Author Archives: vinayak

About vinayak

Father of a lovely daughter, criminal in the eyes of a wife, son of an elderly mother, old timer who hasn't given up, Male, activist

Ramesh is missing since some days..

* My name is Durgadevi
* My family arranged a grand marriage for my my elder sister. That groom was Ramesh, a young man with lots of dreams and love for life !! Just one day before her marriage sister ran away with her lover !!!
* My family did NOT know how to answer the society and groom’s people … so they made me marry Ramesh who was supposed to marry to my elder sister …
* But I was ALREADY in love with another guy by name Prabhu … I tried to resist the marriage but they forced me to marry Ramesh.
* I finally consented , got married and started living with Ramesh
* Ramesh went to Singapore in search of greener pastures, but got injured there. He had to return to Tamil Nadu (home town) & found an ordinary employment here.
* Our sex life wasn’t great … we also quarreled a lot
* Six months ago as our quarrels weren’t ending, I left Ramesh (my legal husband) and went away to my grandma’s house at Bhutamangalam … My lover Prabhu was nearby and I got attracted to him again… We started living like husband and wife !!!
* Recently there was a festival at Bhuthamangalam and my legal husband Ramesh came searching for me. I introduced Ramesh my lover as a relative
* I had to admit my kid in school. Even there I gave my lover Ramesh’s name as the father’s name
* Me and my lover decided to unite. We could have easily eloped and married. However the legal hubby Ramesh was to get an insurance claim of Rs 17 lakhs for having been injured at Singapore. we decided to kill him to get the insurance !!

Police have questioned Prabhu who has casually accepted to have killed innocent Ramesh !!! Yes it was Durgadevi’s plan he says !!

………..and………. Legal hubby Ramesh is missing since some days …. police are searching for his body in the neadby canals and lakes !!!

full article from Junior Vikatan Tamil Magazine !!

”புருஷனைப் போட்டுத்தள்ளு!”
சீர்காழி சீக்ரெட்!

‘என் கணவர் ரமேஷை இரண்டு நாட்களாகக் காணவில்லை’ என்று கடந்த 17-ம் தேதி இரவு சீர்காழி காவல் நிலையத்தில் துர்காதேவி என்ற 30 வயது மதிக்கத்தக்க பெண் புகார் அளித்தார். விசாரணையில் முன்னுக்குப் பின் முரணாகப் பேசியதால், அவர் மீதே போலீஸாருக்கு சந்தேகம் ஏற்பட்டது. அவருடைய செல்போன் இன்கம்மிங், அவுட்கோயிங் விவரங்களை ஆராய்ந்தபோது, குறிப்பிட்ட ஒரு எண்ணுக்கு அடிக்கடி பேசியது தெரிந்தது. அந்த எண்ணுக்குச் சொந்தக்காரர், புத்தமங்கலத்தைச் சேர்ந்த பிரபு. போலீஸார் சந்தேகப்பட்டது சரிதான். கள்ளக்காதல் காரணமாக ரமேஷ் கொலை செய்யப்பட்டுவிட்டார்.

போலீஸில் துர்காதேவி கொடுத்திருக்கும் வாக்குமூலம் இப்படி போகிறது… ”என் அக்காவுக்குப் பார்த்த மாப்பிள்ளைதான் களத்தூர் கிராமத்தைச் சேர்ந்த ரமேஷ். கல்யாணத்துக்கு முதல் நாள் இரவு, அக்கா வேறு ஒருவருடன் போய்விட்டாள். கல்யாணம் நின¢றுவிடக்கூடாது என்பதற்காக, ரமேஷ§க்கு என்னைத் திருமணம் செய்துவைக்க முடிவெடுத்தனர் நான் அப்போது புத்தமங்கலத்தைச் சேர்ந்த பிரபுவைக் காதலித்து வந்தேன். என் விருப்பம் இல்லாமல், ரமேஷ§க்குத் திருமணம் செய்து வைத்துவிட்டனர். நானும் அவருடன் சேர்ந்து குடும்பம் நடத்தினேன்.

என் கணவர் சிங்கப்பூர் சென்று வேலை பார்த்தபோது, கீழே விழுந்து அடிபட்டுவிட்டார். இங்கே வந்து பழக்கடையில் வேலை பார்த்துக்கொண்டிருந்தார். அவர் அதிகம் என்னுடன் செக்ஸ் வைத்துக்கொள்ள மாட்டார். இதனால் எனக்கு அவர் மேல் வெறுப்பு வந்தது. எங்களுக்குள் அடிக்கடி சண்டை வரும்.

ஆறு மாதங்களுக்கு முன்பு கோபித்துக்கொண்டு புத்தமங்கலத்தில் உள்ள பாட்டி வீட்டில் தங்கி வேலை பார்த¢து வந்தேன். ஏற்கெனவே நான் காதலித்த பிரபுவும் அதே ஊர் என்பதால், எங்கள் காதல் மீண்டும் வளர்ந்தது. பிரபுதான் எனக்கு எல்லாமே என்று தோன்றியது. பிரபுவுக்குக் கல்யாணம¢ ஆகவில்லை. அதனால், அவனையே கல்யாணம் செய்துகொள்ளலாம் என்று நினைத்தேன். இருவரும் கணவன் மனைவி போலவே பழகி வந்தோம். புத்தமங்கலத்தில் கோயில் தீமிதி திருவிழா வந்தது. அப்போது என் கணவர் ரமேஷ் வந்தார். அப்போது பிரபுவை என் உறவுக்காரர் என்று ரமேஷ§க்கு அறிமுகம் செய்து வைத்தேன்.

என் குழந்தையை நீடூரில் உள்ள பள்ளியில் சேர்ப்பதற்காக பிரபுவை அழைத்துக்கொண்டு போனேன். அப்போது அப்பா என்று பிரபு பெயரைத்தான் கொடுத்தார். ‘உன் பிள்ளைக்கு நான் அப்பாவாக வேண்டும். உன்னுடன் சேர்ந்து வாழ வேண்டும் என்றால், அந்த ரமேஷ் உயிரோடு இருக்கக் கூடாது’ என்று பிரபு அடிக்கடி சொல்வார். நானும், ‘நீ என்னை கல்யாணம் செய்துகொள்வதாக இருந்தால் அவரை எது வேண்டுமானாலும் செய்துகொள்’ என்று சொன்னேன். எப்படியாவது ரமேஷைத் தீர்த்துக்கட்டிவிட வேண்டும் என்று பிளான் செய்தோம். ரமேஷின் போன் நம்பரை பிரபுவிடம் கொடுத்து பேசச் சொன்னேன். அதற்கு மேல் என்ன நடந்தது என¢று எனக்குத் தெரியாது. ரமேஷைக் காணவில்லை என்று அதன் பிறகுதான் போலீஸில் புகார் அளித்தேன்” என்று சொல்லியிருக்கிறார்.

பிரபுவை போலீஸார் பிடித்ததும், ‘நான்தான் கொலை செய்தேன்’ என்று எவ்வித பதற்றமும் இல்லாமல் ஒப்புக்கொண்டதாக போலீஸ் சொல்கிறது. ”இருவரும் ஓடிப்போய் திருமணம் செய்துகொள்ளலாம் என்றுதான் துர்காவிடம் சொன்னேன். ‘ரமேஷ் சிங்கப்பூரில் வேலை செய்யும்போது அடிபட்டதற்கான இன்ஷூரன்ஸ் தொகை 17 லட¢சம் வரப்போகிறது. நாம் ஓடிப்போய்விட்டால் அது கிடைக்காது. ரமேஷை கொலை செய்துவிட்டால், அந்தப் பணம் நமக்குக் கிடைக்கும். அதன் பிறகு கல்யாணம் செய்துகொள்ளலாம்’ என்று துர்கா சொன்னாள். அதனால்தான் ரமேஷைக் கொலைசெய்ய திட்டமிட்டோம்.

துர்காவிடம் இருந்து ரமேஷின் போன் நம்பரை வாங்கி, சீர்காழி பழைய பேருந்து நிலையத்துக்கு 16-ம் தேதி வரச் சொன்னேன். அவனை மோட்டார் சைக்கிளில் ஏற்றிக்கொண்டு, மதுபாட்டில்களை வாங்கிக்கொண்டு கடவாசல் பகுதியில் உள்ள வடிகால் வாய்க்கால் பகுதிக்குச் சென்றேன். ரமேஷ§க்கு அதிகமாக சரக்கை ஊற்றிக்கொடுத்தேன். அவரது பின்மண்டையில் கட்டையால் அடித்து, கழுத்தை நெரித்துக் கொலைசெய்தேன். பிணத்தை ஏரிக்கரை வாய்க்காலில் தள்ளிவிட்டு வந்துவிட்டேன்” என்று சொல்லியிருக்கிறார் பிரபு.

துர்காதேவி பற்றி உறவினர்களிடம் பேசினோம். ”அக்கா ஓடிபோயிட்டதால்தான் துர்காதேவிக்கும் ரமேஷ§க்கும் கல்யாணம் நடந்துச்சு. ரெண்டு பேருக்கும் 15 வயசு வித்தியாசம். அடிக்கடி சண்டை வரும். இப்படி புருஷனையே கொலை செய்ய எப்படி துணிவு வந்துச்சுன்னுதான் தெரியலை” என்றார்கள்.

கள்ளக்காதல்கள் பெருகுவதும், அதற்கான கொலைகள் அரங்கேறுவதும் சமூகத்துக்கு ஆரோக்கியமானது இல்லை.

- ஏ.ராம்

souce

http:// www. vikatan. com /new/article.php?module=magazine&aid=97171

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Hon. Justice Shri Reghupathi’s order on 498A !! mediation first !! No arrest except in grave situations

Hon. Justice Shri Reghupathi’s order on 498A !! mediation first !! No arrest except in grave situations

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.08.2008

CORAM

THE HON’BLE MR. JUSTICE R.REGUPATHI

M.P. No.1 of 2008

in

Crl.O.P. No.10896 of 2008

ORDER

Pursuant to the direction of this Court dated 07.07.2008 to file compliance report, the Director General of Police in consultation with the Government, has issued the following Circular Memorandum:-

" Circular Memorandum

Sub- Filing of cases registered under Dowry Death / Suicide in All Women P.S. – Instructions issued.

*****

The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.

i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.

ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.

iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.

iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.

v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).

vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.

vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.

viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.

ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.

2) The Commissioners of Police in cities and Superintendents of Police in Districts are requested to strictly follow the above instructions without any deviations.

3) Receipt of the same should be acknowledged.

Sd/- (29.07.2008)

For Director General of Police."

2. In respect of suggestion Nos.8 and 11 made by this Court; in the letter, dated 01.08.2008, of the Director General of Police, it has been stated as follows:-

" 2) With regard to the suggestion No.8, i.e., "A different Uniform other than the regular one may be recommended for these police officers" – the matter requires deliberations at length with Senior Police Officers in the State. All the Senior Officers have been addressed to send their view on the subject. After obtaining their views the matter will be discussed at State Headquarters and a report in this regard will be sent.

3) With regard to suggestion No.11 – Director General of Police, Training has been addressed to initiate action to conduct Education programme for Police Officers on the objects of the legislation, judicial pronouncements and development of law. Further progress report will be sent. "

3. Learned Government Advocate (Crl. Side) submits that, by virtue of the above Circular Memorandum, all the Commissioners of Police and the Superintendents of Police in the State have been instructed to scrupulously follow the suggestions, enumerated in the form of instructions, and therefore, in effect, the order of this Court has been complied with.

4. The complaisant reaction to the suggestions made by this Court and issuance of the aforesaid Circular Memorandum with suitable instructions by the Director General of Police deserves deep appreciation of this Court. It must also be pointed out that though several such suggestions and instructions were earlier made/issued in that perspective by the Honourable Supreme Court as well as this Court, there was no expected progress or outcome since, in course of time, the system started trailing with the same deviation and anomalies to reform/correct which the instructions were issued. At least now, this Court is anxious to see that the directives are strictly followed perpetually with letter and spirit by the Investigating Officers of the Department in particular the officers posted at the All Women Police Stations.

5. Before parting, having regard to the directions issued to the Police Department, this Court deems it necessary to outline certain aspects with regard to the role of the Judicial Magistrates and their effective functioning in deriving a positive outcome. As could be seen, though suitable directions have been given to the police, in particular to the Station House Officers, still there may be scope for misuse of power. The directions/instructions are only illustrative and not exhaustive. When the investigating officers seek for remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that the accusation or information is well- founded and it appears that the investigation cannot be completed within a period of 24 hours, remand may be ordered. Violation of human rights and infringement of personal liberties must be viewed seriously. Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the police officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on the mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand. To put it clear, a requisition of remand by the police must accompany the Case Diary, whereupon, the Magistrate must satisfy himself as to the adequacy and genuineness of the grounds necessitating judicial custody and while passing orders for remand or extension of remand, he must be alert to see that the liberty of the citizen is not violated by the police due to arbitrary exercise of power. Though a detailed speaking order is not required for remand, application of judicial mind is absolutely necessary. Of course, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably. At the time of production of the accused before the Magistrates, they should examine the necessity and even at the time of initial remand, if it appears that remand is not necessary, bail application can be entertained provided the accused is prepared to furnish necessary surety or security as may be directed by the court. Likewise, in cases where remand is required to be ordered, the period must be circumscribed depending upon the nature of the case, the materials produced by the prosecution and the actual requirement. Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided. It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents. It is only before the jurisdiction Magistrate concerned, on conclusion of the investigation, final report is filed, whereupon, trial of the case is taken up and, in matters relating to serious offences, committal proceedings are initiated. It is the learned Magistrates who are empowered to order maintenance under Section 125 Cr.P.C. and award compensation in appropriate cases. Pending investigation, for grant of instant relief viz., to award interim maintenance, interim compensation, entrust custody of minor, forward the victims to Govt. Homes, issue search warrant, order bailable or non-bailable warrant, restore sridana properties, send the injured to the Hospital, provide security, etc., to the complainant/wife/victim, the learned Magistrates can be approached and at such point of time, the Magistrates must see to it that orders are passed without any delay. The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute they are investigating and place the same before the court/Magistrate. For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family court. In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of F.I.R., the police should not be allowed to conduct lengthy panchayats in police stations. If the dispute could not be resolved within a period of one week, a conclusion must be reached one way or the other and the matter must be forwarded to the learned Magistrate concerned. Therefore, while considering such cases, the learned Magistrates are directed to apply their judicial mind having regard to the propounded principles and procedure and the various aspects pointed out in the course of this order and also to monitor scrupulous adherence to the instructions referred to above by the police officers concerned.

6. With the above observations and direction, the petition is closed.

7. Registry is directed to immediately circulate copy of this order as well as the earlier order dated 07.07.2008 to the Director General of Police, Tamil Nadu, and all the Judicial Magistrates for compliance.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Police should always avoid arrest if possible to complete investigation without arrest. Del.HC, 2003 !

Hon. Delhi HC’s directions to police, instructing them to AVOID ARREST IN 498a cases wherever possible !!!, Court also states that 498a/406 cases are misused to the max !! …well that was in year 2003 !!

The Hon. Delhi HC "………In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation….."

"….The liberty of a citizen is of paramount importance and a constitutional guarantee and cannot be incised and, therefore, the police or Investigating Agencies should not remain under the impression that in every cognizable and "non-bailable" offence they should invariably arrest the offender. Power to arrest is altogether different than the need for arrest…."

"……For instance it is the experience of this Court that in offences under Sections 498A/406, IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided……"

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Delhi High Court

Court On Its Own Motion vs Central Bureau Of Investigation on 28 January, 2004

Equivalent citations: 109 (2003) DLT 494

Author: J Kapoor

Bench: J Kapoor

JUDGMENT

J.D. Kapoor, J.

1. Having come across the following news item in a national daily "Statesman" of 16th September, 2003 this Court took suo motu notice as prima facie illegality in the order was writ large on the face, summoned the record, noticed the CBI and stayed its operation. The news item reads as follows:

"Special Court returns CBI charge-sheet

Statesman News Service

New Delhi, Sept. 15.–The Central Bureau of Investigation was at the receiving end of the ire of a Special Court today with the Judge declining to accept its charge-sheet against an IRS official-allegedly involved in a fake visa racket during his posting in Tanzania and snubbed it for not arresting him during the investigation.

Additional Sessions Judge Mr. Prem Kumar returned the charge-sheet to the agency saying it was not observing a uniform policy or norm in arresting accused persons during investigations. The Court rejected CBI contention that provisions of Section 170, Cr.P.C, which requires the Investigating Officer to forward the accused under custody to a Magistrate, did not apply in the present case.

The agency charge-sheet accused Rajeshwar Singhal of misappropriating Rs. 23.09 lakh while acting as First Secretary at the Indian High Commission in Tanzania in 1998-2000. The agency has alleged that during his posting at Tanzanian Capital Dar-es-Salaam, Singhal issued visas to the applicants by falsifying the receipts of various categories.

Besides being charged under Prevention of Corruption Act for misusing the official position, he was also slapped with charges under Section 409 (Criminal Breach of Trust) of the IPC among others."

2. In the instant matter, case was registered against the accused in February, 2001 and charge-sheet was filed in August, 2003. During this period, the accused was not arrested as CBI did not deem his arrest necessary for investigation. But now learned Special Judge wants CBI to arrest him and has ordered that unless he is produced in custody he would not accept the charge-sheet little realizing that there is prescribed limit of time for offences during which the Court can take cognizance. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. So much so he came very heavily upon the CBI by observing that the CBI was not adhering to the norm in arresting the accused during the investigation and flouting the provisions of Section 170, Cr.P.C requiring the Investigating Officer or Officer-in-charge of the Police Station to forward the accused in custody to a Magistrate where there is sufficient evidence and reasonable ground to put him on trial.

4. Now the question arises whether it is legally permissible for any Criminal Court to refuse to accept the charge-sheet where accused is neither arrested during investigation nor produced in custody by the Investigating Officer at the time of filing the charge-sheet wherever there is sufficient evidence to try the accused. Answer is emphatic "NO" as Section 173 of the Code of Criminal Procedure does not permit the Criminal Court to adopt such a course. Such a course is even otherwise fraught with serious consequence of failure to take cognizance of the charge-sheet if it becomes barred by time in the process of procuring the custody of the accused for production before the Court as law provides a limitation for taking cognizance of the charge-sheet. Moment the charge-sheet is filed, it is the duty of the Court to accept it. It has no powers to return the charge-sheet directing the Investigating Officer to first produce the accused in custody. It is not imperative or necessary for the Officer-in-charge of the Police Station to forward each and every accused in custody at the time of filing of the charge-sheet wherever there is sufficient evidence to try the accused.

5. According to Section 173 of Cr.P.C. three courses are open to the Magistrate or a Court: (i) It may accept the report and take cognizance; (ii) It may disagree with the report and drop the proceedings; (iii) It may direct further investigation.

6. It is co-incident that a similar course was once adopted by a Magistrate in Gujarat way back in 1983 which was deprecated by the High Court in Deendayal Kishanchand and Ors. v. State of Gujarat, 1983 Crl. L.J. 1583, with the observations that a refusal by Criminal Courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law and, therefore, whenever the police submit the charge-sheet, it is the duty of the Court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence.

7. Let us first see what is command of Section 173, Cr.P.C. under which charge-sheet is filed and then I shall advert to the provision of Section 170, Cr.P.C. under which the learned Special Judge has returned the charge-sheet. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Section 173, Cr.P.C. provides as under :

"Section 173. (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the Officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond, and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170?

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer-in-charge of the Police Station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies the police officer shall forward to the Magistrate Along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to Magistrate and, where upon such investigation, the Officer-in-charge of the Police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)."

9. Bare perusal of Section 173, Cr.P.C. shows that whenever a final report under Section 173, Cr.P.C. is filed for consideration by the Magistrate, two situations may arise. First, that the report may conclude that the offence appears to have been committed by a particular person or persons and second, that in the opinion of the Officer-in-charge no offence appears to have been committed.

10. In the first eventuality, that is where the report discloses the commission of an offence, the aforementioned three courses are open to the Magistrate viz. (a) he may accept the report and take cognizance of the offence and issue process; (b) he may disagree with the report and drop the proceedings; (c) he may direct further investigation.

11. In the second eventuality i.e. where the report states that no offence appears to have been committed, the Magistrate has again three options: (a) he may accept the report and drop the proceedings; (b) he may disagree with the report and take the view that there is insufficient ground for proceeding further, take cognizance of the offence and issue process; (c) he may direct further investigation to be made by the police.

12. Perusal of Section 173, Cr.P.C. further shows that as soon as investigation is completed the Officer-in-charge of the Police Station is required to forward the police report to Magistrate empowered to take cognizance of the offence in the form prescribed there under with the information contained in Sub-clauses (a) to (g).

13. The very word "Whether" referred in Clause (g) of Sub-section (2)(i) shows that it is not mandatory for Officer-in-charge to forward each and every accused in custody while filing the charge-sheet in non-bailable offences where there is sufficient ground to try the case. Had there been any imperative need to forward every accused in custody, then there was no need for particulars regarding Sub-clauses (d) and (e) i.e. "whether any offence appears to have been committed, and, if so, by whom" and "whether the accused has been arrested." This conclusion is derivative of Section 170, Cr.P.C.

14. Let us now see the import of Section 170, Cr.P.C. It reads as under :

"Section 170(1) If, upon an investigation under this chapter, it appears to the Officer-in-charge of the Police Station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed."

15. Word "custody" appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the charge-sheet where after the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. In case the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the I.O. is not obliged to produce such an accused in custody.

17. Thus, the only meaning of Sub-clause (g) of Sub-section (2)(i) of Section 173, Cr.P.C. "whether the accused has been forwarded in custody under Section 170" is with regard to the information that whether the accused is being forwarded under custody or not. Nothing more nothing less. Section 173, Cr.P.C. confines to providing the said information.

18. Thus, at the most the Magistrate, for that purpose the Court empowered to take cognizance has the power to ask the prosecution to provide with further information in respect of Clauses (a) to (g) of Sub-section (2)(i), if these are deemed deficient and in no case has the power to return the charge-sheet on the ground that the officer-in-charge of the police station or CBI has while filing the charge-sheet not forwarded the accused in custody in "cognizable" and "non-bailable" offence where there is evidence to try the accused in spite of the fact that the IO did not deem it necessary to arrest such a person even for the purpose of completing the investigation.

19. It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out.

21. The liberty of a citizen is of paramount importance and a constitutional guarantee and cannot be incised and, therefore, the police or Investigating Agencies should not remain under the impression that in every cognizable and "non-bailable" offence they should invariably arrest the offender. Power to arrest is altogether different than the need for arrest. Unless a person is required for custodial interrogation and investigation cannot be completed without his arrest, arrest may be necessary. In case investigation can be completed without his arrest and he extends all kind of co-operation, he should not be arrested. No authority howsoever powerful or mighty can be allowed to deny a person his liberty as it hits at the very foundation of democratic structure. In this regard, I cannot resist the temptation of reproducing the observations made by the Supreme Court in Joginder Kumar v. State of U.P. and Ors., , which are very pithy and have force in law. These are as under: "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter."

22. Because of the view taken by the Special Judge and return of the charge-sheet by forcing the CBI to arrest the accused which it otherwise never felt the necessity of arresting him even for the purpose of investigation, and apprehension of the accused being denied the benefit of bail in spite of offence being devoid of high magnitude and severe punishment this Court feels constrained to give certain directions based on the legal position and several judgments including those delivered by me recently [(i) Suresh V. Chaturvedi v. AES Control Pvt. Ltd., =Crl.M.(M) 2970/2003 decided on 24th July, 2003; (ii) Pratap Singh Gaekwad and Ors. v. State of NCT of Delhi and Anr., Crl.M.(M) 1848/2003 decided on 30th October, 2003; (iii) Sudhir Nathani v. Central Bureau of Investigation, Crl.M.(M) 2848/2003 decided on July 24th, 2003] to the police and the Investigating Agencies as well as to the Courts competent to take cognizance of the offence and try the accused for guidance and compliance. These are :–

Directions to the Police/Investigating Agencies like CBI etc.:

(1) Investigating Officer, be of police station or special agency like CBI shall not arrest any person accused of having committed a cognizable and non-bailable offence until it is very necessary for the purpose of investigation or custodial interrogation say for recovering incriminating articles or weapons of offence or eliciting information as to his accomplices etc. or for any other purpose that may help in gathering evidence to prove his guilt.

(2) Arrest should always be avoided if the investigation can be completed even otherwise and the accused gives full co-operation in completing the investigation.

(3) Arrest may be necessary, if the offence alleged is of grave nature and prescribes severe punishment and there is a likelihood of an offender either absconding or not appearing on being summoned or his fleeing away from justice or judgment.

23. For instance it is the experience of this Court that in offences under Sections 498A/406, IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

24. In this Court everyday ten to twenty matters for quashing the FIRs under Sections 498A/406, IPC are taken up as all marriages end in divorce where relatives of husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than remedy.

25. It was in view of this malady that this Court had strongly recommended to make the offence under Section 498A, IPC bailable and compoundable if society wants to salvage and save the institution of marriage. This Court again reiterate its recommendations to the Government.

26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.

Directions for Criminal Courts :

(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.

(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.

(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.

(vi) That the Court shall always keep the mandatory provisions of Section 440, Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration the financial condition, the nature of offence and other conditions, as "Excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.

Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit are as under:

(a) bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;

(b) bail may be refused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;

(c) bail may be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being;

(d) bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and

(e) bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail;

(f) similarly, the Court shall not while releasing a person on bail put any condition, say in the form of deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439, Cr.P.C.

27. This Court has laid down aforesaid law in various cases decided from time-to-time for the guidance and compliance of the subordinate Courts but it is with great anguish and pain that this Court observes that it has come across a large number of orders passed by the subordinate Courts in complete violation of the law laid down by this Court and Supreme Court in many more other cases.

28. There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate Courts is not only against the very concept of rule of law but also verges on contempt of Court as subordinate Courts are, by way of constitutional provisions, bound by the decision of the local High

Court as is every Court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate Courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.

29. Motion is disposed of with the aforesaid directions.

30. In view of the wide ramifications of the law laid in this case and cases referred therein and for the benefit of the society and people at large, Registrar General of this Court is directed to send the copy of the judgment to Police Commissioner for guidance and compliance by the SHOs/Investigating Officers and to all the Judicial Officers of Delhi and to the Director, Central Bureau of Investigation.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

498a on 80yr old inlaws, EVEN after hubby’s death, all run to SC for quash! wife lives in same house as inlaws, 2 major children, but case on approx 10yrs b4 quash

* Ablaa nari files 498a on very aged in-laws, and hubby
* Hubby expires some years after case starts, but HC refuses to quash the case against in laws !!
* So case goes on EVEN after hubby’s death,
* In laws run to HC and then to SC for quash!
* Pertinent to note that the ablaa wife lives in same house as inlaws, with two of her major children, but the case is on for approx 10yrs before the honourable SC thankfully quashes it

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 949 OF 2003

NEELU CHOPRA & ANR. … Appellant(s)

Versus

BHARTI … Respondent(s)

J U D G M E N T

V.S. SIRPURKAR,J.

1. This appeal is against the judgment of the Punjab & Haryana High Court whereby the petition for quashing the criminal proceedings against the appellants pending before the trial court has been dismissed.

