Monthly Archives: February 2015

Trial court acquittal means double presumption of innocence

Trial court acquittal means double presumption of innocence in favour of accused. Hubby and family acquitted by sessions court / fast track court and confirmed by HC even when there is a dying declaration

"… Though evidence can be re appreciated by appellate court, … If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court…"

"…Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below…."

Note: This is a 1994 suicide / case that is decide 21 years later at the HC !!

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 1959 of 2004

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.J.THAKER

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STATE OF GUJARAT….Appellant(s)

Versus

VALIBEN,W/O.VIJANAND AAHIR, & 1….Opponent(s)/Respondent(s)

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Appearance:

MS CM SHAH APP for the Appellant(s) No. 1

PARTY-IN-PERSON for the Opponent No. 2, absent though served

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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER

Date : 23/02/2015

R/CR.A/1959/2004 JUDGMENT

ORAL JUDGMENT

1. The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 29.7.2004, passed by the learned Second Fast Track Judge, Gondal in Sessions Case No. 202/1995, whereby, the learned trial Judge acquitted the original accused – the respondent s herein, of the charges for the offence punishable under Section 498-A, 306 read with section 114 of IPC.

2. The brief facts of the prosecution case are that deceased Ramaben Karshanbhai had married with accused no. 2 Karshanbhai Vijanand prior to one year from the date of incident and she was residing with accused persons. It is further the case of the prosecution that accused no. 1 is the mother-in-law of the deceased and she was also residing with deceased Ramaben. It is further the case of prosecution that after her marriage she was subjected to cruelty by the accused persons on petty matter with regards to household work. It is further the case of prosecution that her husband and her mother-in-law have also stopped to talk with deceased Ramaben and therefore she was feeling insulted by members of the house, not only that, accused no. 2 has also told not to go to the house of her relatives and thereby created terror upon the deceased by the respondents. It is further the case of the prosecution that as the ill-treatment and harassment from respondents was beyond the control of her tolerance, she had committed suicide on 17.2.1994 by pouring kerosene on her body. Therefore, the complaint was lodged. The statements of other witnesses are also recorded by police. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was filed against them. The case was committed to the Court of Sessions, and numbered as Sessions Case No. 202/1995. The trial was initiated against the respondents.

3. To prove the case against the present accused, the prosecution has examined witnesses and also produced documentary evidence.

4. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 29.7.2004. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the appellant State has preferred the present appeal.

6. It was contended by learned APP Ms. Shah that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. Ms. Shah learned APP has strenuously urged that the dying declaration speaks about the specific allegations against the present accused. There were mental harassment meted out to the deceased and that she had taken the extreme step of committing suicide. Ms. Shah has taken this Court through the evidence and submitted that the finding of fact regarding dying declaration is against the principle annunciated by the Apex Court and the recent decision of the Apex Court, wherein, the Apex Court has held that the dying declaration is such on which reliance can be placed and conviction should be recorded. Learned APP has also taken this court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed.

7. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under;

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

8. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

9. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views / conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

10. Even in the case of "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

11. Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

12. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under;

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

13. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5
SCC573]"

14. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of "STATE OF KARNATAKA VS. HEMAREDDY", AIR 1981, SC 1417, wherein it is held as under;

