Monthly Archives: January 2016

#498a #406 case because in laws wanted me to study further !! #GujHC #Quashes #fake cases, orders return of #passports

Missuse of women friendly laws is a known disease

Sometimes the missuse of laws Reaches epic and crazy proportions

This is one such case in this case a woman has filed criminal complaint against the husband and in-laws

This complaint is supported by vague allegations

In addition to the vague allegations she also claims that in-laws forced her to study more !!

Study more ?? really lady !!, is that cruelty ?? should you take your in-laws to the Police and impound their passports just because they requested you to study more !!!

The honourable High Court quashes the case and sets the falsely accused in laws free, alas after a few years of misery


Gujarat High Court

Kumar Kamalbabu Bhatt & 2 vs State Of Gujarat & on 22 January, 2016

R/CR.MA/19394/2014

ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 19394 of 2014

KUMAR KAMALBABU BHATT & 2….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)

Appearance:

MR KASHYAP R JOSHI, ADVOCATE for the Applicant(s) No. 1 – 3

DS AFF.NOT FILED (R) for the Respondent(s) No. 2

MR SANDEEP N BHATT, ADVOCATE for the Respondent(s) No. 2

PUBLIC PROSECUTOR for the state

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 22/01/2016

ORAL ORDER

  1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report dated 11th November, 2014 being C.R. No. I-57 of 2014 registered with the Mahila Police Station, Ahmedbad for the offence punishable under Sections 498A, 323, 506(2) read with Section 114 of the Indian Penal Code.
  2. The case of the prosecution is as under:-
  3. The first informant got married with the applicant No.1 in the year 2010 to be precise on 14th December, 2010. It appears that the first informant holds a degree of Bachelor of Engineering. As usual, soon after the marriage, matrimonial problems cropped up between the husband and the wife. It is alleged that the applicants herein who are none other than the husband, father-in-law and mother-in-law respectively of the first informant started harassing the first informant. I take notice of a very curious allegation in the First Information Report that the in-laws forced the daughter-in-law to do her post graduation i.e. Master of Engineering. It appears that the first informant did complete her Masters in Engineering. All other allegations are quite vague and general in nature. They are nothing but an outcome of the usual wear and tear in the marriage.
  4. For some reason or the other, the first informant thought fit to take up the issue with the Police and left the matrimonial home on 3rd March, 2013. She thought fit to lodge the FIR on 11th November, 2014.
  5. I am told that the husband has preferred a petition for divorce before the Family Court at Rajkot and the proceedings are pending. Those proceedings may proceed further in accordance with law.
  6. However, having regard to the nature of the allegations, I am of the view that no case worth the name is made out to attract Section 498A of the Indian Penal Code. I had an occasion to consider almost an identical problem between the husband and the wife, in the case of Dipakbhai Ratilal Patel and other vs. State of Gujarat reported in 2014 (3) GLH 788. In the said case, I explained why Police should not be involved in these type of matrimonial problems because the involvement of the Police would put an end to the marriage, rather than giving an opportunity to the couple to reunite. I may quote the observations made by this Court from paras 16 to 33 as under:-

“16. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely

(i) to give effect to an order under the Code,

(ii) to prevent abuse of the process of Court, and

(iii) to otherwise secure the ends of justice.

17. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice.

In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

18. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:

“6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases.

The illustrative categories indicated by this Court are as follows:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

20. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.

21. A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.

22. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under :

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, ‘cruelty’ means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31.The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law.It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this HC-NIC Page 7 of 14 Created On Fri Jan 29 00:13:42 IST 2016 R/CR.MA/19394/2014 ORDER judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law and Justice to take appropriate steps in the larger interest of the society.”

23. In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. They are reproduced below:-

“6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498- A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge- sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not HC-NIC Page 8 of 14 Created On Fri Jan 29 00:13:42 IST 2016 R/CR.MA/19394/2014 ORDER only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. …. …..”

24. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-

“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their young days in chasing their cases in different courts.
The view taken by the judges in this matter was that the courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.”

25. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.

26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory HC-NIC Page 10 of 14 Created On Fri Jan 29 00:13:42 IST 2016 R/CR.MA/19394/2014 ORDER bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.

27. Mr. Raval, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to Mr. Raval, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to Mr. Raval, at the best, the applicants Nos. 2 to 6 could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

28. Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

“(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

29. I am of the view that the category 7 referred to above should be taken into considerationand applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by Mr. Raval, the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.

It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court “often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

30. More importantly, the respondent No.2 has not explained as to why it took more than four years for her to register the FIR. Is it so because the husband initiated proceedings for divorce in the year 2006. My attention has been drawn by Mr. Patel, the learned Advocate appearing on behalf of the applicants to a notice dated 17th April, 2008, issued by the respondent No.2, through her advocate to the petitioner No.1, wherein there is not a whisper of any allegations against any of the relatives of the husband, which includes the applicants Nos. 2 to 6.

31. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary.

However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.

32. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398 observed as under:-

“When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.”

When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health ……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.”

33. What constitutes cruelty in matrimonial matters has been well explained in American Jurisprudence 2nd edition Vol. 24 page
206.

It reads thus:-
“The question whether the misconduct complained of constitute cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts.

The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”

  7. In view of the above, this application succeeds and is hereby allowed. The First Information Report being C.R. No. I-57 of 2014 lodged with the Mahila Police Station, Ahmedbad is hereby ordered to be quashed. I am told that the Passports are with the Investigating Officer. The Investigating Officer shall hand over the Passports to the applicants at the earliest.

(J.B.PARDIWALA, J.)

Manoj

daughtr in law wid own biz takes over in law’s house, files fake DV etc! HC comes to elders’ rescue


A very useful case of senior citizen who with to evict their DIL from their own hard earned / own property !!

A daughter in law married to a rich NRI and lives with him at USA for many years. On their return to India and his taking up employment at Bangalore, she stays away from him and he is paying her upwards of 1 lakh p.m. for maintenance. She then goes and sqats at her elderly father / mother in laws property, locks the rooms and files fake DV complaints on them!! These very same elders are also paying for the education of the grandchildren (her own children) at the best schools. In spite of all this she does not want to let them live in peace at the ripe old age of 75 (MIL) and 79 (FIL). Finally matter reaches HC who try mediation, who even propose alternate residence for the DIL who refuses everything ! Finally P& H HC orders eviction of daughter in law. refuses to grant her ANY rights in the household as a shared household. Batra and Batra referred. shared household discussed.

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CWP No.18009 of 2015 (O&M)

Date of decision: January 25, 2016

Hamina Kang …Petitioner

Versus

District Magistrate (U.T.), Chandigarh and others …Respondents

Coram: HON’BLE MR.JUSTICE HARINDER SINGH SIDHU

Present: Dr.P.K.Sekhon, Advocate for the petitioner.

Mr.M.L.Saggar, Sr.Advocate with Mr.Gaurav Grover, Advocate for respondents No.2 and 3.

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HARINDER SINGH SIDHU, J.

This petition has been filed praying for directions to quash the order dated 6.8.2015 passed by respondent No.1 under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the "2007 Act") directing the petitioner to vacate house No.112 , Sector 9-B, Chandigarh within ten days from the passing of this order.

The petitioner is the daughter-in-law of respondents No.2 and 3, being the wife of their son Kanwar Bir Singh Kang. The petitioner was married to Kanwar Bir Singh Kang on 3.5.1992 in accordance with Sikh rites. The marriage was registered on 11.5.1992 with the Registrar of Marriages, UT Chandigarh. After marriage, the petitioner stayed for some time at the matrimonial home i.e. H.No.112, Sector 9, Chandigarh. Thereafter the petitioner and her husband alongwith respondents No.2 and 3 (who are U.S. Citizens) went to the United States of America. While in the U.S, three daughters were born to the petitioner, namely Amber Kang, (aged about 19 years), Summer Kang (aged about 15 years) and Joon Kang (aged about 15 years). In the year 2005 the husband of the petitioner who was working in a multinational company in the U.S. , got posted in India. Along with him, the petitioner and her three daughters also shifted to India. Since then the petitioner is residing in rear portion of H.No.112, Sector 9, Chandigarh which is a six kanal house. The petitioner claims to have spent considerable amount in furnishing the house.

Respondent No. 2 and 3 who had been residing in U.S.A came to India in November, 2014. It is alleged that due to differences between the petitioner and her husband, respondent no.2 started harassing the petitioner so as to compel her to leave the matrimonial house, regarding which the petitioner filed a complaint to the police on 5.11.2014. After spending some days in Chandigarh, in November 2014, respondent No.2 went back to USA. Respondents No.2 and 3 again came to India in the month of April 2015, where after the harassment and humiliation of the petitioner resumed regarding which she filed complaints Annexure P-4 to P-6.

Apprehending ouster from the matrimonial home, the petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred to as the "2005 Act") before Judicial Magistrate, Chandigarh on 27.4.2015 against respondents 2 and 3 alleging that after coming to India, they have, in connivance with their son (husband of the petitioner), started harassing and humiliating the petitioner with a view to forcibly dispossess her from her matrimonial home. Learned JMIC, Chandigarh vide order dated 28.4.2015 directed that the petitioner be not dispossessed from H.No.112, Sector 9-B, Chandigarh till the next date. Thereafter, the order has been continued from time to time and status quo regarding possession has been directed to be maintained.

