amount paid at famly court in matri case adjusted in Sec125 dues & NO arrest of hubby! Jharkhand HC

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 469 of 2014
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Birendra Prasad @ Birendra Prasad Soni …… Petitioner
Versus
1.The State of Jharkhand
2. Gayatri Devi …… Opposite Parties
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CORAM: HON’BLE MR. JUSTICE AMITAV K. GUPTA

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For the Petitioner : Mr. Shresth Gautam, Advocate
For the State : A.P.P.
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05/Dated: 19th September, 2014

Learned counsel for the petitioner has submitted that the petitioner has already deposited Rs. 50,000/- as permanent alimony in terms of the order of the Family Court in Matrimonial Case No. 33 of 2008.

It is further submitted that in the proceeding under Section 125 of the Cr.P.C., petitioner has been directed to pay the maintenance amount @ Rs. 3,000/- per month. It is also submitted that the total amount till date payable is Rs 69,000/- in terms of the order dated 06.10.2012 passed in M.P. Case No. 38 of 2009 filed under Section 125 of the Cr.P.C..

That since Rs. 50,000/- has already been deposited by the petitioner as permanent alimony, thus the outstanding amount is Rs. 19,000/- after deduction of the amount of permanent alimony. That he is willing to deposit 50% of the remaining amount i.e. Rs. 10,000/- (ten thousand).

Since the petitioner has already deposited Rs. 50,000/- in the Court of Principal Judge Family Court, Daltonganj on 13.04.2010 (as per Annexure-2) and he is ready to deposit i.e. Rs. 10,000/- (ten thousand) by way of draft in the court below within two weeks, the court below shall stay the execution of the warrant against the petitioner.

I.A. No. 3776 of 2014 Issue notice to the O.P. No.2 under registered cover with A/D as well as under ordinary process, for which requisites etc. must be filed within one week in revision application as well as interlocutory application.

Till then, no coercive steps shall be taken against the petitioner in connection with M.P. Case No. 38 of 2009, pending in the Court of Principal Judge, Family Court, Palamau at Daltongaj.

(Amitav K. Gupta, J.)

Satayendra/­

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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 or High court websites. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . 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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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

Husband can set aside famly court order IF he did NOT get chance to cross examine wife. principles of natural justice concern procedural fairness to ensure a fair decision

ORISSA HIGH COURT: CUTTACK.
MATA NO. 43 OF 2011
In the matter of an application under Section 19 (1) of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act,1958.

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Birendra Sahoo                        ……                        Appellant
Versus
Jyoshna Rani Sahoo                    ……                        Respondent

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For Appellant      :    M/s. Mrs. Sujata Jena, G.B. Jena
For Respondent :        M/s.      Niranjan Lenka, M.R. Mohapatra and P.K. Panda

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P R E S E N T :-

THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K.SAHOO

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Date of hearing – 16.09.2014 : Date of Judgment – 22.09.2014

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S.K.SAHOO,J.

This appeal has been filed by the appellant-husband under Section 19 (1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and order dtd. 29.04.2011 of the Judge, Family Court, Bhubaneswar passed in Civil Proceedings No. 239 of 2011 (MAT Case No. 426 of 2009) in allowing the petition filed by the respondent-wife under Section 13 of Hindu Marriage Act, 1955 for a decree of divorce and thereby dissolving the marriage between the appellant and the respondent and further directing the appellant to pay Rs. 5 lakhs to the respondent within a month i.e., Rs. 1.5 lakhs towards her ornaments and the rest towards permanent alimony. It was observed that the appellant is at liberty to return the jewellery items of the respondent within a month and in that event he is not required to pay its money value of Rs. 1.5 lakhs. It was further observed that in case some of the ornaments are returned and some are withheld, then the estimated value of the withheld ornaments be calculated and payment to be made. The cost was assessed at Rs. 5,000.

2. The respondent-wife filed a petition under Section 13 of Hindu Marriage Act, 1955 stating therein that her marriage was solemnized with the appellant on 15.02.2002 at Bhubaneswar as per Hindu rites and customs. After the marriage, they lived together for a period of about 5-6 years but they had no issues. The appellant subjected her to both physical and mental cruelty in connection with demand of dowry and she lodged an F.I.R. in Balanga P.S. against the appellant, on the basis of which G.R. Case No. 424 of 2009 was instituted and the case was subjudice. It is further stated in the divorce petition that since last two years prior to the filing of the petition for divorce, there had been no relationship between the appellant and the respondent and in between the appellant had married for a second time and he was blessed with a daughter.

The appellant-husband filed his written statement denying the allegation of cruelty in connection with demand of dowry and further stated that the respondent could not adjust herself in the traditional atmosphere of village culture as she was brought up in Bhubaneswar city and a girl namely Saraswati was staying in the house of the appellant as a house-maid and the appellant further denied that he had married anybody for the second time. He further stated that since the respondent could not adjust herself in the house of the appellant, she voluntarily left the house and lodged a false F.I.R. just to put him into harassment and to cover up of her own fault.

According to the learned counsel for the appellant, the matter was taken up on 17.01.2011 and since both the parties were absent, the learned Judge, Family Court directed both the parties to appear in person in Court for conciliation and settlement and the date was fixed to 02.02.2011. On 02.02.2011 both the parties were also absent and the appellant filed a petition seeking time along with a Xerox copy of the outdoor patient ticket and the case was further adjourned to 17.03.2011. On 17.03.2011 the respondent-wife was present but the appellant was absent and the case was adjourned to 07.04.2011 and it was directed that the Execution Case No. 4 of 2010 which arises out of an order under Section 24 of Hindu Marriage Act to be tagged with the proceedings. On 07.04.2011 the appellant was present but the respondent was absent for which the case was adjourned to 19.04.2011 and both the parties were directed to remain present in person. On 19.04.2011 the respondent was present along with her parents but the appellant was absent. According to the learned counsel for the appellant, a time seeking petition was filed on behalf of the appellant along with the outdoor patient ticket on 19.04.2011 stating therein that he was suffering from viral fever and was not in a position to remain present in the Court and accordingly time was sought for. The grievance of the appellant is that the time seeking petition was not taken note of by the learned Judge, Family Court and he proceeded with the matter and on that date i.e., 19.04.2011, the respondent and her father were examined in Court, the appellant’s evidence was closed, argument was heard and the case was posted to 25.04.2011 for judgment. Learned counsel for the appellant further submitted that on 25.04.2011 the judgment was not pronounced and on that day the appellant filed an affidavit in the Court indicating therein that the respondent had married to one Babu Sahu of district Ganjam and staying with him without taking divorce from the competent Court of law. The learned Judge, Family Court did not take into consideration the affidavit filed by the appellant and vide judgment and order dtd.29.04.2011 allowed the petition for divorce.