2. The factual scenario is that the appellant Neelu Chopra and Krishan Sarup Chopra are husband and wife and the respondent Bharti is their daughter-in-law. Bharti was married in the year 1984 to one Rajesh, the son of present appellants. However, as per the version of the respondent the married life was not smooth on account of unreasonable demand of dowry and the misbehaviour on the part of husband Rajesh and his parents, the appellants herein. Ultimately, on 24.12.1993 a complaint came to be filed before the Judicial Magistrate Ist Class, Gidderbaha. The complaint was accepted in the sense that the learned Judicial Magistrate by his order dated 25.1.1994 took the cognizance of the offences under Sections 406, 498A read with 114 IPC. This order of cognizance was challenged by the accused persons. Rajesh is reported to have expired on 6.1.2006. The High Court, however, did not agree to quash the complaint and took a view that the complaint did show the material sufficient to proceed against the appellants. The High court, however, expressed that it would be open to the Magistrate to exempt the personal presence of the appellants. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. Mr. M.N.Krishnamani, learned senior counsel appearing for the appellants painstakingly took us though the original complaint as also the allied facts relevant for the determination of the present controversy. It was pointed out by the learned senior counsel that the marriage had taken place way back in the year 1984 while the complaint was filed on 24.12.1993 i.e. after about nine years of the marriage.

It was further pointed out that two daughters were born to the complainant and presently the complainant along with his daughter is residing in the same house but on the different floor. Learned senior counsel points out that those daughters are now 22 and 19 years of age.

He further points out that presently the age of the first appellant is 76 years while her husband is of 80 years. Learned senior counsel, however, besides these facts, laid great stress on the fact that the complaint is absolutely vague and silent as regards the allegation against the present appellants.
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4. We have seen the complaint very carefully. From a bare reading of the complaint it is apparent that the problem started barely after six months of the marriage. In paragraph 3 of the complaint, it is stated that all the accused came to complainant’s parents house at Gidderbaha and asked her parents to give the complainant more gold and other articles as dowry otherwise they would leave the complainant there and Rajesh would be married second time. In paragraph 4, the complaint is against Rajesh in the sense that the accused Rajesh asked the complainant to hand over the ornaments and clothes to his parents lest they are lost in the way. On reaching to Delhi when the ornament were asked back by the complainant, they were not returned back. When we see the complaint as a whole it is basically against the accused Rajesh. All the allegations are against Rajesh. There is undoubtedly some reference to the present appellants, but what strikes us is that there are no particulars given as to date on which the ornaments were handed over, as to the exact number of ornaments or their description and as to the date when the ornaments were asked back and were refused. Even the weight of the ornaments is not mentioned in the complaint and it is a general and vague complaint that the ornaments were sometime given in the custody of the appellants and they were not returned. What strikes us more is that even in paragraph 10 of the complaint where the complainant says that she asked for her clothes and ornaments which were given to the accused and they refused to give these back, the date is significantly absent. It seems from the order taking cognizance that the learned Magistrate has mentioned about the version of the complainant is supported by Bhagwati and Dharampal to the fact that the ornaments were entrusted to Krishan Saroop and Rajesh while clothes were entrusted to Rakhi and they refused to hand over the same. Even their statements could not be better than the vague complaint. Even about the clothes, the date on which they were handed over to Rakhee who happens to be the daughter of the present appellants and the other details are very significantly absent. It was also the version of the complainant that she was beaten in support of which she has filed a certificate from AIIMS hospital, New Delhi. However, in the complaint, it is not seen as to on which date she was beaten and by whom. It is significant to note that the matter against the Rakhee, the 4th original accused has already been dropped as she was in fact not even the resident of the same house.

5. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.

6. The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh.

7. This is apart from the fact that despite service of notice, the complainant neither appeared before this court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482 Cr.P.C.

8. The appeal is allowed accordingly.

……………….J. (V.S.SIRPURKAR)

………………..J. (DEEPAK VERMA)

New Delhi,

October 7, 2009.

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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

498a on aunt, uncle in law, sis in law; ablaa tries BAIL CANCELLATION but fails !! all get bail !!


Ablaa naari files 498a on many in hubby’s family including uncle-in-law, aunt-in-law, married sis-in-law some four months after leavg matri home & after getting a divorce notice from husband !! all accused get bail !! wife tries bail cancellation but fails !!


IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

Present : The Hon’ble Justice Ashim Kumar Roy

CRM NO. 5010 OF 2009

Mrs. Sonia Bhattacharjee
versus -
The State of West Bengal & Ors.


For Petitioner : Mr. Swapan Kumar Mallick, Mr. Shiladitya Sanyal, Mr. Suman De, Mr. Sumanta Gupta, Mr. Navanil De, Mr. Joyishnu Basu, Mr. Dipten Konal, Mr. Sirsendu Sinha Roy

For State Mr. Asimes Goswami, Mr. Prabir Mitra, Mr. Debobrata Roy

For O.P. Nos. 2 & 3 : Mr. Sudipta Moitra, Mr. Rajdeep Majumdar, Mr. Abhro Mukherjee

For O.P. No. 4 : Mr. Joy Sengupta, Mr. Angshuman Chakraborty … for O.P. No. 4.
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Heard On : May 15th, 2009.

Judgement On : May 22nd, 2009.

Against an order passed by the Learned Chief Judicial Magistrate, Alipore granting bail to the accused/opposite party nos. 2, 3 and 4 in connection with Bhowanipur Police Station Case No. 91, dated April 6, 2009 under Sections 498A/406 of the Indian Penal Code, the defacto-complainant moved this application seeking annulment of the said order and for cancellation of their bail.

2. Mr. Swapan Kumar Mallick, the learned Counsel appearing on behalf of the petitioner at the very outset submitted that although this application has been moved invoking Section 439 (2) of the Code of Criminal Procedure, nevertheless, cancellation of bail is not sought for on the mere ground of misuse of liberty by the accuseds, but on the ground the very order of granting bail is not in accordance with law. He further submitted that on April 4, 2009, the FIR of the case was recorded against the accused/opposite party nos. 2 to 4 and others and on the self-same day the said accused/opposite parties surrendered before the Learned Additional Chief Judicial Magistrate, Alipore and prayed for bail, and the Learned Magistrate without considering the Case Diary and on the concession shown by the Learned Chief Public Prosecutor allowed their prayer for bail, although there was specific allegations against them. He further submitted no reason has been assigned for granting bail and according to him when there is specific allegation against the accused/opposite parties it was not at all justified for the Learned Court below to allow their prayer for bail on the very first day of their surrender in Court without considering the Case Diary. Mr. Mallick in support of his submissions relied on the following decisions of the Apex Court; (a) Puran Vs. Rambilas & Anr., reported in 2001 SCC (Cri) 1124, (b) Dinesh M.N. (S.P.) Vs. State of Gujarat, reported in (2008) 2 SCC (Cri) 508, (c) Lokesh Singh Vs. State of U.P. & Anr., reported in 2009 Cri. L. J. 369, (d) Kumari Suman Pandey Vs. State of U.P. & Anr., reported in (2008) 1 SCC (Cri) 394, (e) Deepak Singchi Vs. State of Rajasthan & Anr., reported in (2009) 1 SCC (Cri) 904. Mr. Mallick also relied on a decision of this Hon’ble Court in the case of Pankaj Lall Roy Vs. State of West Bengal & Anr., reported in 2001 (1) CHN 239.

On the other hand, Mr. Sudipto Moitra, the learned Counsel appearing on behalf of the accused/opposite party no. 2 and 3 strongly repudiated the submissions of Mr. Mallick and submitted that the order of granting bail is wholly justified and no interference is called for. He further submitted that the aforesaid FIR was lodged by the petitioner nearly four months after she was allegedly driven out from her matrimonial home and that too after receipt of the summon of the divorce suit instituted by her husband. Mr. Moitra submitted that all the members of the family of her husband have been implicated in this case by making false allegations. Mr. Moitra vehemently urged since there is no iota of allegations that after being released on bail the accused/opposite parties have misused their liberty the question of cancellation of bail does not at all arise. In support of his submission Mr. Moitra relied on the following decisions; (a) Dolat Ram & Ors. Vs. State of Haryana, reported in 1995 SCC (Cri) 237, (b) Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in 2004 SCC (Cri) 551, (c) Ashok Kumar Vs. State of U.P. & Anr., reported in JT 2009 (2) SC 211. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. Initially in this matter Mr. Prabir Mitra, advocate was appearing on behalf of the State and subsequently as Mr. Mitra was not attending Court due to some personal reasons, Mr. Asimes Goswami, the Learned Public Prosecutor with Mr. Debobrata Roy, advocate appeared and finally argued this matter. According to the Learned Public Prosecutor the order impugned is absolutely illegal and ought to be set aside. Mr. Goswami contended no Court should allow the prayer for bail of any accused on the very first day of his surrender in Court without considering the Case Diary. According to him the impugned order of bail is to be cancelled for the simple reason, the same was granted without taking into consideration the Case Diary and merely on the concession shown by the Counsel of the State.

4. I have given my anxious consideration to the rival contentions of the respective parties, perused the materials on record, considered the case laws referred by them. I have also perused the Case Diaries produced in Court by the learned advocate of the State Mr. Prabir Mitra from time to time.

5. Indisputably if High Court concluded that an order granting bail suffers from non-consideration of relevant materials which clinches the issues or the decision of the Court granting bail was swayed by irrelevant consideration and where such order of bail does not bear reasons for prima facie conclusion as to why an accused charged with a serious offence has been granted bail, it is always open to the High Court to reverse such an order and cancel the bail. In such a situation absence of a supervening circumstance is of no significance. In both the aforesaid cases namely Puran Vs. Rambilas & Anr. (supra) and Dinesh M.N. (S.P.) Vs. The State of Gujarat (supra), heavily relied upon by Mr. Mallick, the accused persons were charged with serious offences like offences punishable under Sections 304B/498A of the Indian Penal Code with rigorous imprisonment not less than seven years and which may be extended upto imprisonment for life and the offences punishable under Sections 302/364/365/368/193/197/201/420/342/120B of the Indian Penal Code read with Section 25 (1-B)(a)/27 of the Arms Act with capital sentence or with imprisonment for life and other term of imprisonment. In the first case the Apex Court upheld the order of the High Court which reversed the order of granting bail on a finding that there were prima facie evidence suggesting that there was a demand of dowry of rupees seven lakhs at the time of marriage and although the said amount of money was spent by the father of the victim, still there was further demand. The Apex Court also found from the post-mortem report several burn injuries and blisters on the different parts of the body of the victim, who was pregnant for eight months. One more reason for which the Apex Court upheld the order of High Court, is this, that the Sessions Judge has gone into the merits and demerits of the evidence collected against the accused.

Similarly, in the next case the Apex Court found that while granting bail, the Court below swayed by the consideration that the victim who was killed by the police in an encounter and was a hardened criminal having shaddy reputation and criminal antecedents. The Apex Court also found the victim was killed in a fake encounter. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Thus, in the aforesaid two cases the Supreme Court interfered with the order of granting bail where the offences are very serious in nature involving death of person and punishable with imprisonment for life or capital sentence and on the ground in the first case the decision of the Court granting bail was vitiated due to non-consideration of relevant materials and in the second case due to taking into account the irrelevant materials. The remaining cases relied upon by Mr. Mallick namely the case of Lokesh Singh Vs. State of U.P. & Anr. (supra), Kumari Suman Pandey Vs. State of U.P. & Anr. (supra), Deepak Singchi Vs. State of Rajasthan & Anr. (supra), in all the said three cases the accused persons were charged with serious offences like murder and it was the ratio-decendi in those cases that the reason must be indicated in the order why bail has been granted to an accused particularly when he was charged with the commission of a serious offence and his prayer for bail was rejected on several occasions by the High Court. The Apex Court in those cases stressed upon the need of indicating reasons in the bail order, why accused who has been charged with a serious offence has been granted bail, without discussing the merits and de-merits of evidence.

The Apex Court further pointed following factors to be taken into consideration before granting of bail :-

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the Court in support of the charge.

6. So far as the case in hand is concerned, indisputably the approach of the Learned Magistrate is clearly erroneous and improper and really unfortunate. The way in which the Learned Magistrate passed the impugned order, is strongly condemned. The Learned Magistrate should not have granted confirm bail to the accused persons without considering the Case Diary on the concession shown by the Learned Chief Public Prosecutor. The question of bail always be considered judiciously and must be an independent decision of the Court, irrespective of the opinion expressed by the Counsel of the State. The decision of the Court does not depend on the stand taken by the State. The Learned Magistrate if after considering the nature of allegation made in the FIR against the accused persons and the other factors viz. the nature of the offence, the severity of the punishment in case of conviction, chances of abscontion, thought it fit that there was no necessity of detaining the accused persons in custody till the production of the Case Diary, in that case the Learned Magistrate was in no way precluded from releasing the accused on interim bail and then to pass the final order of bail after considering the Case Diary. It is desirable, in future the Learned Magistrate must be very careful and cautious and shall not repeat the same mistake, otherwise public confidence in the administration of justice by the Court would be lost. The Registrar General of this High Court is directed to bring this order to the notice of the concerned Magistrate and he be apprised of the strong dissent of this Court.

7. Be that as it may, now the only question arises for consideration, whether on the face of the allegations made in the FIR and the evidentiary materials collected during investigation, the petitioners are otherwise entitled to retain their liberty of bail or the order of bail deserve to be interfered with by canceling the same. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Having gone through the materials on record, more particularly the Case Diary and the First Information Report, I find as follows;

(a) The accused/opposite party no. 2 and accused/opposite party no. 3 are the uncle-in-law and aunt-in-law of the complainant, whereas the accused/opposite party no. 4 is her married sister-in-law.

(b) The allegations against the said accused/opposite parties are this that they were also living at her matrimonial home where the complainant was residing together with her husband and her parent-in-law. After her marriage when she went to her matrimonial home her mother-in-law, father-in- law, her husband and other accused persons took away all her jewelleries on the pretext of keeping the same in their safe custody and subsequently inspite of repeated requests none of those jewelleries were handed over to her. All the accused persons used to taunt her and her family members over their social status and financial background.

Lastly, she alleged that all her stridhan articles are lying in the custody of her mother-in-law and husband and steps may be taken by the police for recovery of the same otherwise, the same would be misappropriated by her husband and parents-in-law.

(c) The aforesaid complaint was lodged to the police on 5th of April, 2009, whereas according to her own admission she was driven out from her matrimonial home on 5th of December, 2008.

No reason has been assigned as to why the complaint was made after about four months from the date she was driven out from her matrimonial home.

(d) No further allegation has been found against the accused/opposite parties from the 161 statement of the complainant and the witnesses.

Besides above I find that the aforesaid complaint was lodged after receipt of the summons of the divorce suit instituted by her husband against the complainant and during the pendency of this application there is a development in the case and the police has recovered almost all her stridhans from her husband and parents-in-law except the jewelleries. Moreover, the accused/opposite party no. 2 is a businessman and the accused/opposite party no. 3 his wife is the Vice-Principal of a well-known school of Calcutta and the accused/opposite party no. 4 is a working lady. They are the permanent residents of Calcutta. They have no criminal antecedents. They have been arraigned as accused for commission of offences punishable under Sections 498A/406 of the Indian Penal Code punishable with imprisonment upto three years. The case against them does not relates to any serious offences like murder, rape, dacoity etc. The accused/opposite parties are on bail for a considerable period and there is no allegation that they have made any attempt to pollute the course of justice. Thus, even though there are some infirmities in the order of granting bail, still, I am of the opinion it would not be appropriate for this Court to interfere with the same and cancel the bail of the accused/opposite parties.

9. Last but not least, in connection with this case the Investigating Officer produced the Case Diaries in two parts, first part on April 30, 2009 and the next part on May 4, 2009. It appears the first part of the Case Diary produced on April 30, 2009 were not in prescribed form in terms of the mandate of Section 172 of the Code of Criminal Procedure, read with the provisions of Regulation 71 under Chapter V of the Police Regulation of Calcutta. However, the second part of the Case Diary which was produced on May 4, 2009 is in prescribed form. I do not find any reason why the Case Diary was not maintained by the Investigating Officer in the prescribed form which was produced on April 30, 2009, which in my opinion, is not at all proper. However, I do not propose to recommend any action against him for the same on his apology tendered before this Court. He must be very careful in future in conducting the investigation.

10. The instant application stands disposed of in the above terms. The Criminal Section is directed to supply the urgent Xerox certified copy of this Judgement within four days from the date of making such application.

( Ashim Kumar Roy, J. )

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*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

498a roping in EVERY relative MANY years after wife loosing divorce & setaside!! No FIR quash still !!

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. CR.MISC. PETITION NO.2251/2012

Mool Chand Yadav & Anr. Vs. State & Anr.

Date of order : 14/08/2012.

HON’BLE MR.JUSTICE MOHAMMAD RAFIQ

Shri Nishant Sharma for the petitioner.
Shri G.S. Fauzdar,P.P. for the State.
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******

This revision petition has been preferred by father-in-law and mother-in-law seeking quashment of FIR lodged against them and their son Mukesh Yadav, daughter and mother of petitioner no.1. All family members have been made accused. According to petitioner, this is a case of gross misuse of the provisions of Section 498A and 406 of IPC. The marriage between the son of the petitioner Mukesh Yadav and complainant Kamesh @ Kamla was solemnised 11 years ago. Following matrimonial dispute between the two, the wife left the husband and went to reside with her parents. The husband Mukesh Yadav thereafter filed petition under Section 13 of the Hindu Marriage Act seeking divorce. The ex-parte decree of divorce was passed by the learned Family Court, Jaipur on 05.06.2010. It was thereafter that the wife filed application under Order 9 Rule 13 CPC with the prayer that the ex-parte decree be set aside, which application has been dismissed by the learned Family Court on 8.4.2011. It was thereafter that the complainant-wife filed a complaint making family members as the accused. The complaint has been made to harass the petitioners and to teach them a lesson. Learned counsel therefore argued that the FIR be quashed. It is argued that since the complainant-wife happens to be relative of one of the police officials, the investigation has been changed twice. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Shri G.S. Fauzdar, learned Public Prosecutor argued that there are serious allegations against the petitioners and other accused in the FIR and even if the petitioners wants to show to the Investigating Officer that this complaint is false and resulted from the matrimonial litigation between the husband and wife, they should produce these documents before the Investigating Officer and there is no reason why he could not look into them.

Having regard to the fact situation noticed above, it is apparent that the complaint has been filed by the wife much after the matrimonial litigation was started by the husband in 2009 when he filed petition under Section 13 of the Hindu Marriage Act for divorce. The ex-parte decree of divorce was passed on 05.06.2010 and thereafter the application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree was dismissed on 8.4.2011. These are apparent facts. However, the petitioners should produce these documents before the Investigating Officer. The Investigating Officer should make a fair investigation and if there is relationship of complainant with any of the members of the police force or police official, there would be no reason for him not to undertake a fair investigation and harass the petitioners who are the mother and father of the husband and other family members because it appears that despite differences being confined between husband and wife, all family members have been made accused. The petitioners shall be at liberty to approach the Deputy Commissioner of Police concerned, who shall ensure free, fair and impartial investigation into the matter.

Without therefore making any interference with the investigation, it is however directed in the interest of justice that petitioners shall not be arrested. They should however appear before the Investigating Officer for interrogation and file all the documents which they want to show proving differences between husband and wife and that allegations against them is totally false.

The petition is disposed of with the aforesaid directions.

A copy of this order be sent to the Deputy Commissioner of Police concerned for compliance.

(MOHAMMAD RAFIQ), J.

RS/103

All corrections made in the judgement/order have been incorporated in the judgement/order being emailed.

(Ravi Sharma,P.A.)

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*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

How SEVEN ppl run for BAIL on ablaa’s 498A, 323, 354 complaint, after SC ruling in Arnesh Kumar !!

* The Hon SC has clearly stated how many members of the husband’s family are roped into 498a cases to put pressure on them
* in many such cases all of them apprehend arrest and run for bail

* the trial takes many years and more time, money and lives of innocents is wasted
* In the instant case, decided just a few days ago, seven members of a family, excluding the hubby !!, i.e. hubby’s brothers, their sons and other relatives apprehend arrest
* Ablaa has filed cases under 498A, 323, 354 etc
* In case some one forgot, The Indian Penal Code. 354 = Assault or criminal force to woman with intent to outrage her modesty !!!

* So one can understand the allegations against the husband’s brothers
* All these seven seek bail and are thankfully granted provisional bail

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Jharkhand High Court

Arjun Mahto And Ors vs The State Of Jharkhand And Anr on 24 July, 2014

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B. A. No. 2406 of 2014

1. Arjun Mahto
2. Awadhesh Mahto
3. Rameshwar Mahto
4. Gautam Kumar
5. Rita Devi
6. Nagendra Kumar
7. Vijay Kumar … Petitioners

Versus

1. State of Jharkhand
2. Sulekha Devi … Opposite Parties ……….

CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioners : Mrs. Rashmi Kumari, Advocate
For the State : A.P.P.
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********************************

24.07.2014

An urgency slip was filed by the counsel for the applicants and therefore, the matter has been heard today. Let notice to the Opposite Party No. 2 be issued under registered cover with A/D as well as by ordinary process for which requisites etc. must be filed within a period of two weeks.

The learned counsel appearing for the applicants submits that the applicants are apprehending their arrest in Complaint Case No. 801 of 2013 under Sections 498A, 323, 354 (1)(A)(ii) of the Indian Penal Code. The learned counsel appearing for the applicants submits that the applicant nos. 1 and 2 are the elder brothers­in­law, applicant no. 3 is the son of applicant no. 1, applicant no. 4 is the son of applicant no. 2, applicant no. 5 is the sister­in­law and applicant nos. 6 and 7 are Bhagina of the complainant.

She further submits that applicant no. 1 to 5 are residing at Patna, Bihar. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Post the matter two weeks after service of notice upon Opposite Party No. 2.

The applicants would pay a sum of Rs. 1000/­ to the Opposite Party No. 2 on the next date of hearing.

Considering the facts and circumstances, in the event of arrest of the applicants or if they surrender before the trial court within four weeks from today the applicants namely, (1) Arjun Mahto, (2) Awadhesh Mahto, (3) Rameshwar Mahto, (4) Gautam Kumar, (5) Rita Devi, (6) Nagendra Kumar and (7) Vijay Kumar would be released on Provisional Bail on furnishing bail bond of Rs. 10,000/­ (Ten Thousand) each with two sureties of the like amount each to the satisfaction of the learned S.D.J.M., Koderma, in Complaint Case No. 801 of 2013.

Let a copy of this order be sent through FAX on depositing the cost by the applicants.

(Shree Chandrashekhar, J.)

Amit/

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Hubby jailed FOUR MONTHS B4 bail. wife’s word could send & keep you behind bars. Status we are in !!

Patna High Court

Rupan Singh Kushwaha ( Nanda) vs The State Of Bihar on 24 January, 2014

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.609 of 2014

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Rupan Singh Kushwaha ( Nanda) son of Late Nanda Singh …. …. Petitioner/s
Versus
The State Of Bihar …. …. Opposite Party/s
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

ORAL ORDER

24-01-2014

Petitioner being husband of the complainant is languishing in custody since 20.09.2013 in a case registered for the offences punishable under Sections 323, 324, 498A of the I.P.C.

The basic accusation is of torture. Considering the nature of accusation and the period under custody, let the petitioner, above named, be released on bail on furnishing bail bond of Rs. 10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of learned Chief Judicial Magistrate, Bhagalpur in connection with Complaint Case No. 12 of 1997. Learned Court below will positively cancel the bail bonds of the petitioner, if the petitioner defaults for two consecutive occasions. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(Dinesh Kumar Singh, J)

Shageer/-

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*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Hubby jailed SIX MONTHS B4 bail. Alleged matri discord turned to 498a case !! fate of married Indian men !!

Patna High Court – Orders

Rajesh Rai @ Rajesh Kumar vs The State Of Bihar on 24 January, 2014

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.3347 of 2014

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Rajesh Rai @ Rajesh Kumar, son of Ashoka Rai, resident of Village- Raghunath Tola, Anishabad, P.S. Gardanibagh, District- Patna. …. …. Petitioner
Versus
The State of Bihar …. …. Opposite Party
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

ORAL ORDER

24-01-2014

Heard learned counsel for the petitioner and learned counsel for the State.

The petitioner seeks bail in a case in which cognizance has been taken for the offences punishable under Sections 498A, 406 and 323 of the Indian Penal Code as also Sections 3 and 4 of the Dowry Prohibition Act. It is contended that the petitioner is in custody since 2nd July, 2013. Admittedly, the marriage took place in 2004 and the complaint was filed in 2009. The further contention is that there is no truth behind the allegation of subjecting the complainant to cruelty for non-fulfillment of demand of dowry. As a matter of fact, the instant case has been instituted due to marital discord and incompatibility between the parties. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Be that as it may, considering the facts and circumstances of the case, 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 the like amount each to the satisfaction of learned Additional Chief Judicial Magistrate, Danapur, Patna in connection with Complaint Case No.974 (C) of 2009.

(Ashwani Kumar Singh, J)

Sunil/-

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Husband’s father denied bail EVEN after Supreme court Arnesh Kumar CASE !! plight of men in India


GIST

  • Ablaa naari complains / alleges she was about to be SOLD !!
  • Father in law is NOT living in the same house as the daughter in law !!
  • Father in law approaches the Hon. HC of Jharkhand MUCH after the Arneesh kumar decision by Hon Supreme court of India
  • Father in law is denied bail because of being accused of such a heinous crime !!! (498a, with 3/4 of DP act and other allegations !!!)
  • This is the SAD plight of men and their fathers in India

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Jharkhand High Court

Bigan Pawaria Alias Bigan Mian vs The State Of Jharkhand And Anr on 24 July, 2014

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 673 of 2014

Bigan Pawaria @ Bigan Mian … … Petitioner Versus

1. The State of Jharkhand
2. Najma Khatoon … … Opposite Parties

CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Md. Faruque Ansari, Advocate For the State : Mr. Shree Prakash Jha, A.P.P. ­­­­­

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04/24.07.2014

An urgency slip was filed by the counsel for the applicant and therefore, the matter has been listed today. Heard the learned counsel appearing for the parties and perused the documents on record. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The learned counsel appearing for the applicant submits that the applicant is apprehending his arrest in Complaint Case No. 189 of 2012 filed under Section 498A of the Indian Penal Code and under Section 3/4 of Dowry Prohibition Act.

The learned counsel appearing for the applicant submits that the applicant is the father­in­law of the complainant namely, Najma Khatoon. There is only vague and omnibus allegation against the present applicant. The applicant has been residing separately from the complainant. The learned counsel for the applicant submitted that other accused persons namely, Bitni Khatoon and Othlaliya Khatoon have been granted anticipatory bail by the court below. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The learned A.P.P. appearing for the State opposed the prayer for grant of anticipatory bail. From the complaint, it appears that there is an allegation of an attempt to sell the victim lady.

From the allegations levelled in the complaint petition, I am of the opinion that there is specific allegation against this applicant and in such view of the matter, the present application is dismissed.

Let a copy of this order be sent through FAX to the concerned trial court.

(Shree Chandrashekhar, J.)

Manish

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Elderly mother in Jail 31days B4 bail in 498a,323,506 case! Fate of mothers who bore sons for India

CRM No.7650 of 2014

Kolkata High Court (Appellete Side)

Procedure Filed On 1St July, 2014 … vs Unknown on 25 July, 2014

Author: Subrata Talukdar

25.07.2014

CRM No.7650 of 2014

In the matter of: An application for Bail under Section 439 of the Code of Criminal Procedure filed on 1st July, 2014 in connection with Uday Narayanpur Police Station Case No.118 of 2014 dated 19th June, 2014 bearing G.R. No.1431/2014 under Sections 498A/323/506/34 of the Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act.

In Re:Minu Begam ….Petitioner

Sk. Rejaul Alam
Sk. Afrojul Hoque
Sk. Md. Ashik Iquebal ….for the petitioner.

