Daily Archives: May 13, 2014

In April 2014, this Hon. Judge says 498A FILING WOMAN WILL NOT leave husband without A SERIOUS GRIEVANCE !!!!!

"….in Indian society, a girl with disturbed matrimony has no place. She becomes an eye sore for her parents .. brothers .. families. She is treated as a outcast by .. society and .. neighbourhood. … it is difficult to accept to reason that a girl would leave her matrimonial home without any serious grievance.."

ANY MALE WHO EXPECTS SYMPATHY FROM COURTS SHOULD READ THIS JUDGEMENT MANY TIMES !!!!

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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo .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

IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH

CRR(F)-67-2013

Date of decision : 09.04.2014

Raj Kumar … Petitioner

Versus Sunita Devi and another

… Respondents

CORAM: HON’BLE MRS. JUSTICE REKHA MITTAL Present: Mr.Som Nath Saini, Advocate for the petitioner.

Mr. Vivek Khatri, Advocate

for the respondents.

REKHA MITTAL, J.(ORAL)

The present petition has been directed against order dated 04.03.2013 passed by the District Judge (Family Court), Hisar whereby the respondent-wife has been awarded maintenance @ Rs.5000/- and the minor son of the parties @ Rs.3000/-, in proceedings under Section 125 of the Code of Criminal Procedure (in short ‘the Code’). The facts relevant for disposal of the present petition are that marriage of Raj Kumar (petitioner herein) was performed with Sunita Devi- respondent No.1 on 16.04.2003 at Hansi, District Hisar. Out of their wedlock, one son namely Gaurav (respondent No.2) was born, who is now residing with his mother. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

As per allegations set up by the applicant-wife, her husband and his family members were not happy with the dowry given in the 2 marriage and they started harassing and maltreating her in connection with demand of motor-cycle. She was turned out of the matrimonial home after physical torture on 15.10.2006. She along with the minor child has been neglected to be maintained by the respondent-husband. With regard to income and sources of the husband, it is alleged that he is having ancestral agriculture land measuring 146 kanals 15 marlas in village Dadu and earning about Rs.5 lacs per annum from the land. He has a plot measuring 500 square yards at Narwana, two plots measuring 400 square yards each in village Dadu and constructed a big house on one of the plots. He is running a cloth showroom at Narwana and earning about Rs.40,000/- per month from the business. She has no source of income to maintain herself and the minor child, who is studying. She claimed maintenance allowance @ Rs.20,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The respondent filed the reply and in turn denied the averments that any demand of dowry was made or the applicant was harassed, tortured and taunted either for bringing less dowry or in connection with demand of dowry. He never refused to keep and maintain the applicants. Applicant No.1 is an educated lady, working in a private school, getting salary of Rs.5000/- per month and also earning more than Rs.10,000/- by taking tuition. He is hardly earning Rs.2000/3000/- per month which is not sufficient to meet his livelihood. He has denied having ancestral agriculture land in village Dadu, income from the land, plot measuring 500 square yards at Narwana or two plots at village Dadu. He has also denied running a cloth showroom at Narwana and earning Rs. 40,000/- per month from the business.

The parties were permitted to lead evidence in support of their respective claims.

After having heard counsel for the parties and consideration of the matter in the light of allegations and evidence, the Family Court came to conclusion that the respondent-husband has refused and neglected to maintain his wife & the minor child and maintenance has been assessed at the aforesaid rate, payable by him from the date of filing of the application, without any order as to costs.

Feeling aggrieved by the order passed by the trial Court, the present petition has been preferred by the respondent-husband (petitioner herein). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

Counsel for the petitioner has sought to assail award of maintenance to the wife primarily on the ground that she herself is a guilty spouse and left the matrimonial home without any reasonable or sufficient cause. To substantiate his contention, he has placed heavy reliance upon the judgment passed by the Court in matrimonial proceedings under Section 9 of the Hindu Marriage Act wherein Raj Kumar prayed for restitution of conjugal rights on the plea that his wife is staying away from the matrimonial home without any reasonable cause or excuse and she be directed to join his company. It is argued that the applicant-wife did not contest the proceedings knowing fully well that she has no case to meet the plea of the husband, therefore, the judgment and the decree passed in those proceedings by the District Judge, Jind on 10.04.2008 negates the claim of the wife of her entitlement to get maintenance under section 125 of the Code initiated in May, 2012 and culminated in the judgment dated 04.03.2013. In support of his contention, counsel has relied upon judgment of this Court in Khursheed Ahmad Vs. Smt. Zakira, 2007(3)(Supp.)819.

Another submission made by counsel is that Sunita filed a criminal complaint against her husband and parents in-law for committing offence punishable under Sections 323, 498-A, 406, 307, 511, 120-B of the Indian Penal Code (in short ‘IPC’) instituted in August, 2007. The plea of Sunita that she was harassed, maltreated or tortured in connection with demand of dowry/scooter has been rejected by the Court in view of the judgment passed by the Sub Divisional Judicial Magistrate, Hansi on 14.01.2014 vide which Raj Kumar and others, accused in the case, have been acquitted of the offence.

It is argued with vehemence that decree for restitution of conjugal rights passed in the year 2008 and decision in the criminal proceedings negatives the plea of Sunita in regard to allegations against her husband and his parents for committing offence under Sections 498-A, 406 IPC and it goes a long way to show that version of Sunita that she was turned out of the matrimonial home after giving beatings on account of demand of dowry is nothing but a bundle of lies and bereft of truth. According to counsel, as Sunita is staying away from the matrimonial home without any reasonable cause or excuse, there is no merit in her contention that Raj Kumar her husband has refused or neglected to maintain her and it disentitles her to claim maintenance from her husband. Counsel for the respondents, on the contrary, contends that an ex-parte decree for restitution of conjugal rights without framing a specific issue, if the wife has refused to live with the husband without sufficient reason and specific findings on the issue after giving an opportunity to lead evidence by the parties cannot form the basis to accept the plea of the husband that his wife is not entitled to get maintenance allowance. For this purpose, counsel has relied upon a Division Bench judgment of this Court in Ravi Kumar Vs. Santosh Kumari, 1997(3) RCR (Criminal) 3. He has further relied upon Haizaz Pashaw Vs. Gulzar Banu and another, 2002(3) ILR (Kerala) 149; Kamadi Bhavani Vs. Kamadi Lakshmanaswamy Lakshmana Rao, 1994(3) RCR (Criminal) 98 (Andhra Pradesh High Court); Smt.Kesari Devi Vs. Jagdev Singh, 2005(2) RCR (Criminal) 359 (Himachal Pradesh High Court); Brij Ballabh Pandey Vs. Smt.Israwati Devi, 1996(3) CCR 195 (Allahabad High Court); Maddina Subbamma Vs. Maddina Venkateswarlu and State, 1992 Civil Court Cases, 609 (Andhra Pradesh High Court); Mohd. Shakeel Vs. Smt. Shaheena, 1987 (1) RCR (Criminal) 569 (Delhi High Court); Sardar Surjeet Singh Vs. Smt. Rajendra Kaur, 1989 Civil Court Cases 571 (Allahabad High Court) and K.Narayan Rao Vs. Bhagyalakshmi, 1984(1) Karnataka Law Journal, 451 (Karnataka High Court). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

