Daily Archives: September 7, 2013

IF you are able bodied, you should be earning 3000 pm, so go pay alimony !! Honbl Bombay HC

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Monthly income of a normal person should be minimum Rs3,000: HC

Vaibhav Ganjapure, TNN Sep 6, 2013, 04.31AM IST

NAGPUR: About two years ago, India’s Planning Commission deputy chairman Montek Singh Ahluwalia invited controversy for his affidavit in the Supreme Court that a citizen with consumption of up to Rs32 per day would be considered poor in urban areas, while it was Rs26 in the rural areas.

Now, even Bombay High Court has endorsed the fact that a person can’t live in meagre daily income of Rs50-Rs60 per day while rejecting a petition by a man who had expressed his inability to pay Rs900 per month alimony to his wife and Rs300 each to his two kids.

A single-judge bench of Justice Abhay Thipsay at Aurangabad upheld the session court’s order that monthly income of a normal person should be minimum Rs3,000. "It is not the case of the petitioner that he is suffering from any bodily infirmity, sickness or disability. Therefore, if the courts have taken monthly income of an able bodied person as Rs3,000 per month, they have not committed any error whatsoever," the court ruled.

Sunil and Anita entered into wedlock and had two kids, but soon trouble started between them and they separated. The wife applied for maintenance for herself and two children as per provisions of Section 125 of the Code of Criminal Procedure. The magistrate, after conducting an inquiry, directed the husband to pay Rs900 per month to her and Rs300 each to the children.

Sunil challenged this order in the session court by filing a revision application, but the additional judge dismissed it while imposing a cost of Rs1,000. He then moved to the high court challenging the quantum of the maintenance awarded by the magistrate and confirmed by the sessions court. He contended that his daily income was just about Rs50 to Rs60 and was unable to get daily work. Still, the magistrate and the sessions judge considered his daily income to be Rs100 per day while asking him to pay Rs900 to wife.

Justice Thipsay observed that he hasn’t found any substance in the husband’s contentions. "In the first place, the orders under CrPC, do not purport to decide the civil rights of the parties. The object of the relevant provisions is to prevent vagrancy and destitution by providing a speedy remedy to neglected wives and children. Therefore, a superior court would not interfere with the discretion exercised by the magistrate with respect to the quantum of maintenance ordinarily," he said.

"In any case, no interference with respect to the quantum of maintenance is called for, particularly when the amount of maintenance as fixed by the magistrate appears to be the bare minimum, as would be required for sustenance," the judge ruled before dismissing the plea.

http://articles.timesofindia.indiatimes.com/2013-09-06/nagpur/41832360_1_monthly-income-additional-judge-maintenance

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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

Varanasi sadhu held for raping 40-yr-old flood victim; Sadu says he is falsely implicated to grab ashram property !!

Varanasi sadhu held for raping 40-yr-old flood victim

Saturday, Sep 7, 2013, 10:36 IST | Place: Lucknow | Agency: DNA

Deepak Gidwani

The Varanasi police arrested a sadhu on Thursday for allegedly raping a 40-year-old flood victim who had taken refuge at his ashram.

In her complaint to the police, the woman said Anil Kumar Tiwari alias Abhayanand (32) had assaulted her on the pretext of ‘spiritual treatment’ at the Yamuneshwar Ashram on Wednesday night. However, the mahant has denied the charge and alleged that the frame up was part of a conspiracy to grab the ashram’s property.

The police said the victim lived in the adjoining Jaunpur district and had taken shelter at the ashram along with her 18-year-old son on August 28 after her house was inundated by a swollen Ganga. Three days later, her son left for New Delhi in search of livelihood.

On Wednesday night, the sadhu allegedly assaulted her. In her complaint she has stated that Abhayanand thrashed her badly and dragged her out of the ashram when she resisted his advances and threatened to go to the police.

SSP AK Mishra said, “During interrogation, Abhayanand has admitted to making physical contact with the woman but with her consent.” The accused has been sent to jail after initial medical examination of the woman who has been sent to women’s remand home, Mishra said. He said the sadhu had no previous criminal record.