Sri Manjit Singh,PP
Sri Anand Keshri .. for the State

This is an application for bail in connection with an alleged offence under Sections 498A/323/506/34 of the Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act.

Sri Alam, learned counsel appears on behalf of the petitioner and submits that she is the mother-in-law of the complainant and is in custody for 31 days after she surrendered before the Additional Chief Judicial Magistrate, Uluberia. Sri Keshri, learned counsel appears on behalf of the State/opposite party. From the materials on record, it does not appear to this Court that further detention of the petitioner is necessary for the purpose of investigation. Accordingly, this Court finds it fit to grant the petitioner privilege of bail at this stage.

The petitioner may find bail on a bond of Rs.5,000/-(Five thousand) with two sureties of like amount (one of whom must be local) to the satisfaction of the learned Additional Chief Judicial Magistrate, Uluberia.

The application for bail CRM 7650 of 2014 stands disposed of.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties, as early as possible.

(Subrata Talukdar,J.)

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Top Cop accused of rape. His name is all over press but accuser safe & anonymous ! Rules of the game I suppose

A 27 year old model who was earlier arrested for providing escort services !!!, has accused a Top cop of "rape". Now that cop has obtained arrest stay etc , but he is still fearing arrest. His name, designation and photos though are all over the electronic media while the woman / escort service provider is all safe and anonymous !!

This raises many questions

  • why such false cases do NOT amount to defamation ?
  • why is the woman always called a victim EVEN before the case is proven ?
  • and what is this doing to the morale of our cops

Tags : #Top_cop, #Rape, #Model_or_escort_woman? , #oldest_profession , #is_rape_law_misused?, #Mumbai

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I’m being framed because I had arrested her, says DIG accused of rape

By Vinay Dalvi |Posted 26-Jul-2014

Deputy Inspector General Sunil Paraskar alleged in court yesterday that he had arrested the model for running escort services; he has been given interim protection from arrest till July 31

Deputy Inspector General Sunil Paraskar, who was booked for raping a 27-year-old model, has got interim protection from the Sessions Court till July 31.

DIG Sunil Paraskar claimed that he had met the survivor only twice, in a coffee shop
DIG Sunil Paraskar claimed that he had met the survivor only twice, in a coffee shop

The police will now be recording the woman’s statement in front of a magistrate to make their case strong. Fearing arrest, 57-year-old Paraskar had approached the Sessions Court yesterday to apply for anticipatory bail.

He said that he had arrested the woman in a case under the Prevention of Immoral Trafficking Act (PITA) for running escort services.

Later, she had come to him asking him to arrest another model, whom she had a rivalry with, and he had refused to do so. He also said that he had only met her twice, and that too in a coffee shop. Paraskar’s lawyer Rizwan Merchant told the Judge Vrushali Joshi, “Paraskar is being framed in the case as he had arrested the victim earlier.

The entire morale of the police force could be lowered if he is arrested in the case, and nobody would investigate cases.” The court granted Paraskar interim relief till July 31, when his anticipatory bail plea will be heard.

The women’s cell of the Crime Branch has, meanwhile, decided to record the statement of the victim before a magistrate under 164 of the CrPc.

- See more at: http://www.mid-day.com/articles/im-being-framed-because-i-had-arrested-her-says-dig-accused-of-rape/15479161#sthash.Ju78PkB4.dpuf

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

5 crore dowry demand !! case on 6 members of family !!

Thiruchengode, Namakkal, Tamil Nadu

A doctor wife has filed a dowry case on her husband and five others including in laws, husband’s aunt, and others alleging 5 crore dowry demand !!

The husband is also a doctor !!

The marriage was solemnised on Nov 7th 2011 and the wife has alleged that 150 soverigns gold was given during marriage, but husband and co are torturing her for further dowry !!

police have registered a case

original source
http://www.nakkheeran.in/users/frmNews.aspx?N=125840


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5 கோடி வரதட்சணை கேட்ட பெண் மருத்துவரின் கணவர் உள்பட 6 பேர் மீது வழக்கு

நாமக்கல் மாவட்டம், திருச்செங்கோடு நக்கரிலுள்ள வேலூர் சாலையைச் சேர்ந்தவர் மருத்துவர் அபிராமி (வயது-27). இவருக்கும், பள்ளிபாளையம் சாளியிலுள்ள கூட்டப்பள்ளியைச் சேர்ந்த மருத்துவர் சிவசுப்ரமணியத்திற்கும் 2011-ஆம் ஆண்டு நவம்பர் 7-ஆம் தேதி திருமணம் நடைபெற்றது.

திருமணத்தின் போது அபிராமிக்கு, 150 பவுன் நகை மற்றும் ரூ 2-லட்சம் மதிப்புள்ள கட்டில் பீரோ, ரூ.50-ஆயிரம் ரொக்கம் ஆகியவை சீதனமாக கொடுத்துள்ளனர்.

திருமணமான 15-ம் நாளிலேயே கணவர் குடும்பத்தினர் கூடுதளாக சீதனம் கேட்டு அபிராமியை துன்புறுத்தியதாகவும். பிறகு, 2013-ஆம் ஆண்டு ஜூன் 2-ஆம் தேதி அபிராமியை அவரது தாத்தா வீட்டுக்கு அனுப்பி கணவருக்கு மருத்துவமனை கட்ட இன்னும் கூடுதலாகா 5 கோடி ரூபாய் பணம் வாங்கிக்கொண்டு வா என்று கனவர் வீட்டார் அனுப்பிவைத்தனர்.

2014-ஆம் ஆண்டு ஏப்ரல் 30-ஆம் தேதி நாமக்கல்லில் நடைபெற்ற இரண்டு குடும்பத்தினரின் கலந்தாய்வுக்கு பிறகு கனவர் வீட்டுக்கு வந்த வந்த என்னையும், பாட்டியையும் சிவசுப்பிரமணியன் குடும்பத்தினர் திட்டியதுடன் மிரட்டல் விடுத்தனர் என்று கூறிய அபிராமி இதுகுறித்து, திருச்செங்கோடு அனைத்து மகளிர் காவல் நிலையத்தில் புகார் அளித்தார்.

இதையடுத்து, மருத்துவர் அபிராமியின் கணவர் மருத்துவர் சிவசுப்பிரமணியம் (வயது-28), மாமனார் பழனிவேல் (வயது-62) மாமியார் விஜயலட்சுமி (வயது-57), சிவசுப்பிரமணியத்தின் அத்தை லதா, மாமா பாலமுருகன், வெண்ணந்தூரைச் சேர்ந்த ராஜமாணிக்கம் ஆகிய ஆறு பேர் மீது போலீஸார் வழக்குப் பதிவு செய்து விசாரணை மேற்கொண்டு வருகின்றனர்.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Elderly mother in law arrested near Sattur, TN on ablaa naari, DIL’s complaint !! no SC guidelines here ??

Marimuthu (32) is married to Kala Rani (21) couple of years ago. Kala Rani has filed a dowry complaint against husband and in laws. The mother in law has been arrested and police are on the look out for husband and father in law

What about the Hon. Supreme court directions in Arnesh kumar Vs State of Bihar ?? http://bit.ly/1nLDXel

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கூடுதல் வரதட்சணை கேட்டு பெண் சித்ரவதை மாமியார் கைது- கணவருக்கு வலைவீச்சு

மாற்றம் செய்த நாள்:
சனி, ஜூலை 26,2014, 2:09 AM IST

பதிவு செய்த நாள்:
சனி, ஜூலை 26,2014, 2:09 AM IST

201407260209514607_Additional---Asking-for-dowryGirl-torture---Mother_SECVPF.gif

சாத்தூர் கூடுதல் வரதட்சணை கேட்டு பெண்ணை சித்ரவதை செய்ததாக மாமியார் கைது செய்யப்பட்டார்.

இதுதொடர்பாக கணவரை போலீசார் தேடி வருகின்றனர்.

மாமியார் கைது

சாத்தூர் அருகே உள்ள ஒத்தையால் பகுதியை சேர்ந் தவர் கருப்பசாமி. இவரது மகன் மாரிமுத்து ( வயது 32). இவருக்கும், தூத்துக் குடி மாவட்டம் சங்கரலிங்கா புரத்தை சேர்ந்த (21) கலா ராணி என்ற பெண்ணுக்கும் கடந்த 2012-ம் ஆண்டு திருமணம் நடந்தது. அப்போது 7 பவுன் நகை, 20 ஆயிரம் ரொக்கம் தரப்பட்டது.

இந்தநிலையில் கணவர் மாரிமுத்து, மாமியார் கோம தியம்மாள், மாமனார் கருப்ப சாமி ஆகியோர் சேர்ந்து கூடுத லான 10 பவுன் நகை கேட்டு சித்ரவதை செய்ததாக கூறப் படுகிறது. இதுகுறித்து சாத்தூர் அனைத்து மகளிர் காவல் நிலையத்தில் புகார் செய்யப் பட்டது. அதன்பேரில் போலீ சார் வழக்குபதிவு செய்து கலாராணியின் மாமி யாரான கோமதியம்மாளை கைது செய்தனர். மேலும் கணவர் மாரிமுத்து, மாமனார் கருப்ப சாமி ஆகியோரை தேடி வரு கின்றனர்.

source
http://www.dailythanthi.com/News/Districts/2014/07/26020959/Additional—Asking-for-dowryGirl-torture—Mother.vpf

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

farmer husband harassed by wife seeks collector’s permission to commit suicide ; wife is allegedly threatening him and seeking 20 lakhs alimony !!

Farmer seeks collector’s permission to commit suicide as wife seeks 20 Lakhs alimony !!

A Karnataka farmer from Chigmagalur area , who has been harassed by his wife, has sought the collector’s permission to commit suicide

The farmer has stated in his petition that his wife is lavish, and he is unable to meet her demands for money

Moreover she spends his money on her relatives and is threatening the father thru her mother and brother

Distraught farmer has sought the collector’s permission to commit suicide


மனைவி கொடுமையால் தற்கொலைக்கு அனுமதி கேட்டு கலெக்டரிடம் விவசாயி மனு!

on July 26, 2014 at 3:13 pm /

17

மனைவியின் கொடுமை தாங்க முடியவில்லை என்றும், இதனால் தற்கொலை செய்து கொள்ள அனுமதிக்க வேண்டும் என்றும் விவசாயி ஒருவர் மாவட்ட கலெக்டரிடம் மனு கொடுத்த சம்பவம் கர்நாடகா மாநிலத்தில் அதிர்வலையை ஏற்படுத்தியுள்ளது.

உயிர் பிழைக்க வைக்க முடியாத நிலையில் உள்ளவர்களை கருணை கொலை செய்வதற்கு அரசிடம் அனுமதி கேட்டு வரும் நிலையில், அதற்கு மாறாக, கர்நாடக மாநிலத்தை சேர்ந்த விவசாயி ஒருவர், மனைவியின் கொடுமை தாங்க முடியாததால் கருணை அடிப்படையில் தற்கொலை செய்து கொள்வதற்கு அனுமதி கேட்டு கலெக்டர் மனு கொடுத்துள்ளார்.

சிக்மகளூர் மாவட்டம், தரிகெரே அருகே கெரேகுச்சி கிராமத்தை சேர்ந்த லட்சுமேஷா என்ற 28 வயதுடைய விவசாயி, மாவட்ட கலெக்டர் சேகரப்பாவை சந்தித்து கொடுத்துள்ள மனுவில், “நான் சிக்மகளூர் மாவட்டம் தரிகெரே தாலுகா கெரேகுச்சியை சேர்ந்தவன். நான் அந்த பகுதியில் விவசாயம் செய்து வருகிறேன். கடந்த 2 ஆண்டுகளுக்கு முன்பு நான், தொட்டகுந்தூர் கிராமத்தை சேர்ந்த ராமையா என்பவரின் மகள் பவித்ராவை வரதட்சணை வாங்காமல் திருமணம் செய்து கொண்டேன்.

திருமணத்துக்கு முன்பு எனது மனைவி பவித்ரா ஜார்க்கண்ட் மாநிலத்தில் நர்சாக பணியாற்றி வந்தார். திருமணம் முடிந்த பிறகு நான் ஜார்க்கண்ட் செல்ல வேண்டாம் என்று கூறிவிட்டேன். மேலும் பவித்ரா நர்சுக்கு படித்தபோது அவர்கள் வீட்டில் ஏற்பட்ட கடனை நான் தான் அடைத்தேன்.

கொடுமை

பவித்ரா ஆடம்பரமாக வாழ ஆசைப்பட்டார். இதனால் நான், பவித்ரா கேட்டதை எல்லாம் வாங்கி கொடுத்தேன். மேலும் பவித்ரா என்னிடம் செல்லாமல் எனது பணத்தை எடுத்து அவரது குடும்பத்தினருடன் ஆடம்பரமாக செலவழித்து வந்தார். இதனை நான் கண்டித்தேன். இதனால் எங்களுக்குள் கருத்து வேறுபாடு ஏற்பட்டது.

பவித்ரா என்னிடம் அடிக்கடி பணம் கேட்டு கொடுமைப்படுத்துகிறார். நான் பணம் கொடுக்க மறுத்தால், பவித்ரா தனது சகோதரன் ஹரீசை வைத்து மிரட்டுகிறார். இதனால் நான் பவித்ராவுக்கு பணம் கொடுப்பதை தவிர்த்து வந்தேன். இதனால் பவித்ரா அந்த பகுதியில் உள்ள மகளிர் அமைப்பினருடன் சேர்ந்து கொண்டு, நான் அவரை வரதட்சணை கேட்டு மிரட்டுகிறேன் என்று என்னிடம் விவாகரத்து கேட்டு தரிகெரே நீதிமன்றத்தில் வழக்கு தொடர்ந்து உள்ளார். மேலும் அவர் என்னிடம் ஜீவனாம்சமாக ரூ.20 லட்சம் கேட்கிறார்.

நான் விவாகரத்து கொடுக்க மறுத்ததால் அவரது தாய் பருவதம்மா, சகோதரன் ஹரீஷ் ஆகியோர் விவாகரத்து கொடுக்கும் படி மிரட்டுகிறார்கள். இந்த கொடுமையால் என்னால் நிம்மதியாக வாழ முடியவில்லை. இதனால் எனக்கு வாழ பிடிக்கவில்லை. நான் தற்கொலை செய்து கொள்ள விரும்புகிறேன். இதனால் கருணை அடிப்படையில் தற்கொலை செய்ய அரசு அனுமதி தர வேண்டும்” என்று கூறியுள்ளார்.

- See more at: http://newsalai.com/?p=21114#sthash.qzAlVVy2.dpuf

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

the PROPOSED THE HINDU MARRIAGE (AMENDMENT) BILL, 2014, to be introduced by SHRI BHARTRUHARI MAHTAB, M.P., in Lok Sabah, end July 2014

This is an extract from the THE HINDU MARRIAGE (AMENDMENT) BILL, 2014 that is proposed to be introduced in the Lok sabah as a private member bill !!!

All men need to know how easy it would be for a deserting wife to take away their property !!!

Please refer to the Lok Sabah or PIB websites for an authentic copy. This is a private initiative to inform the citizens and should NOT be used for legal purposes !!

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the bill is listed in the official Lok sabah website here http://164.100.47.132/lob/16/II/RLOB25.7.2014.pdf

Please scroll down to the last page to see the same

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THE HINDU MARRIAGE (AMENDMENT) BILL, 2014

By

SHRI BHARTRUHARI MAHTAB, M.P.

A BILL further to amend the Hindu Marriage Act, 1955.

BE it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:—

1. ( 1 ) This Act may be called the Hindu Marriage (Amendment) Act, 2014.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. In section 3 of the Hindu Marriage Act, 1955 (hereinafter referred to as the principal Act), the existing clause ( a ) shall be renumbered as clause ( aa ), and before clause ( aa ) as so renumbered, the following clause shall be inserted, namely:—

“( a ) ‘abandoned wife’ means a female party to a marriage whose husband has deserted her or has failed to provide such support to her as, according to the customs and social practice, is expected to be provided by a husband to his wife, for a continuous period of not less than one year.

Explanation.—

For reckoning the continuous period of one year, any intervening period of less than one month during which the cohabitation resumes and subsists, shall be excluded for the purpose of computing the continuous period of one year.”.

3. After section 24 of the principal Act, the following sections shall be inserted, namely:—

“24A. ( 1 ) An abandoned wife shall be entitled to payment by her husband such sum of money every month for her maintenance and support, as, having regard to the husband’s own income and property, the income and property of the abandoned wife and other circumstances of the case, is sufficient to enable the abandoned wife to sustain a standard of living commensurate with the husband’s income and property: Provided that in no case the amount of maintenance granted under this section shall be less than two-fifths of the gross monthly income of the husband.

( 2 ) If a husband, at any time, fails to pay to his abandoned wife the amount of maintenance under this section for a continuous period of two months, the court shall secure future payment of maintenance from the husband by creating a charge on his income and, if necessary, also on his assets.

( 3 ) The right of maintenance and support of an abandoned wife under this section shall be without prejudice to her right of maintenance under sections 24 or 25: Provided that the maintenance granted under section 24 shall not be less than the amount of maintenance granted under this section.

( 4) A petition under this section shall be decided within three months from the date of filing of the petition.

24 B. ( 1 ) The husband of an abandoned wife shall provide a suitable portion of his residence free of cost to her with all necessary amenities to make her stay habitable: Provided that where the husband owns more than one residential premises, the abandoned wife shall have the option to choose any of such premises for her residence: Provided further that the husband and his other relatives shall, as far as practicable, have no right to access to such portion of residence or such residential premises, as the case may be.

( 2 ) The right of the husband to sell or in any way dispose of any property in which his abandoned wife is living by virtue of sub-section ( 1 ) shall remain suspended till, on a petition by either party, a decree is made under section 13 or 13B or till the expiry of one year from the restitution of conjugal rights of the abandoned wife under section 9 or otherwise.”.

4. In section 28, after clause ( 2 ), the following clause shall be inserted, namely:—

” (2A ) An order made under section 24A may, on an appeal, be varied to the disadvantage of the abandoned wife only on the ground that she has not remained chaste.”.

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STATEMENT OF OBJECTS AND REASONS

The Hindu Marriage Act, 1955 provides maintenance to women during the pendency of a proceeding for judicial separation or divorce under the Act. However, there are many women who are abandoned by their husbands and they are unable to take recourse to proceedings under the Hindu Marriage Act, 1955 for various reasons. Such abandoned women have to face severe financial and social hardships. On one hand, they are deprived of financial and economic support from their husbands. On the other hand, society does not view them with the dignity and honour that is due to them. Though there are social and economic dimensions of the problem, it cannot be denied that both are intricately related. The plight of such women becomes even more pitiable when the weaknesses in the existing legal framework are misused to prevent institution of a proceeding under the Hindu Marriage Act, 1955 to thwart any attempt to provide maintenance to them. In this way, they are unable to either obtain maintenance from their husbands or get the matrimonial relationship terminated.

2. In order to provide relief to women who have been abandoned by their husbands, the Bill proposes to amend the Hindu Marriage Act, 1955 to provide for:—

( a ) provision of such mandatory maintenance to abandoned wife as would enable her to sustain a standard of living commensurate with the husband’s income and property. For the purposes of the Bill, a woman shall be deemed to have been abandoned by her husband if the husband has severed ties with her or has failed to provide such support to her as, according to the customs and social practice, is expected to be provided by a husband to his wife, for a continuous period of not less than one year;

( b ) securing the payment of the amount of maintenance in case of default by the husband by creating a charge on the income and, if necessary, also on the assets of the husband;

( c ) ensuring right of the abandoned wife to reside at the residence of her husband or at any other residential premises owned by him; and

( d ) suspension of the right of the husband to dispose of or part with any interest in any property in which the abandoned wife has a right to residence.

3. The Bill seeks to achieve the above objects.

NEW D ELHI ; BHARTRUHARI MAHTAB June 26, 2014.

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ANNEXURE

EXTRACT FROM THE H INDU M ARRIAGE A CT, 1955 (25 OF 1955)

* * * * * * *

3. In this Act, unless the context otherwise requires,— ( a ) the expressions “custom”and “usage”signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

* * * * * * *

24. Where in any proceeding under this 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 and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceedings and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

* * * * * * *

28.( 1 )* * * * * * *

( 2 ) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section

(3 ), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

LOK SABHA

————
A BILL further to amend the Hindu Marriage Act, 1955
————

( Shri Bhartruhari Mahtab, M.P. )

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

after ANTIRAPE underpants, its anti rape bra now !! The bra can deliver a 3,800-volt zap when woman wants !!

After Anti Rape underpaints, it electric anti-rape bra now !!!

Indian engineers design electric anti-rape bra

A group of engineers in India have designed an electric bra as a rape defense system. The lingerie – capable of causing severe burns – is called Society Harnessing Equipment (SHE).

New Delhi Indien Elektrik BH

The horrific gang-rape and murder of a medical student in New Delhi in December 2012 caused a crisis in India. People turned out in the tens of thousands across the country to voice their shock, and lawmakers finally passed stringent new anti-rape legislation. It was also a tipping point for 22-year-old engineering student Manisha Mohan – so decided to invent an unusual new defense system – an electric bra.

Along with two fellow students, Manisha conducted surveys and worked on several models before coming up with a working prototype of the lingerie that bites back. "I started working with people who were related to electronics, brainstormed and started evolving it," she told DW. "It took it to another level when we got a lot of recognition worldwide … we got a lot of feedback."

SHE-power

The engineer is putting the final touches to the lingerie, called Society Harnessing Equipment (SHE) before it becomes commercially available. She won’t saying when exactly it will enter the market, but it is believed to be very soon.

New Delhi Indien Elektrik BH

The bra can deliver a 3,800-volt zap

The bra contains a pressure sensor connected to an electric circuit that can generate a serious shock – 3,800 kilo-volts, to be exact – severe enough to burn a potential rapist. The moment its pressure sensors get activated, a built-in GPS also alerts the police.

"The bra is equipped with electronic equipment inside a pocket with a bi-layer fabric," she said. "The pocket insulates the woman and is water-proofed… so we are trying to incorporate all the electronics inside it with pressure sensors that sense the amount of pressure over the woman’s bosom."

The technology looks simple. The pressure sensor has been calibrated for squeeze, pinch and grab – and the force applied in a simple hug does not activate the device. There is also a switch so the woman can put it on by herself when in a dangerous location.

Safe – and comfortable

Those who have worn the bra say it is comfortable, and the feedback has generally been good. "I think the bra is going to be extremely helpful because both women and girls will be able to roam around more confidently in the big cities during odd hours," Revathi, a New Delhi college student, told DW.

Manisha also thinks the bra will be comfortable. "Since it is going to be paper-like and most of garments worn by women are padded, I don’t think it is going to be that difficult for a woman to wear," she said. Manisha has been selected for the prestigious Innovation Scholars In-Residence, a 20-day program hosted by Indian President Pranab Mukherjee at the presidential palace. It’s a program that allows innovators to showcase their talents.

New Delhi Indien Elektrik BH

Manisha says the bra is both safe and comfortable

The commercial release of the lingerie could not have come at a more appropriate time, with reports of crimes against women in India – including rape, murder, abduction, and molestation – increased by over 25 percent in 2013 compared to the previous year.

The latest national crime figures say 309,546 crimes against women were reported to the police last year, compared to 244,270 in 2012. The bra may not actually drive down sexual attacks against women in India’s rural areas, where a majority of crimes take place, but this invention is still welcome as a safety shield.

source :
http://www.dw.de/

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Wife tries DV after mutual divorce &delay ! LOOSES @ SC. SC supports 1yr timelimit for DV

"……24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508……"

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Supreme Court of India

Inderjit Singh Grewal vs State Of Punjab & Anr on 23 August, 2011

Author: . B Chauhan

Bench: P. Sathasivam, B.S. Chauhan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1635 of 2011

(Arising out of SLP(Crl.) No. 7787 of 2010)

Inderjit Singh Grewal …Appellant Versus

State of Punjab & Anr. …Respondents J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaint before the competent court to initiate criminal proceedings against her husband alleging that they had obtained decree of divorce by playing fraud upon the court without realising that in such a fact-situation she herself would be an accomplice in the crime and equally responsible for the offence. More so, the appeal raises a substantial question of law as to whether the judgment and decree of a competent Civil Court can be declared null and void in collateral proceedings, that too, criminal proceedings.

3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O&M) passed by the High Court of Punjab & Haryana at Chandigarh, by which the High Court has dismissed the application filed by the appellant under Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.’) for quashing the complaint No. 87/02/09 dated 12.6.2009 filed by respondent no. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called the `Act 2005′).

4. Facts and circumstances giving rise to present case are as under:

A. That the appellant and respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could not pull on well together because of temperamental differences and decided to get divorce and, therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955′) for dissolution of marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the issue.

B. The parties again appeared before the court on 20.3.2008 on second motion and their statements were recorded and both of them affirmed that it was not possible for them to live together and, therefore, the learned District Judge, Ludhiana vide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.

C. Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorce obtained by them was a sham transaction. Even after getting divorce, both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry. The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to the effect that the parties had been living separately after divorce and, no case was made out against the present appellant. However, he suggested to seek legal opinion in the matter.

D. Accordingly, legal opinion dated 2.6.2009 was sought, wherein it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent no. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant.

E. Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrieved of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.

F. In the meanwhile, respondent no. 2 filed Civil Suit on 17.7.2009 in the court of Civil Judge (Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008, i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is still pending.

G. Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.

H. Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of the Indian Penal Code, 1860 (hereinafter called `IPC’) against the appellant and his mother and sister.

I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application filed by the appellant. Hence, this appeal.

5. Shri Ranjit Kumar, learned senior counsel appearing for the appellant has submitted that the High Court erred in rejecting the application of the appellant under Section 482 Cr.P.C., as none of the reliefs claimed by the respondent no.2 could be entertained by the criminal court while dealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could not take cognizance thereof. The complaint has been filed because of malice in order to extract money from the appellant. More so, the plea of fraud alleged by the respondent no.2 in the complaint for obtaining the decree of divorce before the Civil Court as per her own version, succinctly reveals that she herself had been a party to this fraud. The High Court failed to appreciate as to what extent her version could be accepted as she herself being the accomplice in the said offence of fraud committed upon the court. Even if the allegations made therein are true, she is equally liable for punishment under Section 107 IPC. More so, the reliefs claimed by the respondent no. 2 in the civil suit for declaring the decree of divorce as null and void and in another suit for getting the custody of the child referred to hereinabove, would meet her requirements. Thus, the appeal deserves to be allowed.

6. On the contrary, Shri Manoj Swarup, learned counsel appearing for the respondent no.2 has vehemently opposed the appeal contending that decree of divorce is a nullity as it has been obtained by fraud. The relationship of husband and wife between the appellant and respondent no.2 still subsists and thus, complaint is maintainable. The court has to take the complaint on its face value and the allegations made in the complaint require adjudication on facts. The issue of limitation etc. can be examined by the Magistrate Court itself. The appeal lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by learned counsel for the parties and perused the record.

8. Before we proceed to determine the case on merit, it is desirable to highlight the admitted facts of the case:

I. Appellant and respondent no.2 are highly qualified persons. Both of them are employed and economically independent. Appellant is an Assistant Professor and respondent no. 2 is a Lecturer.
The appellant is Ph.D and respondent no.2 has registered herself for Ph.D. They are competent to understand the complications of law and other facts prevailing in the case.

II. Both of them got married in year 1998 and had been blessed with a son in year 1999. There was no complaint by respondent no.2 against the appellant of any cruelty, demand of dowry etc. before getting the decree of divorce dated 20.3.2008 by mutual consent.

