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Archive for August, 2010

Multiple Maintenance petitions not allowed : Justice SHIV NARAYAN DHINGRA

http://lobis.nic.in/dhc/SND/judgement/31-08-2010/SND30082010CRLMM1302010.pdf

Crl.M.C.No. 130/2010 Page 1 of 3

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3

 

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: August 25, 2010 Date of Order: 30th August, 2010 + Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010 % 30.8.2010 Rachna Kathuria … Petitioner Through: Mr. P.Narula, Advocate Versus Ramesh Kathuria … Respondent Through:Mr. S.S.Saluja, Advocate JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporter or not? Yes. 3. Whether judgment should be reported in Digest? Yes. JUDGMENT By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed. rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and Crl.M.C.No. 130/2010 Page 2 of 3 she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

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

Crl.M.C.No. 130/2010 Page 3 of 3 already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed. August 30, 2010 SHIV NARAYAN DHINGRA, J.

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Categories: DV Judgements

Even a mutual consent divorce by family court can be set aside by HC if either party challenges

Bench: B P Dharmadhikari

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 40 OF 2009

Sau. Sushama w/o Pramod Taksande,

Aged 30 years, Household,

r/o. C/o. Shri Wasudeo Shendre, Rani

Laxmibai Ward, Pandharkawada,

Tahsil Kelapur, District Yavatmal. … APPELLANT. VERSUS

Shri Pramod s/o Ramaji Taksande,

Age 42 years, occupation Businessman,

Karanji Road, Tahsil Kelapur,

District Yavatmal. … RESPONDENT. ———————-

Mr. R.D. Bhuibar, Advocate for Appellant.

Mr. Anjan De, Advocate for Respondent.

———————–

CORAM : B.P. DHARMADHIKARI, J.

Date of Reserving Order. – 04.02.2009 Date of Pronouncement. – 17.03.2009 2

ORAL JUDGMENT.

1. The appellant before this Court is wife and she challenges judgment dated 6.12.2008 delivered by the District Judge -I, Pandharkawada, affirming the judgment dated 6.10.2008 passed by the Civil Judge, Senior Division, Pandharkawada (Kelapur). The Civil Judge, has in H.M.P. No.24/2008 presented under section 13[B] of Hindu Marriage Petition, dissolved marriage between the parties because of consent and the custody of two sons with father Pramod was continued as wife agreed not to seek the custody. It is also recorded that wife waived her right of maintenance. This order was challenged by wife in Regular Civil Appeal No. 68/2008 inter-alia contending that her signature on said petition and accompanying affidavits were obtained under false pretext and she was compelled to place her signature upon it. She contended that both the parties were residing together and there was no separation for a period of one year which is a mandatory requirement. The Lower Appellate Court has considered this ground and in paragraph no.7 found that petition was presented on 4.4.2008, parties were directed to remain present on 6.10.2008 and from pleadings it appeared that both parties were not ready to continue 3

their marital tie. In their affidavits, both state that they were residing separately from February, 2007 and hence both were residing away from each other for more than one year before the presentation of the Section 13[B] petition. The Appellate Court also found that the affidavit of wife demonstrated that they were residing separately from one year before filing of the petition. It also noted that Advocate for husband submitted that, wife was residing at house of her brother at Karanji itself and this submission was not “refuted” by appellant i.e. wife. In view of this consideration the appeal came to be dismissed.

2. I have heard Advocate Shri Bhuibar, for appellant Wife and Advocate Shri Anjan De, for respondent husband in this background.

3. On 04.02.2009 following three questions were framed and after hearing the parties, the appeal was closed for orders/ judgment. “(1) Whether in present facts and circumstances, there is compliance with provision of Section 23[1][bb] of the Hindu Marriage Act ?

(2) Whether the petitioner Wife could have challenged the judgment and order in

H.M.P.No.24/2008 in Appeal ?

(3) Whether the petitioner-Wife has indulged in perjury?”

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Then it was felt that an attempt for re-conciliation should have been made even in High Court, accordingly, in consultation with both the Advocates sought time for the said purpose till 02.03.2009 and ultimately both of them expressed their inability and stated that efforts undertaken for re-conciliation failed. The matter was therefore again heard on 02.03.2009 and on that date Advocate Shri De for respondent invited attention to the provisions of Order 41 Rule 25 of C.P.C. to urge that if this Court finds it necessary, a limited issue or question can be framed and finding upon it can be called from the Trial Court. The appeal was finally closed for judgment on 02.03.2009.

4. Advocate Shri Bhuibar, has contended that the requirement of law in this respect is very clear and the Civil Judge, Senior Division has to record a satisfaction under Section 23[1][bb] so as to avoid such contentions and arguments from being raised. He invites attention to the fact that address of both the parties mentioned in the marriage petition is same and their affidavits also mention very same address. There is nothing on record to show that they were residing away from each other and the petition itself did not demonstrates that parties were staying separately for more than one year. He relies upon two judgments of Hon’ble Apex Court reported at AIR 1998 SC 764– 5

Balwinder Kaur .vrs. Hardeep Singh , Sureshta Devi .vrs. Om Prakash– 1991 (1) Mh.L.J. 324, to urge that the Lower Courts have failed to exercise jurisdiction in accordance with the law. AIR 1987 Punjab 191 Smt. Krishna Khetarpal .vrs. Satish Lal, is being pointed out to show that the present appeal is maintainable. Lastly it is argued that in view of the document filed along with the reply by the present respondent/husband need for counseling couple was apparent and Civil Judge, Senior Division has not held any conciliation proceeding in the matter. The learned counsel therefore, prayed for allowing the Second Appeal.

5. Advocate Shri Anjan De, for respondent husband has placed strong reliance upon the documents filed by the respondent on affidavit along with Civil Application No. 130/2009. The said application is also styled as “submissions”. It is for taking action for perjury and for contempt of Court against the appellant. It is pleaded that the documents accompanying it are obtained under Right to Information Act. The first document is report submitted by the S.D.P.O. Pandharkawada on 20.08.2008 to Assistant Superintendent of Police, at Yavatmal after enquiry into the complaint made by Digamber Ramdas Dhote. He is father of present appellant. The second document is the 6

oral statement recorded by S.D.P.O. The fourth document is statement dated 18.8.2008 of present appellant and in that statement she has that she is married with the present respondent and has two sons from him. She has further stated that she has love affair with police constable Surendra Wasnik, since last one year and she has gone out with him and when ever he used to visit her, he used to present her with Saree or some ornaments out of love. This relationship was not liked by her parents and some others and hence complaint came to be filed against Shri Wasnik, She mentioned that she had applied for divorce before the Court and case would be decided within a month. After grant of divorce from court she was going to reside with Shri Wasnik because of their relations. Her father in law and mother in law had agreed to look after her sons and hence custody of sons would be with them. She has further stated that before moving for divorce she had a talk with Shri Wasnik on mobile phone of her husband and as Shri Wasnik promised that they would reside jointly, she had informed accordingly to her husband who was standing by her side. She further stated that she had tried to contact Surendra Wasnik on mobile in last 2/3 months, but contact could not be established. Document no.5, is statement of her husband [present respondent], which shows that he has corroborated the above position. He has further stated that his wife is deeply in love 7

with Shri Wasnik and they also tried to commit suicide by pouring kerosene and because of this ultimately proceedings for divorce were required to be initiated. Annexure-R2 with this reply is copy of application dated 4.4.2008 filed in the court of Civil Judge, Senior Division, Pandharkawada where both the parties to this appeal pointed out that as the applicant no.2 wife therein wanted to marry Surendra Wasnik, waiting period of 6 months should be relaxed. Annexure- R3 is the affidavit dated 6.10.2008 filed by the present appellant before the said Court in which she has mentioned that they have not been residing together as such from February 2007 and as there was no possibility of reconciliation on 4.4.2008, proceedings for divorce by mutual consent came to be filed. She has further stated that she is not going to claim any maintenance from her husband and also waived her right to custody of children. She has further stated that she was not carrying from her husband and as re-conciliation was not possible, though relatives tried to mediate and resolve, she was voluntarily severing the relationship. She has further stated that she is firm on her decision taken 6 months earlier.