It is alleged that as a counter blast to the aforesaid application filed by the petitioner, respondents No.2 and 3 filed CWP No.9021 of 2015 praying for direction to the police of U.T. Chandigarh to protect their life and liberty at the hands of the petitioner and her mother. During pendency of this writ petition, respondents No.2 and 3 filed an application dated 8.6.2015 under section 21 and 22 of the 2007 Act read with Rule 19 of the Chandigarh Maintenance of Parents and Senior Citizens Rules, 2009 (hereinafter referred to as the "2009 Rules") for protection of their life and property i.e. the residential H.No.112, Sector 9, Chandigarh at the hands of the petitioner and her mother Smt. Surender Kaur. It was claimed therein that house No.112, Sector 9- B, is wholly owned by respondent No.2. Fifty per cent share in respect of this plot was transferred in his favour on the basis of registered Will dated 23.1.1991 of his late father Shri Ajmer Singh.

The remaining 50 per cent of this house held by Smt. Jagir Kaur (wife of late Ajmer Singh and mother of respondent No.2) was transferred in his favour vide letter dated 9.5.2002 on the basis of court decree dated 24.7.1996. It was stated in the application that Respondents No.2 and 3 were earlier working in USA and decided to shift to H.No.112, Sector 9, Chandigarh in the evening of their life as they were not keeping too well and as domestic help was very expensive in the U.S. Ever since they started residing in the said house, they have been harassed by the petitioner and her mother who has come to stay with her. The petitioner filed false complaints against them on two occasions i.e. 15.4.2015 and 24.4.2015 and even called the police and abused them in the presence of the Police. On 3.5.2015 she forcibly locked some of the rooms on the ground floor blocking their access, besides, false applications were made against the domestic help of respondents so that she may refuse to work for them. The driver of respondents No.2 and 3, Ganga Ram was involved in a false case. They accordingly prayed that the petitioner be prohibited to interfere in their peaceful possession.

It is the case of the petitioner that she had denied all the allegations made against her by the respondents in their application, but without considering the same, the District Magistrate Chandigarh vide the impugned order directed the petitioner to vacate the house No.112, Sector 9-B, Chandigarh within ten days. It is this order, which has been assailed in the instant writ petition.

In the written statement filed by respondents No.2 and 3, they have denied all the allegations regarding harassment and victimization levelled by the petitioner. Rather, to the contrary they have been the victim of false allegations and complaints made by the petitioner. Giving details of what the respondents have done for the family of the petitioner it is stated that the three daughters of the petitioner were got admitted in Woodstock Residential School Mussoorie, one of the most prestigious schools in India. Respondents No.2 has contributed about 50 lakhs towards their education. Respondents No.2 has also paid more than Rs.12 lakhs to the petitioner and her husband. The eldest daughter of the petitioner Ms. Amber Kang, is presently studying in Foothill College, Palo Alto California, USA. Respondent No.2 has created US Government Approved Fund of 26,161 US dollars to pay for the college fee of all his grand daughters. He has paid the college fee of 1708 US dollars for academic year 2014-15. The allegations that there are differences between the petitioner and her husband have been denied. It has been stated that the petitioner is being provided an amount of Rs.1,32,000 per month by her husband for staying at Chandigarh. It is further stated that the husband of the petitioner is earning about Rs.6.00 lakhs per month and is presently Chief Executive Officer and Managing Director of subsidiary of an American Company incorporated in India namely TrimedicX in Bangalore. A large estate `Shanti Bagh’ spreading over an area of eight acres has been purchased at Ranthambhore near Swai Madhopur, Rajathan in the name of the petitioner. The two younger grand-daughters of the petitioner stay in the boarding school at Mussorie and stay in the petitioner’s estate in Rajasthan during their holidays. The eldest daughter is studying in USA. The petitioner is also running a business alongwith her brother namely Shri Sandeep Singh Khatra in the name of `Swai Madhopur Eco- Tourism Private Limited, Ranthambhore’. It has been denied that the petitioner has been residing in the rear portion of the house since 2005. It has been asserted that the petitioner and her husband were always welcomed during their visits to Chandigarh by respondents No.2 and 3 in the house owned and possessed by them. It has been stated that all the electricity bills are being paid by respondents no.2 and 3. The house was on monthly rent of Rs.40,000/- which was got vacated by respondent No.2 for their stay during their visits to India. It is alleged that when the petitioner, her mother and husband became aware that respondents No.2 and 3 are intending to permanently reside in the house and they have shifted their household goods from USA to Chandigarh, they started harassing them by making false complaints against them. The answering respondents had brought their households goods in November 2014, thereafter respondent No.2 went to USA to get his dental treatment and returned in March 2015.

It is stated that respondent No.2 is aged about 79 years, is a diabetic, walks with a cane and is suffering from high blood pressure. Respondent No.3 is a doctor by profession, aged about 75 years and is suffering from `Failed Spine Surgery Syndrome’ and is currently under treatment in USA.

Assailing the order of the Ld. District Magistrate, Dr. Puneet Kaur Sekhon, Learned counsel for the petitioner has raised the following substantial arguments:-

1. Jurisdiction under the 2007 Act can be invoked only by "Senior Citizens". Respondents No. 2 and 3 are U.S. Citizens. As they are not "Citizens of India", they are not "senior citizens" within the meaning of the term in Section 2 (h) of the 2007 Act.

2. An order under the provisions of the 2007 Act cannot be passed to render the order passed under the 2005 Act nugatory. The provisions of the 2007 Act cannot be used at cross purposes with the 2005 Act and to annihilate the rights flowing therefrom.

3. Under the 2007 Act and the 2009 Rules eviction order can be sought only against son, daughter or legal heirs and not against the daughter-in-law.

4. There is concealment of material facts/documents in the application filed by respondents No.2 and 3 under the Act which dis-entitles them from seeking any relief. They did not disclose that they were U.S. Citizens, and that had filed CWP No.9021 of 2015 seeking similar relief and also the fact that status quo orders had been earlier passed in favour of the petitioner under Section 12 of the 2005 Act On the other hand, Sh. Saggar Ld. Senior Counsel for the respondents has defended the impugned order.

I have heard Ld. Counsel for the parties and perused the record.

The first submission of Ld. Counsel for the petitioner is that the application under Sections 21 and 22 of the 2007 Act filed by respondents 2 and 3, who admittedly are U.S. Citizens is not maintainable. It has been argued that such an application can be filed only by a "Senior Citizen" which term as per its definition in Section 2(h), means a person who is a citizen of India and is of the age of sixty years or above.

In order to appreciate this argument, a reference to the relevant provisions of the 2007 Act and the 2009 Rules is necessary.

The Preamble to the 2007 Act states that it is an "An Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto"

As per Section 2(d) "parent" means father or mother, whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen.

Section 2(h) defines "Senior Citizen" as under: "senior citizen" means any person being a citizen of India, who has attained the age of sixty years or above;

It is clear that there is no requirement for the parent to be a citizen of India. A senior citizen is a person who is a citizen of India and is of the age of sixty years or more.

Since the requirement of being a citizen of India is only a part of the definition of a senior citizen, a father or mother, whatever his or her nationality would be a `parent’. Thus, a person who is a parent would be entitled to the benefits of the Act which are conferred on parents, irrespective of his or her age or nationality.

Sections 21 and 22 are the relevant provisions of the Act which fall in Chapter V ‘Protection of Life and Property of Senior Citizen.’

"21. Measures for publicity, awareness, etc., for welfare of senior citizens.–The State Government shall, take all measures to ensure that–

(i) the provisions of this Act are given wide publicity through public media including the television, radio and the print, at regular intervals;

(ii) the Central Government and State Government Officers, including the police officers and the members of the judicial service, are given periodic sensitization and awareness training on the issues relating to this Act;

(iii) effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted.

22. Authorities who may be specified for implementing the provisions of this Act.–(1) The State Government may, confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.

(2) The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens."

It is true that the heading of Chapter V and the aforesaid Sections make a mention only of `senior citizens’. But the 2009 Rules framed thereunder, which have been invoked by respondent 2 and 3 and in terms of which the impugned order has been passed are in relation to both Parents and Senior Citizens. These rules outline the procedure for eviction from property/residential building of Senior Citizen/ Parent. Thus, on its plain language, these Rules can be invoked by a `Parent’, even though he may not be a `Senior Citizen’ as defined in the Act.

The relevant Rules are reproduced below:


"[3(1)Procedure for eviction from property/residential building of Senior Citizen/Parent.-

(i) Complaints received (as per provisions of the Maintenance of Parents and Senior Citizens Act, 2007) regarding life and property of Senior Citizens by different Departments i.e. Social Welfare, Sub Divisional Magistrates, Police Department, NGOs/Social Workers, Helpline for Senior Citizens and District Magistrate himself, shall be forwarded to the District Magistrate, Union Territory, Chandigarh for further action.

(ii) The District Magistrate, Union Territory shall immediately forward such complaints/applications to the concerned Sub-Divisional Magistrates for verification of the title of the property and facts of the case through Revenue Department/ concerned Tehsildars within 15 days from the date of receipt of such complaint/application.

(iii) The Sub-Divisional Magistrates shall immediately submit its report to the District Magistrate for final orders within 21 days from the date of receipt of the complaint/application.

(iv) If the District Magistrate is of opinion that any son or daughter or legal heir of a senior citizen/parents are in unauthorized occupation of any property as defined in the Maintenance and Welfare of parents and Senior citizens Act, 2007 and that they should be evicted, the District Magistrate-cum-Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause as to why an order of eviction should not be issued against them/him/her.