However, Abhayanand said that the woman had been sent by another woman who wanted to grab the ashram property. He told reporters that recently the ashram had received expensive gifts from some rich devotees, and that some people wanted to grab them. “That is why I have been implicated in this false rape case,” he said

http://www.dnaindia.com/india/1885611/report-varanasi-sadhu-held-for-raping-40-yr-old-flood-victim

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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

you can get even 883 days delay condoned!! use this fact & case IF UR wife has exparte decree against you!!

you can get even 883 days delay condoned!! use this fact & case IF UR wife has exparte decree against you!!

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the Honourable supreme court of India says and we quote "……..It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. ……….."

and

"………….Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
…………."

Read this judgment and use it IF you wish to set aside wife’s ex parte decree !!!

*****************************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 Foundation. SIF 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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Supreme Court of India
N. Balakrishnan vs M. Krishnamurthy on 3 September, 1998
Author: Thomas
Bench: S Ahmad, K Thomas.

PETITIONER: N. BALAKRISHNAN.

Vs.

RESPONDENT: M. KRISHNAMURTHY.

DATE OF JUDGMENT: 03/09/1998

BENCH: S.SAGHIR AHMAD, K.T. THOMAS.,

ACT:

HEADNOTE:

JUDGMENT:

JUDGEMENT

Thomas J.

Leave granted.

Explanation for the apparently inordinate delay in moving an application was accepted by the trial court under Section 5 of the Limitation Act, 1963, but the High Court in revision reversed the finding and consequently dismissed the motion. That order of the High Court has given rise to these appeals.
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Facts barely needed for these appeals are the following:

A suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex-parte on 28.10.1991. Appellant, who was defendant in the suit, on coming to know of the decree moved an application to set it aside. But the application was dismissed for default on 17.02.1993. Appellant moved for having that order set aside only on August 19, 1995 for which a delay of 883 days was noted. Appellant also filed another application to condone the delay by offering an explanation which can be summarized thus:

Appellant engaged an advocate (one Sri MS Rajith) for making the motion to set the ex-parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17.2.1993. When he got summons from the execution side on 5.7.1995 hye approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocate’s fees and other incidental expenses. But the fact is that the said advocate did not do anything in the court even thereafter – On 4.8.1995 the execution warrant was issued by the court and he became suspicious of the conduct of his advocate and hence rushed to the court from where he got the disquieting information that his application to set aside the ex-parte decry stood dismissed for default as early as 17.2.1993 and that nothing was done in the court thereafter on his behalf. He also learned that his advocate has left the profession and joined as legal assistant of MS Maxworth Orcheads India Limited. Hence he filed the present application for having the order dated 7.2.1993 set aside. Appellant did not stop with filing the aforesaid application. He also moved the District Consumer Disputes Riderless Forum, Madras North ventilating his grievance and claiming a compensation of rupees on lakh as against his erstwhile advocate. The said forum passed final order directing the said advocate to pay a compensation of Rs. Fifty thousand to the appellant besides a cost of Rs. Five Hundred.
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Though, the trial court was pleased to accept the aforesaid explanation and condoned the delay a single Judge of the High Court of Madras who heard the revision, expressed the view that the delay of 883 days in filing the application has not been properly explained. Hence the revision was allowed and trial court order was set aside. An application for review was made, but that was dismissed. Hence these appeals.

The reasoning of the learned single Judge of the High Court for reaching the above conclusion is that the affidavit filed by the appellant was silent as to why he did not meet his advocate for such a long period. According to the learned single Judge:

"If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then oily it could have been said that due to the conduct of the counsel the party should not be penalised." Learned single judge then observed that when the party is in utter negligence, he cannot be permitted to blame the counsel. Learned single judge has further remarked that:

"A perusal of the affidavit does not reveal any diligence on the part of the respondent in the conduct of the proceedings. When already the suit has been decreed ex-parte, the respondent ought to have been more careful and diligent in prosecuting the matter further. the conduct of the respondent clearly reveals that at any point of time, he has not relished his responsibility as a litigant."

Appellant’s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.

Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.

The appeals are disposed of accordingly.