Learned counsel for the appellant contended that non- consideration of the time seeking petition dtd. 19.04.2011 and non- forming such time seeking petition a part of the record, learned Judge, Family Court has committed irregularity and further contended that when an affidavit was filed by the appellant on 25.04.2011, the same should have been reflected in the order-sheet and taken note of. It was further contended that the learned Judge, Family Court has committed illegality in not considering the averments made in the written statement while passing the impugned judgment. It was finally urged that an opportunity of hearing should be afforded to the appellant to contest the case in accordance with law.

Learned counsel for the respondent on the other hand submitted that though the respondent was not present on 17.01.2011,02.02.2011 and 07.04.2011 but she was very much present on 17.03.2011 and 19.04.2011 and the time seeking petition stated to have been filed on 19.04.2011 is not borne out from the record and since the appellant with a motive to delay the proceedings was not cooperating with the Court, therefore the learned Judge, Family Court was justified in examining the respondent and her father who were present in Court on 19.04.2011 and passing the impugned judgment on the subsequent date.

3. After considering the contentions raised by both the parties and on perusal of the order-sheet annexed to the appeal memo as Annexure-1, it is clear that on some dates the appellant was absent and on some dates the respondent was absent and on some dates both were absent. The order dtd.19.04.2011 does not indicate about filing of any time seeking petition on behalf of the appellant though a copy of such time seeking petition has been annexed to the appeal memo as Annexure-2. In the time seeking petition though it is mentioned in the bottom that the outdoor patient ticket has been attached but the copy of the outdoor ticket is not annexed to the appeal memo. Moreover, the date given in the time seeking petition reflects that the appellant himself has signed the time seeking petition and the date is put as 14.04.2011. Thus, the contention raised by the learned counsel for the appellant that any time seeking petition was filed on 19.04.2011 is neither borne out from the order of the Judge, Family Court, Bhubaneswar nor the time seeking petition itself reflects that it was a time seeking petition dtd.19.04.2011. When the appellant himself has signed the time seeking petition and the date has been put as 14.04.2011, the viral fever plea which has been taken is also prima-facie not acceptable. The copy of the time seeking petition was not served either on the counsel for the respondent or on the respondent who was present in the Court on that date. Similarly, the affidavit which is annexed in the appeal memo vide Annexure-3 indicates that the appellant was present in the Court in person on 25.04.2011 and sworn the affidavit before the Oath Commissioner at 12.45 p.m. There is nothing to show that the copy of this affidavit was served on the counsel for the respondent on that date. It was stated to have been filed in the Court of Judge, Family Court, Bhubaneswar on 25.04.2011. However, even though there are some laches on the part of the appellant but all the same we feel that in the interest of justice and equity, he should be afforded another opportunity of hearing in the Court of Judge, Family Court, Bhubaneswar to contest the case.

The principles of natural justice concern procedural fairness to ensure a fair decision. A person must be allowed an adequate opportunity to present his case. Rules of natural justice is to prevent miscarriage of justice. The case arises out of a matrimonial dispute where one party seeks for a decree of divorce against the other. On 19.04.2011 the appellant was absent but no order was passed for ex- parte hearing rather two witnesses were examined on behalf of the respondent. The witnesses examined on behalf of the respondent were not cross-examined. The learned Judge, Family Court hurriedly closed the evidence from the side of the respondent on that day and heard the argument obviously from the side of the respondent and posted it for judgment. In case of Ayaaubkhan Noorkhan Pathan vrs. State of Maharashtra reported in AIR 2013 SC 58, it is held that the right of cross-examination is an integral part of the principle of natural justice. The learned Judge, Family Court has not even considered the written statement filed by the appellant in its proper perspective and passed the impugned judgment.

4. We, therefore, set aside the impugned judgment and order dtd.29.04.2011 passed by the Judge, Family Court, Bhubaneswar passed in C.P. No. 239 of 2011 (MAT Case No. 426 of 2009) and direct the concerned Court to afford another opportunity to the appellant to contest the case. The appellant will be given an opportunity to cross-examine the witnesses already adduced by the respondent i.e. P.W.1, who is the respondent herself and P.W.2 Bhimsen Sahoo who is the father of the respondent. Liberty will be granted to the respondent to examine any further witness if she so likes but at the same time opportunity of cross-examination is to be provided to the appellant. After the examination from the side of the respondent is over, the appellant shall be provided due opportunity to adduce his evidence and after hearing the arguments from both the sides, the learned Judge, Family Court shall pass judgment afresh.

The entire exercise should be completed within three months from the date of receipt of the judgment copy of this Court. The parties are at liberty to produce the certified copy of this judgment before the Judge, Family Court, Bhubaneswar and the learned Judge shall take note of such certified copy and proceed in accordance with law. The appellant is directed to pay a sum of Rs.10,000/- to the respondent prior to commencement of cross-examination of the witnesses of the respondent.

In the result, MATA No. 43 of 2011 is allowed and the impugned judgment and order dtd.29.04.2011 is set aside.

………………………….

S.K. Sahoo, J.

Vinod Prasad,J.      I agree
……………………………….
Vinod Prasad, J.

Orissa High Court, Cuttack.

Dated the 22nd September, 2014

RRJ

Unhappy with interim, wife goes 2 HC. HC orders retrial + consider right 2 residence, more moolah etc. All Exparte against Husband !!

Question from blogger : Why is it that husband’s income tax liability , income tax burden should NOT be deducted while computing the maintenance / alimony for the wife ??

******************Calcutta HC case and notes **********************
brief summary
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* Trial court has accepted husband’s salary certificate
* Trial court orders Rs. 7000 p.m. as maintenance pendente lite
* wife approaches HC saying that isn’t enough
* HC orders following
* The order impugned appears to be irregular
     * The trial court committed serious errors in deciding the matter, not least of them being in deducting the annual income-tax from the monthly salary of the husband.
* failure by trial court to take into account expenses incurred for two children
* the trial court will also consider the prayer of the petitioner herein that her right of residence along with her children
* interesting to note that HC has orderd all this without the husband appearing i.e EXPARTE ORDER

*****************************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 or High court websites. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . 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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Kolkata High Court (Appellete Side)
Smt. Shefali Alias Sefali Dutta vs Amitava Dutta on 16 September, 2014
Author: Sanjib Banerjee
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C.O. 2870 of 2014
16.09.2014

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Smt. Shefali alias Sefali Dutta
Vs.
Amitava Dutta
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Mr. Amal Krishna Saha ………For the petitioner

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The husband is not represented despite service.

The wife has challenged an order of July 16, 2014 by which a paltry amount of Rs.7000/- per month has been directed to be paid by the husband to the wife as alimony pendente lite and no amount has been required to be paid on account of maintenance of the two children who are in the custody of the mother.