III. The decree of divorce has been obtained under Section 13-B of the Act 1955. Respondent no.2 was examined by the court on first motion on 19.9.2007 wherein she stated, inter-alia, as under: "We are living separately from each other since 23.9.2005. Now there is no chance of our living together as husband and wife."

IV. Respondent no.2 was examined in the second motion by the learned District Judge, Ludhiana on 20.3.2008, wherein she stated as under: "My statement was recorded on 19.9.2007 alongwith the statement of my husband Inderjit Singh Grewal. Six months time was given to us to ponder over the matter but we could not reconcile. One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been handed over by me to my husband Inderjit Singh Grewal and he shall look after the welfare of the said child. We have settled all our disputes regarding dowry articles and past and future permanent alimony. Now there is nothing left out against each other. A draft of Rs.3,00,000/- ….has been received by me towards permanent alimony and maintenance and in lieu of dowry articles left by me in the matrimonial home. We are living separately since 23.9.2005. After that there is no co-habitation between us. There is no scope of our living together as husband and wife. I will remain bound by the terms and conditions as enshrined in the petition. I have left with no claim against petitioner No.1. Our marriage may be dissolved by passing a decree of divorce by mutual consent."

V. The learned District Judge, Ludhiana granted the decree of divorce dated 20.3.2008 observing as under:

"They have settled all their disputes regarding dowry articles, past and future alimony….They are living separately from each other since 23.9.2005…The petitioners have not been able to reconcile….The petitioners have settled all their disputes regarding dowry, stridhan and past and future permanent alimony….The custody of the son of the petitioners is handed over to Inderjit Singh Grewal by Amandeep Kaur. The petition is allowed. The marriage between the petitioners is henceforth declared dissolved…."

VI. The complaint dated 4.5.2009 filed by respondent no. 2 before the Senior Superintendent of Police, Ludhiana was investigated by the Superintendent of Police, City-I, Ludhiana. He recorded statements of several neighbours and maid servant working in appellant’s house and submitted the report to the effect that as the husband and wife could not live together, they obtained the decree of divorce by mutual consent. However, the complainant Amandeep Kaur had alleged that she was induced by her husband to get divorce for settling in the United States and it was his intention to kick her out from the house. However, the husband stated that she had been paid Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash for which the husband Inderjit Singh Grewal had entered into an agreement to sell his ancestral property. The complainant had not been living with the appellant after the decree of divorce and they were not having physical relationship with each other. It was further suggested in the report that legal opinion may also be taken.

VII. Legal opinion dated 2.6.2009 had been to the effect that the parties had taken divorce by mutual consent due to their differences. The allegation to the extent that they had been living together even after divorce were false and baseless and had been labelled only to harass the appellant.

9. The instant case is required to be considered in the aforesaid factual backdrop.

So far as the complaint dated 12.6.2009 is concerned, there had been allegation of mis-behaviour against the appellant during the period of year 2005. Respondent no. 2 alleged that during that period she had not been treated well by the appellant, thus, she had to take shelter in the house of her parents; all her belongings including the dowry articles were kept by the appellant and his parents. She has further given details how both of them have obtained decree of divorce by mutual consent as they wanted to settle in United States and therefore, they had decided to get divorce on paper so that the appellant may go to U.S.A. and get American citizenship by negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry the complainant. She further alleged that even after decree of divorce she had been living with the appellant till 7.2.2009 and continued co-habitation with him. They had visited several places together during this period. The child had been forcibly snatched from her by the appellant. Therefore, she was entitled to the custody of the minor child along with other reliefs.

10. The question does arise as to whether reliefs sought in the complaint can be granted by the criminal court so long as the judgment and decree of the Civil Court dated 20.3.2008 subsists. Respondent no.2 has prayed as under: "It is therefore prayed that the respondent no.1 be directed to hand over the custody of the minor child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent no.1 be directed to pay to her a sum of Rs.15,000/- per month by way of rent of the premises to be hired by her at Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to her all the dowry articles as detailed in Annexure A to C or in the alternative they be directed to pay to her a sum of Rs.22,95,000/- as the price of the dowry articles. Affidavit attached."

Thus, the reliefs sought have been threefolds:

(a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles.

11. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law". It is a trite that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. "Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine". An act of fraud on court is always viewed seriously. (Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383)

12. However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court.

The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and Tayabbhai M. 1

Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).

13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.

14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-

"It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof." (Emphasis added)

Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.

From the above, it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings.

15. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime.

A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim "allegans suam turpetudinem non est audiendus". No one should have an advantage from his own wrong (commondum ex injuria sua memo habere debet). No action arises from an immoral cause (ex turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuria). The statements/allegations made by the respondent no.2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief. 1

16. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. (Vide: Faguna Kanta Nath v. The State of Assam, AIR 1959 SC 673; and Jamuna Singh v. State of Bihar AIR 1967 SC 553). If more than one person combining both in intent and act, commit an offence jointly, each is guilty, as if he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43 IPC defines illegality. Making false statement on oath before the court is an offence under Section 191 IPC and punishable under Section 193 IPC.

17. While granting the decree of divorce, the statement of respondent no.2 had been recorded in the first as well as in the second motion as mentioned hereinabove. Period of more than 6 months was given to her to think over the issue. However, she made a similar statement in the second motion as well.

18. As per the statutory requirement, the purpose of second motion after a period of six months is that parties may make further efforts for reconciliation in order to save their marriage. There is also obligation on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bring about a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be "much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire". The court should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation or one party or the other says that there is no possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.

19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this Court held that mere filing the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is 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 court must be satisfied about the bona fides and the consent of the parties for the reason that court gets jurisdiction to make a decree for divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be unilateral prior to second motion. The Court further observed:

"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 necesssary 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." (Emphasis added)

20. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637).

21. Respondent no.2, who did not change her stand in the second motion and obtained a sham decree of divorce as alleged by her asked the criminal court to sit in appeal against the judgment and decree of the competent Civil Court. The complaint was filed before the Magistrate, Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of another district. Therefore, it is beyond our imagination as under what circumstances a subordinate criminal court can sit in appeal against the judgment and order of the superior Civil Court, having a different territorial jurisdiction.

22. In the facts and circumstances of the case, the submission made on behalf of respondent no.2 that the judgment and decree of a Civil Court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by the respondent no.2 to declare the said judgment and decree dated 20.3.2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the Civil Court subsists. On the similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the Act 2005 is maintainable, is not worth acceptance at this stage.

23. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this Court considered the expression "domestic relationship" under Section 2(f) of the Act 2005 placing reliance on earlier judgment in Savitaben Somabhai Bhatiya v. State of Gujarat & Ors., (2005) 3 SCC 636 and held that relationship "in the nature of marriage" is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.

The said judgments are distinguishable on facts as those cases relate to live-in relationship without marriage. In the instant case, the parties got married and the decree of Civil Court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court.

24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.

25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same.

26. The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. Complaint No. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.

Before parting with the case, we clarify that respondent no.2 shall be entitled to continue with her other cases and the court concerned may proceed in accordance with law without being influenced by the observations made herein. The said observations have been made only to decide the application under Section 482 Cr.P.C. filed by the appellant.

………………………………….J.

(P. SATHASIVAM)

…………………………………..J.

(Dr. B.S. CHAUHAN)

New Delhi

August 23, 2011

2

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Wife NOT explaining 172days delay filing revision looses revision right in DVcase!! Wife sought only residence order & obtained same in lower court !!

Madras High Court

M.Meenakshi vs G.A.Sreenivasan Alias … on 14 February, 2013

THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14/02/2013

CORAM

THE HONOURABLE Mr.JUSTICE M.VENUGOPAL

Crl.R.C.(MD)No.410 of 2012

M.Meenakshi … Petitioner

V.

G.A.Sreenivasan alias Manikandan… Respondent

Prayer

Criminal Revision Petition filed under Section 397 r/w 401 of the Code of Criminal Procedure, 1973 praying to call for the entire records relating to the impugned order dated 26.06.2012 made in Crl.M.P.No.3788 of 2012 in Unnumbered C.A…. of 2011 on the file of the Learned Principal Sessions Judge, Madurai and set aside the same by allowing the present Criminal Revision Petition and consequently, direct the Learned Principal Sessions Judge, Madurai to number the main Criminal Appeal and dispose the same on merits and in accordance with law.

!For Petitioner … Mr.S.Veerasamy

^For Respondent … Mr.C.Godwin

:ORDER

The Petitioner (Appellant in unnumbered Appeal)/Petitioner has focussed the instant Criminal Revision Petition as against the order dated 26.06.2012 in Cr.M.P.No.3788 of 2011 in Unnumbered C.A. … of 2011 passed by the Learned Principal Sessions Judge, Madurai.

2.The Learned Principal Sessions Judge, Madurai, while passing the impugned order in Cr.M.P.No.3788 of 2011 in unnumbered C.A.No. of 2011, has, inter alia, observed that ‘… As per Section 5 of Limitation every day’s delay should be properly explained. Further, even as per the averment of the petition, on the memo filed by the petitioner for the relief u/s. 19 of the Act no order has been passed by the court below. Hence it is not conducive to condone the delay of 172 days in filing the appeal. No proper reason has been adduced for such inordinate delay. This court is not inclined to allow this application etc.’ and consequently, dismissed the petition.

3.The Learned Counsel for the Petitioner/Appellant (in unnumbered C.A.)/Petitioner submits that the Learned Principal Sessions Judge, Madurai has erroneously dismissed Cr.M.P.No.3788 of 2011 (filed by the Revision Petitioner) and in fact, the delay condonation petition should have been allowed and resultantly, the Learned Principal Sessions Judge, Madurai should have heard the main Appeal itself on merits (after numbering the same) to prevent an aberration of justice and to promote substantial cause of justice.

4.The Learned Counsel for the Petitioner urges before this Court that the trial Court has not followed the procedures and has allowed the prayer in respect of ‘Residence Injunction’, but negatived the relief sought for under Section 19 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) without mentioning any reasons. Furthermore, the Petitioner has filed a memo requesting the trial Court to proceed with the complaint on merits.

5.According to the Petitioner, the trial Court has not passed any order especially after hearing the arguments. As such, the Petitioner has been under the bona fide impression that the trial Court may pass an order in respect of the other reliefs which have not been granted, but no order has been passed. Under these circumstances, the delay has occurred in regard to the filing of the Appeal as against the order dated 15.03.2011 in Cr.M.P.No.5794 of 2010 (filed by the Revision Petitioner) in allowing the petition by issuing direction under Section 18 of the Act that the Respondent shall not restrain the Petitioner in any way from residing in the address given in the petition.

6.At this juncture, it is useful to refer to the averments made by the Petitioner (Revision Petitioner) in Cr.M.P.No.3788 of 2011 on the file of the Learned Principal Sessions Judge, Madurai wherein it is, among other things, mentioned that the Petitioner sought the reliefs in the main petition Cr.M.P.No.5794 of 2010 on the file of the trial Court under Section 12, 18 and 19 of the Protection of Women From Domestic Violence Act, 2005.

7.Further, the main plea of the Petitioner is that the trial Court has not followed the procedure and allowed the petition under Section 18 of the Act, by granting the relief of residence injunction and dismissed the relief under Section 19 of the Act, without specifying on what ground the petition has been dismissed. Also, that the Petitioner has filed a petition to proceed with the case in accordance with law.

8.It is not in dispute that the Petitioner has filed the Appeal before the Learned Principal Sessions Judge (unnumbered one) as against the order dated 15.03.2011 in Cr.M.P.No.5794 of 2010 passed by the trial Court, with a delay of 172 days.

9.The grievance of the Petitioner is that the trial Court has received the petition/memo and heard her counsel. But till date, no orders have been passed in the memo.

10.The stand of the Petitioner is repelled by the Respondent side to the effect that under the Protection of Women From Domestic Violence Act, 2005 as per Section 29 is an Appeal has to be preferred as against the order dated 15.03.2011 in Cr.M.P.No.5794 of 2010 within 30 days from the date on which the order made by the Magistrate is served on the aggrieved person or the Respondent. In fact, the Petitioner in Crl.M.P.No.5794 of 2010 in Form II [under Rule 6(1)] of Protection of Women From Domestic Violence Act, 2005 has sought orders under Section 18 only in respect of ‘Prohibiting respondent from entering into the house of the Petitioner’. As a matter of fact, she has not sought the relief of (a) Protection order; (b)Prohibiting acts of domestic Violence; and Prohibiting the respondent from any form of communication with the Petitioner (under Section 18 of the Act) and in reality, she has scored out these reliefs in Form II annexed with the petition in Cr.M.P.No.5794 of 2010.

11.According to the Learned Counsel for the Petitioner, the Petitioner has scored out the reliefs: (1) An order restraining respondent from dispossessing or throwing out from the house of the petitioner; Entering the portion of the house hold in which the petitioner reside; (2) An order directing the respondent to and remove himself from the house under Section 19 of the Act relating to the Residence Order. In fact, she has also not event sought the other reliefs like monetary relief, custody order and the compensation order under Sections 20 to 22 of the Act. In regard to these reliefs, though Form II under Rule 6(1) annexed with the petition although the same are in printed letters they have not been scored out by the Petitioner.

12.This Court, on perusal of the orders in Cr.M.P.No.5794 of 2010 dated 15.03.2011, is of the considered view that the trial Court, after contest (between the parties), has, ultimately in paragraph 3, granted the relief under Section 18 of the Act in favour of the Petitioner by directing the Respondent that he shall not cause any hindrance/obstruction in regard to the Petitioner residing in the petition mentioned house and consequently, allowed the petition. Therefore, it is quite evident that the trial Court has not passed orders in regard to any of the reliefs under Section 19 of the Act, inasmuch as the Petitioner has not sought any one of them [as seen from the Form II under Rule 6(1) of the Protection of Women from Domestic Violence Act, 2005 which has been enclosed with Cr.M.P.No.5794 of 2010 on the file of trial Court.

13.When that being the factual position, i.e. When the Petitioner has only sought the relief under Section 18 in regard to the passing of the order by the trial Court prohibiting the Respondent from entering into the house of the Petitioner and in fact, when the trial Court has passed orders on 15.03.2011 in Cr.M.P.No.5794 of 2010 by granting only the residence injunction under Section 18 of the Act, then, in strict sense, the Appeal (unnumbered one) sought to be preferred by the Petitioner before the Principal Sessions Judge, Madurai is not per se maintainable in law.

14.A cursory perusal of the index papers of the trial Court submitted by it in Cr.M.P.No.5794 of 2010 shows that in the Notes Paper (docket), it is stated on 26.11.2010 the petitioner has been present and the matter has been adjourned to 10.12.2010 for obtaining the report of the officer. On 10.12.2010, it is stated as 'petitioner present'. Await report. Call on 24.12.2010. On 24.12.2010 it is recorded as petitioner present and await report. The matter has been adjourned to 07.01.2011. On 07.01.2011 on account of absence of the petitioner, the petition has been filed and for awaiting report, the matter has been adjourned to 21.01.2011. On 21.01.2011, Petitioner absent and for awaiting report, the matter has been adjourned to 11.2.2011. On 11.2.2011, the petitioner has been present and for awaiting report, the matter has been adjourned to 25.02.2011. On 25.02.2011, the petitioner has been present and that the matter has been adjourned to 04.03.2011 for awaiting report. On 04.03.2011, the petitioner has been present and the P.O.'s Report has been received and the matter has been posted for orders on 09.03.2011. On 09.03.2011 the petitioner has been present but orders have not been made ready and therefore, the matter has been adjourned to 10.03.2011 for passing orders. On 10.03.2011, the petitioner has been present and suo motu the matter has been reopened for clarification for the relief sought and the matter has been adjourned to 11.03.2011. On 11.03.2011 the clarification has been heard on the side of the petitioner and the matter has been posted to 15.03.2011 for passing orders. On 15.03.2011 orders have been passed.

15.It is to be pointed out that when a Court of Law deals with a condonation of delay petition, when sufficient cause is shown at the appellate stage, the delay in issue ought to be condoned. In fact, at the appellate stage, it is not a question of jurisdiction but a mixed question of law and fact. Under Section 5 of the Limitation Act, 1963, it is for the Petitioner/Applicant/Appellant to satisfy the concerned Court that he has sufficient cause which prevented him from filing the Appeal /Revision in time.

16.Indeed, the condonation of delay is not an empty formality as it vests a right in the opposite party and an order in favour of a party creates a valuable accrued right in his favour and as such, the person seeking condonation of delay is to make out a case for the said purpose, in the considered opinion of this Court. Where no cause has at all been shown, i.e. where no explanation has been given for filing the proceeding out of time, there arises no occasion for considering the sufficiency or otherwise of the reasons for that fact, and there cannot be any room for the exercise of the discretion. If the condition is satisfied, then, the Court of Law gets a discretionary power to grant or refuse the prayer for extension of time. Section 5 of Limitation Act, has to receive a legal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.

17.Be that as it may, in the instant case on hand, in main Cr.M.P.No.5794 of 2010 [Filed under Section 12 of the Protection of Women From Domestic Violence Act] the Petitioner has although stated in the petition that the Hon’ble Court may take cognizance of the petition and pass all and suitable orders and necessary in the circumstances of the case has specified the following:

"Order required U/s.18 protection order

(a) 18(a) prohibit the respondent from committing any act of domestic violence (b)Prohibit the respondent from entering into house of the petitioner (c)Prohibit the respondent from attempting to communicate in any form, whatsoever, with the petitioner including personal, oral or written or electronic or telephonic Contact.

Order required under Section 19 Residence orders

19(a)Restraining the respondent from dispossessing or any in any other manner disturbing the possession of the petitioner from the house.

(b)directing the respondent to remove him and his family from the house of the petitioner.

(c)Restraining the respondent or any of his relatives from entering any portion of the house hold in which the petitioner resides."

18.At the risk of repetition, this Court once again pertinently points out that in Form II under Rule 6(1) of the Protection of Women from Domestic Violence Rules 2006, the Petitioner has only sought one relief viz., orders under Section 18 of the Act ‘prohibiting respondent from entering into the house of the petitioner and has struck off the other reliefs sought for either under Section 18 of the Act or under Section 19 of the Act. As such, this Court is of the view that the trial Court has passed orders granting the relief of residence injunction under Section 18 of the Act and allowed the Cr.M.P.No.5794 of 2010 dated 15.03.2011. In effect, the Petitioner has not sought any relief or reliefs under Section 19 of the Act. Therefore, there is no question of Petitioner taking a plea that the trial Court has only partly granted the relief under Section 18 of the Act and dismissed the relief/reliefs under Section 19 of the Act. In strict sense, the Petitioner is not the ‘Aggrieved Person’ in regard to the orders passed in Crl.M.P.No.5794 of 2010 dated 15.03.2011.

19.It is to be pointed out that when the trial Court has passed orders in Cr.M.P.No.5794 of 2010 dated 15.03.2011, then, filing of memo and awaiting orders from Court do not merit acceptance.

20.It is to be remembered that after passing of the order by a Competent Court in a Criminal Miscellaneous Petition, then, the concerned Court become ‘Functus Officio’ and only a clerical, incidental or accidental or mathematical error alone can be corrected as provided under Section 465 of Criminal Procedure Code, in the considered opinion of this Court.

21.In any event, the petition for condonation of delay filed by the Petitioner in Cr.M.P.No.3788 of 2011 in unnumbered C.A. of 2011 on the file of Learned Principal Sessions Judge, Madurai is unwarranted and not maintainable in law. Even otherwise the Petitioner has not shown sufficient/good cause in explaining the delay of 172 days that has occurred in regard to the filing of the unnumbered Appeal. Looking at from any angle, the Criminal Revision Petition sans merits.

22.In the result, Criminal Revision Petition is dismissed. It is made clear by this Court that if the Petitioner is desirous of seeking any other relief/reliefs envisaged under Section 18 of the Act or under Section 19 of the Act, it is open to him to file a complete and comprehensive separate petition seeking necessary/appropriate reliefs as per relevant provisions of the Protection of Women from Domestic Violence Act, 2005. It is made clear that the dismissal of the present Revision Petition will not preclude the Petitioner from seeking other reliefs envisaged under the Protection of Women from Domestic Violence Act, 2005 in the manner known to law and in accordance with law, refer the Competent Forum.

Sgl

To

The Principal Sessions Judge,
Madurai.

*****************

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Magistrate can pass ad interim order without notice to respondents in a case, if facts & circumstances warrants such ex parte order. Kerala HC gem outlining procedure to be followed by Magistrates

Kerala HC gem outlining procedure to be followed by Magistrates in DV cases, and when they can pass ex parte orders !!
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* Magistrate can pass ad interim order without notice to respondents in a case, if facts & circumstances warrants such ex parte order.
* Service of notice on an application filed under section 12 or interim relief under section 23, must be in the manner provided under the Code of Civil Procedure.
* "….from several orders challenged before this court (HC) that indiscriminate interim ex parte orders are passed under section 23(2) of the Act compelling parties to approach Appellate court, by recourse to section 29 of the Act by way of appeal. While passing ex parte ad interim orders, Magistrates shall take the necessary care and caution…." !!
* Copy of plaint , application by wife to be served along with notice when notice is served. Uniform procedure to be followed by magistrates.

*****************************disclaimer*****************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Kerala High Court

Dr. Preceline George @ Antony … vs State Of Kerala Represented By The … on 7 January, 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 30948 of 2009(Q)

1. DR. PRECELINE GEORGE @ ANTONY PRECELINE … Petitioner

Vs

1. STATE OF KERALA REPRESENTED BY THE CHIEF … Respondent

2. BENCY.N.L, (TREESA BENCY) AGED 26 YEARS,

For Petitioner :SRI.SANTHAN V.NAIR

For Respondent : No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :07/01/2010

O R D E R

M.SASIDHARAN NAMBIAR,J.

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W.P.(C)No. 30948 OF 2009

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Dated this the 7th day of January,2010 JUDGMENT

What is the procedure to be adopted by a Magistrate while dealing with an application filed under section 12 of the Protection of Women from Domestic Violence Act,2005? Can an ex parte interim order without notice could be passed under section 23(2) without notice in favour of the aggrieved person? Whether along with a notice issued in an application filed under section 12 or 23(2), copy of the application is to be sent for service on the respondent? These are the questions to be decided in the petition.

2. Petitioner is the first respondent and second respondent the applicant in M.C.62/2009 on the file of Judicial First Class Magistrate Court-I, Ernakulam. Ext.P2 ex parte order was passed under section 23(2) of the Protection of Women From Domestic Violence Act (hereinafter referred to as the Act)without notice to the petitioner directing him not to enter into the compound of the house of the parents of the second respondent wife and also directing him to pay Rs.2500/- per month as an interim maintenance to the second respondent until further orders. Notice was issued to the respondent by Ext.P1 order dated 21.10.2009 in Form No.32 of Code of Criminal Procedure, the Form prescribed for issuing notice to the complainant under section 173 or 202 after making necessary alterations to appear on 31.10.2009. This petition is filed under section 482 of Code of Criminal Procedure to quash Ext.P2 order. Learned counsel submitted that as the petitioner is not liable to pay the amount as provided under Ext.P2 and is aggrieved by the order, he has already filed an appeal before the Sessions Court, Ernakulam challenging Ext.P2 order as provided under section 29 of the Act.

3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.

4. In view of the order to be passed in this petition, it is not necessary to issue notice to the second respondent, as Ext.P2 order is not to be varied or set aside in this petition, in view of the pendency of statutory appeal against Ext.P2 before the Sessions Court.

5. Learned counsel appearing for the petitioner submitted that the subordinate courts dealing with the petitions filed under section 12 are not following the procedure provided under the Act and the Rules. It is submitted that even if an interim order is passed under section 23(2) of the Act, copy of the application filed under section 12 or application filed for interim order under section 23 are not being sent along with the order or notice, so that respondents to whom the notice is served cannot properly defend the case by appearing before the learned Magistrate. It is pointed out that Magistrates should be directed to serve copies of the petition along with the notice and interim orders. It is also pointed out that though the Rules provide Form VII notice to be served on the respondent, notices are not being issued in that Form and as a result on service of the order or notice, respondent cannot realise in what application the order is passed. In the light of the said submissions, the Registrar (Subordinate Judiciary) was directed to call for reports from all the Chief Judicial Magistrate and to submit a report whether the courts are following the procedure provided under the Act and the Rules.

6. The report submitted by the Registrar, based on the reports obtained from the Chief Judicial Magistrates, discloses that there is no uniform practice being followed by the various courts of the State trying applications filed under section 12 of the Act. It is also seen that in some courts, copies of the petition filed under section 12 are being forwarded along with the notice to be served on the respondent while in some courts it is not being done. So also in some courts notices are being issued in Form VII and in some other courts notices are being served without any prescribed Form. In such circumstances, it is necessary to give necessary directions to the trial courts to be followed in trial of applications under the Act so as to avoid complications and difficulties to the litigants.

7. Similarly it is submitted that interim orders are indiscriminately passed under section 23 (2) of the Act ex parte, without issuing notice to the respondent, directing him to pay interim maintenance without applying the mind and without hearing the respondents and as a consequence parties are being compelled to file appeals which could be avoided if the order is passed after notice is served on the respondents. Learned counsel pointed out that though sub section (2) of Section 23 enables the Magistrate to pass even an ex parte order in favour of the aggrieved person under sections 18,19,20,21 or 22, sub rule (3) of Rule 12 provides that interim relief is to be granted only after service of notice and therefore an order under section 23(2) can be passed only after service of notice. This aspect is also to be considered in detail.

8. Section 12 of the Act provides the application to be filed before the Magistrate in such form and contain such particulars as may be prescribed for one or more reliefs provided under the Act. Sub section (4) of Section 12 provides that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application in court. Section 13 deals with the service of notice.

Section 13 reads:-

"Service of notice-(1)A notice of the date of hearing
fixed under Section 12 shall be given by the
Magistrate to the Protection Officer, who shall get it
served by such means as may be prescribed on the
respondent, and on any other person, as directed by
the Magistrate within a maximum period of two days or
such further reasonable time as may be allowed by the
Magistrate from the date of its receipt."

Section 28 provides the procedure to be followed by the Magistrate under the Act. Under sub section (1), all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure. Sub section (2) provides that nothing in sub section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub section (2) of Section 23.

9. Section 23 provides the power to grant interim and ex parte orders. Under sub section (1) in any proceeding before him under the Act, the Magistrate may pass such interim order as he deems just and proper. Sub section (2) enables the Magistrate to pass an ex parte order.

Sub section (2) reads:-

"(2) If the Magistrate is satisfied that an
application prima facie discloses that the respondent
is committing, or has committed an act of domestic
violence or that there is a likelihood that the
respondent may commit an act of domestic violence, he
may grant an ex parte order on the basis of the
affidavit in such form, as may be prescribed, of the
aggrieved person under section 18, Section 19, Section
20, Section 21 or, as the case may be, Section 22
against the respondent."

Rule 12 of the Protection of Women from Domestic Violence Rules, 2006 provides means of service of notices. Under sub rule(1) notices for appearance in respect of the proceedings under the Act shall contain the names of person alleged to have committed domestic violence, the nature of domestic violence and such other details which may facilitate the identification of persons concerned. Sub rule (2) deals with the manner of service of notices.

Sub rule (2) reads:-

"(2) The service of notices shall be made in the
following manner, namely:**

(a) The notices in respect of the proceedings under
the Act shall be served by the Protection Officer or
any other person directed by him to serve the notice,
on behalf of the Protection Officer, at the address
where the respondent is stated to be ordinarily
residing in India by the complainant or aggrieved
person or where the respondent is stated to be
gainfully employed by the complainant or aggrieved
person, as the case may be.

