Daily Archives: July 18, 2014

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

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

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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo .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

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Kerala High Court

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

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

1. DR. PRECELINE GEORGE @ ANTONY PRECELINE … Petitioner

Vs

1. STATE OF KERALA REPRESENTED BY THE CHIEF … Respondent

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

For Petitioner :SRI.SANTHAN V.NAIR

For Respondent : No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :07/01/2010

O R D E R

M.SASIDHARAN NAMBIAR,J.

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

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Dated this the 7th day of January,2010 JUDGMENT

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

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

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

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

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

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

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

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

Section 13 reads:-

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

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

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

Sub section (2) reads:-

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

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

Sub rule (2) reads:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paragraph 10 of Form III reads:-

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

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

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

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

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

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

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

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

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

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

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

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

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

M.SASIDHARAN NAMBIAR

JUDGE

tpl/-

M.SASIDHARAN NAMBIAR, J.

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

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JUDGMENT

7TH January,2010

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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

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

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

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

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

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

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

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Kerala High Court

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

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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

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

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

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

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

COMPLAINANT(S)/RESPONDENTS/STATE :
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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

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

V.K.MOHANAN, J.

Crl. R. P. No. 41 of 2013

Dated this the 10th day of January, 2013 ORDER

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

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

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

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

Sd/-

V.K.MOHANAN, JUDGE

/True copy/

P. A. to Judge

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regards

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

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


They lived together ONLY for 7 months, they have been fighting in courts for approx 10+ years, Husband has suffered DV, 498a package, and / or police calls , threats. Still the HC says most of these are wear and tear of life and DIVORCE DENIED!!
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* marriage 13.3.2000
* matter get so bad so soon that, families had to hold meeting on 4.10.2000 !!
* things do not improve
* they live together last some time between April and July, 2002
* there are allegations of wife and cousin trying to beat up the husband
* there are similar counter allegations from wife
* Husband says. DV and 498a package filed by wife. Police certificate provided about complaints. However court observes that DV act is ONLY to get money and residence and IS NOT cruelty !!
*

Bombay High Court

Ou vs H on 25 January, 2010

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

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 109 OF 2007

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

Vs

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

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

Shri Dilip Bodake, Advocate for the respondent.

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

DATE : 25/01/2010.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paragraph 17 of the Judgment reads thus: "Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the otherparty such mental pain and suffering as would make it impossible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with suchconduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise ofthe parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."28. The Supreme Court in Naveen Kohli Vs. Neelu Kohlicase (supra), while dealing with an appeal arising from a matrimonial petition filed by the husband seeking a decree of divorce on the ground of cruelty, has observed that "the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage, Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particulars case andas noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it". In the present case, none ofthe incidents or the alleged conduct of the respondent could be termed as intolerable. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

29. In Shoba Rani V Madhukar Reddi, (1998) SCC 105, the Supreme Court had an occasion to examine the concept of cruelty.In this case, the Supreme Court has interpreted the word "cruelty". The "cruelty" which has not been defined in the Act, though it hasbeen specifically used in section 13(1)(ia) of the Act. The Supreme Court observed that "the cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical,it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect onthe complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouseneed not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, ifby ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment".

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

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

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

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

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

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

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

(R.Y.Ganoo,J.)

(D.B.Bhosale,J.)

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

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

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

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

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

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1986 OF 2009

KHIM SINGH … APPELLANT

VERSUS

STATE OF UTTARAKHAND … RESPONDENT

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

………………………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.

(V. GOPALA GOWDA)

NEW DELHI,

JULY 8, 2014.

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

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

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1986/2009

KHIM SINGH Appellant(s)

VERSUS

STATE OF UTTRAKHAND Respondent(s)

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

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

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

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

The appeal is dismissed in terms of the signed judgment.

(Sukhbir Paul Kaur) (Usha Sharma)

Court Master Court Master

(Signed reportable judgment is placed on the file)

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

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regards

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

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

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

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

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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

Bhuwan Mohan Singh … Appellant

Versus

Meena & Ors. …Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

………………………..J.

[Dipak Misra]

………………………..J.

[V. Gopala Gowda]

New Delhi;

July 15, 2014.