With regard to judgment passed by the Judicial Magistrate in criminal proceedings, counsel would argue that the judgment has not attained finality because the complainant-Sunita Devi has a right to challenge the acquittal of the accused by filing an appeal before this Court under Section 378(4) of the Code. It is further argued that proceedings under Section 125 of the Code are summary in nature, therefore, it does not require full fledged trial as required in criminal proceedings. Another submission made by counsel is that in criminal proceedings, the standard of proof is much more higher than the civil proceedings to be decided on the basis of preponderance of probabilities. It is argued with vehemence that judgment passed in the proceedings, in the circumstances, cannot be allowed to stand in the way of the applicant to claim maintenance as she would be rendered at the verge of starvation and vagrancy in case her claim for maintenance is rejected. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

I have heard counsel for the parties and perused the records. Before adverting to the rival submissions made by counsels, it is appropriate to note that parties resided together for a period of more than 3 years and out of this wedlock, a male child is born. The child, at present, is staying with his mother, and the mother and the child are staying at the parental house of Sunita Devi.

Much stress has been laid by counsel for the petitioner that as Sunita herself is guilty of staying away from the matrimonial home without any reasonable cause, she cannot stake claim to get maintenance.

The Court cannot turn a blind eye that in Indian society, a girl with disturbed matrimony has no place. She becomes an eye sore for her parents especially brothers and their families. She is treated as a outcast by the members of the society and people living in the neighbourhood. In this background, it is difficult to accept to reason that a girl would leave her matrimonial home without any serious grievance to express and that too in the circumstances that she has a child from the wedlock. In the present case, the husband has not pleaded any special reasons for the wife to leave the matrimonial home if she was provided a congenial and comfortable atmosphere, at the risk of being treated shabbily by those who were earlier her near and dear ones before her marriage. This fact alone is sufficient to create a doubt in the plea of the husband that the wife is staying away from the matrimonial home voluntarily, without any reasonable cause or excuse.

This brings the Court to the main contention of the petitioner that a decree for restitution of conjugal rights passed in favour of the petitioner in the year 2008, prior to institution of proceedings under Section 125 of the Code disentitles her to get maintenance. There is no denial that the decree for restitution of conjugal rights is an ex parte decree passed by the District Judge, Jind. No doubt, an ex parte decree passed by a competent Court of law has the same force as a decree passed after contest until and unless the ex parte decree is set aside in appropriate proceedings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

Nevertheless, the question for adjudication is whether an ex parte decree of restitution of conjugal rights passed by the civil Court can stand in the way of criminal Court in granting allowance under Section 125 of the Code. Counsel for the petitioner has relied upon a single Bench judgment of this Court in Khursheed Ahmad’s case (supra). In this case, the decree for restitution of conjugal rights set up by the petitioner-husband was not an ex parte decree but it was a decree passed after contest. The Court held that as per the finding recorded by the Civil Court, the petitioner-wife has left the matrimonial home without there being any sufficient reasons and the said decree has not been complied with so far. Therefore, in its view, the revisional Court has rightly held that the petitioner-wife was not entitled for maintenance as ordered by the trial Court until and unless the decree dated 28.11.2002 for conjugal rights is complied with by her. It was further held that the decision in Haizaz Pashaw Vs. Gulzar Banu and another, 2002 Crl.L.J. 3282 (Kerala High Court) cited by counsel for the wife is not 8 applicable in the facts of this case. In that case, the ex parte decree for restitution of conjugal rights was passed by the Court and it was observed that the wife was not given proper opportunity to defend the case. But the facts in the instant case are different. Here the decree for restitution of conjugal rights was passed after providing full opportunity to the wife to contest the suit filed by the husband.

As in the case at hand, the decree for restitution of conjugal rights is an ex parte decree without an opportunity to the wife to lead evidence to counter the case of the husband, the petitioner cannot gain any advantage to his contention from the judgment in Khursheed Ahmad’s case (supra). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The issue raised by the petitioner is no longer res integra in view of the judgment of Division Bench of this Court in Ravi Kumar’s case (supra) wherein the Court answered the question of law referred to it, in para 11 in the following terms:-

"11. We, therefore, answer the question of law referred to us as follows:

(1) The wife against whom a decree of restitution of conjugal rights has been passed by the Civil Court, shall not be entitled to claim allowance under Section 125 of the Code of Criminal Procedure if in the proceedings of restitution of conjugal rights before the Civil Court, a specific issue has been framed that whether without sufficient reason, the wife refuses to live with the husband, and the parties have been given an opportunity to lead evidence and thereafter specific findings are recorded by the Civil Court on this issue;

(2) But in case the husband has got an ex-parte decree of Davinder Kumar restitution of conjugal rights from the Civil Court, such decree shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125 of the Code of Criminal Procedure;

(3) In case the decree for restitution of conjugal rights has been obtained by the husband subsequent to the order for maintenance passed by the Magistrate under Section 125, Criminal Procedure Code then the decree ipsofacto, shall not disentitle the wife to her right of maintenance and in that case, the husband will have to approach the Court of the Magistrate under Sub- section (5) of Section 125 of the Code of Criminal Procedure for cancelling the order granting maintenance under Section 125, Criminal Procedure Code; and

(4) The wife against whom decree of restitution of conjugal rights in the manner indicated in our first conclusion has been passed, will get the right to claim maintenance from the husband with effect from the date when she is granted divorce and she will continue getting this maintenance till she re-marries."

Counsel for the petitioner has failed to cite any contrary law. Keeping in view the authoritative decision rendered by the Division Bench of this Court and the judgments by various High Courts referred to by counsel for the respondent-wife, contention raised by counsel for the petitioner that an ex parte decree of restitution of conjugal rights can operate to deprive the wife of her right to maintenance, in view of the provisions of Section 125(4) of the Code, is devoid of merit and accordingly repelled. Counsel for the petitioner made a vain attempt to challenge entitlement of the wife in view of the findings of the criminal court in a complaint filed by Sunita Devi. The judgment was rendered by the Court on 14.01.2014, therefore, Sunita Devi may challenge those findings by way of 10 appeal before this Court, thus, those findings cannot be said to have attained finality. This apart, as has been rightly argued by counsel for Sunita, proceedings under Section 125 of the Code are summary in nature and the standard of proof in criminal trial stands on a much higher footing than evidence required for claiming maintenance under Section 125 of the Code. In this view of the matter, the petitioner cannot gain any advantage to his contention from findings recorded by Sub Divisional Judicial Magistrate, Hansi.

