a burnt condition by her mother. He has stated nature of burn injuries sustained by the deceased as noted by him in Ext. Ka 19, which were fresh and 100%. Her condition was poor, pulse rate was 80 per minutes and blood pressure was not recordable. Smell of kerosene oil was emanating from her body. Skin had peeled off and there was excessive loss of water inside the body. He has further deposed that he had sent the message for recording of dying declaration in the night itself and Naib Tehsildar had reached the hospital at 5.00 a.m. when he was on duty and he had appended the certificate prior to the recording of dying declaration. He had denied the suggestion that he had appended the certificate in the column after recording of declaration.
Head Moharrir, Ram Avtar P.W.7 has testified regarding registration of first information report lodged by the informant on 5.6.2000 at 3.10 pm vide Ext. ka 7 and preparation of GD Ext. Ka 8. Nothing material has come out in his cross-examination, which can create suspicion regarding prosecution allegations. He had further deposed that informant had reached the police station alone to lodge the F.I.R. when I.O. Jiledar Singh, S.I. was present. He has also admitted that at 2.40 a.m. an intimation was received from the hospital regarding admission of Munni Devi in a burnt condition.
I.O Jiledar Singh, S.I. P.W.9 has disclosed various investigatory steps taken by him as has already been inked above in the earlier part of this judgement and therefore we do not repeat the same. He has also proved Ext. Ka 17, conversion GD from 498A/307 to 498A/304B I.P.C. prepared by clerk Vishwanath and Ext. ka 18, GD of conversion of crime under section 302 from 498A/304B I.P.C. prepared by him on 11.6.2000. He has also deposed that he had recorded the interrogatory statement of the injured/ deceased, under section 161 Cr.P.C., on 6.6.2000. He has further testified that C.O. had ordered on 10.6.2000 to make further investigation vide Ext. Ka 14.He had denied the suggestion that he had not conducted a fair investigation and had wrongly converted the offence. He has also deposed that the appellant had burn injuries at the time of his arrest. He has proved his charge sheet Ext. Ka 12 and other relevant documents. This witness was subjected to searching cross-examination but nothing material has come out of the same.
In his statement under Section 313 Cr.P.C., accused took the plea of total denial and had stated that Santosh had taken Rs.2000/- and, because of the fight between brother and sister, deceased had set herself ablaze. In his defence appellant has examined doctor P.N. Pariya(PW6) as DW1 and got the BHT(Bed Head Ticket )of the deceased proved as Ext. Kha-1. DW1 has testified that the deceased had died on 10.6.2000 at 3.15a.m. On being questioned by the court he has informed that when the dying declaration was being recorded then the patient was in a fit mental state and he has appended the certificate in that respect.
Additional Sessions Judge, court no.2, before whom Session’s Trial was transferred meanwhile, believed prosecution case in it’s entirety and finding guilt of the appellant established beyond all reasonable doubt convicted him vide his order dated 29.8.2003 for committing offence under Section 302 I.P.C. and sentenced him to imprisonment for life with fine of Rs.5000/-. Hence, the present Jail Appeal in this court by the appellant challenging his conviction and sentence.
Sri V.S. Shrinet was appointed Amicus Curie to argue the appeal on behalf of the appellant and we have heard him at a great length and have perused the entire trial court as well as the record of this appeal. We have also heard Sri Raghuraj Kishore Mishra and Sri Manoj Kumar Dwivedi, learned AGA in opposition.
Assailing the impugned judgement of conviction and sentence it was contended by learned Amicus Curie that the conviction of the appellant is bad in law, as initially the FIR was registered under Section 498A/307 I.P.C., which was altered to 498A/304B I.P.C. and subsequently was further altered under Section 302 I.P.C. Learned counsel submitted that when charge of causing of dowry death failed and was found to be false then the I.O., in connivance with Circle Officer, implicated appellant in a charge of murder and trial court wrongly disbelieved defence theory and passed the impugned judgement and order which is indefensible. It is submitted that the prosecution witnesses are not reliable and they have embellished the allegations by levelling a false charge of causing deceased death and therefore all the fact witnesses cannot be relied upon being wholly untruthful. It was further argued that because the marriage was solemnized more than seven years ago, therefore, charge under Section 304 B I.P.C. could not have been framed against the appellant. It was further suggested that F.I.R. is the outcome of manipulation, consultation and fabrication and is delayed, therefore, it has got no corroborative value at all. It was also argued that there was no eye-witness account of the actual putting to fire of the deceased, therefore, testimonies of three fact witnesses cannot be believed. It was further argued that the deceased had committed suicide because of the fight between brother and sister and appellant has been falsely implicated. Much argument was harangued on the injuries sustained by the appellant and it was canvassed vehemently that the appellant, in an endevour to save the deceased, had also sustained burn injuries, which unerringly is suggestive of his innocence and falsifies prosecution allegations. It was contended that P.W.1 Dulichand has admitted that when he had reached the police station appellant was already present there, which fact conspicuously supports defence case that appellant had gone to the police station to lodge his report regarding committing of suicide by the deceased but his FIR was not taken down and the police in connivance with the informant implicated him falsely in a charge of murder. It was further argued that the dying declaration is a sham document and was manipulated in conspiracy with the informant to implicate the appellant in the crime. It was lastly contended that the offence of the appellant will not be covered under Section 302 I.P.C. and since appellant had remained in jail for nine years, since 5.6.2000, therefore, if an order of clean acquittal is not registered, then the charge under Section 302 I.P.C. be altered to one under Section 304 part 1 I.P.C. and sentence be commuted to the period of imprisonment already undergone. It was concludingly submitted that the present jail appeal be allowed and appellant be acquitted of the charge and be set at liberty.
Refuting the harangued contentions by learned amicus curie learned AGA retorted that it is case of blatant murder of his spouse by the appellant because of his lustrous character, all the fact witnesses are reliable and they have no motive to falsely implicate the appellant. It was further submitted that the incident occurred inside the room where deceased and appellants were residing in the house of the informant and conduct of the appellant itself is indicative of his guilt and establish that but for him nobody else could have committed the murder. Defence of the appellant is so palpably false and absurd that it cannot be given any heed to at all submitted state counsel. It was next contended that when PW-1 was in the witness box no such suggestion was thrown to him that, because of discord with the brother, deceased had committed suicide and, the fact that the defence had no definite plea to raise during trial procedure,is a circumstance against the appellant and consequently trial judge has rightly rejected defence version. Inconsistent defence plea does not inspire any confidence and totality of proven facts surfaced appellant alone to be the perpetrator of the murder. Evidences further indicate that the appellant at different stages was trying to fish out a defence when he himself was the murderer. Drawing the curtain of the argument it was pleaded by the state counsel that the Jail appeal lacks merits, as the guilt of the appellant is established beyound any shadow of doubt, and therefore appeal of the appellants being without substance be dismissed.
We have cogitated over rival submissions and in that light have perused the entire record and our findings and conclusions are as follows.
The first and foremost aspect of the case set up by the rival sides admit almost entire actual incident of deceased catching fire in the presence of the appellant,inside the room where she was residing with the appellant in informant’s house .It is the defence case itself that the appellant was present at the time of the incident occurred and he endeavoured to save the deceased and in that process burnt himself. Since the law in this respect is very clear that the facts admitted need not be proved , which has also been statutory provided under section 58 of The Evidence Act, therefore we have no hitch is concluding that the appellant alone was present inside the room at the time when the deceased caught fire. Further, time, place and date of the incident is also not disputed by the defence and therefore we take those facts also to be proved beyond any pale of doubt. Deceased was soaked with kerosene oil prior to lighting fire is also not disputed and therefore is an established fact. It is also not in disputed that the deceased died due to burn injuries. On such evidences, since major portion of the prosecution case is admitted to both the sides, what remains for us to be determined is only the contentious issue as to whether the deceased was set a blaze by the appellant because of his unchaste character and therefore she was caused homicidal death or that it is a suicide by her because of dispute with her brother over assets of the appellant.
On summation of evidence critically on contentious issue, we find that the two fact witnesses informant- Dulichand PW-1 and Sarju Devi PW-2 are the parents of the deceased. Their presence at the time of the incident in their house is most natural and highly probable. They have supported each other on all important aspects of prosecution allegations. Defence suggestion to the informant that he was not present at the spot at the time of the incident happened is hollow, without any preceding circumstance and therefore can not be believed. These witnesses had no enimous with the appellant to such an extent as to exonerate real culprit and falsely implicate him. Other wise also in the dead hour of night in the closed walls of a house only inmates can be present. Evidences of father and mother corroborate each other without any significant contradiction to discredit their testimonies. Both have been tested by the defence by searching and lengthy cross examinations but it has failed to elicit any thing favourable to it. Both have deposed that when they reached the room, after hearing shrieks of their daughter, they witnessed appellant bolting the door from out side and seeing them he rushed out of the house. We have no reason to doubt this version by the parents who have lost their daughter in their own house. Such a conduct by the appellant is incompatible with his innocence, as it can not be a conduct of a husband , who according to his own version, attempted to save life of his wife. Evidence of PW 8 Jalil further lend credence to the prosecution version and supports our conclusion, as his deposition that the deceased, on inquiry being made by him, soon after the incident, when she was standing out side the room in a burnt physical condition, had informed him that appellant had set her to fire remains un-controverted. This disclosure by the deceased is in the nature of her oral dying declaration soon after the incident and is admissible under section 32(1) Of The Evidence Act and can even be relied upon without corroboration, if believed, which we do. Since we find that the evidences of eye witnesses are unshaky, reliable and inspire confidence, we have no reason to discard it.
Another pointer of appellant’s guilt is sustaining of injury by him in that very incident in which deceased has lost her life. Injury report of the appellant indicates that he had sustained dry flame injuries on his right face, right wrist joint, and hand, thumb, index finger and right knee. All these dry flame burns were superficial in nature being on outer surface of skin, may be on dermises. This establish appellant’s presence inside the room where incident occurred. Why then appellant did not desist deceased from pouring kerosene oil on her and why he did not attempted to call house inmates and why after fire did not open the room immediately and pulled the deceased out to douse her fire are all circumstances indicating appellants involvement in the crime. It seems that in an attempt to burn the deceased he got flame burns because of spurt of flame from kerosene combustibility. When we peep inside actual happening of the incident, to separate the grain from the chaff, we find that prosecution version of homicidal death is the likely outcome and defence of the appellant does not stand the test of scrutiny, which, to us, is palpably false. It is because of this reason that in his statement under section 313 Cr.P.C., appellant intentionally eschewed making a statement that he endeavoured to save the deceased when she had caught fire, albeit he made a vain attempt to probablise his such a defence by examining DW1, in which tryst he failed.
Another significant feature of the trial is that defence has failed to bring out any circumstance which may created doubt in our mind regarding the genuineness of the prosecution allegations. The deposition by PW1 and PW2, that they did not attempt to apprehend appellant but immediately open the door to save life of their daughter is very natural and consistent with human conduct, and makes them natural and truthful witnesses. It was PW2, who had carried the deceased to the hospital. We, thus, find that because of lustrous attitude and extra marital relationship deceased had renounced appellant’s company in district Banda and had returned to her parental house in district Hamirpur but the destiny shortened her life even there as well. The prosecution evidence clearly indicates that the parents PW-1 and PW-2 must be apprehending danger to the life of the deceased and therefore, they had given a room besides their own bedroom for her safety in their house. Their apprehensive cogitation must have multiplied also because of the fact that the deceased has two small daughters to foster. In such a view, we find that the deposition and the story set up by the prosecution is convincing and confidence inspiring.
Another important aspect of the prosecution case is that the defence has not seriously challenged the existence of Guddi and her concubine relations with the appellant. When PW1 and PW 2 were in the witness box defence could not muster any courage to seriously challenge this part of prosecution story and it remains unchallenged. This gives a strong motive to the appellant to commit the charged offence.
Now turning towards dying declaration and criticism levelled against it we find that the evidence of PW-4 Shiv Charan Singh is unblemished. Although dying declaration is not in question answer form,for which it has been criticised by the learned amicus curie, but we find that the same is a silly mistake committed by PW-4 Shiv Charan Singh, who in no uncertain terms has testified that he had questioned the deceased and then had noted her replies. No suggestion was given by the defence to him that the dying declaration was not recorded by him. The case of the appellant is that the dying declaration is a manipulated one. This suggestion by the appellant accused is bereft of any merit. Even the doctor DW1, who is an independent witness having no axe to grind against the appellant has supported PW-4 Shiv Charan Singh in respect of recording of D/D. He has negated defence suggestion of it being not recorded. He has deposed that during recording of said declaration deceased was in a fit state of mind. Further deposition by Naib Tahsildar is countenanced by evidence of PW 8, Jalil, who is also an independent witness belonging to another caste. He too had no motive to depose against the appellant. His evidence that the deceased informed him that the appellant had set her to fire goes unchallenged. More over statement of the deceased recorded by the I.O. under section 161 Cr.P.C. is also her D/D and by virtue of her death is admissible as such under section 32(1) Of The Evidence Act without formal proof. Thus even if PW 4 did not note deceased dying declaration in question answer form and got the certificate by the doctor in column, that does not discredit prosecution version at all as there are other relevant admissible convincing evidences in that respect on the record. Criticism of Dying declaration recorded by PW4, it seems, was harangued by the learned amicus curie only to be repelled. We also believe the narration of facts mentioned in the dying declaration because the Doctor, who had appended certificate and who according to prosecution case was present at the time of recording of dying declaration by Naib Tahsildar was examined as DW1 and he has cemented prosecution allegation of recording of such a declaration by Naib Tahsildar. Thus testimonies of PW 4 coupled with those of PW 6, who is also DW 1, goes a long way to anoint charge of murder on the appellant. The contents of the dying declaration further lend credence to the prosecution allegation and indicate that the same is truthful narration of facts.
Some criticism was also levelled by the learned amicus curie by pointing out that doctor had noted 100% burnt and therefore, thumb impression of the deceased on the dying declaration is a sham impression. This criticism by the learned amicus curie is demolished by his own witness DW-1. The doctor, PW6/ DW1 who had admitted the deceased in the hospital and was present in the ward at the time of recording of Dying declaration had clearly deposed that at the time of making the declaration deceased was in a fit state of mental condition. Defence did not question the doctor on thumb impression of the deceased on the dying declaration at all when he was examined as a prosecution witness. Thus we are not impressed by the argument of learned Amicus Curie that the dying declaration is a sham evidence.
Concluding argument by appellant’s counsel regarding dilution of offence and sentence is wholly unmerited. Appellant had burnt alive his own spouse by pouring kerosene oil because of his unchaste character and then bolted the room door from outside so that the deceased meets her instantaneous death,therefore, his crime can not be diluted to a lesser offence and consequently the last submission of amicus-curie is hereby repelled.
We also reject the argument that charge in alternative cannot be framed. It is trite law that a charge in alternative can always be framed. This aspect of the matter has been cemented by the judgement of the Apex Court, where it has been laid down categorically that a charge in alternative under section 304B/302 IPC can always be framed. More over we find that no prejudice has been caused to the appellant by convicting him of the charge of murder. He knew the allegations against him from the very inception of the trial. When charge was framed in alternative he did not raise any grievance in that respect nor challenged that order in higher forum. Since we find that no prejudice has been caused to the appellant by framing alternative charge we can not throw entire prosecution case overboard. In this respect we refer and rely upon a representative decision of the apex court in Balbir Singh and Anr. v. State of Punjab:AIR 2006 SUPREME COURT 3221 wherein it has been held as follows:-
“39. The said decision has also no application in the instant case. As the Appellants had the requisite knowledge of the charges against them, it may or may not be justifiable for the learned Trial Judge to frame an alternative charge, but from what we have noticed herein before evidently they were not prejudiced in any manner whatsoever.
40. Effect of framing of alternative charges vary from case to case. In the peculiar facts of present case, we are of the opinion that Appellants having not raised any grievance at any stage in that behalf, they cannot be allowed to do so at this stage.”
Another argument by learned amicus-curie is that there is no eye-witness account of the incident and the deceased committed suicide is wholly unappealing. We reject it out right as being wholly unmerited. Incident had occurred inside a room where the deceased was present only with the appellant and, since we have come to the conclusion that it is a homicidal death, the only inescapable result is that it was the appellant who had ablazed the deceased. There was no ostensible reason for the deceased to commit suicide, as the suggestion of lending the money and the discord between the brother and the sister is without any prefix and suffix. The bolting of the door from outside is indicative of appellant’s guilty mind. He had rushed to the police station to save his skin,if , caught at the spot which also indicates his guilty intention, as he also wanted to feign a defence for his guilt.
On an overall consideration, we find that the recorded conviction of the appellant does not call for any interference by us and therefore, we affirm trial court’s judgement of conviction and sentence. How ever we find that the trial court has committed an error in not passing any sentence to be under gone by the appellant in case of default in payment of fine and therefore we order that besides sentence of life imprisonment to be under gone by the appellant for offence under section 302 I.P.C. he shall under go six months further imprisonment in case of default in payment of fine.
The appeal lacks merit. It is dismissed with above modification in his sentence. Appellant is in jail. He shall remain in jail to serve out remaining part of his sentence.
Let a copy of this judgement be certified to the trial court for it’s intimation.
Dt.15.3.2010
Rk/ 6365/08.