(b) The notice shall be delivered to any person in
charge of such place at the moment and in case of such
delivery not being possible it shall be pasted at a
conspicuous place on the premises.

(c) For serving the notices Section 13 or any other
provisions of the Act, the provisions under Order V of
the Civil Procedure Code, 1908 (5 of 1908) or the
provisions under Chapter VI of the Code of Criminal
Procedure, 1973(2 of 1974) as far as practicable may
be adopted.

(d) Any order passed for such service of notices
shall entail the same consequences,as an order passed
under Order V of the Civil Procedure Code, 1908, or
Chapter VI of the Code of Criminal Procedure, 1973
respectively, depending upon the procedure found
efficacious for making an order for such service under
section 13 or any other provision of the Act and in
addition to the procedure prescribed under the Order V
or Chapter VI, the Court may direct any other steps
necessary with a view to expediting the proceedings to
adhere to the time limit provided in the Act."

Sub rule (3) provides that on a statement, on the date fixed for appearance of the respondent, or a report of the person authorised to serve the notices under the Act, that service has been effected, appropriate orders shall be passed by the Court on any pending application for interim relief, after hearing the complainant or the respondent, or both. Under Sub rule (4), when a protection order is passed restraining the respondent from entering the shared household or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered, as waiving the restraint imposed on the respondent,by the order of the court unless such protection order is duly modified in accordance with the provisions of sub section (2) of Section 25.

10. Section 25 of the Act provides for duration and alteration of orders. Under sub section (1) a protection order made under Section 18 shall be in force, till the aggrieved person applies for discharge. Sub section (2) provides that on receipt of an application from the aggrieved person or the respondent, if the magistrate is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under the Act, for reasons to be recorded in writing he may pass such order as he may deem appropriate.

11. Form VII is the prescribed form of notice in the Rules for appearance under section 13(1) of the Act. Though the Form shows that it is as provided under Rule 11(1), it could only be a mistake for Rule 12(1) of the Rules.

12. Though sub rule (1) of Rule 12 does not specifically prescribe that notice is to be issued to the respondent in Form No.VII, when Rule 12(1) is read along with Form VII, it can only be taken that the notice provided under Rule 12(1) should be in Form No.VII. If so all Magistrates before whom applications under section 12 of the Act are filed have to issue notices to the respondents on an application filed under section 12, in Form No.VII as prescribed under the Rules. It is pertinent to note that the Form VII notice directs the respondent to appear either personally or through a duly authorised counsel to show cause why the reliefs claimed against him shall not be granted and on the failure to appear ultimately that, court shall proceed ex parte against him. Clause (c) of sub rule (2) of Rule 12, makes it clear that for serving notices under section 13 or any other provision of the Act, the provisions of Order V of the Code of Civil Procedure or the provisions under Chapter VI of the Code of Criminal Procedure, as far as practicable may be adopted.

13. As is clear from the statement of objects and reasons, the Protection of Women from Domestic Violence Act is enacted to provide for a remedy under the civil law, which is intended to protect the women from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefore essentially the reliefs provided under the Act are civil remedies. The penal provisions are only section 31 and 33. Therefore service of notice on an application filed under section 12 or interim relief under section 23, must be in the manner provided under the Code of Civil Procedure.

14. Order V of Code of Civil Procedure provides for issue of service of summons. Sub rule (1) provides that when a suit has been duly instituted, summons may be issued to the defendant, to appear and answer the claim and to file the written statement of his defence, within thirty days from the date of service of summons on the defendant. Sub rule (2) provides that every summons shall be accompanied by a copy of the plaint. Under clause (c) of sub rule (2) of Rule 12 of the Protection of Women from Domestic Violence Rules, for serving notice under section 13 of the Act, the provisions of Order V of Code of Civil Procedure is made applicable. Necessarily it is to be taken that as provided under Rule 2 of Order V of Code of Criminal Procedure, along with the notice, copy of the application filed under section 12 is also to be served on the respondent. Similarly if an interim ex parte order is passed under section 23 (2)or a notice is issued to the respondent on a petition filed under section 23(1), along with that notice copy of the application so filed shall also be served on the respondent. Notice is to be served on the respondent, on an application filed under section 12 or a petition filed for interim order under section 23(1) of the Act, to enable the respondent to defend the claim so raised against him. If so interest of natural justice, apart from the provision of Rule 12 of the Rules, warrants that copy of the application shall be served on the respondent. As it is reported that there is no uniform practice followed by all the courts, all the Magistrates dealing with the application under the Act shall, hereafter sent a copy of the petition filed under section 12 and a copy of the petition if any filed under section 23 (1) of the Act, along with the notice and interim orders, as provided under section 13 of the Act, to be served on the respondents.

15. Then the question is regarding the power of the Magistrate to pass ex parte interim orders under section 23 of the Act, without notice to the respondents and if it could be passed, the discretion to be exercised by the Magistrate while passing the ex parte order.

16. Sub section (2) of Section 23 of the Act specifically empowers a Magistrate dealing with an application under section 12 of the Act, to pass an ex parte order granting interim relief under section 18, 19,20,21 or 22 against the respondent, in favour of an aggrieved person on the basis of an affidavit, in such Form as may be prescribed by the Rules.

17. The affidavit as provided under sub section 2 of Section 23 is to be filed as provided in Form III of the Rules. Form III though shows that it is as provided under Rule 6 (4) and 7, Rule 6 deals with the application to be filed before the Magistrate under section 12 as also the affidavit to be filed under section 23(2). Rule 7 deals with affidavit for obtaining ex parte order from the Magistrate under section 23(2) of the Act. Under Rule 7, every affidavit for obtaining ex parte order under sub section 2 of Section 23 is also to be filed in Form III. When sub section 2 of Section 23 specifically provides that the Magistrate on satisfaction of a prima facie case that respondent is committing an act of domestic violence, he may grant an ex parte order, on the basis of an affidavit of the aggrieved person in the prescribed form, it cannot be disputed that an ex parte order without notice could be passed. The Magistrate can definitely pass an ad interim order under section 23(2) without notice to the respondents, if the facts and circumstances of the case warrants such an ex parte order.

18. Though learned counsel relying on sub rule (3) of Rule 12, argued that even such an ex parte order could be passed only after service of notice on the respondents and on his failure to appear and not prior to service of notice, I cannot agree with the submission. Sub rule (3) of Rule 12 only provides that on a statement, on the date fixed for appearance of the respondent, or on a report of the person authorised to serve the notices under the Act that service has been effected, appropriate orders shall be passed by the court, on any pending application for interim relief, after hearing the complainant or the respondent, or both. That order could only be the final interim order, passed under section 23(1) and not the ad interim order passed under section 23(2) of the Act. It is absolutely clear from Form III, affidavit to be filed to get an interim relief under section 23(2) of the Act.

Paragraph 10 of Form III reads:-

"10. That the reliefs claimed in the accompanying
application are urgent in as much as the applicant
would face great financial hardship and would be
forced to live under threat of repetition/ escalation
of acts of domestic violence complained of in the
accompanying application by the respondent(s), if the
said reliefs are not granted on an ex-parte ad interim
basis."

It is thus clear that an interim ex parte order in favour of the aggrieved person and against the respondents could be passed, before notice to the respondent. But even if such an ex parte ad interim order is passed, a final order under section 23(1) is to be passed only after service of notice on the respondent. Till then it could only be an ad interim order. If the respondent fails to appear after service of notice, then a final order under section 23(1) modifying revoking,or altering the ad interim order could be passed, ex parte as provided under rule 12(3). Rule 12(3) of the Rules, is to be taken as the procedure to be followed, while passing a final order under section 23(1) and not an ad interim order to be passed under section 23(2).

19. For the reason that a Magistrate is empowered to pass ad interim order under section 23(2) ex parte, it cannot be said that Magistrate has to pass ex parte ad interim order granting reliefs under section 18,19,20,21 or 22 in all cases. It is seen from several orders challenged before this court that indiscriminate interim ex parte orders are passed under section 23(2) of the Act compelling the parties to approach the Appellate court, by recourse to section 29 of the Act by way of appeal. While passing ex parte ad interim orders, Magistrates shall take the necessary care and caution. If an interim order need be passed only after service of notice, as no urgent relief without notice need be passed, there is no justification in passing an ex parte ad interim order before serving notice on the respondent. On the other hand, if an ad interim order is to be passed immediately, and any delay is prejudicial, then sub section (2) of Section 23 enables the Magistrate to pass an ad interim order, without notice to the respondent. Even if such ad interim order is passed without service of notice, on appearance of the respondent a final interim order is to be passed under section 23(1) with or without modification. Even if the respondent does not appear on service of notice, the Magistrate shall pass an interim final order Section 23(1) ex parte, with or without modification of the ex parte ad interim order. If an ad interim order under sub section (2) of Section 23 is passed without notice to the respondents, and no opportunity is granted to the respondents after service of notice to pass the final interim relief under section 23(1) respondents will be unnecessarily compelled to file an appeal as provided under section 29. Even the relief provided under sub section (2) of Section 25 will not serve the purpose as that section would be attracted only if there is a change in the circumstances. What is to be considered while passing an order under section 23(1) is whether the aggrieved person is entitled to an interim order either under section 18, 19, 20, 21 or 22. The Magistrates shall be careful while passing ad interim orders without notice under sub section (2) of Section 23. It is made clear that even without issuing notice to the respondent in appropriate cases, ad interim order under sub section (2) could be passed. But that order is to be made absolute with or without modification, after serving notice on the respondent. If the respondent does not appear, then an ex parte order as provided under Rule 12(3) is to be be passed under section 23(1). If respondent appears and objects, after hearing the respondent, appropriate order is to be passed as provided under section 23 (1). The order passed under sub section (2) would only be of ad interim in nature.

In the light of the earlier findings the following guidelines could be laid to be followed by the trial courts dealing with the applications filed under the Act.

(i) Notice of the application filed under section 12 of the Act shall be served as provided in Section 13, complying the procedure laid down in Rule 12 of Protection of Women from Domestic Violence Rules.

(ii) The notice is to be send in Form VII as prescribed under the Rules.

(iii) The notice to be served on the respondent shall be accompanied by copy of application filed under section 12 and 23 if any.

(iv) The Magistrate can pass interim order under section 23(1) ex parte. But that ex parte order could be passed only after service of notice as provided under Rule 12(3) of the Rules.

(v) The Magistrate can pass an ex parte ad interim order without notice to the respondent, as provided under section 23(2).

(vi) In case an ex parte ad interim order is passed without notice, or service of notice on the respondent, on his appearance, after granting an opportunity to the respondent to object the claim and on hearing the applicant and the respondent, a final interim order under section 23(1) is to be passed with or without modification of the ad interim order.

(vii) If on service of notice, the respondent fails to appear, Magistrate is to pass a final ex parte interim order under section 23(1) with or without modification of the ad interim order.

(viii) Magistrates shall bestow care and caution in granting ad interim ex parte order under section 23(2). Such relief is to be granted only if urgent orders are warranted on the facts and circumstances of the case and delay would defeat the purpose or where an interim orders is absolutely necessary either to protect the aggrieved person or to prevent any domestic violence or to preserve the then existing position.

Petition is disposed. Registrar is directed to communicate copy of the order to all District Judges/Chief Judicial Magistrates and Munsiffs/ Judicial First Class Magistrates.

M.SASIDHARAN NAMBIAR

JUDGE

tpl/-

M.SASIDHARAN NAMBIAR, J.

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W.P.(C).No.30948 /09

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JUDGMENT

7TH January,2010

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

strict rule of evidence not attracted in DVcase, so wife gets money EVEN if her case NOT proven! KeralaHC Gem !!

strict rule of evidence not attracted in DVcase, so wife gets money EVEN if her case NOT proven! Kerala HC Gem !!

Kerala High Court
Revision vs Complainant(S)/ on 25 August, 2012
Crl.Rev.Pet.No. 41 of 2013 ()

http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

* wife alleges that husband has relations with his own brother’s wife !!
* wife has left matri home and is living with parents / siblings
* lower courts DO NOT BELIVE wife’s version of cruelty and do NOT believe allegations
* still wife gets rs 4500 p.m. as maintenance + residence !!
* husband asks simple question, how can wife get money when her case / documents are NOT PROVEN
* HC says “….in a proceeding initiated under the provisions of the above Act, the strict rule of evidence are not attracted. Hence, I find no reason to interfere with the orders granted by the trial court which is confirmed by the appellate court granting maintenance of the wife and monthly payment towards alternate accommodation. Therefore there is no merit in this revision petition and accordingly, the same is dismissed……”
* In simple terms, wife continues to get the moolah !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Kerala High Court

Revision vs Complainant(S)/ on 25 August, 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN

THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934

Crl.Rev.Pet.No. 41 of 2013 ()

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AGAINST THE ORDER/JUDGMENT IN CRA.415/2010 DATED 25*08*2012
AGAINST THE ORDER/JUDGMENT IN MC.39/2008 DATED 08*07*2010

REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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SAJEEV RAGHAVAN, S/O.RAGHAVAN
SANKARAMANGALAM, ARATTUPUZHA MURI, ARATTUPUZHA VILLAGE KARTHIKAPPALLY, ALAPPUZHA DISTRICT.
BY ADVS.SRI.S.SHANAVAS KHAN, SMT.S.INDU

COMPLAINANT(S)/RESPONDENTS/STATE :
********************************

1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

2. REMANI, W/O. SAJEEV RAGHAVAN
PUTHUKANDATHIL HOUSE KADAOOR MURI KANNAMANGALAM VILLAGE MAVELIKARA TALUK, ALAPPUZHA DISTRICT. 688 001. R1 BY PUBLIC PROSECUTOR SMT.REMA.R

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PN

V.K.MOHANAN, J.

Crl. R. P. No. 41 of 2013

Dated this the 10th day of January, 2013 ORDER

The revision petitioner, is the appellant in Criminal Appeal No. 415/2010 of the Court of Additional District Judge Fast Track (Adhoc) Court, Mavelikara, against an order dated 08.07.2010 in M.C. No. 39/2008 of the Court of Judicial First Class Magistrate I, Mavelikara which is instituted under Section 12 of the Protection of Women from Domestic Violence Act. The lower appellate court allowed the appeal in part by interfering with the order of the learned Magistrate and while sustaining the direction issued by the learned Magistrate to pay an amount of Rs.2,500/- as monthly maintenance and Rs.2,000/- per month for availing alternate accommodation for the aggrieved wife from the petitioner husband but the other reliefs granted were set aside in favour of the appellant. Aggrieved by the above judgment, the present revision petition is filed.

2. I have heard Sri. S. Shanavan Khan, learned counsel for the petitioner. The learned counsel for the petitioner after taking me through the judgment of the lower appellate court particularly paragraph 12 of that judgment, submitted that, the appellate court has reluctant to believe the case of the aggrieved person the wife about the alleged illicit connection of the revision petitioner with the wife of his brother and also disbelieved the case of the wife about the cruelty etc. According to the learned counsel the appellate court refused to accept that case since the court below was not inclined to act upon the sole evidence of the aggrieved person who was examined as PW1. After inviting my attention to paragraph 12 of the above judgment of the appellate court particularly with respect to Exhibit P3 wound certificate and Exhibits P4 and P5 medical bills and about non examination of the doctor who issued Exhibit P3, the learned counsel submitted that those documents cannot be believed, as the same were not proved property and therefore the wife the aggrieved person has miserably failed to substantiate her case against the revision petitioner regarding the cruelty. If that be so, according to the learned counsel, the appellate court judgment is liable to be interfered with to the extent it sustaining the order of the learned Magistrate granting Rs.2,500/- as maintenance and Rs.2,000/- per month for her alternate accommodation. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. I am unable to accept the above contention and to interfere with the orders of the appellate court. It is boned out from the judgments of the courts below that the marriage between the petitioner and the aggrieved person wife is still existing and the trial court as well as the lower appellate court has found that the aggrieved person had left the matrimonial home and residing along with her mother and siblings. It is also found by both the courts below that the aggrieved person has no income to maintain herself and the petitioner has also failed to prove, otherwise. It is also relevant to note that the documents referred to by the appellate court particularly Exhibits P3, P4 and P5 documents, which are contemporary documents came into existence even prior to the litigation started, probably, there may be some default on the part of the aggrieved person in proving the same but according to me, in a proceeding initiated under the provisions of the above Act, the strict rule of evidence are not attracted. Hence, I find no reason to interfere with the orders granted by the trial court which is confirmed by the appellate court granting maintenance of the wife and monthly payment towards alternate accommodation. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Therefore there is no merit in this revision petition and accordingly, the same is dismissed.

Sd/-

V.K.MOHANAN, JUDGE

/True copy/

P. A. to Judge

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Together ONLY 7 mnths, fighting 10 years, DV, 498a pack, still DIVORCE DENIED!! Wear and Tear of life gentlemen …the rough and tumble of it !!


They lived together ONLY for 7 months, they have been fighting in courts for approx 10+ years, Husband has suffered DV, 498a package, and / or police calls , threats. Still the HC says most of these are wear and tear of life and DIVORCE DENIED!!
**********************************

* marriage 13.3.2000
* matter get so bad so soon that, families had to hold meeting on 4.10.2000 !!
* things do not improve
* they live together last some time between April and July, 2002
* there are allegations of wife and cousin trying to beat up the husband
* there are similar counter allegations from wife
* Husband says. DV and 498a package filed by wife. Police certificate provided about complaints. However court observes that DV act is ONLY to get money and residence and IS NOT cruelty !!
*

Bombay High Court

Ou vs H on 25 January, 2010

Bench: D.B.Bhosale, R.Y. Ganoo

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 109 OF 2007

Latesh Subhash Kadam of .. Appellant ,
Hindu, Indian Inhabitant, residing at Asgar Manzil, Room No.21, Jerbai Wadia Road,
Bhoiwada Naka, Parel, Mumbai-400 012.

Vs

Neesha Latesh Kadam of .. Respondent Mumbai,
Hindu, Indan Inhabitant, residing at 165/8/16,
Shahu Nagar, Anr.Renuka Mandir, Godoli, Satara City, Dist-Satara.

Smt A. R. Lambey i/b Smt A. S. Khushrushahi, Advocate for the appellant.

Shri Dilip Bodake, Advocate for the respondent.

CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ.

DATE : 25/01/2010.

ORAL JUDGMENT : (Per D.B.BHOSALE,J.)

1. The appellant-husband has filed this Family Court Appeal against the Judgment and order dated 11.5.2007 passed by theFamily Court in Petition No. A-892 of 2002, whereby this petition seeking divorce on the ground of cruelty, as provided forunder section 13(1)(i-a) of the Hindu Marriage Act,1955 (for short, "the Act") has been dismissed.

2. The matrimonial alliance was entered into between the appellant-husband and the respondent-wife as per Hindu rites and rituals at Satara, District-Satara on 13.3.2000. Parties have no issue from the said wedlock. The appellant and his family, though hail from district-Satara, are residents of Mumbai. The appellant, at the relevant time, was working in Mumbai. After their marriage at Satara, they came to Mumbai on 20.3.2000. Itis the case of the appellant that since solemnization of the marriage, the attitude, conduct and behaviour of the respondent-wife towards him as well as his family members wasrude, adamant and annoying. Right from the day of the marriage, according to the appellant, the respondent was arrogant and rude with him as well as with his family membersand she started taunting him over his educational qualification. The respondent is an M.A., whereas the appellant is only a Diploma Holder. All these allegations have been denied by the respondent. According to the respondent, right from beginning, she started doing all household work like sweeping, cleaningutensils, cooking, washing cloths of the entire family etc. She tried to keep every one in the family happy and satisfied. She had good relationship with the appellant, however, at the instance of his parents, he started behaving indifferent right from the beginning. There is no dispute that the marriage was consummated. It appears that in view of the peculiar nature of job, which the appellant was doing at the relevant time, frequently he used to go abroad and also in and around India as a part of his job. After their marriage, the respondent left the matrimonial home last some time between April and July, 2002. From the date of marriage till she last left the matrimonial home, according to the respondent, they both stayed togetherfor hardly seven months. The respondent-wife claims that she never refused to perform her matrimonial obligations or even had shown her intention to deprive the appellant of conjugalrights. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. It is against this backdrop, the appellant instituted thepetition for divorce on the ground of cruelty. Apart from her day-to-day arrogant and rude behaviour, the appellant has relied upon the following instances, as alleged in the pleadings and the evidence: Firstly, it is contended that because of the respondent’s typical behaviour, both the families had to hold meeting on 4.10.2000 to sort out the differences between the two. Next it is alleged that on 12.5.2000 the respondent heldthe appellant’s collar and threatened him that if he did not stay with her properly, she would cause harm to him and his family members. Thereafter, on 7.1.2001, it is alleged that the respondent’s cousin -Ravi, when brought her to Mumbai from Satara, threatened the appellant stating that he had handled plenty of such family disputes in his own way and looking to the appellant’s good nature he was keeping quite. Lastly, it is alleged that on 1.1.2002 the respondent and her cousin Ravi brought about fifteen persons to the appellant’s house in Mumbai and threatened him stating that he had not married therespondent only for getting house-hold work done. Apart from these four incidents, the learned counsel for the appellant also made reference to the case/complaint filed by the respondentagainst the appellant under the Protection of Women from Domestic Violence Act, 2005, which, according to the appellant, caused mental cruelty to him and his family members. Areference to the calls allegedly made by the Medha Police Station to the appellant and his father was also made to contend that the calls were made by the police at the instant of the respondent, which made him and his family to suffer mental trauma. In the backdrop of these facts, the petition was filed bythe appellant-husband on 20.1.2004.

4. We have heard learned counsel for the parties and, with their assistance, perused the entire material/evidence on record.

Ms Lambey, learned counsel for the appellant after taking us through the pleadings and the evidence, submitted that right from beginning the attitude, conduct and behaviour of the respondent towards the appellant as well as his family members was arrogant, rude and non cooperative, which caused harassment and cruelty not only to the appellant but even to his family members. She further submitted that the attitude of the respondent-wife towards her in-laws was also arrogant andhumiliating. She invited our attention to several instances cited by the appellant and his father in their evidence in respect of her conduct and behaviour which, according to the appellant,were in the nature of mental cruelty. It was also urged that all throughout the respondent was conscious and mindful of her education and she used to tauntthe appellant and other members of the family. She submitted that cumulative effect of the facts and circumstances emerging from the evidence on record, are sufficient to draw a fair inference that the respondent undoubtedly caused cruelty and harassment to the appellant and his family members. Her rudeand arrogant conduct made it impossible for the appellant to live with the respondent. In other words, the situation was suchthat the respondent-wife cannot reasonably be asked to put up with such conduct and continue to live with the appellant. She submitted that frequent rudeness of language and neglect made the married life of the appellant absolutely intolerable. She then submitted that absence of intention should not make any difference in the case and it is not necessary element in cruelty. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Learned counsel for the appellant in support of her contentions, placed reliance upon the following judgments: Rishikesh Sharma Vs. Saroj Sharma, (2007) 2 Supreme Court Cases 263; Suman Kapur Vs Sudhir Kapur, 2009 (1) SCC 422; ShobaRani V Madhukar Reddi, (1998) SCC 105. Reliance was also placed on some judgments to contend that the marriage between the appellant and the respondent has broken irretrievably and,therefore, on that ground also a decree of divorce deserves to be passed in the present case.

5. On the other hand, Mr Bodake, learned counsel for the respondent-wife, submitted that even if it is assumed that whatever has been stated by the appellant-husband and his father in their testimonies is true, none of the incidents narrated by them is more than ordinary wear and tear of married life. He then submitted that none of the incidents has been proved by the appellant by leading cogent evidence. Mr Bodake then submitted that right from inception, the attitude of the appellant towards the respondent-wife was indifferent for the reasons known to him. Within less than eight days from the date of marriage he started talking about divorce. That itself is an indication that whatever incidents he has narrated in his deposition are false and imaginary. There was no reason for the respondent-wife to behave in the manner as stated by him and his father right from the second day of marriage. As a matter of fact, from her conduct it is clear that she was and is eager to lead happy married life with the appellant. He then submittedthat in any case it cannot be stated that it is impossible for the appellant to live with the respondent. He then invited our attention to the judgment of the Supreme Court in Vishnu DuttSharma Vs Manju Sharma in Civil Appeal No.1330 of 2009 (Arising out of SLP (C) 13166 of 2007) decided on 27.2.2009, to contend that this court has no jurisdiction to pass decree on the ground of irretrievable break down of marriage or that it is a dead marriage. He also placed reliance upon the judgments of the Supreme Court in V. .Bhagat V. D.Bhagat, 1994 AIR SCW 45 and Naveen Kohli Vs Neelu Kohli, 2006 AIR SCW 1550.

6. The appellant-husband, in support of his case, examined himself and his father – Subhash Laxman Kadam. On the other hand, the respondent-wife examined herself. We have perused the depositions of all the witnesses so also the pleadings and other documents on record with the assistance of learned counsel for the parties.

7. The first incident relied upon by the appellant in order to prove cruelty is dated 4.10.2000. On this date, according to the appellant, a meeting was held at Satara to sort out the alleged differences between the appellant and the respondent. This meeting is relied upon by the appellant in order to contend that till 4.10.2000, there were several unpleasant incidents, which forced both the families to meet for sorting out the alleged differences between the two. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. The appellant, in his deposition, stated that right from beginning, the respondent was arrogant and rude with him and his family members. The marriage was solemnised on 13.3.2000. On 15.3.2000, after Satyanrayan puja, the respondent was required to clean utensils with other members of the family, when she allegedly complained to the appellant that her handshad become black. She was reluctant to join other members of the family in cleaning the house, since she did not like to do such type of work. Even at the time of puja, according to the appellant, the respondent got annoyed with his sister when she made her wear the neckless. The appellant further stated that on 16.3.2000, when they were going for Dev Darshan, the respondent pressurised him to drive the car though his eye- sight was weak. While on their way to the temple, she, according to the appellant, sat next to him and put her hand on his thigh which he did not like. Thereafter, he stated that a girl from his neighbourhood, who used to visit their house frequently, passed comment that the respondent was careless, and on that the respondent got annoyed and reacted stating that she was M.A and she (the girl) need not teach her. When the appellant tried to pacify the respondent, she allegedly insulted and ridiculed the said girl.

9. In the cross-examination, the appellant admitted that thegirl from his neighbourhood-Pinki did not have authority to make such comment, but he further added that he did not find anything objectionable in the comment made by her. The respondent in her evidence denied these incidents totally. She specifically stated that the incidents, as narrated by theappellant, are false. Even if all the incidents, allegedly occurred before the couple came to Mumbai on 20.3.2000, are assumed to be true, we do not find them of such a character and gravity so as to say that it would be impossible for them to live together without mental agony or torture. In our opinion, no wife/daughter-in-law within less than eight days from her marriage, would behave in such manner and even if it is assumed that she did behave in this manner, as stated by the appellant, it was nothing but ordinary wear and tear of married life and no importance can be attached to such incidents for granting divorce on the ground of cruelty.10. Thereafter, on 20.3.2000 they all came to Mumbai. In Mumbai, there was again Satyanarayan puja on 23.3.2000. On this occasion, the respondent allegedly insulted his friends. The respondent-wife specifically denied the incident and stated that in fact she had free interaction with the appellant’s friends on the issue of girls from villages. On 25.3.2000 there was awedding reception. It is alleged that on this occasion also when the appellant requested the respondent to get ready soon, she arrogantly replied stating "don’t you see that I am getting ready". According to the appellant, he was insulted by the respondent in the presence of his relatives. This incident wasalso denied by the respondent. He quoted one more incident stating that the respondent took water pot used in WC andmixed up the same with other utensils. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. Thereafter, the appellant and the respondent went to Mahabaleshwar on 5.4.2000 for honeymoon where, according to the appellant, the respondent ridiculed him by comparing with other couples. He further stated that the respondent’s behaviour at Mahabaleshwar disturbed him a lot and, therefore, he was reluctant to have sex with her. According to the appellant, the respondent, however, forced him to have sex against his wish. The appellant further stated that therespondent did not have any love and affection for him. As a matter of fact, we find this behaviour of the appellant not only strange but unnatural. We are at loss to understand as to howone could behave in this manner on honeymoon tour.