Before parting with this order, it is pertinent to mention that the petitioner has not challenged maintenance awarded in favour of the minor child of the parties. He only assailed grant of maintenance in favour of his wife. However, counsel for the petitioner has not made any submissions with regard to quantum of maintenance assessed by the trial Court. For the foregoing reasons, the petition is dismissed leaving the parties to bear their own costs.

(REKHA MITTAL)

JUDGE

April 09, 2014.

Davinder Kumar

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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

In April 2014, this Hon. Judge says 498A FILING WOMAN WILL NOT leave husband without A SERIOUS GRIEVANCE !!!!!

"….in Indian society, a girl with disturbed matrimony has no place. She becomes an eye sore for her parents .. brothers .. families. She is treated as a outcast by .. society and .. neighbourhood. … it is difficult to accept to reason that a girl would leave her matrimonial home without any serious grievance.."

ANY MALE WHO EXPECTS SYMPATHY FROM COURTS SHOULD READ THIS JUDGEMENT MANY TIMES !!!!

*****************************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.

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

IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH

CRR(F)-67-2013

Date of decision : 09.04.2014

Raj Kumar … Petitioner

Versus Sunita Devi and another

… Respondents

CORAM: HON’BLE MRS. JUSTICE REKHA MITTAL Present: Mr.Som Nath Saini, Advocate for the petitioner.

Mr. Vivek Khatri, Advocate

for the respondents.

REKHA MITTAL, J.(ORAL)

The present petition has been directed against order dated 04.03.2013 passed by the District Judge (Family Court), Hisar whereby the respondent-wife has been awarded maintenance @ Rs.5000/- and the minor son of the parties @ Rs.3000/-, in proceedings under Section 125 of the Code of Criminal Procedure (in short ‘the Code’). The facts relevant for disposal of the present petition are that marriage of Raj Kumar (petitioner herein) was performed with Sunita Devi- respondent No.1 on 16.04.2003 at Hansi, District Hisar. Out of their wedlock, one son namely Gaurav (respondent No.2) was born, who is now residing with his mother. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

As per allegations set up by the applicant-wife, her husband and his family members were not happy with the dowry given in the 2 marriage and they started harassing and maltreating her in connection with demand of motor-cycle. She was turned out of the matrimonial home after physical torture on 15.10.2006. She along with the minor child has been neglected to be maintained by the respondent-husband. With regard to income and sources of the husband, it is alleged that he is having ancestral agriculture land measuring 146 kanals 15 marlas in village Dadu and earning about Rs.5 lacs per annum from the land. He has a plot measuring 500 square yards at Narwana, two plots measuring 400 square yards each in village Dadu and constructed a big house on one of the plots. He is running a cloth showroom at Narwana and earning about Rs.40,000/- per month from the business. She has no source of income to maintain herself and the minor child, who is studying. She claimed maintenance allowance @ Rs.20,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The respondent filed the reply and in turn denied the averments that any demand of dowry was made or the applicant was harassed, tortured and taunted either for bringing less dowry or in connection with demand of dowry. He never refused to keep and maintain the applicants. Applicant No.1 is an educated lady, working in a private school, getting salary of Rs.5000/- per month and also earning more than Rs.10,000/- by taking tuition. He is hardly earning Rs.2000/3000/- per month which is not sufficient to meet his livelihood. He has denied having ancestral agriculture land in village Dadu, income from the land, plot measuring 500 square yards at Narwana or two plots at village Dadu. He has also denied running a cloth showroom at Narwana and earning Rs. 40,000/- per month from the business.

The parties were permitted to lead evidence in support of their respective claims.

After having heard counsel for the parties and consideration of the matter in the light of allegations and evidence, the Family Court came to conclusion that the respondent-husband has refused and neglected to maintain his wife & the minor child and maintenance has been assessed at the aforesaid rate, payable by him from the date of filing of the application, without any order as to costs.

Feeling aggrieved by the order passed by the trial Court, the present petition has been preferred by the respondent-husband (petitioner herein). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

Counsel for the petitioner has sought to assail award of maintenance to the wife primarily on the ground that she herself is a guilty spouse and left the matrimonial home without any reasonable or sufficient cause. To substantiate his contention, he has placed heavy reliance upon the judgment passed by the Court in matrimonial proceedings under Section 9 of the Hindu Marriage Act wherein Raj Kumar prayed for restitution of conjugal rights on the plea that his wife is staying away from the matrimonial home without any reasonable cause or excuse and she be directed to join his company. It is argued that the applicant-wife did not contest the proceedings knowing fully well that she has no case to meet the plea of the husband, therefore, the judgment and the decree passed in those proceedings by the District Judge, Jind on 10.04.2008 negates the claim of the wife of her entitlement to get maintenance under section 125 of the Code initiated in May, 2012 and culminated in the judgment dated 04.03.2013. In support of his contention, counsel has relied upon judgment of this Court in Khursheed Ahmad Vs. Smt. Zakira, 2007(3)(Supp.)819.

Another submission made by counsel is that Sunita filed a criminal complaint against her husband and parents in-law for committing offence punishable under Sections 323, 498-A, 406, 307, 511, 120-B of the Indian Penal Code (in short ‘IPC’) instituted in August, 2007. The plea of Sunita that she was harassed, maltreated or tortured in connection with demand of dowry/scooter has been rejected by the Court in view of the judgment passed by the Sub Divisional Judicial Magistrate, Hansi on 14.01.2014 vide which Raj Kumar and others, accused in the case, have been acquitted of the offence.

It is argued with vehemence that decree for restitution of conjugal rights passed in the year 2008 and decision in the criminal proceedings negatives the plea of Sunita in regard to allegations against her husband and his parents for committing offence under Sections 498-A, 406 IPC and it goes a long way to show that version of Sunita that she was turned out of the matrimonial home after giving beatings on account of demand of dowry is nothing but a bundle of lies and bereft of truth. According to counsel, as Sunita is staying away from the matrimonial home without any reasonable cause or excuse, there is no merit in her contention that Raj Kumar her husband has refused or neglected to maintain her and it disentitles her to claim maintenance from her husband. Counsel for the respondents, on the contrary, contends that an ex-parte decree for restitution of conjugal rights without framing a specific issue, if the wife has refused to live with the husband without sufficient reason and specific findings on the issue after giving an opportunity to lead evidence by the parties cannot form the basis to accept the plea of the husband that his wife is not entitled to get maintenance allowance. For this purpose, counsel has relied upon a Division Bench judgment of this Court in Ravi Kumar Vs. Santosh Kumari, 1997(3) RCR (Criminal) 3. He has further relied upon Haizaz Pashaw Vs. Gulzar Banu and another, 2002(3) ILR (Kerala) 149; Kamadi Bhavani Vs. Kamadi Lakshmanaswamy Lakshmana Rao, 1994(3) RCR (Criminal) 98 (Andhra Pradesh High Court); Smt.Kesari Devi Vs. Jagdev Singh, 2005(2) RCR (Criminal) 359 (Himachal Pradesh High Court); Brij Ballabh Pandey Vs. Smt.Israwati Devi, 1996(3) CCR 195 (Allahabad High Court); Maddina Subbamma Vs. Maddina Venkateswarlu and State, 1992 Civil Court Cases, 609 (Andhra Pradesh High Court); Mohd. Shakeel Vs. Smt. Shaheena, 1987 (1) RCR (Criminal) 569 (Delhi High Court); Sardar Surjeet Singh Vs. Smt. Rajendra Kaur, 1989 Civil Court Cases 571 (Allahabad High Court) and K.Narayan Rao Vs. Bhagyalakshmi, 1984(1) Karnataka Law Journal, 451 (Karnataka High Court). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

