Daily Archives: May 13, 2016

Two marriages, two deaths and one false 498A case !!

Woman marries second time after death of her first husband. It’s averred that her second marriage was not even know to the relatives of the first husband unroll late stage !! However this woman commits suicide a few months after the second marriage. Her father files 498 a case against brother of the first husband !!! Court Finds this an abuse of the process of law in quashes the case !!

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IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.REV.P. 307/2008
Date of Decision: 26.05.2011

ONKAR NATH TIWARI….. Petitioner
Through: Mr.Tripurari Tiwari, Adv.

versus

STATE ….. Respondent
Through: Mr.O.P.Saxena, Adv.

CORAM:

HON’BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in the Digest? YES :

V.K. SHALI, J(Oral)

1. This is a Criminal Revision Petition filed by the petitioner against the order dated 15.04.2008 passed by the learned ASJ directing framing of charge against the petitioner under Section 498A IPC. Briefly stated, the facts of the case are that the deceased, Seema was married on 27.06.2004 to Purankar Nath Tiwari, younger brother of Onkar Nath Tiwari, the present petitioner. On 17.12.2005, husband of the deceased Seema was killed by his own father. After the death of brother of the petitioner, the deceased with the help of one S.N. Dubey married Naresh S/o Sh. Ram Chander on 06.03.2007. From the impugned order, it transpires that the parents of the deceased were not aware about the factum of the second marriage. They were informed about this at New Delhi Railway Station, when they were called by the deceased. Thereafter, father of the deceased Hari Shankar Pandey and mother Smt. Shanti Devi purported to have visited the house of second husband where a sum of Rs.30,000/- is alleged to have been demanded by the second husband, Naresh. On 01.07.2007, i.e., just after about four months of her second marriage, the deceased committed suicide. Naresh tried to cremate the deceased, when the police learnt about the same, it prevented him from cremating the body and registered a case under Section 304B/498A read with Section 201 of the IPC. This case was registered on the basis of statements purported to have been made before the SDM by Hari Shankar Pandey and Smt. Shanti Devi, the parents of the deceased. It is in these statements that Hari Shankar Pandey is purported to have also implicated Onkar Nath Tiwari, the brother of the first husband of the deceased. It was alleged that Onkar Nath Tiwari had brought the deceased to Kapurthala to their house after the death of her first husband but did not permit the deceased to meet him and on the contrary made a demand of dowry of Rs.50,000/-. This is stated to have happened in December, 2006 and on the basis of this, it is alleged that offence under Section 498A IPC is also made out against the present petitioner also. Onkar Nath Tiwari and Naresh, the second husband of the deceased were sent for trial for offences under Section 498A/304B/201 IPC by the local police.

2. The learned Additional Sessions Judge vide order dated 15.04.2008 discharged Onkar Nath Tiwari of the offence under Section 304B and 201 IPC by observing that he was not the relative of the second husband, Naresh and, therefore, could not be charged of the offence under Section 304B and 201 IPC. However, learned ASJ directed framing of charge against the petitioner under Section 498A IPC on the ground that being the relative of the first husband, he had committed an offence under Section 498A IPC.

3. The petitioner feeling aggrieved by the aforesaid order has preferred the present revision petition assailing the said order.

4. I have heard learned counsel for the petitioner as well as learned APP for the State.

5. Section 498A of the Indian Penal Code reads as under: "498A. 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."

6. A perusal of the aforesaid Section clearly shows that not only the husband but his „relative‟ can also be charged and tried for offence of demand of dowry, if a women is subjected to cruelty, torture with a view to extract the same. The word „relative‟ is one who is related to husband of the deceased. In this particular case, the question which arises for consideration is as to whether the brother of the first husband (since deceased) can be said to be relative of the husband when admittedly the lady (who has died) had married for the second time.

7. It was contended by the learned counsel for the petitioner that the very fact that the deceased after the death of her first husband had contracted the second marriage shows that the relationship of the present petitioner qua the deceased had ceased to exist and by no stretch of imagination at the time of registration of the offence i.e. on 4- 5/07.2007, the petitioner could be said to be a relative of the deceased much less it could be said that he had demanded dowry.
8. So far as the later aspect is concerned, it has been further contended by the learned counsel that even if the allegations which are purported to have been made by the father of the deceased, Hari Shankar Pandey belatedly after the death of the deceased, it would clearly show that there was no prima facie satisfaction of the ingredients of Section 498A IPC. Section 498A IPC clearly lays down that the women must have been subjected to cruelty or torture with a view to extract dowry from her or her parents. While in the instant case, the allegations were that after the death of the first husband of the deceased, Onkar Nath Tiwari had taken the deceased to Kapurthala and stated to the father of the deceased, Hari Shankar Pandey that he will not be permitted to see his daughter unless and until he pays a sum of Rs.50,000/-. Assuming though not admitting this allegation to be correct, it clearly shows although prima facie a demand might have been made to the father of the deceased, but there was no allegation of cruelty or torture qua the deceased and, therefore, on merits also the charge against the present petitioner could not be framed.