"…This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

15. In a recent decision, the Hon’ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;

"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

16. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

17. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP for the appellant-State. On going through the entire evidence, it cannot be said that the provisions of section 498A and 306 of IPC can be attracted in the facts of this case. I do not find any infirmity in the order passed by the learned trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned trial Judge is just and proper. The testimony of the prosecution witnesses do not establish that there was any harassment meted out to the deceased. Learned APP Ms. Shah has tried to convince this Court that at least accused no. 1 has been named by the deceased in her dying declaration and the so-called complaint Exh. 64 was also very specific that her husband and mother-in-law both were threatening her. Her mother-in-law was taunting her time and again. Her mother-in-law and her husband had stopped talking with her and therefore she had felt so much grieved that she set herself ablaze. Even while perusing Exh. 67, it is very clear that her husband never give her any threat. Even her dying declaration did not point out anything about the dowry or harassment and hence, I am unable to accept the submission of Ms. Shah learned APP that this is a case where I would like to up-turn the judgment of the learned trial Judge which is a well reasoned judgment, and there is no perversity in the same. The evidence of the witnesses also will not permit this Court to take a different view than the one taken by the trial Court. Even if dying declaration is believed, this is not a case where the deceased has imparted cruelty on the husband and mother- in-law, and therefore, even believing the dying declaration to be true and truthful, this Court cannot accept the submission of Ms. Shah learned APP. The finding of fact on the touch-stone of the decision of the Apex Court will not permit this court to upturn the judgment of the trial Court. Even apart from the dying declaration, the prosecution has not proved that there was any cruelty which leading to abetment of committing suicide by wife. In the case of Mangat Ram vs. State of Haryana, reported in (2014) 12 SCC 595, the Apex Court has defined he term cruelty, and therefore, in this case, the evidence nowhere goes to show that there was cruelty to abetment of suicide of the deceased. I have appreciated the evidence on record and the view of the trial court cannot be said to be so perverse that this court requires to convict the accused. The alleged cruelty did not lead to any household work which led to committing suicide by the deceased. There was no alleged cruelty established, and therefore, when the prosecution has not succeeded in establishing the offence under section 498A and 306 of IPC, this Court cannot upturn the judgment of the trial court and taking into consideration all aspects of the matter, the prosecution has not succeeded in establishing the offences under Section 498A and 306 IPC against the respondents-accused. However, on the touch-stone of the dying declaration, I do not think that the judgment of the trial court is perverse. I am further supported in my view by the decision of the Apex Court in the case of Kuldeep Kaur v. State of Uttarakhand, reported in (2014) 10 SCC 584, and therefore, the acquittal cannot be interfered with and the present appeal requires to be dismissed. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Even looking to the evidence on record, ld. APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

18. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same.

19. In the result, the present appeal is hereby dismissed. R & P to be sent back to the trial Court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.

(K.J.THAKER, J)

mandora

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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

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No execution for maint older than 12 months under Sec 125(3)

Wife cannot accumulate maintenance for more than 12 months and claim recovery by arresting husband. No execution for maint older than 12months in 125(3).AP HIgh court

In this case, in reply to a question “…Whether under Section 125(3), Cr.P.C. the wife can seek imprisonment of the husband for non-payment of maintenance accumulated beyond a period of 12 months ?..” the Hon AP High court has ordered as follows and we quote

"… wife the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months. No application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application…"

and

"…In view of my finding on point No. 2, the maximum period for which she can claim maintenance under the procedure contemplated under S. 125(3) is one year…."

Request : IF any of you have decisions contrary to the above from a larger bench or the Apex court, please let us know

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Andhra High Court

Jangam Srinivasa Rao vs Jangam Rajeswari And Anr. on 31 March, 1989

Equivalent citations: 1990 CriLJ 2506

Bench: D J Raju

ORDER

1. This is a petition filed under Section 482, Cr.P.C. to quash the order D/- 21-7-88 passed by the II Addl. Judicial First Clause Magistrate, Machilipatnam in Crl.M.P. No. 397/88 in M.C. No. 18/84 which was confirmed by the Sessions Judge, Machilipatnam in Crl.R.P. 94/88 on 14-11-88.

2. The facts pertinent for decision of this petition are that Jangam Rajeswari the wife filed M.C. No. 18/84 claiming maintenance against her husband J. Srinivasarao. That petition was allowed on 8-10-85 and she was granted maintenance at the rate of Rs. 130/- p.m. from the date of the application i.e. 7-12-83. The husband did not pay the maintenance and hence the wife filed Crl.M.P. No. 2386/85 for realisation of the maintenance amount by arresting and sending the petitioner to jail. By an order D/- 23-7-86 the Magistrate dismissed the application on the ground that the wife refused to join her husband without any valid grounds. The Magistrate found that there was sufficient cause for not complying with the provisions of Section 125(3), Cr.P.C. Against that order revision petition No. 1/87 was filed in the Court of the Sessions Judge. In the meanwhile immediately after the dismissal of the petition i.e. Crl.M.P. No. 2386/85, the wife filed Crl.M.P. 1088/86 for realisation of the maintenance amount by attachment of 1/3rd salary of the husband. This petition was also dismissed on 3-10-86 on the ground that as the earlier application was dismissed and the maintenance order was cancelled this petition is not maintainable. Subsequently the Sessions Court allowed Crl.R.P. No. 1/87 and set aside the order dismissing Crl.M.P. No. 2386/85. No revision was filled against the dismissal order of Crl.M.P. No. 1088/86.

