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About vinayak

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

Wife’s mum, a prominent lawyer seeks judge’s personal favor & gets exposed! Hubby fighting Int maint 40000 p.m.

Wife wants 40000 p.m! Her mum, a prominent lawyer seeks judge’s personal favor & gets exposed! MP HC

While hearing the matter, Hon’ble Judge made a public statement in the Court clearly stating in presence of counsel for the petitioner Mr. A.S. Rathore, counsel for Mrs. Radhika, some senior lawyers and some other lawyers practicing before this Court that the present respondent, the mother of Mrs. Radhika had come to his house to make an approach for obtaining a favourable order. Hon’ble Judge expressed his anguish and anger by saying that it was uncalled for and was undesirable, due to which he was not willing to hear the matter. The Hon’ble Judge also stated in the Open Court that in view of the conduct expressed by the present respondent, he would not like to hear the matter.

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

Hon’ble Shri P.K. Jaiswal and
Hon’ble Shri Virender Singh, JJ.

Contempt Criminal No.1/2016

Ritwik Garg S/o Shri Ramesh Garg

Vs.

Smt. Nisha Dubey W/o Shri Deepak Dubey

-x-x-x-x-x-x-x-

Shri Prateek Maheshwari, learned counsel for the
petitioner.

-x-x-x-x-x-x-x-x-

ORDER

(Passed on 25th of November, 2016)

Per : Virender Singh, J.

It is submitted by learned counsel for the petitioner that divorce petition is pending between the petitioner and Mrs. Radhika Garg, in which the Court has fixed maintenance @ Rs.40,000/- per month as alimony. Later, the petitioner found some documents and filed an application for modification of the order granting aforesaid alimony. Mrs. Radhika did not co- operate with the Court in disposing this application, therefore, Court closed her right to file reply. The said order challenged by Mrs. Radhika before this Court vide W.P. No.8314/2015. The order passed by the trial Court for taking the affidavits on record was also challenged before this Court vide W.P. No.7046/2015. It is averred that the respondent Smt. Nisha Dubey, the mother of Smt. Radhika and daughter of a former Judge is well versed with the Court proceedings and she herself a Law Graduate and is imparting education in the legal field as Principal of Indore Law College. She also had been Vice-Chancellor of Baraktullah University, Bhopal. She knows the piousness of the Court proceedings. She also aware of the fact that how a distance from a Judge is to be maintained by a Lawyer, litigant or relation of a litigant.

It is further submitted that the petition filed by Mrs. Radhika came-up for hearing before Hon’ble Shri Justice Prakash Shrivastava on 07/12/2015. After hearing, the Court issued notice on the question of admission and on IA No.6139/2015 and thereafter present petitioner filed his detailed reply in the matter. The case came-up for hearing on 08/03/2016 before Hon’ble Shri Justice S.C. Sharma, who directed that the matter be listed before other Bench but the matter was again listed before Hon’ble Shri Justice S.C. Sharma on 09/03/2016 at motion hearing Serial No.139 in the Daily Cause-List and came-up for hearing before lunch-break. While hearing the matter, Hon’ble Judge made a public statement in the Court clearly stating in presence of counsel for the petitioner Mr. A.S. Rathore, counsel for Mrs. Radhika, some senior lawyers and some other lawyers practicing before this Court that the present respondent, the mother of Mrs. Radhika had come to his house to make an approach for obtaining a favourable order. Hon’ble Judge expressed his anguish and anger by saying that it was uncalled for and was undesirable, due to which he was not willing to hear the matter. The Hon’ble Judge also stated in the Open Court that in view of the conduct expressed by the present respondent, he would not like to hear the matter.

According to the petitioner, the conduct of the respondent has scandalized and lowered authority of the Court and amounts to Contempt of Courts as defined in Section 2 (c) of the Act and punishable under the Contempt of Courts Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

It is requested to take appropriate action against the respondent and punished for her act for criminal contempt.

The petitioner has filed copies of the order-sheets of W.P. No.8314/2015 dated 07/12/2015, 08/03/2016, 09/03/2016 and 10/03/2016 and the sanction obtained from Advocate General for preferring and prosecuting the present petition.

The petition is also supported with the affidavit of the petitioner.

We have gone through the record.

It is submitted by the petitioner that the Hon’ble Court expressed his anguish and made a public statement that the respondent had approached him. But these facts did not find place in the record of the Court in the order-sheets of W.P. No.8314/2015. It is stated that a request was made to Hon’ble Judge to record the conduct of the present respondent in approaching the Hon’ble Judge but the Hon’ble Judge refused to do so, stating that when such a statement was made publically and openly in the presence of lawyers which includes lawyer of the respondent, there was no need to record the same. But prima facie without any supporting evidence, this is improbable, unnatural and unbelievable.

