Daily Archives: June 6, 2016

Asking ur wife NOT to chat on Facebook, ORKUT is NOT 498a ! Bombay HC 

Great news !! Asking ur wife NOT to chat on Facebook is NOT 498a !! But … But … You have to go up to HC to get that TRUTH told to you !! your grandmother would have happily told that …. but today you have to go up to HC to save your male ass !!

Equivalent Citation: 
2015ALLMR(Cri)2607, 
2015(2)Crimes368(Bom.)
IN THE HIGH COURT OF BOMBAY

Criminal Application No. 251 of 2014

Decided On: 14.01.2015
Appellants: Gopal and Ors.

Vs.

Respondent: State of Maharashtra and Ors.
Hon’ble Judges/Coram:S.B. Shukre, J.

  1. Heard. Admit.
  2. Heard finally by consent.
  3. By this application, the applicants have sought quashing of the order dated 22.2.2012 issuing process against them for the offences punishable under Sections 498-A, 406 and 417 read with Section 34 of the Indian Penal Code and also quashing of the complaint filed against them by respondent No. 2.
  4. According to the learned counsel for the applicants, there is not even a whisper of allegations made against both these accused constituting essential ingredients of offences punishable under Sections 498-A, 406 and 417 of the Indian Penal Code. In support, he has taken me through the complaint, copy of which has been filed on record as Annexure-2. Learned counsel for the Non-applicant No. 2 states that the applicants should not shy away from the trial and whatever they are submitting now can be submitted by them on merits of the case and, therefore, it would be premature for this Court to allow this petition. He also submits that the allegations made against both the applicants, as can be seen from the paragraphs 4, 13 and 14 in the complaint are sufficient to indicate that prima facie case for the alleged offences has been made out against both the applicants.
  5. Learned A.P.P. for the Non-applicant No. 1/State submits that an appropriate order may be passed in this case.
  6. Upon careful examination of the complaint filed by the Non-applicant No. 2 against the applicants and other persons, I find that so far as present applicants are concerned, there is not even a single allegation which, if taken at face value would constitute any of the offences alleged against these applicants. These allegations neither show any prima facie cruelty having been meted out by the applicants to Non-applicant No. 2 nor any cheating or criminal breach of trust having been prima facie committed in respect of valuable articles, which the Non-applicant No. 2 says to be a stridhan.
  7. In paragraph 4 of the complaint, there is a general allegation that the cash and gifts which the respondent No. 2 and accused No. 1-Vaibhav had received during marriage were kept at the matrimonial home by all the accused persons including the applicant No. 1, who is accused No. 7, being the mediator for the marriage between the respondent No. 2 and accused No. 1-Vaibhav; and the applicant No. 2, who is accused No. 4, being the sister in law of the complainant-Non-applicant No. 2. It is an admitted position that both these applicants were not part of matrimonial home of the accused No. 1 and Non-applicant No. 2. Therefore, no offences relating to cheating and criminal breach of trust punishable under Sections 417 and 406 would be prima facie made out against these applicants. Besides, there is also no allegation in paragraph 4 that the Non-applicant No. 2 at any point of time demanded return of the Stridhan articles to her from those accused persons who are residing in her matrimonial home.
  8. In paragraph 13 of the complaint, what is stated is that there was a meeting on 18.5.2010 at the residence of the applicant No. 2 in which meeting, applicant No. 2, together with accused No. 1-Vaibhav and accused No. 3-Anuradha levelled several false and baseless allegations against the Non-applicant No. 2 in the presence of remaining accused persons. However, what allegations were levelled against her, has not been mentioned by the Non-applicant No. 2. On the basis of statement that false and baseless allegations have been made by one person against another, offence of cruelty is not prima facie constituted. Making of such a statement only discloses the opinion of it’s maker and, therefore, the complainant, who wishes to prove her case of cruelty, must specify the allegations in the complaint so as to enable the other side to meet them appropriately and also enable the Court to decide, as to whether or not these allegations really constitute in law the offence of cruelty, which is not the case here. The statements so made in paragraph 13, therefore, cannot be considered to be sufficient for prima facie constituting offence punishable under Section 498-A of the Indian Penal Code. The statement in paragraph 13 attributed to applicant No. 1 which is to the effect that he has advised Non-applicant No. 2 to mend her ways and improve herself, which is nothing but giving of an elderly advice, wrongly or rightly and it cannot amount to cruelty.
  9. In paragraph 14 of the complaint, it is alleged that the accused Nos. 1 to 4 and 6 forced the complainant to apologize and make a solemn promise that the complainant shall not chat on “ORKUT”, a social networking site. I do not think that even this allegation can amount to harassment within the meaning of Section 498-A of the Indian Penal Code as it has no relation to driving the complainant into such behavior as to endanger her life or cause injury to herself. This allegation also does not have any relation to coercing of the complainant into meeting any unlawful demand for any property or valuable security. On the contrary, spending long time on social networking site such as “ORKUT” or “FACEBOOK” by a person can be viewed as mental harassment by another spouse and, therefore, if the spouse is advised to spend loss time on a social networking site or desist from visiting it, the advice is capable as being seen as made with a view to keep the marriage intact and not otherwise.
  10. Except the above referred allegations, there are no other allegations made against both the applicants and learned counsel for the Non-applicant No. 2-complainant could also not show to me any other allegations except for the afore stated allegations. I have already found that the afore stated allegations do not prima facie constitute any of the offences punishable under Sections 498-A, 406 and 417 of the Indian Penal Code. Therefore, no process for these offences could have been issued against both these applicants. 
    Although learned Magistrate, while issuing process has observed in the order that he has read the complaint, the above referred discussion would show the position to be otherwise. He does not seem to have read the complaint properly. The allegations contained in the complaint, so far as present applicants are concerned, do not make out any case and, therefore, disagreeing with learned counsel for the Non-applicant No. 2, I find that calling upon the applicants to face the ordeal of trial in such a situation would amount to grave injustice to the applicants. The complaint, therefore, as against both the applicants deserves to be quashed and set aside. Accordingly, the application is allowed.
  11. The impugned order of issuance of process under Sections 498-A, 406 and 417 of the Indian Penal Code against the applicants is hereby quashed and set aside.
  12. The complaint as against both the applicants also stands dismissed. The trial as against remaining accused persons, however, shall proceed further in accordance with law.