3. Subsequent to the revision being allowed by the Sessions Court, the wife filed Crl.M.P. No. 397/88 for realisation of maintenance due to her. The Magistrate by an order d/- 21-7-88 sentenced the petitioner to undergo R.I. for one week for each month’s default and as there was default in payment of maintenance for a period of 50 months, he sentenced the husband to undergo R.I. for a total period of 350 days. Crl.R.P. 94/88 filed against this order was dismissed on 14-11-88 and the Magistrate’s order was confirmed. Now the present petition is filed to quash the order in Crl.M.P. No. 397/88 which was confirmed in Crl.R.P. No. 94/88 on 14-11-88. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

4. In these proceedings Sr. C. Padmanabha Reddy raised three arguments viz. (1) the order in Crl.M.P. No. 1088/86 clearly indicates that the order of maintenance in M.C. No. 18/84 has been cancelled. That order has not been challenged in revision and it has become final and hence the order in M.C. No. 18/84 no longer subsists. Hence the present petition Crl.M.P. 397/88 is not at all maintainable. (2) Assuming for a moment that the order of maintenance is subsisting under the Criminal P.C. no petition can be filed under Section 125(3), Cr.P.C. for realising the arrears accumulated for more than one year. The first proviso to Section 125(3), Cr.P.C. clearly puts an embargo on a wife accumulating arrears of maintenance beyond a period of 12 months. (3) The last argument is that during the pendency of these proceedings as result of the orders in Crl.M.P. No. 2707/88 the husband paid Rs. 3,250/-. This payment has necessarily to be appropriated to the amount that can be realised or collected by way of the warrant. Hence the petitioner is not entitled to any more amount by pursuing Crl.M.P. No. 397/88.

5. On behalf of the respondent it is contended that in a petition for arrest of the maintenance-payer there is no limit of 12 months and the court is justified in sentencing the petitioner for imprisonment for 350 days at the rate of one week for each default. It is further contended that the order of maintenance cannot be cancelled either in Crl.M.P. No. 2386/85 or in Crl.M.P. 1088/86. Those are applications under Section 125(3), Cr.P.C. and unless the order is cancelled in exercise of powers under Section 125(4), 125(5), or under Section 127, Cr.P.C. The Sessions Judge and the Magistrate are perfectly justified in holding that the order of maintenance in M.C. 18/84 is subsisting. The last argument is that there is default in payment of 50 months maintenance. The amount of Rs. 3,250/- paid by reason of the order d/- 8-12-88 will be appropriated to the first 25 months maintenance and for the subsequent months, the present petition for arrest is maintainable. There are no merits in the present petition under Section 482, Cr.P.C. The proceedings in Crl.M.P. 397/88 and Crl.R.P. 94/88 cannot be quashed.

6. The points for determination in these proceedings are

(1) whether the order of maintenance passed in M.C. No. 18/84 stood cancelled ?

(2) Whether under Section 125(3), Cr.P.C. the wife can seek imprisonment of the husband for non-payment of maintenance accumulated beyond a period of 12 months ?

(3) Whether the payment of Rs. 3,250/- paid as per the directions of this court can be appropriated to the maintenance due for the first 25 months as claimed by the wife ?

7. Point No. 1 : In these proceedings the Magistrates who dealt with Crl.M.P. 1088/86 passed orders which are beyond their powers. When petition for execution of maintenance order was filed under Section 125(3), Cr.P.C. one fails to understand how the Magistrate could cancel the order maintenance though he might be justified in refusing the execute it while exercising his powers under Section 125(3) Cr.P.C. As can be seen from the Sessions Judge’s order the Magistrate dismissed Crl.M.P. 2386/85 which was filed for arrest but he also passed an order cancelling the maintenance order. Of course that order of the Magistrate passed on 23-7-86 was set aside by the Sessions Judge in Crl.R.P. No. 1/87 on 4-1-88. In between 23-7-86 and 4-1-88 another peculiar order was passed when the 2nd Addl. Judl. First Clause Magistrate Sri. Y. Prabhakara Sarma dealt with Crl.M.P. No. 1988/86 which was filed under Section 125(3), Cr.P.C. for attachment of 1/3rd salary of the husband. The Magistrate came to the conclusion that as the earlier application was dismissed and as the earlier application cancelled the maintenance order, the present petition i.e. Crl.M.P. No. 1088/86 is not maintainable and he further added in the end portion of the order that is is clear that the maintenance order is cancelled under Section 125(5), Cr.P.C. and, therefore, once again in this Crl.M.P. No. 1088/86 the order of maintenance in M.C. 18/84 d/- 8-10-85 is cancelled in view of my findings as stated in the above paras. If the Magistrate had seen the provisions of the Code this sort of mistakes would not have arisen. Section 125(3), Cr.P.C. does not give any powers to the Magistrate to cancel an order of maintenance which he is asked to execute. At best acting under the second proviso to Section 125(3), Cr.P.C. he may refuse to execute the order if he finds that the grounds of refusal to live with the husband given by the wife are not satisfactory. Only sub Section (5) of Section 125, Cr.P.C. gives the power to the Magistrate to cancel the order of maintenance. Similarly while exercising powers under Section 127, Cr.P.C. he can cancel the order of maintenance. Under Section 125(4), Cr.P.C. the wife is only disentitled to receive maintenance if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if she is living separately by mutual consent. Even Section 125(4) does not strictly give a right to cancel the maintenance order. If only disentitles the wife to receive maintenance under specified circumstances. If judicial authority is needed for this proposition, we have the pronouncement of the Supreme Court in Bhupinder Singh v. Daljit Kaur, . The Supreme Court observed at page 443 (of AIR) : (at p. 199 of Cri LJ) as follows :

