Daily Archives: December 19, 2015

Man working @ Souchalaya ( public toilet) hit with DV case & saved by sessions court !!

A poor guy working at Sulabh Souchalaya and also suffering kidney disease , whose health is going down day by day, is burdened with a huge maintenance by learned MM when his wife files DV. Delhi sessions court appreciates the facts and saves him !!

The husband has honestly submitted his salary passbook etc !!

This case exemplifies onerous maintenance orders and how men are literally bankrupted by marriage feud

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Delhi District Court

Yogesh Singh vs Pinki on 17 December, 2015

Author: Ms.Hemani Malhotra

IN THE COURT OF MS. HEMANI MALHOTRA, ASJ-05 (CENTRAL),

TIS HAZARI, DELHI

CA No. 25/15
CC no. 92/6/15
PS IP Estate
U/s 23 of DV Act

Yogesh Singh S/o Sh. Inder Singh
R/o 8-C, Pocket-R, Dilshad Garden,
New Delhi-95 ……….Appellant

Vs.

Pinki W/o Sh. Yogesh Singh
D/o Sh. Kavi Raj
R/o 69/100, Harijan Basti
T-Huts, Kotla Firoz Shah,
New Delhi. ………..Respondent

Date of institution 02.12.2015

Date of conclusion of final arguments /
reservation of Judgment 08.12.2015

Date of pronouncement of Judgment 17.12.2015

JUDGMENT

1. Present appeal has been preferred by Yogesh Singh, husband of the complainant Pinki against the impugned order dated 06.11.2015 passed by Learned MM (Mahila Court-I) in complaint case no.92/6/15 filed under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as the Act) whereby the complainant and the minor child of the parties have been granted interim maintenance @ Rs.5,000/- towards her maintenance, maintenance of child and towards alternate accommodation from the date of filing of petition i.e. 19.6.2015.

2. I have heard the learned counsels for the parties and have perused the trial court record with utmost care.

3. As the factum of marriage between the parties and the paternity of the minor child is undisputed, there is no doubt that it is the husband who has to provide maintenance for both the wife and the child especially when the wife is unemployed. Without embarking on the reasons for the separation of the appellant and the complainant, the fact is that the wife is living separately from the appellant/husband and the burden of looking after the minor child is solely hers.

4. In cases of matrimonial disputes, it has been generally observed that the husband does not truthfully reveal his income as his sole aim is to defeat the claim of the applicant/wife. But, such cases have to be differentiated from the cases where the husband is earning a fixed salary which is evident from the bank passbook and there are no hidden incomes accruing to him.

5. The impugned order has been passed by the learned MM (Mahila Court) on the basis of the monthly income / salary admitted by the appellant / husband as it is the case of the appellant/husband that he is working at Sulabh Shauchalya and earning a meager salary of Rs.9000/- per month. Appellant/husband has also filed copy of his bank passbook in support of his claim. Appellant has also placed on record rent agreement dated 13.6.2014, as per which he is residing in a tenanted premises i.e. property bearing no.8C, Pocket R , Dilshad Garden, Delhi-95 at a monthly rent of Rs. 2600/-.

6. It is very vehemently argued by learned counsel for appellant/husband that the appellant/husband is suffering from an ailment of kidney for which he has already undergone surgery and one surgery is again scheduled for mid December. It is further contended that appellant/husband has to bear his own medical expenses which are exorbitant and beyond his capacity, in such circumstances, the maintenance awarded by the Learned Trial Court is excessive and harsh on the appellant. To support his arguments, learned counsel for the appellant has also filed photocopy of medical documents (OS&R) of the appellant/husband as per which the appellant is to undergo another surgery in mid December.

7. Per contra , it is not disputed by the respondent/wife that appellant is suffering from an ailment of kidney. Rather, the complainant in para 8 and 9 of her complaint has admitted that appellant is suffering from a kidney ailment and that his health is deteriorating day by day. She has also admitted that the appellant has already undergone one kidney surgery in Dr. Ram Manohar Lohia Hospital. However, it is argued on her behalf that she does not have any independent source of income and that she is unable to maintain herself and her minor child.