In the present petition, no statement of Judge is on record in any way. Order-sheet dated 09/03/2016 simply states:-

“Parties as before this Court.

Office is directed to comply with the order dated 08/09/2016 and the matter be listed tomorrow positively i.e. 10/03/2016.”

Looking to the nature of incident only a Judge who was approached by any party was the best witness or his statement was the best possible evidence but in the present case, nothing has been stated or recorded by the Judge.

The petitioner submits that the Judge had made the alleged statement in the Open Court in presence of many persons including the lawyers but neither any record of the Court nor any affidavit of the persons who were present at the relevant point of time, showing occurrence of any such incident has been filed by the petitioner.

It is also pertinent to mention that during the said proceedings, the petitioner was not present in the Court. He has mentioned in the affidavit filed in support of the petition that he made an inquiry from his counsel, who informed him that the respondent has approached the Hon’ble Judge at his residence for obtaining a favourable order for her daughter Mrs. Radhika. It is further mentioned in the affidavit that his counsel Shri A.S. Rathore informed him that such statement was made in his presence. Shri Rathore also informed him that such statement was made by the Judge in the presence of other lawyers practicing in the High Court. Thus, it is clear that the petitioner had not heard the statement of the Judge directly or personally. His statement is based on the information of his counsel but any statement on affidavit has not been filed by the counsel Shri Rathore, therefore, the statement of the petitioner is only a hearsay evidence, which is not supported by any document and cannot be made basis for initiation of any contempt proceedings against the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

It is clear that the learned Judge has recorded nothing in the proceedings, the petitioner was not present during the Court proceedings, persons present there have not supported the statement of the petitioner, any legally admissible evidence about the remark of the learned Judge regarding contemptuous conduct as alleged by the petitioner is not available on record, therefore, initiation of any criminal contempt proceedings, as requested for by the petitioner cannot be done against the respondent.

Learned counsel for the petitioner placed reliance on the decisions in the matter of Devi Jude vs. Hannah Grace & others 2003 Vol.6 Judgment Today 484, Reliance Petrochemicals Limited vs. Indian Express Newspapers AIR 2004 SC 456, Abdul Karim vs. M.K. Prakash and others (1976) 1 SCC 975 and State of Maharashtra and others vs. Ravi Prakash Babulalsing Parmar and another Manupatra 2006 SC 4725 but these judgments are distinguishable on the facts with the present case and not helpful for the petitioner.

Considering the aforesaid and keeping in view the various disputes pending between the parties, we find that the averments made in the petition are not sufficient to initiate contempt proceedings against the respondent, therefore, the admission is declined and petition filed by the petitioner is hereby dismissed.

(P.K. Jaiswal) (Virender Singh)
Judge Judge

Aiyer*


*****************************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 with necessary Emphasis, Re formatting


498A accused allowed 2 travel abroad w/OUT prior permission. Right 2 travel constitutional right. Delhi HC

498A accused allowed 2 ravel abroad /OUT prior permission. Right 2 travel constitutional right. Delhi HC

“…..8. It is settled law that right to travel is a facet of personal liberty and is protected by Article 21 of the Constitution of India. (See Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248 and Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., AIR 1976 SC 1836).

   9. This Court also takes judicial notice of the fact that the condition of obtaining prior permission before leaving the boundary of Delhi is a cumbersome one as the permission takes time and causes hardship to the petitioner. This Court is of the view that the impugned condition would certainly restricts the accused’s fundamental right to travel.

   10. Undoubtedly, the accused’s right to travel can be curtailed by a reasonable, transparent and fair procedure, but in the opinion of this Court such a restriction should be rarely imposed by the trial court while granting bail and that too, for cogent reasons….”

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

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 4231/2012

NANDINI BHATNAGAR ….. Petitioner
Through: Mr. S.K. Bhaduri, Advocate with
Mr. Krishna Kumar, Advocate with
petitioner in person.

versus

STATE GOVT. OF NCT OF DELHI ….. Respondent
Through: Mr. Manoj Ohri, APP for State with
ASI Narender Singh, PS CWC Nanak
Pura, New Delhi.
Mr. Atul Aggarwal and Mr. Deepak
Jain, Advocates for complainant.
Complainant in person.

Date of Decision: 14th December, 2012

CORAM:

HON’BLE MR. JUSTICE MANMOHAN

JUDGMENT

MANMOHAN, J : (Oral)

Crl.M.A. 19845/2012 (exemption) in Crl.M.C. 4231/2012 Allowed, subject to just exceptions.

Accordingly, present application stands disposed of.