Categories: Misuse Judgement

HC:Wife gang raped – husband not entitled to divorce

HIGH COURT OF JUDICATURE AT ALLAHABAD

2005 AllLJ 102
AFR
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
First Appeal No. 1084 Of 2003

Sri A …………………………….. Appellant
Versus

Smt. A …………………………………….. Respondent

Sri TP Singh … Advocates for the appellant
Sri Siddharth Singh

Sri Sher Singh
…. Advocate for the Respondent

Coram
Hon’ble Yatindra Singh, J
Hon’ble VS Bajpai, J
Date of Judgement: 5.8.2004
Judgement

HON’BLE YATINDRA SINGH, J
HON’BLE V.S.BAJPAI, J

(Delivered by Hon’ble Yatindra Singh, J)
1. This is an unfortunate case and we are deciding it with heavy heart.
THE FACTS
2. The appellant is the husband of the contesting respondent. The appellant and his two brothers are in Defence Services. However they are not in the officer category. His father was in defence services and has now retired. They have rural background. The appellant has a married sister who resides in the city of the same district. The father of the contesting respondent resides in the adjoining district. The contesting respondent also has rural background and has studied upto High School. Their residences are within the distance of 20 Kms from each other.

3. The parties were married on 11th May 1999 and lived together for some days after their marriage. The appellant joined his duties but could not take the contesting respondent alongwith him. The parties again lived together for some time in the month of October-November, 1999 when the appellant had come to his home district. The time when they were not together, the contesting respondent has been residing at her father’s residence and was visiting her in-laws off and on. The appellant was to come to take the contesting respondent with him but an unfortunate incident took place during 11-13 April 2000. Immediately thereafter the present suit for divorce has been filed by the appellant.

4. The plaint allegations are that:
The contesting respondent has illicit relationship with respondent no. 2.
She had been missing from 11 to 13 April, 2000 for which an FIR was lodged by the father of the contesting respondent on 12.4.2000. She was found in unconscious state on 13.4.2000 near a railway track.
She had left her father’s residence on 11.4.2000 with respondent no. 2 for abortion but later on respondent no. 2 duped her and she was gang raped during 11-13 April, 2000.

5. The contesting respondent filed her written statement. She did not deny that she was missing from 11-13 April, 2000 however she alleged that:
She does not know anyone by the name of respondent no. 2. She neither has any illicit relationship with respondent no. 2 nor anyone else.
Her in laws used to ill-treat her and the appellant had promised to take her with him. She was informed that the Appellant was coming and she was to meet him at the residence of the appellant’s sister.
She had gone to meet the appellant on 11.4.2000 at the residence of the appellant’s sister where the appellant’s father and husband of the appellant’s sister’s were present. They gave her tea mixed with some intoxicant. She became unconscious after taking it. Thereafter she was left near the railway track.
She does not know what had happened with her during 11-13 April, 2000 as she was unconscious.

6. The Trial court held that:
(i)The contesting respondent has no illicit relationship with respondent no 2 or anyone.
(ii)There is no cruelty on part of the appellant or his family members.
(iii)Rape is not a ground for divorce.
On these findings, the suit was dismissed hence the present appeal.

POINTS FOR DETERMINATION
7. We have heard counsels for the parties. Following points arises for determination.
(i) Whether the contesting respondent has illicit relationship with Respondent no. 2.
(ii)Whether the contesting respondent has treated the appellant with cruelty.

POINT NO. 1: NO ILLICIT RELATIONSHIP
8. The appellant, in order to prove his case, has produced himself as PW1 and his father as PW2. The appellant in his cross examination does not doubt about the conduct of his wife; on the other hand he has stated that her conduct was good. He further states that he neither knows respondent no. 2 nor can he recognise him. The father of the appellant has stated in his cross-examination that the contesting respondent has always paid respect to him and the other family members. He has further stated that her character is good and he has never seen the contesting respondent doing anything improper or wrong.

9. The appellant has filed some original documents as well as photostat copies of some letters. The original documents are neither proved nor exhibited. The counsel for the appellant did not refer to the original documents but has referred to the photostat copies of the letters alleged to be written by the contesting respondent. She was not confronted with these copies. They are neither proved nor exhibited. These letters appear to be written in different hand writing and perhaps created for the purposes of this case. No reliance can be placed upon them.

10. The counsel for the appellant also placed reliance on the FIR lodged by the father of the contesting respondent on 12.4.2000. It merely shows that the appellant was missing since 8 pm from 11.4.2000. The fact that the contesting respondent was missing is not disputed. The FIR does not throw any light as to why she was missing or what has happened to her. It is not relevant in deciding the question whether the contesting respondent has any relationship with respondent no. 2 or not.

11. The contesting respondent in order to support her case has produced herself and her father. She has stated in her statement that she neither knows Respondent no. 2, nor has any illicit relation with him or anyone else. There is nothing to show that her statement in this regard is false. There is nothing on record to show that there is anyone by the name of respondent no. 2. There is also nothing on record to show that the contesting respondent has illicit relationship with respondent no. 2 or anyone else. The trial court had occasion to see the demeanour of the witnesses. It has recorded a finding that the contesting respondent has no illicit relationship with respondent no. 2 or any one else and we affirm it.
POINT NO. 2: NO CURETLY
12. No issue on the ground of cruelty was framed by the trial court. The judgement was reserved by the trial court on 6.9.2003 and 9.9.2003 was fixed for the judgement. An application was filed by the appellant on 8.9.2003 that the case may be decided considering the cruelty on the part of the contesting respondent. This was objected by the contesting respondent. The court below while recording a finding on issue no. 2 has expressed its opinion on cruelty also. In these circumstances we also consider it appropriate to express our opinion on the question of cruelty. But first–a few words regarding incident during 11-13 April 2000.

Incident–11-13 April 2000
13. The case alleged by the appellant is that the contesting respondent has run away with respondent no. 2 on 11.4.2000 to have abortion and was later duped and gang raped.

14. The fact that the contesting respondent was missing during 11-13 April, 2000 is not disputed. The dispute is about the reasons for going out on 11.4.2000 and what has happened to the contesting respondent during this period.

15. There is no evidence that the contesting respondent had gone out with respondent no. 2. Apart from it, the contesting respondent was married and had spent some time with her husband. More than nine months had already elapsed since they had lived as husband and wife. The incident is of 10th month. There was no necessity for getting abortion. In case the contesting respondent wanted an abortion then she would have informed her husband and gone with her family members. Apart from it, the contesting respondent would have gone for abortion in the morning so that she may come back by the evening but she would not have gone late in the evening. The case set up by the appellant is not only without evidence but improbable.

16. The contesting respondent in her statement has explained it as follows:
‘The appellant was coming to take her. She was asked to meet him at the residence of the appellant’s sister since the conduct and behaviour of her in-laws was not good. She had gone to the residence of the appellant’s sister where husband of the appellant’s sister and father of the appellant were present. They gave her tea mixed with some intoxicant and she became unconscious after taking it. She has no knowledge as to what has happened to her thereafter.’

17. The Trial court has held that there was neither any demand of dowry nor her in-laws ill-treated her. We have no reason to come to any other conclusion. So part of the case set up by the contesting respondent is wrong. The counsel for the appellant submitted that in case the contesting respondent was not ill treated by the appellant or his family members then there was no occasion for her to go to the residence of the appellant’s sister and the entire case set up by the contesting respondent is false.

18. Merely because a part of the case set up by the contesting respondent is not believed does not mean that the entire case set up by the contesting respondent is false. According to the contesting respondent, she had gone to house of her sister-in-law. It is strange that the appellant’s sister or her husband have not been examined to prove whether the contesting respondent went to their house or not. If the version of the contesting respondent was not true then why did they not support the appellant? They are the appellant’s sister and her husband; closer to the appellant than to the contesting respondent.

19. According to the contesting respondent, her father in-law was also at her sister in-law’s house. The father in law has not stated that whether he went there or not and whether he met the contesting respondent there or not. The appellant’s sister stays in the city. It has come in evidence that he sometimes used to stay at her sister’s house. It is possible that the contesting respondent was given information that the appellant was to meet her there and she went there. It is also possible that while she was going there on 11.4.2000 she met some acquaintance on the way, or she met some acquaintance in the evening of 11.4.2000 who played the dirty trick. Any version may be true: there is more to the case than that what has come before the court. We will never know; both sides seem to be hiding something and the truth seems to be in between.

20. Irrespective of the versions put forward by the parties, one thing is certain: an unfortunate incident has happened with the contesting respondent during 11- to 13 April 2000. In case plaint allegations are to be believed then the contesting respondent was gang raped. There is no evidence for the same but it seems probable and the persons responsible seem to be a known acquaintance and not a stranger. The contesting respondent may not be disclosing the entire picture; it is natural: any girl would be hesitant to talk about it. It is not necessary to probe further in this regard because adultery is a ground for divorce, rape isn’t. There is fundamental difference between the two: one is with consent and the other is without consent. There is no evidence that the contesting respondent was a consenting party or she has committed adultery.

21. The counsel for the appellant placed reliance on the observations of the conciliation committee where it records that the contesting respondent is inconsistent and is not telling the truth. He submitted that her entire story be disbelieved. In order to understand it, we should also understand psychology behind rape and reaction of a rape victim.

22. It is often said that rape is primarily a sexual act and due to this belief the victim is put on trial. Her motives, her dress, and her actions become suspect not only to the police but also to her family and friends. Her credibility is questioned and her sexual activity and private life is made public. Some studies in the western world indicate that rape is a crime of violence, often regarded by the woman as a life-threatening act in which fear, embarrassment and humiliation are her dominant emotions. No wonder the victim is unwilling to talk about it, or is hesitant, or is inconsistent in recalling it. The conciliation committee has not considered this aspect; and if its observations are seen in this light then the entire story of the contesting respondent can not be disbelieved.
Regarding Cruelty
23. The counsel for the appellant submitted that:
The contesting respondent has falsely alleged that his family members had demanded dowry and harassed the contesting respondent.
This is cruelty and
He is entitled to get divorce on this ground.

24. It is true that the contesting respondent has alleged harassment on the part of her in-laws and we have upheld the finding of the trial court negating it. The trial court has negated it on the ground that the contesting respondent had not mentioned it prior to filing of the suit. This can never be cruelty. The allegations in the case should be considered in the background of the case.

25. A sad incident had taken place with the contesting respondent. After this incident, she stayed in her in laws residence for 2-3 months. Her husband was also there for the short time. Thereafter she was sent to her father’s place. One should consider her plight; she went through a trauma; then rejections by her in-laws; thereafter this divorce suit by her husband. If her allegations are seen in these circumstances, then they do not amount to cruelty on her part; perhaps it is the appellant who is being unfair.
26. The counsel for the appellant suggested that:
It is not possible for the appellant move in the society with a person who has been gang raped.
It is a kind of cruelty on him and
He is entitled to get divorce on this ground.
We have no words to describe this submission. The least we can say: we are appalled. It is beyond our comprehension that anyone can even make such suggestion. It shows lack of understanding regarding rape, trauma, and emotional needs of a rape victim.

27. Rape leaves physical as well as emotional scars on the victim. Her physical wounds may be healed but the emotional scars, though less visible, are more difficult to treat. A rape victim goes through a life threatening situation and will need time and support to recover. She feels varying degrees of fear, guilt, embarrassment, and anger. It is important for all those close to her to understand her feelings and support her through the crisis. She is likely to be fearful about the routine activities of her daily life. She may approach strangers and even friends and acquaintances with a new caution. She may feel guilt, wondering why she was the victim. She may question whether she really did ‘ask for it’ or led someone to the wrong impression. She may also be embarrassed about what other people think of her. In such a situation, she needs moral support.

28. What was fault of the contesting respondent in this episode; perhaps she trusted people more than they deserved. Merely for this misjudgement, should she be given this kind of treatment? We don’t think so.

29. A rape victim doesn’t require our condemnation; it is the person who commits rape deserves it. The rape victim doesn’t require divorce suit slapped on her; she doesn’t require court room: she requires counselling, understanding, compassion, and moral support. She is not to be deserted. The appellant’s family has shown some compassion. The father of the appellant has stated good things about the contesting respondent but it is not sufficient; they have to lend moral support and accept her.
CONCLUSION
30. Our conclusions are as follows:
(i)The contesting respondent has no illicit relationship with Respondent no. 2 or anyone else.
(ii)Rape is not a ground for divorce.
(iii)The husband can not claim cruelty because he has to live with a rape victim.
(iv)There is no cruelty on the part of the contesting respondent.
On our findings, the appeal is dismissed with costs.

31. All well that ends well and we hope it will end well. We wish that the appellant and his family members will accept the contesting respondent. We are sure they will have happy, normal life.

Date: 5.8.2004
SKS

End Note-1: Considering the facts of the case we have not disclosed identities of the parties.

Categories: Judgement, Judgement

HC: Bail to father/mother-in-law in dowry death case can be refused in case of direct allegation & evidence of cruelty.

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

Criminal Misc. Bail Application No.12457 of 2006

Vijai Pal Singh and another . . . . . Vs. . . . . . . . . . . . . .State of U.P.
—-

Hon’ble R.K.Rastogi,J.

The applicants, Vijai Pal Singh and Smt. Vimala Devi have applied for bail in this case crime no. 404 of 2006 under sections 498-A, 304-B I.P. and ¾, Dowry Prohibition Act. of police station Katghar district Moradabad.

The prosecution case starts with a F.I.R. lodged by Satyendra Singh Yadav at police station Katghar district Moradabad at 4.05 P.M. It is stated therein that marriage of his daughter, Girish Kumari had taken place with Rakesh son of Vijai Pal Singh and Smt. Bimla Devi on 20.2.2002. Sufficient dowry was given in the marriage but the accused were demanding a Pulsar motor cycle and Rs.50,000/- cash. Two children were also born out of this wedlock, but the accused were demanding money and committing atrocities upon her. On 2.4.2006 at about 8.30 P.M. Smt.Girish Kumari made a phone call from a P.C.O. on mobile phone of Satyendra Singh that her life was in danger and so he should reach there immediately because her husband, father-in-law and mother-in-law were doing Marpit with her. Upon receipt of this information Satyendra Singh came to Moradabad. Upon inquiries neighbours told him that the accused after burning his daughter had taken her to get her admitted in the district hospital Moradabad, but when he went to the district hospital Moradabad he came to know that she has been referred to Delhi for treatment. He tried to establish contact on phone with the accused persons but no contact could be established and then he lodged this report at the police station Katghar against the accused persons on 3.4.2006 at 4.05 P.M.

Smt. Girish Kumari was admitted in Maulana Azad Medical College ( Lok Nayak Hospital), New Delhi. It is alleged that her dying declaration was recorded on 3.4.2006 at 10.45 A.M. and in that dying declaration she stated that a Chirag was burning in the worship room of the house and at about 9 P.M. her younger son was playing in that room and doing mischief, so she rushed to that place to protect him but her Saree caught fire and then her husband protected her. Her father-in-law and mother-in-law, who resided on upper storey of the house also rescued her. Her husband covered her body with a blanket. She was first taken to private hospital and then to that hospital.

Smt. Girish Kumari died on 8.4.2006 at 11.15 A.M. and then the charge under section 304-B, I.P.C. was added.

The applicants have alleged that they are innocent and have been falsely implicated in this case. Their learned counsel submitted that it is a case of accidental burn injuries as is apparent from dying declaration. It was further submitted that the applicants are father-in-law and mother-in-law of the deceased and so bail should be granted to them on the ground of their old age.

The learned A.G.A. has opposed the bail application. He submitted that it is a case of demand of dowry and of burning in connection with this demand. He has further submitted that the above dying declaration is completely a forged document. He made the following submission in support of this contention:
(1) According to medical examination report of Smt. Girish Kumari when she was brought to the district hospital Moradabad for her treatment, there was smell of kerosene-oil present upon her body. He submitted that if Smt. Girish Kumari caught fire from a small
Deepak in the room of worship, there could not come smell of kerosene oil from her body.

(2) According to the description of burn injuries present at the time of admission of Girish Kumari in Maulana Azad Medical College ( Lok Nayak Hospital ) New Delhi, that she had superficial to deep burn injuries on the face, both upper limbs 90-95%. He contended that a person whose upper limbs had 90 – 95% burn injuries could not be in a position to speak.

The learned counsel for the applicant has referred to the postmortem examination report of the deceased prepared on 9.4.2006, in which it has been stated that approximate area of burn injuries was 70% only and there was no smell of kerosene oil.

It was submitted by the learned counsel for the prosecution in reply that it is immaterial that on 9.4.2006 no smell of kerosene oil was found on the dead body because sufficient time had passed from the time of incident and so smell of kerosene oil would have been disappeared by that time. Moreover, it was contended that in the admission slip 90-95% burn injuries were shown upon upper limbs but it has been stated in the postmortem report that percentage of burn injuries on the entire body was 70%. He submitted that according to postmortem report there were infected superficial to deep ante mortem burning present all over the body except outer front of right thigh, front back of both legs, buttock and back of abdomen. He further submitted that the above description of burn injuries goes to show that almost upper portion of the deceased was totally burnt while lower portion was partly burnt and this fact goes to show that kerosene oil was poured upon the deceased from her head and that is why upper portion was burnt 90 to 95. He further contended that if accidental fire incident had taken place from a Deepak kept in the worship room, the burn injuries would have been on the lower portion of legs and not on the upper portion of the body of the deceased.

As regards the dying declaration the learned A.G.A. contended that a person whose upper limbs have been 90–95% burnt could never be in a position to give statement. But in the present case the deceased was admitted in the hospital at Delhi for treatment on 3.4.2006 at 9.15 A.M. and soon thereafter her dying declaration was recorded at 10.45 A.M. and after recording of this so called statement she never gained senses during the period of entire treatment at the hospital and all these circumstances go to show that this dying declaration was obtained in collusion with the doctor and the Magistrate.