The order impugned appears to be irregular in the trial court having accepted a salary certificate which does not appear to have been appended to the written objection filed by the husband. It is submitted on behalf of the petitioner herein that no copy of such salary certificate of February 03, 2014 was made available to the petitioner in the court below.

The petitioner says that the failure by the trial court to take into account the expenses incurred for the two children who are with the petitioner is a further act of irregularity by the trial court.

The trial court has held that maintenance for children cannot be granted under Section 24 of the Hindu Marriage Act, 1955.

However, Section 24 of the said Act mandates the husband or wife, as the case may be, to pay the other spouse who has no independent income sufficient for his or her support and the necessary expenses of the proceedings, such amount as may be deemed fit having regard to the petitioner’s own income and the income of the respondent. If a mother has the custody of the children and applies under Section 24 of the Act, the amount necessary for her support would include the amount necessary for the children.

The trial court committed serious errors in deciding the matter, not least of them being in deducting the annual income-tax from the monthly salary of the husband.

It is necessary that the order dated July 16, 2014 be set aside and the petition under Section 24 of the said Act restored before the trial court for the same to be considered afresh in accordance with law.

It is also observed that notwithstanding this order, the husband will remain liable to pay at the rate directed by the court below till such time that the petition is heard afresh and disposed of. In the event of the trial court enhancing the amount upon rehearing the petition, the same will date back to the month following the date of the institution of the petition.

In course of the petition being re-heard by the trial court, the trial court will also consider the prayer of the petitioner herein that her right of residence along with her children should be protected.

The trial court should endeavour to dispose of the petition under Section 24 of the said Act within a period of three months from the date of receipt of the copy of this order.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

CO 2870 of 2014 is disposed of without any order as to costs.

Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.

(Sanjib Banerjee, J.)

Wife calls hubby to beach for romantic sex. Gets him murdered with loverboy’s help. Police crack case using cellphone records

Chennai, Tamil Nadu, India

Romantic Sex at secluded beach spot becomes his last breath !!

A married woman with a 2 year old kid quarrels with her husband and goes to her parents home. In the meanwhile, the husband gets arrested in a theft case. So wife continues to stay at parental home. There, she develops illicit love with a cell phone shop operator who lives near her dad’s house.

Unfortunately husband is released on bail, reaches wife and finds out about the illicit love. He admonishes her behavior.

Sensing trouble, the woman starts acting close to her hubby has sex with him at home and then calls him to a secluded spot on the Marina beach (Famous Madras beach) promising an evening of sex.

Un known to the husband, and as planned by the wife, her lover is waiting there with his co conspirators…

When husband and wife engage in sex on sands at the secluded spot, the lover and his co conspirators who are hiding nearby get out to stab him. Husband dies on the spot due to multiple stab wounds !! Wife leaves spot and acts as if she does not know anything !!

Police crack the case using cell phone (her and her lover’s ) records !!

woman joins illicit lover to kill husband !! Husband’s body with multiple stab wounds found on Marina beach Madras
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கள்ளக்காதலுக்காக கணவனை தீர்த்து கட்டினேன்: கைதான மனைவி பகீர் வாக்குமூலம்
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பதிவு செய்த நாள்

05 அக், 2014

சென்னை: கள்ளக்காதலனுடன் சேர்ந்த வாழ, கணவனை, தீர்த்து கட்டினேன்’ என, கைதான மனைவி வாக்குமூலம் அளித்துள்ளார்.

கடந்த மாதம், 30ம் தேதி, மெரீனா கடற்கரையில், நெற்குன்றம் மாதா கோவில் தெருவை சேர்ந்த கார்த்திக், 28, என்பவர் கொல்லப்பட்டார். மெரீனா போலீசார் விசாரணையில், கார்த்திக்கை அவரது மனைவி ஜெயபாரதி,22, கள்ளக்காதலன் அரிகிருஷ்ணன்,25, அவரது கூட்டாளிகள், ஓட்டேரியை சேர்ந்த கார்த்திக்,20 மற்றும் 17வயது சிறுவன் சேர்ந்து கொலை செய்தது தெரியவந்தது. இதையடுத்து, அவர்கள் நேற்று கைது செய்யப்பட்டனர்.

போலீசாரிடம் ஜெயபாரதி அளித்த வாக்குமூலம்:
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கடந்த, நான்கு ஆண்டுகளுக்கு முன், நெற்குன்றத்தை சேர்ந்த கார்த்திக்கை காதல் திருமணம் செய்தேன். எங்களுக்கு, நட்சத்திரா என்ற இரண்டு வயது பெண் குழந்தை உள்ளது. திருட்டு தொழிலில் கார்த்திக் ஈடுபட்டதால், இரண்டு ஆண்டுகளுக்கு முன், அவரை விட்டு பிரிந்து, பாடிக்குப்பத்தில் உள்ள தாயார் வீட்டிற்கு சென்று விட்டேன். அவரும், கடந்த நான்கு மாதங்களுக்கு முன், வேலூர் மாவட்டம், வாலாஜாவில் இருசக்கர வாகனம் திருடிய வழக்கில், சிறை சென்றார். இந்த நிலையில், என் தாயார் வீட்டருகில், அலைபேசி ரீசார்ஜ் கடை நடத்தி வந்த, அரி கிருஷ்ணனுடன் பழக்கம் ஏற்பட்டு, கள்ளக்காதலாக மாறியது. கடந்த, 10 நாட்களுக்கு முன், நிபந்தனை ஜாமினில் வந்த, என் கணவர் கார்த்திக், ரகசியமாக கண்காணித்து, எங்கள் கள்ளக்காதலை கண்டித்தார். என்னை தீர்த்து கட்டவும் முயற்சித்தார். இதுபற்றி, கள்ளக்காதலன் அரிகிருஷ்ணனிடம் தெரிவித்தேன். கார்த்திக் உயிருடன் இருந்தால், கள்ளக்காதலை தொடர முடியாது என்பதால், அவரை தீர்த்துக்கட்டுவது என, முடிவு செய்தோம்.