With regard to judgment passed by the Judicial Magistrate in criminal proceedings, counsel would argue that the judgment has not attained finality because the complainant-Sunita Devi has a right to challenge the acquittal of the accused by filing an appeal before this Court under Section 378(4) of the Code. It is further argued that proceedings under Section 125 of the Code are summary in nature, therefore, it does not require full fledged trial as required in criminal proceedings. Another submission made by counsel is that in criminal proceedings, the standard of proof is much more higher than the civil proceedings to be decided on the basis of preponderance of probabilities. It is argued with vehemence that judgment passed in the proceedings, in the circumstances, cannot be allowed to stand in the way of the applicant to claim maintenance as she would be rendered at the verge of starvation and vagrancy in case her claim for maintenance is rejected. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

I have heard counsel for the parties and perused the records. Before adverting to the rival submissions made by counsels, it is appropriate to note that parties resided together for a period of more than 3 years and out of this wedlock, a male child is born. The child, at present, is staying with his mother, and the mother and the child are staying at the parental house of Sunita Devi.

Much stress has been laid by counsel for the petitioner that as Sunita herself is guilty of staying away from the matrimonial home without any reasonable cause, she cannot stake claim to get maintenance.

The Court cannot turn a blind eye that in Indian society, a girl with disturbed matrimony has no place. She becomes an eye sore for her parents especially brothers and their families. She is treated as a outcast by the members of the society and people living in the neighbourhood. In this background, it is difficult to accept to reason that a girl would leave her matrimonial home without any serious grievance to express and that too in the circumstances that she has a child from the wedlock. In the present case, the husband has not pleaded any special reasons for the wife to leave the matrimonial home if she was provided a congenial and comfortable atmosphere, at the risk of being treated shabbily by those who were earlier her near and dear ones before her marriage. This fact alone is sufficient to create a doubt in the plea of the husband that the wife is staying away from the matrimonial home voluntarily, without any reasonable cause or excuse.

This brings the Court to the main contention of the petitioner that a decree for restitution of conjugal rights passed in favour of the petitioner in the year 2008, prior to institution of proceedings under Section 125 of the Code disentitles her to get maintenance. There is no denial that the decree for restitution of conjugal rights is an ex parte decree passed by the District Judge, Jind. No doubt, an ex parte decree passed by a competent Court of law has the same force as a decree passed after contest until and unless the ex parte decree is set aside in appropriate proceedings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

Nevertheless, the question for adjudication is whether an ex parte decree of restitution of conjugal rights passed by the civil Court can stand in the way of criminal Court in granting allowance under Section 125 of the Code. Counsel for the petitioner has relied upon a single Bench judgment of this Court in Khursheed Ahmad’s case (supra). In this case, the decree for restitution of conjugal rights set up by the petitioner-husband was not an ex parte decree but it was a decree passed after contest. The Court held that as per the finding recorded by the Civil Court, the petitioner-wife has left the matrimonial home without there being any sufficient reasons and the said decree has not been complied with so far. Therefore, in its view, the revisional Court has rightly held that the petitioner-wife was not entitled for maintenance as ordered by the trial Court until and unless the decree dated 28.11.2002 for conjugal rights is complied with by her. It was further held that the decision in Haizaz Pashaw Vs. Gulzar Banu and another, 2002 Crl.L.J. 3282 (Kerala High Court) cited by counsel for the wife is not 8 applicable in the facts of this case. In that case, the ex parte decree for restitution of conjugal rights was passed by the Court and it was observed that the wife was not given proper opportunity to defend the case. But the facts in the instant case are different. Here the decree for restitution of conjugal rights was passed after providing full opportunity to the wife to contest the suit filed by the husband.

As in the case at hand, the decree for restitution of conjugal rights is an ex parte decree without an opportunity to the wife to lead evidence to counter the case of the husband, the petitioner cannot gain any advantage to his contention from the judgment in Khursheed Ahmad’s case (supra). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The issue raised by the petitioner is no longer res integra in view of the judgment of Division Bench of this Court in Ravi Kumar’s case (supra) wherein the Court answered the question of law referred to it, in para 11 in the following terms:-

"11. We, therefore, answer the question of law referred to us as follows:

(1) The wife against whom a decree of restitution of conjugal rights has been passed by the Civil Court, shall not be entitled to claim allowance under Section 125 of the Code of Criminal Procedure if in the proceedings of restitution of conjugal rights before the Civil Court, a specific issue has been framed that whether without sufficient reason, the wife refuses to live with the husband, and the parties have been given an opportunity to lead evidence and thereafter specific findings are recorded by the Civil Court on this issue;

(2) But in case the husband has got an ex-parte decree of Davinder Kumar restitution of conjugal rights from the Civil Court, such decree shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125 of the Code of Criminal Procedure;

(3) In case the decree for restitution of conjugal rights has been obtained by the husband subsequent to the order for maintenance passed by the Magistrate under Section 125, Criminal Procedure Code then the decree ipsofacto, shall not disentitle the wife to her right of maintenance and in that case, the husband will have to approach the Court of the Magistrate under Sub- section (5) of Section 125 of the Code of Criminal Procedure for cancelling the order granting maintenance under Section 125, Criminal Procedure Code; and

(4) The wife against whom decree of restitution of conjugal rights in the manner indicated in our first conclusion has been passed, will get the right to claim maintenance from the husband with effect from the date when she is granted divorce and she will continue getting this maintenance till she re-marries."

Counsel for the petitioner has failed to cite any contrary law. Keeping in view the authoritative decision rendered by the Division Bench of this Court and the judgments by various High Courts referred to by counsel for the respondent-wife, contention raised by counsel for the petitioner that an ex parte decree of restitution of conjugal rights can operate to deprive the wife of her right to maintenance, in view of the provisions of Section 125(4) of the Code, is devoid of merit and accordingly repelled. Counsel for the petitioner made a vain attempt to challenge entitlement of the wife in view of the findings of the criminal court in a complaint filed by Sunita Devi. The judgment was rendered by the Court on 14.01.2014, therefore, Sunita Devi may challenge those findings by way of 10 appeal before this Court, thus, those findings cannot be said to have attained finality. This apart, as has been rightly argued by counsel for Sunita, proceedings under Section 125 of the Code are summary in nature and the standard of proof in criminal trial stands on a much higher footing than evidence required for claiming maintenance under Section 125 of the Code. In this view of the matter, the petitioner cannot gain any advantage to his contention from findings recorded by Sub Divisional Judicial Magistrate, Hansi.