The learned counsel for the applicant has submitted that even a lady having 90-95% burn injuries could give statement. He cited before me following rulings of the Hon’ble Supreme Court in support of his contentions:
(1) P.V.Radhakrishna Vs. State of Karnataka 2003 SCC (Crl.) 1679;
(2) Sree Vijaya Kumar and another Vs. State, by Inspector of Police, Kanya Kumari, 2005 SCC (Crl.)1896;
(3) Gaffar Badshah Pathan Vs. State of Maharashtra, 20043 SCC (Crl.) 2037;
(4) Sohan Lal Vs. State of Punjab, 2004 SCC (Crl.) 226;
(5) Muthu Kutty Vs. State of Tamilnadu, 2005 SCC (Crl.) 1202;
(6) Shanti and others Vs. State of Haryana, 2006 (1) SCC (Crl.) 557;

(7) Luxman Vs. State of Maharashtra, 2002 SCC(Crl.) 1491.

I have carefully gone through all these rulings. In P.V. Radhakrishna Vs. State of Karnataka (supra) it was held in para 16 that physical state or injuries do not by themselves become determinative of mental fitness of the declarant. In Sree Vijaya Kumar Vs. State (Supra) the deceased having 90% burn injuries had named the accused persons and it was believed holding that she had no motive to falsely implicate them and spare the real culprits. In Gaffar Badshah Pathan Vs. State ( Supra ) it has been held that where the dying declaration is in favour of the accused the burden lies on the prosecution to prove that it is concocted and forged. In Sohan Lal Vs. State ( Supra ) it was held that where there is nothing on record to suspect bona fides of the officers recording the dying declaration, there is no reason to discard it. In Muthu Kutti Vs.State ( Supra ) there were 90% burn injuries, but it was held that if the officer recording the statement was satisfied about the declarant’s mental condition, the dying declaration was reliable. In Shanti Vs. State (supra) it was held that where dying declaration is found to be absolutely coherent, cogent and inspiring confidence and there is nothing to discredit or disbelieve it, it is to be relied upon. In Luxman Vs. State ( supra ) it has been held that a dying declaration shall be valid even in the absence of the doctors certificate if the authority recording it was satisfied about mental condition of the declarant.

Let me now consider the applicability of the above rulings to the facts of the present case. It is true that a final verdict on the dying declaration can be recorded only after examining the doctor who certified the condition of the declarant and the Magistrate who recorded it. But at this stage there are the following circumstances which create doubt regarding its genuineness:

(1) Presence of smell of kerosene oil upon the body of the deceased which would not have been there if she had accidentally caught fire from a Diya in the worship room.
(2) In case of accidental fire from that small diya the deceased would have first received burn injuries on her lower limbs and so burn injuries would have been more dense on lower limbs than on upper limbs. In the present case, burn injuries are more dense on upper limbs than on lower limbs and the presence of kerosene oil on the body leads to conclusion that she was burnt after pouring kerosene oil upon her head.

(3) The deceased had 90 – 95% burn injuries on her upper limbs including her scalp, face, eyes, neck, chest, abdomen and it appears highly improbable that having so much burn injuries on her upper vital part of the body she could give a statement just after her admission in the hospital. It is noteworthy that this dying declaration was recorded before arrival of her parents in the hospital in their absence. She remained alive for six days thereafter in the hospital but she never regained senses to speak.

All these circumstances prima facie cast serious doubts regarding genuineness of the dying declaration. Hence, I am of the view that no benefit can be given to the accused at this stage of bail on the basis of this dying declaration.

It was further submitted that the husband of the deceased had also received burn injuries while rescuing his wife. He was also medically examined. A copy of his medical examination report has been filed as Annexure no. 6 to the affidavit in support of the bail application. It goes to show that he was medically examined on 8.2.2004 and superficial to deep injuries were found on the fingers of his right and left hand. The injuries were about ten days old. It is not clear as to why he had not got himself medically examined earlier.

The learned counsel for the applicants further submitted that the husband of the deceased has deposited money in the name of the deceased in Sahara India Ltd. and in the LIC policies he has made Smt. Girish Kumari as nominee and this goes to show that he had love and affection for her.

It was argued by the learned A.G.A. that after the death of Smt. Girish Kumari her husband was to get the entire amount of the aforesaid deposit and policy in case of death of Girish Kumari in his life time, so these documents do not have any effect upon the merits of the case.
The learned counsel for the applicants further submitted that the present applicants are father-in-law and mother-in-law of the deceased and there are general allegations against them , so taking into consideration their old age, bail should be granted to them.

In reply the learned A.G.A. has submitted that the applicants and were residing in the same house where the deceased was residing with her husband. They committed atrocities upon her. The deceased complained to her parents regarding demand of dowry and atrocities committed upon her The witness Govind Kumar Sharma has stated that about two months ago Girish Kumari had come to the house of her father at Noorpur and she was weeping stating that her in-laws had thrown her out of their house after beating her and atrocities were being committed upon her for not bringing Rs.50,000/- in cash and motor cycle and they had also snatched both the children from her, so the applicants should not be granted bail on the ground of being father-in-law and mother-in-law of the deceased.

Without expressing any opinion on the merits of the case but taking into consideration the facts and circumstances pointed out above, I am of the view that the applicants do not deserve to be bailed out.
The bail application is, therefore, rejected.
However, it is directed that the court below will try to conclude the trial of the case within six months from the date of receipt of certified copy of this order. In case the trial is not concluded within the said period for no fault of the applicants, then the applicants will be entitled to move fresh application for bail.

Dated:4.7.06.
RPP.

Categories: Bail Judgement

HC: Sentence of fine less than Rupees fifteen thousand can not be imposed for the offence under section 3 of Dowry Prohibition Act.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 44
Crl. Appeal No. 6808of 2008
Omwati & others……………………..Appellants
vs.
State of U.P………………………………………………Respondent
Hon. Shiv Charan,J.
Hon. Vijay Kumar Verma,J.

Learned AGA has filed objection, which be taken on record.
Heard Sri P.N. Mishra, Senior Advocate, and Sri V.M. Zaidi, learned counsel appearing for the appellants and learned AGA for the State on the prayer of bail of the appellants Omwati, Manoj Kumar, Rekha and Haridesh, who have been convicted and sentenced vide judgment and order dated 22.09.2008 passed by Sri Kishore Kumar-1st, the then Additional Sessions Judge Court No. 1 Bijnor in S.T. No. 574 of 2007 (State vs. Vinod Verma & others), under section 498A, 304B IPC and ¾ Dowry Prohibition Act (in short D.P. Act), P.S. Haldaur, District Bijnor. We have also perused the entire material on record.
Learned counsel for the appellants argued that these appellants were convicted by the learned trial court under sections 498A, 304B IPC and section ¾ D.P. Act and they have been sentenced to maximum imprisonment for 7 years, whereas the husband, Vinod Verma has been sentenced to life imprisonment for the offence under section 304B IPC.
Learned counsel further argued that Omwati is the mother-in-law, Manoj is the brother-in-law (jeth), Rekha and Hridesh @ Indresh are sisters-in-law (Nanad) of the deceased. It is also submitted that according to the statements of investigating officers P.W. 5 Shiv Ram Yadav and P.W. 6 Rahul Kumar, accused Vinod Verma, husband of the deceased, was living in separate house, whereas Manoj and mother-in-law of the deceased were living in different houses situated in mohallah Raisan Haldaur and they had nothing to do with the demand of dowry. Learned counsel further argued that other two appellants are the sisters-in-law of the deceased and they were not going to be benefitted from the demand of dowry. It is also argued that there are general allegations for demand of dowry against the appellants. The deceased and her husband were living in a separate house and there might be an altercation in between them, due to which the incident might have taken place. Otherwise, these appellants had nothing to do with the incident. Learned counsel for the appellants further argued that considering the role of these appellants, the learned Sessions Judge convicted them for seven years’ imprisonment only. It is further submitted that these appellants were on bail during trial and they did not misuse the bail.
Learned AGA opposed the prayer of bail of the appellants and argued that marriage of the deceased with Vinod Verma was solemnised on 23rd November 2004, whereas the incident took place on 11th June 2007 after about 2 ½ years of the marriage. The death was unnatural and there was evidence of demand of dowry.
We have considered all the facts and circumstances of the case as well as submissions made by the learned counsel for the parties. These appellants were living separately from the husband and the deceased. Hence they may be admitted to bail.
Let the appellants Omwati, Manoj Kumar, Rekha and Hridesh @ Indresh be released on bail in the above case during pendency of appeal on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of trial court concerned.
Before parting with this order, we would like to point out that surprisingly the learned trial Judge has not imposed proper sentence for the offence punishable under section 3 D. P. Act. All the appellants-accused have been convicted under section 3 D.P. Act also, but sentence of imprisonment of two years only has been awarded on this count, whereas after amendment of D.P. Act vide Amending Act 43 of 1986, minimum sentence under section 3 D.P. Act is imprisonment for the period not less than five years with fine, which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. Although, in view of the Proviso to Section 3 of the Act, the Court may, for adequate and special reasons to be recorded in the judgement, impose sentence of imprisonment for a term of less than five years, but no discretion has been given to the Court to impose fine less than fifteen thousand rupees. The learned Trial Judge has not imposed any fine under section 3 D.P. Act also and without recording any adequate or special reasons sentence of imprisonment less than five years has been awarded. Thus, the sentence imposed by the learned Trial Judge under Section 3 D.P. Act is wholly illegal. No discretion is left to the courts by Legislature in the matter of imposing fine in case of conviction under section 3 D.P. Act and it is mandatory under this section to impose fine also, which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. The Hon’ble Supreme Court in the case of Kripal Singh vs. State of Haryana 2000 (40) ACC 136 has held that where minimum sentence is prescribed in the statute, then neither the Trial Court nor the High Court can bypass the minimum limit prescribed by law. It is most unfortunate that such glaring mistake has been committed by the judicial officer of the rank of Additional District & Sessions Judge.
The Registrar General is directed to send a copy of this order to Sri Kishore Kumar-1st , the then Additional Sessions Judge, Court No. 1 Bijnor for his future guidance.
Dt. 04.02.2009.
v.k. updh

Categories: 498A Judgements

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: 498A misuse judgement

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 27th January, 2011

Date of Order: February 14, 2011

+ Crl. MC No. 2462/2010

% 14.02.2011 Nitika Gauba …Petitioner Versus

State & Ors. …Respondents Counsels:

Mr. M.S. Yadav for petitioner.

Mr. Sunil Sharma, APP for State/respondent.

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?

ORDER

1. This application has been preferred by the petitioner for cancellation of anticipatory bail granted to the Asha Gauba (mother-in-law), Kanika Gauba (nanad) and Shiv Kumar Gauba (Taya) on the ground that the learned ASJ while granting anticipatory bail had not appreciated the facts correctly. The respondent no.2 is the widowed mother in law of complainant, respondent no.3 is unmarried sister in law(husband’s sister) of the complainant and respondent no.4 is the elder brother of deceased husband of respondent no.2 (Taya Sasur).

2. In the complaint, the applicant had made allegations against the husband and these three respondents for harassing her for dowry. The learned ASJ while granting bail to them had considered that mother in law of complainant was a government servant in Ministry of Railways and was aged around 50 years. The respondent no.4 Taya Sasur was aged around 70 years and respondent no.3 was an unmarried sister of respondent Crl.MC 2462/2010 Page 1 Of 3 no.2. The learned ASJ observed that he had perused the police file and without commenting upon the merits or otherwise of the allegations, considered that no useful purpose was likely to be served by directing the investigating officer to arrest these three persons for the purpose of investigation and he therefore granted anticipatory bail to them.

3. In the grounds for cancellation of anticipatory bail, it is stated that the husband of the petitioner played fraud upon the petitioner. While petitioner and husband were living under the same roof, he filed a divorce petition against the petitioner without information of the petitioner and even after filing divorce petition, he continued to maintain physical and sexual relations with her. The respondents no.2, 3 and 4 were having knowledge of this act of the husband of the petitioner. The husband in order to blackmail her and to disrepute her took vulgar snaps of her to force her to withdraw the petition. She also alleged that she was badly beaten up by mother in law, nanad. Even servant of respondent no.2 gave her merciless beatings. Her husband hatched up a criminal conspiracy of criminal assault on her on 25th April 2010 and she had to be taken to DDU Hospital by the police where her MLC was prepared.

4. For cancellation of bail, the court must have strong reasons. In the present case, the bail was granted by the trial court looking into the nature of allegations. In cases of matrimonial discord Section 498A/406 IPC are invariably invoked against every family member of husband, it becomes very difficult for the trial court to assess the truth of the allegations made by the complainant. Normally every complainant ropes in all relatives including the remote relatives living far away from the matrimonial home making stereotyped and similar allegations against everybody. This tendency of roping in every known relative including the minors in offences under Section 498A/406 IPC etc has in fact made these provisions introduced in Indian Penal Code, to prevent cruelty upon women, blunt. The gross misuse of these provisions for roping in every known relatives Crl.MC 2462/2010 Page 2 Of 3 of the husband poses a grave problem for the courts during trial and while deciding bail applications. Only oral statement of complainant and her parents is there in respect of cruelty and dowry demand, and normally there is no agreed list of articles given at the time of marriage Dowry Prohibition Act proved futile to bring to an end to the evil of dowry for this reason. Mere oral allegations of giving huge dowry without substantiating these allegations by bills of purchase of the articles or list prepared at the time of marriage and signed by both the parties cannot be given credence. Even those people, who have meager salaries or are hand to mouth, claim of giving huge amounts at the time of marriage. It is in the interest of both the parties that a list of dowry articles should be prepared by the parties at the time of marriage duly signed by both the parties. Though in this way, the evil of dowry cannot be curbed but it would curb the tendency of making astronomical claims later on just to rope in every member of the family of in laws as a criminal.

5. In the present case, there is no corroboration of the oral allegations of the applicant. I find no reason to cancel the anticipatory bail granted to the respondents no.2 to 4 when there are no allegations of misuse of the bail on their part. The application for cancellation of bail is hereby dismissed.

February 14, 2011 SHIV NARAYAN DHINGRA, J rd

Crl.MC 2462/2010 Page 3 Of 3

Haryana’s advocate general Hawa Singh Hooda: Misuse of sections 304B and 498A IPC has been recognized even in judicial pronouncements

CHANDIGARH: Haryana’s advocate general Hawa Singh Hooda has said that honour killings should be curbed by way of educating the illiterate or semi illiterate villagers.

In his comments submitted to the state government about proposed law on honour killings by the Centre, Hooda said, ‘The amendment in the statute should not be made on stray incidents and especially in view of the facts that the controversy in question is a clash of thought between the two generations. Suitable remedial steps may be taken on the social front to bridge the generation gap, which is primarily leading to the ‘honour killings’ in the society.’

Hooda feels that the reform by way of change in mindset of society in general should be the foremost priority and infliction of punishment should be secondary. ‘A balanced legislation is possible only if the social perspectives as well as the legal aspects of the issue involved are deliberated in depth. None should lose sight of the fact that misuse of sections 304B and 498A IPC has been recognized even in judicial pronouncements and incidents of dowry death and demand of dowry have not come to an end after coming into force of Section 304B and 498A of IPC,’ he added.

Trying to explain the reasons behind ‘honour killings’ Hooda said, ‘The tendency of every group is to preserve their own identity and traditions. With the increase in literacy among the populace, and interaction among different groups, the thinking of youth underwent a change which led to stirring of the society as a whole, giving impression to the elders that youth is going unruly and they are out to destroy the very basic and norms of the society. Due to non acceptance of the said change, the resistance was offered by elders joined by illiterate or semi-illiterate with the impression in their mind that what they are doing is pious and good for the society and coming generations.’

http://timesofindia.indiatimes.com/india/Generation-gap-leading-to-honour-killings/articleshow/8042489.cms

Categories: Other news

Complainant graphically described the acts of physical and mental cruelty hence FIR not quashed

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH AT JAIPUR

JUDGMENT

Kamla & Ors. Vs. State of Rajasthan & Anr.

(S.B. Criminal Misc. Petition No.1874/2010)

S.B. Criminal Misc. Petition under Section 482 Cr.P.C.

Date of Order :- April 08, 2011

PRESENT

HON’BLE MR. JUSTICE R.S. CHAUHAN

Mr.Suresh Sahni, for the petitioners.

Mr.Laxman Meena, Public Prosecutor.

Mr.Rajesh Kapoor, for respondent No.2.

BY THE COURT:

The petitioners have prayed for quashing of the FIR, FIR No.147/2010, registered at Mahila Thana (North), Jaipur for offences under Sections 498A and 406 IPC.