நல்லவள் போல் நடித்து:
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இதையடுத்து, கணவர் கார்த்திக்கை, அலைபேசியில் தொடர்பு கொண்டு, குழந்தை செய்யும் குறும்பை காண வருமாறு அழைத்தேன். அன்று இரவு, என்னுடன் தங்கினார். நெருக்கமாக இருந்தோம். கடந்த மாதம், 30ம் தேதி, மெரீனா கடற்கரைக்கு அழைத்தேன். அவரும் வந்தார். இதுபற்றி, ஏற்கனவே, கள்ளக்காதலன் அரிகிருஷ்ணன், அவரது கடையில் வேலை பார்த்த சிறுவன், ஓட்டேரி கார்த்திக் ஆகியோரிடம் தெரிவித்து இருந்தேன். கடற்கரை மணற்பரப்பில், மகிழ்ச்சியாக இருப்பதுபோல் நடித்து, இருட்டான பகுதிக்கு கணவரை அழைத்து சென்றேன். அங்கு தயார் நிலையில் இருந்த, அரிகிருஷ்ணன் உள்ளிட்டோர், கத்தியால் குத்தி, அவரை கொலை செய்தனர். பின், நாங்கள் அங்கிருந்து கிளம்பிவிட்டேன். அரிகிருஷ்ணனுக்கும், எனக்கும் இருந்த, அலைபேசி தொடர்புகள் என்னை காட்டி கொடுத்துவிட்டன. இவ்வாறு, ஜெயபாரதி, வாக்குமூலத்தில் தெரிவித்துள்ளார்.

http://www.dinamalar.com/news_detail.asp?id=1084967

Indian Marriage Defined : NO sex at all, a cruel wife, 9yrs at courts & hubby pays 4 Million !!

“…with further direction under Section 25 of the Hindu Marriage Act, 1955 that the respondent shall pay to the appellant Rs.40 lakhs (Rupees forty lakhs only) as a lump sum amount of permanent alimony, …..”

Notes
*********************
* Marriage in 2005
* Marriage NOT consummated as wife was NOT interested in conjugal relations
* Court says wife treated husband with cruelty
* Divorce ordered in Sep 2014
* Also Husband (respondent) ordered to pay wife (appellant) rs. 40 Lakhs as alimony

*****************************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 or High court websites. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . 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

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9036 OF 2014

(Arising out of S.L.P.(c) No.25056 of 2012)

VIDHYA VISWANATHAN … APPELLANT

VERSUS

KARTIK BALAKRISHNAN … RESPONDENT

JUDGMENT

PRAFULLA C.PANT,J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 13.2.2012 passed in CMA No.2862 of 2011 by the High Court of Judicature at Madras whereby the said Court has allowed the appeal filed by the husband under Section 19 of Family Courts Act, 1986, and dissolved the marriage between the parties.

3. Brief facts of the case are that the appellant, Vidhya Viswanathan got married to the respondent, Karthik Balakrishnan on 6.4.2005 in Chennai following the Hindu rites. After the marriage, the couple went to London where the respondent (husband) was working, and they lived there for some eight months. In December, 2005, the appellant and the respondent came back to India. However, the appellant went back to England all alone, and his wife did not go there though her husband had purchased a return ticket for her. On 13.9.2008, the husband filed a petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 for dissolution of marriage. It is pleaded by the respondent (husband) that while the appellant was with him in London, she used to insult him. It is alleged by him that at times she used to get violent and hysterical. The husband further pleaded that even after his best efforts, the appellant did not allow him to consummate the marriage. It is further stated that in November, 2005 i.e. about seven months after the marriage the wife ( the present appellant) fell sick, and she was taken to a Medical Specialist who diagnosed that she was suffering from tuberculosis. According to the husband, he provided the best possible treatment to his wife. After the couple came back to India in December, 2005, the wife stayed back in Chennai and continued her treatment. It is alleged by the present respondent (husband) that his wife used to send him e-mails which were derogatory and in bad taste. It is also alleged by the respondent that his wife refused to join his company even after his best efforts. With the above pleadings, the present respondent filed a petition for divorce before the Family Court, Chennai on the ground of cruelty.

4. The appellant contested the divorce petition, and filed her written statement. She denied the allegations made against her. She stated that she went with her husband to London with great expectations. She alleged that her husband and his mother did not treat her well. She admitted that she came back with her husband to India in December, 2005. She further pleaded that though the respondent purchased the return ticket for her but he himself instructed not to return to England without his permission. It is also stated by her that marriage could not be consummated for the reason that her husband wanted to have children after one or two years of marriage. She did not deny having sent e-mails but stated that she only responded to the respondent as he wanted divorce decree based on her consent. She admitted that she received legal notice from her husband but stated that the allegations therein are false. She prayed for counter-claim directing the respondent to restore the conjugal rights between the parties.

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

” (1) Whether the petitioner/husband is entitled for divorce on the ground of cruelty ?

(2) Whether the respondent/ wife is entitled for conjugal rights as prayed for in the counter claim? “

6. The parties led their oral and documentary evidence before the trial court. The First Additional Family Court at Chennai, after hearing the parties vide its judgment and order dated 11.8.2011, dismissed the petition for divorce, and allowed the counter-claim of the wife. Aggrieved by said judgment and order the husband (Karthik Balakrishnan) filed an appeal (CMA No.2862 of 2011 with M.P.No.1 of 2011) before the High Court. The High Court after hearing the parties allowed the appeal, and set aside the judgment and order dated 11.8.2011 passed by the trial court. The High Court allowed the divorce petition, and dissolved the marriage between the parties. Hence, this appeal with special leave petition before this Court.

7. We have heard learned counsel for the parties, and perused the papers on record.

8. Admittedly, the appellant got married to respondent on 6.4.2005. It is also admitted that there is no issue born out of the wedlock. This Court has now to examine whether the High Court has rightly come to the conclusion or not that the husband was treated with cruelty by the wife, if so, is he entitled to decree of divorce.

9. On going through the evidence on record, we find that the husband (petitioner before the trial court), in his evidence has narrated in detail, the incidents of alleged cruelty suffered by him. The relevant paragraphs from the statement of the husband are being reproduced below:

” 7) …… the marriage was solemnized on April 6th 2005, as stated above. But quite surprisingly, the respondent was very moody did not speak at all throughout the wedding day. The respondent was not even interested to pose for photographs, along with me. What more worried me was that even for wedding lunch, the respondent had to be convinced to sit next to me to have lunch. Initially thought that this was because she was put in a new atmosphere. However, I could not realize that the respondent was not interested either in my self or the marriage itself.

xx xx xx xx

8) …… inspite of the above odd things, I was able to get a visa to UK for the respondent. I further submit that I had made extensive arrangements for the Honey moon to Scotland. Even during the Honeymoon, the respondent was very moody, emotionless and abnormally quiet. I was at loss to understand as to what was hovering around in her mind. However, I was very patiently waiting on the fond hope that things would become normal in due course. However, all my dreams to lead a very happy married life with the respondent were shattered by the intolerable behaviour of the respondent. I further submit that after returning from Scotland to London, I took the respondent to various places so as to make her to become a normal woman, but was taken aback by her sarcastic remarks about the London city itself. The respondent was very lethargic, disinterested and showering lack of interest in any of the events. Only thereafter, I stared thinking that the respondent was not interested in solemnizing the marriage itself.