Before parting with this order, it is pertinent to mention that the petitioner has not challenged maintenance awarded in favour of the minor child of the parties. He only assailed grant of maintenance in favour of his wife. However, counsel for the petitioner has not made any submissions with regard to quantum of maintenance assessed by the trial Court. For the foregoing reasons, the petition is dismissed leaving the parties to bear their own costs.

(REKHA MITTAL)

JUDGE

April 09, 2014.

Davinder Kumar

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

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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

Wife who divorced hubby, received many lakhs as permanent alimony and also re married, tries to get EX husband’s huge bank balance when Ex dies !!! Ex Hubby’s mother has to run to court and fight legal battles ….

Wife who divorced hubby, received many lakhs as permanent alimony and also re married, tries to get EX husband’s huge bank balance when Ex dies !!! Ex Hubby’s mother has to run to court and fight legal battles ….

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF APRIL, 2014 PRESENT

THE HON’BLE MR. JUSTICE N.K.PATIL AND THE HON’BLE MR.JUSTICE PRADEEP D. WAINGANKAR

RFA NO.155 of 2013

BETWEEN:

SMT. LAKSHMI PRIYADARSHINI
D/O SRI. N. BHAN UM VIKRAM
AGED ABOUT 39 YEARS
REPRESENTED BY HER G.P.A MR. N. BHANUVIKRAMAN
S/O LATE K.P. MENON
AGED ABOUT 67 YEARS
R/AT NO.203, 6TH CROSS
3RD MAIN ROAD, MICO LAYOUT
BHANNEARGHATTA ROAD
BANGALORE-560075. … APPELLANT

(BY SRI. E.V. GOPALAKRISHNAN POTTY, ADVOCATE) AND:

1. SMT. KAMALAMMA
W/O SRI. H.N. NANJE GOWDA
AGED ABOUT 67 YEARS
R/AT NO.1189/A, 35TH C-CROSS
EAST END ROAD, 4TH T BLOCK
JAYANAGAR, BANGALORE-560041.

2. THE BRANCH MANAGER
STATE BANK OF INDIA BRANCH (4926),
JAYANAGAR 4TH BLOCK
BANGALORE-560041.

… RESPONDENTS

(BY SRI. G. KRISHNAMURTHY, ADVOCATE FOR R1 SRI. G.N. SATYAMURTHY, ADVOCATE FOR R2) THIS RFA IS FILED U/S 96, 0-41, RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.12.2012 PASSED IN P & S.C. 241/2007 ON THE FILE OF THE IX-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, ALLOWING THE SUIT FOR PROBATION AND SUCCESSION CERTIFIED.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.3.2014 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING:

JUDGMENT

This appeal is filed by the appellant against an order dated 06.12.2012 in P & SC No.241/2007 on the file of the IX Additional City Civil and Sessions Judge, Bangalore granting Succession Certificate in favour of the respondent No.1 to receive the amount lying in the S.B. Account No.10313112060 in State Bank of India Branch at Jayanagar, 4th ‘D’ Block, Bangalore in the name of Late. H.N. Jayasheelan in respect of which his wife Lakshmi Priyadharshini the appellant was appointed as nominee.

2. Brief facts leading to this appeal are as under:

One H.N. Jayasheelan was married to Lakshmi Priyadharshini, the appellant herein on 03.02.2002. H.N.Jayasheelan had his Saving Bank Account No.10313112060 in State Bank of India, Jayanagar 4th ‘D’ Block, Bangalore. The marriage of H.N.Jayasheelan with Smt. Lakshmi Priyadharshini got into rough weather. So, the appellant-Lakshmi Priyadharshini filed a petition for decree of divorce in M.C.No.2314/2005 on the file of the Family Court, Bangalore against her husband H.N. Jayasheelan and obtained a decree of divorce dated 10.02.2006. In furtherance of the decree of divorce, husband H.N. Jayasheelan paid a sum of Rs.10,00,000/- towards maintenance to the wife once for all. After obtaining divorce, she remarried on 10.01.2007. H.N. Jayasheelan died on 05.09.2007 intestate leaving behind an amount of Rs.1,44,00,000/- in his account in State Bank of India at Jayanagar, Bangalore, for which the respondent his mother being the only Class-1 heir is entitled to receive the amount. When she approached the Bank, she was asked to produce a Succession Certificate issued by the Competent Court. As such, she filed P & S No.241/2007, wherein she made appellant-Lakshmi Priyadharshini as respondent No.1 and the Branch Manager of State Bank of India as respondent No.2. Both the respondents were served with the notice. They appeared through their respective counsels. Respondent No.1-wife filed her objections through her General Power of Attorney Holder N. Bhanuvikraman. Whereas, respondent No.2-Bank Manager has not filed objections. The petition came up for consideration before the City Civil and Sessions Judge, who in turn upon hearing the parties and upon consideration of the entire material placed on record by his order dated 06.12.2012 granted Succession Certificate in favour of the respondent- mother Kamalamma to receive the amount lying in the Account of her son late H.N. Jayasheelan in State Bank of India.

3. Aggrieved by the order of grant of Succession Certificate in favour of the mother of the deceased, this appeal is preferred by the appellant- wife of deceased H.N. Jayasheelan.

4. We have heard both the learned counsel appearing for the appellant and the respondents, pursued the records.

5. The only point that was canvassed during the course of the arguments by the learned counsel for the appellant is that as per Section 45-Z of the Banking Regulation Act the appellant was appointed as nominee in respect of the aforesaid Account and as such, the Bank Authorities ought to have paid the amount of Rs.1,44,00,000/- lying in the account of late H.N. Jayasheelan to the appellant and the Court without taking note of the same granted Succession Certificate in favour of the respondent mother of the deceased to collect the amount which is perse illegal. Hence, learned counsel sought to allow this appeal and to set aside the impugned order.

6. Per contra, learned counsel appearing for the respondent would submit that, nomination made by the deceased at the time of opening the account does not take away the right of respondent-mother who is Class-1 legal heir to obtain the Succession Certificate. As such, the Court below has rightly granted Succession Certificate in favour of the mother. It is also submitted that the appellant/wife obtained a decree of divorce on 10.02.2006 and thereafter remarried on 10.01.2007. Since from 10.01.2007 there had been no relationship of husband and wife between the appellant and H.N. Jayasheelan. In view of the remarriage of the appellant, the only legal heir left behind by deceased- H.N. Jayasheelan was his mother-respondent who is entitled to receive the Bank deposits left behind by the deceased-H.N. Jayasheelan and taking into consideration of these facts and circumstances, the Court below has rightly granted Succession Certificate in favour of the mother. Learned counsel placed reliance on the following decisions in support of his case.

1) AIR 2007 Chattisgarh 34 (Chhotu Dewangan & Anr. v. Smt. Urmilabai & Ors.), wherein it has been held as under: "Succession Act (39 of 1925), Ss. 372, 8, Sch.1 – Succession Certificate – Mere fact of nomination made by deceased at the time of making the deposit – Does not take away the right of legal heirs to obtain a Succession Certificate in their favour – Remedy of filing separate Civil Suit is available to nominee."