(v) The notice Shall-

(a) specify the grounds on which the order of eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the property/premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issued thereof.

(c) The District Magistrate shall cause the notice to be served by having it affixed on the outer door or at some other conspicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.

3(2) Eviction Order from property/residential building of Senior Citizen/parents-

(i) If, after considering the cause, if any, shown by any person in pursuance to the notice and any evidence he/she may produce in support of the same and after giving him/her a reasonable opportunity of being heard, the District Magistrate is satisfied that the property/premises are in unauthorized occupation, the District Magistrate or other officer duly authorized may make an order of eviction, for reasons to be recorded therein, directing that the property/residential building shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises;

(ii) The District Magistrate may also associate NGOs/Voluntary organizations/social workers working for the welfare of senior citizens for the enforcement of orders.

(3) Enforcement of Orders.-

(i) If any person refuses or fails to comply with the order of eviction within thirty days from the date of its issue, the District Magistrate or any other officer duly authorized by the District Magistrate in this behalf may evict that person form the premises in question and take possession;

(ii) The District Magistrate, U.T. Chandigarh shall have powers to enforce the eviction orders through Police Department.

(iii) The District Magistrate, U.T. Chandigarh further handover the property/premises in question to the concerned Senior Citizens/Parents.

(iv) The District Magistrate, U.T. Chandigarh shall forward a monthly report of such cases to the Social Welfare Department by 7th of the following month for review of such cases in the State Council for Senior Citizens constituted under the Maintenance and Welfare of Parents and Senior citizens Act, 2007 and Rules of 2009 framed under the said Act under the Chairmanship of Secretary, Social Welfare, Chandigarh Administration."

Clearly, an application for protection and eviction by respondents No. 2 and 3, the old and aged parents (79 and 75 years respectively), from their property even though they are not citizens of India, is maintainable.

The respondents are not natives of U.S. They were Indian Citizens by birth. They have had their education from India, getting the Engineering and MBBS degree respectively from Punjab Engineering College, Chandigarh and Government Medical College Amritsar. Respondent No. 2 served the Indian Army for ten years from 1959 to 1969 and went to USA after getting discharge from the Army. It is thereafter that they acquired U.S. Citizenship. Having retired from their jobs, they now want to settle in India. They are presently registered as `Overseas Citizens of India'. They cannot be denied the benefit of the 2007 Act.

It is noteworthy that there is no challenge to the 2009 Rules which are in harmony with the objective and purpose of the 2007 Act which is to provide a simple, inexpensive and speedy remedy for maintenance and welfare of parents and the elderly and for protection of their life and property. This is reflected in the `Statement of Objects and Reasons' of the Act which is reproduced below:


"Statement of Objects and Reasons:

Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time- consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.

2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting-up old-age homes for providing maintenance to the indigent older persons.

The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property.

3. The Bill, therefore, proposes to provide for:-

(a) appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens;

(b) providing better medical facilities to senior citizens;

(c) for institutionalisation of a suitable mechanism for protection of life and property of older persons;

(d) setting up of oldage homes in every district.

4. The Bill seeks to achieve the above objectives."

Keeping in view the aforesaid objectives, it is inconceivable that the Parliament could have intended to deny the benefits of Chapter V of the Act to the aged parents, merely because they were not Citizens of India. Anyway, as already stated above, a plain reading of the 2009 Rules does not support such a contention.

Ld. Counsel has next argued that in terms of Rule 3(1) of the 2009 Rules, eviction can be ordered only against the son, daughter or legal heirs and not against a daughter-in-law. In this context reference has been made to Rule 3(1)(iv) which is as under:

"If the District Magistrate is of opinion that any son or daughter or legal heir of a senior citizen/parents are in unauthorized occupation of any property as defined in the Maintenance and Welfare of parents and Senior citizens Act, 2007 and that they should be evicted, the District Magistrate-cum-Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause as to why an order of eviction should not be issued against them/him/her."

The argument is that as only son, daughter or legal heir of the parent/ senior citizen is mentioned herein, hence eviction order can be passed only against any of them and against no other.

This argument of the Ld. Counsel is also without merit as would be clear from a consideration of Rules 3(1), 3(2) and 3(3) which outline the procedure for eviction and which have already been reproduced above.

No doubt, the first part of Rule 3(1)(iv) , which relates to the opinion of the District Magistrate about the property being in unauthorized occupation, makes a mention only of son or daughter or legal heir of a senior citizen/ parent, but from this alone it cannot be concluded that eviction orders can be ordered only against son, daughter or legal heir. The other provisions of these Rules clearly militate against such a conclusion.

First, the latter part of Rule 3(1)(iv) itself, which is in relation to issuance of show cause notice is not limited to son, daughter or legal heir, but requires issuance of such notice to "all persons concerned to show cause why an order of eviction should not be issued against them/him/her".

Similarly, as per Rule(3)(1) (v)(b) such notice shall "require all persons concerned, that is to say, all persons who are or may be, in occupation of, or claim interest in, the property/ premises" to show cause against the notice.

In Rule 3(2) (i) the Eviction order from the property/ residential building of Senior Citizen/ Parent may be passed "directing that the property/ residential building shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof."

Rule 3(3)(i) which deals with enforcement of eviction orders, again is that `if any person refused or fails to comply with the order of eviction', then the District Magistrate or any person on his behalf `may evict that person from the premises in question and take possession' Clearly, in terms of the above provisions, the eviction order can be passed against any person who is in unauthorized occupation of the property of the Senior Citizen/ Parent. The first part of Rule 3 (1)(iv) which mentions only son or daughter or legal heir cannot control the above referred specific provisions and limit their operation and effect.

This Court in Balbir Kaur Vs. Presiding Officer-cum- SDM (CWP No.15477 of 2014 decided on June 29, 2015) after an analysis of various provisions of the 2007 Act held that the exercise of the right under Section 22 regarding protection of right of life or property of a Senior citizen has been conferred irrespective of the fact whether the person who threatens the life or property is related to the senior citizen or not. An application under Sections 21 and 22 against the daughter-in-law was held to be maintainable.

Ld. Counsel for the petitioner next argued that impugned order of eviction is unsustainable in view of the rights of the petitioner to residence etc. in terms of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "2005 Act".) In this context, Ld. Counsel referred to the fact that before the filing of the application by respondents No. 2 and 3 under the 2007 Act, the petitioner had already filed an application under Section 12 of the 2005 Act and was granted an order for stay of dispossession from the premises claiming that to be her matrimonial home since 2005.

She has placed strong reliance on a decision of this Court in Major Harmohinder Singh Vs. State of Punjab and others 2014(5) RCR 693 to contend that the provisions of the 2007 Act cannot be used to annihilate the rights conferred under the 2005 Act.

Mr. Saggar, Ld. Senior Counsel for the respondents has argued that the house in question is the separate property of the respondent No. 2, half share whereof devolved to him by the Will of his father Late Sh. Ajmer Singh dated 21.11.1991 and the other half was transferred in his name on 9.5.2002 in terms of Court decree dated 24.7.1996. He states that neither the husband of the petitioner (son of respondents No. 2 and 3) nor the petitioner have any right, title or interest in this property. He relies on the decisions of the Hon'ble Supreme Court in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 and Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649 to contend that the right of residence of a daughter-in-law claimed in terms of Sections 17 and 19 of the 2005 Act does not extend to a house belonging to the father-in-law or mother-in-law, in which the husband has no right, title or interest. He has further placed reliance on a decision of a Division Bench of this Court in CWP No.25407 of 2015 titled "Gurpreet Singh vs. State of Punjab and others" decided on 1.12.2015, to contend that a son and his family is a mere licensee living in the property owned by his father on the basis of concession. The license stands terminated, the moment the licensor conveys a notice of termination of the license. Once a senior citizen makes a complaint to the District Magistrate against his son to vacate the premises, on which he is a licensee, such summary procedure will enure to the benefit of the senior citizen.

As against this Ld. Counsel for the petitioner has placed reliance on the decisions of the Delhi High Court in Navneet Arora vs. Surender Kaur and others, 2014 LawSuit (Del) 3411 and Preeti Satija Vs. Raj Kumari and another 2014(2) RCR (Civil) 8 to contend that if a couple lives as member of joint family in domestic relationship with relatives of the husband in a premises owned by such relatives, it would enable the wife to claim the right of residence as it would fall within the meaning of `shared household' under Section 2(s) of the 2007 Act, irrespective of the fact whether the wife or her husband has any right, title or interest in the shared household.

In the light of these pleas, the question that squarely arises for consideration is whether the impugned order is sustainable in view of the rights claimed by the petitioner under the 2005 Act?

The fact that respondent No.2 is the owner of the house is not disputed. Ld. Counsel for the petitioner only states that the house is Joint Hindu Family property and the petitioner along with her three daughters has filed a civil suit for declaration to the effect that they being members of the Joint Hindu Family are owners in possession to the extent of their shares in all the Joint Family property including House No. 112, Sector 9-B, Chandigarh. The said suit is pending.

It is well settled that the apparent state of affairs shall be taken as real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property. The onus would be on the one, who pleads otherwise. [Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649.) Further, the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. [Shrinivas Krishnarao Kango v. Narayan Devji Kango AIR 1954 SC 379, Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521].

