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Father of a lovely daughter, criminal in the eyes of a wife, son of an elderly mother, old timer who hasn't given up, Male, activist

Sec 127 Maint increase NOT retrospective. Only from Order !

Order directing the enhancement of maintenance amount can stand only from the date of the order and not from the date of the application

The Hon Court orders and we quote "….The main effect of passing an order of enhancement of maintenance retrospectively is, in the ultimate analysis imposing a liability upon one party. So the question is whether a legal liability can be created retrospectively when Legislature is silent on the point. Under Section 125, Cr. P.C., the Legislature has specifically empowered the Magistrate to create the liability either from the date of the order or from the date of the application. But Section 127, Cr. P.C. has not expressly empowered the Magistrate to create that liability. An argument may be raised that a proviso cannot take away what has been given in the Section itself. Even this argument does not hold any water …."

*****************************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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr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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Calcutta High Court

Joydeb Chakraborty vs Smt. Bharti Chakravarty on 4 March, 1994

Equivalent citations: 1994 CriLJ 2234

Author: N Batabyal

Bench: N Batabyal

ORDER N.K. Batabyal, J.

1. This revisional case arises out of an application under Section 482 read with Section 401 of the Cr. P. C., 1973 and is directed against an order dated 23-2-93 passed by the learned 3rd Judicial Magistrate, Howrah in Misc. Case No. 10/83 in a proceeding under Section 127 of the Cr. P. C.

2. The marriage between the petitioner and the opposite party No. 1 was solemnised according to Hindu rites and Customs on 20-4-1976. After the marriage the parties lived together and the relationship between the parties became strained and the wife-opposite party deserted the husband. Attempts at compromise failed. In 1980 the husband filed Matrimonial Suit No. 116/80 in the Court of the learned District Judge, Howrah for restitution of conjugal rights but he withdrew that suit in January, 1983. The wife then filed an application under Section 125 of the Cr. P.C. in the Court of the learned S.D.J.M., Howrah praying for maintenance at the rate of Rs. 200/- per month. The learned Magistrate by order dated 31-5-1986 directed the husband-petitioner to pay maintenance at the rate of Rs. 150/- per month to the wife-opposite party from the date of filing of the application. The husband-petitioner paid the maintenance as per the above order. In December, 1991, the wife-opposite party filed an application under Section 127 of the Cr. P.C. for a direction to pay enhanced maintenance at the rate of Rs. 500/ – per month alleging, inter alia, that the market price of essential commodities had become high and she was unable to maintain herself with the paltry amount. The husband filed objection thereto. Upon hearing the parties the learned Judicial Magistrate, 3rd Court, Howrah by the impugned order dated 23rd February, 1993 was pleased to enhance the maintenance to the extent of Rs. 450/ – per month from the date of the application under Section 127 of the Cr. P.C. and directed the husband-petitioner to pay the said sum of Rs. 450/- along with the arrear maintenance at the rate of Rs. 100/- per month till the arrears sum stood liquidated. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

3. Being aggrieved by and dissatisfied with the order passed by the learned Magistrate, the husband has come before this Court.

4. The main contention of the petitioner is that the learned Magistrate had no jurisdiction to enhance the maintenance amount under Section 127 of the Cr. P. C. retrospectively from the date of the application under the said Section. The learned Lawyer for the wife-opposite party contested the application vigorously. No one has appeared on behalf of the State-opposite party.

5. The only point for consideration is whether the impugned order is liable to be quashed.

6. Mr. Subir Banerjee, learned Advocate for the revisionist has submitted that the learned Magistrate can only order increased payment from the date of the order and not from the date of the application. In support of his contention, the learned Advocate has relied upon the principles laid down in J.H. Amroon v. Mrs. R. Sassoon AIR 1949 Cal 584 : (50 Cri LJ 1006). In that case there was a revision from an order of the learned Chief Presidency Magistrate, Calcutta raising maintenance from Rs. 12/- to Rs. 50/- per month with effect from the month of September, 1948 while the application for alteration of the allowance was made on 31st August, 1948. In that case, it was argued on behalf of the petitioner that the order of retrospective payment was illegal. A learned single Judge of this Court after considering the decisions of other High Courts of India on the point, as there was no decision on the point of our High Court, came to the conclusion that the Magistrate had no power to order the increased allowance to be paid with effect from the date of application but only from the date of the order increasing the allowance.

7. The learned Judge considered Hiralal Valavdas v. Bai Amba and Mt. Lilawati v. Madan Gopal AIR 1935 Lah 24 : (37 Cri LJ 68). In the Bombay case, a Division Bench of the Bombay High Court held that a Magistrate has power to increase the rate of maintenance once awarded and to direct that the increased rate of maintenance be paid from the date of the application asking for the increase. The reasons given by the Bench are as follows :-

"It has been argued that the Magistrate has no jurisdiction to make

the order. Under Section 488, the Magistrate has power to make the

maintenance payable from the date of the application. We cannot see

why he should not have the same power to direct, if he thinks fit,

when an application is made to vary the order as regards the

maintenance payable, that maintenance at the increased rate should be

paid from the date of the application."

8. The Lahore decision is a Single Bench decision. In that case the petitioner was granted a monthly allowance for maintenance of herself and her children. The petitioners applied for executing the order of maintenance and collecting the arrears. Her husband represented that the amount fixed was too heavy for his reduced income. The learned Magistrate reduced the allowance from Rs. 25/- to 20/- per month on the ground that although the husband’s income has undergone no change, the wife had obtained an employment at a rate of Rs. 6/- per month. The order of the Court was as follows:-

"The order reducing the rate for the months-of December to March

retrospectively appears to me to be clearly improper. There had been

no application by the husband under Section 489 for the reduction of

the maintenance."

"The petitioner had 2 children when the maintenance order was passed

in April, 1932, one child was nine and the other was only a few

months old. Their expenses have presumably increased. The income of

the respondent is what it was. In the circumstances, the Magistrate

had no justification for reducing the rate of maintenance, I…set

aside the order of the Magistrate that payment is to be made… at

ther rate of Rs. 20/- per mensem and I make the warrant of attachment

isseued by him only for Rs. 100/- instead of Rs. 80/-."