12. Insofar as the allegation that the respondent ridiculed the appellant by comparing them with other couples at Mahabaleshwar is concerned, the respondent denied it in her evidence. According to the respondent, as stated by her in examination-in-chief, at Mahabaleshwar the appellant asked her for divorce stating that he wanted a wife, who knew English andwho could operate computer. In the cross-examination, the appellant admitted that the respondent told him that there wasno cause for divorce and he should not speak about divorce. As a matter of fact, it has come in the evidence of the appellant so also in the evidence of the respondent that after they returned from Mahabaleshwar, the respondent joined classes to learn English and computer, and she was regularly attending the classes. In fact, after the appellant left for South Africa some time in May, 2000, the mother of the appellant stopped her from attending the classes. The suggestion to that effect, though was denied by the appellant in his evidence, the fact remains that the respondent, as desired by the appellant, was eager to learn English and Computer.

13. The appellant then quoted the incident allegedly occurredon 12.5.2000. On this date, the appellant was telling the respondent to maintain decorum and harmony in the house, when, it is alleged, that the respondent became violent andrushed to the appellant, held his collar and threatened him stating that if he did not live with her properly, see what would she do to him, his sister and other family members. She also allegedly threatened him stating that the people at her village were very dangerous. This incident, according to the appellant,shook and shocked the appellant’s family. The respondent, however, stoutly denied this incident. It is against thisbackdrop, according to the appellant, the meeting dated 4.10.2000 was held at Satara. In the meeting also it is alleged that there were heated arguments between the respondent and her family members. According to the appellant, all throughout in the meeting, she was arrogant and rude and was not prepared to budge. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. After the marriage, in May 2000, the appellant left for South Africa. In his absence, the respondent was sent to Satara in August, 2000 for Nagpanchami. There are no allegations ofany nature whatsoever, against the respondent during the period between May, 2000 and August, 2000. After the appellant returned to India, it appears that the respondent was not eveninformed about his arrival. It is stated in the cross-examination that immediately after he returned to India, within a week he went to Satara on 8.10.2000. Similarly, the appellant’s fatheralso, in his cross, stated that they went to Satara on 8.10.2000. The admission given by both, in their cross, creates doubt about the meeting dated 4.10.2000. The appellant further stated that he returned to Mumbai without the respondent. It appears that he was completely ignorant about the telephone calls made during the period by the respondent’s father to his father. He was also ignorant about the efforts made by the respondent’sfather to send the respondent back to Mumbai at the time of Diwali and even thereafter and that his father had told the respondent’s father that he should not bring her to Mumbai. He further stated that he was not aware whether the respondent ever expressed her desire to return with them to Mumbai. He, however, admitted that the respondent’s father brought her to Mumbai on 7.1.2001. Within few days thereafter, as stated in paragraph 32 of the cross, he again left the country once again and returned in July 2001, and then again he went abroad in August, 2001 and returned in December, 2001.

15. According to the respondent, after the appellant came back to India some time in October, 2000, she was not even informed about his arrival. She came to know about his arrival only when the appellant’s uncle informed her father on telephone that the appellant along with his parents was at Bamnoli in their uncle’s house and were coming to Satara, which they did on 8.10.2000. This evidence has not been challenged by the appellant in the cross-examination. This further creates doubts about the alleged meeting held on 4.10.2000 at Satara. As a matter of fact, the respondent was eager to go with the appellant and his parents to Mumbai but she was told to come to Mumbai after Diwali. Even after Diwalishe could not and did not go to Mumbai. She stated that when she expressed her desire to come to Mumbai, the father of the appellant stated that "what do widows do when they loose their husbands". The appellant and his father denied these utterances in their evidence. However, the fact remains that the father of the respondent had to take her to ig Mumbai on 7.1.2001. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. This takes us to consider the next incident on which the learned counsel for the appellant heavily relied upon to contendthat this incident not only frightened but terrified him and his family. The incident is dated 7.1.2001. The appellant as well as his father in their evidence stated that when the respondentwas brought to Mumbai by her father and cousin Ravi, her cousin during the discussion stated that he had handled plenty of such family disputes in "different way", however, looking tothe appellant’s good nature, he was keeping quite. This threat, according to the appellant, disturbed and terrified the family. The respondent thereafter stayed with the appellant and his family for few months. The appellant in paragraph 11 has stated that after she came on 7.1.2001, on the very next day, therespondent asked him to forget everything and have sex to have baby. After she came back till she again went back to Satara,there were no allegations against her. On the contrary the appellant stated that she returned to fulfill her obligations and duties as a wife. The subsequent conduct of the respondent so also the evidence, creates doubt about what the appellant stated regarding the alleged utterances of the respondent’s cousin Ravi. The respondent, however, denied all these allegations. According to the respondent, she came to Mumbai along with her father to lead happy married life. She did not state anything about her cousin Ravi and the alleged threats. Even if it is assumed that the incident of 1.7.2001 did occur inthe manner, as stated by the appellant and his father, we do not find it as serious as to lead the appellant to seek divorce on the ground of cruelty.

17. The appellant has then relied upon the incident dated 1.1.2002. The appellant and his father, both, in their evidence stated that on 1.1.2002 the respondent’s father and brotherbrought about 15 persons to their house and there were heated arguments between them. It is alleged that the respondent’s cousin Ravi threatened the appellant stating that he had not married the respondent for getting only the household work done and that he would see as to how he would go abroad. Healso allegedly abused and insulted the appellant. Thereafter, they all went back leaving the respondent with the appellant inMumbai. Thereafter, she stayed with the appellant till April, 2002. According to the appellant, she left in April, 2002 last, whereas, according to the respondent, she was taken by the appellant’s father to Satara on 27.7.2002. Even if the date given by the appellant is taken to be true, there are no allegations of any nature whatsoever between January 2002 and July, 2002.

18. We have also perused the affidavit of the appellant’s father Subhash Kadam filed in lieu of examination-in-chief. His examination-in-chief is, by and large, consistent with the evidenceof the appellant. He also narrated all those incidents, which were narrated by the appellant in his evidence. In the cross- examination, he admitted that some incidents, which werenarrated by them, were not mentioned in the petition. He further admitted that the respondent used to cook in the house and was also doing work of sweeping, swabbing, dusting, going to themarket etc and also used to get involved in all type of household work. He also admitted that when he had gone to Satara in 2000 after Diwali, the respondent had expressed her desire to come to Mumbai when he told her not to come with them. It was further admitted in the cross examination that she came to Mumbai on7.1.2001. However, he denied the suggestion that during the meeting in January 2002, when 15 persons including therespondent’s father and cousin had allegedly gone to their house, they told the respondent’s father to take the respondent back to Satara. He then stated that the respondent continued to stay with them till April, 2002. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. The respondent denied not only the allegations but even the incidents quoted by the appellant and his father in their evidence, which allegedly occurred during her stay with them. It is her case that no such incidents, as testified by the appellant and his father, ever occurred. The evidence of these two witnesses, though to alarge extent, seem to be consistent, the question is whether the alleged conduct of the respondent and the incidents quoted in the petition so also in their testimonies by these witnesses wouldconstitute cruelty and they were to such an extent so as to grant divorce. Though, according to the learned counsel for the appellant, the aforementioned events were grave and weightyso as to come to the conclusion that the appellant cannot be reasonably expected to live with the respondent, she could not pinpoint a single incident which, according to her, was grave. Undoubtedly, she submitted that the incident dated 12.5.2000 was grave but, in our opinion, that incident has notbeen proved by the appellant. Apart from the fact that the said incident was unbelievable, neither the appellant nor his fathermade reference thereto any time thereafter including in the letters addressed to the Bhoiwada police station (Exhibits 22 and 23).

20. We have perused the letters (Exhibits 22 and 23) written by the appellant and his father to Bhoiwada police station. From the contents of the letters, it appears that the letters were given to the police station by way of abundant precaution and in order to obtain certificate from the police station that no complaint under section 498A had been filed against them by the respondent. It is true that the father in his letter dated 10.8.2002 made referenceto the alleged calls received from Medha police station. However, over and above this, no other material is brought on record to show that any complaint was lodged with the Medha police stationand/or calls were made by the Senior Police Inspector to the appellant or to his father. In sofar as the letter dated 20.8.2002 (Exhibit 23) is concerned, it is written by the appellant. It is very interesting to note that in the letter he had stated that after the marriage, initially they had very smooth/happy married life. From the contents of the letter, it is clear that no reference to any of the incidents referred to and relied upon by the appellant and his father in their evidence was made by them in these letters. Noreference was made to the incidents dated 12.5.2000 or 1.1.2002.21. Even if it is assumed that all the aforementioned incidents did occur in the manner, as stated by the petitioner and his father, still in our opinion, the conduct of the respondent was not of such a character and gravity so as to give rise to a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with her or it would be impossible for them to live together without mental agony or torture. In other words, the respondent’s conduct was not such that no reasonable person would tolerate it. Parties to the marriage, tying nuptial knot, are supposed to bring about theunion of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severedon the grounds/incidents/conduct which are ordinary wear and tear of matrimonial life. None of the aforementioned incidents or conduct of the respondent, in our opinion, could be termed as"grave and weighty" to be treated as the cause for cruelty. It is true that the word "cruelty" is not defined and, therefore, it is not possible to say as to when the conduct of other spouse constitutes cruelty, however, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in everycase for incompatibility of temperament. That was not the intention of Legislature when the ground of cruelty was madeavailable for seeking a decree of divorce. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

22. The learned counsel for the appellant in the course of argument also relied upon two more incidents, namely, the alleged complaint lodged by the respondent with Medha police station, and secondly, the complaint under the Domestic Violence Act allegedly lodged by the respondent. Insofar as the complaint with the Medha police station is concerned, the respondent has denied to have lodged any such complaint. The appellant has not produced any material on record to show that any such complaintwas filed by the respondent. Merely because Bhoiwada police station issued a certificate in response to the letters (Exhibits 22 and 23) issued by the appellant and his father, does not mean that the respondent had filed complaint with the Medha Police Station. This allegation, in our opinion, is baseless, unfounded and made only with a view to bring additional material on record forseeking divorce on the ground of cruelty. Similarly, the petition under the provisions of the Domestic Violence Act, was filed only for maintenance and her right of residence. She did not make any allegation against the appellant in the said petition so as to lead him to seek divorce on the ground of cruelty. It is pertinent to note that the appellant has not challenged the order passed in those proceedings in appeal and has been paying maintenance to therespondent regularly.

23. We have perused the respondent’s evidence very carefully. It appears that she is very keen to join and stay with the appellant. She has specifically stated that she never had any grievance against the appellant and even the appellant did not have any grievance against her. She has stated that they are made for each other and they are good couple and deserve to stay together. She has further stated that she used to do all household work with other family members and did her best to keep her in-laws happy and satisfied. In her opinion, the appellant was indifferent with her at the instance of his parents.24. The conduct of a wife has to be considered in the background of several factors, such as, social status of theparties, their education, physical and mental condition, customs and traditions. If all that is taken into consideration, in this case, the conduct of the respondent, in our opinion, was not as grave as to come to the conclusion that no reasonable person would tolerate it. It is well settled that every matrimonial conduct,which may cause annoyance to the other spouse, may not amount to cruelty and we are satisfied that the intensity of therespondent’s conduct is not to the extent so as to come to the conclusion that the petitioner cannot reasonably be expected to live with her. (See Arundhati D Patil Vs D.B.Patil, 2008 (5) All M.R. 702) http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. In Suman Kapur’s case (supra), the Supreme Court, after considering several judgments including some of the judgments which were also cited before us by learned counsel for the parties, has observed that if it is mental cruelty, the enquiry must begin as to the nature of the cruel treatment and then as to the impact ofsuch treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it will be harmful or injurious for him to live with the respondent ultimately is a matter ofinference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse.26. Whether one spouse has been guilty of cruelty to other is essentially a question of fact and previously decided cases have little, if any, value. The Court is expected to bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality andconduct of one spouse on the mind of the other weighing all incidents and quarrels between the spouses from that point ofview. Further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. (See Halsbury’s Laws of England (Vol 13, 4th Edition, para 1269). 27. In V. Bhagat V D.Bhagat case (supra), the Supreme Court had an occasion to examine the concept of "mental cruelty".

Paragraph 17 of the Judgment reads thus: "Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the otherparty such mental pain and suffering as would make it impossible 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 suchconduct 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 ofthe 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 decided 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."28. The Supreme Court in Naveen Kohli Vs. Neelu Kohlicase (supra), while dealing with an appeal arising from a matrimonial petition filed by the husband seeking a decree of divorce on the ground of cruelty, has observed that "the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage, Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particulars case andas noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it". In the present case, none ofthe incidents or the alleged conduct of the respondent could be termed as intolerable. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

29. In Shoba Rani V Madhukar Reddi, (1998) SCC 105, the Supreme Court had an occasion to examine the concept of cruelty.In this case, the Supreme Court has interpreted the word "cruelty". The "cruelty" which has not been defined in the Act, though it hasbeen specifically used in section 13(1)(ia) of the Act. The Supreme Court observed that "the cruelty 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 onthe 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 spouseneed 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, ifby 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 willful ill-treatment".

30. In A. Jayachandra Vs Aneel Kaur, 2005 AIR SCW 163, a three Judges Bench of the Supreme Court while dealing with theexpression "cruelty" observed that if from the conduct of spouse it causes an apprehension in the mind of other spouse about his or her mental welfare, then such conduct amounts to cruelty. We do not find any such case having been made out by the petitioner. It is well settled that the conduct of the spouse must be something more serious than ordinary wear and tear of married life. 31. The conduct of the respondent, in our case, does not constitute cruelty. As a matter of fact, most of the incidents relied upon by the petitioner, in our opinion, are insignificant or triflingand it cannot be said that they had touched a certain pitch of severity. In any case, it cannot be stated that the conduct of the respondent was such that no reasonable person would tolerate it.32. It is true that the approach of the court should be to take the cumulative effect of the facts and circumstances emergingfrom 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 the present case, even the cumulative effect of the facts and circumstances emerging from the evidence of the appellant and his father, in our opinion, is not sufficient to hold that the appellant was subjectedto mental cruelty due to the conduct of the respondent. The trial court, in our opinion, has assessed and appreciated the entire material on record including the depositions of the parties in proper perspective and has rightly dismissed the petition filed by the appellant seeking divorce on the ground of cruelty. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33. it is now well settled that even if a marriage is totally dead or irretrievably brokendown, this court has no jurisdiction to pass decree on that ground. Such order at most could be passed only by the Supreme Court in exercise of the jurisdiction under Article142 of the Constitution (See Sanghmitra Ghosh Vs Kala Ghosh , 2007 (2) SCC 220). The Supreme Court recently has gone a step further and in Vishnu Dutt Sharma Vs ManjuSharma case (supra), in paragraphs 10, 11 and 12 thereof, has observed thus :-

"10. In this connection it may be noted that in Section 13 of the Hindu Marriage Act,1955 (for short "the Act") there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable break down of themarriage has been mentioned for granting divorce.

11. On a bare reading of Section 13 of the Act,reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not been taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground of divorce. In our opinion, this can only be done by the legislature andnot by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant."

34. In the circumstances, the submission of the learned counsel for the appellant that the marriage of the appellant and the respondent deserves to be dissolved on the ground ofirretrievable breakdown or that it is dead marriage, deserves to be rejected outright. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35. Before hearing of the appeal commenced we interviewed the parties in our chamber. The respondent-wife, with the humility ather command, categorically stated that she is keen to live with the appellant. The appellant all throughout was saying no withoutoffering any explanation for saying so. He simply stated that he had suffered a lot. The respondent wife, in the chamber also said sorry to her husband for whatever has happened in the past and she requested him to start new inning, to which the response of the appellant was in the negative. Keeping that all in view and considering overall facts and circumstances of the case we are satisfied that the ground of cruelty has not been proved by the appellant and he does not deserve decree of divorce on this ground. In our opinion, even now it is possible for the parties to come together and lead a happy married life. In the result, theappeal is dismissed. In view of the peculiar facts and circumstances of the case, there shall be no order as to costs.

(R.Y.Ganoo,J.)

(D.B.Bhosale,J.)

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

woman murdered 1987. case at SC 2014. 27 yrs latr, husband’s convictn confirmd! speedy justice?

woman murdered 1987. case at SC 2014. 27 yrs latr, husband’s conviction confirmed! if such a henious crime takes 27 years to reach apex court, how are we to dispense speedy justice?

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1986 OF 2009

KHIM SINGH … APPELLANT

VERSUS

STATE OF UTTARAKHAND … RESPONDENT

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment dated 24th August, 2005 passed by the High Court of Uttaranchal(now Uttarakhand) at Nainital in Criminal Appeal No.1388 of 2001 (Old No.-Criminal Appeal No.1165 of 1988). By the impugned judgment the High Court upheld the judgment and order of conviction dated 30th March, 1988, passed by the Sessions Judge, Almora in Sessions Trial No.54 of 1987, State vs. Khim Singh, whereby the accused-appellant was convicted for the offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

2. Brief facts, giving rise to the present appeal as emerging from the material on record, are that the accused Khim Singh was residing with his wife Himuli Devi in his residential house at village Simgari. He has a son, named Mohan Singh, who was also residing with them, but sometimes, he resided with his grandmother, who resides in the adjacent house of Laccham Singh, brother of accused-Khim singh. Earlier accused-Khim Singh was in service outside his village, but for the last 4-5 years he had come back and was working as labourer. His wife, Himuli Devi, was a short- tempered woman and she often quarrelled with Khim Singh. It was suspected in the village that she was a woman of loose character and on account of this, accused-Khim Singh was also not in good terms with her. Often they used to be quarrelled with each other. On 17th July, 1987, also in the evening, they had a quarrel. Early in the morning of 18th July, 1987, one Bahadur Singh (since deceased), a resident of the village, while passing in front of the house of the accused-Khim Singh found that the door was closed and there was none outside. He opened the door and went inside the house and found Himuli Devi lying dead. He raised an alarm, on which, the mother of the accused also came there. He called the Sabhapati of the village, Bachi Singh also. They all saw that Himuli Devi was lying inside the room, having injuries on her body and she was dead.

3. The Sabhapati of the village, Bachi Singh, prepared a written report, Ext.Ka-1. It was sent to the Patwari of the Kshetra through one Kishan Singh. In the said report, Sabhapati mentioned that it was accused-Khim Singh who killed his wife Himuli Devi and requested the Patwari to come and investigate the matter. The written report was received by the Patwari, Narain Singh, at 11.30 a.m. on 18th July, 1987 and on that basis he prepared the FIR, Ext.Ka-3. He came to the house of Bachi Singh and recorded his statement. Accompanied by Bachi Singh, he went to the house of the accused, where Himuli Devi was found lying dead inside the house. The dead body was taken into custody and the inquest report, Ext.Ka-4, was prepared and the dead body was sealed. The letter with a request for postmortem, Ext.Ka-5, was also prepared. The blood stained clothes were taken into custody from the dead body and Fard, Ext.Ka-6 was prepared. From the place where the dead body was lying, blood stained and plain earth were also taken and sealed and a Fard, Ext.Ka-7, was prepared. The scene of occurrence was also reflected in site plan Ext.Ka-8. The accused-Khim Singh, who was present there, was arrested and a Fard, Ext.Ka-9, was prepared. At the instance of the accused, a blood-stained Kulhari (axe) was found inside the house and a Fard, Ext.Ka-2, was prepared. The sealed articles were handed over to the peon and Fard, Ext.Ka-10 was prepared. The statements of Manuli Devi (PW-1) and Khimuli Devi (PW-2) were recorded. In between 19th and 22th July, 1987 the statements of other witnesses, including Joga Singh (PW-5) were recorded. The sealed articles were sent for chemical examination. The investigation was completed and the chargesheet dated 22nd August, 1988, Ext.Ka-14, was submitted against the accused. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The dead body was sent for postmortem which was conducted by Dr. N.D. Punetha, on 19th July, 1987, at 11.30 a.m. at Bagesnwar. He found the following ante mortem injuries on the dead body:

“1. Incised wound 5 cm x 2 cm bone deep present on the left side of mastoid region of the head. Margins were lacerated and well defined.

2. Contusion 5 cm x 3 cm present on the occipital region of the head. Semi digested food material was coming out from the mouth.”

5. On internal examination, the bone under the two injuries was found to be fractured. Clotted blood was also found beneath these injuries. In the stomach, a small quantity of semi-digested food material was found. There were gases in the small and large intestines. This death, in the opinion of the Medical Officer resulted from shock and haemorrhage, caused by the two injuries, found on the dead body, which were sufficient for death in ordinary course of nature. The postmortem report, Ext.Ka-15, was prepared. The time since death was about one day and in the opinion of the doctor, this death could have occurred in the night of 17th/18th July, 1987. He has also given an opinion that the injuries were caused with some heavy sharp edged weapon like Kulhari. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. The Patwari-Simgari, after completing necessary formalities, submitted a charge sheet dated 22nd August, 1987, against the accused, Ext.Ka-14, to the Court of CJM, Almora. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Judge, Almora for trial of the accused. The Sessions Judge charged the accused under Section 302 IPC, who pleaded not guilty to the charge and claimed to be tried.

7. In order to bring home the guilt of the accused, the prosecution, in oral evidence, examined as many as seven witnesses, namely, Manuli Devi (PW-1)-mother-in-law of the deceased; Khimuli Devi (PW-2)-sister-in-law of the deceased(gotani), Mohan Singh(PW-3)-minor son of the deceased with the accused, Bachi Singh(PW-4), Joga Singh(PW-5)- a neighbour; Narain Singh-Patwari (PW-6) and Dr. N.D. Punetha(PW.7) who conducted the postmortem on the dead body of the deceased. Prosecution also tendered in evidence affidavit of Bhagwat Singh, peon of Patwari, dated 5th January, 1988. All the documents referred to above were filed by the prosecution. The Trial Court on appreciation of evidence, both oral and documentary, based on circumstantial evidence held the accused-Khim Singh guilty of the offence punishable under Section 302 IPC.

8. Mr. Feroz Ahmed, amicus curiae appearing on behalf of the accused assailed the judgment mainly on the ground that there is no complete chain of circumstantial evidence to bring home the guilt of the accused. It was contended that the appellant cannot be convicted merely on suspicion in absence of any eye-witness. It was also contended that the relatives like mother-in-law (PW-1), sister-in-law (PW-2) and even the neighbours Bachi Singh (PW-4) and Joga Singh (PW-5) were declared hostile and hence there was no sufficient evidence to prove the accused guilty.

9. In this case, there was no eye-witness of the occurrence. The case was based on the circumstantial evidence. Manuli Devi (PW-1), the mother of the accused in her testimony, stated that there was quarrel between the accused and his wife, Himuli Devi,in the evening of 17th July, 1987, on the festival of Harela. On the next morning, i.e. 18th July, 1987, one Bahadur Singh found the door of the house of the accused closed and when he pushed the door, he found Himuli Devi lying dead inside the house. Bahadur Singh called Bachi Singh (PW-4), the Sabhapati. Thereafter, the Patwari also came on the spot. However, she stated that after the dispute between accused-Khim Singh and Himuli Devi she had not seen accused-Khim Singh and she was declared hostile. However, she admitted that in the house only Khim Singh and his wife were living. His son Mohan Singh was living with her. Khimuli Devi (PW-2), is the wife of Lachham Singh, brother of the accused, sister-in-law of the deceased Himuli Devi (gotani). According to her, she did not know whether any quarrel took place between the accused and the deceased. She had gone to her field on the day of Harela festival. The next morning also, she had gone to the field, but when she came back, she saw Himuli Devi lying dead. Mohan Singh (PW-3), is the minor son of the accused. He stated that he was inside the house of his grandmother and he did not know as to what happened in the house of his father. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

10. Bachi Singh (PW-4), is the Pradhan of the village. He stated that Khim Singh and his wife Himuli Devi often quarrelled. It was also talked amongst the villagers that the wife of the accused was of loose character and on that count accused Khim Singh was annoyed with his wife and they frequently quarrelled. He further stated that on 17th July, 1987, in the evening, there was a quarrel between Khim Singh and his wife, deceased Himuli Devi. Early in the morning, at about 6.30 a.m., the mother of the accused came to him and informed that Himuli Devi had not got up and Khim Singh was also not there. When he went to the house of Khim Singh, he found that the door was open and found that Himuli Devi was lying injured and dead. Khim Singh was not found there. Bahadur Singh, Joga Singh(PW-5), Lachham singh, Ram Singh and others also came and by that time, Khim Singh was also found coming towards his house. He also testified that he got prepared the written report,Ext.Ka-1, scribed by Bahadur Singh, and the same was sent to the Patwari concerned. He further stated that when Patwari came, a blood stained Kulhari was recovered from the house at the instance of the accused and the Fard, Ext.Ka-2, was prepared. Joga Singh(PW-5), another resident of the village, in his testimony, very hesitatingly stated that the wife of accused was not of loose character. He stated that he went to the house of Khim Singh when the Sabhapati called him there. There he found Himuli Devi dead. Accused-Khim Singh was not present there at that time, but after a short-while he was seen coming to his house. Narain Singh (PW-6), Patwari,is the Investigating Officer and Dr. N.D.Punetha(PW-7), conducted postmortem on the dead body. Both of them are formal witnesses and had proved their report. The evidence of Mohan Singh (PW-3), aged about 8 years, minor son of the accused-Khim Singh, is not at all material. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. The accused-appellant in his statement under Section 313 Cr.P.C. denied the accusations levelled against him. He, denied that his wife did not obey him and he used to quarrel with her. He also denied that she was of loose character and that he was annoyed with her on that count. He asserted that he was not present there at the alleged time of death, therefore, there was no question of quarrel and altercation between him and his wife. The accused did not disclose as to where he was on the relevant date. However, he denied the recovery of blood stained Kulhari at his instance. He claimed that the witnesses were inimical to him hence they have falsely given evidence against him. In reply to question No.11, the accused stated that he cannot claim if his wife was murdered by Kulhari on the relevant date and time. He admitted that Patwari arrested him on 18th July, 1987. He also claimed that he had no reason to kill his wife, who had been living with him for the last about 17 years.

12. Himuli Devi died in the night intervening 17th and 18th July, 1987 and her death was fully proved by the postmortem report prepared by Dr.N.D.Punetha(PW-7). It is not disputed that the deceased suffered from ante mortem injuries, as detailed above. It is also not disputed that two injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death. It has not been challenged that the ante mortem injuries could be self-inflicted. The prosecution thereby established that the deceased Himuli Devi died as a result of ante mortem injuries sustained by her in the night intervening 17th and 18th July, 1987.