Crl.M.C. 4231/2012 & Crl.M.A. 19844/2012

 

  1. Present petition has been filed under Section 482 Cr.P.C. challenging the condition imposed by the Additional Sessions Judge, Dwarka Courts, New Delhi, whereby the petitioner has been directed “not to leave the boundary of the NCT of Delhi as well as the NCR and the country without the prior permission of the concerned Court of Ld. M.M.”.
  2. Issue notice.
  3. Ms. Jasbir Kaur, learned APP accepts notice on behalf of the State. Mr.Atul Aggarwal, learned counsel accepts notice on behalf of complainant. With consent of parties, matter is taken up for hearing.
  4. The relevant facts of the present case are that petitioner’s sister-in-law had filed a First Information Report being FIR No.124/2012 with Crime Against Women Cell, Nanakpura, New Delhi under Sections 498A/406/34 IPC. In the said FIR, allegations have been made against the petitioner and her family members.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The Sessions Court granted anticipatory bail to the petitioner vide order dated 06th October, 2012. But by the said order, it imposed the aforesaid impugned condition. The order passed by the Additional Sessions Judge is reproduced hereinbelow:
    • ” Heard.
    • In view of the submissions and averments made in the application and the allegations against the present applicant being the unmarried sister-in-law (nanad) of the complainant, the applicant is admitted to anticipatory bail on furnishing personal bond in a sum of Rs.25,000/- with one surety in the like amount in the event of her arrest to the satisfaction of concerned IO/arresting officer/SHO.
    • The applicant is directed to join the investigation as and when required by the IO and she is also directed to deposit her passport within 2 days with the IO and she is directed not to leave the boundary of the NCT of Delhi as well as the NCR and the country without the prior permission of the concerned Court of Ld. MM and if, she gets the permission from the concerned Court, she is also directed to inform the same to the IO. The application is disposed of accordingly.
    • The copy of this order be given dasti to both the parties for its compliance.”
  6. It is stated in the present petition that petitioner is employed with the International Finance Corporation which is a part of the World Bank group and due to exigency of work, she has to periodically travel out of station and even abroad.
  7. It is further stated in the petition that petitioner has to travel on 17th December, 2012 to Nepal in connection with a development project. It is also stated that for the said project she has to travel on and off to Nepal for a period of approximately six months. A letter dated 04th December, 2012 to this effect issued by Ms. Monica J Chander, Head-Portfolio, South Asia Manufacturing, Agribusiness and Services Department is enclosed.
  8. It is settled law that right to travel is a facet of personal liberty and is protected by Article 21 of the Constitution of India. (See Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248 and Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., AIR 1976 SC 1836).
  9. This Court also takes judicial notice of the fact that the condition of obtaining prior permission before leaving the boundary of Delhi is a cumbersome one as the permission takes time and causes hardship to the petitioner. This Court is of the view that the impugned condition would certainly restricts the accused’s fundamental right to travel.
  10. Undoubtedly, the accused’s right to travel can be curtailed by a reasonable, transparent and fair procedure, but in the opinion of this Court such a restriction should be rarely imposed by the trial court while granting bail and that too, for cogent reasons.
  11. However, in the present case, this Court finds that the Additional Sessions Judge has not given any reason for imposing the aforesaid restriction.
  12. This Court is of the view that the right to travel cannot be curtailed as a matter of routine – as has been done in the present case.
  13. This Court is also of the opinion that if the impugned condition imposed by the Additional Sessions Judge is not immediately set aside, the petitioner in the near future could lose her job.
  14. Moreover, in the opinion of this Court, petitioner who is having no criminal antecedents and good academic qualifications is unlikely to abscond.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  15. Consequently, present petition is allowed and the condition imposed by the impugned order dated 06th October, 2012 restraining the petitioner from leaving the boundary of the NCT of Delhi as well as the NCR and the country without the prior permission of the Court of Metropolitan Magistrate is set aside.
  16. The SHO/Investigating Officer is directed to release the petitioner’s passport forthwith.
  17. With the aforesaid observations, present petition and application stand allowed.

 

Order dasti.

MANMOHAN, J

DECEMBER 14, 2012

js

wife getting 7 K p.m. u/s 24 HMA, tries DV in addition & COMPLETELY LOOSES ! Delhi MM court

Wife who is getting Rs 7000 p.m. as maintenance under sec 24 of HMA files a fake DV case where she is unable to proove Physical abuse or emotional abuse or economic abuse and completely loosed here case !!