9. It appears that nothing in the order deals with the matter of retrospective effect as a substantive issue. The learned single Judge of our High Court differing from the view taken by the Bombay High Court observed as follows:-

"The Bombay High Court decision is based on the consideration of

Sections 488 and 489 as they now stand but this decision is not

binding on me and with all respect to the learned Judges I am not

prepared to adopt it for the short reason that the Legislature had

thought it fit to amend Section 488(2) as it now stands with the

result that the Magistrate has the power to make the allowance

payable either from the date of the order or from the date of the

application for maintenance. Section 489 contains no such power. The

powers of the learned Magistrate are to be sought within the four

corners of the Code. The Legislature has given the Magistrate a power

to date back the order for maintenance in the first instance of the

date of the application. It has not given the Magistrate the

corresponding power to the alteration in the allowance."

10. Mr. Talukdar, learned Advocate for the wife-respondent has in support of his contention referred to the principles laid down in Dr. T.K. Thayumanuvar v. Asenambal Ammal, . It is a Single Bench decision of Mysore High Court. In that case, it has been held that the appropriate way to consider Section 489 of the Cr. P. C. is to read the same as a proviso to Section 488(1), Cr. P. C. So read the other parts of Section 488 will become applicable to the proceedigs under Section 489. A Magistrate has power to direct that the increased rate of maintenance ordered by him be paid from the date of the application asking for the increase. But ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances, the mere fact that there was some delay in the enquiry of the case is not a sufficient ground to direct the petitioner to pay maintenance at the increased rate from the date of the application. In this case reliance was placed on and the decision reported in AIR 1949 Cal 584 was not followed.

11. Mr. Talukdar has also referred to the principles laid down in Parameswara v. Balameenakshi, . In that case, it has been held that under Section 489, an enhancement of the maintenance allowance can be made to take effect from the date of the application for enhancement instead of from the date of the order. Section 489 is, only consequent on Section 488. Therefore, even if elaborate provisions are not made under that Section on the same lines as under Section 488, it cannot be said that a court acting under Section 489 has not all the powers it has under Section 488. The result is that if the Magistrate has power under Section 488 to award maintenance from the date of the application, he must have the same power to award increased allowance also from the date of the application for enhancement. But, there is a distinction between an order reducing the maintenance allowance and an order increasing the allowance. In the former case the principle that amounts already accrued cannot be retrospectively varied, has to be applied. In the other case i.e. of an enhancement of the allowance there is no scope for the application of that principle. The Magistrate is free to enhance the allowance either from the date of the application for enhancement or from the date of the order.

12. The learned single Judge who delivered the judgment dissented from the view taken in AIR 1949 Cal 584 : (50 Cri LJ 1006). He considered Hiralal Valavdas v. Bai Amba (1958 Cri LJ 1522) (Mys) (supra) and Mt. Lilawati v. Madan Gopal (37 Cri LJ 68) (Lah) (supra) and other decisions.

13. From a discussion of the decisions as cited above, it appears that the learned Judges tried to answer the question whether a Magistrate has power under Section 127, Cr. P.C. to pass an order retrospectively i.e. from the date of application for enhancement etc. of the maintenance amount from different angles. But, in my humble view, one important aspect of the problem was not adverted to. The main effect of passing an order of enhancement of maintenance retrospectively is, in the ultimate analysis imposing a liability upon one party. So the question is whether a legal liability can be created retrospectively when Legislature is silent on the point. Under Section 125, Cr. P.C., the Legislature has specifically empowered the Magistrate to create the liability either from the date of the order or from the date of the application. But Section 127, Cr. P.C. has not expressly empowered the Magistrate to create that liability. An argument may be raised that a proviso cannot take away what has been given in the Section itself. Even this argument does not hold any water for the reasons given below.

14. Though the two Sections are separate, still it may be argued that Section 489, Cr. P.C. (now Section 127, Cr. P. C.) should be read as aproviso to Section 488(1) (now Section 125, Cr. P.C.). On the basis of this, it has been argued that a proviso cannot take away what the Section gives as it is subordinate to the maini Section. The presumption is that "maintenance" and "alteration in allowance" are expressions meaning the same thing. This is debatable. However, let us assume, the two expressions mean the same thing. It has been held in Tahasildar Singh v. State of U. P., , that the territory of a proviso is to carve out an exception to the main enactment and exclude something which otherwise would have been within the Section. It has to operate in the same field and if the language of the main enactment is clear it (the proviso) cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that it has that as its necessary effect. In Shah Bhojraj Kuverji Oil Mills v. Subhas Chandra , it has been held that as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the Section.

15. In Hindustan Ideal Ins. Co. v. L.I.C. , it has been held that there is no doubt where the main provision is clear its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be surplusage, can be looked into to ascertain the meaning and scope of the main provision.

16. In view of the above position of law, Section 127, Cr. P. C. cannot be construed to be a surplusage and it can be read as a saving clause to Section 125(1), Cr. P. C. or as limiting the scope of this Section. So the argument based on treating Section 127, Cr. P. C. as a proviso to Section 125(1), Cr. P. C. cannot be entertained to widen the scope of the express terms of Section 125(1), Cr. P. C.

17. Now reverting to our main line of discussion, it may be argued that if the Magistrate has no power to enhance the maintenance by creating a new liability he can certainly reduce the amount. But this argument is without any substance. Reduction of maintenance means curtailing of the right of one of the parties to a proceeding under Chapter IX of the Cr. P. C. Thus the Magistrate cannot do unless authorised by law. In view of my discussions above, there is no such authorisation. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

18. Hence, I hold that the view which was taken in J.H. Amroon v. Miss. R. Sasson (50 Cri LJ 1006) (supra) was the correct view and the views taken to the contrary cannot be followed. Thus I find no reason to depart from the earlier view of this High Court expressed by Justice Blank in J.H. Amroon v. Miss. R. Sassoon (supra).

19. Accordingly, the application is allowed in part. The order directing the enhancement of maintenance amount can stand only from the date of the order and not from the date of the application. The impugned order is modified to the extent.

20. Let xerox copies of this judgment be made available to both the parties on usual undertaking and upon compliance necessary formalities.