13. From the perusal of the entire evidence on record, we find that the prosecution in order to bring home the guilt of the accused has relied upon the testimony of Manuli Devi(PW-1), Khimuli Devi (PW-2), Bachi Singh(PW-4) and Joga Singh (PW-5). In order to see whether frequent quarrels were there between the accused and his wife, the statements of these witnesses are relevant to be discussed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. Manuli Devi(PW-1), is the mother of the accused and mother-in-law of the deceased. That being so, there can be no reason for her to falsely implicate her son in the commission of murder. In her statement she stated that the wife of Khim Singh, Himuli Devi, did not obey Khim Singh, therefore, Khim Singh was unhappy with her. She further stated that on the festival of Harela in the evening, there was a quarrel between Khim Singh and his wife. The next day in the morning, when Bahadur Singh opened the door of the house of Himuli Devi, she also found Himuli Devi lying dead. In her cross-examination she further testified that in the evening of the alleged mis-happening the accused was present in the house and he had a quarrel with his wife. She also stated that Himuli Devi was s short-tempered woman and had often the accused assaulted her. She also stated that earlier Himuli Devi had gone to jungle to hang herself. The entire testimony of such a natural witness cannot be thrown out merely if the prosecution asked to declare her hostile and on their request she was cross-examined by the prosecution. The first circumstance that Himuli Devi was short-tempered was further corroborated by the statement of Bachi Singh (PW-4) Pradhan of the village. Generally the Pradhan of the village keeps general information regarding the family matters and tries to settle such matter in the village. Pradhan is instrumental to settle family disputes at his level, therefore, as and when any such incident happens, the Pradhan is immediately intimated. In the instant case, Pradhan (PW-4) prepared the written report, got it scribed by Bahadur Singh,who had first seen the deceased lying dead inside her house and called the Pradhan immediately on the spot. In his statement, Bachi Singh, Pradhan, specifically stated that Khim Singh and his wife often used to quarrel and there was a rumour in the village that Himuli Devi was a woman of loose character and on account of the result accused Khim Singh was unhappy with her.

15. Joga Singh (PW-5), is also a resident of the same village. Though hesitatingly, this witness stated that so far as he knew the character of Himuli Devi was good. The learned Sessions Judge observed that such statement of Joga Singh(PW-5) is indicative of fact that probably Himuli Devi was a woman on whom Joga Singh (PW-5) never intended to make any specific remark. However, Joga Singh (PW-5) stated that accused and his wife sometimes used to have amicable relation and sometimes they used to quarrel. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. From the above narration of the testimony of the witnesses, it can be concluded that for the reason aforesaid, the accused was unhappy with his wife Himuli Devi and this resulted in quarrels between them off and on. The quarrel took place even in the evening preceding the date of the death.

17. In the night intervening 17th and 18th July, 1987 Himuli Devi was killed by means of a Kulhari. Except accused Khim Singh nobody was residing in the said house. Therefore, Himuli Devi could not be killed as a result of assault by anybody else other than the accused. The conduct of the accused in the morning of 18th July, 1987 was unnatural. He failed to explain as to where he remained on the fateful night. In the background of the aforesaid circumstances, it has to be examined whether the circumstances relied upon by the prosecution formed a series of events and whether the chain of circumstantial evidence was complete, which could be sufficient to show involvement of the accused in the commission of murder.

18. Manuli Devi (PW-1), clearly stated that in the evening of 17th July, 1987, Khim Singh and his wife had a quarrel. She, however, added that it was before the sunset. Manuli Devi being the mother of the accused is a very natural witness and the credibility of her testimony cannot be discarded. It is in her statement that she lived with her another son Lachham Singh in a separate house, which is adjacent to the house of the accused. She stated in unequivocal terms that Khim Singh and his wife lived together and she(Himuli Devi) did not obey the accused. Bachi Singh (PW-4), who is also a close neighbor, also stated that on the festival of Harela, i.e., on 17th July, 1987 at about 6.30 p.m., a quarrel took place between the accused and his wife and the shouts were heard by him. This part of his statement has not been challenged in the corss-examination. Bachi Singh (PW-4), being Pradhan of the village is an independent witness and, therefore, there was no reason for him to falsely implicate the accused for the offence of murder. Therefore, the prosecution successfully proved that there was a quarrel between the accused and his wife in the preceding evening. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. The accused in his statement under Section 313 Cr.P.C. in reply to the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his house. Such statement cannot be believed in absence of any explanation given by the accused as where he was in the night between 17th and 18th July, 1987. The accused could not explain as to where he was in the night of 17th July, 1987. The conduct of the accused was unnatural in not disclosing the place where he remained in the fateful night, making it clear that his statement under Section 313 Cr.P.C. was not believable. From the testimony of the real mother of the accused, Manuli Devi (PW-1) as well as Bachi Singh (PW-4), Pradhan of the village, it is fully established that the accused was very much present in the house on the fateful night and there was a quarrel between the accused and his wife. In the absence of any reason for leaving his house, it can be held that the accused remained in his house in that night.

20. Joga Singh(PW-5), in his testimony stated that when Khim Singh was found in the morning, he was asked about his whereabouts, in the night, which he could not explain.

21. Learned Sessions Judge for the said reason in the judgment observed that “this conduct of the accused in not explaining the alleged absence from the house would go to show the case taken by him that he was absent from the house is not believable. Obviously, the prosecution has been able to establish beyond doubt that this accused was present at his house in the night between 17th and 18th July, 1987. Having considered the material on record, the High Court was unable to disagree with the finding arrived at by the learned Sessions Judge on the point that the accused Khim Singh, was very much present in his house on the fateful day and we do not find any reason to disagree with such finding. Thus, the third circumstance is fully proved by the prosecution. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

22. The statement of Bachi Singh (PW-4), who clearly stated that none of the residents of the village had any enmity with the deceased Himuli Devi is very relevant. It is evident from the record that the accused failed to assign any reason for the alleged enmity of the villagers and he could not utter a single word to that effect in his statement under Section 313 Cr.P.C. Therefore, there is no reason to infer that anybody else from the village could have committed the murder of Himuli Devi who was in the house along with the accused-husband on the fateful night. The Investigation Officer, Narain Singh (PW-6), Patwari, was examined by the prosecution. He clearly stated that at the instance of the accused, Kulhari used in the crime was recovered. He was cross-examined by the defence. In cross-examination, he clearly denied the suggestion that the Kulhari (weapon of assault) was not recovered at the instance of the accused. The Medical Officer, Dr. N.D. Punetha (PW-7) in his examination in chief stated that ante mortem injury No.1 on the person of the deceased could have been caused by heavy sharp-edged weapon such as Kulhari and injury No.2 could have been caused by the blunt/rear side blow of Kulhari or by fall on the stony surface. This part of his statement was not questioned in his cross-examination. It has come in the statement of Investigation Officer (PW.6) that Kulhari recovered on the pointing of the accused was blood-stained and hair was stuck on it. He was cross-examined regarding the blood-stained portion of the Kulhari and the weight of the Kulhari, etc. It is established that blood-stained Kulhari-Ext.Ka-2 was seized by the Investigating Officer at the house of the accused.

23. Homicidal death of Himuli Devi is corroborated by the conduct of the accused in the morning of 18th July, 1987. Joga Singh (PW-5) stated that when the accused was found in the morning, he was asked about his whereabouts in the night and he was not able to explain it. Even Khimuli Devi (PW-2) wife of the brother of the accused, Lachham Singh, stated that accused was outside the house in the morning wandering here and there. Although accused was raising hue and cry that his wife was killed, he never bothered to contact the Pradhan or the Patwari concerned to lodge a report in the matter. However, statement of the accused that he was not present at the house in the night seems to be unbelievable considering the positive and credible testimony of Manuli Devi (PW-1) and other witnesses referred to above.

24. Bachi Singh (PW-4), stated that door of the house of the accused was not bolted from inside. This is one of the incriminating circumstances which can be taken into consideration to conclude that the accused after committing offence opened the door and went out.

25. The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh (Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that the accused was last seen with the deceased.

26. The above narration of chain of circumstantial evidence relied upon by the prosecution in the present case lead to the inference that the accused is guilty for the offence of murder of Himuli Devi as all the circumstances taken together lead to only hypothesis of the guilt of the accused-appellant. The chain of circumstantial evidence relied upon by the prosecution is complete to hold the accused guilty of the offence punishable under Section 302 IPC. We hold that the accused-appellant Khim Singh was rightly convicted and sentenced under Section 302 IPC for life imprisonment by the learned Sessions Judge as affirmed by the High Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27. As a result, the appeal preferred by the accused-appellant has no force and the same is liable to be dismissed. The appeal is, accordingly, dismissed. The impugned judgment under appeal is upheld. We appreciate the endeavour made by the learned amicus curiae, Mr. Feroze Ahmed in assisting the Court in the matter and direct to pay a sum of Rs.7,000/- as fee to the amicus curiae.

………………………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.

(V. GOPALA GOWDA)

NEW DELHI,

JULY 8, 2014.

ITEM NO.IB (For Judgment) COURT NO.6 SECTION II

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1986/2009

KHIM SINGH Appellant(s)

VERSUS

STATE OF UTTRAKHAND Respondent(s)

Date :08/07/2014 This appeal was called on for judgment today.

For Appellant(s) Mr. Feroz Ahmed (A.C.)

For Respondent(s) Mr. Jatinder Kumar Bhatia, Adv.

Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced the judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice V. Gopala Gowda.

The appeal is dismissed in terms of the signed judgment.

(Sukhbir Paul Kaur) (Usha Sharma)

Court Master Court Master

(Signed reportable judgment is placed on the file)

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Husband’s sacrosanct duty to finance support wife, if required earn money by physical labour !! Hon Supreme court!! July 15 2014

Excerpts
******************
"…..This delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual…."
"….. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. …."
"…In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied.
There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds….."

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1331 OF 2014
(Arising out of S.L.P. (Criminal) No. 1565 of 2013)

Bhuwan Mohan Singh … Appellant

Versus

Meena & Ors. …Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

The two issues that pronouncedly emanate in this appeal by special leave are whether the Family Court while deciding an application under Section 7 of the Family Court Act, 1984 (for brevity, “the Act”) which includes determination of grant of maintenance to the persons as entitled under that provision, should allow adjournments in an extremely liberal manner remaining oblivious of objects and reasons of the Act and also keeping the windows of wisdom closed and the sense of judicial responsiveness suspended to the manifest perceptibility of vagrancy, destitution, impecuniosity, struggle for survival and the emotional fracture, a wife likely to face under these circumstances and further exhibiting absolute insensitivity to her condition, who, after loosing support of the husband who has failed to husband the marital status denies the wife to have maintenance for almost nine years as that much time is consumed to decide the lis and, in addition, to restrict the grant of maintenance to the date of order on some kind of individual notion. Both the approaches, as we perceive, not only defeat the command of the legislature but also frustrate the hope of wife and children who are deprived of adequate livelihood and whose aspirations perish like mushroom and possibly the brief candle of sustenance joins the marathon race of extinction. This delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual.

Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

Presently to the facts which lie in an extremely small compass. The marriage between the appellant and the husband was solemnized on 27.11.1997 as per Hindu rites and ritual, and in the wedlock a son was born on 16.12.1998. The respondent, under certain circumstances, had to leave the marital home and thereafter filed an application on 28.8.2002 under Section 125 of the Code in the Family Court, Jaipur, Rajasthan, claiming Rs.6000/-per month towards maintenance. The Family Court finally decided the matter on 24.8.2011 awarding monthly maintenance of Rs.2500/- to the respondent-wife and Rs.1500/- to the second respondent-son. Be it stated, during the continuance of the Family Court proceedings, number of adjournments were granted, some taken by the husband and some by the wife. The learned Family Judge being dissatisfied with the material brought on record came to hold that the respondent-wife was entitled to maintenance and, accordingly, fixed the quantum and directed that the maintenance to be paid from the date of the order. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Being dissatisfied with the aforesaid order the respondent-wife preferred S.B. Criminal Revision Petition No. 1526 of 2011 before the High Court of Judicature at Rajasthan and the learned single Judge, vide order dated 28.5.2012, noted the contention of the wife that the maintenance should have been granted from the date of application, and that she had received nothing during the proceedings and suffered immensely and, eventually, directed that the maintenance should be granted from the date of filing of the application.

Criticizing the aforesaid order, it is submitted Mr. Jay Kishor Singh learned counsel for the appellant that when number of adjournments were sought by the wife, grant of maintenance from the date of filing of the application by the High Court is absolutely illegal and unjustified. It is his submission that the wife cannot take advantage of her own wrong.

Ms. Ruchi Kohli, learned counsel for the respondents would submit that the Family Court adjourned the matter sometimes on its own and the enormous delay took place because of non-cooperation of the husband in the proceedings and, therefore, the wife who was compelled to sustain herself and her son with immense difficulty should not be allowed to suffer. It is proponed by her that the High Court by modifying the order and directing that the maintenance should be granted from the date of filing of the application has not committed any legal infirmity and hence, the order is inexceptionable.

At the outset, we are obliged to reiterate the principle of law how a proceeding under Section 125 of the Code has to be dealt with by the court, and what is the duty of a Family Court after establishment of such courts by the Family Courts Act, 1984. In Smt. Dukhtar Jahan v. Mohammed Farooq[1], the Court opined that proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

A three-Judge Bench in Vimla (K.) v. Veeraswamy (K.)[2], while discussing about the basic purpose under Section 125 of the Code, opined that Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat and another[3], while adverting to the dominant purpose behind Section 125 of the Code, ruled that:

"While dealing with the ambit and scope of the
provision contained in Section 125 of the Code, it
has to be borne in mind that the dominant and
primary object is to give social justice to the
woman, child and infirm parents etc. and to prevent
destitution and vagrancy by compelling those who
can support those who are unable to support themselves
but have a moral claim for support. The provisions in
Section 125 provide a speedy remedy to those women,
children and destitute parents who are in
distress. The provisions in Section 125 are intended
to achieve this special purpose. The dominant purpose
behind the benevolent provisions contained in Section
125 clearly is that the wife, child and parents
should not be left in a helpless state of
distress, destitution and starvation."

In Chaturbhuj v. Sita Bai[4], reiterating the legal position the Court held: -

“Section 125 CrPC is a measure of social justice and
is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh ChanderKaushal v. Veena Kaushal[5] falls within
constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India. It is meant
to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and
shelter to the deserted wife. It gives effect to
fundamental rights and natural duties of a man to
maintain his wife, children and parents when they
are unable to maintain themselves. The aforesaid
position was highlighted in Savitaben SomabhaiBhatiya v. State of Gujarat[6].”

Recently in Nagendrappa Natikar v. Neelamma[7], it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children.

The Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. A three-Judge Bench in K.A. Abdul Jaleel v. T.A. Shahida[8], while highlighting on the purpose of bringing in the Family Courts Act by the legislature, opined thus: -

“The Family Courts Act was enacted to provide for
the establishment of Family Courts with a view to
promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and
family affairs and for matters connected therewith.”

The purpose of highlighting this aspect is that in the case at hand the proceeding before the Family Court was conducted without being alive to the objects and reasons of the Act and the spirit of the provisions under Section 125 of the Code. It is unfortunate that the case continued for nine years before the Family Court. It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

While dealing with the relevant date of grant of maintenance, in Shail Kumari Devi and another v. Krishan Bhagwal Pathak alias Kishun B. Pathak[9], the Court referred to the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001) and came to hold that even after the amendment of 2001, an order for payment of maintenance can be paid by a court either from the date of order or when express order is made to pay maintenance from the date of application, then the amount of maintenance may be paid from that date, i.e., from the date of application. The Court referred to the decision in Krishna Jain v. Dharam Raj Jain[10] wherein it has been stated that to hold that, normally maintenance should be made payable from the date of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the sub-section which the legislature never intended. The High Court had observed that it was unable to read in sub-section (2) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception. The High Court had also opined that whether maintenance is granted from the date of the order or from the date of application, the Court is required to record reasons as required under sub-section (6) of Section 354 of the Code. After referring to the decision in Krishna Jain (supra), the Court adverted to the decision of the High Court of Andhra Pradesh in K. Sivaram v. K. Mangalamba[11] wherein it has been ruled that the maintenance would be awarded from the date of the order and such maintenance could be granted from the date of the application only by recording special reasons. The view of the learned single Judge of the High Court of Andhra Pradesh stating that it is a normal rule that the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance was not accepted by this Court. Eventually, the Court ruled thus: -

“43. We, therefore, hold that while deciding an
application under Section 125 of the Code, a
Magistrate is required to record reasons for granting
or refusing to grant maintenance to wives,
children or parents. Such maintenance can be
awarded from the date of the order, or, if so
ordered, from the date of the application for
maintenance, as the case may be. For awarding
maintenance from the date of the application,
express order is necessary. No special reasons,
however, are required to be recorded by the court.
In our judgment, no such requirement can be read in
sub-section (1) of Section 125 of the Code in absence
of express provision to that effect.”

In the present case, as we find, there was enormous delay in disposal of the proceeding under Section 125 of the Code and most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court. However, we direct, as prayed by the learned counsel for the respondent, that he may be allowed to pay the arrears along with the maintenance awarded at present in a phased manner. Learned counsel for the appellant did not object to such an arrangement being made. In view of the aforesaid, we direct that while paying the maintenance as fixed by the learned Family Court Judge per month by 5th of each succeeding month, the arrears shall be paid in a proportionate manner within a period of three years from today. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Consequently, the appeal, being devoid of merits, stands dismissed.

………………………..J.

[Dipak Misra]

………………………..J.

[V. Gopala Gowda]

New Delhi;

July 15, 2014.

rape fear peaking @ bangalore. Schools want NO liability, parents say school liable 4 kidsafety, assault etc !!

FROM NDTV : "…..Many top schools have asked parents to sign the form that says that when their child participates in events organized by the school – including field trips, excursions and camps – the staff or teachers of the school can’t be held responsible for "damage to loss of property, sickness or injury from ‘whatever source’ legal entanglements, loss of life or money…….." !!!

1000s victims on socialmedia. Can v send a weekly slogan 2 politicians &powers dat b? FB, twttr ..etc ?

Thoughts on sending our message across
***********************************************************

* we have 1000s of victims on social media. At least 1000 dedicated & frequent on social media.
* a lot of politicians are on social media
* can we develop a **weekly short slogan** and write to politicians, judges, powers that be *on social media* ? lets keep some limits on how much to write. More creative & more coordinated, the better
* This way, we will use our energies, this way our social media time will be well spent, our message will reach an important audience
* Twitter hashtags, Fb chorus , whatever …
* what do you say ??
* please come with some ideas …at least some good one liners to start with

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

26-year-old alleges rape by US pilot after live in & daughter from live in !! Police trying to trace pilot !!

The complainant, who stays in south Delhi, claimed to have been introduced to the pilot by a common friend, who is an air hostess, at a party four years ago. He proposed soon after they became friends. She alleged that the man entered into physical relations with her by promising to marry her and she became pregnant…….

more below on news item …..

Cops book man twice in dowry case, second one AFTER SUPREME COURT-Arnesh Kumar order !!

Free Press Journal

Cops book man twice in dowry torture case

— By FREE PRESS NEWS SERVICE, July 16, 2014 12:11 am

NARSINGHPUR : In a one of its kind case the police registered the same case twice against a husband on the basis of complaint of his wife. He has been accused twice for demanding dowry from her.

According to sources, Mohan Choudhary, resident of Kalyanpur village was married to Durga Choudhary, daughter of Annilal, resident of Vasanpani in the year 1997. They have two children who live with him. Durga left him in the year 2008 and started living with her live in partner Atul Nema. In the year 2009 Mohan started living with a divorced woman Durga Bai, resident of Kalyanpur. After some time she left him accusing him of harassment for dowry and registered a case against him at the police station.

Few months back Mohan met his first wife and persuaded her to return and start living with him. When his second wife Durga came to know about this she returned to his house and drove her out of the house after assaulting her. Subsequently first wife Durga filed a complaint against her and Mohan. The police on the basis of her complaint arrested both of them and registered a case against them under sections 498 and 34.

source
http://freepressjournal.in

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

MadrasHC: Wife who already filed DV can merrilly go another place &file fresh DV @ new abode!!. Old DV b transferred to new place, husband has to run to new place to appear / answer etc !!

MadrasHC: Wife who already filed one DV case can merrily go to another place & file a fresh DV case at the new abode!!…Then, the old DV case will be transferred to new place, husband has to run to new place to appear / answer etc !!

Concept of TEMPORARY residence of the wife is stressed amply in this case with a good number of other cases sited !!

Sec 177 CrPc NOT considered !!

My brief understanding
*****************************************
* Woman got married and lives at Thirunelveli (say place A, matrimonial town)
* Her native place was Trichy (say Place B , call it birth / hometown )
* Disputes arose, matri cases were filed (at Place A, Thirunelveli)
* One fine morning she left matrimonial home and went away
* Wife also filed a DV case at the same place (at Place A, Thirunelveli)
* Husband and MIL are questioned by District welfare officer, Thirnelveli (Place A)
* Now ablaa nari goes away to yet another place, Pudukkottai (Place C, new abode !!, says her dad works there)
* She files a new DV complaint at new place – Pudukkottai (place C)
* The saga starts at Pudukkottai (place C) and the case from place A is transferred to place C
* Husband runs to HC with a revision petition
* HC says WOMAN can go to new place & file fresh DV complaint from new abode. Old DV case to be transferred to new place!!

Dr.M.Patchi Rajan vs The Protection Officer on 13 December, 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/12/2012

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

CRL.R.C.(MD)No.412 of 2012

and

M.P.(MD) No.1 of 2012

1.Dr.M.Patchi rajan

2.Savithiri Devi … Petitioners

Vs

1.The Protection Officer,

District social Welfare Office,

Tirunelveli District,

Tirunelveli.

2.The Protection Officer,

District Social Welfare Office,

Pudukkottai District,

Pudukkottai.

3.Dr.S.Akila … Respondents

PRAYER

Criminal Revision Petition filed under Sections 397 read with and 401 of Cr.P.C., to call for the records pertaining to the order passed by the Judicial Magistrate, Pudukkottai, Pudukkottai District in Cr.M.P.No.5961 of 2012 vide his order dated 27.07.2012 and set aside the same.

!For Petitioner … Mr.R.Anand

^For Respondents … Mr.P.Kandasamy, G.A.

For R1 and R2

Mr.G.Prabhu Rajadurai for R3

:ORDER

The Petitioners have focussed the instant Criminal Revision Petition as against the order dated 27.07.2012 in Cr.M.P.No.5961 of 2012 passed by the Learned Judicial Magistrate, Pudukkottai, in taking on file the ‘Domestic Incident Report’ filed by the second Respondent/Protection Officer, Pudukkottai, based on the complaint of the third Respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

2.The Learned counsel for the Petitioners submits that the first Petitioner is the Husband and the second Petitioner is the Mother-in-Law of the third Respondent and that the third Respondent has filed a complaint before the first Respondent/Protection Officer, District Social Welfare Office, Tirunelveli and that the second Respondent is the Protection Officer, District Social Welfare Office, Pudukkottai and certain Officers under the Act have been notified by the State Government, so as to look into the grievances of the Women/Wives and it is the further submission of the Learned counsel for the Petitioners that Section 2(n) of the Protection of Women from Domestic Violence Act, 2005 speaks of ‘Protection Officer" and Section 8 of the Act refers to the appointment of Protection Officers to be appointed by the State Government in each District by means of notification just like investigation Officers and indeed he cannot exercise his jurisdiction beyond a particular District.

3.It is the plea of the Learned counsel for the Petitioners that particular District Officer alone has jurisdiction to entertain an application and Section 9(2) of the Act, enjoins that the Protection Officer shall be under the control and supervision of the Magistrate and he shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.

4.Advancing his argument, the Learned counsel for the Petitioners takes a stand that a complaint can be lodged in two matters viz., (i) a complaint straight away can be given to the Protection Officer and (ii) a complaint can be straight away given to the Judicial Magistrate concerned. Also, if a complaint is made under Section 4 of the Act, the Protection Officer will issue notice to the parties concerned and parties will appear before him and in fact, a Protection Officer like the Investigation Officer can investigate the matter and after examining the parties, he will prepare a report, which is called the ‘Domestic Incident Report’ as per Section 2(e) of the Act. The said report will be forwarded to the Judicial Magistrate of the area by the Protection Officer and that will be taken cognizance of by the Magistrate for proceeding further.

5.That apart, it is the contention of the Learned counsel for the Petitioners that the other mode is that an aggrieved woman straight away can prefer a complaint before the Judicial Magistrate concerned as per Section 12 of the Act, by presenting an application under Section 12(1)(3) of the Act and in the instant case on hand, the procedure, prohibited under Section 4 of the Act, has been followed. Furthermore, the third Respondent has lodged a complaint before the first Respondent/Protection Officer, Tirunelveli in October 2011 alleging that she has been subjected to the Domestic Violence Act. According to the first Respondent, the first Petitioner (Husband) and the second Petitioner (Mother in law) are responsible for that and that the incident has taken place on 05.06.2012. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6.As a result of the wedlock between the first Petitioner and the third Respondent (both being Doctors by profession), two children have been born and all lived together separately in an Apartment at Tirunelveli from the date of marriage. During the end of 2011, a misunderstanding has been arisen between the first Petitioner and the third Respondent, as a result of which, without giving information, the third Respondent (wife) has taken the children after locking the Apartment and has gone to ‘Apollo Scan Centre’ at Pudukkottai, where her father has been working. The third Respondent’s native place is Tiruchirappalli, where her parents home is situated. According to the first Petitioner, since her father has been working at the ‘Apollo Scan Centre’ at Pudukkottai, she has gone to Pudukkottai and at that relevant point of time, she was not available at Tirunelveli.

7.The Learned counsel for the Petitioners brings it to the notice of this Court that the first Petitioner/Husband filed H.M.O.P.No.38 of 2009 on the file of the Learned Additional Subordinate Judge, Tirunelveli and the same has been pending when the third Respondent has left Tirunelveli. Furthermore, on one fine morning, the Petitioners have been served with the summons by the first Respondent/Protection Officer, Tirunelveli in and by which, they have been directed to appear before him on 06.02.2012 at 11.00 a.m., in her office at Tirunelveli. Accordingly, the first and second Petitioners have appeared before the first Respondent and the third Respondent has also been present. The Petitioners also have been informed about the allegations against them and they have been required to submit their explanations in regard to the allegations pertaining to them. A detailed explanation in writing has been given to the first Respondent on 06.12.2012. At this stage, it is the plea of the Petitioners that the third Respondent has been examined orally by the Protection Officer in regard to the veracity of the allegations made. For nearly an hour, the Petitioners have been examined by the first Respondent/Protection Officer and the third Respondent has also been examined fully on that date. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8.The first Respondent/Protection Officer informed that she would prepare a report based on the allegations and counter allegations and the same would be forwarded to the concerned Judicial Magistrate, Tirunelveli. While, this being so, the second Respondent/Protection Officer of Pudukkottai District has issued another summons dated 19.03.2012, calling upon the Petitioners to appear before him on 26.03.2012. The third Respondent (Wife of the first Petitioner) has given a second complaint from Tiruchirappalli address and on receipt of the second summons, the Petitioners have been asked and on 23.03.2012, they sent a detailed representation in writing through registered post acknowledgment due to the second Respondent, making it clear that for the very same accusation, the Petitioners cannot be prosecuted again. Also, a stand has been taken on behalf of the Petitioners that the second Respondent has no jurisdiction to entertain the second complaint and has also prayed for dropping of all further proceedings. According to the Learned counsel for the Petitioners, the second Respondent/Protection Officer, without hearing the petitioners has prepared a ‘Domestic Incident Report’ dated 23.07.2012 and the same has been forwarded to the Learned Judicial Magistrate, Pudukkottai under Section 12 of the Act. The Learned Judicial Magistrate has taken cognizance of the same on 27.07.2012.