"We are concerned with a Code which is complete on the topic and any defence against an order passed under Section 125, Cr.P.C. must be founded one provision in the Code. S. 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provision of the Code itself. If the husband has a case under Section 125(4), (5), or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of S. 125(4) or (5) or Section 127, its validity survives. It is enforceable."

Judged in the light of this decision the order passed by the Magistrate in Crl.M.P. No. 1088/86 is non est and it need not be set aside by any higher court. In fact while dealing with Crl.M.P. No. 397/88 the Magistrate rightly remarked in paragraph No. 6 of his order as follows : "It is very much doubtful whether this court can cancel the order of maintenance granted by it is the application filed by the petitioner for execution of the maintenance order". The Magistrate further remarked that the order in Cr.M.P. 1088/86 is based upon the findings recorded in the earlier application Crl.M.P. No. 2386/85 and hence when one the order in Crl.M.P. 2386/85 is set aside in Crl.R.P. 1/87 the cancellation of maintenance order in Crl.M.P. No. 1088/86 also is deemed to be set aside. Assuming for a moment that the order in Crl.M.P. No. 1088/86 is not set aside by canvassing it in revision, even then as it is an order passed without jurisdiction it is non est in the eye of law. The learned Magistrate who delay with Crl.M.P. No. 397/88 and the learned Sessions Judge who dealt with Crl.R.P. 94/88 correctly appreciated the situation. I hold point No. 1 against the petitioner. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

8. Point No. 2 : S. 125(3) P.C. contemplates issue of a warrant for every breach of the order and it also contemplates sentencing the defaulter to imprisonment of non-payment of each month’s allowance. The term for each month’s default may extend upto one month or until payment if sooner made. The fist proviso to sub-section 3 of Section 125, Cr.P.C. reads as follows :

"Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due"

Sri Padmanabhareddy contends that this proviso applies both for the issue of the warrant for collecting the amount as well as for sending the defaulter to prison under the later limb of sub-section 3 of Section 125, Cr.P.C. As rightly pointed out by Mr. Padmanabhareddy there is a conflict of views regarding the interpretation of this proviso. The decision reported in Moddari Bin v. Sukdeo Bin, dealt with this question. The Division Bench dealing with the scope of S. 488(3) of the Code which is identical with the present Section 125(3), Cr.P.C. observed at page 139 that the order in this case under Section 488, Cr.P.C. is an order for maintenance and it is not an order for fine at all. Section 488(3) dealing with the enforcement of the order of maintenance only provides that the procedure laid down for warrants for levy of fine under Chapter XXVIII of the Cr.P.C. relating to execution should be followed. It is realisable only in the manner provided for levying fines. At page 140 in paragraph No. 14 dealing with the quantum of sentence the court observed as follows :-

"The maximum of one month, in our view, in this context and on proper interpretation of the language of the section is relatable to a period of the arrear for one month. In order words, default of one month is punishable by one month’s imprisonment and no more. If the default is more than one month then the imprisonment can be for as many months of default subject to a maximum of 12 months …. …. That would indicate that at the most the wife could only accumulate twelve months’ maintenance and no more and the Magistrate could give in such case at most twelve months’ imprisonment and no more. The whole idea is to provide a speedy and expeditious remedy. The idea is not to permit unnecessary accumulation of maintenance for the simple reason that maintenance is a current necessity and is not to be used for making a claim in lump after a long delay."