On the aforesaid principle, for the purposes of these proceedings, the house in question has to be treated to be the separate property of respondent No. 2 and it cannot be considered to be Joint Family property in which the husband of the petitioner or the petitioner has any right, share or interest.

Now, the question is, whether in this background does the petitioner have any right to residence in the house in question in terms of the 2005 Act ?

The term shared household is defined in the 2005 Act, as under:

"Section 2. Definitions

(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;"

The Hon’ble Supreme Court in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169, held that the wife could claim the right of residence in terms of Section 17(1) of the Act, only in a `shared household’ and a `shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. It was held that the house which was the exclusive property of the mother- in-law could not be said to be a `shared household’ entitling the daughter-in-law to claim a right of residence therein. The Hon’ble Court negatived the contention on behalf of the daughter-in-law that as per the definition, `shared household’ would include a household where the aggrieved person lives or at any stage had lived in a domestic relationship. It was observed that if such submission is accepted it would lead to chaos, because in that event every place where the husband and wife had resided would be a shared household. The Hon’ble Court also observed that the definition of `shared household’ in Section 2(s) appears to be the result of clumsy drafting and that it had given it a sensible interpretation.

The pertinent observations of the Hon’ble Court are as under:



"24. Learned counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.

25. We cannot agree with this submission.

26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

27. It is well settled that any interpretation which leads to absurdity should not be accepted.

28. Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s (sic) in-laws or other relatives.

29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a "shared household".

30. No doubt, the definition of "shared household" in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society."

This decision has been reiterated by the Hon’ble Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649. In this case, the Hon’ble Supreme Court adverted to the legal position that in terms of Sections 18 and 19 the Hindu Adoption and Maintenance Act, 1956, liability in regard to maintenance of wife is upon her husband and only on his death does it become the liability of the father-in-law. In the context of the 2005 Act, it was observed that it provided a higher right in favour of wife, which extends to the joint properties in which the husband has a share. It was held that an order of maintenance against the husband can be executed only against the husband and his properties but not against the property of her mother-in-law.

The relevant observations in this context are as under:

"27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.

28. Interpreting the provisions of the Domestic Violence Act this Court in S.R. Batra v. Taruna Batra held that even a wife could not claim a right of residence in the property belonging to her mother-in-law, stating: (SCC p. 173, paras 17-19) "17. There is no such law in India like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.

18. Here, the house in question belongs to the mother-in-law of Smt Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt Taruna Batra cannot claim any right to live in the said house.

19. Appellant 2, the mother-in-law of Smt Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement."

Following these decisions, different High Courts have ruled that a residence belonging to the mother-in-law or father-in-law would not be a `shared household’ within the meaning of Section 2(s) of the 2005 Act and that a daughter-in-law would have no right of residence therein in terms of Section 17(1) of the 2005 Act.

Following cases may be usefully referred to : Ekta Arora vs. Ajay Arora and another, 2015 AIR (Delhi) 180, V.P.Anuradha vs. S.Sugantha alias Suganthi and others, 2015(4) RCR (Criminal) 631 and A.R.Hashir and others vs. Shima and others, 2015(5) RCR (Civil) 35.

The Delhi High Court in two decisions which were relied upon by the Ld. Counsel for the petitioner has distinguished the aforementioned decisions of the Hon’ble Supreme in the matter of the restricted meaning given to `shared household’ as not including a property wherein the husband does not have any right, title or interest. In Navneet Arora’s case(supra), the decision of the Hon’ble Supreme Court in S. R. Batra’s case was explained as having been rendered in the fact situation obtaining therein where Taruna Batra (the aggrieved daughter-in-law) and her husband Amit Batra had been residing on the first floor, whereas the mother-in- law, (the owner of the house in question) along with her husband were residing on the ground floor. The Court held that they were not residing as members of a `shared household’ as understood in the legalistic sense as the residence and kitchen were separate. It was concluded that S.R. Batra’s case is only an authority for the proposition that under the 2005 Act, a wife is precluded from claiming the right of residence in a premises, not owned by the husband, where she has lived with her husband separately, but not as a member of the `joint family’ along with the relatives of the husband who own the premises. But if the couple live with the relatives of the husband as members of `joint family’ along with the relatives of the husband in premises owned by such relatives of the husband, then such residence would fall within the meaning of `shared household’ giving the wife the right of residence therein irrespective of the fact whether her husband has any right, title or interest therein. It was explained that living as `joint family’ meant living under one roof and having a common kitchen.

In Preeti Satija’s case (supra), also the decisions in S.R. Batra and Vimalben Ajitbhai Patel, were held to have been rendered in a different context and it was observed that these decisions did not decide the question that despite the definition of `shared household’ enabling a wife the right of residence in premises not owned by the husband, she could not claim to live there.

It needs to be noted that in both these cases Special Leave Petitions have been filed which are pending. (Civil Appeal No.9723 of 2014 and SLP (Civil) CC No.SC-14416/2015).

Having thoughtfully considered the matter, I find it difficult to agree with the view of the Delhi High Court that the observations of the Hon’ble Supreme Court regarding `shared household’ have to be read as being limited to the fact situation obtaining in those cases. The Hon’ble Supreme Court in S.R. Batra’s case took note of the definition of `shared household’ in Section 2(s) and the rights under Section 17 and 19 of the 2005 Act and negatived the contention of the wife that a `shared household’ would include a household where the person aggrieved lives or had lived at any stage in a `domestic relationship’. It held that such an interpretation besides being absurd would lead to chaos. It also concluded that the definition of `shared household’ was not happily worded and that it had given it a sensible interpretation.

Thus, it is difficult to agree that in S.R. Batra’s case the Hon’ble Supreme Court has not interpreted the term `shared household’ and that the decision cannot be relied on in a different fact situation. More so, when the observations were cited with approval by the Hon’ble Supreme Court in the subsequent case of Vimlaben Ajitbhai Patel (supra) In this context it will be useful to refer to a decision of the Division Bench of the Kerela High Court in A.R.Hashir’s case (supra). The Division Bench over-ruled the decision of the Learned Single Judge, which while distinguishing S.R.Batra’s case had held that if a woman along with her husband had stayed in a particular house either belonging to her mother-in-law or father-in-law after her marriage and if the marriage was arranged by the parents, it could be treated as a `shared household’ giving the wife a right to residence. The Division Bench observed that when the Supreme Court has laid down the principles based on interpretation of the definition of the Statute, High Court is not entitled to tinker with that interpretation and deviate from the dictum laid down by the Supreme Court.

I am in agreement with the aforesaid view.

Accordingly, it is to be held that the house in question which is owned by respondent No. 2 (father-in-law of the petitioner ) is not a "shared household" in which the petitioner has any right of residence which can be enforced under the 2005 Act.

This being the position, no question of the 2007 Act being used at cross purposes with the 2005 Act arises in this case.

Thus, the judgment in Harmohinder Singh’s case is not relevant. In that case ejectment of the divorced wife and sons was being sought by the husband under the 2007 Act regarding which he had also filed a suit. It is settled that even a divorced wife is to be protected against her husband by a provision for maintenance which includes a right of residence. Such a right could undeniably be enforced under the 2005 Act. It was in this context that the Hon’ble Court observed that the 2007 Act cannot be used at cross purposes with and to annihilate the rights available under the 2005 Act. Such is not the position in the present case, where no right of the petitioner under the 2005 Act is being sought to be nullified by the 2007 Act.

Similarly, the judgment in Natasha Sood vs Chandigarh Administration 2015 (4) PLR 521, is distinguishable. In that case, there was no pleading or evidence that the house in question belonged to the father-in-law or mother-in-law. It was held that as the question as to whether the house in question is a `shared household’ or not, was yet to be determined, hence the order for ejectment passed under the 2007 Act was quashed. In the present case it has already been concluded that the house is question is not `shared household’ qua the petitioner.

On the issue of non-disclosure, in my view, the fact that respondents No. 2 and 3 in their application have not made a specific mention regarding them having filed CWP No. 9021 of 2015 seeking relief of protection and the order dated 27.4.2015 passed by the JMIC on the application of the petitioner under the 2005 Act directing respondents No. 2 and 3 not to dispossess the petitioner from the house, cannot be a ground to reject their application. These facts were highlighted by the petitioner in her reply to the application and have been noticed by the Ld. District Magistrate in the impugned order. Hence it cannot be concluded that the impugned order has been procured by fraud by the respondents.

Apart from the legal position, the facts of this case need to be noted. It is not disputed that the husband of the petitioner is employed as Chief Executive Officer-cum-Managing Director of subsidiary of an American Company. The respondents claim that he is earning about Rs.6 lacs per month, though the petitioner claims that she is not aware of the correct figure of salary of her husband, as she is not having good relations with him. However, it has not been disputed that the petitioner is being provided an amount of Rs.1,32,000/- by her husband for her stay at Chandigarh. The petitioner is also in possession of a large estate `Shanti Bagh’ spreading over an area of eight acres at Ranthombore near Swai Madhopur (Rajasthan), which the respondents claim has been purchased for the petitioner by her husband, but as per the petitioner the said estate is a part of her `Istridhan’ as she asserts that the money to purchase the same was provided by her parents. It is also not denied that the petitioner is running a Company by the name of `Swai Madhopur Eco Tourism Pvt. Ltd. Ranthambore’ along with her brother, though the petitioner claims it is not doing good business.