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

IN THE COURT OF Ms. BHAVNA KALIA: METROPOLITAN
MAGISTRATE: MAHILA COURT­ 01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI

CC No: 92/1/11, 61/16

Jurisdiction of Police Station : Lodhi Colony

Silky Gulati
W/o Sh. Sandeep Gulati
D/o Sh. Ram Prakash Khurana
R/o H. NO. D­49, B.K. Dutt Colony, New Delhi ………Aggrieved

Versus

(i) Sandeep Gulati
S/o Sh. Amrit Lal Gulati

(ii) Amrit Lal Gulati
S/o Late Sh. Sunder Dass Gulati

(iii) Jyotsa Gulati
S/o Sh. Amrit Lal Gulati

(iv) Shakshi Gulati
D/o Sh. Amrit Lal Gulati

All R/o C­50, Gali No. 10,
New Govindpuri ……..Respondents

Date of filing : 10.03.2011
Date of arguments : 04.11.2016
Date of judgment : 19.11.2016

JUDGMENT

COMPLAINT:

  1. The aggrieved has filed an application u/s 12 of Protection of Woman From Domestic Violence Act, 2005 (hereinafter referred to as the Act). The aggrieved has prayed for the following reliefs.
  2. Protection order u/s 18 of the Act.

  3. Residence order u/s 19 of the Act.

  4. Monetory relief in the sum of Rs.55,000/­ u/s 20 of the Act.

  5. Monetory relief in the sum of Rs.30,000/­ per month (wrongly mentioned as Rs.25,000/­ as the total comes to Rs.30,000/­) u/s 20 of the Act.

  6. Compensation in the sum of Rs.1,00,000/­ u/s 22 of the Act.

  7. The aggrieved has asked for the above stated reliefs on the ground that domestic violence was inflicted upon her by the respondents. On the basis of the complaint summons were issued to all the respondents. It is the case of the aggrieved that she got legally married to respondent no.1, namely, respondent no. 1 on 16.02.2008. They had one girl child, namely, Priyanshi from the marriage who is in her care and custody and they both are residing at the aggrieved’s parental house. It is stated that in the marriage, parents of the aggrieved gave dowry as per their status to the respondents. Besides this valuable gold and silver jewelery was also given by the parents of the aggrieved to the respondents. The relatives of the aggrieved and respondent also gave gold and silver jewelery to the aggrieved. aggrieved stated that respondents kept all her istridhan illegally in her matrimonial house. She stated that after marriage she was brought to her matrimonial home where she and respondent no. 1 stayed as husband and wife. The attitude of the respondents was indifferent from the inception of marriage. respondent no. 1 would fight with her and shout at her on petty matters without any valid reason. All respondents misbehaved with her and maltreated her. She was taunted for bringing less dowry and was asked to bring more dowry from her parents. In July 2008, respondent no. 1 asked her to bring Rs. 2 lakhs from her parents and when the aggrieved refused to do so, she was beaten mercilessly by him with fists and blows and he also gave her a kick on her private part because of which she sustained a lot of pain. She said that after 6 months respondent no. 1 again asked her to bring Rs. 2 lakhs from her parents and when she complained to her in­laws, they supported respondent no. 1 and abused the aggrieved. They told her that respondent no. 1 was their only son and they were expecting more dowry in his marriage. She said that she was beaten by respondent no. 1 at instigation of other respondents. She told her parents about the same and her parents expressed their inability to meet the demand. She told the respondents about the inability of her parents, but they remained adamant and continued to harass and beat her. They tortured her both physically and mentally. She stated that when she was in the advanced stage of pregnancy, respondent no. 1 gave merciless beatings to her by fists and blows and after her delivery, she was again beaten by respondent no. 1 for not giving birth to a male child. She further said that respondent no. 1 had no love and affection towards her and their minor child and hence, in connivance with and at instigation of other respondents, he wanted to get rid of the aggrieved and do second marriage. She said that for this reason, respondent no. 1 also filed a case for divorce. aggrieved also filed a case before CAW Cell, Nanakpura on 23.11.2010, where respondent no. 1 agreed to take her back but till date he did not do so and later flatly refused to keep her as his wife. She said that respondent no. 1 did not pay any maintenance to her, for herself and the child. She was made to work like a maid whole day when she stayed with him. She tried to make him understand that he should care about her and their child’s welfare, but to no avail. She hoped that he would amend his attitude, but he did not do so. She submitted that her sister­in­law stole most of her costly belongings, but when she complained about the same to respondent no. 1, she was beaten mercilessly. She tolerated their behaviour for the sake of her marriage. She said that respondent no. 1 was a habitual drunk and under the influence of alcohol he would quarrel with her and beat her. She said that he spent his earnings on his drinking. On 8.10.2010 she was thrown out of her matrimonial house with her child with threats that till she got Rs. 2,00,000/­ she would not be allowed to reside with respondent no.

