Daily Archives: March 3, 2017

My husband is suffering from cancer, so I filed 498Aon his family and fakerape on my brother-in-law !!!

I got angry because my husband is suffering from cancer, so I #Attacked my mother in law who had to be rushed to the #hospital… I also went to head and filed #498a on my husband’s family and #fakeRAPE on my brother-in-law !! Now wish to settle &  live peacefully… So could you please #quash all cases 😳😳😳


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            

SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5374 of 2015

                                            

With

                     

CRIMINAL MISC.APPLICATION NO. 8428 of 2015
         ==========================================================

                     

SUBHASHBHAI HARIBHAI SHIHORA….Applicant(s)

                                      

Versus

                        

STATE OF GUJARAT & 1….Respondent(s)

         ==========================================================

         

Appearance:

MR IH SYED with MR CHIRAG B UPADHYAY, ADVOCATE for the Applicant(s) No. 1

         

MR YV VAGHELA, ADVOCATE for the Respondent(s) No. 2

         

MS SHRUTI PATHAK, APP for the Respondent(s) No. 1

         ==========================================================
          

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
                                     

Date : 02/03/2017

                                      

ORAL ORDER
Leave is granted to implead Hitesh Haribhai Shihora as the applicant no.4 in the Criminal Misc. Application No.8428 of 2015. The cause-title be amended forthwith.
Since the issues raised in both the captioned applications are the same and the challenge is also to a selfsame FIR, those were heard analogously and are being disposed of by this common judgment and order.
RULE returnable forthwith. Ms.Pathak, the learned APP waives service of notice of rule for and on behalf of the respondent no.1. Mr.Ankit Pandya, the learned advocate waives service of notice of rule for and on behalf of the respondent no.
The registry shall accept the Vakalatnama of Mr.Ankit Pandya, who has replaced Mr.Y.V.Waghela, who was earlier appearing for the first informant.
The applicants before me are the original accused persons named in the FIR bearing CR No.I-36 of 2015 registered at the Bopal Police Station, Ahmedabad (Rural), for the offence punishable under Sections 498A, 323, 504, 354(A) (1) read with Section 114 of the Indian Penal Code as well as Sections 3 and 7 of the Dowry Prohibition Act. At a later stage, Sections 376 and 506(2) of the Indian Penal Code came to be added.
The applicant of the Special Criminal Application and the applicant no.1 of the Criminal Misc. Application happens to be the brother-in-law of the first informant. The applicant no.2 is the wife of the brother-in-law, the applicant no.3 is the mother- in-law and the applicant no.4 is the husband of the first informant.
It appears from the materials on record that the first informant got married to one Hiteshbhai Haribhai Shihora on 15th May 2009. In the wedlock, two children were born. It also appears that matrimonial disputes cropped up, which led to filing of the first information report. Initially, the FIR was filed for the offence of cruelty punishable under Section 498A of the Indian Penal Code and other sections including Section 354(A) of the Indian Penal Code. In such circumstances, the accused persons came before this Court by filing the Criminal Misc. Application No.8428 of 2015 for quashing of the FIR. Later on, the statement of the first informant under Section 164 of the Code of Criminal Procedure came to be recorded, and on the strength of the same, Sections 376 and 506(2) of the Indian Penal Code came to be added. In such circumstances, the Special Criminal Application No.5374 of 2015 came to be filed with the following prayers :
“(a) Issue a writ of mandamus or any other writ or order or directions to the Inspector General of Police, Ahmedabad Range, Ahmedabad for conduct of a fair and impartial investigation into the present FIR including the issues raised in the applications dated 04.07.2015 given to the IGP, Ahmedabad Range on behalf of the applicant;
(b)Direct the Inspector General of Police, Ahmedabad Range, Ahmedabad, to personally supervise the investigations of this case, including investigations into the issues raised by the applicant in the application dated 04.07.2015 and submit a report to this Hon’ble Court;
(c) Pending admission and till final disposal of the present application and till investigations into the issues raised in the applications dated 04.07.2015 are investigated, no coercive steps be taken against the applicant;
(d) Pass any such other orders as may be deemed fit, proper and just in the interest of justice pending admission, hearing and final disposal of the present Application.”

The parties are personally present today in the court. The first informant is also very much there along with her two children and husband. The brother-in-law against whom she has levelled allegations is also present along with his wife and two children. The mother-in-law is also very much present.
The picture that emerges from the materials on record is that the matrimonial dispute went to such an extent that the first informant levelled serious allegations of offence under Section 376 of the Indian Penal Code. Such allegations have been levelled against the brother-in-law, viz. Subhash Haribhai Shihora.