6. In view of this document Advocate Shri De, contends that even after filing of the proceedings for grant of divorce on 4.4.2008 the 8

desire and decision of present appellant to separate from the respondent has come on record and he points out that all these statements are recorded also 4 months thereafter. He states that therefore plea of any mis representation or coercion or pressure is clearly by way of after thought and false affidavit has been filed before this Court. According to him it is nothing but perjury and as it interferes with the administration of justice it also constitutes contempt of Court. He has invited attention to statement of Surendra Wasnik recorded on 19.8.2008 by the S.D.P.O in which Surendra Wasnik has stated that he was not knowing the present appellant and he had even never talked with her. He has further stated that because there was some quarrel or misunderstanding between the said lady and her husband, she filed proceedings in the court of law and as she needed some shelter, she was trying to get into his house. He further stated that he is already married and his wife was working in health department as staff nurse and his son aged about 7 years is taking education in school at Yavatmal. He further mentions that because of service of his wife, his wife and children were residing at Yavatmal only. The S.D.P.O has in brief narrated all these statements and in his report, stated that police constable Surendra Wasnik had conducted himself in a manner not becoming of his status and therefore he deserves tobe punished. It is 9

the contention of Advocate Shri De, that because of change in his statement by Shri Wasnik, as it became clear to appellant that he is not going to marry or reside with her, she might have changed her stand. According to him in present circumstances, there is substantial compliance with provisions of Section 23[1][bb] and entire case law cited above is not relevant. He points out that from orders passed on 9.4.2008 it is apparent that the Presiding Officer has heard both of them and then after perusal of the contents of petition adjourned it to 6.10.2008. He therefeore, states that efforts to conciliate were also made on that date and hence no substantial question of law arise in this Second Appeal and the same deserves to be dismissed.

7. The contention of Advocate Shri De, in Civil Application No.130/2009, is to initiate action against the appellant / wife and to punish her for perjury. The said application is also to be treated as submissions of respondent / husband. The documents prepared by Deputy Divisional Police Officer and report submitted by him to the Superintendent of Police, Yavatmal are relied upon to show that, there was no pressure of any type upon the appellant / wife and her contention that her signature on petition for grant of divorce by mutual consent or that on affidavits were obtained by force, are false. It is also 10

alleged that by making false allegations before this Court, she obtained interim order on 30.01.2009. I find it premature to rely on the said documents at this stage and to return any finding on perjury on this basis. The interim order was passed by this Court on 30.01.2009 after hearing both the sides. The report prepared by police or statements recorded by police are still not put to the appellant, as required by law and hence at this stage it cannot be used against her. Perusal of the statements recorded by police and report prepared on its basis, reveal that the appellant / wife wanted to have relations with police Constable Shri Wasnik and wanted to cohabit with him. The statement also discloses that she had made telephone calls accordingly to the said constable by using mobile instrument of her husband and in presence of her husband. The police constable Shri Wasnik assured to cohabit with her and then only she filed the application for divorce along with her husband. But unless and until all these facts are proved on record, no reliance can be placed upon the same at this stage. The prayer to punish the appellant for perjury is therefore premature. Recourse to Order 41 Rule 25, only for this purpose in present matter is not warranted.

8. The provisions of Section 13[B] of Hindu Marriage Act 11

require the parties to live separately for a period of one year before petition for grant of divorce is presented. Perusal of application as moved by the parties jointly on 4.4.2008 reveals that it does not disclose this fact & does not contain any statement in this respect. On 4.4.2008 the petition was presented and the in charge Court directed it to be placed before the regular Presiding Officer. Both the parties were present before the regular court on 09.04.2008. The said court i.e. Trial Court has recorded that it perused the contents of the petition and heard both of them in person. Thereafter it adjourned the matter to 06.10.2008 for further orders. The order therefore clearly shows that the fact whether parties were residing together or were residing separately has not been specifically gone into by the said Court on 09.04.2008. The petition as filed prima facie shows that both of them were residing at same place. Advocate Shri De, has contended that the appellant was residing with her brother in same village. However, the position is to be verified by the Trial Court on very first date, and this exercise ought to have been undertaken on 09.04.2008 itself. Advocate Shri De, has pointed out that on 4.4.2008 the parties had moved application for waiving the requirement of waiting for 6 months and in it, it has been mentioned that wife had to remarry immediately with Shri Wasnik, Police Constable. This application is supported by separate 12

affidavits of both. Dates given by the Trial Court show that no such exemption was granted by it. However, orders if any, passed upon it have not been brought on record. On 6.10.2008 again wife has filed affidavit and in the said affidavit, she has mentioned that there was difference of opinion between the two since beginning and they were residing separately from February 2007. She has stated that she was reiterating her decision to obtain divorce by mutual consent. It is to be noted that the grievance of the appellant is that her signatures were obtained against her wish by her husband.

9. The judgment of Hon’ble Apex Court in the case of Sureshta Devi .vrs. Om Prakash (1991 Mh.L.J. 324), the Hon’ble Apex Court has held that, it is open to the parties to even unilaterally withdraw through consent at any time. In paragraph No. 9 the Hon’ble Apex Court has noted that parties have to make joint motion not earlier than 6 months after the date of presentation of petition and such much enables the Trial Court to find out the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Trial Court can make such enquiry as it thinks fit, including examining parties for that purpose and if it is satisfied that consent of the parties were not obtained by force, 13

fraud or undue influence and that they mutually agreed for dissolution of marriage, the Trial Court must pass a decree of divorce. In Balwinder Kaur .vrs. Hardeep Singh (supra) in paragraph No.15, the Hon’ble Apex Court has held that Section 23 of Hindu Marriage Act mandates that Court before granting decree of divorce has to satisfy itself that grounds for claiming relief exists and petitioner is not taking advantage of his own wrong or disability. Court has to make an effort to bring about re-conciliation between the parties. I find that the provisions of Section 23[1][bb] require the Court to satisfy itself that consent for divorce under section 13[B] has not been obtained by force, fraud or undue influence. This application of mind has to be on very first date when the court adjourns the matter for conciliation or for statutory period and must reveal itself in the court order then passed. The said order must also disclose that the court had satisfied itself that the matter fulfilled all requirements of law relevant at that stage. The earlier order & impugned judgment delivered by the Trial Court or by the Lower Appellate Court does not show that any such satisfaction was reached or recorded by the Trial Court. The final order passed on 16.02.2008 by the Civil Judge, Senior Division, reveals that even the date from which the parties were staying separately has not been mentioned any where in it, and the compliance with Section 23[1][bb] 14

is also not recorded. It only mentions in paragraph no.4 that dispute between the parties could not be settled by their relatives. In paragraph No.5 it has been mentioned that the petition was jointly presented on 04.04.2008 and statutory period of 6 months was given to parties to find out genesis of settlement between them and thee was no fruitful settlement. Thus there was no endeavor by the Court below to find out whether any conciliation was possible or not. The said judgment of trial Court was then questioned by wife by filing Appeal under Section 28 of the Hindu Marriage Act in the Court of District Judge at Pandharkawada. In appeal memo in paragraph no.13 it has been specifically averred that there was no separation and the averment in the application before the trial Court were false. It is also pleaded that false affidavit was prepared and wife was compelled by the husband to put her signature on it. These contentions are not considered by the Lower Appellate Court. It appears that the Advocate who was jointly representing the husband and wife before the Trial Court appeared on behalf of respondent to oppose the appeal of wife. The lower Appellate Court should not have permitted such appearance, particularly in view of the ground of compulsion or force by the wife. Appellate Court has found that in affidavit dated 6.10.2008 both the parties mentioned that they were residing separately from February 2007 and hence condition 15

precedent required under section 13[B] was satisfied. The contentions of appellant / wife that her signature was obtained by pressurizing her or then the averment in their affidavit were false, are ignored and the fact that statutory requirement of recording satisfaction in this respect cast upon the Trial Court by section 23 is not fulfilled, is also ignored. Thus the appeal came to be dismissed only by accepting the disputed affidavit as sufficient compliance.