  8. Since then she has been residing on rent and is totally dependent upon her parents and other relatives for her day to day needs. She stated that respondent no. 1 has failed to maintain them even though he is working in a private company and earning about Rs. 70,000/­ per month. She said that she is unemployed. She has prayed for protection orders, residence orders, monetary relief, custody orders and compensation.

  9. Reply to the application was filed by the respondents. It is stated in the reply that the type of relief asked for by the aggrieved has not been specifically mentioned. It is further submitted that in the divorce case filed by the respondent no.1, aggrieved has stated that she wished to stay with him and did not want her articles back. It is further submitted that the present application is filed only to put pressure on the respondents and hence, must be dismissed. It is further submitted that respondent no. 1 Gulati has been disowned by his father. Respondent no. 1 has admitted that he got married with the aggrieved on 16.02.2008 and both of them have one girl child, namely, Priyanshi. However, respondent has stated that it was the aggrieved who left her matrimonial house with her father and took the child with her alongwith all her istridhan. He has stated that because of cruelty suffered by him, he has already filed a divorce petition under HMA before the court of Ld. ADJ, Karkardooma Courts. He has denied demanding any dowry from the aggrieved. He has stated that the amount spent by the parents of the aggrieved on the marriage was as per their desire. He stated that even after the marriage, he did not demand for any dowry. He has stated that it was the aggrieved, who started misbehaving with him, which was proved before the CAW Cell and the concerned police officer advised him to file for divorce. Keeping in view all the circumstances, parents of respondent no. 1 disowned him by giving intimation to the concerned police authorities and also by way of publication. Respondent no. 1 stated that aggrieved used to quarrel with him and use filthy language and also used to shout at him. It is stated that her behaviour became intolerable for the respondents and also their neighbours to bear. He further stated that the word ‘brother­in­law’ used in para 5 is incorrect as respondent no. 1 does not have any brother. He stated that it is impossible to accept that on the first day of marriage, he and his parents quarreled with the aggrieved and passed wrong comments against her. He has denied that respondents demanded Rs. 2 lakhs from the aggrieved for which aggrieved has not filed any proof. It is submitted that nature of respondents is not such that they would demand any dowry and the allegations are made by the aggrieved only to defame them. Respondents have denied that they beat or tortured the aggrieved as it was not in their character to do so. It is further stated that there is no truth in the statement that respondents were unhappy on the birth of a female child. In fact, respondents stated that for them the birth of female child is considered as coming of Goddess Laxmi. He has stated that the allegations that he wanted to do a second marriage is false. Respondent no. 1 has stated that regular rudeness, habit of abusing the elders, raising hands on him and pushing his parents was the regular habit of the aggrieved for which she was asked to improve herself many times, but she did not improve. It is further submitted that complaint filed with CAW Cell reveals that no incident took place and the IO of the case had advised the aggrieved to improve. It is stated that Rs. 1500/­ to Rs. 2000/­ were being paid to the aggrieved as pocket money which has not been mentioned by the aggrieved. Respondent no. 1 has stated that from the very beginning aggrieved was not interested in marrying him. He stated that as soon as the parties came out of the CAW Cell, aggrieved abused respondents and hence, it was impossible for him to take her back to the matrimonial house. Respondent no. 1 had denied that the aggrieved was treated as a maid. Rather, he has stated, that she was given all the respect and honour which was beyond the expectations of her parents also. Respondent stated that aggrieved was never ready to amend her behaviour. It is denied that respondent Shakshi Gulati stole the articles of the aggrieved or that the aggrieved was beaten mercilessly. It is stated that no FIR was filed for the same. Respondent no. 1 has stated that brother of aggrieved also threatened him on the phone that he had the power to get him killed. Respondent stated that aggrieved and her brother used to visit his office often just to create an atmosphere so that he may be removed from service. Respondent no. 1 had stated that he has never consumed alcohol. It is further stated that one letter dated 08.10.2010 written by the aggrieved is self explanatory as to the fact that the aggrieved left her matrimonial home at her will. It is further stated that the aggrieved has mentioned in para no. (i) that she is residing with her parents, but in para XIX she has stated that she is residing on rent. No rent receipt has been filed. It is further stated that address provided by the aggrieved is of her parents which implies that she stays with her parents. Respondent no. 1 has stated that he loves his daughter a lot and has requested aggrieved to allow him to see her, but she has declined. Respondent denied that he draws salary in the sum of Rs. 70,000/­ per month. He has stated that aggrieved is also qualified and working in a private firm of her relative and earning good salary. It is stated that aggrieved is not entitled to any reliefs under the Act.

