Daily Archives: June 20, 2016

Mere photos of husband’s shop NOT enough 2 prove income or ownership. Wife gets just 1200 p.m. from DV case !

A wife who lies in her affidavit and hides her professional qualifications tries to say that husband is earning a huge amount of money by showing some photographs of his automobile repair shop. the court dismisses her claims and says a mere photo is not proof of ownership and where wife has not proven husband’s income, court has to go with the admitted income of the husband !

Specifically, the court orders “… At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent….”

Criminal Appeal No.33/15

IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI

Criminal Appeal No. : 33/2015
Under Section : 12 of Protection of Women From Domestic Violence Act, 2005.
Police Station : M.S. Park
Case No. : V-128/14
Unique I.D. No. : 02402R0312462015

In the matter of :-

Smt. MANJU
D/o. Sh. Shiv Lal,
W/o. Sh. Gaurav,
R/o. H.No.D-198, Gali No.8, Jagatpuri,
Mandoli Road, Shahdara, Delhi-110032. …………..Appellant

VERSUS

Sh. GAURAV
S/o. Sh. Harpal Singh,
R/o. H.No.128, Shastri Nagar,
District Ghaziabad, U.P. …………..Respondent

Date of Institution : 03.09.2015
Date of receiving the case in this court : 04.09.2015
Date of reserving order : 22.09.2015
Date of pronouncement : 05.10.2015
Decision : Appeal is dismissed.

JUDGMENT

  1. This is an appeal preferred against the order dated 14.08.2015, passed by the trial court in a case titled as Smt. Manju v. Gaurav & Ors., bearing case no.V-128/14, filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005. Vide impugned order respondent was directed to pay a sum of Rs. 1,200/- per month in favour of appellant from the date of filing of present petition till pendency of petition as interim maintenance and accordingly application under Section 23 of the Act was decided.
  2. Briefly stated, the relevant facts giving rise to this appeal are that Complainant/appellant herein filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband and her in- laws. The appellant made several allegations against her husband and in-laws regarding demand of dowry, coupled with threats, harassment and abusing at her matrimonial house. She also alleged that she had been illegally, unauthorizedly and unlawfully forced by her husband and in-laws to leave her shared household/matrimonial home i.e. H.No.128, Shastri Nagar, District Ghaziabad, U.P and she was thrown out of her house and was compelled to reside at her parental house. Appellant prayed for several reliefs including payment of monthly maintenance by her husband.

  3. Appellant filed application under Section 23 of the Act. Respondents contested the main application as well as the application under Section 23 of the Act. Both parties filed their affidavit in respect of their income and other particulars, as per directions given by High Court of Delhi in the case of Puneet Kaur v. Inderjit Singh Sawhney, MANU/DE/7166/2011. Trial court vide impugned order decided the application under Section 23 of the Act.

  4. Being aggrieved of the impugned order, appellant has preferred this appeal on the following grounds :- “…That the trial court did not appreciate that respondent had not filed the proper affidavit and he had concealed his income in his affidavit as well as written statement. That the respondent is running his own work shop in the name and style of M/s. Durga at ITI Shastri Nagar, Ghaziabad, U.P for repairing motorcycles of various companies and is also having four and five labours. Furthermore, respondent also repairs motorcycles on contract basis in various Government Department at Ghaziabad and he is earning Rs. 1,00,000/- per month. Respondent is also maintaining four wheeler vehicle bearing registration no.UP-14CD-2389. ..” That the trial court did not appreciate that the respondent did not disclose his place of work in his written statement and he simply mentioned that he was working as a tube repairing worker.

  5. On the other hand, respondent contested this appeal and filed his reply thereby supporting the order passed by the trial court. He denied the facts relating to allegations made by appellant against him as well as his other family members. Respondent further pleaded that appellant herself is running coaching center of stitching as well as fashion designing and she is earning Rs. 10-15,000/- per month. He further pleaded that appellant is well educated lady and has done diploma in cutting and tailoring as well as diploma in basic computer and diploma of fashion designing. Respondent pleaded that appellant is not entitled for maintenance because she is having sufficient source of income and is well qualified. Respondent filed photograph of diploma certificates in the name of appellant.