498a Dv 125 wife torments sisters in laws & drives one out ! Husband wins divorce @ P&H HC. 16 years of misery ends !!

  • Married in 2000, the wife is sick for a long time with husband meeting all medical expenses
  • She leaves matrimonial home circa 2002 and never returns
  • In spite of husband calling her back many times she refuses. Finally goes on to file false 498a against the husband “…. Ultimately she got registered FIR No.163 of 2002 under Sections 498-A/406 IPC against the husband and his family members. She also filed petition under Section 125 Cr.P.C against the husband….” in which case the husband and others are acquitted “…competent criminal Court in the trial arising out of FIR No.163 dated 08.09.2002, registered under Sections 406/198- A/323/34 IPC, at Police Station Julana. Accused Chattar Singh, Dhanno and Naveen were acquitted by the criminal Court vide judgment dated 14.07.2009. Chattar Singh and Dhanno are the parents of Naveen (husband). The criminal Court while acquitting the accused in the aforesaid case recorded the findings that admittedly there was no medical evidence to support the version of the prosecution witnesses regarding beatings and unconscious breathlessness of the victim for 3-4 days. The complainant herself admitted that she came to the parental house along with her daughter of her own and in these circumstances, no fault could be attributed to the accused persons….”
  • Even during her stay she is so cruel to her husband and her sister’s in law (bhabi) that she drives out one of her bhabis and victimizes another bhabi !! “…Respondent-Husband further alleged that the attitude of the wife was so cruel that she also made life of her Bhabi namely Gayatri Devi wife of Devender Singh a hell in her house and thereafter the wife along with her family members turned out Gayatri Devi from her matrimonial house in village Julana. Gayatri Devi also moved an application against the appellant- wife in Mahila Police Station. The wife along with her family members harassed and humiliated the second wife of Devender namely Kavita, who also left the house and lodged the complaint under Sections 406/498-A IPC against the appellant-wife and her family members. Appellant-wife played active role in the occurrence where Kavita was victimized. With these allegations the original petition came to be filed…
  • finally husband wins divorce at family court in 2006. Wife goes on appeal and that drags on for a decade
  • at the HC the wife’s counsel argues that the words ‘benefit of doubt’ is used in the husband’s 498a acquittal and so his acquittal is not on merits and so he should NOT be granted divorce
  • The Hon P & HC appreciates the facts, and dismisses the wife’s appeal, thereby confirming husband’s divorce !! “….[20]. The words ‘benefit of doubt’ cannot be appreciated in the manner as sought to be projected by the learned counsel for the appellant. The acquittal was on merits as there was no incriminating evidence available on record, therefore, use of words like ‘benefit of doubt’ was the result of standard practice in the trial courts and was simply a misnomer. The entrustment of dowry was not proved. Guilt of the accused could not be brought to the hilt. The order of acquittal recorded by the criminal Court was upheld by the First Appellate Court in appeal as well……”
  • Additionally the Honourable court also confirms an important dictum that “…. The parties were living separately from 10.02.2002. The decree was granted on 01.03.2006 during pendency of the criminal case. The acquittal recorded during pendency of the appeal can be taken into consideration by way of judicial notice...” and so considers the acquittal in 498a case as valid grounds for divorce

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M No.65-M of 2006 (O&M)

Date of Decision: 31.05.2016

Smt. Mukesh ……Appellant

Vs

Naveen Kumar …..Respondent

CORAM:

HON’BLE MR. JUSTICE M. JEYAPAUL

HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Ashok Aggarwal, Advocate for the appellant.