xx xx xx xx

9) ……..between April, 2005 to December 2005, I could infer that the respondent was always moody, throwing tantrums, showing faces openly, showing anger and hatred insulting me when my self and the respondent were alone and in front others. The respondent reacted violently by getting aggressive and making sarcast remarks or locking herself in the room and stopped talking for days together without any reason. When I questioned about the same, the respondent used to get even more aggressive and shout hysterically and thereafter would start crying. This behaviour became more and more frequent over the time and made it impossible to handle the respondent during such violent outbursts of anger and hatred. The respondent was totally unapproachable and this left me with a deep sense of anguish and material agony. The attitude of the respondent was becoming worse day by day, resulted in pulling of the days with the respondent became a nightmare.

xx xx xx xx

10)…………..the respondent did not show any intention at all in consummating the marriage. The respondent evinced no interest in having physical contact with me. A times, I myself had tried to have sexual relationship with the respondent as a normal husband would do. However, since the respondent showed no intention, I convinced myself that she would mend her ways. However, there was no attitudinal changes in her life.

xx xx xx xx

13)………… the respondent deliberately used to wake me up rudely sometimes by even kicking me when I was asleep and used to ask me to talk to her saying that she was getting bored. Without minding the respondent’s abominable attitude, I would try to encourage the respondent as possible as I could. Further, the respondent used to bang her head against the walls of the bedroom for no reason and when I asked the reason the respondent would deliberately remain silent, having me spending sleepless nights. This has caused great mental agony and torture to me when there was no fault on me.

xx xx xx xx

17)………..during November 2005, the respondent fell sick with high fever. Despite the adamancy, not to take treatment, I took the respondent to a leading specialist who diagnosed that the respondent suffered from Tuberculosis and got-months antibiotic course started in London……..

xx xx xx xx

18)……….. In December 2005, I came down to Chennai with the respondent, took her to my family doctor, who referred the respondent to a top TB specialist. The doctor at Chennai also opined the same as that of the doctor in London and advised the respondent to continue with the antibiotic prescribed by the doctor in London.

xx xx xx xx

19)……………..I came back to London, after buying a return flight ticket to the respondent from Chennai to London for July 2006, presuming that the TB treatment at Chennai for the respondent would be completed by this time.

xx xx xx xx

20)…………even though, I was in London, I used to get in touch with the respondent and used to send emails on the fond hope that my unconditional love would make the respondent change her mind and behaviour and make her correct herself. However, the respondent continued to act irritationally and showed anger in all the telephone calls by slamming down the receiver”.

P.W.1 Karthik Balakrishnan (husband) who made above statement, was subjected to lengthy cross-examination but nothing has come out which creates doubt in his testimony.

10. The appellant Vidhya Viswanathan had also filed her evidence before the trial court, in the form of affidavit, and she also got herself cross-examined as D.W.1. She denied the allegations made by her husband but in cross-examination she admits that the marriage was not consummated. The relevant portion from her cross-examination is being reproduced below:

” …. .. It is wrong to state that normally I used to hit the petitioner by my legs and wake him up and that I used to throw the objects on the petitioner and that through this I had harassed the petitioner physically and mentally. If it is asked that whether the marriage was consummated, no it is not. The petitioner said that we can beget the child after one or two years. I and the petitioner were close. As the petitioner joined the new job he was under stress and tension. The petitioner had thyroid infection frequently. The petitioner said that the starting of the matrimonial life shall be post-poned. It was not taken as an issue. After 8 months of the marriage, I became ill. Hence, I came to Chennai. It is wrong to state that there is no connection between thyroid infection, and the physical relationship and that I am adducing falsely.

xx xx xx xx

My passport is lying with me. It is correct to state that in the passport, a seal is made for visa. If it is asked when my U.K. visa would expire, it is for 5 years.

xx xx xx xx

Before my husband could file this case, I did not file any case for the restitution of conjugal rights. It is wrong to state that as I had no intention to live together, I did not file such a case. “

11. The High Court while rejecting the explanation given by the wife as to why the marriage was not consummated observed as under:

” 44. It has to be further pointed out that while P.W.1 was cross examined by the respondent, it has not been suggested to P.W.1 that he suggested to the respondent that they should have a child only after two years. Thus it appears that this explanation of the respondent for non consummation of the marriage is only an afterthought. Even assuming for a moment that the appellant wanted to have a child only after two years that does not mean that the appellant and the respondent cannot and should not have sexual intercourse. Admittedly, both of them are well educated and there are so many contraceptives available and they could have used such contraceptives and avoided pregnancy if they had wanted.

Xx xx.”

12. Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty. Paragraph 101 of the said case is being reproduced below:

    ] “101. No uniform standard can ever be laid down
    ] for guidance, yet we deem it appropriate to
    ] enumerate some instances of human behaviour
    ] which may be relevant in dealing with the cases of
    ] “mental cruelty”. The instances indicated in the
    ] succeeding paragraphs are only illustrative and not
    ] exhaustive:
    ]
    ] (i) On consideration of complete matrimonial life
    ] of the parties, acute mental pain, agony and
    ] suffering as would not make possible for the parties
    ] to live with each other could come within the broad
    ] parameters of mental cruelty.
    ]
    ] (ii) On comprehensive appraisal of the entire
    ] matrimonial life of the parties, it becomes
    ] abundantly clear that situation is such that the
    ] wronged party cannot reasonably be asked to put
    ] up with such conduct and continue to live with other
    ] party.
    ]
    ] (iii) Mere coldness or lack of affection cannot
    ] amount to cruelty, frequent rudeness of language,
    ] petulance of manner, indifference and neglect may
    ] reach such a degree that it makes the married life
    ] for the other spouse absolutely intolerable.
    ]
    ] (iv) Mental cruelty is a state of mind. The feeling
    ] of deep anguish, disappointment, frustration in one
    ] spouse caused by the conduct of other for a long
    ] time may lead to mental cruelty.
    ]
    ] (v) A sustained course of abusive and humiliating
    ] treatment calculated to torture, discommode or
    ] render miserable life of the spouse.
    ]
    ] (vi) Sustained unjustifiable conduct and
    ] behaviour of one spouse actually affecting physical
    ] and mental health of the other spouse. The
    ] treatment complained of and the resultant danger or
    ] apprehension must be very grave, substantial and
    ] weighty.
    ]
    ] (vii) Sustained reprehensible conduct, studied
    ] neglect, indifference or total departure from the
    ] normal standard of conjugal kindness causing injury
    ] to mental health or deriving sadistic pleasure can
    ] also amount to mental cruelty.
    ]
    ] (viii) The conduct must be much more than
    ] jealousy, selfishness, possessiveness, which
    ] causes unhappiness and dissatisfaction and
    ] emotional upset may not be a ground for grant of
    ] divorce on the ground of mental cruelty.
    ]
    ] (ix) Mere trivial irritations, quarrels, normal wear
    ] and tear of the married life which happens in
    ] day-to-day life would not be adequate for grant of
    ] divorce on the ground of mental cruelty.
    ]
    ] (x) The married life should be reviewed as a
    ] whole and a few isolated instances over a period of
    ] years will not amount to cruelty. The ill conduct
    ] must be persistent for a fairly lengthy period, where
    ] the relationship has deteriorated to an extent that
    ] because of the acts and behaviour of a spouse, the
    ] wronged party finds it extremely difficult to live with
    ] the other party any longer, may amount to mental
    ] cruelty.
    ]
    ] (xi) If a husband submits himself for an operation
    ] of sterilisation without medical reasons and without
    ] the consent or knowledge of his wife and similarly, if
    ] the wife undergoes vasectomy or abortion without
    ] medical reason or without the consent or knowledge
    ] of her husband, such an act of the spouse may lead
    ] to mental cruelty.
    ]
    ] (xii) Unilateral decision of refusal to have
    ] intercourse for considerable period without there
    ] being any physical incapacity or valid reason may
    ] amount to mental cruelty.
    ]
    ] (xiii) Unilateral decision of either husband or wife
    ] after marriage not to have child from the marriage
    ] may amount to cruelty.