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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

with salary proof wife can royally scr3w hubby; $2000 YEP $2000 PM DV act maint! wife world renowned artist!! married ’02, both lived in USA, wife left hubby with kid in ’06, returned India, promptly filed DV case in ’07 & got $ $2000 p,m. AS JUST &FAIR BOUNTY…err maintenance !! Hon court says “….Women subjected to violence, .throughout ..history…whether ..Helen of Troy, or Sita of Ramayana,…..”

with salary proof wife can royally scr3w hubby; $2000 YEP $2000 PM DV act maint! wife world renowned artist!! married ’02, both lived in USA, wife left hubby with kid in ’06, returned India, promptly filed DV case in ’07 & got $ $2000 p,m. AS JUST &FAIR BOUNTY…err maintenance !!

NOTES
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* According to the honourable court "….Women have been subjected to violence, domestic or otherwise, throughout the pages of history—whether they be Helen of Troy, or Sita of Ramayana, whether they be Casandra of Troy, or Dropadi of Mahabharata. ….." !!!!
* If you (reader) agree that WOMEN are subjected to cruelty and so YOU !!, the husband has to pay, [though you are NOT connected to history or helen of troy…] please do NOT worry you have a lot of support from the honourable HC of Rajasthan !!
* Husband claims that he did NOT subject wife to creulty
* husband claims that he has lost his job and that could well be true because the judgement is AFTER the economic collapse
* wife has submitted a lot of proof that husband has earned $ 9000 pm since 1996
* As per court that adds up to Rs 6 crores
* The husband also has couple of houses in India anad some lakhs in fixed deposits
* Husband has NOT submitted all his bank accounts ass directed by lower courts !!!
* and so the Honourable HC is NOT willing to accept NO JOB as a valid defense of non payment
* Wife avers / claims that husband locked her computer, did not give her money to survive in US etc etc and also dragged her to nude parties !!! though she was un willing to go there !!! and so all this constitutes DV
* Husband is screaming something else from rooftops but that does not seem to hold water
* lower court has granted $2000 pm as maintenance under DV
* Hon HC says "….In the present case since the respondent wife had lived in the USA, naturally she was used to a high standard of living. Therefore, the maintenance of $ 2000 per month is most fair, & reasonable….."
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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 Foundation. SIF 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.
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
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CASE FROM JUDIS / REJASTHAN HC WEB SITE
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

JUDGMENT

Sukrit Verma & Another Vs. State of Raj. & Another

(S.B. Cr. Revision Petition No.131/2011)

S. B. Cr. Revision Petition under Sec.397
read with 401 Cr.P.C. against the
judgment dated 19-1-2011 passed by
Additional Sessions Judge (Fast Track)
No.3, Jaipur City, Jaipur, in Criminal
Appeal No.54/2010 and against the
judgment dated 29-6-2010 passed by
Additional Chief Judicial Magistrate
No.12, Jaipur City, Jaipur in Criminal
Case No.91/2010.
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Date of Judgment: May 5th, 2011.

PRESENT

HON’BLE MR. JUSTICE R.S. CHAUHAN

Mr. Mohit Tiwari, for the petitioners.
Mr. Laxman Meena, Public Prosecutor for the State.
Mr. S.R. Bajwa, Senior Advocate with Mr. Snehdeep, for respondent No.2.
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BY THE COURT: REPORTABLE

Aggrieved by the judgment dated 29-6-2010, passed by Additional Chief Judicial Magistrate No.12, Jaipur City, Jaipur, and by the judgment dated 19-1-2011, passed by Additional Sessions Judge (Fast Track) No.3, Jaipur City, Jaipur, the petitioner has approached this court. By the former judgment, the learned Magistrate had directed the petitioner to pay a monetary relief of $ 2000 per month, or an equivalent amount in Indian Currency, to the respondent from the date of presentation of the application i.e. 9-1-2007, and to pay $ 2500, or an equivalent amount thereof, for the expenses of the proceedings under the Domestic Violence Act, 2005 (`the Act’ for short); by the latter judgment, the learned Judge has upheld the judgment dated 29-6-2010, and has dismissed the appeal filed by the petitioner.