PDF file uploaded to http://1drv.ms/1Fd78w1

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regards

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

Wife’s maintenance enhancement application rejected !!

Husband’s economic progress alone cannot be reason for enhancement !! Also, as a prerequisite for enhancement using 127 CrPC., wife should be receiving maintenance under 125 CrPC. only !! Maintenance ordered in a civil case can NOT be attacked by 127 CrPC petition!

* wife wins Sec 125 maintenance, initially 250/ p.m. , then 400/- and finally 500/- p.m. under Sec 125 CrPC

* Then wife files civil case for divorce and gets enhanced maintenance of 1200/- p.m. and then divorce

* some years later, wife files enhancement u/s 127 Crpc seeking 10000 p.m!!

* court dismisses wife’s case saying for invoking 127 Cr.P.C. a prerequisite that wife should b receiving maintenance under under 125 Cr.P.C. only !! and civil case decrees cannot be attacked thru a CrPC 127 petition

The Hon HC says and we quote

“…husband’s economic progress alone cannot be subject matter of filing any application under section 127 Cr.P.C. for enhancement. Assuming that there exists some right or semblance of right, then also, unless & until it is established beyond doubt that the wife is unable to carry out her regular life out of maintenance amount agreed upon in a civil court and in case if the maintenance fixed by civil court is also not found to be adequate in light of the galloping inflation, then only under section 25 of the Hindu Marriage Act the Court has adequate remedy to enhance the maintenance and/or adjudicate upon wife’s seeking appropriate relief thereof….”

“…On plain reading of the language one would comes to clear conclusion that for invoking section 127 Cr.P.C. it is a prerequisite that wife should have been receiving maintenance under order of the court under section 125 Cr.P.C. only. In the instant case as could be seen from developments, of instances and orders it cannot be said that wife was receiving Rs.1200/- under section 125 Cr.P.C. and therefore the court before which the Misc. Criminal Application was filed under section 127 Cr.P.C. being Criminal Misc. Application No. 3016 of 2005 has no jurisdiction to entertain the application as if it had been an inherent lack of jurisdiction on account of there existing an order of civil court under which maintenance was fixed. Now that maintenance was rightly fixed or wrongly fixed or not adequately fixed is not a question which can gone into on an application made under section 127 Cr.P.C….”

“….The order in the field was the order passed by the civil court which govern the relationship of two parties, namely husband and wife and therefore civil court order could not have been subject matter of any further scrutiny and or examination in the criminal proceedings in exercise of power under section 127 Cr.P.C….”

*****************************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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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 47 of 2012

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

HANSABEN RAMJIBHAI PITHWA – Applicant

Versus

STATE OF GUJARAT & 1 - Respondents

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

Appearance :

MR JA ADESHRA for Applicant:

PUBLIC PROSECUTOR for Respondent: 1,

MR BP GUPTA for Respondent : 2,

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CORAM

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

Date : 09/04/2012

ORAL ORDER

Heard learned advocates for the parties.

The petitioner by way of this petition approached this Court for following reliefs :-

“(A) The Hon’ble Court be pleased to issue appropriate writ, order or direction by quashing and setting aside the impugned order dtd. 30.08.2011 passed by the Learned Judge, Family Court No.4, Ahmedabad below application Exh. 40 in Criminal Misc. Application No. 3016 of 2005 at Annexure – A and further be pleased to order / direct the Family Court,Ahmedabad to hear and decide Criminal Misc. Application No. 3016 of 2005, on merits as expeditiously as possible and further be pleased to order / direct the respondent no.2 to regularly pay to the petitioner interim maintenance @ Rs.10,000/- per month.

 

(B) Pending admission hearing & final disposal of this petition the Hon’ble Court be pleased to order / direct the respondent no.2 to regularly pay to the petitioner interim maintenance @ Rs.10,000/- per month.”

In short the order dated 30/8/2011 is under challenge in this proceeding, where under the application filed by the present respondent no.2 under exhibit-40 in Criminal Misc. Application No. 3016 of 2005 is accepted and application filed by the petitioner under section 127 Cr.P.C. is rejected.

The facts in brief leading to filing this petition deserve to be set out as under.

The petitioner, an ex-wife of respondent no.2 had filed proceedings under Section 125 of Criminal Procedure Code for seeking maintenance from respondent no.2, wherein the competent court passed an order on 22/2/1990, ordering interim maintenance of Rs.250/- per month which had culminated into final order of Rs.400/- per month vide order dated 26/4/1991. The said order was subject matter of challenge before this Court in Criminal Revision Application No. 1017 of 1991, which was turned down by this Court in its order dated 13/7/1994. Thereafter the wife applied for enhancement under section 127 Cr.P.C. and that application was allowed and maintenance was enhanced from Rs.400/- to Rs.500/- vide order dated 18/3/1997. Thereafter the wife had filed Hindu Marriage Petition No. 315 of 1995, wherein on 31/3/1998 an interim order was passed taking into consideration that wife is ordered to be paid Rs.500/- by way of maintenance under section 125 Cr.P.C. and Rs.1200/- was ordered and ultimately application made being Hindu Marriage Petition No. 315 of 1995 seeking divorce from husband came to be disposed by decree of divorce dated 8/12/1998 on the basis of the purshish filed by the husband and endorsed by the wife through her advocate. The decree was thus passed and the marriage got dissolved vide order & decree dated 8/12/1998. The wife filed another application under section 127 Cr.P.C. being Criminal Misc. Application No. 3016 of 2005 seeking enhancement of maintenance for receiving Rs.10,000/-, in which exhibit-40 came to be filed inter alia contending that said application was not maintainable in view of the fact that it was agreed for paying Rs.1200/- in civil proceedings and therefore this application under section 127 Cr.P.C. is not competent and was required to be disposed of. Said application below exhibit-40 is accepted by the Family Court and an order was passed on 30/8/2011 which is subject matter of challenge in this petition as stated herein above. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

Learned advocate for the petitioner has relied upon decision of this Court in case of Hansaben, wife of Rameshkumar Ratilal Patani Vs. Rameshkumar Ratilal Patani and another, reported in 1993 (1) G.L.H. pg.886, and contended that the two proceedings namely civil proceedings under Hindu Marriage Act 1955 and under Criminal Procedure Code are distinct and separate and that the Court was not justified in accepting the submission of husband in rejecting application under section 127 Cr.P.C. made by the wife / petitioner herein. Learned advocate for the petitioner relied upon another decision of the Apex Court in case of Ramesh Chandra Vs. Beena Saxena, reported in 1982(0) GLHEL-SC 41633, and contended with special emphasis in respect to observation made in para no.5, and contended that in view of those observations it was not open to the Court to reject the petition filed by the wife for enhancement under section 127 Cr.P.C.