10. Both the judgments are therefore delivered mechanically without any application of mind to the provisions of Law in the matter. The obligation cast upon court by legislature while dissolving marriage by consent is overlooked and its object has been defeated in this case. The institution of marriage is sacred and marriage tie is not to be easily broken. The requirement to verify the voluntary nature of consent, provision of a period of separation, duty to attempt to conciliate and waiting period of 6 months in court all show the seriousness with which the parties as also the courts of law have to evaluate the facts. Here, both the courts have acted mechanically thereby defeating the statutory protection extended to week spouse by law. The judgments are therefore unsustainable.

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11. Advocate Shri De, however has also raised contention that as divorce has been obtained by mutual consent, the decree is consent decree and hence appeal is not maintainable. In Smt. Krishna Khetarpal .vrs. Satish Lal (supra), the Hon’ble Division Bench of that High Court has considered the identical challenge in paragraph nos. 3 to 6 and concluded that appeal against such decree is maintainable. It has been held that Section 28[1] of Hindu Marriage Act provides a right of appeal and all original decrees made by the Trial Court under the said Act are appealable. The decree of divorce by mutual consent is one such decree & hence, also appealable. It has been observed that appeal under section 96 of C.P.C. is on different footing and Section 96[3] prescribing a bar of appeal against consent decree has no application. In paragraph no.5, it is observed that a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties, but the courts involvement in the decision making is inextricably a part of such decree. Possibility of an error, legal or factual, in such decision cannot be ruled out, and therefore, appeal under section 28 has been provided for. Another Division Bench of that High Court in the case of Charanjit Singh Mann .vrs. Neelam Maan (AIR 2006 P & H 201), has in paragraph no.25, cited this judgment with approval. AIR 2007 Jharkhand 34 –Smt. Hina Singh .vrs. Satya Kumar Singh, is again the 17

judgment of Division Bench of Hon’ble Jharkhand High Court wherein provisions of Order 23 Rule 3 of C.P.C. are considered and ultimately in paragraph no.3 it has been held that appeal against decree of divorce by mutual consent is maintainable. In view of these judgments which correctly & clearly clinch the issue, I find that appeal against such consent decree is maintainable.

12. Legislature has cast obligations upon Court entertaining the proceedings under section 13[B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability 18

of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal as filed by the appellant / wife before the Lower Appellate Court and before this Court is legally maintainable and question no.2 needs to be answered accordingly in affirmative in her favour. Question no.3 about indulgence in perjury by the appellant wife cannot be answered at this stage in absence of sufficient material, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of wife’s consent. Question no.1 is answered in favour of the wife by holding that there is no compliance with provisions of Section 23[1][bb] of the Hindu Marriage Act.

14. In the circumstances, the judgment and decree dated 06.10.2008 delivered by the Civil Judge, Senior Division, Pandharkawada (Kelapur) in H.M.P. No. 24/2008 is hereby quashed and set aside. Similarly, the judgment and decree dated 06.12.2008 delivered by the District Judge-I, Pandharkawada in Regular Civil Appeal No. 68/2008 is also quashed and set aside. H.M.P. No.24/2008 19

is restored back to the file of Civil Judge, Senior Division, Pandharkawada for its further trial in accordance with law. Second Appeal is accordingly allowed. However, in the circumstances of the case there shall be no order as to cost.

JUDGE

Rgd.

Categories: Judgement

Wife fined 10,000/- in Perjury case but Husband fighting for further action!!

Court No.27

Criminal Misc. Application No.30509 of 2009

Garima Srivastava Vs. State of U.P. and another

Hon. A.K. Roopanwal, J.

In this petition orders dated 15.7.09 and 7.10.09 passed by the Principal Judge, Family Court, Allahabad have been challenged.

It appears from the record that in a divorce case an application was moved by the husband that the lady had wrongly filed an affidavit that she is not serving in Delhi Public School, Arail, Naini, District Allahabad and therefore, action be taken against her. The lady was ready for inquiry in the matter and the court vide order dated 21.11.06 ordered that the inquiry be made in the matter and the defaulter be punished with a fine of Rs.10,000/-. Subsequent thereto the report from the college was obtained and it was reported by the college that the version of the lady was wrong. In such situation, the court vide order dated 15.7.09 imposed a fine of Rs.10,000/- upon the lady (applicant). By the order dated 7.10.09 the objections filed by the applicant against the maintainability of the proceedings under Section 340, Cr.P.C. instituted by the husband were rejected. Heard Mr. A.N. Tripathi, learned counsel for the applicant, learned AGA and perused the record.

It has been argued by Mr. Tripathi that under the provisions of Section 340, Cr.P.C. the court can make only preliminary inquiry and the final order which may be in the form of imposing fine can be passed by the court of competent jurisdiction and the court of competent jurisdiction would be that court in which the complaint would be filed by the court in which the perjury was committed. The court which made the preliminary inquiry had no jurisdiction to finally conclude the matter and impose the fine, therefore, the order dated 15.7.09 is bad and is liable to be quashed. Regarding the order dated 7.10.09 it was argued by Mr. Tripathi that once a wrong order was passed by the court on 15.7.09 it should have been reviewed and when it was not reviewed, hence, the order dated 7.10.09 is also bad and is liable to be quashed.

So far as the order dated 15.7.09 is concerned, in that regard I am of the view that the matter is liable to be taken further for hearing as there is some substance in the argument advanced by Mr. Tripathi. So far as the argument regarding the order dated 7.10.09 is concerned, in that regard it has been argued by Mr. Tripathi that the court cannot initiate dual proceedings. Once the matter was concluded vide order dated 15.7.09 there could be no propriety at all to continue the proceedings under Section 340, Cr.P.C. Issue notice to O.P. No.2 to file counter affidavit within 2 weeks’. Rejoinder affidavit, if any, may be filed within 1 week thereafter.

Till then, operation of the orders dated 15.7.09 and 7.10.09 passed by the Principal Judge Family Court, Allahabad in misc. case no.2 of 2008, Rajesh Kumar Srivastava Vs. Garima Srivastava, under Section 340, Cr.P.C. shall remain stayed. Dated:19.1.2010/T. Sinha.

Categories: Judgement

Well done Fighter-Argued party-in-person -In Chennai HC-In Perjury Matter

DATE: 26-08-2010

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN

Review Application Nos.108, 109 and 110 of 2010

S.Deepak ..Petitioner in all Review Applications

Versus

D.Anitha ..Respondent in all Review Applications

Prayer in Review Application No.108 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.422 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.109 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.423 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.110 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to review the order passed in the Tr.C.M.P.No.424 of 2009 dated 20.04.2010 on the file of this Court. For Applicants : Mr.S.Deepak (Party-in-person)

For Respondent : Mr.M.Palanivel

COMMON ORDER

The Review petition, in Review Petition No.108 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.422 of 2009. The said petition, in Tr.C.M.P.No.422 of 2009, had been filed seeking to withdraw M.C.No.35 of 2007, filed for maintenance, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai..

2. The Review petition, in Review Petition No.109 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.423 of 2009. The said petition, in Tr.C.M.P.No.423 of 2009 had been filed seeking to withdraw G.O.P.No.1 of 2008, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.

3. The Review petition, in Review Petition No.110 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.424 of 2009. The said Tr.C.M.P.No.424 of 2009 had been filed seeking to withdraw F.C.O.P.No.131 of 2007, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.