COMPLAINANT’S EVIDENCE

  1. In her affidavit Ex.CW1, aggrieved has reiterated the contents of the complaint. She has further filed list of dowry articles as Ex.CW1/A. She has filed one copy of complaint filed with CAW Cell, Nanak Pura as Ex.CW1/B. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

During her cross examination, she stated that she had not filed any bills with regard to the articles which were given by her father in the marriage. She has further stated that no jewelery bills have been filed. She has further stated that she has not mentioned the name of any person in whose presence she was beaten or the date on which she was beaten. She has further stated that she has not filed any proof of the same. She has stated that she did not know of any brother­in­law about whom she has mentioned in the affidavit. She stated that even though she is a graduate, she is weak in English language. She has denied the suggestion that because of this reason, name and date of persons who had beaten her up, were not mentioned in her affidavit. She has stated that it was her who had stated the contents of the affidavit to her counsel. She further could not tell as to who had beaten or harassed her for bringing insufficient dowry, on the first day of her marriage. She further said that on the very next day of her marriage, respondent no. 1, 2 and 3 started taunting her and harassing her by saying that her father had not given a Sofa in marriage. She said that the Sofa was given later in the marriage. She admitted that the said fact is not mentioned in her affidavit. She did not file any complaint with regard to the items allegedly stolen by her sister­in­law (respondent no. 4) nor has she filed any list with the court. She said that the items stolen by respondent no. 4 in the month of January/February 2009, were lying in the locker of her Almira the keys of which used to be with her husband. She said that the entire jewelery received by her in the wedding was in that locker. She denied the suggestion that she was not treated like a maid or that she did not do the entire household work. She admitted that she had never seen her husband drink alcohol, but she had seen him several times in drunk condition when he returned home. She could not remember any date when he had done so. She said that she had never complained to her in laws regarding the same. She admitted that she had not mentioned in her complaint given at PS Lodhi Road and PS Jagatpuri that her husband used to drink. She has further admitted that she did not write in these complaints about the beatings given to her for demand of Sofa by respondents. She said that the respondent no. 1 used to spend his entire income on alcohol as he used to say that himself. She was given Rs. 1500/­ per month for running the house. She said that she used the amount for taking care of herself and her daughter. Other expenses were borne by father of respondent as it was a joint family. She admitted that her father­in­law retired much before her marriage. She said that she was told by her husband that the expenses were borne by his father, but she did not verify the same. She said that she did not know whether these facts are mentioned in her affidavit or not. She said that her husband and father­in­law demanded Rs. 2 lakhs from her in July 2008, but she did not remember the exact date. She further had no proof that she was thrown out of the matrimonial house on 08.10.2010. She again said that complaint had been filed at PS Jagatpuri, but the said fact was not mentioned in it. She said that she did not file any rent receipt or gave address of premises on which she was residing as tenant. She said that she had not filed any receipt of the play school in which her daughter is going. She did not remember the exact salary of respondent no. 1. She said that she did not take her daughter to any doctor after the incident of throwing of her daughter as mentioned in Ex.CW1/B. She did not know of any girl whom her husband wished to marry. She said that she was not working prior to her marriage, but she had got one FD on 07.08.2013 amounting to Rs. 1.5 lakhs in her name. She denied the suggestion that she used to assist her father in his business and got income for herself. She denied the suggestion that she is working even today. She said that it is mentioned in her complaint that she was going to her parent’s house on her own with her father. She admitted that she returned to her parental home on 08.10.2010 with her father. She said that by sexual violence, she meant that her husband used to force sexual activities upon her. She did not remember the date when motorcycle was demanded from her. She said that Rs. 2 lakhs were again demanded, but she did not remember the date, time or the year. She admitted that on 0810.2010, she called the police and on the same day went to her parent’s house with her father. She admitted that she had not filed any bills with regard to Ex.CW1/A. She admitted that when she was pregnant, she was beaten by respondents, but she did not file any complaint. She admitted that respondents had agreed before CAW Cell that they would take her back to the matrimonial home, but she denied the suggestion that she objected to the same. She said that her husband used to drink often, but not regularly. She denied the suggestion that she herself was non­ cooperating, both at Delhi and Lucknow. She denied the suggestion that at Lucknow her neighbor met her for keeping good behaviour with respondent. She denied the suggestion that she left her Lucknow matrimonial home and returned to Delhi without informing anyone. She said that she came with her husband. She admitted that she had told her husband that she wished to stay in Delhi and not Lucknow. She admitted that she came to Delhi from Lucknow 2­3 days before 08.10.2010.

No other witness was examined in CE.