2. The brief facts of the case are that on 25-1-2002 the petitioner No.1 Sukrit Verma, and the respondent No.2, Rupal Khullar, were married, at New Delhi, according to the Hindu customs and rites. They left for United States of America (`USA’ for short) on 6-6-2002. They continued to live there till January, 2006. According to the husband, the respondent wife refused to return back to USA, to live with him, for the reasons best known to her. However, according to the respondent wife, she refused to go back with him for the reason that while she was staying in the USA, with him, she was subjected to acts of domestic violence. Therefore, she had no desire to join him back in the USA. In January, 2007, the respondent wife filed a petition under Section 9(6) and 37 (2) (d) of the Act before the learned Magistrate. In order to buttress her contentions, the respondent wife examined herself as a witness, and submitted 86 documents. On the other hand, the husband examined himself as a witness, and submitted 115 documents. After going through the oral and documentary evidence, vide judgment dated 29-6-2010, the learned Magistrate allowed the petition in the terms aforementioned. Since the petitioner was aggrieved by the said judgment, he filed an appeal under section 29 of the Act. However, vide judgment dated 19-1-2011, the learned Judge confirmed the judgment dated 29-6-2010, and dismissed the appeal. Hence, this revision petition before this court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

3. Mr. Mohit Tiwari, the learned counsel for the petitioner, has raised the following contentions before this Court:

Firstly, that the learned Magistrate, and the learned Judge have not appreciated the evidence in proper perspective. They have erroneously concluded that the petitioner husband had committed acts of cruelty towards the respondent wife.

Secondly, both the learned courts below have failed to consider the fact that the petitioner husband is unemployed; he does not have means to give the monetary relief as directed by the court. Therefore, the maintenance allowance is unreasonable.

Thirdly, the respondent wife herself is a renowned artist, who earns about Rs.1 lac per month by selling her paintings.

Fourthly, learned courts below have erred in calculating the maintenance in terms of US dollors, instead of Rupees. In fact, the learned Magistrate should have calculated the maintenance in terms of Rupees.

Lastly, relying on the case of Sanjay Bhardwaj & Others Vs. State & Another, (Cr.M.C. No.491/2009 decided by Delhi High Court on 27-8-2010), the learned counsel has contended that “there is no requirement in law for the husband to maintain his wife. For, the Court cannot tell the husband to beg, borrow, or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning”. Thus, according to the learned counsel, in the present case, since the husband is unemployed, since the wife is earning by selling her paintings, the husband cannot be forced to maintain his wife. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

4. On the other hand, Mr. S.R. Bajwa, Senior Advocate, the learned counsel for the respondent wife, has raised the following contentions:

Firstly, both the learned courts below have meticulously examined the evidence. They have validly concluded that the respondent wife was subjected to domestic violence. Moreover, question of facts cannot be disturbed under the revisional jurisdiction.

Secondly, the Act is a social beneficial piece of legislation, which is meant not only to protect the women from domestic violence, but also to provide them economic assistance; it ensures that their economic rights are implemented. The said Act does not make an exception that in case the husband is unemployed, he is absolved of his liability to maintain his wife.

Thirdly, before the learned trial court, the husband pleaded that he has been fired from his job.

However, according to the documents produced by the husband he had left his job voluntarily. Therefore, he had raised a false plea before the learned trial court. Fourthly, despite the orders of the learned trial court to the petitioner to produce statements of his Bank accounts, he singularly failed to do so.

Therefore, the learned trial court was certainly justified in concluding that the petitioner was earning $ 9000 per month. Further, out of $ 9000, the learned trial court has directed him to pay merely $ 2000 per month, which is a mere fraction of his monthly salary. Hence, he is liable to maintain his wife.

Fifthly, unemployment is not a valid defence. The petitioner happens to be not only a qualified person, but was also working abroad, that too, in America. Therefore, he is capable of earning in his own country.

Sixthly, from the money sent by him his mother had bought two properties in Delhi, therefore, his family has sufficient means for maintaining the wife.