Briefly the facts of the case are that Smt. Jyoti Sharma, respondent No.2, was married to Kuldeep Sharma, petitioner No.5, on 02.12.2009 according to the Hindu customs and rites. According to Smt. Jyoti Sharma, at the time of her marriage, her parents had given sufficient dowry as per their capabilities. However, when Smt. Jyoti Sharma reached her matrimonial home, both her husband and her in-laws’, including both of her sister-in-laws, namely Komal and Alka, petitioner Nos.3 and 4 respectively, started physically and mentally torturing her for dowry. Unable to bear their cruel behavior, eventually on 13.09.2010, Smt. Jyoti Sharma filed a complaint before the Additional Civil Judge (JD) and Judicial Magistrate No.13, Jaipur City, Jaipur. The learned Magistrate sent the said complaint for further investigation under Section 156(3) Cr.P.C. to the Police Station Mahila Thana (North), Jaipur. On the basis of the said complaint, the police chalked out a formal FIR, FIR No.147/2010, for the aforementioned offences. Hence, this petition before this Court. Mr. Suresh Sahni, the learned counsel for the petitioners, has vehemently raised the following contentions before this Court : firstly, the FIR is a counter-blast to a civil suit filed by Mr. Gopal Lal Sharma, petitioner No.2, the father-in-law of the complainant, wherein he had clearly pleaded that he is willing to return the stridhan. Therefore, direction should be issued to the complainant to collect the stridhan. The filing of the civil suit by the father-in-law clearly establishes his fairness in wanting to return the stridhan to Smt. Jyoti Sharma. Secondly, the FIR is a counter-blast to the divorce petition filed by Kuldeep Sharma against Smt. Jyoti Sharma. Thirdly, all the family members have been roped in, including two sister-in-laws. This clearly shows that the FIR has been lodged to wreak personal vendetta. Lastly, relying on the case of Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. [(2010) 7 SCC 667], the learned counsel has contended that even the Hon’ble Supreme Court is of the opinion that the cases under Sections 498A and 406 IPC are more or less frivolous cases. Therefore, even this Court should be alive to the possibility that the case is a frivolous one. On the other hand, Mr. Rajesh Kapoor, the learned counsel for respondent No.2, has strenuously argued that the jurisdiction of this Court for interfering in investigation is extremely limited. According to him, in case the allegations levelled in the FIR make out the commission of a cognizable offence committed by known or unknown persons, then this Court is preempted from interfering in the investigation. Secondly, the allegations levelled by Smt. Jyoti Sharma do make out a prima facie case against all the petitioners including the sister-in-laws. The complainant has not only given details of the incidents, but has also graphically described the circumstances to which she was subjected to. Therefore, according to the learned counsel, this Court should not interfere with the FIR. Mr. Laxman Meena, the leaned Public Prosecutor, has adopted the arguments of Mr. Kapoor.

Heard the learned counsel for the parties and perused the FIR.

It is, indeed, a settled position of law that the investigation is the sphere of the police. It is equally well settled that in case the allegations levelled in the FIR are taken to be true and are taken to be un-rebutted, and if the allegations make out commission of the offence then this Court should not interfere with such a FIR in its inherent jurisdiction under Section 482 Cr.P.C. [Ref. to State of Haryana & Ors. vs. Chaudhary Bhajan Lal & Ors. (AIR 1992 SC 604)]. A bare perusal of the FIR clearly reveals that Smt. Jyoti Sharma has graphically described the acts of physical and mental cruelty committed against her by all the petitioners. Thus, prima facie offences under Sections 406 and 498A IPC are made out against the petitioners. Hence, this Court is not inclined to quash the FIR No.147/2010, registered at Mahila Thana (North), Jaipur for offences under Sections 498A and 406 IPC. Thus, this petition is devoid of any merit. It is, hereby, dismissed.

(R.S. CHAUHAN) J.

Manoj solanki

Categories: Judgement

SC: Divorce rejected even tough staying eprately from 11 years

Bench: D Jain, H Dattu

IN THE SUPREME COURT OF INDIA

CIVIL APPEALATE JURISDICTION

CIVIL APPEAL NO. 6288 OF 2008

Hitesh Bhatnagar ………….. Appellant versus

Deepa Bhatnagar …………..Respondent J U D G M E N T

H.L. Dattu, J.

1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us. 2) The appellant-husband and the respondent-wife got married according to the Hindu Marriage Act, 1955 [hereinafter referred to as `the Act'] in 1994, and are blessed with a daughter a year thereafter. Some time in the year 2000, due to differences in their temperaments, they began 1

to live separately from each other and have been living thus ever since. Subsequently, in 2001, the parties filed a petition under Section 13B of the Act before the District Court, Gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. However, before the stage of second motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of this, the petition came to be dismissed by the Ld. Addl. District Judge, Gurgaon, though the appellant insisted for passing of the decree. The appellant, being aggrieved, has filed appeal No. F.A.O. No. 193 of 2003, before the High Court of Punjab and Haryana. The Learned Judge, by his well considered order, dismissed the appeal vide order dt. 08.11.2006. Being aggrieved by the same, the appellant is before us in this appeal.

3) We have heard the learned counsel for the parties and since the parties wanted to ventilate their grievances, we have heard them also. 4) The issues that arise for our consideration and decision are as under: (a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act.

2

(b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :-

13B. Divorce by mutual consent. – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

6) Admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. However, before the 3

stage of second motion, the respondent withdrew her consent by filing an application dated 22.03.2003. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent, appearing in-person, submits that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She states that she never wanted divorce and is even now willing to live with the appellant as his wife.

7) The appellant, appearing in-person, submits that at the time of filing of the petition, a settlement was reached between the parties, wherein it was agreed that he would pay her `3.5 lakhs, of which he states he has already paid `1.5 lakhs in three installments. He further states in his appeal, as well as before us, that he is willing to take care of the respondent’s and their daughter’s future interest, by making a substantial financial payment in order to amicably settle the matter. However, despite repeated efforts for a settlement, the respondent is not agreeable to a decree of divorce. She says that she wants to live with the appellant as his wife, especially for the future of their only child, Anamika.

4

8) The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field.

9) In the case of Sureshta Devi (supra.), this Court took the view: “9. The `living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue 5

influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.” On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also 6

be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226, this Court in passing reference, observed:

“16. We are of opinion that in the light of the fact-situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant’s counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife filed an application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition. 7

The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided in 8

Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there.” 11) These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12) In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view :-

“40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

9

41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.

43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.”

13) The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of the law laid down by this Court in Sureshta Devi’s case (supra).

10

14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months;

b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and

c. The petition is not withdrawn by either party at any time before passing the decree;

15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a 11

complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression `divorce by mutual consent’ would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 17) In the light of the settled position of law, we do not find any infirmity with the orders passed by the Ld. Single Judge.

18) As a last resort, the appellant submits that the marriage had irretrievably broken down and prays that the Court should dissolve the marriage by exercising its jurisdiction under Article 142 of the Constitution of India. In support of his request, he invites our attention to the observation made by this Court in the case of Anil 12

Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the consent was withdrawn by the wife, this Court found the marriage to have been irretrievably broken down and granted a decree of divorce by invoking its power under Article 142. We are not inclined to entertain this submission of the appellant since the facts in that case are not akin to those that are before us. In that case, the wife was agreeable to receive payments and property in terms of settlement from her husband, but was neither agreeable for divorce, nor to live with the husband as his wife. It was under these extraordinary circumstances that this Court was compelled to dissolve the marriage as having irretrievably broken down. Hence, this submission of the appellant fails.

19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view:

“25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or 13

ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties.”

20) Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the marriage on the ground of irretrievable breakdown of marriage, held: “19. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy.” 21) In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction.

14

22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of a marriage cannot be the sole ground for the dissolution of a marriage, a view that has withstood the test of time.

23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, this Court took the view:

“17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses…….”

24) This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].

15

25) It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.

26) In the present case, time and again, the respondent has stated that she wants this marriage to continue, especially in order to secure the future of their minor daughter, though her husband wants it to end. She has stated that from the beginning, she never wanted the marriage to be dissolved. Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In light of these facts and circumstances, it would be travesty of justice to dissolve this marriage as having broken down. Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another chance, if not for themselves, for the future of their daughter. We conclude by quoting the great poet 16

George Eliot “What greater thing is there for two human souls than to feel that they are joined for life – to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting.”

27) Before parting with the case, we place on record our appreciation for the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to bring about an amicable settlement between the parties. 28) In the result, the appeal fails. Accordingly, it is dismissed. No order as to costs.

……………………………J.

[ D. K. JAIN]

……………………………J.

[ H. L. DATTU]

New Delhi,

April 18, 2011.

Categories: Judgement

HC: Whether a marriage between a Brahmin and muslim women is valid?

IN THE HIGH COURT OF JHARKHAND, RANCHI.

Cr.M.P. No. 1577 of 2010

Ayushman Pandey Petitioner

Versus

1.The State of Jharkhand

2. Shaista Huma Opposite party

CORAM :-HON’BLE MR. JUSTICE D.K. SINHA

For the Petitioner :-M/s Anil Kumar

Shashi Kant

Rita Kumari Advocates

For the State :- Mr. R.C.P. Sah A.P.P. For the O.P. No.2 :- Mr. Delip Zerath

Mr. Vivek Kumar Singh

Mr. Vineet Kumar Vashistha Advocates

C.A.V. on 24.1.2011 Delivered on 28 -3-2011

7/ 28 -03-2011 The petitioner has invoked the inherent jurisdiction of this Court under section 482 Code of Criminal Procedure for quashment of the order dated 6.10.2010 passed by the SDJM Ranchi in Complaint Case No. 772 of 2010 by which preliminary objection raised on the point of maintainability by the petitioner accused.

2. The prosecution story in short as per the complaint petition filed by the complainant-opposite party No.2 on 6.5.2010 in the court of CJM Ranchi under section 12 of the Protection of Women from Domestic Violence Act, 2005 was that she was a Muslim woman by faith whereas the petitioner Ayushman Pandey was a Brahmin(Hindu) and both solemnized love marriage on 8.12.2008 itself before the Marriage Officer under the Act XLIII of 1954 at Neturis Block, Purulia(West Bengal), to which a certificate of marriage was granted to both spouse .It was alleged that the husband- petitioner started torturing since the very day of marriage over telephone and in person in connivance with his relatives and coerced her as well as her father to deliver Rs. Twenty lakhs to enable him to set up his own consultancy service. The father of the complainant was holding a senior managerial post in the State Bank of India. She alleged that her father was picked up from the bank in which he was working at Ramgarh and was put under confinement illegally at Jamshedpur by putting pressure to impress upon the complainant to agree for annulment of marriage for the reasons that the parents of Ayushman Pandey had selected another girl of their own caste which could fetch a sum of Rs. One crore as dowry. The petitioner was compelled to leave Jamshedpur where she was undergoing intership at the Mahatma Gandhi Memorial Medical College, and was keen to get employment in the said hospital as a House Surgeon. Humiliation, insults and threats to cause hurt continued to the complainant by the accused petitioner. It was further stated that such threats were made every day in person or telephone till 31st March, 2009 when he left for Singapore to work and to pursue higher studies at S.P. Jain Centre for management. The petitioner failed to take care of the complainant, misutilized his position and had been constantly inflicting mental and physical abuses on the complainant and thereby he committed an offence as described under section 3 of the Act, as such liable for punishment. She claimed relief under sections 18 to 22 of the Act, particularly for monetary relief, residence and protection as also compensation. She further requested that interim ex-parte relief may be granted to her under the provision of Section 23 of the Act.

3. The complainant sought for her residence of at least two bedrooms flat near her parental house at P.P Compound with security guard for her protection and also sought for Rs.23,000/- to meet out personal expenses with one time compensation to the extent of Rs. 8,60,000/- under the provision of section 19 of the said Act .She further demanded Rs.50 lakhs as compensation under section 22 of the said Act and additional payment of Rs. 82,000/- by the respondent as monitory relief under section 20 of the Act. Enquiry was initiated on the complaint of the complainant by the Protection Officer.

4. The learned counsel appearing for the petitioner submitted that the acknowledgement of filing of Title suit No. 35 of 2009 by the husband-petitioner would clearly indicate that complaint filed by the complainant was a counter blast to the suit which was filed on 30.3. 2009 before the Civil Judge(Junior Division) Raghunathpur, Distt. Purulia (W.B) by which the validity of so-called marriage was challenged as she had fraudulently procured marriage certificate. The husband-petitioner had prayed in the suit for annulment of the so-called marriage by passing a decree of nullity. As a matter of fact, signature of the respondent-petitioner was obtained by putting him under intoxication by mixing intoxicant in the cold drink and subsequently the petitioner discovered that his signature was used by the complainant and her friends in procuring marriage certificate illegally from the marriage officer of the Purulia district and for that suit was filed under section 25 of the Special Marriage Act 1954.However,the said suit was transferred to the court of Principal Judge Family Court Ranchi where it was renumbered as M.T.S. No. 156 of 2010.The petitioner appeared in the complaint filed under Protection of Women from Domestic Violence Act, 2005 before the SDJM Ranchi as respondent on 13.9.2010 and filed his preliminary objection on the point of maintainability of the complaint case on the ground that the complaint, which was filed, did not project a prima facie case that she was an aggrieved person as defined in Section 2(a) of the said Act. A rejoinder to the preliminary objection was filed on behalf of the complainant. The learned SDJM rejected the preliminary objection of the petitioner by observing that complaint of the complainant was maintainable.

5. Raising the point of law Mr.Anil Kumar, the learned counsel submitted that the learned SDJM failed to appreciate that the complaint case would be maintainable only if it could reflect a prima facie case in favour of the complainant that she was an aggrieved person in domestic relationship between the complainant and the respondent and fulfilled the requirement of ‘shared household’. The petition was rejected merely on the ground of pendency of matrimonial title suit and existence of the marriage certificate which did not draw inference to presume that in the given allegation, an offence could be made out under the Protection of Women from Domestic Violence Act,2005.As a matter of fact, the complainant could not be stated to be an aggrieved person as defined under Section 2(a) of the d Act as she never lived with the petitioner-husband in domestic relationship as defined in Section 2(f) or in a shared household as defined in Section 2(s) of the Act , as such, complaint of the complainant was liable to be rejected on the point of maintainability . Mr. Anil Kumar further asserted that it would be evident from perusal of the complaint petition and domestic incident report that neither the marriage of the complainant with the respondent was solemnized according to the customary rites nor the same was consummated at any point of time as the respondent-husband had deserted the complainant soon after registration of the marriage on 8.12.2008 which was registered by playing fraud .The certificate of the marriage was obtained from Purulia district where none of the parties ordinarily resided, an essential ingredient under the provision of Section 25 of the Special Marriage Act.

6. Mr. Delip Zerath, the learned counsel appearing for the O.P. No.2 strongly controverted that marriage between parties cannot be denied which finds support from the admission of the husband petitioner that he filed petition under section 25 of the Special Marriage Act for annulment of the marriage but no judgment has been passed and that the matter is still subjudice. Mr. Zerath asserted that unless marriage between the parties is declared nullity it would be presumed that there was a valid marriage under the Special Marriage Act. The report of Protection Officer dated 28.5.2010 would indicate that there was love marriage between the parties and that no money was provided for her maintenance and that she was driven out from her matrimonial home as per column 15 and 17 of the report.

7. Having regard to the facts and circumstances of the case and arguments advanced on behalf of the parties I find that preliminary objection which was raised on behalf of the petitioner-husband on the point of maintainability of the complaint petition filed by the complainant-opposite party no.2 under section 12 of the Protection of Women From Domestic Violence Act, 2005 was turned down by the SDJM Ranchi on the ground that the marriage between the parties was not disputed though same has been challenged under section 25 of the Special Marriage Act and that she was driven out from her matrimonial home and therefore, he found that complaint as brought about by the complainant under section 12 of the said Act was maintainable and the learned counsel appearing for the petitioner failed to satisfy this court so as to call for interference in the order impugned recorded by the SDJM on 6.10.2010 in Complaint Case no. 772 of 2010.There being no merit, this petition is dismissed.

(D.K.Sinha, J)

SD

Categories: DV Judgements

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

Gujrat HC PIL final order of DASHRATH M DEVDA

MCA/596/2011 2/2 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

MISC.CIVIL APPLICATION – FOR REVIEW No. 596 of 2011

In

SPECIAL CIVIL APPLICATION No. 14922 of 2010

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

DASHRATH M DEVDA – Applicant(s)

Versus

HON’BLE CHIEF MINISTER

SHRI (GUJARAT) & 2 – Opponent(s)

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

PARTY-IN-PERSON for Applicant(s) : 1, None for Opponent(s) : 1 – 3.

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

CORAM :

HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA

and

HONOURABLE MR.JUSTICE K.M.THAKER

Date : 30/03/2011

ORAL ORDER

(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)

The petitioner Dashrath M. Devda has filed an affidavit and sought for unconditional apology for making certain observations before the Court on 25.11.2010 in SCA No. 14922/10. By the said order, the Court having found no case made out in public interest, and having found the case frivolous, imposed a cost of Rs. 1 lakh on the petitioner. Today in the affidavit, he had made the following statement:-

“I respect the whole women fraternity. I adore women’s role as mother, sister, daughter and wife too for the well being of family and society. I only oppose those women who misuse the laws like IPC 498A, Cr.P.C 125, 24 HMA, and Domestic Violence Act, 2005 etc. and take revenge on their husbands and others and just destruct the family structure which in the long run harmful to society.”

In view of such apology sought for, and in absence of any opposition made by the learned Government Pleader, we recall last portion of our order dated 25.11.2010 passed in SCA No. 14922 of 2010, whereby we imposed costs of Rs. 1 lakhs on the petitioner. The petition being frivolous, costs is assessed to Rs. 5,000/- to be paid within three months in favour of Self Employed Women’s Association (SEWA), Ahmedabad in place of Rs. 1 lakh. The said order stands modified to the above extent. MCA stands disposed of.

(S.J. Mukhopadhaya, C.J.)

(K.M.Thaker, J.)

*/Mohandas

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http://indiankanoon.org/doc/89292/

Gujrat HC: All 3 children custody confirmed with father :)))

CR.MA/1200/2011 4/4 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 1200 of 2011

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

LABHUBHAI BABUBHAI DESAI – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

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

MS HETVI H SANCHETI for Applicant(s) : 1,

Mr.L.R.Pujari, APP for Respondent(s) : 1,

MR RJ GOSWAMI for Respondent(s) : 2,

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

CORAM :

HONOURABLE MR.JUSTICE MD SHAH

Date : 06/04/2011

ORAL ORDER

1. This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing and setting aside order dated 18-12-2010 passed by the learned Metropolitan Magistrate, Court No.1, Ahmedabad, in Domestic Violence Case No.1109 of 2010 and order dated 13-1-2011 passed by the learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.513 of 2010 whereby petitioner was directed to hand over custody of two minor children to the respondent No.2 till final disposal of Domestic Violence Case No.1109 of 2010 filed by the respondent No.2.