The respondents in their written statement have annexed news reports showing the participation of the petitioner in a trade fair at Pragati Maidan, where, she was a part of group of four women selected by the Chandigarh Administration to exhibit their handicrafts at the Chandigarh Pavilion. The petitioner herself in her complaint dated 5.11.2014 (Annexure P-3) had referred to her being chosen by the Director of Industries Department, Chandigarh to represent Chandigarh in International Trade Fair, Pragati Maidan, New Delhi from 14.11.2014 to 17.11.2014.

Respondents No.2 and 3 have placed on record details of the amount spent by respondent No.2 towards providing education to their three grand-daughters (daughters of the petitioner) which amount is substantial and appears to cater to their entire educational expenses.

Respondent No.2 is aged about 79 years and he is stated to be a diabetic, walks with a cane and is suffering from High Blood Pressure. Respondent No.3 is a doctor by profession and is aged about 75 years and is stated to be suffering from a spinal disease `Failed spine surgery syndrome’. They have spent about 40 years of their lives working and toiling in the United States and contributing to their family, having provided the best of education to their son (husband of the petitioner) and even at this advanced age, are providing for the education of their grand-daughters. Now, when they have decided to permanently settle in Chandigarh in the house which is exclusively owned by respondent No.2, instead of a warm and comfortable stay which they would have expected and eminently deserved, they have met with stiff resistance at the hands of the petitioner who has gone to the extent of locking various rooms and blocking the access of the respondents to various parts of the house, as evidence whereof they have annexed photographs with the petitioner standing alongside the carpenter. The claim of the petitioner that this has been done at the instance of the respondents does not appear to be credible.

Despite the projection by the petitioner to be a harassed daughter-in-law, the facts appear to speak otherwise. The timings of her complaints to the police, unerringly coincide with the decision of the respondents No.2 and 3 to permanently settle in Chandigarh. At no time prior thereto, did she make any complaint against them. It is only when their intention to permanently settle in Chandigarh became known that the complaints started.

During the course of many hearings of this petition, I had repeatedly made attempts to persuade the parties to arrive at an amicable settlement. This is an illustrious and well known family and it was expected that the matters would be sorted out. But that was not to be.

Ld. Counsel for the petitioner submitted that the petitioner should be permitted to stay in the rear portion of the house where she has been staying since 2005. This would not cause any disturbance to the respondents. But this was not acceptable to the respondents. Respondents No.2 and 3 very clearly stated that the presence of the petitioner in the house would disturb their peace and, at least for the time being, keeping in view her conduct in levelling false allegations and making police complaints, such an arrangement would not be conducive. In the facts and circumstances of this case this stand of the respondents does not appear to be unfounded.

I had put it to the Ld. Counsel for the respondents if they would be willing to meet the expenses of the petitioner staying at some alternative place. The respondents readily agreed. They gave a list of three places which they could take on rent for the petitioner (which would cost about Rs.25,000 p.m.) and also stated that they were willing to give the rent for one year in advance.

This was not acceptable to the petitioner who has filed an affidavit pointing out that the location is neither suitable nor secure nor in any way comparable with the present place of stay. Thus, there has been no agreement on any point.

The facts disclose that the petitioner is not helpless. She has sufficient means of her own, besides the provision being made by her husband. The husband of the petitioner is employed at Bangalore. It is always open to the petitioner to claim her rights against him.

In view of the aforesaid factual and legal position, this petition is disposed of with the following directions:

(i) The petitioner is directed to vacate House No. 112, Sector 9-B, Chandigarh within one month from today.
(ii) Respondents No.2 and 3, would be held bound to their offer to pay a sum of Rs. 25,000/- per month to the petitioner for one year.
(iii)It would be open to the petitioner to seek any appropriate relief as may be permissible in law against her husband.

It is clarified that the observations and findings in this case are limited to these proceedings only.

It is earnestly hoped that the parties would soon resolve their differences to live amicably.

January 25, 2015 (HARINDER SINGH SIDHU)
JUDGE

gian

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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

No liability on Mothr,brothr inlaw.Pardiwala(J) saves MIL, BIL ordered 2 pay maintnanc by sessions court

In this case a Sessions court orders Rs 9000 maintenance to a wife and says the husband, brother in law and mother in law are to pay the same. ( …allowed the appeal and directed the applicants and the husband to pay Rs.9,000=00 per month towards the maintenance ….)

Case reasches Gujarat HC. Hon Justice Padriwala appreciates the facts and orders
"…From the principles enunciated in the above referred decisions, it is apparent that any right which the wife has during the subsistence of her marriage and during the lifetime of her husband is against the husband and she has no right to claim any relief against the father-in-law or sister-in-law or any of the relatives of her husband inasmuch as the obligation to maintain her lies only on her husband. The complaint in question, therefore, appears to have been filed with the malafide intention to wreak vengeance for the purpose of settling personal scores and would fall within the ambit of Illustration (7) of the Illustrations delineated by the Supreme Court in the celebrated case of State of Haryana and others v. Bhajan Lal and others, AIR 1992 SC 604, viz. that the proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge……"

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3993 of 2014

ABDULRAHIM ABDULMIYA PIRZADA & 1….Applicant(s)
Versus
STATE OF GUJARAT & 2….Respondent(s)
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Appearance:
MR NASIR SAIYED, ADVOCATE for the Applicant(s) No. 1 – 2
MR AAMEER R KADRI, ADVOCATE for the Respondent(s) No. 2
MR PRATIK Y JASANI, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
MR JK SHAH, APP for the Respondent(s) No. 1
**********************************************************

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 21/01/2016

ORAL ORDER

RULE returnable forthwith.

Mr.Shah, the learned APP waives service of notice of rule for and on behalf of the respondent no.1 – State of Gujarat. Mr.Jasani, the learned advocate waives service of notice of rule for and on behalf of the respondent no.2 – wife. None is present on behalf of the respondent no.3 – husband.

By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs :

"(a) Your Lordships may be pleased to issue appropriate writ, order
or direction, quashing and setting aside the order dated 31.5.2014
passed in Criminal Appeal No.193 of 2013.

(b) During pendency of admission and final disposal of the present
petition, Your Lordships may be pleased to stay implementation,
operation and execution of order dated 31.5.2014 passed in Criminal
Appeal No.193 of 2013.

(c) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case."

It appears from the materials on record that the applicant is the brother-in-law of the respondent no.2 and the applicant no.2 is the mother-in-law of the respondent no.2. The respondent no.3 is the husband of the respondent no.2. As such, the husband should have been one of the applicants. But, it appears that as the whereabouts are not known, therefore, he has been impleaded as one of the respondents.

The respondent no.2 has initiated proceedings by way of a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005.
On account of matrimonial dispute the wife left the matrimonial home and is residing at her parental home as on today. She prayed for maintenance.

It appears that the prayer for maintenance was declined by the learned Additional Chief Metropolitan Magistrate, Court No.12, Ahmedabad, vide order dated 24th June 2013. In such circumstances, the wife preferred the Criminal Appeal No.193 of 2013 before the City Sessions Court, Ahmedabad. The learned Additional Sessions Judge, Court No.18, City Sessions Court, Ahmedabad, vide order dated 31st May 2014, allowed the appeal and directed the applicants and the husband to pay Rs.9,000=00 per month towards the maintenance of the wife and the three minor children. Being dissatisfied with such order passed by the learned Sessions Judge, the applicants have come up with this application. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The short point for my consideration is, whether any liability could be fastened on the brother-in-law and mother-in- law so far as payment of maintenance under the provisions of the Act is concerned.

It goes without saying that the husband is liable to maintain the wife and also to pay the maintenance. I do not find any error or infirmity in the impugned order so far as the liability of the husband to make good the payment of maintenance is concerned. The issue as regards the liability of mother-in-law and brother-in-law (i.e. the husband’s brother) is no longer res integra.

At this juncture, it may be germane to refer to certain decisions of the Supreme Court. In the case of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, (2008)4 SCC 649, the Supreme Court has, after referring to the provisions of Sections 3(b), 18 and 19 of the Hindu Adoptions and Maintenance Act, 1956, observed that maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. The Court further observed that Sections 18 and 19 of the said Act prescribe the statutory liabilities in regard to maintenance of wife by her husband, and only on his death, upon the father-in-law. Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise.

In the case of S.R. Batra and another v. Taruna Batra (Smt.), (2007)3 SCC 169, the Supreme Court has expressed the opinion that the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. In the facts of the said case, the Court observed that the house in question belonged to the mother-in-law of Smt.Taruna Batra and did not belong to her husband Amit Batra, hence Smt.Taruna Batra cannot claim any right to live in the said house. The Court was further of the view that the house in question could not be said to be a ‘shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. It was contended before the Supreme Court that a ‘shared household’ includes a household where the person aggrieved lives or has at any stage lived in a domestic relationship. The court did not agree with the said submission and was of the opinion that the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

From the principles enunciated in the above referred decisions, it is apparent that any right which the wife has during the subsistence of her marriage and during the lifetime of her husband is against the husband and she has no right to claim any relief against the father-in-law or sister-in-law or any of the relatives of her husband inasmuch as the obligation to maintain her lies only on her husband.

The complaint in question, therefore, appears to have been filed with the malafide intention to wreak vengeance for the purpose of settling personal scores and would fall within the ambit of Illustration (7) of the Illustrations delineated by the Supreme Court in the celebrated case of State of Haryana and others v. Bhajan Lal and others, AIR 1992 SC 604, viz. that the proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

For the aforesaid reasons, this application is allowed. The impugned order is hereby ordered to be quashed so far as the applicants are concerned.