2) AIR 1984 SC 346 (Smt. Sarbati Devi and another v. Smt. Usha Devi), wherein it has been held as under:

"A mere nomination made under Section 390 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."

3) (2000) 6 Supreme Court Cases 724 (Vishin N. Khanchandani and Another v. Vidya Lachmandas Khanchandani and Another), wherein it has been held as under: "Government Savings Certificates Act, 1959-Ss. 6, 7 and 8 – Nominee of deceased holder of savings certificates – Rights of, vis-à-vis legal heirs of the deceased – The nominee, held, is entitled to receive the sum due on the savings certificates, yet he retains the same for the persons entitled to it under the relevant law of succession – Contention that the non obstante clause in S.6 entitles the nominee to utilize the sum so received by him, in the manner he likes, rejected – Interpretation of Statutes – Internal aids – Non obstante clause – Function and applicability of – Restated – Interpretation of Statutes -External aids – Statement of Objects and Reasons – Taken into consideration -Succession Act, 1925, S. 370 – National Savings Certificates – Nomination – Effect on rights of other successors – Insurance Act, 1938, S. 39 – Nomination – Effect of on rights of other successors – Labour Law – Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, S. 10 (2) – Nominee whether gets to the exclusion of other heirs."

7. Upon hearing the submission made by both the learned counsel for the parties and upon consideration of entire material placed on record and the order passed by the Court below, the only point that arises for our determination is "Whether the impugned order of grant of Succession Certificate in favour of the respondent-mother of the deceased is sustainable in law?"

8. At the out set, it has to be stated that the marriage between the deceased and the appellant solemnized on 03.02.2002 is not in dispute. The marriage between the deceased and the appellant dissolved by decree of divorce on 10.02.2006 in M.C.No.2314/2005 on the file of the Family Court, Bangalore, also not in dispute. It is also not in dispute that the appellant after taking divorce remarried on 10.01.2007. Further, it is admitted by both the parties that H.N. Jayasheelan died intestate on 05.09.2007 as could be seen from the death certificate marked as Ex.P2. It is also not in dispute that as on the date of his death, an amount of Rs.1,44,00,000/- was lying in his S.B. Account No.10313112060 in State Bank of India, Jayanagar Branch, Bangalore, which is borne out from Ex.P4.

9. According to the appellant, she was appointed as a nominee in respect of the aforesaid S.B. Account of the deceased under Section 45-Z of the Banking Regulation Act. It is not in dispute that she was appointed as a nominee and therefore after the death of deceased, in its ordinary course, the appellant being a nominee, the Bank ought to have paid the amount lying in the Account to the nominee and the nominee has to keep the amount as a trustee and ultimately, the amount shall have to be distributed as per the succession.

But, here in this case, before the Bank could pay the amount to the nominee, the mother of the deceased filed a petition for grant of Succession Certificate. Upon merits, the petition came to be allowed granting Succession Certificate in favor of the respondent-mother to collect the said amount.

Though the learned counsel for the appellant has vehemently argued that the Court has completely ignored the provisions of Section 45-Z of the Banking Regulation Act and granted Succession Certificate to the mother of the deceased, it has to be stated that the mere act of the nomination made by the deceased at the time of the deposit does not take away the right of the mother who is Class-1 legal heir to obtain the Succession Certificate as held in AIR 2007 Chattisgarh 34 (Chhotu Dewangan & Anr. v. Smt. Urmilabai & Ors.), and AIR 1984 SC 346 (Smt. Sarbati Devi and another v. Smt. Usha Devi). The Supreme Court has held that mere nomination made under Section 39 of the Insurance Act does not exclude the legal heirs from claiming the amount in accordance with law of succession governing them. Therefore, in view of the aforesaid decision of the Supreme Court, it is obvious that there was no impediment for the mother being Class-1 legal heir to file a petition for the grant of Succession Certificate notwithstanding the fact that the appellant was appointed as nominee.

The court below based on the evidence placed by both the parties has held the mother being Class-1 legal heir is entitled for the grant of Succession Certificate as prayed for by her. Even, otherwise, as on the death of the deceased, there was no relationship whatsoever between the deceased and appellant, in as much as, the marriage was dissolved by decree of divorce on 10.02.2006. Not only that, after obtaining a decree of divorce, the appellant remarried on 10.01.2007. This being the state of affairs, though she was appointed as a nominee, she had absolutely no right to claim the said amount by succession. The respondent being the only surviving legal heir, she is entitled to receive the amount lying in the account of deceased-H.N. Jayasheelan her son and rightly the lower Court has granted Succession Certificate. Having obtained a decree of divorce and having remarried during the life time of her husband, now after death of her husband- the deceased, it is not open for the appellant to contend that she is nominee and therefore, the amount ought to have been paid to her by the Bank, which is difficult to accept. Looking from any angle we do not find any merit in this appeal. Accordingly, the appeal filed by appellant is dismissed. No costs.

Sd/-

JUDGE

Sd/-

JUDGE

PMR

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

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regards

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

Wife who divorced hubby, received many lakhs as permanent alimony and also re married, tries to get EX husband’s huge bank balance when Ex dies !!! Ex Hubby’s mother has to run to court and fight legal battles ….

Wife who divorced hubby, received many lakhs as permanent alimony and also re married, tries to get EX husband’s huge bank balance when Ex dies !!! Ex Hubby’s mother has to run to court and fight legal battles ….

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF APRIL, 2014 PRESENT

THE HON’BLE MR. JUSTICE N.K.PATIL AND THE HON’BLE MR.JUSTICE PRADEEP D. WAINGANKAR

RFA NO.155 of 2013

BETWEEN:

SMT. LAKSHMI PRIYADARSHINI
D/O SRI. N. BHAN UM VIKRAM
AGED ABOUT 39 YEARS
REPRESENTED BY HER G.P.A MR. N. BHANUVIKRAMAN
S/O LATE K.P. MENON
AGED ABOUT 67 YEARS
R/AT NO.203, 6TH CROSS
3RD MAIN ROAD, MICO LAYOUT
BHANNEARGHATTA ROAD
BANGALORE-560075. … APPELLANT

(BY SRI. E.V. GOPALAKRISHNAN POTTY, ADVOCATE) AND:

1. SMT. KAMALAMMA
W/O SRI. H.N. NANJE GOWDA
AGED ABOUT 67 YEARS
R/AT NO.1189/A, 35TH C-CROSS
EAST END ROAD, 4TH T BLOCK
JAYANAGAR, BANGALORE-560041.