2. The case in short is that respondent No.2, who is the wife of the petitioner, filed Cri.Misc.Appln.No.50 of 2010 in the Court of learned Metropolitan Magistrate, Ahmedabad, under Sec.97 of Cr.P.C. for issuance of search warrant for getting custody of three children presently staying with the petitioner. Said application was allowed on 25-6-2010 against which, petitioner preferred Cri.Misc.Appln.No.334 of 2010 before the Sessions Court and it was allowed by quashing and setting aside the order passed by the learned Magistrate. However, the petitioner was ordered to keep the children present in the trial Court on 14-10-2010. Being aggrieved by the same, petitioner approached this Court by filing Cri.Misc.Appln.No.12567 of 2010 under Sec.482 of Cr.P.C. This Court (Coram: Akil Kureshi,J.) vide order dated 25-10-2010 ordered to keep custody of eldest daughter with the petitioner. The respondent No.2 was given liberty to make appropriation application under the Protection of Women from Domestic Violence Act before the Magistrate seeking appropriate relief. In pursuance of which, the respondent NO.2 filed Domestic Violence Case No.1109 of 2010 before the Court of learned Metropolitan Magistrate for interim custody of twin children aged five years. The learned Metropolitan Magistrate ordered the petitioner to hand over interim custody of two minor children to respondent No.2. Criminal Appeal No.513 of 2010 preferred by the petitioner was rejected by the learned City Sessions Judge, Ahmedabad. Hence, the present petition.

3. Heard learned advocate for the petitioner, Ms.Hetvi H.Sancheti, learned APP, Mr.L.R.Pujari for the respondent No.2 and learned advocate, Mr.R.J.Goswami for the respondent No.2.

4. This Court has gone through both the orders passed by the trial court as well as the appellate Court. This Court has also called the minor children in the chamber for ascertaining the wish of the children in presence of learned advocates appearing for the respective parties. It is ascertained from the children that they have love and affection towards their father and grandfather but not towards their mother. They are studying at present by staying with their father. This Court could find that the children are not ready to leave their father even for a single day. Normally, custody of the minor children should be kept with the mother as it is the mother who can take best care of the children. However, in the present case, this Court could see that the children do not have slightest love and affection towards their mother and hence, it will take much time for the children to get adjusted with mother and get proper care and attention. However, as the children are already with the father and have been taking much care and caution by the father to the utmost satisfaction of children and in the best interest of the children almost in all respects, this Court is of the view that if the custody of the children is left with the father, the children would be more happier. It is true that children have been staying with their father and, therefore, children would not be inclined to stay with their mother as they did not get love and affection of mother. However, keeping the welfare, wish and interest of the children in mind, this Court is of the opinion that it will not be in the best interest of the children to keep their custody with the mother especially when they have shown their love and affection towards their father and did not have slightest inclination towards their mother. These aspects have not been considered by the trial court as well as the appellate court. They have not even made an attempt to call the children in chamber for ascertaining their wish. It is seen that a totally illegal order has been passed by the trial court in directing the complainant to file application under the Guardian and Wards Act and to obtain order qua custody of two minor children and it is a matter of surprise that said order has been confirmed by the learned Sessions Judge.

5. In view of the above, both the orders dated 18-12-2010 passed by the learned Metropolitan Magistrate Court No.1 in Domestic Violence Case No.1109 of 2010 and 13-1-2011 passed by the learned Sessions Judge in Criminal Appeal No.513 of 2010 require to be quashed and set aside and are accordingly quashed and set aside. This petition is accordingly allowed. Looking to the peculiar facts and circumstances, court below is directed to decide Domestic Violence Case No.1109 of 2010 as early as possible preferably within three months from the date of receipt of copy of this order. The parties are at liberty to approach the Civil Court under the Guardian and Wards Act for custody of the children and if such proceedings are initiated by either of the parties, the observations made by this Court in this order will not come in the way of parties while deciding such application.

(M.D.SHAH,J.)

radhan

http://indiankanoon.org/doc/1492403/

Categories: Judgement

Divorce reported SC/HC Judgements on the grounds of mental cruelty

In N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent_.”

In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.

Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under:

“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:

“Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of  “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”

In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under:

“Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”

This Court in the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619 observed as under:

“The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”

The mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at pp.716-17 [para 21] which reads as under:

“Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.” In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably.

In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court observed as under: “The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

This Court in Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778 aptly observed as under: “As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.  If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.”

In Shobha Rani’s case (supra) at pp.108-09, para 5, the Court observed as under:

“5. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

In this case, the Court cautioned the lawyers and judges not to import their own notions of life in dealing with matrimonial problems. The judges should not evaluate the case from their own standards. There may be a generation gap between the judges and the parties. It is always prudent if the judges keep aside their customs and manners in deciding matrimonial cases in particular.

In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj Sharma reported in 2006 (12) Scale 282, this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine.

This Court observed that under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant who sought divorce from the Court.

This Court in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558 dealt with the similar issues in detail. Those observations incorporated in paragraphs 74 to 79 are reiterated in the succeeding paragraphs.

74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.”

77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.” On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.


 

SC: Samar Ghosh vs Jaya Ghosh on 26 March, 2007

Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.  

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv)Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. It was further stated that to establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty.

Harendra Nath Burman vs Sm. Suprova Burman And Anr. on 11/7/1988 – Calcutta High Court – AIR 1989 Cal 120, (1989) 1 CALLT 104 HC, 93 CWN 102

It has been held in the said decision that cause of action arising subsequent to the filing of the suit in consequence with the allegations in the written statement can be taken into consideration by the trial Court including the Court of appeal and the Court can grant relief on such consideration of the subsequent events. It has been held that ordinarily a lis has to be determined on the cause of action made in the pleadings. It is nevertheless will settled that it is open to the court including the court of appeal to take notice of the events which have happened after the institution of the suit and to afford relief to the parties where it is necessary to do complete justice of the case.

 

Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994  Punjab-Haryana High Court – I (1996) DMC 71, (1995) 109 PLR 453

Even if it be taken that the appellant was not remiss in the discharge of her matrimonial obligations, I am still of the view that the respondent husband was entitled to a decree of divorce on the ground of cruelty. The broad admitted facts as noticed from the evidence are that the appellant left for USSR on November 4, 1989 without knowledge, consent or permission of her husband. She did not write to him from USSR and did not bother to see him by visiting him or talking him on three/four occasions when she visited India while studying in the USSR. She did not even inform her husband about her visits to India. If there was no resentment or objection to her going abroad she would not have behave the way she has done. She even went to England during one of her visits to India. This, in my view, clearly gives a cause to the husband to seek divorce on the ground of cruelty. The acts of the appellant are such which would cause mental agony and torture to the husband amounting to cruelty. She finally came to .India on August 18,1990 and she came to know of the divorce petition only in December, 1990. Even during this period i.e., August 18, 1990 to December, 1990 she made no effort to contact her husband either by visiting him or otherwise. From her statement and the statement of her father, it is clear that she was not interested to see her husband even before the filing of the divorce petition as it had been mentioned to her during one of her visits to India that her husband was thinking of marrying again. Her conduct during the pendency of the divorce petition also leads me to believe that she is not interested to settle in the matrimonial home. There is a complete neglect on her part. It is abundantly clear from what has been discussed above that marriage between the parties has broken down irretrievably and there is no chance of their coming together or living together again. The inevitable conclusion therefore, is that the husband is entitled to a decree of divorce.

In S. Hanumantha Rao v. S. Ramani, , said :

“Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which, it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”

In Chanderkala Trivedi (Smt.) v. Dr. S.P. Trivedi (1993) 4 SCC 232 it was held that if a marriage was dead and there was no chance of its being retrieved it was better to bring it to an end.

 

Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985 – 1985 AIR 935, 1985 SCR Supl. (1) 704

(3) In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B-C]
 

The legal position in that behalf is settled by the judgment of this Court Smt. Sumanbai v. Anandrao Onkar Panatil. I myself had occasion to follow the said Judgment in the case of Jaishree Mohan Otavnekar v. Mohan Govind Otavnekar, F.A. No. 2547/83, decided on 12-11-1986. The principle underlying these authorities relate to one specie of mental cruelty which is capable of being inflicted even by the statements made in letters and documents, including the written statement. If a scurrilous allegation is made by one of the spouses against the other spouse, in, say, a letter, causing to him pain and anguish of such excrutiating character that he cannot be reasonable expected to live with the responding spouse after suffering such heinous humiliation, similar allegation giving rise to similar effect upon the petitioning spouse, made in the written statement by the responding spouse, would have the same legal effect of furnishing an independent ground for divorce. Such a painful allegation would constitute a fresh cause of action in favour of the petitioning spouse for divorce on the ground of cruelty resulting from such allegation itself. This is precisely the ratio of the above mentioned two judgments.

S.P. Trivedi (Dr.) vs Chandrakala Trivedi (Smt.) on 20 June, 1989 – 1990 (1) BomCR 715, (1989) 91 BOMLR 449 – Mumbai HC

40. Let me now set out the total perspective as Mperceived by this Court from the totality of evidence. This will automatically lead to setting out the resultant conclusions arrived at by this Court:—

(1) The respondent has been excessively nagging an excessively suspicious spouse.

(2) The Society takes for granted normal spouses (who are at the receiving end in those matters) take these attitudes and behaviours of the other half as part of the game; as something that comes with the matrimonial tie. But everything has its limit, transgression of which makes the case a pathological one. This is the grievance of the petitioner, viz. that the respondent as excessively suspicious and that she indulged in excessive nagging of the petitioner. The wanton allegations about the petitioner’s extra-marital relations with all his female associates strengthen the Court’s belief that the respondent indulged in excessive suspiciousness and the consequent excessive nagging.

(3) This must have made the petitioner’s life quite miserable.

(4) But, while embittering the matrimonial life in this manner, the respondent herself indulged in quite free, liberal, uninhibited emancipated life incompatible with her orthodox stance. This was done, sometimes, quite overtly as in the case of Sajjan Sultania and some other times, on the sly.

(5) In all probability, her habit of going to and staying at her parents place even on crucial occasions when the wife was needed at the matrimonial home is sufficiently proved not only by the petitioner’s evidence but even by virtue of the other evidence on record. It shows that even on such days as the eve of the petitioner’s departure for U.K. in 1980, she went to her parental house and did not go to the Airport to see the petitioner off even in the company of her father who did go to the Airport to see him off. These small stray incidents of pain and anguish must have gone on mounting up.

(6) The photographs were the last straw which broke the camel’s back. The mental turmoil that the petitioner suffered therefrom is in keeping with the orthodox way of life and matrimonial philosophy that both the spouses claim.

(7) There is nothing in the evidence on record which should disuade the Court from accepting the petitioner’s evidence relating to the mental agony and anguish caused to him by the revelations that dawned upon him by the sight of the photographs. It was torment and tension. This belief that any more association with the respondent would be suicidal for him was firmly rooted, in his mind, whether the Court likes it or not.

(8) This was supplemented by the wanton allegations made by the respondent in open public against the petitioner’s moral character vis-a-vis the opposite sex. The person of his status and reputation is justified in being modified and in complaining that he was made a laughing stock and a target of ridicule and calumny in the eyes of the society jeopardising his professional career.

(9) Admittedly, since 1980, the spouses have never lived together or come together. Their minds have drifted leagues away from each other and the matrimonial bond has been torn as under at least for the continuous period of 9 years. The marriage has gone irretrievably on the rocks.

Supreme Court in Saroj Rani v. Sudarsan Kumar, – Supreme Court

Apex Court endorsed the view that a marital tie should not remain alive as the Court found that the marriage had broken down whatever might have been the reason as the parties could no longer live together as husband and wife.

 

Kerala High Courl in Abeebacker v. Mamu, 1971 Ker LT 663 where it was observed thus :–

“Daily trivial differences get dissolved in the course of time and may be treated as the teething troubles of early matrimonial adjustment. While the stream of life, lived in married mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatability of minds breaks up the flow of the stream ? In such a situation we have a breakdown of the marriage itself and the only course left open is for law to recognise what is a fact and accord a divorce.”

 

Calcutta HC:In Amerandra Nath Sanyal v. Krishna Sanyal, 1993 (1)Cal HN 213, it has been held by a Division Bench of this Court that it is now well-settled that false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelly will be a valid ground for passing a decree of divorce under Section 13(1)(ii) of the Hindu Marriage Act and that even post-suit allegations or events may be taken into consideration to shorten litigation and to do complete justice between the parties. In the said case the Division Bench found that respondent-wife made baseless and false allegations against her husband to the effect that he had love affair and illicit connection with another girl and having regard to the facts and circumstances of the case the Division Bench was of the opinion that the petitioner-husband was entitled to a decree of divorce on the ground of cruelty.

 

Calcutta HC: In Sanatan-Banerjee v. Sachindra Nath Banerjee, , a Division Bench of this Court granted decree of divorce inter alia on the ground of making false allegation by the wife against husband of illicit sexual relationship made in the written statement and also in deposition.

 

Calcutta HC: In Annapurna Ganguly v. Dipak Ganguly, (1991) 95 Cal WN 806 it has been held that a suspicion harboured and expressed by the wife about the character of the husband would undoubtedly amount to cruelty if it is established that the said conduct is likely to harm or injure the health, reputation, working career or the like of the other spouse.

Calcutta HC: In catena of decisions, namely, Sm. Krishna Sarbadhikary v. Alok Ranjam Sarbadhikary, reported in, , Nemai Kumar Ghosh v. Smt. Mita Ghosh, reported in, , Harendra Nath Burman v. Smt. Suprova Burman, reported in, , Sm. Santana Banerjee v. Sachindra Nath Banerjee, reported in, and Amarendranath Sannyal v. Smt. Krishna Sannyal, reported in, 1993 (1) Cal HN 213 various Division Benches of this Court settled, as a proposition of law, that unfounded or baseless allegation of adultery by one spouse against the other constituted mental cruelty of the gravest character to warrant divorce. Allegations made in the written statement itself and in the deposition could and should be taken note of in matrimonial proceedings without driving the petitioner to another proceeding on the ground of such cruelty.

Supreme Court : In Durga Prasanna Tripathy v. Arundhati Tripathy, this Court further observed that marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce.”

 

In Vinod Kumar Sharma v. Nutan Sharma (supra), this Court held as under; “The court have had occasion to consider the effect of complaints made to the employer, to persons in authority, and to the police, in F.A.O. No 124/84 and Shakuntala Kumari v. Om Parkash Ghai, 1981 (1) DMC 25 ; N.G. Dastane v. S. Dastane, AIR 1975 SC 1534; Lajwanti Chandhok v. O.N. Chandhok, 1981 (II) DMC 97 ; Kiran Kapur v. Surinder Kumar, 1982 RLR (Note) 37 at page 36 ; Sharda Nand Sharma v Kiran Sharma, 28 (1985) DLT (SN) 32; Girdhari Lal v. Santosh Kumari, (1982) I DMC 180; and Jorden Dlengdoh v. S.S. Chopra, (1982) I DMC 224. Such complaints, which are found to be baseless and to have been made by one of the spouses, have in these cases led to a finding of cruelty against the person complained against. I see no reason why a complaint by a person other than the spouse, who his identified himself with the spouse on whose behalf or at whose behest he has complained, should not be equated to the spouse, and the act of such a person be not deemed to be the act of the spouse. Here the person complained against was the husband. I note from the judgment of the court below that none of these judgments have been noticed by him, and he is of the view that these complaints do not amount to cruelty. In view of the aforesaid judgments of this court, and of the Supreme Court there has to be a finding of cruelty by the wife towards the husband. She made complaints or got the complaints made to the employers and the police which were found to be baseless on enquiry. Cruelty of the wife being established, the husband would be entitled to a divorce on that ground.”

In Smt. Mayadevi v. Jagdish Prasad, (supra), the Apex Court has observed as under; “The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

Chandhok (Lajwanti) vs Chandhok (O.N.) on 26/8/1981 – ILR 1982 Delhi 689, 1981 RLR 619

(9) I am of the view that there was evidence plain and sufficient enough to justify a finding that the life of the husband has been subjected to cruelty and has become unendurable even for a man who has carried on with it right into his sixties. There is limit to endurance. Howsoever, one may wish, society cannot scrap marriage. It is compulsion of creation. It was rather sanctified and hallowed so that couples live in peace, in fear of God and help retain calmness in the community. Yet, it had to devise doors of exit as and when it becomes unreasonably unbearable and converges into sheer bondage. I, therefore, find no ground for altering the decision of the court below. There remained nothing in the marriage except the name. The vows were forgotten. Incantations lost in their spell. The learned Judge below was right in formally snapping the ties which had ceased to be binding happy or purposeful.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY – CIVIL APPELLATE JURISDICTION – FAMILY COURT APPEAL NO. 66 OF 2006 – Ajay Ashok Khedkar …. ….. ….. ….. Appellant. – V/s – Sou. Laleeta Ajay Khedkar….. …. ….. ….Respondent.

We fail to understand the logic behind the reasoning adopted by the family court to hold that a singular complaint of this nature under section 498A of IPC resulting in arrest and detention of the family members and relatives thereby causing utmost embarrassment, humiliation and suffering does not constitute mental cruelty. It is illogical that more than one complaint are necessary to be filed to constitute mental cruelty. In our view, embarrassment, humiliation and suffering that is caused on account of arrest and detention of appellant and his family members and relatives in a false case does constitute mental cruelty to enable the husband to seek decree of divorce on this sole ground. In our considered opinion, the approach of the family court is wholly perverse and the reasoning cannot be sustained in law. 