9. Learned APP has contested the claim of the present petitioner by alleging that since the trial Court has taken a prima facie view of the matter, there is no pressing urgency for disturbing the said prima facie view in criminal revision and the petitioner ought to face the trial.

10. I have carefully considered the submissions made by the respective sides and gone through the records. I find some force in the contention of the learned counsel for the petitioner that as the petitioner admittedly was elder brother of the husband of the deceased who had died on 17.12.2005 and thereafter, the deceased having contracted the second marriage on 06.03.2007, it brought about cessation of relationship between the present petitioner and the deceased. Therefore, the FIR having been lodged on 4-5/07/2007, it could not be said that the petitioner was a relative of the husband of the deceased at the point of time and, therefore, a charge under Section 498A IPC could not have been framed against the petitioner. So far as the petitioner being a relative of the second husband is concerned, the learned Trial Court has already held that he could not be treated as a relative of the second husband.

11. In addition to this, the allegations which even if assumed to be correct, seem to be totally made out of desperation which obviously any parent, who has lost his daughter would do. There was absolutely no justification that if any such demand was made immediately after the death of the first husband of the deceased in December, 2006 why the same has not been reported to the police by the father of the deceased. The belated allegations which have been made also seem to be made out of disgust with a view to see that unfortunate demise of the daughter is avenged by the distraught father by punishing not only the perpetrators of the crime but also the family members of the first husband whose life itself was brought to end by his own father.

12. The Apex Court repeatedly in various judgments has held that putting a criminal justice machinery into motion ought not be done in a casual manner as it impairs the liberty of a person and the slow pace with which the criminal trials proceed further compounds the agony, torture and mental harassment of the person, who has to face prolonged trial before earning an acquittal and by the time acquittal is earned, a great deal of damage is done not only to the person concerned but also to the system inasmuch as it brings bad name to it. Reliance is placed in this regard on the judgment delivered in Pepsi Food Ltd. & Anr. Vs. Special Judicial Magistrate, 1998 (5) SCC 749 and Punjab National Bank & Anr. Vs. Surendra Pd. Sinha AIR 1992 SC 1815

13. I feel the present case is one of such cases where by putting the present petitioner to trial for an offence under Section 498A IPC being the relative of the first husband who has already died and yet being charged for an offence under Section 498A IPC when the deceased had admittedly contracted second marriage would be only putting the present petitioner to a great deal of harassment and torture of facing a criminal trial.

14. For the above mentioned reasons, I feel by the learned trial Court has erred by directing framing of charge under Section 498A IPC against the present petitioner as there is no sufficient ground for proceedings against the petitioner under Section 498A IPC and accordingly, the order dated 15.04.2008 deserves to be set aside and the petitioner is discharged.

15. A copy of the order be sent to the trial Court.

V.K. SHALI,J

MAY 26, 2011

anb

Wife deserting husband since 1998 tries to deny him divorce even in 2015 !! Court calls it abuse and grants divorce !!

Wife deserting husband since 1998 tries to deny him divorce even in 2015 !! Even though the husband is ready to pay 7 lakhs as one-time lump some settlement, the wife continues to refuse that and demand more and more money !!! The Hon Court Studies the records, understand that the wife has always been cruel to the husband, has also deleted the husband, and has filed a restitution case has an eye wash… The honourable court calls the wife’s actions an abuse of process of law and grants divorce I favour of the husband !!

**** case from public websites ****

IN THE HIGH COURT OF GUJARAT

FIRST APPEAL NO. 974 of 2015

With

FIRST APPEAL NO. 975 of 2015

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LALITABEN W/O MUKESHKUMAR SOLANKI….Appellant(s)

Versus

MUKESHKUMAR A SOLANKI….Defendant(s)

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Appearance:

MR HB CHAMPAVAT, ADVOCATE for the Appellant(s) No. 1

MR BHUNESH C RUPERA, ADVOCATE for the Defendant(s) No. 1

MR MB SHEKHAWAT, ADVOCATE for the Defendant(s) No. 1

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CORAM:

HONOURABLE MR.JUSTICE KS JHAVERI

and

HONOURABLE MR.JUSTICE G.B.SHAH

Date : 09/07/2015

ORAL ORDER

(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. Both these appeals involve common questions on law and facts and hence, they are decided by this common order.

2. The facts in brief are that the appellant­wife got married to the respondent­husband on 05.06.1995 at Ahmedabad as per the Hindu rituals. It is the case of appellant­wife that after about two years of marriage, the respondent­husband and her in­laws harassed her mentally as well as physically and started to demand dowry from her and thereafter, on 15.02.1998, allegedly drove her out of the matrimonial home. The respondent­husband filed a suit u/s.13(1) of the Hindu Marriage Act before the District Court at Mahesana being No.133/2000. However, the same was withdrawn on the assurance given by the respondent that she would be called back at her matrimonial home. It is the case of the appellant­wife that the said assurance was not fulfilled by the respondent.