Learned advocate for the petitioner further relying upon observations of this Court in case of Ranjanaben Bachubhai Vs. Dilip Ramniklal Katarmal, reported in 2011 (0) GJHEL-HC 225589 contended that the order passed under section 24 of Hindu Marriage Act cannot be looked into while deciding application filed under section 125 Cr.P.C. Therefore this petition is required to be allowed.

Learned advocate for the petitioner contended that the purshish submitted by husband, whereof endorsement made by advocate for the wife is eloquently clear that the wife has agreed for Rs.1200/- for the present (in vernacular ‘Halpurto’), and therefore the order made under section 125 Cr.P.C. is not set aside or cancelled by any competent court. Therefore it is absolutely justified in seeking relief under section 127 Cr.P.C.

Learned advocate Shri. Gupta for respondent / husband contended that section 127 does not envisage repeated applications for enhancement. The entire purport of section 125 to 128 Cr.P.C. indicate that wife be a divorcée, deserted or turned out, such wife is entitled for maintenance so that she may not have to live the life of vagaries. This section cannot be turned out to be an instrument of persistent harassment to husband, whose subject matter is set at rest by competent civil court, wherein the civil court after taking into consideration the wife’s plea with regard to maintenance passed an order and decree of divorce wherein maintenance is accepted at Rs.1200/- per month.

Learned advocate for respondent husband further submitted that section 127 Cr.P.C. presupposes existence of payment of maintenance. In the instant case under section 125 Cr.P.C. maintenance was ordered to be paid. Thereafter maintenance application made under section 127 was allowed and that order did not remain in force in view of the fact that competent civil court had adjudicated upon this aspect of maintenance and the litigation came to an end wherein the wife had agreed for Rs.1200/- per month. Now, if the wife was aggrieved on account of any misconception of operation of the order it is open to the wife to approach for appropriate remedy including invoking section 25 of Hindu Marriage Act.

This Court is of the considered view that the petitioner wife had no right to maintain the original application in view of the following facts.

(1) The petitioner wife in fact filed petition for divorce being Hindu Marriage Petition No.315 of 1995 in which proceedings of interim maintenance was fixed by the court on 31/3/1998 and in that order maintenance of Rs.500/- was considered and thereafter when the wife, i.e. present petitioner had agreed for maintenance of Rs.1200/- per month in the subsequent civil proceeding, it can well be said that she had accepted the order of divorce and maintenance both. The husband’s economic progress alone cannot be subject matter of filing any application under section 127 Cr.P.C. for enhancement. Assuming that there exists some right or semblance of right, then also, unless & until it is established beyond doubt that the wife is unable to carry out her regular life out of maintenance amount agreed upon in a civil court and in case if the maintenance fixed by civil court is also not found to be adequate in light of the galloping inflation, then only under section 25 of the Hindu Marriage Act the Court has adequate remedy to enhance the maintenance and/or adjudicate upon wife’s seeking appropriate relief thereof.

The plain language of section 127(1) is required to be set out as under.

“Sec. 127. Alteration in allowance – (1) On proof of a change in the

circumstances of any person, receiving, under section 125 a monthly

allowance for the maintenance or interim maintenance, or ordered

under the same section to pay a monthly allowance for the

maintenance, or interim maintenance, to his wife, child, father or

mother, as the case may be, the Magistrate may make such alteration,

as he thinks fit, in the allowance for the maintenance or the interim

maintenance, as the case may be.”

On plain reading of the language one would comes to clear conclusion that for invoking section 127 Cr.P.C. it is a prerequisite that wife should have been receiving maintenance under order of the court under section 125 Cr.P.C. only. In the instant case as could be seen from developments, of instances and orders it cannot be said that wife was receiving Rs.1200/- under section 125 Cr.P.C. and therefore the court before which the Misc. Criminal Application was filed under section 127 Cr.P.C. being Criminal Misc. Application No. 3016 of 2005 has no jurisdiction to entertain the application as if it had been an inherent lack of jurisdiction on account of there existing an order of civil court under which maintenance was fixed. Now that maintenance was rightly fixed or wrongly fixed or not adequately fixed is not a question which can gone into on an application made under section 127 Cr.P.C. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

In light of the aforesaid reasonings the decisions cited at the bar would have no applicability to the peculiar facts & circumstance of the present case, wherein it is said that wife could not have invoked section 127 Cr.P.C. repeatedly when the wife was not receiving maintenance under order made under section 125 Cr.P.C. The order in the field was the order passed by the civil court which govern the relationship of two parties, namely husband and wife and therefore civil court order could not have been subject matter of any further scrutiny and or examination in the criminal proceedings in exercise of power under section 127 Cr.P.C. The judgments cited therefore in my view have no application on present case and therefore the application deserves to be dismissed being bereft of merits. Hence the application is rejected. Notice discharged. There shall be no order as to costs.

However the Court has not opined on merits of wife’s claim for receiving enhanced maintenance if permissible under section 25 of Hindu Marriage Act.

[S.R. BRAHMBHATT, J ]

/vgn

PDF uploaded to http://1drv.ms/1B69fCc

498a on Parents Brother Sister Aunt quashed!!

"……It has been submitted on behalf of the petitioners that they are parents-in-law brother-in-law and sister-in-law as well as aunt- in-law of the complainant and there is no specific instance of torture at their hands. In such circumstance, the ingredients required for proof under Section 498A of the Indian Penal Code being absent……"

"….It is highly improbably that that a person would be tortured for ends of dowry after almost 5 years of marriage…."

So quashed

**************************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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IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.21115 of 2012

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1. Ram Babu Ram S/O Mathura Ram Resident of Village Kethal Dholahi

Narapar, Police Station Amnour, District Saran.