I need not adjudicate the two matters before me because the parties have amicably settled the dispute. Since serious allegations have been levelled, I requested Ms.Pathak, the learned APP, to speak to the first informant personally.
It appears that in the heat of the moment and being tired of the matrimonial problems, she went to the extent of levelling false allegations against the brother-in-law. She has reconciled with her family. They decided to live separately.
Having regard to the relations of the parties and the settlement arrived at, the investigation at the end of the police is not warranted.
The first informant has also filed an affidavit, inter alia, stating as under :
“I, Sejalben Hitesh Kumar Shihora, the Original Complainant in the FIR bearing No.I-36/2015 of Bopal Police Station, Ahmedabad Rural District, and Respondent No. 2 herein, do hereby state on oath that:
1) That I am a housewife and a mother of two children aged about 6 years and about 2 years. I state that I am the first informant in case registered at Bopal Police Station, Ahmedabad Rural District vide Cr.No.I-36/2015 under Sections 498A, 323, 504, 114, 354(A)(1)(1), 376 and 506(2) of the IPC and Under Sections 3 & 7 of the Dowry Prohibition Act.
2) I state that due to the life threatening disease of my husband, Shri Hitesh Kumar Shihora, I used to be irritable and in a confused and disoriented state of mind. My husband was suffering from cancer and the responsibility of two children had caused me great mental distress and trauma, which was the reason for me being in a state of great mental confusion and disorientation.
3) On 21.04.2015, I had an altercation with my mother- in-law over a very petty issue, which is very common in any family in a day-to-day living. In the mental state that I was, I had lost my cool of mind and had thrown some crockery/articles on my husband as well as on my mother-in-law. My mother-in-law was injured and had to be taken to the hospital in an “108” ambulance, which had come with “181 Mahila Helpline” police. I was under great mental stress and also apprehensive of police action against me.
4) It is out of this frustration that I had registered the aforesaid offence on 21.04.2015 against my husband as well as the rest of my in-laws. I humbly submit that the local police, which was supporting a builder, against my brother-in-law and others, had sensed my mental confusion and disorientation and had convinced me into falsely making allegations of rape, even when there was none. And in my confused mental state and disorientation, I could not realise the nefarious designs of the local police and consequently, out of error and confusion, had falsely alleged the offence of rape against me on 17.04.2015, by my brother-in-law, which led to the addition of Section 376 of the IPC. This section was not present in the original complaint given by me on 21.04.2015.
5) I submit that I realised the monumental mistake committed by me in getting influenced by local police. For the sake of justice and truth, on 22.08.2016, I submitted a sworn affidavit to the Inspector General of Police, Ahmedabad Range and the Investigating Officer, retracting from the aforesaid charges I had made against my husband and in-laws. A copy of the aforesaid affidavit is annexed to this affidavit and marked herewith as ANNEXURE ‘A’.
6) I had also approached the Mahila Aayog, Gandhinagar, and had sought an apology for my mis-judgment and indiscretion in getting the aforesaid FIR registered against my husband and his family members, which, as has been mentioned above, was filed under a great state of mental confusion and disorientation.
7) I submit that neither rape, as mentioned in the aforesaid FIR, was committed on me nor has there been any cruelty perpetrated on me by my in-laws. My brother-in-law has always treated me with great respect and care and has not done any criminal act on me, as had been alleged by me under great mental disorientation and confusion. My in-laws have treated me very affectionately and have been very supportive all through my marital life and I have not been subjected to any cruelty. My in-laws have forgiven me for making such a baseless complaint to the police.
8) I submit that I have no complaint against any of the accused on any count. The complaint given by me to the police was under great mental stress and disorientation and was done without my free conscious knowledge. I am happy in my family life and firmly believe that it will continue to be so in future also. My husband has also recovered from cancer and this had considerably reduced the stress on me. I am conscious that if the aforesaid complaint is allowed to survive, it will adversely impact my family life and happiness.
9) In view of the above, I pray before this Hon’ble Court to quash and set aside the aforesaid FIR bearing CR. No. I 36/2015 of Bopal Police Station to secure the ends of justice.”
The same is ordered to be taken on record.
The first informant wants to live a happy and a peaceful marital life with her husband and children. She would also like to reconcile with the other family members of the husband and that is the reason why I have accepted the settlement. The accused persons have assured that they shall give no opportunity to the first informant to complain in future.

In the result, both the applications are allowed. 
The First Information Report bearing CR No.I-36 of 2015 registered at the Bopal Police Station, Ahmedabad (Rural), is hereby ordered to be quashed. All consequential proceedings pursuant thereto stand terminated. Rule made absolute. 
Direct service is permitted.

(J.B.PARDIWALA, J.) 
MOIN 

No maintenance to deserting wife. Punjab HC

 

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM PETITIONER

VERSUS

MAHENDER KUMAR RESPONDENT
Criminal Misc. No.M-24684 of 2008 (O&M)
Present : Mr.P.L. Goyal, Advocate, for the petitioner. Mr. S.D. Bansal, Advocate, for the respondent.

 
Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents.
A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs. 10,000/- per month as she was M.A. B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the same time, affirming the finding recorded by the trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.
I have heard Mr. P. L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and have gone through the records of the case. The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons.
The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only in getting maintenance allowance and taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids.

 

In the case of Smt .Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code. In view of the above, the present petition is dismissed being without any merit.
March 19, 2009.
(MOHINDER PAL)

JUDGE

Ak