8. Perusal of photocopy of pass book of the bank account of the appellant/husband reveals that he is drawing a salary of only about Rs. 8,500/ to Rs.9,000/- per month. The passbook also reflects that the appellant/husband is residing at property bearing No. 8C, Pocket-I, Dilshad Garden which is a rented accommodation, taken on rent by the appellant/husband vide rent agreement dated 13.6.2014 at a monthly rent of Rs.2,600/-. It is also evident from the documents placed on record and from the admission of the complainant/wife in her complaint that time and again, the appellant has to shell out substantive amount as medical expenses.

9. Simple mathematics would show that if the appellant/husband has to shell out Rs.5,000/- pm to his wife and the minor child out of monthly income of Rs.9,000/-, he is only left with an amount of Rs.4000/- from which he has to pay the monthly rent of Rs.2,600/- and also bear expenses for his medical treatment including day to day expenses. The learned MM completely lost sight of the fact that the appellant /husband is not expected to beg, borrow or steal to comply with the directions of the Court and to arrange for finances which are beyond his capacity. Learned MM, strangely also ignored the admissions of the complainant/wife made by her in her complaint U/s 12 of the Act.

10. While awarding maintenance, the Court has to keep in mind not only the living expenses of the wife and child but also the living expenses, capacity and day to day needs of the husband. The husband is not expected to spend nothing on himself and survive with no income at all.

11. Taking note of the monthly salary of the appellant/husband and in the peculiar facts and circumstances of the case, I am of the opinion that interest of justice will be met if the complainant/wife and the minor child is granted monthly interim maintenance @ Rs.2000/- pm from the date of filing of petition i.e. 19.6.2015.

12. Resultantly, appeal is partly allowed. Appellant is directed to pay the arrears in two equal installments. Needless to say , any amount which has already been paid by the appellant/husband towards the maintenance to his wife and minor child shall be adjusted.

Order signed and pronounced in the open court on this 17th day of December’ 2015

Hemani Malhotra

ASJ-05 (Central)/THC/Delhi

Was it dengue ? Or dowry death ? In laws Get bail !!

In this case a young wife is supposed to be suffering form dengue and dies from cardio respiratory failure AFTER the husband admits her to a hospital !! Still husband and in laws are accused of dowry death and the pathetic family runs to HC for bail !!

State of marriages in india !!

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Jharkhand High Court

Tabarak Kotwar And Ors vs The State Of Jharkhand on 15 December, 2015

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 4224 of 2015 
1. Tabarak Kotwar @ Tabrak Kotwar 2. Jaffaruddin @ Jabbaruddin Kotwar 3. Modo Khatoon 4. Mobarak Kotwar 5. Momina Khatoon, 6. Asiya Khatoon 7. Abida Khatoon 8. Charka Khan 9. Samsool Khan @ Md. Shamsul Khan @ Samsool Khan.. Petitioners. Versus
The State of Jharkhand... ... ... ... Opp. Party. *******

CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY 
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 For the Petitioners : Mr. Shri Krishna Murari, Advocate. 
For the State : Mr. Hemant Kumar Shikarwar, A.P.P. 
For the Informant : Mr. A.K. Sinha, Advocate. **********
 03/ 15.12.2015 : Heard Mr. Shri Krishna Murari, learned counsel for petitioners, Mr. Hemant Kumar Shikarwar, learned counsel for the State and Mr. A.K. Sinha, learned counsel apearing on behalf of the informant.

The petitioners apprehend their arrest in connection with Kotwali (Pandra) P.S. Case No. 772 of 2015, corresponding to G.R. No. 5339 of 2015 registered for the offence punishable under Section 304(B) of the Indian Penal Code, under section 3/4 of the Dowry Prohibition Act and under section 3 of the Protection of Woman from Domestic Violence Act.

The allegation, which has been leveled against the petitioners in the first information report, is that after the marriage of the daughter of the complainant was solemnized with the petitioner no.1, there was a demand of dowry by some of the accused persons, which resulted into taking the deceased to Imphal by the petitioner no.1, which was the workplace of petitioner no.1.