Their Lordships quoted a number of decisions in support of their view.

A single Judge of the Patna High Court gave a contrary interpretation and in the decision in Iftekhar Husain v. Hameeda Begum, 1980 Cri LJ 1212 (All) Sri P. N. Bakshi, J. observed as follows :

"The proviso to sub-section (3) of S. 125, Cr.P.C. places a restriction upon the issue of warrant for the recovery of any amount due and that restriction is that the application should be made to the Court within a period of one year from the date it becomes due".

Then His Lordship observed at page 1213 as follows :

"In other words recovery by attachment and sale of the movable and immovable property of the applicant can only be made to satisfy the claim of arrears of maintenance for a period of one year prior to the filing of the application …. But there is no such limitation prescribed in sub-section (3) of Section 125 Cr.P.C. which limits the power of the Magistrate to sentence the defaulter for the whole or any part of each month’s allowance remaining unpaid, after the execution of the warrant, to imprisonment for a term which may extend to one months or until payment if made sooner. In other words, though the property of the defaulter can be attached and sold for the realization of arrears of maintenance for a maximum period of one year from the date of application, yet the defaulter can be sentenced to imprisonment for recovery of arrears, which may extend beyond this period."

From a reading of the decision it is quite clear that the decision reported in Moddari Bin v. Sukdeo Bin, (1967) Cri LJ 335) (Cal) was not brought to the notice of His Lordship.

9. With utmost respect I may also indicate that the first proviso to Section 125(3), Cr.P.C. would apply to both the limbs or both the methods of recovery contemplated under sub-section 3 of Section 125, Cr.P.C. It cannot be said that the proviso would apply to the first mode of recovery i.e. by issue of a warrant for levying fines and that it would not apply too the 2nd mode of execution viz., by arresting and sending him to jail. A harmonious construction and interpretation requires that the proviso should be applied to both the limbs of Section 25(3), Cr.P.C. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

10. The decision in G. Pratap Reddy v. G. Vijayalakshmi, (1982) 1 APLJ (HC) 461 : (1982 Cri LJ 2365) is a single Judge’s decision of A. P. High Court where His Lordship Jayachandrareddy following the decision in K. R. Chawda v. State of Bombay, a Full Bench decision, sentenced the defaulter to serve imprisonment at the rate of 9 days for default of each month and imposed a total sentence of 180 days where there is a default of payment of maintenance of 20 months. There is no discussion regarding the effect of the proviso to sub-section 3 of Section 125, Cr.P.C. The Bombay Full Bench decision upheld the order of the Magistrate sentencing the husband to the imprisonment for a term of 15 days in respect of each month for which the allowance remained unpaid. From a reading of the decision we do not know whether the total period of default was more than 12 months or not in the Bombay case. In the decision reported in Kirparam v. Smt. Kalibai, a single Judge dealing with the scope of proviso to Section 488(3), Cr.P.C. observed that a second application made for recovery of arrears of maintenance when the first application was dismissed for default has to be treated as a continuation of the original application and the Judge observed as follows (paras 4 and 5) :

"The dismissal for default in appearance of an application praying for issue of a warrant cannot, in my opinion, render the application non-existent even for the purposes of satisfying the condition as to limitation laid down in the aforesaid proviso. All subsequent application must, in my opinion, be deemed, for the purpose of the question of limitation, to be in continuation of the first."

Therefore, the 3rd application which took the default for more than one year was ordered.

11. Considering the different views expressed by the various High Courts I prefer to follow the Division Bench decision of the Calcutta High Court reported in Moddari Bin v. Sukdeo Bin, (1967 Cri LJ 335). The other decisions are judgments or single Judges. In my humble opinion the contraction put forward by the Division Bench of the Calcutta High Court is harmonesus construction and interpretation of the proviso making the proviso applicable to both the limbs of procedure contemplated under sub-section 3 of Section 125, Cr.P.C. I hold on point No. 2 that the wife the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months. No application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application. I hold this point in favour of the petitioner. In this context I make it clear that they remedy provided under S. 125(3), Cr.P.C. is a speedy and expeditious remedy. By virtue of the order of maintains granted in M.C. 18/84 the right vested in the wife to receive maintenance from the date of the application i.e. 7-12-83. She may not be able to recover the earlier arrears by resorting to an application under Section 126(3), Cr.P.C., but still she would certainly be entitled to claim those arrear by filing a civil suit on the basis that the amount is die to her by virtue of the court order. But at the same time it should be remembered that under civil laws also her claim should be within the period of limitation. For instance, for the maintenance payable for the period 7-12-83 to 7-1-84 she should file a suit on or before 7-1-87. At the most she can recover arrears of maintenance for 3 years by resorting to a civil suit. Unfortunately in this case the right to file a civil suit for the earlier arrears is also barred by time.