3. The appellant, thereafter, filed an application u/s.125 Cr.PC seeking maintenance, which was allowed whereby, an amount of Rs.2500/­ per month was fixed as maintenance. Subsequently, the appellant filed an application u/s.9 of the Act vide Family Suit No.974/2008 before the Family Court, Ahmedabad. The said suit was dismissed, vide order dated 07.04.2014.

4. The respondent filed a suit u/s.13(1) of the Act being Family Suit No.783/2009, which came to be allowed, vide order dated 07.04.2014. The appellant­wife had filed a suit u/s.9 of the Act being Family Suit No.974/2008. However, the same was rejected, vide order dated 07.04.2014.

5. Being aggrieved by the judgment and decree passed in Family Suit No.783/2009 as also the order passed in Family Suit No.974/2014, the appellant­wife has preferred the present appeals. In F.A. No.974/2015, challenge is made to the impugned order passed in Family Suit No.974/2008 dated 07.04.2014 whereas, in F.A. No.975/2015, challenge is made to the impugned judgment and decree passed in Family Suit No.783/2009 dated 07.04.2014.

6. We have heard learned counsel for both the sides and perused the documents on record. We have also gone through the paper­book supplied by learned counsel for the appellant.

7. Before we proceed with the matter, it is to be noted that on the last occasion, i.e. on 07.07.2015, the matter was adjourned at the joint request of the parties so as to see that the dispute may be resolved amicably by payment of lumpsum amount as permanent alimony to the appellant­ wife. Today, learned counsel for the respondent­husband stated that the respondent is ready to pay an amount of Rs.7.00 Lacs to the appellant­wife towards permanent alimony. However, it was informed by learned counsel Mr. Champavat appearing on behalf of appellante­wife that the appellant is not ready to settle the dispute by accepting any amount of permanent alimony.

8. It is a matter of fact that marriage between the parties is in the doldrums since 1998. Though several efforts were made at different times to resolve the dispute, but not yielded the desired result. Considering this background, the Court deemed it appropriate that the dispute could be put to an end by payment of lumpsum amount of permanent alimony. However, today, the stand taken by the appellant vindicates the respondent and speaks volumes about her conduct. In our opinion, this is nothing but, gross misuse and abuse of the process of Court. Now, we shall proceed to decide the matter on merits.

9. It transpires from the record that the appellant­wife left her matrimonial home on 15.02.1998 and has been residing separately since then at her parental house. From the cross­examination of the appellant­wife, it is established that when the respondent­husband filed the suit for divorce before the District Court at Mahesana in 2000, the appellant­-wife immediately preferred an application u/s.125 Cr.PC. The said application was granted and the appellant­ wife was paid maintenance amount regularly. Thereafter, in the year 2008, viz. after residing separately for ten years, the appellant­wife preferred an application u/s.9 of the Act. Thus, it is an established fact that after residing separately for ten years, the appellant­wife filed the application u/s.9 of the Act for restitution of conjugal rights. Before that, the appellant­wife had made no such attempts for conciliation. The appellant­wife has not given any ground, much less any satisfactory ground, behind her decision to desert the respondent­husband two years after their marriage and to live separately since then. Under these circumstances, the Court below was justified in passing the decree u/s.13(1) of the Act.

10. Before the Court below, the respondent­-husband had produced several documents to show that he was meted out cruel treatment by the appellant­wife. The documents at Exhibits ­ 30 to 36 are all such documents, which were admitted by the appellant­wife before the Court below. As discussed hereinabove, the factum of desertion by the appellant­wife was established from her cross­examination itself. The documents at Exhibits – 30 to 36 are the letters written by the father of respondent­husband to the father of appellant­wife, the complaint lodged before Danilimda Police Station by the father of respondent­husband, the letter written by the father of appellant­wife to the leader of their community, the suit bearing Family Suit No.133/2000 filed by the respondent­husband u/s.13(1) of the Act before the District Court at Mahesana along with the withdrawal purshis and the copy of the order passed in application filed by the appellant­wife u/s.125 Cr.PC. The above documents prove the conduct of appellant­wife and her behaviour with the respondent­husband.

11. In view of the above, we are of the considered opinion that the Court below has not committed any error in passing the decree u/s.13(1) of the Act in favour of the respondent­husband and in rejecting the application u/s.9 of the Act filed by the appellant­wife. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to entertain these appeals.

12. For the foregoing reasons, both the appeals are dismissed. At this stage, we would like to observe that if the appellant­wife is desirous to accept the lumpsum amount of Rs.7.00 Lacs as permanent alimony, which the respondent­ husband has offered to pay today, she shall be at liberty to do so, by writing a letter to the respondent­husband to that effect, in which case, the respondent­husband shall make such payment to the appellant­wife, by "Accounts Payee" cheque, within a period of three months from the date of receipt of such letter from the appellant.

(K.S.JHAVERI, J.)

(G.B.SHAH, J.) Pravin