RESPONDENT’S EVIDENCE

  1. One witness i.e respondent himself was examined in RE. He tendered his evidence by way of affidavit Ex.RW1/A and relied on copy of letter dated 23.11.2010 (Mark A), copy of istridhan articles of aggrieved (Mark B), Copy of letter dated 08.10.2010 written by aggrieved (Mark C).
  • RW 1 has reiterated the contents of his WS in his affidavit Ex.RW1/A. In addition, he has stated that aggrieved left the matrimonial home with their daughter. It is stated that she went with her father on her own and took all her articles with her. It is further submitted that because of her cruelty, respondent no. 1 had filed divorce petition. It is further submitted that no demand for dowry was ever raised from the aggrieved or her parents as the same was against law. The amount spent on the marriage was as per the desires of aggrieved and her parents. He stated that the aggrieved regularly quarreled with him and used filthy language. He stated that she shouted on him and his parents and this behaviour was regular on part of the aggrieved. Respondent no. 1 stated that the present case has been filed only to defame him and his family. He has stated that there was no reason for him to demand Rs.2 lakhs from the aggrieved. Aggrieved has not filed any proof for the said demand. He stated that the allegations on him that he beat the aggrieved with fists and blows and also gave her a kick are false. Rather, he stated that it was the aggrieved who used to behave like this. He has stated that no proof has been filed by the aggrieved for the same. He stated that he never intended to go for a second marriage and because of the continued misbehaviour of the aggrieved he was forced to file a divorce petition. Certain documents are filed by respondent no. 1, but the same are photocopies and cannot be read in evidence. He said that from the very beginning aggrieved was not interested in marrying him and thus, not interested in living with him.

  • During his cross examination, he stated that since aggrieved left the matrimonial house in October 2010, she had been staying with her parents. He said that he had never beaten or harassed the aggrieved after marriage and he never demanded Rs. 2 lakhs from her. He said that it was not his family’s habit. He said that aggrieved left the matrimonial home on her own by giving in writing to police authorities that she was leaving her matrimonial home with her father. He said that there was only one complaint filed with CAW Cell, which was withdrawn by the aggrieved subsequently. He said that the complaint filed at PS Lodhi Colony was sent back after reconciliation. He further stated that he had filed a divorce petition in Karkardooma Courts on the ground of cruelty and misbehaviour. He denied the suggestion that because he wanted to remarry, he had filed the divorce petition. He denied the suggestion that because he wanted to remarry, he had harassed and beaten the aggrieved.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    LEGAL PROVISIONS TO BE SEEN:

    1. In order to claim any Relief under the Act, it is imperative for the aggrieved person to show that she shared a domestic relationship with the respondent and she was subjected to domestic violence during the said period.
  • As per the Act, domestic relationship which is defined in section 2(f) means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

  • As per section 2(s) of the said Act, shared household means a household where the person aggrieved lives or has at any time lived in a domestic relationship with the respondents. Shared household means a house belonging to or taken on rent by the husband or the house which belongs to joint family of which husband is a member 1.

  • In the definition of domestic violence u/s 3 of the Act, it is stated that there must be an act, omission or commission or conduct of respondents 1 Neha Jain & anr. v. Gunmala Devi & Anr. RSA 282/2015 decided on 30.7.2015 which amounts to domestic violence. To constitute Domestic Violence, the conduct of the respondents should be such as to imply that the aggrieved was harassed or tortured by the said act. It is stated u/s 3 (a) of the Act, that there must be harm or injury or endangering the health, safety, life, limb or well being, whether mental or physical of the aggrieved, to cause physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Section 3 (b) provides that domestic violence shall also be committed if the respondent harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for dowry. Section 3 (c) of the Act provides that conduct mentioned in clause (a) and clause (b), if, has the effect of threatening to the aggrieved or any person related to her, may amount to domestic violence. Section 3 (d) of the Act, provides that to constitute domestic violence, there may be physical or mental injury or harm caused to the aggrieved person. In the explanation to Section 3 physical abuse, sexual abuse, verbal and emotional abuse and economic abuse have been defined.

  • Domestic violence is defined in section 3 of the Act as any act or omission on part of the respondent which causes physical, sexual, verbal, emotional and economic abuse to the aggrieved or an act or omission which harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security or an act which threatens or which causes physical or mental harm to the aggrieved.