Allegation had also been leveled that subsequently the deceased had become pregnant and petitioner no.1 has compelled her to abort her child for which some medicines were forcibly administered to her and she was treated in Regional Institute of Medical Sciences, Hospital at Imphal on 20.07.2014. Subsequently, the daughter of the informant had returned back from Imphal and the complainant got her treated at several Hospitals in Ranchi, but ultimately she died on 16.09.2014.

It has been submitted by the learned counsel for the petitioners that the petitioners are husband and in-laws of the deceased, who have been implicated in the present case by the informant, who happens to be the father of the deceased. It has further been submitted that the allegations, which have been leveled against all the petitioners, are general and omnibus in nature.

It has further been submitted that on own showing of the complainant the petitioner no.1 himself had taken the deceased to Imphal and when she was suffering from vomiting the petitioner no.1 had got her immediately treated in Regional Institute of Medical Sciences, Hospital at Imphal on 20.07.2014. Learned counsel further submits that the deceased had died when she was in her parent’s house and, in fact, prior to her death she was admitted in Alam Hospital & Research Centre Pvt. Ltd. at Ranchi and cause of death as mentioned in the death certificate totally falsifies the allegations made in the first information report, in which it has been opined that she died on account of Cardio-respiratory arrest, multiple organ failure and she was also suffering from Dengu positive while she was carrying pregnancy of 3 ½ months.

Mr. Anil Kumar Sinha, learned counsel appearing on behalf of the informant has opposed the prayer for anticipatory bail and has submitted that all the accused persons had with common intention tortured the daughter of the informant for non-fulfillment of demand of dowry. It has also been submitted that the allegation of administering medicine by the petitioner no.1 upon the deceased has been substantiated by the prescription issued by the Doctor treating the deceased in Regional Institute of Medical Sciences, Hospital at Imphal on 20.07.2014, which clearly depicts that the daughter of the complainant was suffering from vomiting and blood was also found present in the same. It has, thus, been submitted that considering the allegations, which have been leveled against the petitioners, none of the petitioners deserves the benefit of anticipatory bail.

The daughter of the complainant had died on 16.09.2014 and the complaint case was filed on 16.10.2014. In the complaint Petition, which has been originally filed the allegations against the petitioner no.1 seems to be specific with respect to administering of medicines for termination of the pregnancy and, in fact, the prescription of the concerned Hospitals do suggest that the daughter of the complainant was suffering from vomiting. Apart from the above, it also appears that the deceased was residing with the petitioner no.1 at Imphal and the incident had taken place there and thereafter she was sent to her parent’s house, where the deceased was treated in several Hospitals and ultimately died in Alam Hospital & Research Centre Pvt. Ltd., Ranchi, on 16.09.2014.

In view of the specific nature of allegation leveled against the petitioner no.1, who happens to be the husband of the deceased, I am not inclined to grant anticipatory bail to the petitioner no.1. Accordingly, the prayer on behalf of the petitioner no.1 for grant of anticipatory bail is rejected.

However, considering the nature of allegation leveled against the other petitioners and since the deceased used to reside separately at Imphal for most of the time with petitioner no.1, her husband, the complicity of these petitioners becomes non-existant.

Moreover the death certificate also reveals that the deceased was suffering from vomiting and death was on account of Cardio-respiratory arrest, multiple organ failure and Dengue.

Regard being had to the aforesaid facts, I am inclined to allow this anticipatory bail application so far as petitioner nos. 2 to 9 are concerned. Accordingly, the petitioner nos. 2 to 9, above named, are directed to surrender in the Court below within a period of three weeks from today and on their so surrendering they shall be released on bail on furnishing bail bonds of Rs.10000/- (Rupees Ten Thousand) each with two sureties of the like amount each, to the satisfaction of the learned Chief Judicial Magistrate, Ranchi, in connection with Kotwali (Pandra) P.S. Case No. 772 of 2015, corresponding to G.R. No. 5339 of 2015 , subject to the terms and conditions as enumerated under section 438(2) of the Code of Criminal Procedure.

(Rongon Mukhopadhyay, J)

Sharma/-

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