Daily Archives: September 25, 2013

Arrest for non pmt maint us 125 CrPC within MAX 1yr, but NO TIME LIMIT FOR RECOVERY u/s 128 CrPC. Madras HC

Arrest for non pmt maint us 125 CrPC within MAX 1yr, but NO TIME LIMIT FOR RECOVERY u/s 128 CrPC. Madras HC

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The Honourable Madras HC says and we quote :
“………..A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any pale of doubt that in so far as the proceeding under Section 125(3) is concerned, the statuete has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all.
This is because, while exercising the power under Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of imprisonment, the legislature has perhaps, thought it fit to provide such a period of limitation of one year to file a petition. Since, while enforcing an order under Section 128 of Cr.P.C. for recovery of the amount, there is no question of straight away imposing such a punishment of imprisonment and that may be the reason for the legislature not to provide for such a period of limitation…….”

*****************************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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo .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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Madras High Court

P.Vaithi vs Kanagavalli on 2 February, 2010

DATED: 02.02.2010

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Criminal Revision Case No.1237 of 2009

and

M.P.No.1 of 2009

P.Vaithi .. Petitioner

Vs.

1. Kanagavalli

2. Tamil Selvai .. Respondents

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Prayer : Criminal Revision Case is filed under Section 397 read with 401 of Cr.P.C. to set aside the order of the learned Judge of the Family Court, Salem, made in C.M.P.No.146/2008 in M.C.No.29/2004 dated 22.10.2009 For Petitioner :: Mr.S.Ayyathurai

For Respondents :: Mr.R.Nalliyappan

O R D E R

In M.C.No.29/2004, the Family Court, Salem, directed the petitioner to pay a sum of Rs.750/- p.m. to the 1st respondent and Rs.500/- p.m. to the 2nd respondent towards their maintenance under Section 125 of Cr.P.C. The said order, dated 17.11.2006 has become final. However, the said amount was not paid. Seeking to enforce the same, the respondents filed C.M.P.No.146/2008 before the lower court under Section 128 of Cr.P.C. By an order dated 22.10.2009, the Family Court directed the petitioner to pay the amount and also cautioned the petitioner that an order of attachment would be passed in the event of failure of the petitioner to pay the amount. The petitioner is aggrieved by the said order. Thus, he is before this Court with this revision. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

2. The only contention raised by the learned Counsel for the petitioner is that such a petition for enforcement could be filed only in respect of arrears of maintenance for a period of one year. He would further submit that since, in this case, C.M.P.No.146/2008 was filed covering a period exceeding one year, the court ought to have dismissed the application as barred by limitation. To substantiate his contention, the learned counsel relies on judgments in Yoosuf Rawther v. Ashref and another reported in 1997 Crl.L.J.4313 and Jagannath Patra v. Purnamashi Saraf and another reported in AIR 1968 Orissa 35. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

3. The learned Counsel for the respondents would however oppose this petition. According to him, the limitation provided under Section 125 (3) is not applicable to the facts of the present case.

4. I have considered the rival submissions made on either side and also perused the records.

5. At the outset, I have to state that a proceeding under Section 125 Cr.P.C. is quasi civil and quasi criminal. In so far as it decides the civil rights of the parties to claim maintenance, it is civil in nature. When the order is not obeyed by the person against whom the same has been made, then the court is empowered to impose a punishment of imprisonment of one month for each breach. To that extent, the proceeding is criminal. To put it comprehensively, I have to state that the proceeding is quasi civil and quasi criminal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

6. After an order is passed directing to pay maintenance, the party in whose favour such an order has been passed has got two options to work out to recover the arrears from the other. He can choose to approach the court under Section 125(3) Cr.P.C. requesting the court to punish the defaulter by imposing appropriate imprisonment. On the other hand, he can also approach the court under Section 128 of Cr.P.C. seeking to recover the amount due under the maintenance order. A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any pale of doubt that in so far as the proceeding under Section 125(3) is concerned, the statuete has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all. This is because, while exercising the power under Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of imprisonment, the legislature has perhaps, thought it fit to provide such a period of limitation of one year to file a petition. Since, while enforcing an order under Section 128 of Cr.P.C. for recovery of the amount, there is no question of straight away imposing such a punishment of imprisonment and that may be the reason for the legislature not to provide for such a period of limitation. Therefore, to put it in nutshell, for initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C., absolutely, I find no provision providing for limitation as it is provided in respect of proceedings under Section 125(3) of Cr.P.C. In the case on hand, the petition was filed under Section 128 of Cr.P.C. Though it was filed beyond one year, in my considered opinion, the lower court was right in entertaining the same as the same is not barred by any limitation. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

7. Now the judgment relied on by the learned counsel for the petitioner in Yoosuf Rawther v. Ashref and another reported in 1997 Crl.L.J.4313 as cited supra requires to be considered. In that judgment, the Court had occasion to consider the period of limitation provided only in respect of a petition filed under Section 125(3) of Cr.P.C. The Court was not inclined to give any findings in respect of the proceedings under Section 128 Cr.P.C. Therefore, the views expressed in the said judgment have no relevance to the Section 128 of Cr.P.C. at all. For similar reason, the judgment inf Jagannath Patra v. Purnamashi Saraf and another reported in AIR 1968 Orissa 35 also does not come to the help of the petitioner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

8. In view of all the above, the revision fails and the same is accordingly dismissed. Consequently, connected Miscellaneous Petition is also closed. I clarify that the petitioner is at liberty to enforce the maintenance order without being bound by the limitation provided under Section 125(3) of Cr.P.C. 02.02.2010

Index : Yes/No

Internet:Yes/No

tsi

To

The Family Court Judge, Salem.