2. Shanti Devi W/O Mathura Ram Resident of Village Kethal Dholahi

Narapar, Police Station Amnour, District Saran.

3. Mathura Ram S/O Late Dukhan Ram Resident of Village Kethal Dholahi

Narapar, Police Station Amnour, District Saran.

4. Kamkhya Ram S/O Mathura Ram Resident of Village Kethal Dholahi

Narapar, Police Station Amnour, District Saran.

5. Sushila Devi W/O Kamkhya Ram Resident of Village Kethal Dholahi

Narapar, Police Station Amnour, District Saran.

6. Vaijanti Devi W/O Jitan Ram Resident of Village Kethal Dholahi

Narapar, Police Station Amnour, District Saran. …. …. Petitioner/s

Versus

1. The State of Bihar.

2. Bharti Devi W/O Ram Babu Ram And D/O Yogendra Das Resident Of

Village Kaithal Dholahi Narapar, Police Station Amnour, District Chapra

At Saran, Presently Residing At Village Lohari, P.S. Chapra Mufassil,

District Chapra At Saran. …. …. Opposite Party/s

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Appearance :

For the Petitioner/s : Mr. Kumar Binode Bariar, Adv.

For the Opposite Party/s : Mr. Aditya Nr. Singh, App

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CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH

ORAL ORDER

19-02-2015

No one appears on behalf of the Opposite Party no. 2.

Learned counsel for the petitioners seek permission to withdraw the application so far as the petitioner no. 1 is concerned. The rest of the petitioners who are in-laws seek quashing of the order of cognizance dated 02.01.2012 passed by the Chief Judicial Magistrate, Chapra in Complaint Case No. 709 of 2011.

The case of the informant is that she was married to the petitioner no. 1 in the year 2006 after which she went to the matrimonial home. At the time of marriage huge amount of gifts were given to the in-laws. Unfortunately they did not treat her well and instead demanded additional dowry. In the year 2011 she was ousted from the matrimonial home by the in-laws.

It has been submitted on behalf of the petitioners that they are parents-in-law brother-in-law and sister-in-law as well as aunt- in-law of the complainant and there is no specific instance of torture at their hands. In such circumstance, the ingredients required for proof under Section 498A of the Indian Penal Code being absent. The trial would be a nullity.

Having gone through the facts of first information report, I am inclined to agree with the submission raised on behalf of the petitioners specially since marriage has taken place in the year 2006 whereas the present complaint was filed in the year 2011. It is highly improbably that that a person would be tortured for ends of dowry after almost 5 years of marriage.

Hence the application is allowed so far as the petitioners are concerned. The order of cognizance dated 02.01.2012 passed by the Chief Judicial Magistrate, Chapra in Complaint Case No. 709 of 2011 is hereby set aside.

(Anjana Prakash, J)

Prakash/-

U T

Tags :

#498a

#498a_quash

#498a_quash_against_sister-in-law

#498a_quash_against_father-in law

#498a_quash_against_aunt-in-law

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

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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

Improbable & absurd 498a Quashed

The HC says

“….Upon reading the allegations in the FIR in its entirety, in the light of the fact that applicant nos.1 and 2 are resident of Pune and applicant nos.3 and 4 are resident of Osmanabad, and the fact that applicant nos.1 and 3 got married long back, the allegations in the FIR are improbable and absurd. No prudent person would believe that the married sisters of husband of the complainant, along with their husband, would go to the place of respondent no.2 i.e. Mumbai and participate in the alleged commission of offence, as stated in the FIR….”

**************************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.

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

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

AURANGABAD BENCH, AT AURANGABAD.

Criminal Application No. 5779 of 2014

1. Saleha w/o. Sadik Sayed,

Age : 29 years,

Occupation : Household,

R/o. Galli No. 21/A, Sayed Nagar,

Mohammadwadi Road, Near Bismilla Manzil,

Hadapsar, Pune.

2. Sadik s/o. Nazir Sayed,

Age : 37 years,

Occupation : Business,

R/o. As above.

3. Nafisa w/o. Tayyab Shaikh,

Age : 43 years,

Occupation : Household,

R/o. 163, Post Colony (East),

Bank Colony, Gandhi Nagar,

Osmanabad, Taluka & District : Osmanabad.

4. Tayyabali s/o. Osmanali Shaikh,

Age : 46 years,

Occupation : Business,

R/o. As above. .. Applicants.

versus

1. The State of Maharashtra,

Through Wadvani Police Station,

District : Beed.

2. Nafisabi w/o. Irfan Pathan,

Age : 28 years,

Occupation : Household,

R/o. Shivshahi Building,

Room No. 201, Mumbai,

Presently residing at : At Post Upadi,

Taluka : Wadvani, District : Beed. .. Respondents.

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

Mr. G.R. Syed, Advocate, for the applicants.

Mr. S.D. Kaldate, Additional Public Prosecutor, for respondent no.1.

Mr. S.J. Salunke, Advocate, for respondent no.2.

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

CORAM: S.S. SHINDE & A.M. BADAR, JJ.

DATE: 24TH FEBRUARY 2015

ORAL JUDGMENT (Per S.S. Shinde, J.) :

1. Heard Adv. Mr. G.R. Syed appearing for the applicants, learned APP Mr. S.D. Kaldate appearing for respondent no.1 – State, and Adv. Mr. S.J. Salunke appearing for respondent no.2.

2. Rule. Rule made returnable forthwith. By consent of the learned Counsel for the parties, heard finally.

3. By the present Application, the applicants have prayed to quash and set aside the First Information Report bearing Crime No. 60/2014 registered with Wadvani Police Station [District :
Beed], under Section 498A, 323, 504, read with Section 34 of Indian Penal Code,
and to exonerate them from the charges levelled against them.

4. The learned Counsel appearing for the applicants submits that the applicant nos.1 and 2 are residing at Pune, and applicant nos.3 and 4 are residing at Osmanabad. The matrimonial house of respondent no.2 – original complainant is at Mumbai. It is submitted that even if the allegations in the complaint are taken at its face value and read in its entirety, no offence is disclosed. The allegations in the FIR are inherently improbable that no prudent person would believe that the applicants, who are married sisters of the husband, along with their husband, would go to the place of respondent no.2 and participate in the alleged commission of the offence. Therefore, the learned Counsel for the applicants, relying on the judgment of Hon’ble Apex Court, in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others , reported in AIR 1992 Supreme Court 604, submits that the application may be allowed.