Seventhly, it is misnomer to claim that respondent wife is an internationally renowned artist. Although documents have been submitted before the learned trial court to show that the respondent wife had participated in certain art exhibition, in America, but most of them were within the college, where she was studying in America. Although she has also exhibited her paintings in New Delhi, but she has not been able to sell her art work on a regular basis. Learned counsel has also emphasised that life of an artist is a life of struggle. Therefore, the respondent continues to be financially dependent upon her parents. Hence, she is entitled to monetary relief under the Act.

Lastly, he has questioned the veracity of the observation made in the case of Sanjay Bhardwaj and another (supra); he has contended that the observations made by Their Lordships of the Delhi High Court are legally untenable.

Learned Public Prosecutor has echoed the arguments raised by Mr. S.R. Bajwa. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

5. Heard learned counsel for the parties, perused the impugned judgments, and considered the case law cited at the Bar.

6. Women have been subjected to violence, domestic or otherwise, throughout the pages of history—whether they be Helen of Troy, or Sita of Ramayana, whether they be Casandra of Troy, or Dropadi of Mahabharata. Women have been easy pray to the male ego, and dominance. Much as the Indian Civilization pays obedience to the feminine divine, but the harsh reality remains that throughout the length and breath of this country, women are assaulted, tortured, and burnt in their daily lives. The phenomenal growth of crime against women, has attracted the attention of the international community. The International organisations took a serious look at the epidemic called “domestic violence”. The Vienna Accord of 1994, and the Beijing Declaration and the Platform for Action (1995) felt the necessity for a proper law on this burning issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) asked the member nations to enact a proper law for dealing with the mischief of domestic violence.

7. In India, although the criminal law deals with domestic violence in the form of section 498-A IPC, but there was no provision in the Civil Law to deal with the said problem. In order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. The Act is a social beneficial piece of legislation, which should be given as wide and as liberal an interpretation as possible. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

8. Section 3 of the Act defines the words “domestic violence” as under:-

] Definition of domestic violence.- For the purposes of
] this Act, any act, omission or commission or conduct
] of the respondent shall constitute domestic violence
] in case it–
]
] (a) harms or injures or endangers the health, safety,
] life, limb or well-being, whether mental or physical,
] of the aggrieved person or tends to do so and includes
] causing physical abuse, sexual abuse, verbal and
] emotional abuse and economic abuse; or
]
] (b) harasses, harms, injures or endanger the
] aggrieved person with a view to coerce her or any
] other person related to her to meet any unlawful
] demand for any dowry or other property or valuable
] security; or
]
] (c) has the effect of threatening the aggrieved
] person or any person related to her by any conduct
] mentioned in clause (a) or clause (b); or
]
] (d) otherwise injures or causes harm, whether
] physical or mental, to the aggrieved person.
]
] Explanation.I for the purpose of this section10
]
] (i) "physical abuse" means any act of conduct which
] is of such a nature as to cause bodily pain, harm, or
] danger to life, limb or health or impair the health or
] development of the aggrieved person and includes
] assault, criminal intimidation and criminal force.
]
] (ii) "sexual abuse" includes any conduct of a sexual
] nature that abuses, humiliates, degrades or otherwise
] violates the dignity of women;
]
] (iii) "verbal and emotional abuse" includes-

]
] (a) insults, ridicule, humiliation, name calling and
] insults or ridicule specially with regard to not
] having a child or a male child; and
]
] (b) repeated threats to cause physical pain to any
] person in whom the aggrieved person is interested.
]
] (iv) "economic abuse" includes-
] http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
] (a) deprivation of all or any economic or financial
] resources to which the aggrieved person is entitled
] under any law or custom whether payable under an order
] of a court or otherwise or which the aggrieved person

] requires out of necessity including, but not limited
] for the aggrieved person and her children, if any,
] stridhan, property, jointly or separately owned by the
] aggrieved person, payment of rental related to the
] shared household and maintenance;
]
] (b) disposal of household effects, any alienation of
] assets whether movable or immovable, valuables, shares

] securities, bonds and the like or other property in
] which the aggrieved person has and interest or is
] entitled to use by virtue of the domestic relationship
] or which may be reasonably required by the aggrieved
] person or her children or her stridhan or any other
] property jointly or separately held by the aggrieved
] person; and
]
] (c) prohibition or restriction of continued access to
] resources or facilities which the aggrieved person is
] entitled to use or enjoy by virtue of the domestic
] relationship including access to the shared household.