xx xx xx xx

The above mentioned illustrations, No. (viii) and (xii) given in Samar Ghosh case (supra), support the view taken by the High Court in holding that in the present case the wife has treated her husband with mental cruelty.

13. In Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778 regarding legal proposition on aspect of cruelty has made the following observations:

     ]  “31. It is settled by a catena of decisions
     ]  that mental cruelty can cause even more
     ]  serious injury than the physical harm and
     ]  create in the mind of the injured appellant
     ]  such apprehension as is contemplated in the
     ]  section. It is to be determined on whole facts
     ]  of the case and the matrimonial relations
     ]  between the spouses. To amount to cruelty,
     ]  there must be such wilful treatment of the
     ]  party which caused suffering in body or mind
     ]  either as an actual fact or by way of
     ]  apprehension in such a manner as to render
     ]  the continued living together of spouses
     ]  harmful or injurious having regard to the
     ]  circumstances of the case.
     ]  
     ]  32. The word “cruelty” has not been
     ]  defined and it has been used in relation to
     ]  human conduct or human behaviour. It is the
     ]  conduct in relation to or in respect of
     ]  matrimonial duties and obligations. It is a
     ]  course of conduct and one which is adversely
     ]  affecting the other. The cruelty may be mental
     ]  or physical, intentional or unintentional. There
     ]  may be cases where the conduct complained
     ]  of itself is bad enough and per se unlawful or
     ]  illegal. Then the impact or the injurious effect
     ]  on the other spouse need not be enquired into
     ]  or considered. In such cases, the cruelty will
     ]  be established if the conduct itself is proved or
     ]  admitted.”

14. In view of the above principle of law laid down by this Court, and having considered the submissions of parties, and the evidence on record, we do not find any ground to interfere with the decree of divorce passed by the High Court on the ground of cruelty. However, we are conscious of the fact that the appellant, as stated by her, was doing a job before her marriage, and she (Vidhya Vishwanathan) has stated as D.W.1 that at present she is not doing any work. As such we think it just and proper to direct the respondent to pay to the appellant (wife) one time lump sum amount of alimony. We are of the view that in the facts and circumstances of the case keeping in mind the economic status of the parties, a direction to the respondent to pay Rs.40 lakhs (Rupees forty lakhs only) as one time alimony to the appellant, would meet the ends of justice, to which learned counsel for the respondent during the arguments stated that the respondent is ready to pay the same.

15. Accordingly, we dispose of this appeal affirming the decree of divorce granted by the High Court dissolving the marriage between the parties namely Karthik Balakrishnan and Vidhya Vishwanathan, with further direction under Section 25 of the Hindu Marriage Act, 1955 that the respondent shall pay to the appellant Rs.40 lakhs (Rupees forty lakhs only) as a lump sum amount of permanent alimony, within a period of three months from the date of this judgment. No order as to costs.

******************************************************J.
(SUDHANSU JYOTI MUKHOPADHAYA)

**************************************************J
(PRAFULLA C. PANT)

NEW DELHI,
SEPTEMBER 22, 2014

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ITEM NO.1A COURT NO.5 SECTION XII
(For Judgment)

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

Civil Appeal No(s). ___________ of 2014 @ SLP(C) No. 25056/2012

VIDHYA VISWANATHAN Appellant(s)

VERSUS

KARTIK BALAKRISHNAN Respondent(s)

Date : 22/09/2014 This appeal was called on for pronouncement of Judgment today.

For Appellant(s)
Ms. S. Usha Reddy,Adv.

For Respondent(s)
Mr. Ranjit Kumar, SG
Mr. Zoheb Hossain, Adv.
Mr. Rauf Rahim,Adv.

Hon’ble Mr. Justice Prafulla C. Pant pronounced the reportable judgment of the Bench comprising Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya and His Lordship.

Leave granted.

The appeal stands disposed of in terms of signed reportable judgment.

(Neeta)    (Usha Sharma)

Sr. P.A.    COURT MASTER

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NO DV if couple not living together not sharing household!. Divorce wid mony in ’06. Wife files DV in 2011 !! tries 2 snatch away daughter !! marital bliss in India !!

“……Thereafter, the couple had never shared the household. The allegations were not pertaining to the period when they had lived together and, therefore, it cannot be said that the alleged act would be in the nature of domestic violence. ….”

————–
* marriage in 1995
* daughter born in 1999
* Divorce in 2006. wife takes 400000/- cash …this is after she had abandoned hubby and also filed criminal cases that end in mediation / settlement
* Wife takes money and agrees to mutual consent divorce . Order passed in 2006
* Wife Gives up rights to maintain daughter. Daughter stays with dad
* Wife Has only visitation (of daughter ) and some vacation custody
* wife agrees NOT to file any criminal cases etc on hubby
* However during a vacation wife refuses to return kid / tries to take away kid
* Father runs around to courts, daughter REFUSES TO LIVE with estranged mother !!
* Wife also files a DV MANY YEARS AFTER DIVORCE !!! [that is the case judgement given below ] * DV quashed as they are NOT sharing a household and not in domestic relationship
* and the kid is allowed to stay with father !!

*****************************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 or High court websites. 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.

******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1173 OF 2013

Amitabh Upadhyay S/o R.P.Upadhyay               )
Age: 48 years, Occ: Pvt. Service                )
B4/2, Symphony Enclave,                         )
2/3, Chinar park, Rajarhat                      )
Kolkata – 700 156.                              ).. Applicant.
vs.