 

Categories: Judgement

Taunting for not getting dowry not harassment, says court

NEW DELHI: Mere taunts and jibes for bringing insufficient dowry do not amount to causing harassment to a woman or subjecting her to cruelty for dowry, a trial court has said.

“Though taunting for bringing insufficient dowry is an uncivilized act, it does not come within the purview of Section 498-A of the IPC, sufficient to constitute the offence i.e. cruelty to the complainant with respect to non fulfillment of demand of dowry,” metropolitan magistrate Shunali Gupta said.

The court’s remarks came while acquitting a railway employee and his mother in a 17-year-old case of causing harassment to his wife, a teacher, for dowry. “Taunting for not bringing sufficient dowry is distinct from demand of dowry and should not be confused with (the offence itself). With reference to Section 498-A IPC, the sine quo non (essential requisition) is that there must be a demand in contradiction with mere taunts, jibes. Also, that demand should be with a view to pressurize the complainant/her relatives to meet the demand for dowry,” the judge said.

The court also reasoned that “unhappy matrimonial life per se does not imply that there has been commission of offence of harassment for dowry and cruelty”.

A criminal case was lodged by the woman, who married railway employee Jitender Kumar – a resident of Mangolpuri area in northwest Delhi – in 1992. Soon after her marriage, she had approached Mangolpuri police alleging that her husband, mother-in-law and brother-in-law had been harassing her for bringing insufficient dowry.

She even told police that she was being administered slow poison by her husband and in-laws due to which she had to be repeatedly taken to hospital, albeit by her in-laws themselves. Even while hurling a string of allegations against her husband and in-laws, she told the police that “she is still ready to reside with her husband if he behaves nicely with her”.

http://timesofindia.indiatimes.com/city/delhi/Taunting-for-not-getting-dowry-not-harassment-says-court/articleshow/7890301.cms

Categories: Other news

NCW – Girijay Vyas : There is no alternative to 498A

One of the biggest lacunae in child marriage legislation is that marriages of underage persons are “not voidable” and they are “recognised,” Girija Vyas, chairperson, National Commission for Women (NCW) said here on Monday. She was addressing a seminar on child marriage.

“Moreover, the children [from such marriages] are legitimate. Then there are personal laws governing marriages,” Ms. Vyas said. Her term with the Commission is set to end next week.

Ms. Vyas pointed out that 73 per cent of the marriages in Madhya Pradesh were of underage persons making it the State with the highest number of child marriages. Rajasthan came second, followed by Bihar, Uttar Pradesh, Chhattisgarh, West Bengal and even some districts in Kerala.

Ms. Vyas drew attention to the rising rate of crimes against women. Data for 2005 and 2009 showed that the number of reported rape cases had gone up from 18,349 to 22,000, cases of kidnapping from 15,000 to 26,000, dowry deaths from 6,000 to 9,000, molestation cases from 34,000 to 39,000 and those under section 498 A of the Domestic Violence Act shot up from 58,000 to 90,000.

While there were instances of the Act being misused, “in a situation of inequality, there is no alternative to 498A,” she said.

Ms. Vyas stressed the need to strengthen State Women’s Commissions. Members were still to be appointed to the Women’s Commission in Maharashtra. Ms. Vyas said she would be taking up the matter with State Chief Minister Prithviraj Chavan.

On the issue of the minimum age of marriage, Ms. Vyas said during consultations the northern States sought reducing the age while the southern States wanted it to be increased. “The Commission is of the opinion that age should not be under 18.”

Mumbai-based lawyer Jaya Menon called for compulsory registration of marriage. She said child marriages needed to be made void ad initio or at the outset, so that it was not left to the child to go to court and annul the marriage, as was the case now.

Gynaecologist Dr. Sejal Desai pointed to the high incidence of pregnancies among girls as young as 14 years of age and their serious health implications. “We have won the World Cup, but we have a long way to go where women’s health is concerned. Abortion is the major cause of death among girls between 12 and 15 years,” she said.

Prof. Prabha Desai of Sanmitra Trust, an organisation working with sex workers in Mumbai, spoke of the link between child marriage and sex work. She said there were specific castes spread across India such as the Bedias and Nats in the north for instance, who were engaged in sex work. Marriages among them became “an excuse to initiate a child into sex work.” She called for a special component in women’s policy and for an alternative means of earning for sex workers so that they in turn did not push their children into the same profession.

The Bharatiya Bar Girls’ Union president, Varsha Kale, said the need to eradicate the “nath utarna” ceremony, an adolescent’s initiation into sex trade, as much as child marriage. She said a survey had found that girls made to perform this ceremony were all below 15 years.

http://www.thehindu.com/news/national/article1599976.ece

Categories: Other news

Bail granted as husband agreed to wife with full dignity and honour!!!

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6307 of 2011

MD. IRSHAD SON OF SALAHAUDDIN.

————– PETITIONER

Versus

1. THE STATE OF BIHAR

2. RUKHSANA KHATOON WIFE OF MD. IRSHAD DAUGHTER OF MD. YUSUF. ———- OPP. PARTIES. ———–

2 28.03.2011 Heard learned counsels for the petitioner and the State.

The petitioner being the husband is apprehending his arrest in a complaint case in which cognizance has been taken under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.

It is submitted on behalf of the learned counsel for the petitioner that he is ready to keep the complainant as wife with full dignity and honour. Considering the aforesaid stand of the petitioner, let the above named petitioner, be released on provisional anticipatory bail for six months, in the event of his arrest or surrender before the learned Court below within a period of 12 weeks from today, on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the 2

satisfaction of the learned Sub-Divisional Judicial Magistrate, Nawada in connection with Complaint Case No 469/2010, subject to the conditions as laid down under Section 438(2) Cr.P.C. Let the learned court below issue notice to the complainant and on her appearance, the petitioner will take back the complainant to her matrimonial house to keep the complainant as wife with full dignity and honour.

The provisional bail of the petitioner will be confirmed by the learned court below within a period of six months on substantial restoration of the conjugal life or if the complainant deliberately refuses to reside with the petitioner.

(Dinesh Kumar Singh, J.)

Amrendra/-

Categories: Judgement

Husband asked bail. HC gave bail and also maintenance order

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6524 of 2011

SAJID HUSSAIN SON OF SUBHAN MIAN. —————– PETITIONER

Versus

THE STATE OF BIHAR

———–

2 28.03.2011 Heard learned counsels for the petitioner and the State.

The petitioner being the husband is apprehending his arrest in a complaint case in which cognizance has been taken under Sections 323, 380 and 498A of the Indian Penal Code.

Though, there are accusation of demand of dowry and torture, but, it is submitted that the complainant was divorced on 11.03.2005. Without expressing any opinion on the genuineness of the divorce document, which brought on record, as contained in Annexure-2, the petitioner is ready to pay Rs. 800/- per month to the complainant by second week of every month from May, 2011 by depositing the same in the account of the complainant. Let the petitioner serve the order of this Court to the complainant, when, the complainant will supply the account number. The aforesaid payment will 2

be subject to any order passed in matrimonial or maintenance proceedings.

Considering the aforesaid facts, let the above named petitioner, be released on anticipatory bail, in the event of his arrest or surrender before the learned Court below within a period of 12 weeks from today, on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate 1st Class, Saran at Chapra, in connection with Complaint Case No. 2735/2008, subject to the conditions as laid down under Section 438(2) Cr.P.C.

(Dinesh Kumar Singh, J.)

Amrendra/-

Categories: Bail Judgement

Woman, lover held for killing husband

NEW DELHI: A 32-year-old woman was arrested along with her paramour and a friend in the outer district for allegedly killing her husband, police said on Tuesday. The accused have been identified as Rekha (32), her paramour Naveen (21) and friend Mandeep (19).

Police said at Rekha’s instance, Mandeep and Naveen allegedly stabbed her husband, Vinod Kumar (40), and his dog in Begumpur when he had gone out for a morning walk on March 23. The victim later died in the hospital . Vinod used to beat his wife often as he suspected her of having an illicit affair, police said.

“We found Rekha’s movements suspicious. Though initially she tried to mislead the probe, she later confessed that her friends, Naveen and Mandeep, had killed Vinod at her instance,” said Chhaya Sharma, DCP (Outer ). On March 22, Vinod had beaten her up badly, and she warned him that she would file a complaint against him in a popular TV show with the help of her friend.

Categories: Crime by Women

Rs.2,01,000/- is settlemet amount not Rs.2,00,000/- :))

CR.RA/228/2008 1/1 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION No. 228 of 2008

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

DEVASHISH NIRANJAN BHATT – Applicant(s)

Versus

STATE OF GUJARAT & 1 – Respondent(s)

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

MR EKANT G AHUJA for Applicant(s) : 1, MR LR PUJARI, APP for Respondent(s) : 1, MR M.IQBAL A SHAIKH for Respondent(s) : 2, =========================================================

CORAM :

HONOURABLE MR.JUSTICE MD SHAH

Date : 09/09/2008

ORAL ORDER

It is submitted by learned advocate that the dispute between the parties has been settled on payment of permanent alimony of Rs.2,01,000/- (Rupees Two lacs one thousand only) by the petitioner husband to respondent No.2-wife and with consent decree of divorce is also passed by the Court. Learned advocate places on record a xerox copy of the judgment and order passed by the 4^th Addl.Senior Civil Judge, Bhavnagar, dated 14.8.2008, in HMP No. 97 of 2008, which is taken on record.

In view of the above, learned advocate for the petitioner seeks permission to withdraw this petition. Permission as sought for is granted. Petition stands disposed of as withdrawn. Notice is discharged.

Sreeram. (M.D.Shah, J.)

Top

Categories: Judgement

HC: 498A Quashed against A2 to A5

IN THE HIGH COURT OF JHARKHAND, RANCHI.

Cr.M.P. No. 1155 of 2010

1.Ajit Kumar Rai

2. Laxmi Prasad Rai

3. Chanchala Devi

4.Mamta Devi

5.Anju Kumari

6.Dhrup Singh @ Dhrup Deo Singh .. Petitioners.

Versus

1. The State of Jharkhand

2.Rekha Devi Opp. Parties.

Coram :- Hon’ble Mr. Justice D.K.Sinha

For the Petitioners :- M/s.Ramesh Kumar Singh Kunal Kishore

Rakesh Kumar Advocates.

For the State :- Mr. Md. Hatim A.P.P. For the O.P.No.2 :- Mr. Kalyan Banerjee Advocate.

3/25.3.2011 The petitioners have invoked the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for quashment of their entire criminal proceeding including the order dated 3.10.2008 by which Sri. A.K. Dubey, the Judicial Magistrate,Ist Class, Dhanbad after enquiry, found a prima facie case under sections 498A and Section 494 of the Indian Penal Code against the petitioner No.1 Ajit Kumar Rai and under section 498A IPC against the remaining petitioners in C.P. Case No. 1477 of 2007, accordingly, summons were directed to be issued against all of them who were later on admitted to anticipatory bail.

2. The prosecution story in short, as per the complaint lodged by the O.P. No.2 Rekha Devi in the court of CJM, Dhanbad on 11.9.2007 was that she was married to the petitioner No.1 Ajit Kumar Rai in the year 2002 in the premises of Deoghar Temple and after marriage she went to her matrimonial home at Maniadhi P.S. Tundi within the district of Dhanbad . She narrated in the complaint that on the eve of marriage, Rs one lakh in cash, gold, furniture and utensils were given to them. She remained peacefully at her matrimonial home for one year but thereafter all the accused persons started perpetrating torture alleging that she could not be able to bear any child in the meantime. She further alleged that her mother-in-law, father-in-law, sister-in-law and husband used to administer two tablets in the morning and evening as a result of which her health deteriorated day by day. She was then taken away by her brother to parental home for her treatment and in the meantime, taking the benefit of her absence, the husband-petitioner No.1 solemnized second marriage with another girl on the instigation of other accused persons to which a panchayati was held and according to the resolution, she was allowed to stay at her matrimonial home but again her misery started and accused persons tried to create such a situation and to put such impression that she would be killed it continued to stay there. She was kept confined in a room without food and inhuman behaviour was extended to her and finally she was driven out by the accused persons by assaulting her. She any how reached her paternal home and narrated the occurrence to her brother. She then went to the Tundi police Station where she was advised to institute complaint case.

3. The learned counsel appearing for the petitioners submitted that taking of cognizance of the offence is barred by jurisdiction. The cause of action arose within the jurisdiction of the Deoghar court but her complaint case was filed before the CJM Dhanbad. Admittedly, petitioner No.1 Ajit Kumar Rai is the husband, whereas the petitioners No.2,3,4 and 5 are the father-in-law, mother-in-law, second wife and sister of the husband of the complainant respectively. It would be relevant to mention from perusal of the complaint petition that the entire allegation was levelled either of perpetrating torture or solemnizing second marriage against the husband but all the members of his family, who were unconcerned with the affairs of the complainant and her husband, have been maliciously impleaded. It would be evident from the statement of the complainant recorded on solemn affirmation by the CJM wherein she narrated that when she visited her parental home to attend the marriage of her brother, her husband solemnized second marriage with another girl Mamta Devi and thereafter she was driven out from her matrimonial home by her husband and she had no where alleged that she was assaulted by any other member/ in-laws of her matrimonial home.

4. Mr.Kalyan Banerjee, the learned counsel appearing on behalf of the O.P. No.2 submitted that the complainant was driven out from her matrimonial home after her husband solemnized second marriage with another girl without seeking decree of divorce and that such second marriage could be possible only with the consent of the other members of his family and therefore they cannot be exonerated from their criminal liability who abetted which led to the complainant to suffer miserable and deserted life. The entire occurrence took place within the jurisdiction of the Dhanbad court except the marriage of the complainant with the petitioner No.1 Ajil Kumar Rai which was solemnized at Deoghar Temple.

5. Heard Mr. Hatim the learned A.P.P. appearing on behalf of the State.

6. Having regard to the facts and circumstances of the case, composite reading of the complaint petition as well as the statement of the complainant recorded on solemn affirmation, I find that the husband-petitioner No.1 was the principal accused who perpetrated torture mentally and physically to her and that he solemnized second marriage with another girl in the life time of the complainant. I further find that though some overtact alleged to have been attributed against the father-in-law, mother-in-law and sister-in-law of the complainant who were the petitioners No. 2,3 and 5 herein but such allegation could not be substantiated in the statement of the complainant on her solemn affirmation and therefore, I find that the facts alleging against all the petitioners in the complaint case could not be substantiated in her statement recorded on solemn affirmation. No overt act has been attributed against the in-laws except the husband and false implication of the in- laws, in the circumstances has been deprecated by various decisions .

7. In the result I find prima facie case against the petitioner No.1 Ajit Kumar Rai to proceed against him for the offence under sections 498A/494 of the Indian Penal Code but for the reasons discussed above I find that it is a fit case for quashment of the criminal proceeding of the other petitioners viz Laxmi Prasad Rai,Chanchala Devi, Mamta Devi,Anju Kumari and Dhrup Singh @ Dhrup Deo Singh in C.P.Case No. 1477 of 2007 pending in the court of Sri.A.K.Dubey, Judicial Magistrate, Ist Class Dhanbad. Accordingly, they are exonerated from their criminal liability. This petition is allowed in part in the manner indicated above. The trial court is directed to proceed against the husband- petitioner No.1 Ajit Kumar Rai in accordance with law.

(D.K.Sinha,J)

SD

Categories: 498A Judgements

HC: 498A filed after 2 years of filing divorce by Husband: Bail granted

IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30697 of 2010

RAM NATH THAKUR, Son of Rajendra Thakur, Resident of Village-Daudpur, P.S.-Paroo, District-Muzaffarpur Petitioner

Versus

1. THE STATE OF BIHAR

2. Sindhu Devi, Wife of Ram Nath Thakur, D/o Bachu Thakur, Resident of Village-Gopinathpur, Dokara, P.O.-Chakua, P.S.-Saraiya, District-Muzaffarpur. .Opp. Parties

———–

3/ 26.03.2011 Heard the parties. The petitioner apprehends his arrest in a criminal prosecution, under Sections 498(A), 406 and 494 of the Indian Penal Code as also 3/4 of Dowry Prohibition Act, based on complaint petition vide Annexure I.

It is submitted that as a matter of fact, in the year 2006 itself, the petitioner filed Matrimonial Case No. 146 of 2006 in the court of learned Principal Judge, Family Court, Muzaffarpur seeking divorce with the complainant. In that matrimonial case, opposite party no. 2 has entered appearance, and despite efforts made by the learned Principal Judge, the conciliation could not be arrived at between the parties. Thereafter, 2

the complainant filed the present complaint case in the year 2008 in retaliation making all baseless and false allegations against the petitioner. In view of the fact, the present complaint petition was filed after about two years from the date of filing of the matrimonial case and the conciliation proceeding has failed, in that background, in the event of his arrest or surrender within a period of four weeks from today, the above named petitioner is directed to be released on bail on furnishing bail bond of Rs.10,000/-(ten thousand) with two sureties of like amount each in connection with Complaint Case No. C-638 of 2008 to the satisfaction of learned Sub-Divisional Judicial Magistrate, Muzaffarpur (west), subject to the conditions laid down under section 438 (2) of the Cr.P.C.

( Birendra Prasad Verma, J.)

Anjani/

Categories: Bail Judgement

HC:Wife beats husband with CHAPPAL. Divorce to husband. 4 Lakh to wife

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No. 36 of 2010

Smt. Jaishree

W/o Sri Arjun Singh

Presently R/o C/o Lt. Commander (Retd.) Sri Kamal Singh Chauhan

Kothi No. 6 / 4, Canal Road, Jakhan,

Dehradun, District Dehradun.