5. On the other hand, the learned Counsel appearing for respondent no.2 – original complainant invited our attention to the allegations in the FIR and submits that unless those allegations are investigated, no truth will come on record. Therefore, he submits that the FIR needs investigation and this Court may not consider prayer of the applicants.

6. We have given careful consideration to the submissions advanced by the learned Counsel appearing for the applicants, the learned Counsel appearing for the complainant and learned Additional Public Prosecutor appearing for the State. With their able assistance, perused the grounds taken in the application, annexures thereto, and the annexures in the FIR.

7. The allegations for the just decision of this application are as under:-

" Thereafter, on 17-7-2014 at about 5.00 p.m., persons mentioned in the complaint arrived at Upali. They assaulted and abused the complainant as the complainant could not come at her matrimonial home by bringing money from her father. The said persons left the parental home of the complainant after the quarrel was rescued by her father, brother and mother. "

8. Upon reading the allegations in the FIR in its entirety, in the light of the fact that applicant nos.1 and 2 are resident of Pune and applicant nos.3 and 4 are resident of Osmanabad, and the fact that applicant nos.1 and 3 got married long back, the allegations in the FIR are improbable and absurd. No prudent person would believe that the married sisters of husband of the complainant, along with their husband, would go to the place of respondent no.2 i.e. Mumbai and participate in the alleged commission of offence, as stated in the FIR.

9. The Hon’ble Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others (supra) , in para 108 of the judgment, has laid down the categories of cases wherein High Court may in exercise of powers under Article 226 or under Section 482 of the Code of Criminal Procedure, 1973, may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to (5) Cri. Appln. No. 5779 of 2014 secure the ends of justice. The case in hand falls in Category No.5 which reads thus:

" 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 proceedings against the accused "

10. In that view of the matter, in the peculiar facts and circumstances of this case, the Application deserves to be allowed and the FIR deserves to be quashed so far as present applicants are concerned.

11. In the result, the Application is allowed.

The First Information Report bearing Crime No. 60/2014, registered with Wadvani Police Station [District : Beed], under Section 498A, 323, 504, read with Section 34 of Indian Penal Code, so far it relates to the present applicants, is quashed and set aside.

12. Rule made absolute in the above terms.

( A.M. BADAR ) ( S.S. SHINDE )

JUDGE JUDGE

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

puranik / CRIAPPLN5779.14

Tags :

#498a

#498a_quash

#498a_quash_against_sister-in-law

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

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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

Married sis in law living separate runs for 498a quash!

Women of India are greatly affected by false and frivolous 498a. Mothers and sisters of men are prime targets. 10s of 1000s of them are languishing in Jails. There is an entire block for them in ‘Tihar’ where they are spending their golden years in penal incarceration. As mentioned by the Apex court, Geeta Mehrotra & Anr v. State U.P. reported in 2013 AIR SC 181, it has become a fashion to rope in multiple members of husband’s family into such cases!!

in this case

* ‘wife’ files a 498a on her sister in law who is NOT EVEN living in the same roof (sis in law is married and living in her husband’s house at Vadodara while wife is in Ahmedabad !!)

* sis in law who is living seperately runs for quash

* ‘wife’ appears and OPPOSES quash !!

* the Hon HC appreciates the facts, concludes that the 498a against the sis in law is false and quashes the case

The Hon. HC says :

"…..It is an admitted position that the present applicant is residing with her husband and her in­laws at Vadodara and no specific allegation has been made against the present applicant……"

"…. Considering the overall facts and circumstances …. and also the statements of the witnesses as well as the chargesheet has been filed qua the other accused persons and the allegations made in the FIR, no offence has been made out against the present applicant, who is married and residing at her matrimonial home at Vadodara, …."

*****************************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.

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

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION

(FOR QUASHING & SET ASIDE FIR/ORDER) NO. 17150 of 2014

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

SHREYABEN SUNILKUMAR SAMANI….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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

Appearance:

MR DEVANG J JOSHI, ADVOCATE for the Applicant(s) No. 1

MR KRUNAL L SHAHI, ADVOCATE for the Respondent(s) No. 2

MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1

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

CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

Date : 26/02/2015

ORAL ORDER

1. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973, filed by the present applicant accused, who happens to be married sister­in­law of respondent No.2 i.e. the original complainant, has prayed to quash and set aside the First Information Report being C.R. No.I­52 of 2014 registered with the Mahila Police Station, Ahmedabad for the offence punishable under Sections 498A, 504, 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act.

2. Pursuant to the notice issued by this Court vide oral order dated 17.11.2014, the private respondent has appeared and filed her affidavit opposing grant of any reliefs in favour of the applicant herein.

3. The brief facts arise from the record are that the complainant entered into the marriage with accused no.1 namely, Ashishbhai Pravinchandra Thakkar on 17.02.2014, and started residing with her husband and her in­laws at Ahmedabad. She was carrying her further study. It was stated in the FIR that the present applicant, who happens to be her sister­in­law (husband’s sister) residing with her husband and family members at Vadodara.

3.1 It was alleged in the FIR that initially she was properly treated by her in­laws, but thereafter they have misbehaved with her and started quarrel on her minor mistakes. It was alleged that when her father came at her matrimonial home, the parents of her husband were complaining about her that she was not properly caring her husband and in­laws. It was further alleged that her husband and her in­laws did not want a child for some period. However, she was compelled to consult the Doctor and her father­ in­law used to ask some personal questions. Thereafter, the husband has started abusing her and criticized about her physical look and compelling her to sleep separately. It was also alleged that the amount was demanded by the family members i.e. her husband and her in­laws. It was also alleged that whenever the complainant’s mother­in­law called the present applicant at her matrimonial home, the present applicant also used to quarrel with the complainant. Having fade up with the said behavior, she left her matrimonial home and resided at her parental home and therefore, she has no other alternative but to file the present FIR.