1.    State of Maharashtra                      )
Represented by Public Prosecutor,
ig                    )
High Court of Bombay, Mumbai.             )

2.    Pushpita Mukherjee                        )
Flat No.102, Building No.3,               )
Vijay Park, G.B. Road,                    )
Kasarvadavali, Thane (W),                 ).. Respondents

Ms. Jahan Ara Sarkhot, Advocate for the applicant..
Mr. Prag Prabhakar Pokale, for respondent No.2,
Mr. A.S.Shitole, APP, for the respondent-State.

CORAM: SMT.SADHANA S.JADHAV,J.
JUDGMENT RESERVED ON 14.7.2014.
PRONOUNCED ON: 25.09.2014.

JUDGMENT:

1. The applicant herein is seeking the relief of quashing of the complaint on the basis of which he is being prosecuted under the provisions of Sections 12, 18, 21 and 23 of the Protection of Women from Domestic Violence Act, 2005 in Complaint No.524 of 2013 pending before the Judicial Magistrate (2nd Court) at Thane.

2. The applicant herein is working as a Maintenance Engineer with Emirates Airways. The applicant was married to the respondent No.2 on 11.5.1995. The couple is blessed with a daughter on 15.4.1999. The name of the daughter is Tania.

3. The applicant was transferred to Andhra Pradesh and shifted to Secunderabad along with his wife and daughter. In fact, right from the initial period after marriage, there was temperamental incompatibility between the couple, but the couple had made efforts to adjust themselves to lead a happy married life. Finally, the respondent No.2 had voluntarily abandoned her matrimonial home and had left Secunderabad as if never to return again. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The applicant herein was, therefore, constrained to file a petition under Section 13(1-B) of the Hindu Marriage Act, 1955 against the respondent No.2 before the Second Addl. Senior Civil Judge, Ranga Reddy Court at L.B. Nagar, Andhra Pradesh, which was registered as O.P.No.99/2005. Since Secunderabad was the last place where they lived together, the petition for divorce was filed at Secunderabad.

5. It is the case of the applicant that on receipt of notice of divorce petition, the respondent No.2 filed a complaint against the applicant, which was transferred to Alwal Police Station, Ranga Reddy. She had also filed a complaint at Thane alleging therein that the applicant had committed an offence under Section 365 of Indian Penal Code.

6. The couple had amicably settled the disputes as they had decided to obtain divorce by mutual consent. The applicant had paid an amount of Rs.4,00,000/- by demand draft towards full and final settlement towards permanent alimony and the maintenance which was acknowledged and accepted by her. Since there was an amicable settlement, the respondent No.2 had withdrawn the complaint on the basis of which Crime No.382 of 2005 was registered. The proceeding ini Misc. Application No.69 of 2005 was referred to Lok Adalat and there, by mutual consent, the parties were divorced.

7. The couple had appeared before the Lok Adalat on 19.4.2006. An award was passed and O.P.No.99 of 2005 was allowed by mutual consent.

8. As per the decree/award in O.P.No.99 of 2005, it was decided that their minor daughter Tania would live with the applicant and he would be the sole legal guardian of the said child. It was also agreed by respondent No.2 that she would never claim or initiate any proceeding claiming permanent custody of the child. The applicant had agreed to give visitation rights of daughter Tania for a total period of 30 days in a year which would include 15 days in the month of January and 15 days during summer vacation in April or May, except for the year 2006. The applicant contends that he had abided by the terms and conditions agreed upon in the compromise deed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. The applicant was then transferred to Calcutta. He had informed the respondent No.2 about the same. He had also furnished his address at Calcutta.

Respondent No.2 had taken Tania for the vacation to Thane. From Thane, she had issued a legal notice to the applicant on 28.12.2007 expressing her denial to return Tania. In addition, the applicant was threatened of dire consequences if he attempted to contact Tania. The applicant replied the legal notice by reminding her that she had accepted the terms and conditions under the decree by mutual consent and that she cannot turn back upon it.

10. The applicant was, therefore, constrained to lodge a complaint before the Kadarvadavali Police Station on 6.1.2008. He also lodged a complaint before the Judicial Magistrate, First Class, Thane on 8.1.2008, which was registered as O.M.A. No.10 of 2008. The police had conducted an enquiry and informed the Magistrate that Tania was insisting upon being with her father. She was allowed to accompany the applicant and the proceedings in O.M.A. No.10 of 2008 were closed.

11. According to the applicant, the complainant continued to issue legal notice to the applicant and extended threats. The applicant, therefore, filed Writ Petition No. 8984 of 2008 before the High Court of Andhra Pradesh contending therein that there is non-compliance of the award and the respondent is issuing threats. The Andhra Pradesh High Court passed interim orders on 21.5.2008 as follows :-

    “Under these circumstances, this Court is of the view that the intention of the child needs to be ascertained. Post next week for production of the child. In the meanwhile the petitioner shall not be under obligation to handover the custody of the child to the respondent.”

Notices were issued to the respondent No.2. On receipt of the notice, the respondent No.2 had filed a complaint before the Chief Judicial Magistrate, Barasat, Kolkata. Thereafter, the applicant, respondent No.2 and Tania appeared before the Andhra Pradesh High Court. The Court had recorded the statement of Tania and had observed that the visitation rights for the year 2008 need not be implemented. The said order was challenged by the respondent No.2 before the Hon’ble Apex Court. The Special Leave Petition was dismissed on 26.8.2008.

The Hon’ble Apex Court had observed that while granting visitation rights, the office shall verify the need for granting visitation rights only upon considering the interest of the child. The Court had disposed of the Execution Petition and the applicant was allowed to keep his daughter with him with a direction that he shal take care of the child. In the case filed at Barasat, Kolkata, the applicant is protected by grant of pre-arrest bail.

12. Respondent No.2 has filed a complaint before the Civil Judge, S.D. Thane, under the provisions of Protection of Women from Domestic Violence Act, 2005 alleging therein that she was married to the applicant on 11.5.1995. While stating the description and nature of the offence alleged, she has stated that on 22.5.2008 when Tania was in her custody, she was being taken outside by the present applicant. Hence, she had lodged the FIR on 11.10.2011. It is alleged that respondent No.2 had been to meet her relatives. The applicant had mounted a blow on her head and had driven her out of the house. It is also alleged that on 22.5.2008 also she was assaulted by some miscreants at the Airport. It appears from the perusal of the complaint that the basic grievance of the respondent No.2 was that she was not being given easy access to her daughter Tania. The respondent No.2 had also alleged that Tania was kept starving. That on 11.10.2011, the applicant is alleged to have assaulted the respondent No.2. It is also alleged that at the time of signing the consent terms, the applicant had agreed to give Rs.7 lakhs, however he has given only Rs.4 lakhs. The relief that was claimed in the said proceeding was that the girl should be referred to a Psychiatrist or a Psycho-analyst and the respondent No.2 should be given visitation rights. It is in this background, that the applicant is seeking quashing of the proceedings.