4. This Court, by a common order, dated 20.4.2010, had allowed the transfer civil miscellaneous petitions. Paragraph 13 of the said order reads as follows:

“13. It is not in dispute that both the petitioner and the respondent are, at present, living at Chennai. In view of the difficulties expressed by the petitioner, in her affidavits filed in support of her petitions, in attending the hearings before the family Court, at Salem, in the matters pending before it and as it has been stated that the petitioner has no independent income and that she is living with her aged father, at Chennai, along with her minor female child, this Court finds it appropriate to allow the above Transfer Civil Miscellaneous Petitions, by withdrawing M.C.No.35 of 2007, G.O.P.No.1 of 2008 and F.C.O.P.No.131 of 2007, pending on the file of the Family Court, Salem and transferring the same to the Principal Family Court, at Chennai. After transferring and renumbering, the Principal Family Court, Chennai, is directed to hear and dispose of the cases, on merits and in accordance with law, within six months thereafter. The Transfer Miscellaneous Petitions are allowed accordingly. No costs. Consequently, connected M.P.Nos.1,1 and 1 of 2009 are closed.

5. The main grievance of the review petitioner in the above review petitions is that the respondent, D.Anitha, had committed perjury, with mala fide intentions. He had also submitted that the respondent had suppressed material documents and thereby, had committed fraud on the Court. Further, she had come before this Court, with unclean hands. She had also mislead this Court by suppressing and misrepresenting the facts. As such, the order passed by this Court, on 20.4.2010, is null and void. The petitioner, who had appeared as party-in-person, before this Court, had also submitted that the claim of the respondent that she has no independent source of income is false and misleading.

6. Further, the allegation made by the respondent, in the transfer civil miscellaneous petitions, stating that the petitioner herein is impotent, is totally false. Similarly, the petitioner in the transfer civil miscellaneous petitions had also made various other baseless allegations against the present petitioner. As such, the respondent is liable for perjury. The petitioner had also submitted that the respondent would be legally liable for making such defamatory statements. He had also relied on the decision of the Supreme Court, made in Hamza Haji Vs. State of Kerala and another (AIR 2006 SC 3028) in support of the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law and that it can be challenged in any Court, even in collateral proceedings, in any Court.

7. In the counter affidavit filed by the respondent, the averments and allegations made by the petitioner had been denied. It had been stated that the petitioner had filed the present review petitions only with the mala fide intention of prolonging the proceedings before the Family Court at Chennai. The learned counsel appearing on behalf of the respondent had also submitted that the review petitions are devoid of merits and therefore, they are liable to be dismissed, with exemplary costs.

8. In view of the grounds raised by the petitioner in the review petitions and in view of the averments made in the counter affidavits filed on behalf of the respondent, and in view of the submissions made by the petitioner, as well as the learned counsel for the respondent, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for allowing the review petitions. No grounds have been made out to set aside the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos. 422, 423 and 424 of 2009.

9. The main reason for allowing the transfer civil miscellaneous petitions have been clearly stated in the order passed by this Court, on 20.4.2010. It is also noted that this Court had directed the Principal Family Court, Chennai, to hear and dispose of the cases, on merits and in accordance with law, within six months after the transferring and renumbering of the cases. It is also noted that the matters have been listed before the Family Court, Chennai, on 28.8.2010, for further hearing. In such circumstances, this Court does not find sufficient grounds to review the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos.422, 423 and 424 of 2009. Therefore, the review petitions stand dismissed. No costs. However, it is made clear that it would be open to the petitioner in the review petitions to meet all the allegations made by the respondent herein, before the Principal Family Court, Chennai, in the matters pending before the said Court, in the manner known to law. It is also made clear that the Principal Family Court, Chennai, is expected to comply with the directions issued by this Court, in its order, dated 20.4.2010, made in Tr.C.M.P.Nos.422, 423 and 424 of 2009. csh

To

1) The Family Court, Salem.

2) The Family Court at Chennai.

3) The Principal Judge, Family Court,

Chennai

Categories: Judgement

Must read Judgement about CrPC 340/ Court record forgery-Justice Shiv Narain Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 13, 2010

Date of Order: August 30th 2010

+ Crl.MC No. 471/2009

% 30.08.2010 J.L. Goel & Ors. …Petitioners Versus

Rajesh Kumar Jain & Anr. …Respondents Counsels:

Mr. M.A. Khan and Mr. Mir Akhtar Hussain for petitioner.

Mr. O.P. Saxena, Additional Public Prosecutor for respondent/State. JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

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

1. This petition under Section 482 Cr.P.C has been preferred by the petitioners for quashing a criminal complaint no.115/2007 under Section 109/120B/466/468 IPC and for setting aside the summoning order dated 30th November 2007passed by learned MM, Karkardooma Courts, Delhi.

2. Brief facts relevant for the purpose of deciding this petition are that petitioner no.6 Mrs. Anuradha Jain was married to respondent no.1 who is the complainant in complaint number 115 of 2007. A complaint lodged by her with CAW Cell against respondent no.1 and other family members of respondent no.1 culminated into an FIR No.244 of 1995 under Section 498A/406 read with Section 34 IPC and trial is going on in that case. The Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 1 Of 8 respondent no.1 filed the impugned complaint against the petitioners alleging that during trial of FIR No.244 of 1995, the wife, in collusion with other petitioners and in collusion with the record keeper removed the original complaint and got it substituted with an improved complaint, later she again got removed the improved complaint and substituted it with the original complaint. During this interval, the complainant had obtained a certified copy of the improved complaint. An application was made by respondent no.1 to the trial court under Section 340 read with Section 195 Cr.P.C for filing a complaint against the petitioners. The trial court, however, refused to lodge a complaint under Section 340 Cr.P.C, by a speaking order. The complainant (respondent no.1 herein) then filed a complaint under Section 156(3) Cr.P.C before the Metropolitan Magistrate and the learned MM recorded statement of respondent no.1 as CW-1 and after recording the statement of respondent no.1, summoned the petitioners under Section 466,468, 109, 120B IPC.

3. The record shows that respondent no.1 (husband) during trial before the trial court of FIR No.244 of 1995; tampered with the record of court and removed certain original documents and thrown them into the dustbin. An FIR in this respect was registered at the instance of the trial Court against respondent no.1 (husband) under Sections 380,204,411 and the trial of that case is going on against the respondent no.1.

4. It is submitted by counsel for petitioner that learned MM before whom respondent no.1 filed the complaint alleging replacement/ removal of original complaint by an improved one and then again putting back the original complaint in the judicial record could not have taken the cognizance of the offence in view of bar under Section 195 (1)(b)(ii) of Cr.P.C since the offence was committed during trial of case FIR No.244 of 1995 within the cognizance of the Court concerned hence it was the trial court who could alone have filed a complaint under Section 340 Cr.P.C. The other submission made by Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 2 Of 8 the counsel for the petitioners are that the complaint filed by respondent no.1 does not disclose any cause of action against the petitioners other than respondent no.1 i.e. Mrs. Anuradha Jain.

5. I find force in both the contentions raised by the counsel for the petitioners. A perusal of statement of CW-1 (respondent no.1 herein) would show that he had alleged that Mrs. Anuradha Jain in collusion with court staff prepared a forged and fabricated document during the court proceedings and manipulated replacement of this document into the court file by removing the original complaint and thereafter getting this forged complaint again replaced with the original complaint. He stated that he obtained certified copy of the replaced complaint. He further submits that Mrs. Anuradha Jain not only got prepared an improved complaint but also obtained stamp of CAW Cell on it. It is his case that the trial court passed an order dated 24th March, 2009 in respect of missing judicial record.

6. The allegations made by respondent against the petitioners (except petitioner no.6) are that they advised Mrs. Anuradha Jain to commit this forgery with the aid of court staff. On the basis of this statement, learned MM summoned all the petitioners observing that the Supreme Court in (2003) 4 SCC 139 laid down that there was no necessity of giving reasons at the time of summoning.