2. THE BRANCH MANAGER
STATE BANK OF INDIA BRANCH (4926),
JAYANAGAR 4TH BLOCK
BANGALORE-560041.

… RESPONDENTS

(BY SRI. G. KRISHNAMURTHY, ADVOCATE FOR R1 SRI. G.N. SATYAMURTHY, ADVOCATE FOR R2) THIS RFA IS FILED U/S 96, 0-41, RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.12.2012 PASSED IN P & S.C. 241/2007 ON THE FILE OF THE IX-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, ALLOWING THE SUIT FOR PROBATION AND SUCCESSION CERTIFIED.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.3.2014 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING:

JUDGMENT

This appeal is filed by the appellant against an order dated 06.12.2012 in P & SC No.241/2007 on the file of the IX Additional City Civil and Sessions Judge, Bangalore granting Succession Certificate in favour of the respondent No.1 to receive the amount lying in the S.B. Account No.10313112060 in State Bank of India Branch at Jayanagar, 4th ‘D’ Block, Bangalore in the name of Late. H.N. Jayasheelan in respect of which his wife Lakshmi Priyadharshini the appellant was appointed as nominee.

2. Brief facts leading to this appeal are as under:

One H.N. Jayasheelan was married to Lakshmi Priyadharshini, the appellant herein on 03.02.2002. H.N.Jayasheelan had his Saving Bank Account No.10313112060 in State Bank of India, Jayanagar 4th ‘D’ Block, Bangalore. The marriage of H.N.Jayasheelan with Smt. Lakshmi Priyadharshini got into rough weather. So, the appellant-Lakshmi Priyadharshini filed a petition for decree of divorce in M.C.No.2314/2005 on the file of the Family Court, Bangalore against her husband H.N. Jayasheelan and obtained a decree of divorce dated 10.02.2006. In furtherance of the decree of divorce, husband H.N. Jayasheelan paid a sum of Rs.10,00,000/- towards maintenance to the wife once for all. After obtaining divorce, she remarried on 10.01.2007. H.N. Jayasheelan died on 05.09.2007 intestate leaving behind an amount of Rs.1,44,00,000/- in his account in State Bank of India at Jayanagar, Bangalore, for which the respondent his mother being the only Class-1 heir is entitled to receive the amount. When she approached the Bank, she was asked to produce a Succession Certificate issued by the Competent Court. As such, she filed P & S No.241/2007, wherein she made appellant-Lakshmi Priyadharshini as respondent No.1 and the Branch Manager of State Bank of India as respondent No.2. Both the respondents were served with the notice. They appeared through their respective counsels. Respondent No.1-wife filed her objections through her General Power of Attorney Holder N. Bhanuvikraman. Whereas, respondent No.2-Bank Manager has not filed objections. The petition came up for consideration before the City Civil and Sessions Judge, who in turn upon hearing the parties and upon consideration of the entire material placed on record by his order dated 06.12.2012 granted Succession Certificate in favour of the respondent- mother Kamalamma to receive the amount lying in the Account of her son late H.N. Jayasheelan in State Bank of India.

3. Aggrieved by the order of grant of Succession Certificate in favour of the mother of the deceased, this appeal is preferred by the appellant- wife of deceased H.N. Jayasheelan.

4. We have heard both the learned counsel appearing for the appellant and the respondents, pursued the records.

5. The only point that was canvassed during the course of the arguments by the learned counsel for the appellant is that as per Section 45-Z of the Banking Regulation Act the appellant was appointed as nominee in respect of the aforesaid Account and as such, the Bank Authorities ought to have paid the amount of Rs.1,44,00,000/- lying in the account of late H.N. Jayasheelan to the appellant and the Court without taking note of the same granted Succession Certificate in favour of the respondent mother of the deceased to collect the amount which is perse illegal. Hence, learned counsel sought to allow this appeal and to set aside the impugned order.

6. Per contra, learned counsel appearing for the respondent would submit that, nomination made by the deceased at the time of opening the account does not take away the right of respondent-mother who is Class-1 legal heir to obtain the Succession Certificate. As such, the Court below has rightly granted Succession Certificate in favour of the mother. It is also submitted that the appellant/wife obtained a decree of divorce on 10.02.2006 and thereafter remarried on 10.01.2007. Since from 10.01.2007 there had been no relationship of husband and wife between the appellant and H.N. Jayasheelan. In view of the remarriage of the appellant, the only legal heir left behind by deceased- H.N. Jayasheelan was his mother-respondent who is entitled to receive the Bank deposits left behind by the deceased-H.N. Jayasheelan and taking into consideration of these facts and circumstances, the Court below has rightly granted Succession Certificate in favour of the mother. Learned counsel placed reliance on the following decisions in support of his case.

1) AIR 2007 Chattisgarh 34 (Chhotu Dewangan & Anr. v. Smt. Urmilabai & Ors.), wherein it has been held as under: "Succession Act (39 of 1925), Ss. 372, 8, Sch.1 – Succession Certificate – Mere fact of nomination made by deceased at the time of making the deposit – Does not take away the right of legal heirs to obtain a Succession Certificate in their favour – Remedy of filing separate Civil Suit is available to nominee."

2) AIR 1984 SC 346 (Smt. Sarbati Devi and another v. Smt. Usha Devi), wherein it has been held as under:

"A mere nomination made under Section 390 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."

3) (2000) 6 Supreme Court Cases 724 (Vishin N. Khanchandani and Another v. Vidya Lachmandas Khanchandani and Another), wherein it has been held as under: "Government Savings Certificates Act, 1959-Ss. 6, 7 and 8 – Nominee of deceased holder of savings certificates – Rights of, vis-à-vis legal heirs of the deceased – The nominee, held, is entitled to receive the sum due on the savings certificates, yet he retains the same for the persons entitled to it under the relevant law of succession – Contention that the non obstante clause in S.6 entitles the nominee to utilize the sum so received by him, in the manner he likes, rejected – Interpretation of Statutes – Internal aids – Non obstante clause – Function and applicability of – Restated – Interpretation of Statutes -External aids – Statement of Objects and Reasons – Taken into consideration -Succession Act, 1925, S. 370 – National Savings Certificates – Nomination – Effect on rights of other successors – Insurance Act, 1938, S. 39 – Nomination – Effect of on rights of other successors – Labour Law – Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, S. 10 (2) – Nominee whether gets to the exclusion of other heirs."

7. Upon hearing the submission made by both the learned counsel for the parties and upon consideration of entire material placed on record and the order passed by the Court below, the only point that arises for our determination is "Whether the impugned order of grant of Succession Certificate in favour of the respondent-mother of the deceased is sustainable in law?"

8. At the out set, it has to be stated that the marriage between the deceased and the appellant solemnized on 03.02.2002 is not in dispute. The marriage between the deceased and the appellant dissolved by decree of divorce on 10.02.2006 in M.C.No.2314/2005 on the file of the Family Court, Bangalore, also not in dispute. It is also not in dispute that the appellant after taking divorce remarried on 10.01.2007. Further, it is admitted by both the parties that H.N. Jayasheelan died intestate on 05.09.2007 as could be seen from the death certificate marked as Ex.P2. It is also not in dispute that as on the date of his death, an amount of Rs.1,44,00,000/- was lying in his S.B. Account No.10313112060 in State Bank of India, Jayanagar Branch, Bangalore, which is borne out from Ex.P4.