13. It is a matter of record that respondent No.2 had withdrawn herself from the society of her husband voluntarily. The applicant had filed divorce petition under Section 13(1-B) of Hindu Marriage Act and the parties had obtained divorce by mutual consent. Upon perusal of the orders dated 19.4.2006, wherein the applicant and respondent No.2 had obtained divorce by mutual consent before the Lok Adalat. It is clear that respondent No.2 was not residing with the applicant since 2005. She had received the total amount of Rs.4 lakhs by way of permanent alimony. The instances which are stated for alleging acts under the Domestic Violence Act are stated to be of 22.5.2008 and 11.10.2011. On the relevant dates, the applicant was not in a domestic relationship with the complainant i.e. respondent No.2.

14. Section 2(f) of the Domestic Violence Act reads thus :-

2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”

Section 2(g) defines “domestic violence as is defined under Section 3 of the Act. Section reads thus :-

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

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

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or © has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

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

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

Hence, the statute carves out a rider that for the purpo0se of determining whether any act, omission or commission or conduct would constitute domestic violence, the overall facts and circumstances of the case should be taken into consideration.

15. In view of this, after taking stock of the facts and circumstances of this case, it is clear that the respondent No.2 had filed complaints at various places without any foundation. She did not intend to abide by the terms and conditions incorporated in the consent terms although at the time of signing the consent terms, she had acknowledged, acquiesced and agreed to act upon the same. The daughter of the applicant had also expressed her willingness to stay with the applicant since she was being detained in the custody of the respondent No.2 against her wish. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. On the date of the alleged offences, the applicant and the respondent No.2 were not in a domestic relationship. The instances that are alleged are also shown to have occurred at a public place. The incident dated 22.5.2008 appears to have taken place outside the airport and the incident dated 11.10.2011 shows that the respondent No.2 was driven out of the house when she had been to visit her daughter. It cannot be said that on 11.10.2011, the respondent No.2 has been denied the right of residence in a shared household as she had withdrawn herself from the company of her husband way back in 2005.

17. The learned counsel appearing for the respondent No.2 has placed reliance upon the Judgment of this Court in the case of Bharati Naik vs. Ravi Ramnath Halarnkar & Anr. 2012 (5) LRC 259 (Bom), wherein this Court (Coram: R.M.Sawant, J.) has observed that the definition of Section 2(f) takes into consideration past relationship as the words “has been” or “have lived” have been used in the said definition. The Hon’ble Single Bench has observed as under :-

    “The said words therefore have been used purposefully as the said Act has been enacted to protect a woman from domestic violence and, therefore there cannot be any fetter which can come in the way by interpreting the provisions in a manner to mean that unless the domestic relationship continues on the date of the application, the provisions of the said Act cannot be invoked. The words “has been” and the words ” have lived” have been used for the purpose of showing the past relationship or experience between the concerned parties. To interpret the said provisions so as to mean that only subsisting domestic relationship are covered would result in turning the provisions of the said Act Otiose.”

In the facts of that case, the petitioner, though divorced, had continued to stay in the shared household till she was allegedly forcibly evicted by the respondent and, therefore, she was entitled to invoke the provisions of the said Act.

18. In the present case, the respondent No.2 had withdrawn herself from the society of her husband way back in the year 2005 and since then there was no domestic relationship between the applicant and the respondent. The alleged act was not committed when the applicant and the respondent No.2 were in a domestic relationship, but after two years and five years after they had been divorced by mutual consent.

Even prior to filing the application under the provisions of Domestic Violence Act, respondent no.2 had filed several applications before different Courts which were either withdrawn or closed or not prosecuted. Hence, it cannot be said that the applicant had committed any offence while he was in a domestic relationship with the respondent No.2.

19. In the year 2011, the respondent No.2 was not living with the applicant and was not forcibly evicted from a shared household, but was simply denied visitation rights. The said denial was pursuant to the orders passed by the High Court of Andhra Pradesh. Moreover, the welfare and wish of their daughter was of a paramount importance and the daughter of the couple had specifically informed the Court that she does not wish to either visit or stay with the respondent No.2.

20. The learned counsel for the applicant rightly submits that in the year 2011, it could at the most be said that the applicant was only acting in the interest of his daughter. Moreover, the Civil Judge, S.D. Thane, had dismissed the Execution Petition filed by the respondent No.2 and had observed as follows :-

    “Obviously, there would be certainly danger to the life of the daughter namely Tania if she asked to go with D.H. more particularly due to the adamant behaviour of the D.H. which this court observed during the time of hearing. Moreover, Tania cannot be compelled to reside or go with D.H. though they have agreed before the Lok Adalat for the visitation terms between them.”

In such circumstances, I am of the view that this is not a fit case in which Tania can be directed or asked to go with her mother D.H. By executing the decree and thus the execution proceeding itself is infructuous.

21. The said decree had attained finality since it was not challenged before any Court. It can be said that the applicant herein was only implementing the order passed by the Thane Court and hence denial of visitation rights cannot be treated as domestic violence. The domestic relationship between the couple was only by mutual consent five years prior to the incident dated 11.10.2011.

Thereafter, the couple had never shared the household. The allegations were not pertaining to the period when they had lived together and, therefore, it cannot be said that the alleged act would be in the nature of domestic violence. Hence, this Court is of the opinion that continuation of the proceedings under the Domestic Violence Act would be an abuse of process of law. The interest of daughter would be hampered if the applicant is dragged to Thane to attend the proceedings and answer unwarranted allegations. No case is made out under the Domestic Violence Act 2005. The applicant would have to go through the ordeal of a proceeding which is filed only to satisfy the personal vendetta or with an ulterior motive.

22. Hence, the application deserves to be allowed in terms of prayer clause (a). The proceedings against the applicant in Complaint No.524 of 2013 pending before the Judicial Magistrate, First Class, Thane, is hereby quashed and set aside.

(SMT.SADHANA S.JADHAV, J.)

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impotency tests IF mandated in India will b a HUUUGE money spinner for drug companies worldwide !!

Impotency tests, this test …, that test
——–
* India is a country of a billion people
* everyone want’s to get married …at least a vast majority of the people
* Chennai HC has now suggested COMPULSORY impotency tests BEFORE marriage !!

* what’s d common thread ? ok anti male thinking you will say …. is that all ??

* what about the BOOM in medical testing industry ?? boom in drug sales (viagara types) ??
* and more labs, and hospitals and counseling ??
* I see Moolah (money) all over for all drug majors ALL OVER THE WORLD !!