7. I consider that learned MM grossly exceeded his powers and jurisdiction. It has been observed by this Court time and again that initiation of criminal proceedings should not be done in a casual manner by any court and the courts must not act as a tool in the hands of unscrupulous elements. There is no doubt that reasons are not required to be given by the Courts of MM at the time of issuing summoning order, however, the learned MM was supposed to ensure that there was sufficient material disclosed by the Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 3 Of 8 complainant in the complaint and during evidence, warranting summoning of the accused. A complainant may name 20 persons as accused. A Court of MM cannot blindly summon all the 20 persons without going into the fact whether those 20 persons had been ascribed a role in commission of the offence or not. The learned MM in this case seems to have summoned the petitioners only because their names were mentioned by the complainant in the array of parties, despite the fact that the complainant had not spelt out what was the role played by them in forging the documents or in replacement of documents. I, therefore, find that the order of learned MM summoning the petitioners no.1 to 5 was a mechanical order and the learned MM acted as a tool in the hands of respondent no.1. The Supreme Court judgment relied upon by learned Magistrate did not give him jurisdiction or authority to summon everybody named in the complaint whether he had a role in the crime or not. The relevant part of judgment Dy. Chief Controller of Imports & Exports v Roshanlal Agarwal and ors (2003) 4 SCC 139, relied upon by the learned MM, reads as under: “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding, and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v M/s Mohan Meakins Ltd. and Ors. 2000 Crl.L. J. 1799 and after noticing the law laid down in Kanti Bhadra Shah v State of West Bengal 2000 Crl.L. J 1746, it was held as follows: “The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement

imposed on a Magistrate for passing detailed order while

Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 4 Of 8 issuing summons. The process issued to accused cannot

be quashed merely on the ground that the Magistrate had

not passed a speaking order.”

8. It is obvious from this judgment that the learned Magistrate had to satisfy himself that there were sufficient grounds for proceeding against the accused. Allegations were there against the petitioner no.6 indulging in forgery as she was a complainant but there was no material placed before the learned Magistrate as to how the petitioners no.1 to 5 were involved in forgery. The summoning order qua them was thus absolutely bad in law and amounted to gross misuse of judicial powers by learned Magistrate.

9. It is an undisputed fact that the allegations against the petitioner no.6 Mrs. Anuradha Jain are in respect of committing forgery in the court record. Section 195 (1) (b) (ii) Cr.P.C reads as under:

“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No court shall take cognizance-

(a)xxxxx

(i) xxxxxxxxxx

(ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or ”

10. A bar on taking cognizance of offences regarding administration of justice and offences relating to proceedings in any court or offences described in Section 463 or 471, 475 or 476 (when such offences are alleged to have been committed in respect of Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 5 Of 8 documents produced or given for evidence in a proceeding by a Court) has been imposed by Section 195 Cr.P.C and cognizance can be taken only on a complaint made by the concerned court.

11. The alleged offence in this case was directly related to the court record. The allegations made by the petitioners are that efforts were made to tamper the court record and the original complaint (FIR) was replaced by an improved FIR and later on improved FIR was again re-substituted by original complaint. Under these circumstances, I consider that the learned Magistrate could not have been taken cognizance of the offence unless a complaint under Section 340 Cr.P.C had been made by the court in writing on this behalf.

12. Counsel for the respondent drew my attention to Sachitanand v State of Bihar (1998) 1 RCR (Crl.) 823 wherein the Supreme Court observed that the bar contained in Section 195(1)(b) (ii) was not applicable to a case where forgery of document was committed before the document was produced in the court. He also relied upon Jitendra Chandrakant Mehta v M/s Shamrock Impex. Pvt. Ltd. and other C.W. P. No.2198 of 2005 decided on 3rd May, 2006, wherein Bombay High Court observed that bar of Section 195 was not applicable to a case when documents already forged was produced by accused in support of his case.

13. It is not a case where the petitioner no.6 had produced the forged documents in evidence or had filed before the Court some forged documents. In fact, it is a case where allegations made by the respondent no.1 against the petitioner no.6 are that the petitioner no.6 in connivance with the court staff had replaced/ substituted a complaint /FIR with an improved one and again substituted the improved complaint/FIR with the original one and in the meantime he got certified copy of it. In fact, respondent no.1 Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 6 Of 8 himself also had been fiddling with the court record. It would be appropriate to reproduce an order dated 26th November 2009 passed by leaned ACMM which reads as under: “(8) Perusal of record shows that accused is facing trial in a case FIR bearing number 244 of 1995, P.S. Preet Vihar, under Sections 498A/406 IPC. On 28.01.01 Ahlmad Mr. Vijay Kumar Marwa made a written complaint to his presiding officer Ms. Shailener Kaur the then Ld. MM (Mahila Court) Karkardooma Court, Delhi wherein he reported that on the said day accused Rajesh Kumar Jain i.e. the present applicant came for inspection of the case file and while inspecting the judicial file had torn a few pages of the judicial file and thereafter thrown the papers outside the court room. The Ahlmad with the help of Naib Court Vinod was able to retrieve a few papers but the remaining papers could not be retrieved. The matter was reported to the Ld. District and Sessions Judge, Delhi who ordered fact finding inquiry on this issue and Shri Dilbagh Singh, the then ACMM was directed to conduct the inquiry. A detailed inquiry was conducted. The inquiry report was submitted to the Ld. District & Sessions Judge, Delhi. Ms. Shailender Kaur, the then Ld. MM was directed to order for registration of FIR against accused/ applicant Shri R.K. Jain. Accordingly a complaint was made to the Station House Officer, P.S. Anand Vihar and a case FIR bearing number 382 of 2001 under Sections 379 IPC Police Station Anand Vihar was

registered against the accused. The investigation was conducted as per law and the accused was found involved in the commission of offence in the said case, accordingly charge sheet was filed against him and the same is pending trial.”

14. The Court where the trial is going on has already lodged an FIR about missing/ replacement of documents. If there was any effort to fiddle with the court record, it was within the jurisdiction of that court to order an inquiry and proceed against the person responsible for it. The court of another MM who has not been sent a complaint by the trial court cannot be in a position to hold an inquiry into the offence committed in Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 7 Of 8 administration of justice without proper complaint from the court where this has taken place. I, therefore, consider that the learned MM could not have taken cognizance of the complaint filed by respondent no.1.

15. In the result, the petition is allowed and the criminal complaint no.115/2007 under Section 109/120B/466/468 IPC; the summoning order dated 30th November 2007 summoning the petitioners for offences under Sections 109/466/468/120B IPC; the order dated 19th November 2008 issuing NBWs against the petitioner no.3; the order dated 3rd January 2009 issuing process under Section 82 Cr.PC against the petitioner no.3; and proceedings consequent to the criminal complaint no.115 of 2007 pending in the court of Shri Lalit Kumar, MM, Karkardooma Courts, Delhi are hereby quashed.

16. The petition stands allowed.

August 30, 2010 SHIV NARAYAN DHINGRA, J rd

Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 8 Of 8

Categories: Judgement

HC-ExParte Divorce order not binding on Criminal Court

DATED: 02.08.2010

CORAM:

THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM

Criminal Revision Case No.771 of 2010

and M.P.Nos.1 & 2 of 2010

K.Senthilnathan .. Petitioner

Vs.

Mrs.Jaichitra .. Respondent

Prayer : Criminal Revision Case filed under Section 397 r/w 401 of the Code of Criminal Procedure against the order passed by the learned Chief Judicial Magistrate, Cuddalore dated 25.06.2010 in CMP.No.593 of 2009 in M.C.No.11 of 2007. For Petitioner : Mr.T.N.Buvaneswaran

O R D E R

The petitioner herein is the respondent in M.C.No.11 of 2007 on the file of the learned Chief Judicial Magistrate, Cuddalore. The respondent herein filed an application under Section 125 Cr.P.C. against the petitioner herein claiming maintenance. The respondent/wife also filed proof affidavit for letting in evidence. At this stage, the petitioner herein filed an application under Section 258 Cr.P.C. to stop the proceedings on the ground that the Family Court, Chennai granted divorce declaring that the petitioner’s wife is a person of unsound mind and as such she is disqualified from adducing evidence before the Court. The said Judgment and decree passed by the Family Court is still in force. The learned Magistrate dismissed the said application filed by the petitioner. Aggrieved by the said order of the learned Chief Judicial Magistrate, the petitioner has preferred this revision.