4. Mr. Devang Joshi, learned advocate appearing for the applicant would submit that it is an admitted position that the present applicant along with her husband are residing with her in­ laws at Vadodara. After marriage of the complainant, she has never stayed in the joint family with her parents or with the complainant and her husband. He would submit that there are no specific allegations have been made against the present applicant in the FIR and prima facie, no offence has been established against the present applicant and therefore, he would submit that the application be allowed and the impugned FIR be quashed and set aside as far as the present applicant is concerned. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

5. On the other hand, Mr. Krunal Shahi, the learned advocate for respondent No.2 ­ the original complainant has opposed the present application. He would submit that initially, an application was submitted to the Deputy Commissioner of Police, Ahmedabad on 21.08.2014 about behaviour of the accused, including the present applicant. However, the said application was not registered as an FIR and therefore, subsequent FIR was lodged only on 12.09.2014. He would further submit that specific allegations have been made against the present applicant in the said complaint. He would submit that the attention of the Deputy Commissioner of Police, Ahmedabad was drawn about non­maintenance of the role of the present applicant by way of filing application dated 13.12.2014, however, no action has been taken by the investigating agency. He would submit that while passing the order dated 17.11.2014, this High Court has stayed the further proceedings and no investigation is carried out and no chargesheet has been filed against the present applicant.

5.1 Mr. Krunal, the learned advocate for the complainant, has relied upon the decision of the Apex Court in case of Ushaben v. Kishorbhai Chunilal Talpada reported in 2012(6) SCC 353 and in the case of Savita v. State of Rajastha reported in 2005(12) SCC 338. In the said decisions, the Apex Court has held that at the initial stage, the complaint may not be quashed by exercising extraordinary powers under Section 482 of the Code of Criminal Procedure, 1973 and the complaint shall not be quashed at an early stage of the investigation. He would submit that the present application be dismissed.

6. I have heard the learned advocates appearing for both the parties. I have also gone through the papers of investigation, the statements of witnesses and the chargesheet which has been filed qua the other accused .

7. It is an admitted position that the present applicant is residing with her husband and her in­laws at Vadodara and no specific allegation has been made against the present applicant. As far as the application submitted in the month of August 2014 is concerned, the only allegation is made by the original complainant against the present applicant that she used to talk with the mother­ in­law of the complainant and she used to support by talking on telephone for long time. The statements of the witnesses also speak on the same line that is the present applicant used to talk with her mother. As far as the submission made by the complainant with regard to non­maintenance of the role of the present applicant is concerned, the said application dated 13.12.2014 has been submitted by the complainant after the stay granted by this Court on 17.11.2014.

8. Considering the overall facts and circumstances as aforesaid and as far as the judgments relied upon by the learned advocate are concerned, as stated hereinabove, I have gone the same and also the statements of the witnesses as well as the chargesheet has been filed qua the other accused persons and the allegations made in the FIR, no offence has been made out against the present applicant, who is married and residing at her matrimonial home at Vadodara, I am of the opinion that the present application requires consideration. Hence, the present application is allowed. The impugned F.I.R. being C.R. No.I­52 of 2014 registered with the Mahila Police Station, Ahmedabad for the offence punishable under Sections 498A, 504, 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act and all other proceedings initiated pursuant thereto are hereby quashed and set aside qua the present applicant. Rule is made absolute accordingly. Direct Service is permitted.

(A.J.DESAI, J.)

chandresh

#498a

#498a_quash

#498a_quash_against_sister-in-law

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

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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

follow up to moolah & apartment quash

This is the 498a, etc quash portion of the deal !!

Please see earlier post @https://vinayak.wordpress.com/2015/03/02/chennai-apartment-moolah-for-498a-125-quash/for details

*****************************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.

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

CASE FROM JUDIS / INDIAN KANOON WEB SITE

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

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 22.12.2014

CORAM : THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Crl.OP Nos.32762 of 2014

1.R.Madana Gopal

2.Rajalakshmi … Petitioners

vs.

1.Mrs.Usha Sathyam @ Usha

2.Inspector of Police,

W7, All Women Police Station,

Anna Nagar, Chennai 40 … Respondents

Prayer :- Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records and record the memorandum of compromise and quash the criminal proceedings in C.C.No.5760/07 pending before the learned Chief Metropolitan Magistrate, Egmore.

For Petitioners :Ms.R.Mahalakshmi

For R.1 :Ms.M.Mullaikodi

For R.2 :Mr.M.Maharaja, Additional Public Prosecutor

ORDER

The first respondent herein claims to be the wife of the first petitioner. A case has been registered as against the petitioners herein for offence under Sections 498(A), 406, 494 I.P.C., & 4 & 6 of Dowry Prohibition Act in Crime No.14/2006 by the second respondent police. The second respondent has filed charge sheet in C.C.No.5760 of 2007 and the same is pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai. Seeking to quash the said case, the petitioners are before this Court with this petition.

2.I have heard the learned counsel for the petitioners and the learned counsel for the first respondent and the learned Additional Public Prosecutor appearing for the second respondent and I have also perused the records carefully. The first petitioner and the first respondent are also present before this Court. I have heard them also.

3.This petition has been filed on the ground that the dispute between the parties have been settled amicably by them and therefore, the said case can be quashed recording the compromise. As a matter of fact, the first respondent has filed an affidavit before this Court, wherein, in paragraph Nos.2 to 6 it has been stated as follows:-

2.I submit that I am the first respondent herein and as such I am well acquainted with the facts and circumstances of the case. I submit that based on the complaint given by me for alleged offences u/s 494, 498(A) of I.P.C., r/w Section 4 of the Dowry Prohibition Act before the respondent police the case has been charge sheeted and taken cognizance by Hon’ble Chief Metropolitan Magistrate, Egmore in C.C.No.5760/2007. I submit that pending disposal of the cases compromise has been initiated by both of us.

2.I submit that considering the betterment of our future it has been mutually agreed that the amount of Rs.3,00,000/- which has been paid by the first petitioner by way of pay order No.014891 dated 07.06.2013 drawn on Karnataka Bank Limited, Mint Street Branch, Chennai in favour of Velammal Matriculation Higher Secondary School, towards the educational fee deposited for the minor M.Poona Shruthy shall be retained by me.