  6. During the course of argument, ld. counsel for appellant referred to the photographs placed by appellant in the trial court record, showing one Wagon-R car and photo of Durga Auto services. Ld. counsel further referred to the trial court record to submit that respondent had suppressed his income and thereafter, he was directed to file fresh affidavit, wherein he disclosed his income as Rs.3,000-4,000/- per month. Ld. counsel argued that the amount of Rs.1,200/- is not sufficient to meet the expenses of the appellant and therefore, the present appeal has been filed.

  7. On the other hand, ld. counsel for respondent argued on the lines of his reply and submitted that even appellant had suppressed her professional qualification in the first affidavit. He further submitted that though appellant herself is earning, but she concealed this fact. It was also argued that appellant had suppressed about her inability to conceive since the time of her marriage and in fact appellant had caused mental trauma for the respondent.

    8. In this appeal, this court is concerned about the legality of the impugned order, vide which the trial court has fixed an interim maintenance in favour of the appellant. The challenge is to the amount of interim maintenance. On perusal of the trial court record, I find that though appellant claimed that respondent had been earning Rs.1 lac per month apart from rental income of Rs.10,000/- per month, but except for placing photograph of Durga Auto Services and one motorcar, no supporting material was placed in support of such contentions. Respondent has pleaded that he is working as auto repair mechanic in the work shop of other person and he does not earn more than Rs.4,000-5,000/- per month. As far as concealing his income in his first affidavit is concerned, I do find that in the initial affidavit, respondent had shown his salary as nil. Thereafter, he filed amended/fresh affidavit wherein he disclosed monthly income of Rs.3,000-4,000/-. However, this tendency of concealing a fact is not limited to the respondent only. I find that even appellant had concealed her professional qualification in the first affidavit filed by her, wherein she mentioned professional qualification as nil. Later on, she also filed another affidavit thereby mentioning her professional qualifications as well. Thus, the tendency to conceal any fact is common for both these parties and I hope that the trial court shall take due care of such tendency of both the parties, during trial of the case.

  8. At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent. Such amount of interim maintenance can be modified, after having sufficient evidence on the record regarding merits of the case as well as the income of the respondent. At this stage, I do not find any worth argument or material placed on the record to interfere with the finding arrived at by the trial court in respect of the quantum of interim maintenance. Therefore, appeal is dismissed.

  9. Copy of this judgment be sent to the trial court, to be placed in the file of case no.V-128/14.

File be consigned to record room, as per rules.

Announced in the open court today on 05.10.2015

(PULASTYA PRAMACHALA)

Additional Sessions Judge (Shahdara)

Karkardooma Courts, Delhi

11 months Jail for a FALSE rape case AFTER girl eloped. Falsity apparent says Allahabad HC & grants bail

  • Girl seems to have voluntarily eloped with the boy
  • however, claiming that the girl is only 16 years old a rape case is filed and the boy incarcerated since 08. July 2015 !! (approx 11 months)
  • Court notices and states the following “…. allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164 Cr.P.C., it is apparent that she has voluntarily eloped with the applicant. The applicant has no criminal history. The applicant is in jail since 8.7.2015. The falsity of the case is apparent from the fact that the Nana and Baba of the applicant have also been implicated in the present case….”

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 4

Case :- BAIL No. – 4796 of 2016

Applicant :- Vimlesh Katheriya

Opposite Party :- State Of U.P.

Counsel for Applicant :- Jairam Bharti
Counsel for Opposite Party :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Heard Sri Jairam Bharti, learned counsel for the applicant and Ms. Sushma Shukla, learned A.G.A. appearing for the State.

It is submitted by learned counsel for the applicant that as per medical opinion, prosecutrix is 16 years. The law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. Although, she has made an allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164 Cr.P.C., it is apparent that she has voluntarily eloped with the applicant. The applicant has no criminal history. The applicant is in jail since 8.7.2015. The falsity of the case is apparent from the fact that the Nana and Baba of the applicant have also been implicated in the present case.

Learned A.G.A. opposed the prayer for bail.

Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.

Let the applicant Vimlesh Katheriya involved in Case Crime No. 587 of 2015 under sections 323, 342, 363, 376 I.P.C. and 3/4 POCSO Act, police station Mishrikh, District Sitapur be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions.

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 14.6.2016

shiraz

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