9.In the meanwhile, the third Respondent, even before the first Respondent submitting her report to the Court concerned, has sent a representation to the District Collector, Tirunelveli on 07.01.2012, whereby, she has made a request to transfer her complaint to the second Respondent/Protection Officer at Pudukkottai. The Learned counsel for the Petitioners brings it to the notice of this Court that the District Collector, Tirunelveli has passed orders on 13.01.2012, based on which, the first Respondent/Protection Officer has transferred the oral complaint of the third Respondent/Wife to the second Respondent/Protection Officer at Pudukkottai. At this stage, it is the strenuous plea of the Learned counsel for the Petitioners that the District Collector, Tirunelveli has usurped the power of Judicial Magistrate and thereby, directed the first Respondent/Protection Officer, Tirunelveli, to transfer the oral complaint of the third Respondent to the second Respondent/Protection Officer at Pudukkottai, whereby the filing of ‘Domestic Incident Report’ dated 23.07.2012 has come into existence. It transpires that in M.P.(MD) No.1 of 2012, in the main Revision Case, this Court has granted interim stay of the entire proceedings pending on the file of the Learned Judicial Magistrate, Pudukkottai in Cr.M.P.No.5961 of 2012.

10.The Learned counsel for the Petitioners primarily contends that the first Respondent/Protection Officer, Tirunelveli will be under the control of the Learned Judicial Magistrate concerned and he is not under the control of the District Collector for the purpose of the Act. Continuing further, the Learned counsel for the Petitioners brings it to the notice of this Court that every district, there is a separate Social Welfare Office and in the Office, a Senior Officer is nominated as Protection Officer and Rule 3 of the Protection of Women from Domestic Violence Rules, 2006 speaks of ”Qualification and experience of Protection Officer and Rule 4 speaks of ‘Information to Protection Officers’ and Rule 8 refers to the ‘Duties and Functions of the Protection Officers’. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11.The Learned counsel for the Petitioners submits that Rule 4(3) of the Protection of women from Domestic Violence Rules, 2006 is similar to Section 154(2) of Cr.P.C., viz., the Registration of F.I.R and Rule 5 refers to ‘Domestic Incident Reports’ and Section 9(2) of the Act says that the Protection Officer shall be under the control and supervision and shall perform the duties imposed on him by the Magistrate.

12.The gravamen of the attack made by the Learned counsel for the Petitioners is that the District Collector, Tirunelveli based on the order dated 13.01.2012, directing the first Respondent/Protection Officer to transfer the complaint of the third Respondent to the second Respondent/Protection Officer, based on which the original proceedings have been initiated and in fact, the original complaint of the third Respondent has not been dealt with in accordance with the Protection of Women from Domestic Violence Act, 2005. In effect, the contention of the Learned counsel for the Petitioners is that as per the version of the third Respondent/Wife, everything has been taken place at Tirunelveli viz., the marriage, they were living together at Tirunelveli, children born to them at Tirunelveli and separate stay at Tirunelveli and only after filing of H.M.O.P.No.38 of 2009 on the file of the Learned Additional Subordinate Judge, Tirunelveli, she has gone to Trichirappalli and joined her parents and she is not living with the first Petitioner and that the children are in her custody. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13.Also, the Learned counsel for the Petitioners draws the attention of this Court that Rule 3(4) of the Rules, refers to the State Government shall provide necessary office assistance to the Protection Officer for the efficient discharge of his or her functions under the Act and Rules.

14.It is the contention of the Learned counsel for the Petitioners that Section 28 of the Protection of Women from Domestic Violence Act, 2005 will apply that Section 28 refers to the application of Criminal Procedure Code and in this regard, Section 177 of Cr.P.C. refers to the place of enquiry of trial and in the present case on hand, the commission of alleged domestic violence has occurred within the jurisdiction of Tirunelveli and therefore, the Learned Judicial Magistrate, Pudukkottai has no jurisdiction to take cognizance of Cr.M.P.No.5961 of 2012 to his file.

15.The Learned counsel for the Petitioners cites a decision of Hon’ble Supreme Court in Manish Ratan and others Vs. State of M.P. And another reported in (2007) 1 Supreme Court Cases (Cri) 336, at 337, wherein, it is interallia held that "In view of S.177, which ordains that offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed, the offence in question must be inquired into and tried by Court at Jabalpur and not by Court at Datia where no part of cause of action arose". As such, the Petitioners contend that since even according to the third Respondent, everything has taken place at Tirunelveli, the Learned Judicial Magistrate, Pudukkottai ought not to have taken cognizance of Cr.M.P.No.5961 of 2012 to his file based on the Domestic Incident Report to the second Respondent. The occurrence at Tirunelveli cannot be taken cognizance of by the Learned Judicial Magistrate, Pudukkottai.

16.Apart from the above, the Learned counsel for the Petitioners bring it to the notice of this Court that after filing of the Domestic Incident Report by the second Respondent, a divorce decree dated 06.10.2012 has been granted in favour of the first Petitioner in H.M.O.P.No.38 of 2009 by the Learned Additional Subordinate Judge, Tirunelveli and a Civil Miscellaneous Appeal in C.M.A.No.33 of 2012 on the file of the District Court, Tirunelveli has been filed by the third Respondent/Wife against the divorce decree in H.M.O.P.No.38 of 2009 and as on date, the third Respondent cannot claim the status of Wife and she cannot call the first Petitioner as Husband and the second Petitioner is not her Mother-in-law. To put it succinctly, the submission of the Learned counsel for the Petitioners is that after the grant of divorce decree in H.M.O.P.No.38 of 2009, the status of Husband will not be there. As such, the grant of divorce decree in H.M.O.P.No.38 of 2009 can be taken note of by this Court as a subsequent development in the case in issue.

17.Another limb of the argument projected by the Learned counsel for the Petitioners is that an aggrieved person cannot be equated that the divorce woman or only an aggrieved woman can complained under Section 12 of the Protection of Women from Domestic Violence Act, 2005. In this connection, the Learned counsel for the Petitioners seeks in aid of the decision in Sunil Kumar Gupta Vs. Shalini Gupta 2012(4) Crimes 199 (Uttar), wherein, at 200, in paragraph Nos.8 and 9, it is interalia observed as follows:

"Furthermore, in the instant case, the status of Smt.Shalini Gupta is of a divorced wife. Now, no matrimonial relationship exists between the parties. Their marriage stood annulled. So, her status cannot be equated with that of an "aggrieved person" as envisaged in the provisions of Section 2(a) of the Act of 2005. In the decree of divorce, no mention was made by the learned Judge, either in the trial or in appeal, regarding the provision of residence of Smt. Shalini Gupta by her husband either by way of rent, as she was residing separately, or in the same shared household. All that was granted to her was the maintenance to the tune of rupees seven thousand per month, which includes all her expenses including the residence.

9.So, in view of the above, since Smt. Shalini Gupta, though had been in the domestic relationship with Sunil Gupta, but that relationship has been legally broken by a decree of annulment of marriage passed by a competent court having jurisdiction over the matter, which stands affirmed by this High Court, hence, the status of Smt. Shalini Gupta cannot be equated with a woman who has been in domestic relationship as envisaged in the definition provided under Section 2(a) of the Act of 2005. Therefore, she cannot be said to be an "aggrieved person" with the result that the right of alternative accommodation from her erstwhile husband, in the shared household or by way of rent for the same, is not available to her."

18.In sum and substance the submission of the Learned counsel for the Petitioners is that ‘a divorced woman’ will not be an aggrieved person. Furthermore, the Learned counsel for the Petitioners contends that the third Respondent is in custody of the children and she has secured a Government Job employed as Doctor at Thuraiyur during last month and if the third Respondent is desirous of settling the matter by way of maintenance being paid to her, the first Petitioner is ready and willing to settle the matter. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19.Per contra, the Learned counsel for the third Respondent/Wife submits that the Protection of Women from Domestic Violence Act, 2005 is a special Act and Section 2(f) of the said Act speaks of ‘Domestic Relationship’ and Section 3 of the Act provides for various types of omission or commission or conduct of a person, which constitute domestic violence and what the Act contemplates is some kinds of relationship that existence between the parties and Section 2(f) of the Act refers to the relationship between two persons, who live or have, at any point of time, lived together in a shared household, etc and the decision in Sunil Kumar Gupta Vs. Shalini Gupta 2012(4) Crimes 199 (Uttar), has not excluded the divorce persons and if divorce women are excluded, then many such persons would be excluded and indeed this Act help divorced women also and in any event, the said decision will not come to the aid of the Petitioners.

20.Expatiating his submissions, the Learned counsel for the third Respondent contends that an aggrieved person within the purview of the Act 43 of 2005 can initiate the commencement of proceedings and in regard to the jurisdictional aspect, Section 27 of the Act confers jurisdiction on the Learned Judicial Magistrate of First Class or the Metropolitan Magistrate of the local limits, can grant protection order and other orders under the Act and to try offences under this Act, based on (a)the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b)the respondent resides or carries on business or is employed; or (c) the cause of action has arisen and the third Respondent cannot be allowed to run from pillar to post and even if she resides at a particular place, either transitorily or permanently or carries on business or his employed etc., the concerned area Jurisdictional Magistrate is competent to try the offence and pass appropriate protection order. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

21.Added further, the third Respondent’s house is at Pudukkottai (temporary place of residence) and the same can be used by her to initiate cause of action and the role of the Protection Officer under the Act is to aid a person in distress and he must assist the person, who is in distress and as such, one need not go into the technicalities. In this connection, the Learned counsel for the third Respondent draws the attention of this Court to Section 57 of the Act, which refers to the duties of Police Officers, Service Providers and Judicial Magistrate and that the Learned Judicial Magistrate has a social duty as a whole and the Protection Officer to work under the Learned Judicial Magistrate. Also, the second Respondent/Protection Officer at Pudukkottai has to submit a report though the incident has taken place at Tirunelveli and in this regard, there is no question of jurisdiction and there is no illegality committed by the first Respondent/Protection Officer, Tirunelveli in forwarding the concerned papers to the second Respondent. Besides this, the purported intervention of the District Collector, Tirunelveli is not illegal because of the fact that the Collector has advised the first Respondent/Protection Officer to transmit the petition of the third Respondent to the second Respondent at Pudukkottai and in fact, the third Respondent has given an application to transmit her application, since she is residing with her parents at Pudukkottai and therefore, the District Collector, Tirunelveli has not acted suo motu, but advised the first Respondent/Protection Officer in this regard, only based on the request made by the third Respondent and all the more, the Collector of Tirunelveli District has a duty to comply with the legitimate request made by the third Respondent.

22.Yet another plea taken on behalf of the third Respondent is that the District Collector, Tirunelveli instructed to the first Respondent/Protection Officer to the transfer the petition of the third Respondent to the second Respondent will not make the matter as illegal one. As such, the Tirunelveli District Collector has rightly advised the first Respondent to transfer the complaint of the third Respondent to the second Respondent at Pudukkottai, since she has been residing at the temporary address of her parents at Pudukkottai. Only a formal application has been submitted by the third Respondent, while making a request to the District Collector, Tirunelveli, to transfer her petition/complaint from the file of the first Respondent/Protection Officer, Tirunelveli to the second Respondent/Protection Officer, Pudukkottai. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

23.The Learned counsel for the third Respondent submits that as per Section 9(2) of the Act, the District Collector is the agent of the Government and by transferring the petition/complaint of the third Respondent from Tirunelveli to Pudukkottai, the Petitioners would not in any way be prejudiced and also that in Law, they do have all rights to defend the proceedings before the Learned Judicial Magistrate at Pudukkottai. Moreover, the Learned counsel for the third Respondent (Wife) contends that when the Learned Judicial Magistrate passed an order in Cr.M.P.No.5961 of 2012, it is only like a civil proceedings and also that the third Respondent has filed H.M.O.P.No.25 of 2012 for restitution of conjugal rights against the first Petitioner, in which an exparte decree has been passed and now, the first Petitioner has filed Interlocutory Application to set aside the same is now pending for a final determination.

24.In addition, as per Section 27 of the Act, the third Respondent is now temporarily residing along with her parents at Pudukkottai and as such, the Cr.M.P.No.5961 of 2012 taken cognizance by him on 27.07.2012 is not per se illegal. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25.The Learned counsel for the third Respondent contends that the Father of the third Respondent has been employed temporarily in Apollo Scan at Pudukkottai and during that period, the third Respondent (Wife) has been at Trichy in her parents house and initially, she has chosen the Forum at Tirunelveli and later, she has been temporarily residing at Pudukkottai address with her parents.

26.Proceeding further, the Learned counsel for the third Respondent submits that the third Respondent is the only daughter to her parents and her father has been running Scan Centre (as Proprietor at Pudukkottai) and that the first Petitioner/Husband has filed a caveat petition at Pudukkottai and therefore, her temporary place of residence confers jurisdiction on the Learned Judicial Magistrate, Pudukkottai, to take cognizance of the matter. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27.Countering the submissions of the learned counsel for the third Respondent, the Learned counsel for the Petitioners submits that in this case, the third Respondent has given a letter to the first Respondent/Protection Officer, Tirunelveli on 14.02.2012, making a request to transfer her petition to Pudukkottai and even before her application, the District Collector of Tirunelveli has intervened in the matter on 13.01.2012 as mentioned by the first/Respondent Protection Officer and in his communication dated 29.02.2012, addressed to the second Respondent, wherein, the advice of the Collector has been mentioned and the intervention of Collector, is therefore not correct in the eye of Law.

28.It appears that the first Petitioner has sworn to a Caveat Affidavit on 28.02.2012 before the District Court, Tirunelveli in regard to the proposed Civil Miscellaneous Appeal to be filed by the third Respondent against the divorce decree in H.M.O.P.No.38 of 2009, granted by the Learned Additional Subordinate Judge, Tirunelveli. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

29.The Learned counsel for the third Respondent cites an order dated 22.04.2009 in Criminal Miscellaneous Transfer Petition No.03 of 2007 – Vijay Singh and Others of the Rajasthan High Court, wherein, it is interallia observed as thus:

"So far as the temporary residence of the respondent No.2 is concerned, she has elaborately stated in the complaint narrating the circumstances in which she has temporarily been residing at Bheem. It is reported that father of the respondent No.2 has been transferred from Bheem to Railmagra at a distance of 135 km. The mother of the respondent No.2 is continuously residing at Bheem and in the circumstances therefore, she has no option except to continue at Bheem. Since the allegation in the complaint is that she has been turned out from the matrimonial home, however, it has been stated that since her father has been posted to Mailmagra and therefore, her mother would also go to Railmagara and therefore, she has independent accommodation at Bheem where she is residing for some time. Be that as it may, Section 27 of the Act of 2005 confer jurisdiction even where a person is residing temporarily and therefore, in my view, it is not a fit case warranting transfer of case from Bheem to any other Court making the respondent No.2 lady who alleged to have been turned out to go and pursue her case. The transfer petition is therefore, dismissed. Stay petition also stands dismissed."

30.He also relies on the order dated 17.05.2012 in Crl.M.C.No.3083 of 2011 and Crl.M.A.10914 of 2011 of Delhi High Court in Shambhu Prasad Singh V. Manjari, wherein, in para 9 to 12, it is observed and laid down as follows:

"9. The basic objective in enacting the Act is to secure various rights to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship. Domestic violence, is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to such domestic violence is given the right to move to Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, right to residence, compensation etc. or even move to Court seized of any other pending proceeding, such as divorce and maintenance etc. (Section 26). Section 17 has, for the first time, enacted a right to residence in favor of such women. The Act being a beneficial one, the Court should adopt a construction to its provisions which advances the parliamentary intention rather than confining it. If the latter course is adopted the result would be to defeat the object of the law. As noticed earlier, domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for more than one relief. The Court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence etc. If such an order is violated by the respondent (a term defined in the widest possible terms, to include female relatives of the husband or the male partner etc), such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act.

10. In Ajay Kant (supra) the Madhya Pradesh High Court held, turning down a contention identical to that of the respondent (in this case) that:

"On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer or the service provider. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. The words before passing any order provide that any final order on the application and not merely issuance of notice to the respondent/the petitioners herein. The words any report also mention that a report, if any, received by a Magistrate shall be considered. Thus, at this stage if the report has not been called or has not been considered, it cannot be a ground for quashing the proceeding." http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

A similar view was taken by the Jharkhand High Court in Rakesh Sachdeva (supra):

"12. It would thus appear that the proviso to Section 12 would impose that before passing any order on an application of the aggrieved person, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer. The order contemplated in the proviso relates to the final orders, which the Magistrate, may pass under Section 18 of the Act. The Protection orders, which the Magistrate may pass under Section 18 of the Act, is only on being prima facie satisfied that the domestic violence has taken place or is likely to take place. The insistence to take into consideration the domestic incident report of the Protection Officer would therefore, not apply at the stage of initiation of the enquiry under Section 12 of the Act. The contention of the petitioners that without considering the domestic incident report, the very initiation of the enquiry is bad, appears to be misconceived and therefore, not tenable."

11. After examining both the views, the Guwahati High Court in Md. Basit (supra) expressed a slightly different view:

"10. I partly agree and partly disagree with the views taken by the Hon"ble Madhya Pradesh High Court and Jharkhand High Court. In my considered opinion, Section 12 does not deal with passing of final orders. Final orders are passed under Sections 18,19, 20, 21 and 22 of the Act only. Sec. 12 is akin to Sec 200 of the Criminal Procedure Code, 1973. Section 12 only contemplates as to who can file a complaint, what reliefs can be sought for, what should be the contents of the complaint and how the complaint can be examined thereafter. If these preconditions are satisfied the court can take cognizance of the complaint, subject to making out a prima facie case on facts. Unlike Sec. 200 CrPC there is no requirement of recording preliminary statement of the aggrieved person, filing a complaint under Sec. 12 of the DV Act, for the purpose of taking cognizance thereof.

11. Under Section 12(1) of the DV Act, an application/complainant can be filed before a Magistrate either by an aggrieved person or by a Protection Officer or any other person on behalf of the aggrieved person. In this way, Section 12(1) does not contemplate that such an application should invariably be accompanied by a report from a Protection Officer. Proviso to Section 12(1) is in the nature of a rider, which mandates that the Magistrate shall consider any domestic incident report, if received by him either from a Protection Officer or Service Provider. I have already mentioned earlier that an application under Section 12 can be independently filed by an aggrieved person, which may not be accompanied by any report from a Protection Officer. However, if any report from a Protection Officer is available before the Magistrate that shall have to be taken into consideration, but, the law does not impose a precondition for the Magistrate to call for a report from the Protection Officer. On this point I differ with the view taken by Hon’ble M.P. High Court, wherein it has been held that it is not obligatory for the Magistrate to consider the report. With the same analogy, I also differ with the view taken by the Hon’ble Jharkhand High Court wherein, it has been held that "the insistence to take into consideration the domestic incident report of the Protection Officer would therefore, not apply at the stage of initiation of the enquiry under Section 12 of the Act". http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. For aforesaid reasoning, I approve the view taken by the learned Sessions Judge that it is not obligatory for a Magistrate either to call for a report from a Protection Officer or a Service Provider at the stage of taking cognizance of the complaint. However, if any such report is available before the Magistrate, the same should be taken into consideration."

12. This court notices that Section 23 empowers the Magistrate to pass such ex- parte interim orders as he may deem just and proper, based only on the affidavit of the aggrieved person. Nowhere does this provision express or imply by necessary intendment that the consideration of the DIR is obligatory. Since an ex-parte interim order may be granted immediately upon institution of the complaint, it is likely that the Protection officer’s DIR may not be prepared by then. Thus, the Magistrate is definitely empowered to exercise this power, and pass interim order(s) against the concerned respondent. If this can be done without considering the DIR, then certainly notice to the respondent must also be allowed to be served without first considering the DIR."

31.The Learned Government Advocate (criminal side) appearing for the first and second Respondents submits that the District Collector, Tirunelveli has not done anything illegal in the subject matter in issue and in fact, he has advised the first Respondent/Protection Officer, Tirunelveli by letter dated 13.01.2012, to transfer the petition of the third Respondent although the application has been submitted by her on 14.02.2012 and in fact, the application is only a formal one.

32.The Learned Government Advocate (criminal side) appearing for the first and second Respondents vehemently contends that it cannot be said that the District Collector, Tirunelveli has usurped the power of the Learned Judicial Magistrate and really he has not decided controversies/issues in between the parties and as a District Head, he has advised the first Respondent/Protection Officer bonafide and it cannot be found fault with by the Petitioners. Moreover, the third Respondent in her application dated 14.02.2012 has given her address at Pudukkottai and in the said letter, she has clearly stated that she is presently residing with her parents (who are at pudukkottai), where her father is running ‘Apollo Scan Centre’. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33.According to the Learned Government Advocate (Criminal Side) as per Section 27 of the Act, even a temporary residence of an aggrieved person will confer jurisdiction on the part of the Learned Judicial Magistrate of the local area to take cognizance of the matter in issue. Also, as per Section 27(c) of the Act, if a cause of action has also arisen, that will also clothe the Magistrate concerned to entertain the matter and as such there is no illegality committed by the Learned Judicial Magistrate, Pudukkottai, in taking cognizance of the report of the second Respondent/Protection Officer, Pudukkottai on 27.07.2012.

34.It is to be borne in mind that Section 177 of Cr.P.C. speaks of an ordinary place of enquiry and trial. Generally, it is for the prosecution to establish that the concerned Court has jurisdiction. No wonder, the jurisdiction does not depend upon the attitude of parties. At this stage, this Court pertinently points out that the Rule prescribed under Section 177 of Cr.P.C is one of general application and will govern a criminal trial held under the provisions of the Criminal Procedure Code. Admittedly, Section 177 Cr.P.C has employed the term ‘ordinarily’. By and large, the territorial jurisdiction of a Court in regard to criminal offence would be decided on the basis of the place of occurrence of incident and not on the basis, where the complaint was filed or the F.I.R. was registered. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35.As far as the present case is concerned, the provisions of Protection of Women from Domestic Violence Act, 2005 is a special Act and the proceedings under this Act are basically civil in nature. In fact, there is no illegality, if a person directly approaches the Magistrate for taking cognizance in the matter in issue. It is for the Learned Judicial Magistrate concerned to take the help of the Protection Officer and Service Providers after receiving the complaint provided, he feels it necessary for final disposal of the dispute between the parties. If the parties concerned or the Magistrate takes the help of the Protection Officer, he will submit a ‘Domestic Incident Report’ to the Magistrate concerned as per decision in Milan Kumar Singh Vs. U.P., 2008(4) R.C.C. (Civil) 659 at p.661 (All)

36.Even the Judicial Magistrate of the First Class or the Metropolitan Magistrate as the case may be within the local limits of which the person aggrieved permanently or temporarily resides does also have territorial jurisdiction to deal with the matter as prescribed under Section 27(1) (a) of the Protection of Women from Domestic Violence Act, 2005, as per decision in Mony V. Leelamma, 2007(55) A.I.C.336 at p.339 (Ker.) : 2007(3) J.C.C.2113 (Ker.). Also Section 28 of the Act speaks of procedure viz., except otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973(2 of 1974).

37.Coming to the present facts on hand, even though the third Respondent has given her original complaint before the first Respondent/Protection Officer at Tirunelveli and her marriage has taken place at Tirunelveli and she has lived for some time at Tirunelveli and has also given birth to her children at that place, only at the behest of the District Collector, Tirunelveli advice and also based on the application dated 14.02.2012, wherein, she has given her Pudukkottai address and stated that she has been residing with her parents at Pudukkottai, the complaint/petition has been transferred to the second Respondent/Protection Officer at Pudukkottai, which is not per se illegal in the eye of law. The action of the District Collector cannot be found fault with, as he has not passed any judicial orders and also not usurped the powers of the Learned Judicial Magistrate concerned, as opined by this Court. As a matter of fact, he has only advised the first Respondent/Protection Officer in a proper manner and it cannot be forgotten that in the instant case, the third Respondent has given a letter of request on 14.02.2012, seeking transfer of her original petition from Tirunelveli to the file of the second Respondent/Protection Officer only based on the report of the second Respondent/Protection Officer, the Learned Judicial Magistrate has taken the cognizance of the matter. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

38.This Court, on the basis of the facts and circumstances encircling the present case does not find any impropriety or illegality in the order passed by the Learned Judicial Magistrate in taking cognizance of Cr.M.P.No.5961 of 2012 on file and directing the respondent to appear before him on 31.07.2012.

39.In this connection, this Court aptly points out that the words ‘Aggrieved Person’ is of ancient origin, appearing on the Statute Roll of 1363; "et outre le dit Roy voet que sinul se sent grevez, mette avant sa petition en ce Parlement et il en avera convenable respons". (vide 1 Cliff. 272). Furthermore, for the purpose of finding out the rights of appeal, any person, who is in any sense a party to a legal proceeding is "aggrieved" by a wrong decision with regard to the proceedings as per decision in Re Reed & Co., (1887) 19 QBD 174. That apart, the terms of ‘Aggrieved Person’ denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition as per decision Jasbhai Motibhai Desai V. Roshan Kumar, Haji Bashir Ahmen, A.I.R. 1976 SC 578 at special page 581.

40.Also that, this Court opines that since the divorce decree obtained by the first Petitioner/Husband in H.M.O.P.No.38 of 009, is now under challenge by the third Respondent/Wife (as an Aggrieved Person) in C.M.A.33 of 2012 and pending on the file of the District Court, Tirunelveli and also that the third Respondent/Wife has obtained a restitution of conjugal decree against the first Petitioner/Husband and all the more, when the first Petitioner has filed Interlocutory Application to set aside the same, these are all matters still wide open between the parties. Therefore, this Court has not expressed any opinion about the merits of the pending matters and it is for the parties to work out their remedies before the competent Forum at the appropriate stage. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

41.The reference made by the Learned counsel for the Petitioners that the third Respondent in her Form No.1 of the Domestic Incident Report has seen from Page No.22 of the typed set has given her present address at Trichy-20 and the first Petitioner’s address is at Palay, Tirunelveli and also the request made by her in page No.25 of the typed set to handover her Silk Sarees, Synthetic Sarees etc. and the address being mentioned as T3, Adura Arulagam Apartment at Palay, Tirunelveli, do pale into in significance or relegated to the background in view of the fact that Section 27(a) of the Act confers jurisdiction to the concerned Metropolitan Magistrate to take cognizance of the matter of an aggrieved person, who resides permanently or temporarily etc. and also the cause of action has arisen partly.

42.In the upshot of all the qualitative and quantitative discussions as stated supra and also taking note of the entire conspectus of the facts and circumstances of the case in an attendant fashion, this Court comes to an inescapable conclusion that the Learned Judicial Magistrate, Pudukkottai has not committed any error of jurisdiction at the time of taking cognizance of Cr.M.P.No.5961 of 2012 on his file and ordering issue of notice for the appearance of the parties etc., warranting interference in the hands of this Court sitting in Revision. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

43.It is made clear by this Court that this Court has not dealt with controversies/disputes between the parties in detail or gone into the merits and demerits of their case, but, has only assessed the prima facie case in accordance with law as to whether the Learned Judicial Magistrate is correct or not in taking the Cr.M.P.No.5961 of 2012 on his file based on the facts and circumstances encircling the case and also float on the surface.

44.In the result, with the above said observations, the Criminal Revision Petition is disposed of. It is open to the parties to raise all factual and legal pleas before the trial Court at the time of final hearing of Cr.M.P.No.5961 of 2012 and to seek appropriate remedy in accordance with law and in the manner known to law, if they are so advised. Consequently, connected miscellaneous petition in M.P.(MD) No.1 of 2012 is closed.

Arul

To

1.The Protection Officer,
District social Welfare Office,
Tirunelveli District,
Tirunelveli.

2.The Protection Officer,
District Social Welfare Office,
Pudukkottai District,
Pudukkottai.

3.The Judicial Magistrate,
Pudukkottai.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist