Daily Archives: August 22, 2015

Not just mother in laws, even spiritual gurus can be arrested on wife’s complaint !! “.She has taken my Jewels ..” song

From 498A to 406

As everyone knows more and more dowry cases are being filed every year !! Ever increasing people, particularly women and elders are being arrested without impunity based on the ‘ablaa naari’ the so called innocent wife’s complaint

While all along this was affecting elderly mothers in law, un married and married sisters in law and 10s of 1000s of children, now this has started affecting spiritual gurus. Since IPC 498A can be filed only against husband or relative of the husband, now 406 and “recovery of dowry articles” cases are being filed even on third parties

While 100s of such cases are proven false, (some two dozen such cases openly condemned by courts blogged here), the trend continues unabated. While I am NO supporter of this shadhu or that sadhvi, I can only pity the targets of false, frivolous and vexatious 406 cases

Radhe maa is ONE AMOUNG SEVEN named in this complaint !!

====== news from Indian express =======

Before HC granted pre-arrest bail, lower court had rejected Radhe Maa’s plea

The court had also observed that custodial interrogation of Kaur was necessary, but she was allowed to leave Kandivali police station last Friday after being questioned for five and a half hours.

Written by Srinath Rao | Mumbai | Published:August 23, 2015 12:45 am

Kaur (50), who has listed her occupation as a religious and spiritual adviser, had argued through her lawyers in the Dindoshi court on August 13.

Before the Bombay High Court eventually granted her protection, the anticipatory bail plea filed by self-styled godwoman Sukhvinder Kaur, who is known as Radhe Maa, had been rejected by a sessions court, which noted that a large amount of cash and jewellery, allegedly gifted to her by the complainant in a dowry demand and harassment case, was to be recovered.

The court had also observed that custodial interrogation of Kaur was necessary, but she was allowed to leave Kandivali police station last Friday after being questioned for five and a half hours.

Kaur (50), who has listed her occupation as a religious and spiritual adviser, had argued through her lawyers in the Dindoshi court on August 13 that she had nothing to do with a matrimonial dispute between the Kandivali resident, Niki Gupta, and her estranged husband Nakul Gupta, whose family is one of Kaur’s foremost followers and who often host her at their Borivali home.

Kaur is one of seven accused named by Niki Gupta in her private complaint filed in the Borivali metropolitan magistrate’s court in 2014. The complaint had charged Kaur, Nakul Gupta and five members of his family, with demanding dowry before and after the marriage and for physically and mentally harassing her between 2012 and 2013.

However, Additional Sessions Judge V A Raut had made note of two transactions between Niki Gupta and Kaur, while rejecting the latter’s bail application. Niki had alleged in her complaint that on February 19, 2012, the day she got engaged to Nakul Gupta, she was asked by the latter’s family to offer gifts — Rs. 51,000 cash and other articles — to Kaur.

The same day, Niki was allegedly forcefully sent to work in Kaur’s living quarters between noon and 6 pm. The complaint alleged that Niki was “forced to massage her (Kaur’s) legs, clean her utensils, wash her clothes”. It also said Kaur used to assault and abuse her.

Another transaction took place on February 18, 2012, a day before the engagement, when Niki and her parents went to Borivali for a ‘darshan’ of Kaur. The complaint said her to-be mother-in-law Lata Gupta advised her to give Kaur unspecified articles valued at Rs 21,000.

In her August 13 bail rejection order, Judge Raut observed, “…huge amount is involved in the crime and gifted articles are yet to be recovered… considering the serious nature of offence, I am of the opinion that custodial interrogation with the applicant (Kaur) is necessary. Hence, she is not entitled for grant of anticipatory bail.”

Kaur’s pre-arrest relief granted by the HC lasts another week.

– See more at: http://indianexpress.com/article/cities/mumbai/before-hc-granted-pre-arrest-bail-lower-court-had-rejected-radhe-maas-plea/#sthash.ImcTxRVW.dpuf

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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

Not only husband’s, Income & assets of wife ALSO b considered 4 INTERIM maint us 24 HMA. Delhi HC

The Hon HC says :
“………… 5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay…..

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.

8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. ………..”

*****************************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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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Delhi High Court

Sh. Bharat Hegde vs Smt. Saroj Hegde on 24 April, 2007

Equivalent citations: 140 (2007) DLT 16, I (2007) DMC 815

Author: P Nandrajog

Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

1. I do not intend to catalog the various decisions under Section 24 of the Hindu Marriage Act 1955. It would be sufficient for me to note the judicial principles required to be applied while deciding an application under Section 24 of the Hindu Marriage Act 1955.

2. Since the Section relates to entitlement of the appellant spouse to receive interim maintenance from the non-applicant spouse, it is obvious that the focus of enquiry has to be the means of the applicant spouse to maintain him/her self as also the financial means of the non-applicant spouse. The issue of conduct or misconduct of either spouse is irrelevant for the reason, in every proceedings for divorce, dissolution or judicial separation, there is bound to be some allegations or the other pertaining to matrimonial misconduct. Thus, if conduct or misconduct were to be considered, no spouse would get any interim maintenance under Section 24.

3. The Section contemplates a summary enquiry and not a trial at length.

4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.

5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.

8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view.

From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:

1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the non applicant has to maintain.

5. The amount should aid the applicant to live in a similar life
style as he/she enjoyed in the matrimonial home.

6. Non-applicant’s liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical
attendance and treatment etc. of the applicant.

8. Payment capacity of the non applicant.

9. Some guess work is not ruled out while estimating the income of
the non applicant when all the sources or correct sources are not
disclosed.

10. The non applicant to defray the cost of litigation.

11. The amount awarded Under Section 125 Cr.PC is adjustable against
the amount awarded Under Section 24 of the Act.

9. With the backdrop facts aforesaid validity of the impugned order dated 13.5.2004 has to be decided.

10. The non-applicant Smt. Saroj Hegde sought dissolution of her marriage on grounds of cruelty and desertion. She filed a an application under Section 24 of the Hindu Marriage Act praying that she should be awarded a reasonable interim maintenance from her husband. She stated that she was unemployed.

11. In support of her claim, she pleaded that her husband was the son of Shri Rama Krishna Hegde, Ex Chief Minister of the State of Karnataka. She stated that he was an industrialist operating a unit at Peeneya Industrial Estate, Stage-II, Bangalore wherefrom he was earning at least Rs. 10 lacs per month. She further stated that the husband was a co-owner in the following properties:

1. Property No. 229, Raj Mahal Vilas Extension, Bangalore valued Rs.
6 crores.

2. Fionika Building, Walkeshwar Road, 12th Floor, Bombay valued Rs.
4 crores.

3. Ancestral property at Sidapur, Mytri valued Rs. 1 crore.

4. Peeneya Industrial Estate, II Stage, Bangalore valued Rs. 50 lakhs.

5. Flat at Ferozshah Road, New Delhi valued Rs. 2 crores.

6. Coffee Gardens at Coorg, Karnataka valued Rs. 10 crores.

7. 40 acres of agricultural farm land near Jai Nagar valued Rs. 5
crores.

12. Averments in respect of the immovable properties owned by the husband are in para 7 of the application filed by the wife under Section 24 of the Hindu Marriage Act. The same read as under:

PROPERTIES VALUE

i) Property No. 229, Raj Mahal Vilas Extension, Bangalore-560006 Rs.
6 crores

ii) Fionika Building, Walkeshwar Road, 12th floor, Bombay.Rs.4 crores

iii) Ancestral property at Sidhpur, Mytri (co-owner) Rs. 1 crore

iv) Peeneya Industrial Estate, II Stage, Bangalore Rs. 50 lacs

v) Flat at Ferozshah Road, New Delhi Rs. 2 crores

vi) Coffee Gardens at Coorg. Rs. 10 crores

vii) Agricultural farm land (40 acres) near Jai Nagar Rs. 5 crores

13. Response of the husband to the averments made in para 7 are as under:

7. The respondent respectfully submits that, the respondent is
unemployed and he has no source of income and that he is totally
dependent on his parents.

14. It may be noted at the outset that the husband has not denied the assertion that he is the owner of the properties disclosed in para 7 of the application filed by the wife under Section 24 of the Hindu Marriage Act.

15. By and under the impugned order, Rs. 25,000/- per month has been awarded to the wife besides litigation expenses in sum of Rs. 25,000/-.

16. Shri K.N.Bhatt, learned senior counsel for the petitioner urged that while awarding maintenance to the respondent, learned Judge had to consider only the revenue income of the husband. Consideration of capital assets may be relevant in a claim for permanent alimony, urged the counsel. It is wholly irrelevant for purposes of deciding a claim under Section 24, submitted the learned senior counsel.

17. I do not agree.

18. If the capital asset is an industrial property, a coffee plantation, an orchard or any other agricultural holding, there would be a presumption that the said capital asset is yielding some income. It is not presumed to be a dead asset.

19. As noted herein above, unfortunately, nobody pays proper taxes to the Government. Self employed persons seldom disclose their true income. Prudence and worldly wisdom gained by a judge before whom citizens of all stratas of society litigate it can always be used by a Judge to broadly ascertain as to what is going on in the society. By no means, said knowledge can be used where law requires a fact to be conclusively proved. But where the law requires a Judge to form an opinion based on a host of primary data, a Judge can formulate an opinion pertaining to the likely income from the capital assets of the husband.

20. The matter can be viewed differently.

21. It is not the case of the husband that he has abandoned his capital assets. It is not his case that he is not residing in Raj Mahal Vilas Extension, Bangalore.

22. How is he maintaining the said properties?

23. The husband has disclosed nothing about the salaries paid to the various employees, servants and others employed at the various capital assets owned/co-owned by the husband.

24. It is a well recognized principle of law that where a person withholds vital information, a presumption arises against him that had he disclosed the information, the same would have been adverse to him.

25. Keeping in view the capital assets owned/co-owned by the husband, his social status, his place of residence, it is difficult to believe that the husband does not have the requisite means to support his wife a monthly maintenance of Rs. 25,000/-.

26. As regards the wife, there is no proof of she having any income.

27. Order sheets of the present case show numerous attempts made to effect a reconciliation or separation on amicable terms. Unfortunately, the attempts have failed.

28. I find no merit in the petition.

29. Dismissed.

30. The husband is directed to pay costs of the present litigation before this Court to the wife quantified at Rs. 25,000/-.

31. No costs.

Woman kills husband, hides body in septic tank for a week, claims domestic abuse !

Woman kills husband, hides body in septic tank for a week, claims domestic abuse !

Saturday, 22 August 2015 – 6:35am IST | Agency: dna | From the print edition

Fed up with domestic abuse, a 34-year-old woman in South-West Delhi allegedly murdered her husband and hid the body in a septic tank for nearly a week. Identified by police as Seema Bhardwaj, a housemaker, strangulated her husband and hid the body after which she went to stay with her relatives. She kept the secret to herself till Thursday evening before finally breaking the news to her brother-in-law’s wife. A team searched the premises and found the decomposed body of Seema’s husband in the said location.

Seema was arrested when her brother-in-law and her own brother approached the Delhi police and told them about the location of the body. Seema’s husband, was identified by authorities as Shri Om Bhardwaj (40), who was a driver by profession. The couple had been living at their current residence in Surat Viahar village of Najafgarh alongwith their two children, a 10-year-old son and a daughter (7).

Seema during her questioning told police, that she married Bhardwaj nearly 12 years ago and the marriage did not run into trouble until the couple had their first child. "She told the investigators that the deceased used to drink every night and would routinely fight with her over petty issues. The family had been living in the area for nearly three years and we are questioning the neighbours to get a clearer picture as to what might have led to the murder," said a senior police officer. The officer added that Seema after confessing to the murder told investigators that she had gotten sick by the bickering with her husband but had not thought of taking the extreme step.

On August 15, however, Bhardwaj came more drunk as usual and allegedly got into a fight with her. "The accused then strangulated her husband. She hid the body in the empty storage space in the bed. The next morning she sent the children to the school and like every other day but once she was alone, she shifted the body to a septic tank.

She also covered the tank with cloth so that smell would not emanate from the container," said R A Sanjeev, Deputy Commissioner of Police, South-West district.

According to police, Seema broke the news to her family after she started to get uneasy about the repercussions of what she done. The family decided to approach the police following which she was arrested. The children are currently staying with her relatives. The body meanwhile was sent for an autopsy and Seema produced in court.

source DNA India

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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

SC:Maint depends on conduct of parties, allegations, wife inflating husband’s income, husband hiding income etc !

SC:Maint depends on conduct of parties, allegations, wife inflating husband’s income, husband hiding income etc !

The Hon Apex court rules:
“…No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstance of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. ….”

“…Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be and .. done by any mathematical precision. ….”

The court goes on to list some of the important factors to be considered while awarding maintenance
“…..The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition the date of filing of the application under Section 241 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply there to; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties …”

*****************************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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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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SMT. JASBIR KAUR SEHGAL

Vs.

THE DISTRICT JUDGE DEHRADUN & ORS.

DATE OF JUDGMENT: 27/08/1997

BENCH: SUJATA V. MANOHAR, D. P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

Present :

Hon’ble Mrs. Justice Sujata V. Manohar Hon’ble Mr. Justice D.P. Wadhwa Ms. Shalu Sharma, Rajesh K. Sharma, Rakesh K. Sharma, Advs., for the appellant.

P.P. Tripathi, Arvind Varma, Advs. for K.L. Mehta & Co., Advs. for the Respondents.

J U D G M E N T The following Judgment of the Court was delivered :

J U D G M E N T D.P. Wadhwa, J.

Leave granted.

This is wife’s appeal against the judgment dated October 14, 1996 of the High Court of Judicature at Allahabad. She is aggrieved by the impugned judgment under which she was awarded maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 (for short `the Act’) at the rate of Rs. 1500/- per month. On an application filed by the wife in the trial court in proceeding for divorce initiated by her husband, respondent No.3 herein, she was awarded Rs. 2,500/- (Rupees two thousand and five hundred only) as expenses of litigation and maintenance pendente lite at the rate of Rs. 1000/- per month. Her revision before the District Judge Dehradun against this order was dismissed. She further filed writ petition under Article 227 of the Constitution of India in the High Court. By the impugned judgment the High Court enhanced the maintenance to Rs. 1500/- per month.

Respondent 1 and 2 in this appeal are respectively the District Judge, Dehradun and the Additional Civil Judge (IInd), Dehradun who are described as proforma respondents. It is not proper or even justified on the part of the appellant to implead the courts as respondents and respondents 1 and 2 are, therefore, struck off from the record of this appeal.

Parties were married on October 2, 1963.
The husband at that time was an army officer. He retired and Lt. Colonel on August 10, 1986. On September 28, 1989 he filed the petition for divorce against his wife under Section 13 of the Act on the alleged grounds of cruelty and desertion. He stated that within two years of the marriage the wife started creating problem for him and she persisted in her behaviour right till the year 1989. In this span of 26 years in their married life, they have become the parents of four children, two sons and two daughters. Eldest daughter who is 34 years old and unmarried is living with her mother who maintains her. Second child is so who is working with Mukul Overseas Pvt. Ltd. on a monthly salary of Rs. 7500/- per month and is living in a house in Safdarjung Enclave in New Delhi. Third child is a daughter aged 26 years. She is also unmarried and unemployed and is living with the father. Fourth child is a son of 20 years of age, he is unemployed and had studied upto 11th class. Husband says that being head of the family he is to maintain two sons and a daughter as they are dependent on him. His claim is that he is presently having a meagre salary of Rs. 5000/- per month and is employed as consultant/adviser with M/s. Mukul International Private Limited. Both Mukul Overseas (P) Ltd. and Mukul International (P) Ltd. belong to same group. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