2. The learned counsel for the petitioner submitted that the learned Magistrate had dismissed the petition of the petitioner based on document Ex.R1 produced by the respondent herein and the said document is nothing but a mark sheet given by Annamalai University and it is not a medical fitness certificate. The learned counsel for the petitioner further submitted that the learned Magistrate erred in holding that the respondent herein is a competent person to adduce evidence. The learned counsel further submitted that prejudice would be caused to the petitioner by compelling him to cross examine the respondent, who is of unsound mind.

3. This Court perused the records.

4. If an application is filed under Section 125 Cr.P.C., the next course open to the Magistrate is only to record all the evidence as per Section 126 Cr.P.c. There is no provision available to the petitioner herein to file an interim application to stop the proceedings. The Judgment and decree passed by the Family Court is only an exparte order and as such it is not binding on the Criminal Court to decide the issue while claiming maintenance. The learned Magistrate also on perusing Ex.R.1, mark sheet given by the Annamalai University held that the respondent has completed M.Phil Course and she did the said course during the year 2006-2008 and had obtained more than 50% of the marks. It is not possible at this stage for this Court to hold that the respondent is a person who is of unsound mind. It is open to the petitioner herein during the trial to raise such plea. This Court does not find any infirmity in the order passed by the learned Magistrate dismissing the application filed by the petitioner herein under Section 258 Cr.P.C. The Criminal revision Case is dismissed. Consequently, connected miscellaneous petitions are also dismissed. 02.08.2010

rg

Index:Yes

Internet:Yes

To

Chief Judicial Magistrate, Cuddalore

T.SUDANTHIRAM,J.

rg

Crl. R.C. No.771 of 2010

02.08.2010

Categories: Judgement

Chennai HC-Modified Divorce to Judicial Sepration-Mention of women NGO helpline

DATED: 23.06.2010

CORAM:

THE HON’BLE MRS.JUSTICE R.BANUMATHI

AND

THE HON’BLE MR.JUSTICE B.RAJENDRAN

C.M.A.NOS.3839 AND 3840 OF 2005

AND C.M.P.NOS.1043 AND 1044 OF 2008

Tmt.M.Sundari …. Appellant

Vs.

Dr.A.Chandrasekaran …. Respondent

Prayer: Civil Miscellaneous Appeals in C.M.A.Nos.3839 and 3840 of 2005 are filed under Section 19 of Family Courts Act against the Judgment and decree dated 18.10.2005 in I.D.O.P.Nos.235 of 2003 and 205 of 2004 respectively on the file of Family Court, Coimbatore.

For Appellant : Ms.R.Gowri

in both Appeals

For Respondent : Mr.P.K.Rajagopal

in both Appeals

COMMON JUDGMENT

R.BANUMATHI,J.

C.M.A.No.3839 of 2005 arises out of Judgment dated 18.10.2005 in I.D.O.P.No.235 of 2003, whereby, by a common judgment, the Family Court, Coimbatore has passed decree of divorce dissolving the marriage of Appellant/wife and Respondent/husband. C.M.A.No.3840 of 2005 arises out of the common judgment in I.D.O.P.No.205 of 2004 whereby Family Court dismissed the Petition for restitution of conjugal rights filed by the Appellant/wife.

2. The Respondent is an Anaesthetist and is a medical practitioner. He joined in Senthil Nursing Home, Coimbatore as Junior Doctor, where the Appellant was working as Nurse and both of them had fallen in love. The Appellant was a Roman Catholic Christian and Respondent was a Hindu, who got converted to Christianity. Their marriage was solemnised on 10.6.1983 at Saint Michael’s Church, Big Bazaar Street, Coimbatore and both of them were living together. Out of lawful wedlock, a male child was born to them on 1.12.1984. After marriage, the Respondent pursued his higher studies at Stanley Medical College during the years 1984-1989. During that period, the Appellant and her son were taken care by her parents. After completing his Post Graduation, the Respondent joined the Government Hospital, Pandhalur. Later, the Respondent joined E.S.I.Hospital, Coimbatore, Papanaickenpalayam and then he was transferred to Coimbatore Government Medical College and Hospital. The spouses were living together in Coimbatore and they also constructed a house at Sowripalayam, Coimbatore in 1998.

3. The case of Respondent is that his married life was happy only for a short span of time and that the Appellant is a person of suspicious character and that she would not tolerate his coming late night from the Hospital. According to the Respondent, being an Anaesthetist, he has to attend emergency cases in the Hospital in late hours and the Appellant would question him about the same and use abusive language alleging that he is having illicit intimacy with some other woman and that he was humiliated and insulted by the Appellant in public places. The Respondent further averred that the Appellant would visit the work place and tease him spoiling his reputation in public, which has caused him mental agony. In the Petition for divorce, the Respondent further alleged that the Appellant had also lodged a false complaint before All Women Police Station alleging that he is leading an adulterous life and that no action was initiated by the police and enraged by the same the Appellant sought assistance from an Organisation called Helpline, which threatened the life of Respondent which caused reasonable apprehension in the mind of the Respondent that his life is under threat and that it has become impossible for him to cohabit with the Appellant and on those averments the Respondent has sought for dissolution of marriage.

4. Resisting the petition, Appellant has filed counter alleging that when the Respondent was pursuing his higher studies, the Appellant sold all her jewels to enable the Respondent to pursue his higher studies and she was running her family and also supporting the Respondent to complete his education with the help of her parents’ monetary assistance. According to the Appellant, after the Respondent became a leading Anaesthetist Doctor in the city, his behaviour completely changed and he developed illicit intimacy with a lady Doctor (Bhuvana), which was learnt by the Appellant from reliable sources. When being questioned about the same, the Respondent not only admitted the intimacy, but also insisted the Appellant to accept the same and demanding acceptance ill-treated the Appellant. Appellant averred that being a qualified nurse, she knows fully about the professional value of a Doctor and that she never questioned the Respondent and never used abusive languages as alleged by the Respondent. Appellant further averred that she was locked inside the house several times and even telephone was disconnected and to get the re-connection of phone for the house, she approached the Woman Police Station. Further case of Appellant is that he left the house in 2003 and after mediation the Respondent agreed to come over, but without even giving a notice, the Respondent straight away filed the Petition for divorce making all false allegations.

5. Stating that the Respondent left the matrimonial house without any reasonable cause and that she and her son, who has been studying in B.,E., are longing for the love and affection of the Respondent, the Appellant has also filed I.D.O.P.No.205 of 2004 under Section 32 of Divorce Act seeking for restitution of conjugal rights.

6. In the Family Court, Coimbatore, Respondent examined himself as P.W.1 and one Jeeva was examined as P.W.2. Ex.P.1 was marked on the side of Respondent. Appellant examined herself as R.W.1 and Ex.R.1 was marked. Upon consideration of oral and documentary evidence, trial Court held that when Appellant has alleged illicit intimacy of Respondent, burden of proof lies upon her to prove alleged illicit intimacy of the Respondent and absolutely there is no evidence by the Appellant to substantiate the allegations. Referring to the evidence of P.W.1/Respondent and also the evidence of R.W.1/Appellant, trial Court held that the Appellant has lodged a police complaint and also sought the intervention of Helpline and that the Appellant scolded the Respondent in public places and such making of allegations of illicit intimacy has caused mental cruelty to the Respondent and on those findings the Family Court granted decree of divorce dissolving the marriage of the Appellant and Respondent. Insofar as Petition for restitution of conjugal rights, Family Court held that the Respondent has reasonable cause to live away from the house and dismissed the Petition filed by the Appellant for restitution of conjugal rights.