… . Appellant

Versus

Sri Arjun Singh

S/o Sri Puran Singh

Presently R/o 71 / 40 Chaudhary Bihari Lal Marg District Dehradun.

Permanently R/o Village Syaluka Revadi, Post Gundiyat, Village & Tehsil Purola, District Uttarkashi.

… . Respondent

Mr. Ramji Srivastava, Advocate, present for the appellant. Mr. Sandeep Tandon, Advocate, present for the respondent.

Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J.

Hon. Prafulla C. Pant, J. (Oral)

This appeal, preferred under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 07.06.2010, passed by Principal Judge, Family Court, Dehradun, in Suit No. 2

488 of 2006, whereby said court has allowed the petition under Section 13 of the Hindu Marriage Act, 1955, moved by the respondent (husband), and granted the decree of divorce.

2) Heard learned counsel for the parties and perused the lower court record.

3) Brief facts of the case are that appellant Jaishree got married to respondent Arjun Singh on 20th of June 2005, following Hindu rites, at Dehradun. Out of the wedlock a female child was born on 27.03.2006. The respondent is a teacher. He filed a petition under Section 13 of the Hindu Marriage Act, 1955, alleging that the appellant treated him with cruelty. It is pleaded in the petition that the appellant (wife) left respondent’s house after 20 days of marriage and did not join the company of her husband, even after being persuaded time and again. It is also pleaded in the petition that the respondent kept on going to the parental house of the appellant to persuade her to come to his house, but on one pretext or the other, she avoided it and humiliated him. It is also pleaded that she made unreasonable demands and put unreasonable conditions to come back to her husband’s house, and the respondent made efforts even to fulfill those demands and the conditions, but to no avail. As to the specific incident of cruelty it is stated in the petition that on 06.10.2006, the appellant along with her sisters and other relatives, including her 3

father, came to the house of the respondent. They took whatever belongings (of the appellant) were left in the house of the respondent, and appellant assaulted the respondent with CHAPPALS. It is also pleaded that the respondent got himself medically examined and also filed criminal complaint in the matter. With these pleadings, the respondent sought decree of divorce.

4) The appellant filed her written statement before the trial court and admitted that she was married to the respondent, and female child was born out of the wedlock. However, she denied other allegations made in the petition that she treated the respondent with cruelty. In the additional pleas she made counter allegations of cruelty against her husband, and stated that she was ousted forcibly by her husband from his house. It is also stated by her that her father had given ` 5,00,000/- to the respondent to buy land for himself. It is also pleaded by her that she is ready and willing to live with her husband.

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

i) Whether, the marriage between the parties is liable to be dissolved by a decree of divorce on the ground of cruelty, alleged in the petition?

ii) To what relief, if any, the petitioner is entitled?

4

6) In support of his case respondent (husband) got himself examined as P.W. 1, and also got examined P.W. 2 Sharmila Khanduri (landlady), and P.W. 3 Sandeep Tomar (who accompanied the respondent to the house of the appellant). The appellant (wife) and respondent got examined herself as D.W. 1, and thereafter his father D.W. 2 Lt. Commander Kamal Singh Chauhan. The parties also filed documentary evidence in support of their cases. After discussing the evidence, the trial court found that the husband has proved his case for divorce on the ground of cruelty, and allowed the petition under Section 13 of the Hindu Marriage Act, 1955. Aggrieved by said judgment and order this appeal is filed by the wife.

7) Admittedly, respondent Arjun Singh got married to appellant Jaishree on 20th of June 2005, at Dehradun. It is also not disputed that a female child born on 27.03.2006, out of the wedlock. The only dispute in this case is whether, the allegations of cruelty are proved on the record, or not, to entitle the husband decree of divorce.

8) P.W. 1 Arjun Singh has filed an affidavit before the trial court in support of his case corroborating all the pleas taken in the petition for divorce. He was subjected to lengthy cross-examination, but nothing has come out in his cross- examination, which creates doubt in his testimony. He has specifically stated as to how he went time and again to his wife’s place to call her, and for one 5

reason or the other, he was humiliated. As to the incident on 15.05.2006, he (P.W. 1) states that he went with Sandeep Tomar (P.W. 3) to the house of his wife, but his wife and her father misbehaved with him, and threatened him that he would be implicated in litigation. P.W. 1 Arjun Singh has further stated that he filed an application under Section 9 of the Hindu Marriage Act, 1955, but when on 30th of September 2006, appellant expressed her desire to join his company, he withdrew the petition. However, his happiness was short lived, and the appellant did not honour the promise made by her. Relating to the incident of 06.10.2006, P.W. 1 Arjun Singh has stated that the appellant along with her sisters Alka, Neetu and some others came to his house took all belongings of the appellant. In the evening, on the same day, it is stated by this witness that the appellant came along with some 15 relatives and gave him beating with CHAPPALS. It is also stated by P.W. 1 Arjun Singh that he got himself medically examined, and also file criminal complaint before the Judicial Magistrate. In support of this incident of cruelty, the respondent (husband) not only filed the copy of the medical report and copy of the criminal complaint, but also got examined P.W. 2 Sharmila Khanduri (landlady).

9) P.W. 2 Sharmila Khanduri has corroborated the incident dated 06.10.2006, and stated that Jaishree (appellant) assaulted Arjun Singh with CHAPPALS. She has also stated that abuses were hurled at him by the appellant and her relatives.

6

10) P.W. 3 Sandeep Tomar has corroborated the incident of 15.05.2006, when he accompanied the respondent to the house of the appellant.

11) On behalf of the appellant in her statement she has corroborated the plea taken in the written statement, but her statement when read with her cross-examination does not shake the testimony of the witnesses examined on behalf of the respondent, relating to the act cruelty committed by the appellant. She has admitted in her cross-examination that she filed a case under Protection of Women from Domestic Violence Act, in which her allegations were found untrue, and her petition was dismissed. She has also admitted that in said case the finding was given by the court that it was the husband who was treated with cruelty not the wife. The statement of D.W. 2 Lt. Commander Kamal Singh Chauhan (Retd.) also does not shake the oral evidence adduced on behalf of the respondent (husband), which is supported by the documentary evidence on record. He has admitted that the respondent did file a criminal complaint relating to MAARPEET allegedly committed against him.

12) Having gone through the entire evidence on record afresh, we do not find any illegality in the finding recorded by the trial court that the respondent has proved the allegation that he was treated with cruelty by his wife. As such, we are of the view that the trial court has committed no error of law in decreeing the suit for divorce.

7

13) However, we feel it necessary to direct the respondent (husband) to pay a reasonable sum of alimony to the appellant, to do complete justice between the parties. Admittedly, the respondent is a teacher and his monthly income is ` 11,000/- per month. Considering the economic status of the parties, and facts and circumstances of the case, we think it just and proper to direct the respondent to pay a lump sum one time alimony of ` 4,00,000/- (rupees four lakh only) to pay to the appellant.

14) Accordingly, this appeal is disposed of affirming the decree of divorce granted by the trial court dissolving the marriage of the parties to the suit with the further direction that the respondent Arjun Singh (husband) shall pay ` 4,00,000/- (rupees four lakh only) as one time lump sum alimony to appellant Jaishree, within a period of three months from today. No order as to costs.

(V.K. Bist, J.) (Prafulla C. Pant, J.)

Dt. March 17, 2011.

H. Negi

Categories: Judgement

Family court order removal of husband from flat. HC upheld order

Bench: R S Dalvi

1 WP-576

PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

Writ Petition No.576 of 2011

Mr.Ishpal Singh Kahai … … Petitioner v/s.

Mrs.Ramanjeet Kahai … … Respondent

Mr.U.P. Warunjikar for Petitioner

Mr.Harihar Bhave for Respondent

—–

CORAM : SMT.ROSHAN DALVI, J.

Date of reserving the judgment : 23rd February 2011 Date of pronouncing the judgment : 23rd March 2011

JUDGMENT :

Rule. Returnable forthwith.

1.The Petitioner/husband has challenged the order of the learned Judge, Family Court, Mumbai, directing him to remove himself from the residential flat in which he resides being flat No.2102, 21st floor, Beverly Hills, Shastri Nagar, Lokhandwala Complex, Andheri (West), Mumbai (the suit flat) and from creating nuisance by attempting to enter in the suit flat until the hearing and final disposal of the Petition. The Respondent/wife sued the Petitioner/husband for divorce and other incidental reliefs, being inter alia a mandatory order directing her husband to remove himself, from entering into the suit flat and disturbing her possession. She applied for temporary injunction for the aforesaid 2 WP-576

reliefs in which the impugned order came to be passed.

2.Though the Petition is not expressly stated to be filed under the provisions of the Protection of women against Domestic Violence Act (DV Act), the substantial interim reliefs are available to the wife under it and it is gratifying to note that the learned Judge has impliedly treated the interim application as one also under the DV Act and granted reliefs.

3.The wife s essential case is that her husband is an inveterate and consummate alcoholic. She has lodged several complaints with Versova Police Station. It is her case that her husband displays uncontrolled aggression due to excessive consumption of alcohol and abuses her and her children. The relief of injunction claimed by her is essentially upon the domestic violence caused to her by her husband s behaviour which makes it impossible for her to continue to reside in the matrimonial home with her children if her husband continues to live there as before. She, therefore, claims protection against domestic violence, a statutory right granted to women under DV Act.

4.Though only the relief of prohibitory injunction against disturbance of possession has been granted to wives, as in the case of B.P. Achala Anand vs. Appi 3 WP-576

Reddy 2005 3 SCC 313, since prior to the enactment of the DV Act, in this case the wife has claimed and been granted the injunction against the entry of the husband in the matrimonial home. She has made out a case that her husband is a habitual alcoholic, unable to improve or withdraw from the symptoms of alcohol constituting domestic violence and entitling her and her children to the relief of protection from such onslaught in the matrimonial home under the impugned residence order. She must, therefore, show prima facie the case of alcoholism as would constitute domestic violence. Her case must be appreciated to see whether she would be entitled to the injunctions sought.

5.Aside from her oral statement as also her criminal complaint, which would be tested in trial, she has relied upon and produced the case papers of her husband of Holy Spirit Hospital, Mahakali Caves Road, Andheri (East), Mumbai-400 093, where he was hospitalised for treatment of alcohol dependence. The documentary evidence shown by her is not disputed as incorrect and untruthful. It shows the husband being hospitalised on 5th December 2007 under the treatment of Dr.Prabhu and Dr.Rai. The case papers show alcoholic dependence since 15-20 years. It shows that the husband drinks in the morning as well as in the evening, as shown by the expression:

4 WP-576

Morn drinks + Eve drinks, concomitant smoking on going and aggravating stressers etc.

His case history shows two attempts at abstinence 9 years prior to the hospitalisation after father s death, after which he returned to alcoholism. The conclusion of the case history shows

Imp : Alcohol dependence in withdrawal.

It advises urgent admission to hospital. Hence started the treatment of the phase of retoxification.

6.This documentary evidence corroborates the case of the wife that the husband is abusive and violative. Judicial notice is required to be taken of the fact that persistent alcoholic husbands are invariably violative.

7.The wife has given an instance of the after effects of the husband s alcoholism. The instance is also admitted by the husband. He has justified it on the ground that it was his mistake. The incident took place in the evening of 10th January 2010. The husband had been to 5 WP-576

Juhu Club. The wife and children were not at home. He consumed alcohol and returned home with a food parcel. He heat it up on the cooking gas. He ate and went to sleep. He found somebody knocking on the door but did not get up. Fire brigade was called who broke open the door, entered the kitchen and closed the gas cylinder knob. The husband realised his mistake.

8.This shows that the case of the wife that the husband had left the cooking gas on in his alcoholic stupor when he collapsed to sleep leaving the gas on and requiring their neighbour one Mr.Tanna to call the fire brigade is not only correct but also accurate. The requirement of calling the fire brigade shows the gravity of the situation. The wife was not in the house. She had to be called. Therefore, it stands to reason that despite knocking and banging the door, the Respondent was unable to bring himself to open it requiring the fire brigade to break it down.

9.It is in this situation that the statutory rights of protection of a wife in her matrimonial home under the DV Act are required to be considered.

10.It is the contention of the husband that the wife is not the full and complete owner of the flat in which he also resides and hence could not be granted the relief 6 WP-576

of injunction against him. The entire case of the husband is based upon ownership rights. Incidentally, in this case, the matrimonial home, in which the parties reside and for which the wife has applied for injunction, temporary as well as permanent, is in the name of the wife and her mother-in-law. That is, however, the most immaterial and even redundant consideration. Human Rights of the person of a wife has little to do with her ownership rights in property. It is, therefore, not material to consider in whose name the matrimonial home stands. What has to be only considered and appreciated in a case of domestic violence of a wife of an alcoholic and abusive husband is the protection against such violence.

11.It is in this light that the evolution of the law of Domestic Violence has to be considered.

12.At common law in England a mere desertion of a wife entitled her to peaceable occupation of and protection in the matrimonial home. This was held to fall within the doctrine of The Deserted Wife s Equity in the case of National Provincial Bank Ltd. vs. Hastings Car Mart Ltd. & ors., (1964) 1 Ch. D. 665.

13.The Matrimonial Homes Act, 1967 granted the right to both the spouses to enter into and occupy the 7 WP-576

matrimonial home and in certain cases to have the other spouses right to live there terminated despite the fact that she/he did own, fully or partly, the matrimonial home. The right was, therefore, available irrespective of the title to the house.

14.In the case of Gurasz v. Gurasz (1969) 3 WLR 482 CA = (1969) 3 AER 822, Lord Denning, as he then was considered the case of the wife who was a joint owner with her husband. Holding that the right to protection of her occupation extended to a wife who was also a part owner of the house, (though her husband was also a part owner in that case), he restrained the husband, who caused cruelty upon her, from the occupation rights thus:

It is true, of course, that the husband is also a joint owner, and by virtue thereof, the husband has a right to occupy it. But that is a right which the courts, for the protection of the wife, can restrict; just as it can restrict this right if he were the sole owner. Such a power to restrict arises out of her personal right, as a wife, to occupy the house. If his conduct is so outrageous as to make it impossible for them to live together, the court can restrain him from using the house even though he is a joint owner.

15. Hence the precedent law in England held that financial interest of a husband has nothing to do with the equity of protecting a wife in cases of cruelty or 8 WP-576

abuse. Their respective contributions to the purchase of the house could be considered only in cases where the marriage broke up requiring considerations of alimony and provisions for residence.

16.The right of a battered wife was statutorily recognised under the Domestic Violence and Matrimonial Proceedings Act, 1976 (the said Act) in England.

The relevant provisions of the said Act show thus:

Under Section 1 of the said Act, an injunction could be issued (termed as a matrimonial injunction). The breach of the injunction empowered the Police to arrest the violator.

Under Section 1(1) of the said Act, an injunction could be issued restraining the other party from molesting the Applicant or her children as also from excluding the other party from the matrimonial home or any part thereof and from permitting the Applicant to enter into the matrimonial home or any part thereof.

Under Section 2 of the said Act, where an injunction restraining violence or excluding the other party is issued and bodily harm is caused to 9 WP-576

the Applicant or the child a power of arrest would be attached to the injunction so as to empower a constable to arrest without warrant the person reasonably suspected of causing breach of injunction and further incidental orders could be passed.

Under Section 3 of the said Act, the order of regulating the exercise of the right of occupation by a spouse in the dwelling house as granted under Section 1(2) of the Matrimonial Homes Act, 1967 came to be substituted by the order of prohibiting, suspending or restricting such a right. Further the positive permission to exercise the right of occupation by the Applicant came to be specifically granted by incorporation of that right.

Under Section 4 of the Act, in the case of spouses, who are joint owners of the matrimonial home, the right to occupy it or to prohibit, suspend or restrict the other party could be granted by an order of the Court.

17.Hence the order of regulating the exercise of the right of occupation by a spouse in the dwelling house under common law came to be substituted by the order of 10 WP-576

prohibiting, suspending or restricting such a right. Further the permissive right of occupation by the Applicant came to be specifically granted by incorporation of that right.

18.The Matrimonial Homes Act, 1967 was repealed by the Matrimonial Homes Act, 1983 (M.H. Act) brought into force from 9th May 1983.

19.The 1983 Act dealt with the consolidation of the rights of a husband or wife to occupy a dwelling house which was their matrimonial home. Section 1(1), (2), (3), (4) and (10) determined the statutory rights along with Section 9 thereof.

Under Section 1(1) where one spouse was entitled to occupy a dwelling house by virtue of a beneficial estate, interest or contract or an enactment and the other spouse was not so entitled, then such other spouse would have a right of occupation. Under that right of occupation, he or she had a right not to be evicted or excluded therefrom and had a right to enter upon and occupy it.

Under Section 1(2) either spouse may apply for declaring, enforcing, restricting or terminating 11 WP-576

those rights, or for prohibiting, suspending, or restricting the right of the other.

Under Section 1(3), the Court could make any just and reasonable order having regard to the conduct of the spouses, the respective needs, financial resources and the needs of their children in that behalf as also to make periodical payments to the other spouse in respect of such occupation and for repayment and maintenance of the dwelling house.

Under Section 1(4), such order would remain in force for a specified period or until further orders.

Under Section 1(10), the Act would have no application to any dwelling house which was not the dwelling house of the spouses. The spouse s rights of occupation would continue until the marriage subsisted.

Under Section 9(1) of the Act, where any spouse has the right of occupation in a matrimonial home, he or she could apply for an order prohibiting, suspending or restricting the exercise of the right by the other or requiring the other spouse to permit its exercise by the Applicant. 12 WP-576

Under Section 9(3), if the spouse had a right under a contract or an enactment to remain in occupation of the dwelling house, Section 9 would apply where they would be entitled by virtue of the legal estate vested in them jointly.