After retirement from the army, respondent-husband joined the Oil and Natural Gas Commission (ONGC) as a Director and was posted at Dehradun. He retired from that post on August 21, 1995. Thereafter from January 1, 1996 husband is working with M/s. Mukul International Pvt. Ltd. as aforesaid. After deduction of income-tax at source, husband says he is getting an amount of Rs. 4700/- per month. Husband admits that he has a house in NOIDA which was on rent with the army and lease was terminated by letter dated January 29, 1996 from the Ministry of Defence. He says repairs are being carried on in the house and presently he is living with her eldest son in his house. He further says he is not getting any pension as on his permanent absorption in ONGC, he had opted to receive lumpsum amount in lieu of pension and prorata gratuity amount in lieu of pension and prorata gratuity amounting to Rs. 2,60,456/-. In addition the husband also received an amount of Rs. 55,775/- on account of D.C.R. Gty. Husband has also filed his computation of taxable income for the assessment years 1992- 93, 1995-96 and 1996-97. He has though not filed any assessment order. Since he retired from ONGC in August, 1995 it would be appropriate to see his computation of taxable income for the year ending March 31, 1995. His gross salary income in Rs. 1,88,281/- and after deduction of House Rent Allowance it comes to Rs. 1,78,614. Income from house property he say is Rs. 22716/-, interest income is Rs. 3179/-. Total of these three items would be Rs. 2,04,509/-. Then there are claims of standard deduction, repairs in the house and tax rebate on saving amounting to Rs. 68,922/- which include payment on account of LIC, PF, PPF, MEP, NSC and general insurance. The amount of tax payable comes to Rs. 35716/- on a taxable income of Rs. 1,81,790/-. For the assessment year 1996-97 (year ending on March 31, 1996) the salary income shown is 1,18,151/-, income from house property is Rs. 18, 930/- and after standard deduction, and other deduction and the rebate the income tax payable is Rs. 18, 464/- on the net income of Rs. 1,31,200/-.

Wife says that the husband has not given true account of his assets and income and has rather suppressed the same. Though the wife has not been able to give any specific evidence to support her contention but circumstance show that the husband has not given true state of affairs of his income. He has pleaded that both his wife and his eldest daughter are earning Rs. 10,000/- per month but there is no basis for such an allegation. The fact remains that the wife has no source of income and she is also maintaining her eldest unmarried daughter. Under the Hindu Adoptions & Maintenance Act, 1956 it is the obligation of a person to maintain her unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field.

Husband has filed this counter affidavit in the appeal before us and on our direction both the parties have filed additional affidavits. On one date when this appeal came up for hearing we were told that the husband had left that morning itself for Canada for further treatment after his bypass surgery in India and that his expenses visiting the Canada and as well as the expenses for the treatment there were being met by his friend. In his affidavit husband has stated that his friend Sontosh Singh for his treatment in Canada paid his fare. He is, however, silent about the expense if any met by Sontosh Singh for his treatment in Canada. A copy of the statutory declaration of Sontosh Singh which is dated March 21, 1997 has also been filed. In this Sontosh Singh does say that he has undertaken to bear the cost of passage and maintenance of respondent during his stay in Canada and North America. It is a matter of common knowledge that medical treatment in Canada is high and an ordinary person cannot afford the expenses which are met by taking medical insurance. As to what expenses husband incurred for his bypass surgery in India has not been disclosed. On our query as to how much foreign exchange husband obtained while going to Canada, it was stated that Dollar U.S. 1,350 were obtained at a cost of about Rs. 50,000/-. From where all these monies came from we are left in dark. Husband had not filed any certificate of his salary from his present employer though the wife has contended that both the firms Mukul Overseas Pvt. Ltd and Mukul International Pvt. Ltd. are owned by the husband himself which fact husband had denied. Though we are not concerned with the income of his son which is stated to be Rs. 7,500/- per month, it would have been better if the husband had given complete details as to the perquisites enjoyed by his son, the rent he is paying for his rented accommodation at Safdarjung Enclave and the like. Claim of the husband that though his house in NOIDA fell vacant in January, 1996, it has neither been further let nor the husband himself living there because of certain repairs and on that account he is residing with his son does not appeal to us. It does appear to us from the affidavit of the husband that it conceals more than what it tells of his income and other assets. Attempt has been made to conceal his true income and that leads us to draw an adverse inference against the husband about his income that it is much more than what is being disclosed to us. The claim of the husband that from an income of Rs. 4,750/- per month which is getting from Mukul International Pvt. Ltd. he has to maintain himself, his two sons and daughter is absorb particularly when the eldest son is earning more than the husband and it is the husband who is living with him. Husband has also not disclosed retrial benefits if any from the ONGC and the amount of provident fund he obtained from there. Husband has interest income from Unit Trust of India and also from the fixed deposit receipt but again he has not disclosed the number of units he is holding and the amount of the fixed deposits in his name, from all these we have to hold that the annual income of the respondent-husband is even on modest estimate to be Rs. 2,40,000/- annually which would come to Rs. 20,000/- per month. Considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Wife has no fixed abode of residence She say she is living in Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to him. Wife has not claimed and litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5,000/- per month payable by respondent-husband to the appellant-wife.