7. Challenging the findings of Family Court, learned counsel for Appellant/wife contended that when the respondent/husband has alleged mental cruelty burden of proof rest upon him to prove mental cruelty. It was further contended that when the Respondent/husband has developed illicit intimacy with another lady doctor and left the matrimonial house, he cannot be allowed to take advantage of his own wrong. The learned counsel would further submit that merely because the grounds for restitution of conjugal rights is not proved it cannot be said that the grounds for divorce were established. The learned counsel would further contend that the evidence adduced by the Respondent would not be sufficient to establish cruelty as contemplated under Section 10(1)(x) of the Divorce Act that the Appellant has treated the Respondent with such cruelty as to cause a reasonable apprehension in the mind of the Respondent that it would be harmful or injurious for him to live with the Appellant.

8. Countering the arguments, learned counsel for the Respondent submitted that pleadings and evidence would amply substantiate the mental cruelty meted out to the Respondent and that the cruelty had gone to such an extent that the Respondent has to leave the matrimonial house to safeguard himself. It was further argued that making false accusations and abusing in public is of such magnitude, being a responsible doctor, it is impossible for the husband to live with the Appellant/wife and the family Court has rightly passed a decree of divorce.

9. We have carefully considered the contentions and analysed the pleadings and evidence and the judgment of the Family Court. Upon consideration of the submissions and materials on record, the following points arise for our consideration:

“1. Whether the Respondent/Husband has withdrawn from the matrimonial house and deserted the Appellant/wife without reasonable cause?

2. Whether the Appellant/wife is entitled to the relief of restitution of conjugal rights?

3. Whether the Respondent/husband has established that he was subjected to mental cruelty of such magnitude that it became impossible for the Respondent/husband to live with the Appellant?

4. To what relief?”

10. Point Nos.1 to 4:- The Respondent is a doctor by profession and while he was working as a Junior Doctor in Senthil Nursing Home, Coimbatore, where the Appellant was working as a nurse, both of them had fallen in love. The Respondent, who was a Hindu, got himself converted to Christianity and their marriage was solemnised in Saint Michael’s Church, Coimbatore on 10.6.1983. Out of lawful wedlock, a male child was born on 1.12.1984. The son has now completed his B.E.Mechanical Engineering and said to be pursuing his higher studies in abroad. There is no dispute that only after marriage Respondent studied his Post Graduation in Stanley Medical College, Chennai during 1984-1989. After completion of his M.D. in 1989, the Respondent joined Government Hospital, Pandhalur and thereafter joined E.S.I.Hospital in Lakshmi Mills, Coimbatore, from where he was transferred to Government Medical College and Hospital, Coimbatore. After the Respondent completed M.D., and joined Government services, the Appellant has left the services. Both the spouses were living together in various places in Coimbatore till they constructed their own house in Sowripalayam, Coimbatore in 1998.

11. The Appellant has alleged that Respondent developed illicit intimacy with another lady Doctor  Bhuvana and when she questioned about the same, Respondent beat her and ill-treated her. The Appellant has further stated that the illicit intimacy developed day by day and that they used to live as husband and wife at various places and the said Bhuvana has also sent rowdy elements to the house and when Appellant made complaint over phone, the phone connection was cut-off. The Appellant has further stated that the Respondent has also taken away the car with him and after mediation he had agreed to come and live, but thereafter again started quarrelling without any reasons and ill-treated the Appellant insisting to agree for a divorce.

12. Per contra, the Respondent/husband has alleged that the Appellant is a person of suspicious character and that she would not tolerate his coming late from the Hospital and as Anaesthetist he has to attend emergency cases in the Hospital and that the Appellant would question him about the same and use abusive language and that Appellant used to visit the work place and publicly tease the Respondent spoiling his reputation in the public. In his evidence, Respondent has also stated that the Appellant has lodged police complaint containing false allegations alleging that he is leading an adulterous life and when no action was taken by the police, Appellant sought assistance from an Organisation called Helpline, who threatened the Respondent and that the conduct of the Appellant had caused reasonable apprehension in his mind and that it is impossible for him to live with the Appellant and that the marriage has irretrievably broken and it is no longer possible for him to live with the Appellant. In his evidence, the Respondent has also denied any relationship with another lady doctor  Bhuvana.

13. Even though the Appellant has alleged that the Respondent was having illicit intimacy with another medical practitioner  Bhuvana, both in the counter affidavit in I.D.O.P.No.235 of 2003 and her Petition in I.D.O.P.No.205 of 2004, the Appellant has not mentioned the name of the Doctor, but she has only alleged that the Respondent is having illicit intimacy with another lady doctor and when she questioned about the same, Respondent ill-treated her. In her chief examination, the Appellant has alleged that the said Bhuvana has been working as a medical practitioner in E.S.I.Hospital and the said Bhuvana developed intimacy with the Respondent and that the Respondent and the said Bhuvana are living as husband and wife at various places and that the said Bhuvana used to send rowdy elements to the house. It is pertinent to note that inspite of such serious allegations made, neither in the counter filed in I.D.O.P.No.235 of 2003 nor in the petition for restitution of conjugal rights, which was filed in April 2004, such averments were made. Though in her chief examination, the Appellant has alleged about the illicit intimacy, when being questioned in the cross examination, the Appellant has stated

VERNACULAR (TAMIL) PORTION DELETED

The averments in the counter in the petition in I.D.O.P.No.205 of 2004 are vague. Except to make allegation of illicit intimacy with another lady doctor, there are no other definite averments in her Petition as well as in the counter in the Divorce Petition. In such circumstances, the allegation of illicit intimacy levelled against the Respondent cannot be accepted as such.

14. Even though the Appellant has made serious allegations against the Respondent along with the said Bhuvana, apart from the evidence of Appellant/R.W.1, there is no other evidence to substantiate the same. In her evidence, the Appellant has stated that her brother and sisters used to frequently visit the matrimonial house. But the Appellant has not chosen to examine even her brother and sisters to substantiate the allegations of Respondent’s intimacy with the said Bhuvana. Neither any independent witness nor appellant’s family members were examined to substantiate the allegations. We are of the view that the Family Court rightly held that the allegations of illicit intimacy levelled against the Respondent are not substantiated.

15. We may recapitulate the background of Appellant and Respondent. As pointed out earlier, the Appellant was a Roman catholic and native of Coimbatore, whereas Respondent was a Hindu and he belonged to Jalagandapuram, Salem District. In his evidence, Respondent/P.W.1 has stated that his elder brother – Madesh, who has been working as a clerk in Panchayat Union Office, educated him and brought him up. The Respondent has further alleged that the Appellant was not interested in his family members and that his family members have been languishing without proper financial support from the respondent. During the cross examination of Appellant/R.W.1, it was suggested to her that when Respondent’s brother and his wife visited their house in Coimbatore, the Appellant did not properly treat them and ill-treated them. The Appellant has denied the said suggestion. We may usefully refer to the relevant portion of the evidence, which reads as under:

VERNACULAR (TAMIL) PORTION DELETED

16.On the other hand, the brothers and sisters of the Appellant frequently visited the house . That respondent’s family members were not well treated by the appellant, must have caused resentment in the mind of the Respondent, which resulted in strained relationship between the spouses. Insofar as the financial and money matters, it is brought on evidence that the Respondent/husband was taking care of the needs of family and also spent money for educating their son. Admittedly, the spouses have built their own house in Sowripalayam, Coimbatore in 1998. It is also brought on evidence that house warming ceremony was firstly held as per Hindu custom and later performed as per Christian rituals. The fact that the Respondent got himself converted to Christianity and that he was also attending Churches and that the house warming ceremony was also performed as per Christian rituals would show that the Respondent was giving due respect to the sentiments of the Appellant.