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

9. Interestingly, the Act defines the term “economic abuse”. While explaining the term economic abuse, the Act has defined economic rights of the women, the right to stridhan, the right to maintenance, the right to have access to the joint property owned by the aggrieved party, the right to shared household etc. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

10. The right to maintenance is further reflected in Section 20 of the Act, which is as under:-

] 20. Monetary reliefs.–(1) While disposing of an
] application under sub-section (1) of section 12, the
] Magistrate may direct the respondent to pay monetary
] relief to meet the expenses incurred and losses
] suffered by the aggrieved person and any child of the
] aggrieved person as a result of the domestic violence
] and such relief may include, but is not limited to–
]
] (a) the loss of earnings;
]
] (b) the medical expenses;
]
] (c) the loss caused due to the destruction, damage or
] removal of any property from the control of the
] aggrieved person; and
] http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
] (d) the maintenance for the aggrieved person as well
] as her children, if any, including an order under
] section 125 of the Code of Criminal Procedure, 1973 (2
] of 1974) or any other law for the time being in force.
] (2) The monetary relief granted under this section
] shall be adequate, fair and reasonable and consistent
] with the standard of living to which the aggrieved
] person is accustomed.
]
] (3) The Magistrate shall have the power to order an
] appropriate lump sum payment or monthly payments of
] maintenance, as the nature and circumstances of the
] case may require.
]
] (4) The magistrate shall send a copy of the order for
] monetary relief made under sub-section (1) to the
] parties to the application and to the in-charge of the
] police station within the local limits of whose
] jurisdiction the respondent resides.
]
] (5) The respondent shall pay the monetary relief
] granted to the aggrieved person within the period
] specified in the order under sub-section (1).
]
] (6) Upon the failure on the part of the respondent to
] make payment in terms of the order under sub-section
] (1), the Magistrate may direct the employer or a
] debtor of the respondent, to directly pay to the
] aggrieved person or to deposit with the court a
] portion of the wages or salaries or debt due to or
] accrued to the credit of the respondent, which amount
] may be adjusted towards the monetary relief payable by
] the respondent. Section 20 bifurcates monetary relief
] into two categories, firstly compensation, and
] secondly maintenance. Section 20(1) (a) (b) and (c)
] deals with compensation which should be paid to the
] aggrieved party for the loss of earning, for medical
] expenses, for loss caused due to destruction, damage
] or removal of any property from the control of the
] aggrieved party. However, these three categories are
] merely illustrative, and are not meant to be
] exhaustive in their content.

Section 20 (1) (d) deals with maintenance both for the aggrieved party, and for children, if any. According to section 20 (2), monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved party is accustomed to. According to section 20 (3), the Magistrate is empowered to order the payment of monetary relief either by way of lump sum payment, or as monthly payment, in the facts and circumstances of the case may require. Section 20 (5) casts a duty upon the respondent to pay the monetary relief within the specified period as directed by the order. Section 20 (6) empowers the Magistrate to direct the employer or a debtor of the respondent to pay the monetary relief either directly to the aggrieved party, or to deposit the same with the court, in case the respondent fails to pay the monetary relief.

Thus, Section 20 of the Act is meant to ameliorate the financial condition of the aggrieved person, who may suddenly find herself to be without a hearth and home. Financially, the aggrieved person may exist in a suspended animation, if she is neither supported by the husband, nor by her parents. In order to protect women from such a pergutory, Section 20 bestows a right to seek monetary relief in the form of compensation and maintenance. Section 20, thus, is a powerful tool for ensuring gender equality in economic terms. Section 20, does not contain any exception in favour of the husband. In fact, it recognises the moral and legal duty of the husband to maintain the wife. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

11. After meticulously examining the evidence available on record, both the learned courts below have opined that the petitioner had committed acts of domestic violence upon the respondent wife, both during their stay at USA, and otherwise. They have noticed the fact that when the wife’s visa was about to expire, the petitioner kept on threatening her that he would not get the visa renewed, but instead would have her deported from the USA; they have noticed the fact that he would lock the computer, and deny access to the wife; they have noticed the fact that he would hardly give her any money to survive in an alien land; they have noticed the fact that he would ridicule her for her dark complexion, for her wearing Indian clothes in America; they have noticed the fact that despite her unwillingness to go to nude camps, he would drag her there. They have also noticed the fact that ever since the respondent wife has returned to India, that too with a child, the petitioner has failed to pay any maintenance to the wife. All these acts fall within the definition of domestic violence contained in Section 3 of the Act. Hence, learned courts below were certainly justified in concluding that the respondent wife was subjected to domestic violence.