Mr. C.B. Goel, Advocate for the respondent.

RAJ MOHAN SINGH, J.

[1]. Appellant-wife being respondent in the original petition filed before the Additional District Judge, Sonepat suffered the contested decree under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’), dissolving the marriage amongst the parties by decree of divorce on the ground of cruelty and desertion. She has ventured to file the present appeal against the said judgment and decree dated 01.03.2006.

[2]. Brief facts as gathered from the record are that the respondent-husband filed petition under Section 13 of the Act against the appellant-wife on the averment that the marriage among the parties was solemnized on 07.11.2000 according to Hindu rites and ceremonies. The wife started living with the husband as his legally wedded wife. Marriage was consummated and one female child took birth out of this wedlock on 30.08.2001, who was living with the appellant-wife. The marriage was simple and dowry-less. Respondent-husband attributed allegations of arrogance and hostile behavior of the appellant-wife towards him and his family members. Husband also alleged that the wife was short tempered and used to pick quarrels on trivial issues. She remained ill from the very first day of the marriage and was provided medical attention till the date of delivery. She was treated in Kuldeep Nursing and Maternity Home, Gohana on 14.12.2000 and her treatment continued till 30.06.2001. Ultimately child took birth on 30.08.2001 in PGIMS, Rohtak. The entire expenses were borne by the husband. She was again checked up in the Hospital and CT scan was also got conducted.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

[3]. It was further alleged by the respondent-husband that he treated the appellant-wife with all love and affection, but inspite of that her behaviour never changed towards him and his family members. After the birth of the child, the wife started leaving the matrimonial house without prior consent of the husband and his family members. The persuasion of the husband became futile. Husband was unemployed and was having no source of income. The wife was in the habit of extending taunts and also pressurised respondent-husband to settle at her parental house at Julana with her brother, who was employed in Health department.

[4]. Respondent-Husband further alleged that on 10.02.2002, the wife along with minor daughter left the matrimonial house. The respondent-husband and his family members kept on searching her and they went to the parental house where both of them were present. She was reluctant to come to the matrimonial house and gave threat to the husband and his family members for implicating them in false criminal case. Ultimately she got registered FIR No.163 of 2002 under Sections 498-A/406 IPC against the husband and his family members. She also filed petition under Section 125 Cr.P.C against the husband. Wife was an educated lady whereas the husband was unemployed, who was in search of job. Husband was fully dependent upon the income of his parents.

[5]. Respondent-Husband further alleged that the attitude of the wife was so cruel that she also made life of her Bhabi namely Gayatri Devi wife of Devender Singh a hell in her house and thereafter the wife along with her family members turned out Gayatri Devi from her matrimonial house in village Julana. Gayatri Devi also moved an application against the appellant- wife in Mahila Police Station. The wife along with her family members harassed and humiliated the second wife of Devender namely Kavita, who also left the house and lodged the complaint under Sections 406/498-A IPC against the appellant-wife and her family members. Appellant-wife played active role in the occurrence where Kavita was victimized. With these allegations the original petition came to be filed.

[6]. Appellant-wife being respondent in the original petition contested the case by filing written statement. All the allegations were denied. Filing of criminal case was admitted. Source of income available with the husband was asserted. Filing of petition under Section 125 Cr.P.C., was also admitted. The story viz-a-viz. wives of Devender Singh namely Gayatri Devi and Kavita was denied and appellant-wife claimed that she never participated in those episodes. No Panchayat was ever convened. She showed her willingness to join the matrimonial house with the respondent-husband, provided that he changes his rude behaviour. The filing of the petition was claimed to be a devise to avoid payment of maintenance.

[7]. Both the parties went to the trial on the following issues:- “1. Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP  2. Relief.”

[8]. Both the parties led their respective evidence to prove their case.

[9]. After leading evidence, trial Court appreciated the material on record and accepted the petition vide judgment and decree dated 01.03.2006. That is how the present appeal came to filed by the appellant-wife.

[10]. We have heard learned counsel for both the sides.

[11]. During pendency of the appeal civil misc. No.7308-CII of 2014 was filed by the respondent-husband seeking to adduce additional evidence in the form of Annexures P-1 to P-4, which are nothing but the orders passed by the concerned Courts from time to time. In order to properly appreciate the controversy, the said application is allowed and the accompanying documents are taken on record as additional evidence for deciding controversy effectively and appropriately between the parties.