S.NAGAMUTHU,J.

tsi

Crl.R.C. No.1237/2009
02.02.2010

Crl.R.C.No.53 of 2010
Dt.19.01.2010

01.02.2007

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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

S125 CrPC maintenance adjustable against maint in matri. proceedings & not over & above Sec 24 HMA maint.

S125 CrPC maintenance adjustable against maint. in matri. proceedings & not over & above Sec 24 HMA maint.

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Supreme Court of India

Sudeep Chaudhary vs Radha Chaudhary on 31 January, 1997

Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473

Author: S Bharucha

Bench: S Bharucha, F Uddin

JUDGMENT

S.P. Bharucha, J.

1. Special leave granted.

2. The respondent-wife has been served by substituted service but does not appear.

3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.

6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.

9. The appeal is disposed of accordingly.

10. No order as to costs.

*****************************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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FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

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

Rape!! : Woman alleges lawyer had physical relations during divorce case he represented her !!! : Advocate arrested on rape charge, released on bail

"………..In another case, a 27-year-old woman had alleged that the lawyer had established physical relations with her since 2011 during the pendency of a divorce case in which he was representing her. ……"

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Advocate arrested on rape charge, released on bail

Last Updated: Wednesday, September 25, 2013, 17:03

New Delhi: A lawyer arrested for allegedly raping two women on different occasions has been granted bail by a Delhi court which asked him not to influence any of the complainants in the case.

Additional Sessions Judge V K Khanna enlarged the lawyer on bail on furnishing of a personal bond of Rs 25,000 with one surety of the like amount. The court also asked him to furnish the same bail bond in another rape case lodged against him by.

While releasing the advocate on bail, the court said that he should "not in any manner influence the complainants or try to meet them, otherwise it will go against him". The accused assured the court that he will abide by its directions and also cooperate in the case.

The lawyer was arrested by the police on September 16 after a 19-year-old girl lodged a complaint at New Friends Colony Police Station here alleging that she had been raped by him on the false pretext of marrying her.

During the hearing, the court had asked the complainant if she wanted to marry the accused. The girl replied that she will not enter into wedlock with the lawyer as she had been "cheated" by him.

In another case, a 27-year-old woman had alleged that the lawyer had established physical relations with her since 2011 during the pendency of a divorce case in which he was representing her.

The 19-year-girl had told the police that in March when the accused called her to his flat in south Delhi, the other woman (the second complainant) was also present there.

She said that as they both felt cheated, they decided to file complaints with the police.

PTI

First Published: Wednesday, September 25, 2013, 17:03

http://zeenews.india.com/news/delhi/advocate-arrested-on-rape-charge-released-on-bail_879148.html

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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

Hindu, Muslim, Christian or Parsi : Men will be hanged even IF suspected !! Here’s one guy being charged with marrying a 17 year old !! “….Muslim Personal Law can’t override criminal law: Court…”

Even though Muslim Personal law allows Muslims to marry earlier the court has decided that "……Merely because both the girl and the accused happen to be from the same religion i.E. Muhammadan whose Personal Law provides for a different age of marriage than the one provided under the statutory law of the land, does not mean any special indulgence is required to be given to the accused in so far as criminal law of this land is concerned," ….."

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Muslim Personal Law can’t override criminal law: Court

Tag: Muslim Personal Law, Criminal law, New Delhi, Delhi court, Minor girl rape
Last Updated: Wednesday, September 25, 2013, 17:05

New Delhi: Holding that Muslim Personal Law cannot "override" criminal law, a Delhi court has rejected the bail plea of a Muslim man, accused of kidnapping and raping his 17-year-old lover belonging to the same community.

The court said that the law of the land should be applied uniformly on all and constitutional concept of equality before law cannot be diluted by one set of legislation for Muslims and a different one for non-Muslims.

"Merely because both the girl and the accused happen to be from the same religion i.E. Muhammadan whose Personal Law provides for a different age of marriage than the one provided under the statutory law of the land, does not mean any special indulgence is required to be given to the accused in so far as criminal law of this land is concerned," Additional Sessions Judge Kamini Lau said.

Under the Muslim Personal Law, a girl can marry as per her choice if she has attained puberty.

"I may observe that India is governed by secular concepts provided under the Constitution and Sharia cannot override the same. The Muslim Personal Law only applies to cases relating to marriage, divorce and personal relations but has no applicability in case of a criminal liability," the judge said.

The court’s observation came while dismissing the bail plea of a man, accused in a kidnapping and rape case of a 17-year-old girl.

The accused told the court that the girl was in love with him and they wanted to marry but this was not acceptable to her parents and she went to Jaipur with him of her own will. He admitted that they had developed physical relations there and thereafter the girl had returned to her home.

He also said that the girl had given her statement against him under her parents’ pressure but now both the families are ready to solemnize their marriage and the dispute has been resolved between them. He was arrested under provisions of the IPC dealing with kidnapping and the Protection Of Children from Sexual Offences (POCSO) Act dealing with sexual assault.

PTI

First Published: Wednesday, September 25, 2013, 17:05

http://zeenews.india.com/news/nation/muslim-personal-law-can-t-override-criminal-law-court_879149.html

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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