12. A perusal of the judgment dated 29-6-2010, clearly reveals that during the course of proceedings the respondent wife had submitted sufficient evidence to prove that the petitioner husband was earning about US $ 9000 per month since 1996. In the span of twelve years, he had accumulated almost Rs.6 crores. Moreover, in 2006 he had three fixed deposits in ICICI Bank totaling an amount of Rs.26 lacs; in his regular bank account, he had about Rs.25 lacs. Moreover, he had bought two houses, one in Vindyachal Nagar, Miyawali, and the other in Vrinda City, Greater Noida. The judgment further reveals that although the learned trial court had passed an order under Section 91 Cr.P.C. directing the petitioner husband to submit statements of his bank accounts, but he singularly failed to do so. Although he pleaded that he does not have sufficient financial means, but he failed to establish this fact.

13. It is, indeed, trite to state that there is a difference between a statement of fact, and the proof thereof. It is not sufficient for a party to merely claim that a fact exist; it is important and essential that the party should prove that the fact does exist. After all, the courts of law demand that cogent evidence be marshaled out, and a fact stated by a party be established to exist. This is rather clear from the provisions of the Evidence Act, which lays down the principles governing proof. Therefore, it was not sufficient that the petitioner pleaded that he did not have financial means to maintain the wife: it was essential that he should establish this fact. Since, even after the direction of the learned trial court, the husband failed to submit relevant statements of his bank accounts, the learned trial court was certainly justified in drawing adverse inference against the petitioner husband under section 114 (f) of the Evidence Act. Hence, the petitioner’s plea that he is not able to maintain the wife was rightly rejected.

14. Of course, the petitioner has pleaded, both before the appellate court and before this court, that the respondent wife has sufficient means to support herself. Again he has failed to establish this fact. Exhibits D-5 to D-14, and D-114, are merely documents which prove the fact that respondent had exhibited her art work in different art galleries. But there is difference between exhibition of art work and sale thereof. Merely because paintings were exhibited, it can not be presumed that they were sold. It is common knowledge that the life of an artist, is a life of struggle, and not a bed of roses. Art history, whether of the East or the West, bears testimony to the fact that even famous artist like Van Gogh have died in poverty and have committed suicide. Moreover, some of the paintings were exhibited in college campus. The exhibition of art work in college campus is merely display of work by a student; they are not necessarily meant for sale to the public at large. Therefore, the documents showing the holding of exhibition do not substantiate the plea of the petitioner that through such exhibition the respondent wife has a regular source of income. Therefore, the learned trial court, as well as the appellate court were justified in concluding that respondent did not have means to support herself. In fact, financially she was dependent on her parents, and on her sister. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

15. Learned counsel for the petitioner is not justified in claiming that maintenance should have been calculated in terms of Rupees, rather than in terms of dollors. The documents which were submitted before the learned trial court showed the earning of the petitioner in terms of dollors. Moreover, while calculating the monetary relief under section 20 of the Act, the learned trial court has clearly stated that equivalent amount of dollors should be paid to the respondent. Therefore, the contention raised by the learned counsel is unsustainable.

16. Section 20 (2) of the Act casts a duty upon the Court to award a fair, adequate and reasonable maintenance while keeping in mind the standard of living to which the aggrieved person has used to. In the present case since the respondent wife had lived in the USA, naturally she was used to a high standard of living. Therefore, the maintenance of $ 2000 per month is most fair, & reasonable.