The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provision contained in the Hindu Adoption and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition the date of filing of the application under Section 241 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply there to; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court which is October 16, 1996. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month.

The appeal is allowed with costs. Counsel fee Rs. 2,500/-.

Photo or witness NOT needed 2 prove adultery.Strict proof needed. Court 2b satisfied beyond reasonable doubt

Photo or witness NOT needed 2 prove adultery.Strict proof needed. Court 2b satisfied beyond reasonable doubt

The Hon Bombay HC considered a case where a wife files for divorce and allges that her husband is living in Adultery. In this classic case the burden of proof needed to establish the guilt is discussed in detail

The Hon Bombay HC states “…7. This however cannot and does not necessarily mean that the Court expects direct evidence by way of photographs or of eye-witnesses who have seen actual adultery or that it requires the employment of detectives peeping through key-holes and deposing about adulterous intercourse. The burden is no more than in a criminal case where the consequences to an accused are equally serious. It only means that there must be evidence, either oral or circumstantial in nature, from which the Court can be satisfied beyond reasonable doubt that the alleged offence is made out. ….”

However please exercise caution while using this case because the court ALSO says that Strict proof is needed

“…6. The principles regarding the nature and burden of proof in all such cases where adultery is alleged against one of the spouses by the other spouse, are well-settled. The parties are governed by the Hindu Marriage Act, 1955. The plaintiff claims relief under Section 13(1) on tbe ground of husband’s adultery. Under Section 23 the Court can grant relief only, it it is satisfied that any of the grounds , for granting relief exists and other conditions are fulfilled and not otherwise. A similar question arose in a different form in Sushila Mahendra v. Mahendra Manilal, 61 Bom LR 431 : (AIR 1960, Bom 117), before a Division Bench of this Court of which I was a member under Section 12(1)(d) of the Hindu Marriage Act, 1955. We reviewed the case law and held that the petitioner in such a case must prove the allegations beyond reasonable doubt, in other words that “satisfied” read with the words “but not otherwise” mean satisfied beyond reasonable doubt. …..”

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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 with necessary Emphasis, Re formatting
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BOMBAY HIGH COURT

DEVYANI KANTILAL SHROFF VS KANTILAL GAMANLAL SHROFF AND ANR. ON 21 AUGUST, 1962

EQUIVALENT CITATIONS: AIR 1963 BOM 98, (1963) 65 BOMLR 24, ILR 1962 BOM 706

BENCH: PATEL

JUDGMENT

1. This is an appeal by the wife against a decree of dismissal of her petition for divorce on the ground of adultery of her husband with respondent No. 2.