12. Point No. 3 : In view of my finding on point No. 2, the maximum period for which she can claim maintenance under the procedure contemplated under S. 125(3) is one year. Hence the amount of Rs. 3,250/- paid in pursuance of the orders of this court in Crl.M.P. No. 2707/88 would cover payment of maintenance for 25 months. This amount cannot be appropriate for the earlier arrears. It can only be appropriated to the amount recoverable under S. 125(3), Cr.P.C. and hence 12 months arrears which are sought to be recovered by filing Crl.M.P. No. 397/88 have been paid. In fact another 13 months’ maintenance also has been paid. In the present proceedings nothing more can be recovered as her claim is fully satisfied.

13. In view of the various findings recorded by me there is no need to quash the proceedings in Crl.M.P. 397/88 which are confirmed in Crl.R.P. No. 94/88. I make it clear that the amount recoverable under the Crl.M.P. has been recovered. The petition is closed.

14. Order accordingly.

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How family disputes turn into 498a cases !!

One couple’s fight spills over & a counter 498a is lodged to threaten & finally compromised !!! Well , NO punishment whatsoever for women using courts like sticks

"……… offence under Section 323, 504, 506, 498A of the Indian Penal Code and Section 3 & 4 of the Dowry Prohibition Act ……….. namely, Md. Shahbaz Alam @ Shahbaz Alam @ Nawab who is the husband of Farzina Praveen, the complainant informant of this case and his other family members the petitioners of the other case are aggrieved because Saba Kausar the sister of petitioner Md. Shahbaz Alam married to Sarfaraz Alam, the brother of Farzina Praveen, has been driven away by the family members of Farzina Praveen for which an earlier complaint case no. 1020C/2013 is pending before Chief Judicial Magistrate, Begusarai….."

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.36349 of 2014

Arising Out of PS.Case No. -1534 Year- 2013

Thana -SAHARSA COMPLAINT CASE

District-SAHARSA

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1. Nishant Alam @ Mintu @ Nishat Alam S/o Fakra Alam

2. Rehana Parveen @ Rehana Khatoon w/o Fakra Alam

3. Sajda Kaushar W/o Nishant Alam

4. Saba Kaushar W/o Sarfaraj Alam All Resident of Village Pokharia, Ward No. 39, Police Station Begusarai, District Begusarai.

5. Heena Kaushar @ Rozi W/o Aftab Alam

6. Aftab Aalam S/o Late md. Sahayat Both Resident of Shahinbag, Street No. 8, Building No. E/41 Okhla, P.S. Okhla, New Delhi. …. …. Petitioner/s

Versus

The State of Bihar …. …. Opposite Party/s

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with

Criminal Miscellaneous No.40452 of 2014

Arising Out of PS.Case No. -1534 Year- 2013

Thana -SAHARSA COMPLAINT CASE

District-SAHARSA

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Md. Shahbaz Alam @ Shahbaz Alam @ Nawab Son of Fakhre Alam

Resident of Mohalla-Pokhariya, Ward No.-39, P.S.-Town, District-

Begusarai. …. …. Petitioner/s Versus

1. The State of Bihar

2. Farzina Praveen W/o Shahbaz Alam, D/o Md. Sajjad Hussain Resident of Gandhi Path, Ward No.-21, P.S. AND DistrictSaharsa. …. …. Opposite Party/s

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Appearance :

(In Cr.Misc. No.36349 of 2014)

For the Petitioner/s : Mr. Ajay Kumar Thakur, Adv.

For the Opposite Party/s : Mr. M.K. Nirala (App)

(In Cr.Misc. No.40452 of 2014)

For the Petitioner/s : Mr. Ajay Kumar Thakur, Adv.

For the Opposite Party/s : Mr. Ram Sewak Choudhary(App)

For the Informant : Mr. Krishna Prasad Singh, Sr. Adv.

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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA

ORAL ORDER

20-02-2015 Heard learned counsel for the parties.