20.Hence in terms, the new legislation conferred a complete right of occupation to both the spouses to remain in their matrimonial home peaceably and without disturbance by the other. This was despite any other contractual or statutory right and also when they were joint owners. The Parliament, therefore, granted by law what Lord Denning ruled in the case of Gurasz (supra) since overturned by the House of Lords.

21.The Law in India developed much the same. Title of parties was oft considered in grant or refusal of the relief of injunction against an abusive husband.

22.The DV Act came to be enacted essentially to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights so that the civil law protection could not be availed by them.

23.The DV Act is an Act to provide for more effective protection of the rights of women guaranteed under the 13 WP-576

Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

The relevant portion of the objects and reasons of the Act inter alia provides for :

(i)…….

(ii)…….

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass

protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her

assistance from the domestic violence.

(v) ……

The Act, therefore, provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife 14 WP-576

against violence and at prevention of recurrence of acts of violence.

24.Under Section 2(s) of the DV Act, shared household is a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person OR the respondent or both jointly OR singly have any right, title, interest OR equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

25.Her right to reside in the shared household is under Section 17(1) of the DV Act which runs thus:

17. Right to reside in a shared household.-(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

15 WP-576

The statute, therefore, expressly excludes the consideration of ownership rights as a condition for determining whether or not a particular property is a shared household.

26.The DV Act grants protection to women in a shared household (or matrimonial home) in case of any domestic violence perpetrated upon her therein.

27.Under the relevant portion of Section 3 of the DV Act, domestic violence is defined inter alia as the omission or commission or conduct of the respondent which:

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b). . . .

(c). . . .

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Under Explanation I to Section 3, physical abuse is any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or 16 WP-576

development of the aggrieved person and includes assault, criminal intimidation and criminal force.

Under Explanation II to Section 3 for determining the commission of an act constituting domestic violence the overall facts and circumstances of the case shall be taken into consideration.

The DV Act thus grants protection against any form of aggression mental, physical, or emotional in a shared household which may not belong to the woman who is a victim of violence therein, but who only resides therein WITHOUT having any title thereto.

28.A wife who owns a property can even otherwise exclude any person, including her abusive or violative husband therein under civil law. The enactment of the DV Act would not be required to give such a wife any added protection by way of any injunctive relief in respect of a residential property owned by her. The DV Act steps in to protect the women who were otherwise left unprotected under the general law. This is expressly clarified under:

(1) the statement of objects and reasons: 17 WP-576

…..whether or not she has any title or rights in such home or household.

(2) the definition of shared household under Section 2(s):

whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them.

(3) the right to reside in the shared household under Section 17:

whether or not she has any right, title

or beneficial interest in the same.

as also

(4) the residence order under Section 19(1)(a):

whether or not the respondent has a legal or equitable interest in the shared

household

29.It can, therefore, be seen that there is no place for proprietary rights under the DV Act. The Act is an extension of the deeper and profounder principle of Women s Rights as a part of Human Rights. The matrimonial home or the shared household of a person does not require it to be owned or co-owned by the person who has been violated. It could be any household 18 WP-576

whether owned or tenanted, either jointly or by either of them as specifically set out in Section 2(s) above. It is the household in which the victim and the violator may be having rights, singly or jointly. Consequently, they may or may not have title to the property and hence the victim can apply for a residence order to the Court in respect of a shared household, which includes their matrimonial home, whether or not she has any right, title or beneficial interest therein. The very consideration of ownership rights would put materialism before matrimony.

30.In fact, the lesser the entitlement to property rights, the more is the entitlement to protection of human rights against violence. It may not be out of place to rethink the depth of the words of none other than Mahatma Gandhi reaching out to the most vulnerable of humankind in generic terms:

I hold that the more helpless a creature, the more entitled it is to protection by men, from the cruelty of men.

31.Though this law grants her protection, it goes only thus far and not without reason. It is essentially a temporary remedy. It is entirely a protectionist and not an empowering legislation. It holds fort until the parties work out their differences and disputes and 19 WP-576

until the husband makes the reasonable alternate arrangement contemplated in the legislation itself. Section 19(1)(f) which shall be considered presently. Consequently this law itself does not confer proprietary rights in the matrimonial home. This law does not need/require her to have any title, because it does not confer upon her any title. It can, therefore, be seen why she requires to show the Court nothing more than her residential rights to the disputed premises which is her matrimonial home or the shared residence.

32.The case made out by either of the parties with regard to the joint or co-owned residence by the wife is, therefore, completely alien to the mischief that is sought to be remedied by the DV Act. The argument on behalf of the husband that his mother owns the suit flat along with wife etc. must, therefore, be ignored as redundant to the issues required to be adjudicated in this case.

33.The right is claimed by the lawfully wedded wife in this case. The husband, who subjects his wife to domestic violence in a marital relationship (as much as in any other domestic relationship), would require a protection as well as a residence order passed against him.

20 WP-576

34.The wife applied for what is now statutorily called a residence order in terms of the injunctions, temporary as well as permanent, as set out above in respect of the shared household which is her matrimonial home. The residence orders claimed by her are grantable under Section 19(1) of the DV Act, the relevant portion of which runs thus:

19. Residence orders. (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

(a)restraining the respondent from dispossessing or in any other manner

disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or

equitable interest in the shared household;

(b)directing the respondent to remove himself from the shared household;

(c)restraining the respondent or any of

his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d)restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e)…….

21 WP-576

(f)directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the

same, if the circumstances so require :

……..

(2)The Magistrate may impose any additional conditions or pass any other

direction which he may deem reasonably

necessary to protect or to provide for the safety of the aggrieved person or any

child of such aggrieved person.

(3) ……

(4) ……

(5)While passing an order under sub-

section (1), sub-section (2) or sub-

section (3), the Court may also pass an

order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an

application on her behalf in the implementation of the order.

(6)While making an order under sub-section (1), the Magistrate may impose on the

respondent obligations relating to the

discharge of rent and other payments,

having regard to the financial needs and resources of the parties.

(7)The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been 22 WP-576

approached to assist in the implementation of the protection order.

35.Hence notwithstanding the law relating to ownership of immovable property any victim of domestic violence in a domestic relationship would require to be granted the protective right of residence in the shared household, including the protection against dispossession therefrom whether or not she has any legal or equitable interest therein . This right to reside contains within itself not only an injunction for protection against her dispossession, but statutorily follows as a matter of corollary, the order of injunction of the Court for removal of the violator from such household and thereafter restraining him from entering thereupon. The order of removal of the violator and an order of injunction restraining him from entering upon the shared household is, therefore, conditioned upon his abusive behaviour violating the person of his wife or any other woman in domestic relationship and not upon his proprietary rights therein. Consequently, the right to reside without having any title to the property contains within itself the right to reside peaceably and to the exclusion of the violator. Further since the Act puts the woman s personal rights above proprietary interest, even if the Respondent who is the violator has title to the property, he would be restrained by a Court from 23 WP-576

exercising unrestrained domain over his ownership property by an order of injunction restraining him from alienating or disposing of or encumbering the shared household or the matrimonial home in which the victim has been granted the right of peaceful residence for her protection. This further brings within its sway, the servants, agents, assigns, who may be the relatives of the violator since what cannot be done directly also cannot be allowed to be done indirectly. This, of course, would be until and subject to the violator securing the same level of alternate accommodation for the victim as was enjoyed by her in the shared household and upon he paying for the same. Consequently, reading sub-sections (a), (b), (c), (d) and (f) of Section 19(1) together, a holistic view of the protection of the victim is granted under the beneficial social legislation which seeks to remedy the malaise of domestic violence in a domestic relationship.

36.It may be mentioned that the orders required to be passed by a Magistrate can also be passed by the Family Court, as the jurisdiction under Section 26 of the DV Act is conferred upon Civil Court, Family Court or Criminal Court alike.

37.It is this protection that the learned Judge has 24 WP-576

sought to grant the violated wife in this case against her violative husband. As aforesaid, the fact of his alcoholism not only having been shown, but admitted and justified and the instance shown by the wife not only having been stated, but substantiated by the fact of the fire brigade assistance having had to be sought, a case of her protection in future against the expected aftermath of the disease to which the husband has succumbed as well as for the protection of her minor children is more than prima facie made out. In fact, the learned Judge has considered the aggressive attitude of the husband in even breaking a glass in a fit of rage upon the Petitioner having filed the Petition and applied for reliefs. The learned Judge has also considered the police complaints filed by her. She has appreciated the apprehension in the mind of the wife of further disturbance at the hands of her husband. The learned Judge has, however, also considered the joint ownership of the wife and her mother-in-law in the matrimonial home. It may be mentioned that is the only immaterial aspect in considering the relief of injunctions granted by the learned Judge.

38.The wife has made out a fit case for grant of the reliefs sought by her. The husband has not shown any apparent error on the part of the learned Judge. No 25 WP-576

interference whatsoever is called for.

39.The Writ Petition is, therefore, dismissed and Rule is discharged accordingly.

40.However, upon the application on behalf of the Petitioner/husband, the stay already granted by the trial Court, which has been continued pending the Writ Petition, shall be continued for a further period of two weeks from today.

(SMT.ROSHAN DALVI, J.)

Categories: DV Judgements

HC: Even though distance between cities only 80KM but still case transferred

TA No.515 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

TA No.515 of 2010

Date of decision : 28.02.2011

Jaswinder Kaur

…Applicant

Versus

Sukhwinder Singh and another

…Respondent

CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Anil Chawla, Advocate

for the applicant.

Mr. Deepak Arora, Advocate,

for the respondents.

JITENDRA CHAUHAN, J. (Oral)

1. The wife, Jaswinder Kaur, has preferred this application under Section 24 of the Code of Civil Procedure, for transfer of the petition titled as ‘Sukhwinder Singh Vs. Jaswinder Kaur and another’, filed by the respondent No.1 under Section 13 of the Hindu Marriage Act, 1955 (for short `the Act’), from the Court of learned Additional District Judge, Gurdaspur, to the Court of competent jurisdiction at Amritsar.

2. The learned counsel for the applicant contends that petition under Section 125 Cr.P.C. claiming maintenance and another petition under Section 12 read with Section 17, 18, 19, 20, 22 of the Protection TA No.515 of 2010 2 of Women from Domestic Violence Act, 2005, filed by the applicant are pending adjudication before the learned JMIC, Amritsar.

3. The learned counsel for the applicant further contends that the applicant has been ousted from the matrimonial home and is residing with her parents along with three children born out of the wedlock.

4. On the other hand, the learned counsel for the respondent submits that the distance between Gurdaspur and Amritsar is only about 80 kms. She does not have to travel on each and every date as she is represented by the counsel.

5. I have heard the learned counsel for the parties.

6. Admittedly, two petitions filed by the application are prior in time. Otherwise also, the convenience of the wife is to be seen. Three children are also residing with the applicant who herself is at the mercy of her parents. She is not in employment and does not have any other source of income.

7. Hon’ble the Supreme Court in Neelam Kanwar vs Devinder Singh Kanwar, 2001(1) M.L.J. 509 (SC), has observed as under:-

“We are mindful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reason not to do so. No special reason is shown.”

TA No.515 of 2010 3

8. Considering the fact that the applicant is a resident of Amritsar and primarily, the convenience of the wife is to be seen, therefore, in my opinion, the balance of convenience is in favour of the applicant-wife and against the respondents. Accordingly, the petition filed by respondent No.1-husband titled as ”Sukhwinder Singh Vs. Jaswinder Kaur and another” under Section 13 of the Act, pending in the Court of learned Additional District Judge, Gurdaspur, deserves to be transferred to Amritsar.

9. In view of the above, the instant transfer application is allowed and the petition under Section 13 of the Act titled as ‘Sukhwinder Singh Vs. Jaswinder Kaur and another’ is withdrawn from the Court of learned Additional District Judge, Gurdaspur, and is transferred to the Court of competent jurisdiction at Amritsar. File of the petition shall be sent by the trial Court at Gurdaspur to the learned District Judge, Amritsar, within three weeks, who will either himself dispose it of or entrust it to any other Court of competent jurisdiction.

10. The parties shall appear before the Court of learned District Judge, Amritsar, on 04.04.2011.

28.02.2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to Reporter ? Yes / No

Categories: Judgement

Heay Misuse of 498A IPC – Women filing muliple 498A

As part of its efforts to effectively deal with cases of human trafficking, the state government has designated one police station of Faridabad to specifically deal with such cases. A senior police officer shared this information at a workshop of all heads of police stations here on Friday.

>The officers were lectured to be sensitive while dealing with cases of domestic violence, human trafficking, child abuse, etc. “Faridabad’s Central Police station has been designated as the nodal police station to deal with cases of human trafficking,” said AK Rao, Joint Commissioner of Police, Faridabad.

“The cops selected for working in this special cell of Central Police station will receive proper training and also study about human trafficking through distance education,” Rao said.

The workshop of police officers was held to change the “mindset of the policemen” towards sensitive issues such as domestic violence, human trafficking, etc.

Some of the policemen attending the workshop presented a grim view of the actual situation on ground. They said it was totally different than what the prescribed laws preach.

“Police has to deal with cases in which women and children are involved very carefully so that their rights are protected,” said Ravi Kant, a supreme court lawyer and head of NGO Shakti Vahini while making presentation before the policemen at the workshop.

“But on the ground we come across many cases when a woman snatches chain of another woman. It then becomes difficult for the police to handle such cases,” said SHO SGM Nagar Ravinder Kumar.

“We had a case in which a woman got a case registered against her husband under 498A(dowry), took money from him, married another man and leveled similar charges against him too,” Kumar said.

“In such a situation what are we supposed to do?” he asked.

The police officers said the Central police station in Faridabad is among one of the three such police stations to deal with human trafficking cases in entire Haryana. “One is in Panchkula and another one in Gurgaon,” Rao added.

Categories: Crime by Women

Family Court award 2500 maintenance to Husband but HC quashes it

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal From Order No. 356 of 2010

Smt. Pratiksha Arya

W/o Sri Deepak Kumar Arya

D/o late Shri Mahesh Chandar Arya

R/o Staff House Compound, Mallital,

Nainital, District Nainital.

… . Appellant

Versus

Sri Deepak Kumar Arya

S/o Sri Daulat Ram

R/o Teachers Colony, Kichcha,

Tehsil Kichcha, Distt. Udham Singh Nagar.

… . Respondent

Mr. Akhil Kumar Sah, Advocate, present for the appellant. Mr. D.S. Mehta, Advocate, present for the respondent.

Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J.

Hon. Prafulla C. Pant, J. (Oral)

This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the order dated 16.08.2010, passed by Principal Judge, Family Court, Nainital, in Civil Suit No. 148 of 2009, whereby said court has directed the appellant to pay maintenance at the rate of ` 2,500/- per month to her husband 2

(respondent) under Section 24 of the Hindu Marriage Act, 1955.

2) Heard learned counsel for the parties.

3) Brief facts of the case are that parties to this appeal are in litigation before the trial court where respondent Deepak Kumar Arya has filed a petition for divorce against the present appellant Pratiksha Arya. In said suit, he moved an application under Section 24 of the Hindu Marriage Act, 1955, for maintenance at the rate of ` 10,000/- per month from his wife Pritiksha Arya. The application was contested by the wife, who alleged that her husband runs a computer center at Kichcha, and owns property worth lakhs of rupees there.

4) Section 24 of the Hindu Marriage Act, 1955, applies equally to both spouses. It provides that where in any proceeding under the Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support, it may, on the application of wife or the husband, order the other party to pay monthly maintenance during the proceeding initiated under the Act. Normally, in the Indian society, we see husband as an earning member in the family and wife dependent on him. But Section 24 takes note of all kinds of situation including the one in which husband is unable 3

to maintain himself and dependent on his wife. As such, as far as maintainability of the application moved by the husband is concerned, the same was maintainable, seeking maintenance from the wife.

5) However, whether actually in the present case, the husband was entitled for maintenance under Section 24 of the Hindu Marriage Act, 1955, is required to be examined. The husband has moved an application for maintenance on the ground that his wife is a teacher and earning ` 18,000/- per month (actually found ` 9,300/- per month). He has pleaded that he is not employed anywhere. On the other hand, in the objections filed before the trial court by the present appellant it is specifically pleaded that her husband Deepak Kumar Arya (present respondent) runs a computer center in Kichcha. It is also pleaded by her that her husband owns property worth lakhs of rupees. The trial court has simply taken note of the fact that since the present appellant is a teacher in a primary school and getting salary of ` 9,300/- per month, it directed the appellant to pay maintenance at the rate of ` 2,500/- per month to her husband. The trial court has ignored the economic status of the husband. It is nowhere categorically discussed nor concluded by the trial court that the husband does not run the computer center or does not own any property, as alleged by his wife. It is also evident from the impugned order that present appellant 4

(wife) is a teacher in a primary school at some interior place of posting.

6) Having considered submissions of learned counsel for the parties and after going through the papers on record, we are of the view that though the application by the husband was maintainable under Section 24 of the Hindu Marriage Act, 1955, but in the facts and circumstances of the present case, it is not a fit case for granting maintenance to the husband by the wife. Therefore, without observing any opinion as to the final merits of the case pending before the trial court, this appeal is allowed, and the order dated 16.08.2010, passed by Principal Judge, Family Court, Nainital, in Civil Suit No. 148 of 2009, is set aside so far it relates to the direction to the present appellant to pay maintenance at the rate of ` 2,500/- per month to her husband. Costs easy.

(V.K. Bist, J.) (Prafulla C. Pant, J.)

Dt. March 17, 2011.

H. Negi

Categories: 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

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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