2. The petitioner was married to respondent No. 1 on the 15th of February 1947. After marriage, for a number of years they lived as husband and wife in Karim Building at Kanda Wadi on the and floor. The petitioner left respondent No. 1 in or about the end of 1958. At that time respondent No. 1 had two rooms in Karim Building. Out of these two rooms, he gave one room on leave and licence within a short time after the petitioner left, while the main residen tial room in which the petitioner and respondent No. 1 were residing he says he gave on leave and lincence in the month of April 1960. The pre sent petition for divorce on the ground of adultery was filed on 23rd February 1961.

3. She alleged that since about 1956 respondent No. 1 came in contact with respondent No. 2, who was living in Sikka Nagar with her husband and her two children. Gradually relations between respondents Nos. 1 and 2 became intimate. When ultimately the petitioner asked respondent No. 1 about his relation with respondent No. 2, he told her that she was his wife and beat her and drove her away. Even before that date, there used to be quarrels on this account. On the iast occasion, when she was beaten and driven out of the house, she went to the house of Savitiiben, the sister of respondent No. 1, and from there called her mother. In the house of Savitriben also respondent No. 1 beat her in the presence of Savitriben and her mother, and abused her mother as well, after which her mother took her to her own house and since then she is living with her parents. According to her, within a short time after she left the rooms in Karim Building, respondent No. 1 started living with respondent No. 2 who had about the month of August 1959 shifted to chawl No. 3 at Pipalwadi. Since then he was living with her in adultery. She therefore was entitled to a decree in divorce.

4. Both the respondents denied the allegations made by the petitioner. Respondent No. 1 contended that respondent No. 2 was a friend of the petitioner herself and whenever he visited respondent No. 2 at her husband’s place he went along with the petitioner and never alone. He alleged, on the other hand, that in or about 1956 and thereafter several friends of the petitioner used to visit his rooms in his absence and when he was told about it by the neighbours he remonstrated with the petitioner and that is why she left him. He admitted that he became, a paying guest of respondent No. 2 in or about August 1959 but was only taking his meals at her place. Both the respondents further admitted that it was only in the month of April 1960 that respondent No. r came to live with respondent No. 2 as a paying guest at Pipalwadi. Both of them alleged that during the time that respondent No. 1 was a paying guest, he was sleeping in the lobby throughout the period except in the months of July to October when because of the rains he was sleeping inside the room. Both of them further admitted that during the pendency of the suit whenever respondent No. 1 came from Bulsar he lived with respondent No. 2. Respondent No. 2 admitted that since about October 1958 her husband was not living with her but went to live with bis brother and that she was compelled to vacate that room in or about June 1959 after which she came to live at Pipalwadi. She asserted that at no time had she any adulterous intercourse with respondent No. 1 and that the allegations were false.

5. It is on these pleadings and on admissions of the parties that the issue as to whether or not it is established that respondent No. 1 lived in adultery with respondent No. 2 must be decided.

6. The principles regarding the nature and burden of proof in all such cases where adultery is alleged against one of the spouses by the other spouse, are well-settled. The parties are governed by the Hindu Marriage Act, 1955. The plaintiff claims relief under Section 13(1) on tbe ground of husband’s adultery. Under Section 23 the Court can grant relief only, it it is satisfied that any of the grounds , for granting relief exists and other conditions are fulfilled and not otherwise. A similar question arose in a different form in Sushila Mahendra v. Mahendra Manilal, 61 Bom LR 431 : (AIR 1960, Bom 117), before a Division Bench of this Court of which I was a member under Section 12(1)(d) of the Hindu Marriage Act, 1955. We reviewed the case law and held that the petitioner in such a case must prove the allegations beyond reasonable doubt, in other words that “satisfied” read with the words “but not otherwise” mean satisfied beyond reasonable doubt. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In White v. White, , while considering similar provisions of the Indian Divorce Act where similar words in Sections 14 and 7 are used, the Supreme Court following the case of Preston-Jones v. Preston Jones, 1951 AC 391, held

“that the standard of proof in divorce cases would be such that if
the Judge is satisfied beyond reasonable doubt as to the commission
of a matrimonial offenee, he would be satisfied within the meaning of
Section 14 of the Act. The terms of Section 14 make it plain that
when the Court is to be satisfied on the evidence in respect of
matrimonial offences the guilt must be proved beyond reasonable doubt
and it is on that principle that the Courts in India would act.”