17. Admittedly, the Respondent had spent money for the education of their son. Even in her evidence, Appellant/R.W.1 has admitted that for admitting their son in Medical College in Bangalore, the Respondent has paid capitation fee of Rs.15 lakhs, since the said Medical College in Bangalore was not an approved medical college, their son could not continue the medical course and the Respondent had got back the money paid by him as capitation fee. Admittedly the Respondent has paid capitation fee and other fees for their son to complete his engineering course. Ex.B.1 is the xerox copy of the tuition fee paid to Kumaraguru College of Technology, Coimbatore. Even the Appellant/R.W.1 admitted that only the Respondent has paid the fees for their son to the Engineering College and also paid capitation fee, education expenses and the tuition fee. The evidence would clearly show that the Respondent was taking care of the family as well as the education expenses of their son. Admittedly, after the Respondent left the house, the Appellant continues to be in occupation of the same house and the Appellant is also in possession of a car bearing Regn.No.37D 5936. The Respondent is continually paying the housing loan. From the evidence, the respondent appears to be a responsible person taking care of the family.

18. Now let us consider the allegations of the averments of illicit intimacy alleged by the Appellant. As we discussed earlier, the name of the doctor, with whom Respondent has adulterous conduct, has not been indicated either in the counter or in the petition in I.D.O.P.No.205 of 2004. Even though the Petition for restitution of conjugal rights was filed long after filing of the divorce petition, even in the said I.D.O.P.No.205 of 2004, the Appellant has not mentioned the name of the doctor. In her chief examination, the Appellant/R.W.1 has stated that the said Bhuvana used to send rowdy elements to the house and when he made a complaint over phone, the phone connection was cut off and the car was also taken away by the Respondent though he had a car for his own use and that she had lodged the complaint before All Women Police Station for getting re-connection of the telephone and that All Women Police Station directed her to go to Helpline and the Helpline persons advised the Respondent in a decent manner to restore the phone connection”. Appellant/R.W.1 has denied having preferred any police complaint against the Respondent. Appellant/R.W.1 was questioned about lodging a complaint before the police, regarding disconnection of telephone. Appellant/R.W.1 evaded answering the questions stating “she does not remember having lodged any complaint with the police and also approaching Helpline.” In the light of her categoric admission in the proof affidavit filed by her/chief examination, no weight could be attached to the evasive answer of the Appellant/R.W.1 in the cross examination. Lodging of police complaint against Respondent/husband and approaching Helpline would have certainly affected the Respondent/husband causing mental agony.

19. In his evidence, Respondent/P.W.1 has stated that the Appellant used to visit the work place and publicly tease him spoiling his reputation in public. To substantiate the same, the Respondent has examined one Jeeva(P.W.2), who has been doing tinkering work in Ambal Autos and also running an auto garage along with his partner Muthukrishnan in Saibaba Colony, Coimbatore. P.W.2 has stated that on 4.1.2003, for issuing the pamphlets for customer canvas, he went to Coimbatore Medical College Hospital and he saw gathering of people and when he went near the place, he saw the Appellant shouting at the Respondent alleging that the respondent is having illicit intimacy with another doctor and that he is sharing his bed with the said Doctor. P.W.2 has also stated that the Respondent tried to persuade the Appellant to go back to the house and that the problem could be sorted out after he returns home; But the Appellant did not heed to such persuasion.

20. The learned Judge of Family Court observed that P.W.2, who is running an auto garage, is not a probable and natural witness. The trial Court further observed that the name of P.W.2 was not mentioned in the affidavit filed by the Respondent. The learned Judge of Family Court, who had the opportunity of seeing and observing P.W.2, has discredited the evidence of P.W.2 and has chosen not to attach any weight to the evidence of P.W.2. We are also of the view that the name of P.W.2 was neither mentioned in the divorce petition filed by the Respondent nor in the proof affidavit filed by him. P.W.2, who is running an auto garage in Saibaba colony, cannot be a natural and probable witness to speak about the occurrence in the Coimbatore medical College hospital premises.

21. Even dehors the evidence of P.W.2, by his own evidence, Respondent/P.W.1 has categorically alleged that he has been publicly abused by the Appellant. His version is strengthened by the case of Appellant herself by her admission that she lodged a police complaint before All Women Police Station and also admitted in her chief examination about approaching of Help Line in seeking their intervention.

22. It was suggested to Appellant/R.W.1 that when there were differences between the spouses, she had made an attempt to commit suicide by taking sleeping pills. Though in cross examination, the Appellant denied the suggestion in the proof affidavit, in the chief examination, the Appellant has admitted that the Respondent has harassed her and driven her to the extent of committing suicide.

23. The concept of cruelty encompasses mental cruelty also. Mental cruelty means mental pain, agony or suffering caused by either spouse. Where the wife makes accusations of illicit intimacy of the Respondent/husband by publicly abusing, it certainly amounts to cruelty. From the evidence, it is established or an inference can legitimately and reasonably be drawn that the conduct of the Appellant has caused mental cruelty in the mind of the Respondent. The question of cruelty must be considered in the light of the matrimonial relationship and regard must be had to the physical and mental conditions of the parties, social status, impact of the personality and conduct of the spouses and their mind set up. All incidents and quarrels of the spouses must be weighed from that point of view. We are of the view that a case of cruelty is made out justifying the conduct of the Respondent to leave the matrimonial house and live separately.

24. The point falling for our consideration is, whether such conduct of the Appellant/wife seeking help from Helpline in trying to bring about the reconciliation is of such magnitude to cause such apprehension in the mind of the Respondent that it would be harmful or unsafe to live with the other party.

25. Helpline is a non-governmental organisation espousing the cause of women. Even according to the Appellant, Helpline only made persuasive efforts by advising the Respondent. Even though the Respondent has alleged that the Helpline people threatened him, there was no contemporaneous complaint lodged by him. In such circumstances, it cannot be said that the conduct of the wife has caused reasonable apprehension in the mind of the Respondent that it will be harmful or unsafe for the Respondent/husband to live with her.

26. The mere allegations of illicit intimacy coupled with other acts might have caused feeling of anguish, disappointment, frustration and public embarrassment. Such disappointment and incompatibility of temperament between the spouses cannot be held to be cruelty within the meaning of Section 10(1)(x) of the Divorce Act. We are of the considered view that the Family Court was not right in holding that the conduct of the appellant was such so as to cause reasonable apprehension in the mind of the respondent that it would be harmful or dangerous for him to live with the appellant.

27. Though the conduct of the wife is proved to have caused mental cruelty to the husband, it was not a persistent unkindness or persisting cruelty so as to cause reasonable apprehension in the mind of the Respondent that it will be harmful or unsafe for him to live with the Appellant. In our considered view, the ingredients of Section 10(x)(x) of Divorce Act has not been established, whereas the case of cruelty is made out to grant decree of judicial separation under Section 22 of Divorce Act. When the Respondent has prayed for a decree of divorce, the Court is competent to pass a decree for judicial separation on the grounds mentioned in Section 22 of the Divorce Act. (vide DORIS PADMAVATHY v. V.CHRISTODASS, (AIR 1970 Madras 188 FB)).

28. For the foregoing reasons, the decree of divorce passed by the Family Court, Coimbatore in I.D.O.P.No.235 of 2003 under Section 10(1)(x) of the Divorce Act has to be modified as that of Judicial Separation under Section 22 of the Divorce Act.

29. In the result, the decree of divorce passed in I.D.O.P.No.235 of 2003 on the file of Family Court, Coimbatore is modified as judicial separation under Section 22 of Divorce Act and C.M.A.No.3839 of 2005 is partly allowed. The order in I.D.O.P.No.205 of 2004 dismissing the petition for restitution of conjugal rights is confirmed and C.M.A.No.3840 of 2005 is dismissed. In the circumstances of the case and relationship of the parties, both parties are directed to bear their respective costs. Consequently, the connected miscellaneous petitions are closed.

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The Family Court

Coimbatore

Categories: Judgement