It is clarified that it will be open for the respondent no.2 wife to proceed further against the husband, in accordance with law, so far as the husband’s liabilities are concerned under the provisions of the Act.

Rule made absolute. Direct service is permitted.

Mr.Jasani submits that during the pendency of this petition, there has been a fraudulent transfer of the house by the husband in favour of the applicant no.1 i.e. his own brother.

It could be a case of fraudulent transfer, and for that, it is always open for the wife to take appropriate proceedings in that regard.

(J.B.PARDIWALA, J.)

MOIN

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

3.5 CRORES to quash 498a,406 case. Add 2 lakhs to martyrs fund! Marriage is scared. Save Marriage. Save culture

3crore 50lakhs ONLY to quash 498a,406 34 case. Abla agrees to quash so …quashed !! Please Add something for a social cause …say Rs 2 lakhs to police martyrs fund! Submitted at the feet of all who say Marriage is scared. Save Marriage… the mistake is NOT with marriage !!


"… the respondent No.2 and the petitioner No.1 have amicably settled their disputes vide Memorandum of Mutual Understanding dated 03.03.2015, for a total sum of Rs.3,50,00,000/- (Three Crores Fifty Lakhs). As per the said settlement…."

and

"…12. Before parting with this order, I find force in the submission of learned APP for State regarding putting the petitioners to some terms. At this stage, petitioners No.1 and 2 have come forward and submitted that they are ready to contribute a sum of Rs.1,00,000/- each for some welfare purposes.

13. Accordingly, the petitioners No. 1 and 2 are directed to deposit a sum of Rs.1,00,000/- each with the Delhi Police Martyrs Fund within two weeks from today. Proof thereof shall be furnished to the learned Trial Court under intimation to the Investigating Officer/SHO concerned…."

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 20th January, 2016

CRL.M.C. No.230/2016

VARUN AGGARWL AND ORS ….. Petitioners
Represented by: Mr.Pawan Kumar, Advocate with Petitioners in person.

Versus

STATE AND ANR. ….. Respondents
Represented by: Mr.G.M.Farooqui, Additional Public Prosecutor for the State.
Respondent No. 2 in person.

CORAM: HON’BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, 1973, petitioners seek quashing of FIR No.1139/2014 registered at Police Station Punjabi Bagh, New Delhi, for the offences punishable under Sections 498A/406/34 IPC and the consequential proceedings emanating therefrom against them.

2. Learned counsel appearing on behalf of the petitioners submits that the aforesaid case was registered on the complaint of respondent No.2, namely, Ms.Purnima Gupta, consequent upon certain matrimonial and domestic disputes having arisen between the parties. The case is at the initial stage of investigation as charge sheet has not yet been filed. Meanwhile, the respondent No.2 and the petitioner No.1 have amicably settled their disputes vide Memorandum of Mutual Understanding dated 03.03.2015, for a total sum of Rs.3,50,00,000/- (Three Crores Fifty Lakhs). As per the said settlement, first instalment of Rs.1,50,00,000/- (One Crore Fifty Lakhs) was paid immediately on executing the said settlement as well as signing and filing of first motion petition. A sum of Rs.1,00,00,000/- (One Crore) was paid at the time of recording second motion petition for divorce by mutual consent and the balance amount of Rs.1,00,00,000/- (One Crore) is paid today in the Court by way of Manager’s Cheque bearing No.014589 dated 01.12.2015 drawn on HDFC Bank, Punjabi Bagh, Club Road, New Delhi, which facts have not been disputed by the respondent No.2.

3. Learned counsel for the petitioners further submits that consequent to the said settlement, marriage between the petitioner No.1 and respondent No.2 has been dissolved vide decree of mutual divorce dated 09.10.2015 under Section 13 B (2) of the Hindu Marriage Act, 1955. Since the agreed amount has been paid by the petitioners, thus, respondent No.2 does not wish to pursue her case further against the petitioners.

4. Respondent No.2 is personally present in the Court. For her identification, she has produced original Aadhar Card bearing No.652494778108 issued by the Government of India (original seen and returned). Photocopy thereof is annexed at page No.49 of this petition. The respondent No.2 does not dispute the submissions made by learned counsel for the petitioners and submits that the present matter has been amicably settled, marriage between her and the petitioner No.1 has been dissolved vide decree of divorce dated 09.10.2015, she has received the entire agreed amount and has no complaints whatsoever against the petitioner No.1 and his family members. Respondent No.2 affirms the contents of the aforesaid settlement and of her affidavit dated 15.01.2016 filed in support of the present petition and states that now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question may be brought to an end. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Learned Additional Public Prosecutor appearing on behalf of the State submits that the case is at the initial stage of investigation as charge sheet has not yet been filed. He submits that the present matter is a matrimonial one and since the respondent No.2 does not wish to pursue the case further against petitioners, no purpose would be served if the petitioners are directed to face trial. However, pursuant to settlement before the parties, if this Court is inclined to allow this petition, the State has no objection provided heavy cost be imposed upon the petitioners to set into motion the government machinery and for usurp of the public time and money.

6. Under the circumstances and looking to the decision of the Supreme Court in the case of Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, wherein the Apex Court has referred to a number of matters for the proposition that even a non-compoundable offence can also be quashed on the ground of a settlement agreement between the offender and the victim, if the circumstances so warrant; by observing as under:

"58. ….However, certain offences which overwhelmingly and
predominantly bear civil flavour having arisen out of civil,
mercantile, commercial, financial, partnership or such like
transactions or the offences arising out of matrimony, particularly
relating to dowry, etc. or the family dispute, where the wrong is
basically to the victim and the offender and the victim have settled
all disputes between them amicably, irrespective of the fact that
such offences have not been made compoundable, the High Court may
within the framework of its inherent power, quash the criminal
proceeding or criminal complaint or FIR if it is satisfied that on
the face of such settlement, there is hardly any likelihood of the
offender being convicted and by not quashing the criminal
proceedings, justice shall be casualty and ends of justice shall be
defeated."

7. While recognizing the need of amicable resolution of disputes in cases like the instant one, the aforesaid dictum has been affirmed by the Apex Court in a recent judgment in Narinder Singh & Ors. Vs. State of Punjab & Anr. 2014 6 SCC 466. The pertinent observations of the Apex Court are as under:-

29. In view of the aforesaid discussion, we sum up and lay down the
following principles by which the High Court would be guided in
giving adequate treatment to the settlement between the parties and
exercising its power under Section 482 of the Code while accepting
the settlement and quashing the proceedings or refusing to accept the
settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to compound the
offences under Section 320 of the Code. No doubt, under Section 482
of the Code, the High Court has inherent power to quash the criminal
proceedings even in those cases which are not compoundable, where the
parties have settled the matter between themselves. However, this
power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis
petition for quashing the criminal proceedings is filed, the guiding
factor in such cases would be to secure:

(i) ends of justice, or
(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on
either of the aforesaid two objectives.

29.3. Such a power is not to be exercised in those prosecutions
which involve heinous and serious offences of mental depravity or
offences like murder, rape, dacoity, etc. Such offences are not
private in nature and have a serious impact on society. Similarly,
for the offences alleged to have been committed under special statute
like the Prevention of Corruption Act or the offences committed by
public servants while working in that capacity are not to be quashed
merely on the basis of compromise between the victim and the offender.

29.4. On the other hand, those criminal cases having overwhelmingly
and predominantly civil character, particularly those arising out of
commercial transactions or arising out of matrimonial relationship or
family disputes should be quashed when the parties have resolved
their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as
to whether the possibility of conviction is remote and bleak and
continuation of criminal cases would put the accused to great
oppression and prejudice and extreme injustice would be caused to him
by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of
heinous and serious offences and therefore are to be generally
treated as crime against the society and not against the individual
alone. However, the High Court would not rest its decision merely
because there is a mention of Section 307 IPC in the FIR or the
charge is framed under this provision. It would be open to the High
Court to examine as to whether incorporation of Section 307 IPC is
there for the sake of it or the prosecution has collected sufficient
evidence, which if proved, would lead to proving the charge under
Section 307 IPC. For this purpose, it would be open to the High Court
to go by the nature of injury sustained, whether such injury is
inflicted on the vital/delegate parts of the body, nature of weapons
used, etc. Medical report in respect of injuries suffered by the
victim can generally be the guiding factor. On the basis of this
prima facie analysis, the High Court can examine as to whether there
is a strong possibility of conviction or the chances of conviction
are remote and bleak. In the former case it can refuse to accept the
settlement and quash the criminal proceedings whereas in the latter
case it would be permissible for the High Court to accept the plea
compounding the offence based on complete settlement between the
parties. At this stage, the Court can also be swayed by the fact that
the settlement between the parties is going to result in harmony
between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482
of the Code or not, timings of settlement play a crucial role. Those
cases where the settlement is arrived at immediately after the
alleged commission of offence and the matter is still under
investigation, the High Court may be liberal in accepting the
settlement to quash the criminal proceedings/investigation. It is
because of the reason that at this stage the investigation is still
on and even the charge-sheet has not been filed. Likewise, those
cases where the charge is framed but the evidence is yet to start or
the evidence is still at infancy stage, the High Court can show
benevolence in exercising its powers favourably, but after prima
facie assessment of the circumstances/material mentioned above. On
the other hand, where the prosecution evidence is almost complete or
after the conclusion of the evidence the matter is at the stage of
argument, normally the High Court should refrain from exercising its
power under Section 482 of the Code, as in such cases the trial court
would be in a position to decide the case finally on merits and to
come to a conclusion as to whether the offence under Section 307 IPC
is committed or not. Similarly, in those cases where the conviction
is already recorded by the trial court and the matter is at the
appellate stage before the High Court, mere compromise between the
parties would not be a ground to accept the same resulting in
acquittal of the offender who has already been convicted by the trial
court. Here charge is proved under Section 307 IPC and conviction is
already recorded of a heinous crime and, therefore, there is no
question of sparing a convict found guilty of such a crime."