3.I submit that it is mutually agreed that the first petitioner has paid Rs.2,00,000/- (Two lakhs only) by way of cash to me and I undertake that this sttlement amount has been received as full and final settlement and I have no present or future claims against the first petitioner.

4.I submit that it is mutually agreed that after recording the memorandum of compromise before the Hon’ble High Court, Chennai, the first petitioner will settle the immovable property situated at Door NO.441/10, in M Block, Royal Enclave, Anna Nagar, Chennai 102 in favour of minor M.Pooja Shruthy, aged 16 years who is under the natural guardianship of me on the same day by way of settlement deed.

5. I submit that based on the compromise, I agree and undertake to withdraw the maintenance petition in M.C.No.234 of 2007 on the file of the Hon’ble Ist Additional Family Court, Chennai and the Criminal case in C.C.No.5760 of 2007 for the alleged ofences under Sec. 494 and 498A I.P.C., Sec. 4 of the Dowry Prohibition Act, taken cognizance by the Hon’ble Chief Metropolitan Magistrate, Egmore.

6.I submit that I undertake that me or my children will not claim any right or share over the properties or estate of the party of the petitioner either now or in future

4.The said affidavit shall form part of the record. The parties who are present before this Court would reiterate the compromise and they would request the Court to quash the said proceedings.

5.Having regard to the fact that the dispute is matrimonial in nature and the parties have reached the compromise, I am inclined to quash the said proceedings in terms of the compromise reached between the parties.

6.In the result, the Criminal Original Petition is allowed and the case in C.C.No.5760 of 2007 of 2007 pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai is quashed.

22.12.2014

jbm

To

1.The Chief Metropolitan Magistrate, Egmore, Chennai.

2.The Public Prosecutor, High Court, Madras.

S.NAGAMUTHU,J

jbm

Crl.OP Nos.32762 of 2014

22.12.2014

Tags :

#125_CrPc

#125CrPC_quash

#498a_quash

#494_quash

#Apartment_and_moolah_quash

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

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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

Chennai apartment & moolah for 498a & 125 quash !

Husband gives away apartment at Anna Nagar (posh area) Chennai + approx. five lakhs to quash 498a, 494 IPC and 125 CrPC case. Hon HC is pleased to quash the case.

*****************************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.

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

CASE FROM JUDIS / INDIAN KANOON WEB SITE

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

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 22.12.2014

CORAM : THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Crl.OP Nos.32763 of 2014

R.Madana Gopal .. Petitioner

vs.

1.Mrs.Usha Sathyam @ Usha

2.M.Pooja Shruthi (minor)

(under the custody of the first respondent).. Respondents

Prayer :- Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records and record the memorandum of compromise and quash the criminal proceedings in C.C.No.234/07 pending before the learned I Additional Family Court, Chennai.

For Petitioner :Ms.R.Mahalakshmi

For Respondents :Ms.M.Mullaikodi

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ORDER

The first respondent herein claims to be the wife of the petitioner. The second respondent is the daughter of the petitioner and the first respondent. The respondents have filed M.C.No.234 of 2007 on the file of the learned I Additional Family Court Judge, Chennai, claiming maintenance under Section 125 Cr.P.C. Seeking to quash the same, the petitioner is before this Court with this petition.

2.I have heard the learned counsel for the petitioner and the learned counsel for the respondents and I have also perused the records carefully. The petitioner and the first respondent are also present before this Court. I have heard them also.

3.This petition has been filed on the ground that the dispute between the parties have been settled amicably by them and therefore, the said case can be quashed recording the compromise. As a matter of fact, the first respondent has filed an affidavit before this Court, wherein, in paragraph Nos.2 to 6 it has been stated as follows:-

2.I submit that considering the betterment of our future it has been mutually agreed that the amount of Rs.3,00,000/- which has been paid by the first petitioner by way of pay order No.014891 dated 07.06.2013 drawn on Karnataka Bank Limited, Mint Street Branch, Chennai in favour of Velammal Matriculation Higher Secondary School, towards the educational fee deposited for the minor M.Poona Shruthy shall be retained by me.

3.I submit that it is mutually agreed that the first petitioner has paid Rs.2,00,000/- (Two lakhs only) by way of cash to me and I undertake that this sttlement amount has been received as full and final settlement and I have no present or future claims against the first petitioner.

4.I submit that it is mutually agreed that after recording the memorandum of compromise before the Hon’ble High Court, Chennai, the first petitioner will settle the immovable property situated at Door NO.441/10, in M Block, Royal Enclave, Anna Nagar, Chennai 102 in favour of minor M.Pooja Shruthy, aged 16 years who is under the natural guardianship of me on the same day by way of settlement deed.

5. I submit that based on the compromise, I agree and undertake to withdraw the maintenance petition in M.C.No.234 of 2007 on the file of the Hon’ble Ist Additional Family Court, Chennai and the Criminal case in C.C.No.5760 of 2007 for the alleged ofences under Sec. 494 and 498A I.P.C., Sec. 4 of the Dowry Prohibition Act, taken cognizance by the Hon’ble Chief Metropolitan Magistrate, Egmore.

6.I submit that I undertake that me or my children will not claim any right or share over the properties or estate of the party of the petitioner either now or in future.

4.The said affidavit shall form part of the record. The parties who are present before this Court would reiterate the compromise and they would request the Court to quash the said proceedings.

5.Having regard to the fact that the dispute is matrimonial in nature and the parties have reached the compromise, I am inclined to quash the said proceedings in terms of the compromise reached between the parties. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

6.In the result, the Criminal Original Petition is allowed and the case in M.C.No.234 of 2007 pending on the file of the learned I Additional Family Court, Chennai is quashed.

22.12.2014

jbm

To

1.The I Additional Family Court, Chennai.

2.The Public Prosecutor, High Court, Madras.

S.NAGAMUTHU,J

jbm

Crl.OP Nos.32763 of 2014

22.12.2014

Tags :

#125_CrPc

#125CrPC_quash

#498a_quash

#494_quash

#Apartment_and_moolah_quash

PDF Uploaded to http://1drv.ms/1F01a1t