It is a peculiar case in the sense that while the petitioners of these cases face allegation for offence under Section 323, 504, 506, 498A of the Indian Penal Code and Section 3 & 4 of the Dowry Prohibition Act but then there seems to be some sort of inter family dispute arising out of the fact the petitioner, namely, Md. Shahbaz Alam @ Shahbaz Alam @ Nawab who is the husband of Farzina Praveen, the complainant informant of this case and his other family members the petitioners of the other case are aggrieved because Saba Kausar the sister of petitioner Md. Shahbaz Alam married to Sarfaraz Alam, the brother of Farzina Praveen, has been driven away by the family members of Farzina Praveen for which an earlier complaint case no. 1020C/2013 is pending before Chief Judicial Magistrate, Begusarai.

Today when these cases have been heard, learned counsel for the petitioners and informant represented by Mr. Ajay Kumar Thakur and Mr. Krishna Prasad Singh, learned senior counsel respectively have submitted that both the families are now ready to settle their dispute wherein the petitioner Md. Shahbaz Alam would restore his relationship with his wife Farzina Praveen, the complainant opposite party no. 2 with due respect and humility whereas Sarfaraz Alam, the brother of Farzana Praveen will also extend similar treatment to his wife Saba Kausar and would give her due dignity as his wife.

Keeping in view that the fate and future of the two families are involved, this Court would grant privilege of anticipatory bail to all the petitioners only on the following terms and conditions:-

(i) The petitioners as also Farzina Praveen, opposite party no. 2 and her father Md. Sajjad Hussain as well as her brother Sarfaraz along with Saba Kausar shall appear before the Court below on 9th March 2015 and give a written undertaking for both Farzina Praveen and Saba Kausar being restored their due dignity and status as wife of Md. Shahbaz Alam and Sarfaraz Alam respectively. Anyone of the aforesaid person not appearing and/or filing the aforesaid written undertaking before Court below shall become liable for being proceeded and punished by this Court for committing contempt of this Court.

(ii) The relationship of both the couples namely Md. Shahbaz Alam Farzina Praveen as well as Sarfaraz Alam and Saba Kausar shall be kept under close surveillance of the court below and in the event of proven misconduct of ill treatment of either Farzina Praveen and Saba Kausar by their husband or their respective family members of report shall be submitted to this court for taking appropriate action against the erring person(s).

(iii) The complaint case no. 1020C/2013 pending before Chief Judicial Magistrate, Begusarai for this purpose of monitoring the relationship of the couples shall accordingly stand transferred to the Court of Subdivisional Judicial Magistrate, Saharsa or any other court where complaint case no. 1354C/2013 is pending.

(iv) The S.D.J.M., Saharsa having been satisfied of this family arrangements, would grant bail to the petitioners, namely, Nishant Alam @ Mintu @ Nishat Alam, Rehana Parveen @ Rehana Khatoon, Sajda Kaushar, Saba Kaushar, Heena Kaushar @ Rozi, Aftab Alam (All petitioners of Cr. Misc. No. 36349 of 2014) and Md. Shahbaz Alam @ Shahbaz Alam @ Nawab (petitioner of Cr. Misc. No. 40452 of 2014) on furnishing bail bonds of Rs. 10,000/- each with two sureties of the like amount each to the satisfaction of the Sub Divisional Judicial Magistrate, Saharsa in connection with Complaint Case No. 1534C of 2013, subject to the conditions as laid down under Section 438(2) of the Cr.P.C.

(v) That both the bailors will be a close relative of the petitioners, who will file an affidavit giving genealogy as to how they are related with the petitioners. The bailors will also undertake to inform the court if there is any change in the address of the petitioners.

(vi) That the affidavit shall clearly state that the petitioners are not an accused in any other case and if they are, they shall not be released on bail.

(vii) That the bailors shall also state on affidavit that they will inform the court concerned, if the petitioners are implicated in any other case of similar nature after their release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on the ground of misuse.

(viii) That the petitioners will be well represented on each and every date in course of trial and if they fails to do so on two consecutive dates, their bail will be liable to be cancelled on this ground alone.

(Mihir Kumar Jha, J) Rishi/-

U T

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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

AB even in 306 & 498a (suicide) case

AB even in 306 & 498a (suicide death) case. Guj HC

* Sec 498A, 306 (abetment of suicide ) read with Section 114 of the Indian Penal Code.

* “..…without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant….”