8. In the case of Jitendra Raghuvanshi & Ors. Vs. Babita Raghuvanshi & Anr. (2013) 4 SCC 58, wherein the Supreme Court in respect of the matrimonial disputes has specifically held as follows:-

"15. In our view, it is the duty of the courts to encourage genuine
settlements of matrimonial disputes, particularly, when the same are
on considerable increase. Even if the offences are non-compoundable,
if they relate to matrimonial disputes and the Court is satisfied
that the parties have settled the same amicably and without any
pressure, we hold that for the purpose of securing ends of justice,
Section 320 of the Code would not be a bar to the exercise of power
of quashing of FIR, complaint or the subsequent criminal proceedings.

16. There has been an outburst of matrimonial disputes in recent
times. They institution of marriage occupies an important place and
it has an important role to play in the society. Therefore, every
effort should be made in the interest of the individuals in order to
enable them to settle down in life and live peacefully. If the
parties ponder over their defaults and terminate their disputes
amicably by mutual agreement instead of fighting it out in a court of
law, in order to do complete justice in the matrimonial matters, the
courts should be less hesitant in exercising their extraordinary
jurisdiction. It is trite to state that the power under Section 482
should be exercised sparingly and with circumspection only when the
Court is convinced, on the basis of material on record, that allowing
the proceedings to continue would be an abuse of process of court or
that the ends of justice require that the proceedings ought to be
quashed…."

9. Both the parties who are present in the Court today, approbate the aforesaid settlement dated 03.03.2015 and undertake to remain bound by the same.

10. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties and the complainant is no longer interested in supporting the prosecution because of which, its chances of success in the matter are now greatly diminished. Therefore, in view of the law discussed above, in the facts and circumstances as noted above, I am of the considered opinion that this matter deserves to be given a quietus as continuance of proceedings arising out of the FIR in question would be an exercise in futility.

11. Consequently, FIR No.1139/2014 registered at Police Station Punjabi Bagh, New Delhi, for the offences punishable under Sections 498A/406/34 IPC and all proceedings emanating therefrom are hereby quashed qua the petitioners. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Before parting with this order, I find force in the submission of learned APP for State regarding putting the petitioners to some terms. At this stage, petitioners No.1 and 2 have come forward and submitted that they are ready to contribute a sum of Rs.1,00,000/- each for some welfare purposes.

13. Accordingly, the petitioners No. 1 and 2 are directed to deposit a sum of Rs.1,00,000/- each with the Delhi Police Martyrs Fund within two weeks from today. Proof thereof shall be furnished to the learned Trial Court under intimation to the Investigating Officer/SHO concerned.

14. Accordingly, the present petition is allowed.

15. A copy of this order be given dasti to the learned counsel for the petitioners.

SURESH KAIT (JUDGE)

JANUARY 20, 2016

sb

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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

Seek Xemption from persnl aperanc @ famlycourt. IF oneside represnt by counsel otherside 2 b allowed.KarHC

In this case  The husband sought leave of the Family Court to be represented through a Counsel. Accordingly, the Court permitted the husband to be represented by Counsel from the inception of the case. Wife who was at Mumbai gets a job and goes to USA. So she seeks both permission to be represented by counsel and exemption from personal appearance. Family court disallows both. Karnataka HC appreciates the facts and decrees.

“10. There is nothing in Act or rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a Legal Practitioner who holds a power of attorney to present the petition, may ‘present’ a petition, but may not be able to ‘represent’ the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a Legal Practitioner) with an application seeking permission to be represented by a Legal Practitioner…” and

11. A party may choose to appear through and be represented by an authorised agent other than a Legal Practitioner, in which event permis-sion under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a Legal Practitioner, the parties may be represented by authorised agents other than a Legal Practitioner. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice….”
Since this procedure is gender neutral, Husbands should be able to use this to their benefit !!