17. In an era of human rights, of gender equality, the dignity of women is unquestionable. Articles 14 and 15 of the Constitution of India recognise the dignity of women. The Constitution empowers the Parliament to enact laws in favour of women. Flowing from the constitutional ranges, Section 125 Cr.P.C., Section 24 Hindu Marriage Act, Section 20 Domestic Violence Act, ensure that women are paid maintenance by the husband. Section 26 of the Act further lays down that the maintenance paid under the Act, would be in addition to maintenance paid under any other law being in force for the time being. Therefore, the provisions of the Act are supplementary to provisions of other law in force, which guarantee the right of maintenance to the women. Hence, the observations made by Their Lordship of Delhi High Court, in the case of Sanjay Bhardwaj, that “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”. Such an observation is clearly contrary to the provisions of law. Hence, this court respectfully disagrees with the opinion of Their Lordship of the Delhi High Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

18. None of the laws, mentioned above, make the inability of earning as a valid defence. In fact, according to Section 125 (3) Cr.P.C., if a husband does not maintain his wife, after an order has been passed in favour of the wife, he is liable to be imprisoned. Section 20 (6) of the Act empowers the Court to direct a debtor of the respondent to either directly pay the maintenance to the aggrieved person, or to deposit the maintenance/ compensation in the court. Of course, while granting maintenance the court has to weigh the comparative hardship of the husband and of the wife. In case the wife has sufficient means to maintain herself, and in case the husband does not have any means whatsoever, in such a scenario the court may not impose the liability of maintenance upon the husband. However, such is not the case here.

As mentioned above, the petitioner could not establish the fact that respondent has a regular source of income. On the contrary, the wife has been able to establish that the petitioner was gainfully employed in America and has accumulated no dearth of wealth. Therefore, both the courts below were legally justified in directing the petitioner to maintain the wife.

19. The Law has always stood to favour of the women. For the Law recognises their vulnerability for survival in the cruel world. Women, being a keeper of hearth in home, need to be protected as they are the foundation of any society. If women are exposed to physical abuses, to sexual exploitation, the very foundation of the society would begin to weaken. It is only after recognising their importance, sociologically, that the ancient Indian Seers had opined that “Gods dwell only in those houses, where women are respected”. Thus, both the law and society recognise a moral and legal duty of the husband to maintain the wife. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

20. Therefore, this court does not find any perversity or illegality in the impugned order and the judgment. The revision petition, being devoid of merit, stands dismissed.

[R.S.CHAUHAN] J.

arn/-

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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

90% condom vending machines MISSING! womn lib shuld be real happy , GOOD child support coming years !!

90% Condom Machines Have Gone Missing: CAG

NEW DELHI | SEP 06, 2013

Almost 90 per cent condom vending machines installed at public places by National Aids Control Organisation (NACO) for HIV/AIDS prevention have gone missing, a CAG report has said.

In its report tabled in Parliament today, the CAG has rapped NACO for failing to achieve the objective of improving the accessibility of condoms in high-risk areas due to poor planning and implementation.

The CAG report said the CVMs scheme "was characterised by poor planning and implementation and Ministry of Health did not undertake any feasibility study for it considering sale of condoms was very low as compared to projections by NACO."

It pointed out that in Phase I of the project, 11,025 CVMs were installed in high-risk areas of which 9,860 machines were not traceable or were lost. The audit found only 1,130 machines traceable but were not functioning.

"As the CVMs installed under Phase I were not insured against theft and damage, thus no recovery/claim could be made in respect of stolen machines," the CAG report said.

Similarly in Phase II of the project, 1546 machines were damaged, 161 stolen and 1791 could not be installed, the CAG said pointing out that Hindustan Latex was given the work of installation of CVMs by September 2005 for phase 1 and July 2008 for Phase II.

"The sale of condoms through CVMs was very low in comparison to projects of NACO. The intended objective of improving the accessibility of condoms in high risk areas through CVMs was not achieved despite investment of Rs 21.54 crore under the scheme.

"The hasty manner of release of funds by the Ministry under Phase II without ascertaining the status of CVMs installed earlier was inappropriate," CAG said.

FILED ON: SEP 06, 2013 22:59 IST

http://news.outlookindia.com/items.aspx?artid=809236

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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