9. According to the appellant, she was appointed as a nominee in respect of the aforesaid S.B. Account of the deceased under Section 45-Z of the Banking Regulation Act. It is not in dispute that she was appointed as a nominee and therefore after the death of deceased, in its ordinary course, the appellant being a nominee, the Bank ought to have paid the amount lying in the Account to the nominee and the nominee has to keep the amount as a trustee and ultimately, the amount shall have to be distributed as per the succession.

But, here in this case, before the Bank could pay the amount to the nominee, the mother of the deceased filed a petition for grant of Succession Certificate. Upon merits, the petition came to be allowed granting Succession Certificate in favor of the respondent-mother to collect the said amount.

Though the learned counsel for the appellant has vehemently argued that the Court has completely ignored the provisions of Section 45-Z of the Banking Regulation Act and granted Succession Certificate to the mother of the deceased, it has to be stated that the mere act of the nomination made by the deceased at the time of the deposit does not take away the right of the mother who is Class-1 legal heir to obtain the Succession Certificate as held in AIR 2007 Chattisgarh 34 (Chhotu Dewangan & Anr. v. Smt. Urmilabai & Ors.), and AIR 1984 SC 346 (Smt. Sarbati Devi and another v. Smt. Usha Devi). The Supreme Court has held that mere nomination made under Section 39 of the Insurance Act does not exclude the legal heirs from claiming the amount in accordance with law of succession governing them. Therefore, in view of the aforesaid decision of the Supreme Court, it is obvious that there was no impediment for the mother being Class-1 legal heir to file a petition for the grant of Succession Certificate notwithstanding the fact that the appellant was appointed as nominee.

The court below based on the evidence placed by both the parties has held the mother being Class-1 legal heir is entitled for the grant of Succession Certificate as prayed for by her. Even, otherwise, as on the death of the deceased, there was no relationship whatsoever between the deceased and appellant, in as much as, the marriage was dissolved by decree of divorce on 10.02.2006. Not only that, after obtaining a decree of divorce, the appellant remarried on 10.01.2007. This being the state of affairs, though she was appointed as a nominee, she had absolutely no right to claim the said amount by succession. The respondent being the only surviving legal heir, she is entitled to receive the amount lying in the account of deceased-H.N. Jayasheelan her son and rightly the lower Court has granted Succession Certificate. Having obtained a decree of divorce and having remarried during the life time of her husband, now after death of her husband- the deceased, it is not open for the appellant to contend that she is nominee and therefore, the amount ought to have been paid to her by the Bank, which is difficult to accept. Looking from any angle we do not find any merit in this appeal. Accordingly, the appeal filed by appellant is dismissed. No costs.

Sd/-

JUDGE

Sd/-

JUDGE

PMR

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

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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

DMK party functionary arrested in court premiss on wife’s 498A complaint !!!!

IF Powerful (DMK) party functionaries can be arrested so easily in a 498a complaint by the wife, imagine the plight of the common man

Mr. Karthikeyan, a DMK Party functionary hails from Kuttapalayam, near Muthur in thiruppur district of Tamil Nadu. He and his wife are living apart due to mutual misunderstandings. His wife was living with her parents.

He and his brother Aravindan has been accused of kidnapping his own daughter at gun point along with some goons

Both the brothers had applied for bail and were entering the court for bail hearing when they were suddenly arrested by the police on a FRESH complaint a DOWRY complaint given by his wife !!!!

He has been presented before the magistrate and is being sent to Coimbatore Jail for lock up

IF party functionaries can be arrested so easily in a 498a complaint by the wife, imagine the plight of the common man

free translation above and full news below

பெற்ற மகளை கடத்தியவர் வரதட்சணை வழக்கில் கைது

Tamil_News_large_97423420140513012628.jpg

காங்கயம்: துப்பாக்கியை காட்டி மிரட்டி, மகளை கடத்திய வழக்கில், முன் ஜாமின் பெற்ற பிரமுகர், மனைவி அளித்த வரதட்சணை புகாரால் கைதானார்.

திருப்பூர் மாவட்டம், முத்தூர், குட்டப்பாளையத்தை சேர்ந்த தி.மு.க., பிரமுகர் கார்த்திகேயன். இவரது மனைவி ரேணுகாதேவி. கருத்து வேறுபாட்டால், கணவரை பிரிந்து, சங்கராண்டம்பாளையத்தில் உள்ள பெற்றோர் வீட்டில் வசிக்கிறார். சில நாட்களுக்கு முன், கார்த்திகேயன் தனது தம்பி அரவிந்தன் மற்றும் அடியாட்களுடன், வீடு புகுந்து துப்பாக்கியை காட்டி மிரட்டி, ரேணுகாதேவியிடம் இருந்த மூன்று வயது மகளை கடத்திச் சென்றதாகத் தெரிகிறது. இதுகுறித்த புகாரின் பேரில், ஊதியூர் போலீசார் வழக்குப்பதிவு செய்து விசாரித்தனர். சென்னை ஐகோர்ட்டில் முன் ஜாமினுக்கு மனு செய்து விட்டு, சகோதரர்கள் தலைமறைவாகினர். பெரும் பரபரப்பை ஏற்படுத்திய இச்சம்பவத்தில், மேல் நடவடிக்கை எடுக்க முடியாமல் போலீசார் திணறினர். கடத்தப்பட்ட குழந்தையின் நிலை குறித்து இதுவரை எந்த தகவலும் இல்லை.

இந்நிலையில், சகோதரர்கள் இருவரும் நேற்று காலை, ஐகோர்ட் உத்தரவுப்படி காங்கயம் கோர்ட்டில் சரணடைய வந்தனர். அவர்களை போலீசார் கோர்ட் வாசலில் கைது செய்தனர். வரதட்சணை கேட்டு, கணவரும் அவர் குடும்பத்தாரும் துன்புறுத்தியதாக,ரேணுகாதேவி அளித்த புகாரின் பேரில் கைது செய்யப்படுவதாக தெரிவிக்கப்பட்டது. திடீர் கைதால் கோர்ட் வளாகத்தில் பரபரப்பு ஏற்பட்டது. கார்த்திகேயன் உறவினர்கள் ஏராளமானோர் கோர்ட் வாசலிலும், போலீஸ் ஸ்டேஷன் முன்பும் மறியலில் ஈடுபட்டனர். அதிரடிப்படை போலீசார் அப்புறப்படுத்தினர். கைது செய்யப்பட்ட கார்த்திகேயன் மற்றும் அரவிந்தன் இருவரும், காங்கயம் மாஜிஸ்திரேட் மோகனவல்லி முன்னிலையில் ஆஜர்படுத்தப்பட்டு, கோவை மத்திய சிறையில் அடைக்க அழைத்துச் செல்லப்பட்டனர்

source

http:// www. dinamalar.com /news_detail.asp?id=974234

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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