Karnataka High Court

Mrs. Komal S. Padukone vs Principal Judge, Family Court, … on 19 February, 1999

Equivalent citations: II (1999) DMC 301, ILR 1999 KAR 2811, 1999 (5) KarLJ 667

Bench: R Raveendran

ORDER

  1. The second respondent is the husband and the petitioner is the wife. The husband filed MC No. 401 of 1998, on the file of the Principal Judge, Family Court, Bangalore, against the wife, under Section 13 of the Hindu Marriage Act, 1955 for divorce, on the ground of desertion and cruelty. The husband sought leave of the Family Court to be represented through a Counsel. Accordingly, the Court permitted the husband to be represented by Counsel from the inception of the case.
  2. At the time when the divorce petition was filed, the wife was staying at Mumbai, with her parents. The Family Court issued a notice to her to her Mumbai address, calling upon her to appear before the Court on 3-8-1998. By then the wife obtained a job in USA and left the country in July 1998 itself. The notice of the proceedings was served on the wife’s father.
  3. The wife made two applications before the Family Court on 12-11-1998 – IA II under Section 13 of the Family Courts Act, 1984 (for short, ‘the Act’), seeking leave of the Court to engage an Advocate; and IA III under Section 151 of the CPC, read with Section 13 of the Act, for dispensation of her personal presence in the matter till July 1999. The husband resisted both the applications.
  4. The Family Court by a common order dated 24-11-1998, dismissed both the applications and ordered that the case be listed on 19-12-1998 for the appearance of the wife (respondent before the Family Court). The Family Court held that in a proceedings before it, the respondent will have to appear in person and then obtain leave of the Court to engage a Counsel; and without appearing in person, a respondent in a divorce petition can neither seek permission to engage, nor engage the services of a Legal Practitioner. In regard to IA III, it held that it is necessary to attempt reconciliation before the matter is proceeded with and unless the party appears, reconciliation is not possible; and therefore there is no justification for seeking exemption from personal appearance till July 1999.
  5. As a consequence of rejection of the two applications, the matter will be proceeded ex parte, as the wife will not be able to appear in person on the next date of hearing fixed for her appearance. Feeling aggrieved, the petitioner herein (wife) has filed this petition and sought quashing of the order dated 24-11-1998, rejecting IAs II and III.
  6. A preliminary objection is raised by the learned Counsel for the second respondent (husband) on the ground that a writ petition is not maintainable against an order on an interlocutory application, passed by a Family Court. Normally, this Court will not entertain writ petitions against interim orders of the Family Courts. But, a writ petition may be entertained when the order is made without jurisdiction or in violation of principles of natural justice or specific provisions of a statute, or is arbitrary and unreasonable leading to failure of justice. Having regard to the questions involved, it cannot be said that the petition is maintainable.
    • 6.1. The following questions arise for consideration:
    • (a) Whether a party cannot seek exemption from personal appearance and permission to engage Counsel, unless he/she appears in person before the Family Court.
    • (b) Whether a respondent who is unable to appear personally or who does not appear personally, has no right to contest a proceedings before Family Court.
    • (c) Whether the Family Court having granted permission to the petitioner before it, to engage a Legal Practitioner, deny such permission to the respondent in the same proceedings.
  7. Section 10 of the Act, provides that subject to other provisions of the Act and the rules, the provisions of Civil Procedure Code, 1908 and of any other law for the time being in force, shall apply to the proceedings before a Family Court and the Family Court shall be deemed to be a Civil Court for the purposes of the Code and shall have all the powers of such Court. Section 13 of the Act provides that notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court, shall be entitled, as of right, to be represented by a Legal Practitioner. 7.1 Section 9 of the Act requires the Family Court to endeavour in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings and for that purpose the Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. Rule 7 of the Karnataka Family Courts (Procedure Rules), 1987, provides that the Family Court shall make such effort for bringing about a reconciliation or settlement between the patties in the first instance, where it is possible to do so consistent with the nature and circumstances of the case in such a manner as it deems fit, with the help of counsellors nominated by the Court. 7.2 Sub-rule (2) of Rule 1 of Order V of the CPC, provides that a defendant to whom summons has been issued under sub-rule (1) may appear in person or by a pleader duly instructed and able to answer all material questions relating to the suit, or by pleader accompanied by some other person able to answer all such questions. Order V, Rule 4 provides that no party shall be ordered to appear in person unless he resides within the local limits, of the Court’s ordinary original jurisdiction; or at a place less than fifty miles from the Court-house; or where there is an established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate, less than two hundred miles distance from the Court-house; Order III, Rule 1 provides that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such suit, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised Agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf; provided that any such appearance shall, if the Court so directs, be made by the party in person.
  8. A reasonable opportunity to defend oneself, is an essential part of the principles of natural justice. Where one side is represented by a legally trained mind, refusal of permission to the other side to be represented by a legally trained mind has always been held to be in violation of the principles of natural justice.
    • 8.1 In Board of Trustees of the Port of Bombay v Dilip Kumar Raghavendranath Nadkarni and Others, the Supreme Court while dealing with the right of an delinquent employee to claim representation by a Counsel in a domestic enquiry observed thus: “Where in an enquiry before a domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a Legal Practitioner, the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice”.
    • 8.2 In J.K. Aggarwal v Haryana Seeds Development Corporation Limited, the Supreme Court held that while the right to be represented by a lawyer may not in all cases be held to be a part of natural justice, where the presenting officer is a Legal Practitioner, refusal of services of a Legal Practitioner to the delinquent employee would amount to denial of natural justice. The Supreme Court held that when a person who is not legally trained is required to defend a proceedings where the other side is represented by a legally trained mind, then the combat would be unequal entailing miscarriage or failure of justice and denial of a real and reasonable opportunity for defence.
    • 8.3 If the petitioner in a proceedings has already been permitted to be represented by a Legal Practitioner, refusal of permission to respondent to be represented by Counsel, will therefore be violative of principles of natural justice and the provisions of the Act.
  9. The provisions of Code of Civil Procedure apply to proceedings before the Family Court, except where there are provisions to the contrary in the Act or the rules. A Family Court is a Civil Court having all powers of a Civil Court, except when dealing with a proceeding under Chapter IX of Code of Criminal Procedure. The procedure to be adopted by Family Courts in dealing with and deciding cases before it will be the same as applicable to summary proceedings under Code of Civil Procedure, subject to the following modifications:
    • (a) The Family Court shall endeavour in the first instance, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceeding, where it is possible to do so consistent with the nature and circumstances of the case -[Section 9(1)];
    • (b) In addition to the general power to adjourn the proceedings, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a settlement, if it appears to the Family Court that there is a reasonable possibility of a settlement – [Section 9(2)];
    • (c) A Family Court may lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of tbe proceedings or at the truth of the facts alleged by one party and denied by the other – [Section 10(3)];
    • (d) The proceedings may be held in camera, if the Family Court so desires and shall be so held if either party so desires – (Section 11);
    • (e) A Family Court may secure the services of Medical Experts and Welfare Experts to assist in discharging its functions under the Act – (Section 12);
    • (f) The parties are not entitled, as of right, to be represented by a Legal Practitioner – (Section 13).
    • (g) A Family Court may seek the assistance of a legal expert as amicus curiae – (Section 13);
    • (h) A Family Court may receive as evidence, any report, statement, document, information or other matter, that may, in its opinion, assist it to deal effectively with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 – (Section 14);
    • (i) Recording of oral evidence may be summary in nature (Section 15). The Family Court may receive evidence of formal character, by way of affidavit (Section 16). It is not obligatory to frame issues. The judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision – (Section 17).
  10. There is nothing in Act or rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a Legal Practitioner who holds a power of attorney to present the petition, may ‘present’ a petition, but may not be able to ‘represent’ the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a Legal Practitioner) with an application seeking permission to be represented by a Legal Practitioner.
  11. A party may choose to appear through and be represented by an authorised agent other than a Legal Practitioner, in which event permis-sion under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a Legal Practitioner, the parties may be represented by authorised agents other than a Legal Practitioner. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice.
  12. The ideal situation under the general scheme of the Family Courts Act would be where proceedings are initiated by a husband or wife by presenting a petition in person; notice is issued to the other side; other side appears in person; neither party is represented by any lawyer, unless permitted by the Court; the Family Court at the first instance endeavours to bring about a settlement either by itself or with the assistance of welfare experts/Counsellors; When such endeavour fails, the respondent is given an opportunity to file objections and then evidence is recorded and decision is rendered; and the entire process takes only about 3 to 6 months. But an ideal situation is different from normal practical situation. For example in a place like Bangalore, each Family Court has a huge pendency. Every day, a large number of cases are listed and called for preliminary hearing, for conciliation, hearing on interlocutory matters, evidence and final arguments. Very few of them can be taken up for evidence or hearing. It is practically impossible to take up for evidence, all cases listed. The cases drag on for several years for one reason or the other. Each case undergoes thirty to forty hearing dates, in some, many more. Many of the parties are illiterate or working somewhere. Many of women litigants require the assistance of others, even to come to Court. In such circumstances, to require all parties to be personally present on every date of hearing, would add to the misery and hardship of litigants. The Family Court should therefore adopt a practical and humane approach and arrange its work suitably having regard to the workload, in such a manner that the parties before it are not put to unnecessary inconvenience.
  13. A combined reading of the Act and the rules with relevant provisions of the CPC make the following evident:
    • (i) A petition to the Family Court may be presented by a petitioner either in person or through an authorised agent. The petition may be presented even by an Advocate as an Authorised Agent. But, if the petitioner wants ‘representation’ by a Legal Practitioner, he/she should seek and obtain the permission of the Family Court.
    • (ii) A respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an authorised agent (including a Legal Practitioner). But, if the respondent wants to be represented by a Legal Practitioner in the proceedings, he/she should seek and obtain the permission of the Family Court.
    • (iii) In regard to proceedings before the Family Court, ‘entering appearance’ in response to a notice/summons through an authorised agent (including a Legal Practitioner), is different from being represented in the proceedings by a Legal Practitioner.
    • (iv) While representation through Legal Practitioner without permission is barred, entering appearance in a case, in response to a notice/summons, through a Legal Practitioner is not barred. If a Legal Practitioner, having entered appearance, wants to represent party in the proceedings, permission of the Family Court should be obtained for such representation.
    • (v) When one party has been permitted to be represented by a Legal Practitioner, such permission cannot under any circumstances, be denied to the other party. (vi) The authorised agent (or the Legal Practitioner permitted to represent a party) can prosecute or defend the proceedings and represent the party unless and until the Family Court makes a specific order to the parties to appear in person, either on a specified date or on further hearing dates, depending on the facts of the case and stage of the case. Once an order for personal appearance has been specifically made, a party will have to seek exemption from appearance, if he/she is not able to appear in the matter.
    • (vii) Where a Family Court has a large backlog of cases, and there is no possibility of taking up all cases, listed on a day, it may restrict the requirement of personal appearance of parties to specified stages like conciliation and evidence.
    • (viii) Where it is possible to do so, consistent with the nature and circumstances of the case, the Family Court, either directly or through counsellors, in the first instance, assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings.
  14. In this case the wife is staying in United States. She left India before the notice was served. She has stated that it will be difficult for her to come over to India before July 1999. She therefore sought permission to engage a Counsel and exemption from personal appearance till July 1999. There is nothing unreasonable about either of the requests. As a result of rejection of her applications, she has been placed ex parte. If the order is allowed to stand, it would cause irreparable injury to her.
  15. The Court had permitted the husband (petitioner in the divorce petition) to be represented by a Legal Practitioner. It is a fundamental principle of natural justice that where one of the parties to the lis is permitted to be represented by a Counsel, the other party should also be permitted to be represented by a Counsel. Having permitted the petitioner-husband in the divorce petition to be represented by a Counsel, the rejection of the application of the respondent-wife for engaging a Counsel is a improper exercise of jurisdiction opposed to principles of natural justice. Neither Section 13 of the Act nor any other provisions enables the Court to permit one party to be represented by a Counsel while refusing such permission to other party. The order on IA II is therefore liable to be set aside.
  16. Learned Counsel for the second respondent submitted that the proviso to Rule 1 of Order III of the CPC enabled the Court to direct the appearance of a party in person and therefore the respondent before the Family Court was bound to appear in person. But, the said provision is a special provision, under which the Court can, by a specific order, on the facts and circumstances of the case, require the appearance of a party. There is no such special order in this case. The Family Court has proceeded on the assumption that in all proceedings before it, the respondents should appear in person and then file an application to engage the Counsel. The Family Court has inferred from Section 9, which requires the Court to attempt settlement in the first instance, and Section 13 which denies representation by a Legal Practitioner unless permitted, that there is an obligation on the parties to appear in person in response to the notice and then continue to appear in person on every hearing date. As noticed above there is no basis for such inference or assumption. Section 9 makes it clear that the duty of Family Court to make efforts for settlement in the first instance is “where it is possible to do, consistent with the nature and circumstances of the case”. Where one of the parties is abroad or is disabled, it may not be possible to attempt settlement in the first instance. But, that does not mean that the party who is unable to appear, should be denied the right to prosecute or defend the proceedings. All that it means is that the effort to make settlement, gets postponed to a later date when parties are able to appear. In some cases, it may not be possible to attempt settlement at all due to the peculiar fact and circumstances. The statutory duty cast on the part of the Family Court to attempt settlement cannot be converted by the Court into a penalising weapon to deny representation or right to contest, merely on the ground that a party has by his or her absence, has come in the way of the attempt for settlement. If the reasons are bona fide, the Family Court should permit representation through Legal Practitioner or authorised agent. In this case, as the petitioner is abroad and has stated that she will not be able to come till July 1999, the Court ought to have allowed IA III.
  17. Therefore, this petition is allowed and the order dated 24-11-1998, passed on IAs II and III in MC No. 401 of 1998, on the file of the Principal Judge, Family Court, Bangalore, is set aside. The said interlocutory applications stand allowed. Any consequential order passed by the Family Court placing petitioner herein (wife) ex parte or deciding the matter ex parte cannot stand and shall be withdrawn. The Family Court shall fix a date for filing objections by the petitioner herein. Thereafter, Family Court shall proceed with the matter in accordance with law.