[12]. With the pleadings and evidence on record, whether the instances of cruelty and desertion as alleged are made out or not became inconsequential in view of the development which took place later on for which this Court is always competent to take judicial notice. More particularly, as per information submitted by the respondent by moving application under Order 41 Rule 27 read with Section 151 CPC, it is a settled principle of law that the Court is always competent to take notice of subsequent events for effective adjudication of the controversy between the parties.

[13]. Annexure P-1 as adduced along with the said application for additional evidence is the decision rendered by the competent criminal Court in the trial arising out of FIR No.163 dated 08.09.2002, registered under Sections 406/198- A/323/34 IPC, at Police Station Julana. Accused Chattar Singh, Dhanno and Naveen were acquitted by the criminal Court vide judgment dated 14.07.2009. Chattar Singh and Dhanno are the parents of Naveen (husband). The criminal Court while acquitting the accused in the aforesaid case recorded the findings that admittedly there was no medical evidence to support the version of the prosecution witnesses regarding beatings and unconscious breathlessness of the victim for 3-4 days. The complainant herself admitted that she came to the parental house along with her daughter of her own and in these circumstances, no fault could be attributed to the accused persons. The criminal Court also found that the accused had faced the allegations twice and it was doubted whether family of the complainant was using the method of filing complaint for grabbing the money from the accused persons and that is why the complainant already tried to involve as much relatives of the husband as they wanted. As regards offence under Section 406 IPC, the prosecution relied upon the version of complainant Mukesh and her mother whereas both the versions were found to be different. Entrustment of the dowry articles to any of the accused was not proved.

[14]. The submission of the learned counsel for the appellant-wife that the articles were lying in the police station from where the same were not claimed by the complainant was a misnomer only in view of the positive findings recorded by the criminal Court that entrustment of the dowry articles was not proved with the accused. The criminal Court while disbelieving the prosecution story ultimately held that the offence whatsoever against the accused was not proved by the prosecution and the court felt no doubt to acquit the accused persons by extending benefit of doubt in their favour. The words used as ‘benefit of doubt’ by the criminal Court were the standard observations of the court and was a misnomer, otherwise the evidence on record before the criminal Court was sufficient to discard the prosecution story to the hilt.

[15]. Counsel for the respondent-husband also relied upon Annexure P-2 the orders passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein the complaint filed under Section 12 of the aforesaid Act was held not maintainable though that order is of not much significance so far as the controversy involved in the present case is concerned.

[16]. Annexure P-3 is also an order passed by the competent Court under Section 125 Cr.P.C. for grant of maintenance in favour of wife. The petition was disposed of on the basis of consensus arrived at between the parties and, therefore, this order is also of no significance in the present context.

[17]. Annexure P-4 is the judgment rendered by the Court of Additional Sessions Judge, Jind in appeal, against the judgment of acquittal dated 14.07.2009 recorded by the Judicial Magistrate, Jind, which was challenged by the State and the same was dismissed vide judgment dated 06.04.2011.

[18]. The parties were living separately from 10.02.2002. The decree was granted on 01.03.2006 during pendency of the criminal case. The acquittal recorded during pendency of the appeal can be taken into consideration by way of judicial notice.

[19]. In the light of aforesaid facts the judgments cited by the learned counsel for the appellant Radha Rani vs. Har Bhagwan, 2005 (1) RCR (Civil) 508 and (Smt). Asha Gupta alias Anju Gupta vs. Rajiv Kumar Gupta, 2005 (1) RCR (Civil) 663 do not advance the case of the appellant in any manner. Case laws cited by the learned counsel for the appellant are on different premise and are of no help to the appellant-wife. After acquittal of the husband in criminal case, ground of cruelty came to the fold of the respondent-husband, who can effectively put up this ground to allege cruelty and to seek divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

[20]. The words ‘benefit of doubt’ cannot be appreciated in the manner as sought to be projected by the learned counsel for the appellant. The acquittal was on merits as there was no incriminating evidence available on record, therefore, use of words like ‘benefit of doubt’ was the result of standard practice in the trial courts and was simply a misnomer. The entrustment of dowry was not proved. Guilt of the accused could not be brought to the hilt. The order of acquittal recorded by the criminal Court was upheld by the First Appellate Court in appeal as well.

[21]. In view of aforesaid, this Court does not find any worth in the appeal filed by the wife and the same is accordingly dismissed.

(RAJ MOHAN SINGH)                             (M. JEYAPAUL)
JUDGE                                               JUDGE

May 31, 2016

Atik

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