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 3684 of 2015

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VALMIKI SANDHYABEN BABULAL….Applicant(s)

Versus

STATE OF GUJARAT….Respondent(s)

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Appearance:

MR.MRUDUL M BAROT, ADVOCATE for the Applicant(s) No. 1

MR KL PANDYA, APP for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 23/02/2015

ORAL ORDER

Rule returnable forthwith. Mr.Pandya, the learned APP waives service of notice of rule for and on behalf of the respondent-State.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to release her on anticipatory bail in the event of her arrest in connection with the FIR registered at the Mehsana ‘A’ Division Police Station, District Mehsana, vide I-CR No.80 of 2014 of the offence punishable under Sections 498A, 306 read with Section 114 of the Indian Penal Code.

The learned advocate appearing on behalf of the applicant would submit that considering the nature of the offence, the applicant may be enlarged on anticipatory bail by imposing suitable conditions.

On the other hand, the learned APP appearing on behalf of the respondent-State has opposed this application for grant of anticipatory bail to the applicant looking to the nature and gravity of the offence.

I have heard the learned advocates appearing for the respective parties, perused the investigation papers and have also taken into consideration the facts of the case, nature of the allegations, role attributed to the applicant-accused, and without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.

This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, reported in [2011] 1 SCC 6941, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Others, reported in (1980) 2 SCC 665.

The learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions, including impositions of conditions with regard to the powers of the Investigating Agency to file an application before the competent court for her remand. He would further submit that upon filing of such application by the Investigating Agency, the right of the applicant-accused to oppose such application on merits may be kept open. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

In the result, the present application is allowed by directing that in the event of arrest of the applicant herein in connection with the FIR registered at the Mehsana ‘A’ Division Police Station, District Mehsana, vide I-CR No.80 of 2014, the applicant shall be released on bail on her furnishing a personal bond of Rs.10,000/- (Rupees ten thousand only) with one surety of the like amount on the following conditions that she shall:

(a) cooperate with the investigation and make herself available for interrogation whenever required;

(b) remain present at the concerned Police Station on 27.2.2015 between 11.00 a.m. and 2.00 p.m.;

(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer;

(d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change her residence till the final disposal of the case till further orders;

(f) not leave India without the permission of the Court, and if having passport, shall deposit the same before the trial Court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it just and proper and the learned Magistrate would decide the same on merits;

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand.

This is, however, without prejudice to the rights of the accused to seek stay against an order of remand if, ultimately, granted, and the powers of the learned Magistrate to consider such a request in accordance with law.

It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to the other conditions of this anticipatory bail order.

At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute. Direct service is permitted.

(J.B.PARDIWALA, J.)

MOIN

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Woman can’t claim share in self-acquired property of dad-in-law: Court

Woman can’t claim share in self-acquired property of dad-in-law: Court

Rebecca Samervel,TNN | Feb 25, 2015, 06.59 AM IST

MUMBAI: A sessions court observed last week that a woman cannot claim a share of her father-in-law’s self-acquired property under the Domestic Violence Act. The court made the observation while dismissing an appeal filed by a woman who sought a share of the household from her estranged husband. "Share household does not include self-acquired property of parents-in-law of an aggrieved woman. A copy of the registered agreement, loan receipts, tax receipts etc clearly shows that the property is purchased by the father-in-law and it is his share household property, it cannot be termed as a joint family property or an ancestral property," the court observed.

The appeal, filed in 2011, states that the couple was married in 2006. After the wedding, the woman stayed with her in-laws and husband at their flat in Vasai. The woman alleged that she was forced to leave this home. In 2009, she filed a case under the Domestic Violence Act against her husband and in-laws, citing violence. In the complaint, she also filed an application stating that she wanted a share of the house as her husband had not allowed her to enter the matrimonial house. However, on April 4, 2011, a magistrate court rejected her appeal.

The woman’s advocate told the sessions court that she has resided in the house with her husband who had a share in the property and hence, she too had a share in the house. It was further argued that the husband had exercised his right to stay on the property and as a spouse, this right extended to her, too. On the basis of these arguments, the woman said that she should be allowed to enter and reside in the house. The woman also claimed that it was her husband who was initially paying the EMI on the loan taken for the flat.

The court, however, pointed out that even if a husband and wife live together in a dozen places, that property does not become a shared household. "The property in which the woman is claiming her right is not a joint family property or the ancestral property of her husband. Therefore, she is not entitled to have a shared household in the property of her parents-in-law. She also cannot claim alternative accommodation from the parents-in-law under the Domestic Violence Act," the court observed.

source
http://timesofindia.indiatimes.com /city/mumbai/Woman-cant-claim-share-in-self-acquired-property-of-dad-in-law-Court/articleshow/46363775.cms

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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