The reason of such a strict rule is not far to seek. A finding as to adultery or some such matrimonial offence has got very serious consequences inasmuch as it affects the status of a party, and it is on grounds of public policy that such A strict rule of proof is required in all such cases.

7. This however cannot and does not necessarily mean that the Court expects direct evi-dence by way of photographs or of eye-witnesses who have seen actual adultery or that it requires the employment of detectives peeping through key-holes and deposing about adulterous intercourse. The burden is no more than in a criminal case where the consequences to an accused are equally serious. It only means that there must be evidence, either oral or circumstantial in nature, from which tbe Court can be satisfied beyond reasonable doubt that the alleged offence is made out.

In Woolf v. Woolf, 1931 P 134, the Master of the Rolls said;

“The Petitioner is under no obligation to show adulterous inclination
generally on the part of the respondent. In my opinion, if evidence
is given in good faith which under all but the most unusual
circumstances is clear evidence of adultery, it is the duty of the
Court to act upon it, unless the King’s proctor can bring forward
cogent evidence to rebut the obvious presump tion. In Loveden v.
Loveden, (1810) 2 Hag Con 1(2), Sir William Scott said that it was
not neces sary to prove the direct fact of adultery, for ‘if it were
otherwise, there is not one case in a hundred in which that proof
would be attainable; it is very rarely indeed that the parties are
surprised in the direct fact of adultery. In every case almost the
fact is inferred from circumstances that lead to it by fair inference
as a, necessary conclusion; and unless this were the case, and un
less this were so held, no protection whatever could be given to
marital rights”.

The Court must have regard to the usual reluct ance of neighbours to get involved in giving evi dence in such cases and consider more the quality rather than quantity of evidence.

8. A case must be judged having due regard to the social conditions and the manner in which parties are accustomed to live. It is not necessary in every case, therefore, where cases of ordinary middle class come before the Court to require evidence that the respondents were sleeping in one room by themselves. If there is evidence enough to show that they had reasonable opportunity of having sexual intercourse in the conditions of life in which they live for days together then the Court may be justified in raising an inference of adultery.

(After discussing the evidence (paras 9-34), His Lordship concluded.)

The circumstances which I haye discussed above, when put together and
weighed,, must, lead only to one and one inference and that is that
respondents Nos. 1 and 2 were and are living in adultery. As stated
by me in the beginning of the judgment, the burden of proof is no
more than in a criminal case where the consequences are far worse.
Even in a criminal case it is not the quantity but the quality of the
evidence that is the governing factor, and the Court does not
hesitate, if it accepts the evidence, even if only oral to convict an
accused. The circumstances, which I have narrated above clearly
indicate the guilt of both respondents 1 and 2 and there could be no
reason to hold otherwise.

25. I accordingly answer the only issue, which arises in the case, in the affirmative, set aside the decree made by the learned trial Judge and direct that the marriage between the petitioner and the 1st respondent be and is hereby dissolved. Taking all the circumstances into account including the fact that in the trial Court the case went on for about 7 days, it seems to be proper that in the trial Court, Counsel’s fees should be certified at Rs. 350/.- in all. The costs in the trial Court which the respondent No. 1 will pay to the petitioner will, therefore, ‘be the taxed costs over and above the Counsel’s fee certified at Rs. 350/-. So far as the present appeal is concerned, I certify the total costs at Rs. 350/- Credit to be given for Rs. 150/- which respondent No. 1 had deposited in pursuance to my order dated 1st of February 1962.

26. The case is remanded to the learned Judge for determination of alimony to be paid by respondent No. 1 to the petitioner. Pending the decision by the trial Court, the order in res pect of interim alimony made earlier in this pro ceeding will continue to be operative. Office to draw up a decree in respect of interim alimony so as to make it executable.

27. Order accordingly.

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