  • ANALYSIS OF SUBMISSIONS IN VIEW OF THE LEGAL PROVISIONS:

    1. PWDV Act contemplates Domestic violence in the nature of harassment for dowry demand or physical abuse or verbal or emotional abuse or sexual abuse or economic abuse or all of these including threatening.
  • In order to see whether domestic violence was inflicted upon the aggrieved, it is important to see whether she was abused in any way as stated in the Act, and the same would be clear from her complaint and evidence of parties. The abuses are dealt with separately as under:

  • (i) Harassment for dowry demand: In the complaint aggrieved has stated that she was harassed again and again to get Rs. 2 lakhs from her parents. During her cross examination, she stated that she could not file any bills with regard to any articles given by her father in marriage. She stated that she had mentioned the name of the person and the date on which the dowry was demanded from her. On perusal of her affidavit, she had stated that she was harassed by her in laws for bringing less dowry. Then she had stated that respondents fought with her and shouted on her on petty matters without any reason. She had stated that in July 2008, respondent no. 1 asked her to bring 2 lakh from her parents, but when she objected, she was beaten. Then after six months respondent no. 1 again demanded Rs. 2 lakhs. When she again refused, she stated that she was abused by all the respondents saying that respondent no. 1 was their only son and they were expecting much more dowry. When she told her parents about the same, they expressed their inability to fulfill the demand. She has further stated that respondent no. 1 was a habitual drunk and neglected to maintain her and respondent no. 2 and 3 used to exert pressure upon her to bring Rs. 2 lakhs cash. During her cross examination, she has stated that on her next day of marriage, she was taunted by respondent no. 2 and 3 for not bringing a Sofa in the wedding. No demand of Sofa is mentioned in the complaint and the same appears to be an after thought. She admitted that she had not seen her husband drinking alcohol, but she said that she had seen him in drunk condition. She said that dowry was demanded in July 2008, but she could not remember the exact date. She said that when the second time Rs. 2 lakh were demanded, she could not remember the date, time and year. However, respondent in his affidavit has stated that no dowry was demanded from the aggrieved as it was not in his nature to do so. He has further stated that no explanation has been given by the aggrieved as to why the dowry was demanded. He has further stated that the allegations are vague. Respondent in his cross examination has stated that he never demanded Rs. 2 lakhs from the aggrieved. There has been no further cross examination of the respondent on this point. Thus, this fact stands admitted that there was no demand for dowry and hence, proved. Further considering that the allegations with regard to beatings and harassment are also vague,it cannot be said that the aggrieved was ever harassed for dowry. Allegations of dowry demand are serious in nature and without proper proof, it cannot be said that respondent no. 1 demanded dowry from aggrieved. The allegations od dowry demand and harassment are vague. Aggrieved could not state as to who demanded dowry from her, when the same was demanded and why wasit demanded. Two demands of Rs. 2 lakhs have been stated, but they are six months apart. It cannot be said that she was harassed or tortured for dowry.

    (ii) Physical abuse: It means any act or conduct which is of such a nature as to cause bodily harm to the aggrieved person and includes assault, criminal intimidation and criminal force. In the present case, even though the aggrieved has stated that she was beaten by the respondent, but the bodily harm that might have been caused to her has not been proved. It was on the aggrieved to prove that she received physical injuries because of conduct of respondent but she has not been able to prove even one injury. She could not tell the names of persons in whose presence she was beaten nor when she was beaten. She herself admitted in her cross examination that she had not filed any proof of the same. She could not tell as to who had beaten or harassed her for bringing insufficient dowry, on the first day of her marriage. It is hard to believe that if a person was beaten on the first day of marriage, she would not remember who did it, unless it was someone she did not know. Thus, aggrieved has not been able to prove physical abuse.

    (iii) Verbal and Emotional abuse: It includes insults, ridicule, humiliation, name calling or insults or ridicule specially with regard to not having a child or a male child. In her complaint, aggrieved has stated that after the delivery of her child, she was beaten by respondent no. 1 mercilessly for not bearing a male child. It is further stated that respondent no. 1 had no love and affection towards the minor child as he was unhappy as the child was a girl and not a boy. She has stated the same in her affidavit. It is further submitted by the aggrieved that respondent did not give any maintenance for the child. It is submitted by the respondent in his reply that birth of a female child for him, was like coming of Goddess Laxmi. He has further submitted in his evidence that he used to give Rs.1500/­ to Rs. 2000/­ for maintenance of his wife and daughter, which has been admitted by the aggrieved in her cross examination. Further the aggrieved had not stated as to when after the delivery of her child was she beaten by respondent no. 1 and if she was beaten mercilessly why did she not get herself medically examined. Also she had stated that she was beaten by respondent no. 1 for not bearing a male child, but it is not stated that respondent told her so that he did not want a made child. However, since she has not been cross examined on this point, it appears that the respondent admitted the same. However, respondent has stated in his affidavit that he considered the birth of a daughter as coming of Goddess Laxmi and he also used to give maintenance for maintaining his wife and daughter. He has not been cross examined on this point and thus, this fact stands admitted. Considering that there are two contradictory facts which stand admitted, other evidence has to be seen to examine whether the respondent no. 1 actually harassed the aggrieved for not bearing a male child. The aggrieved and respondent both have admitted that respondent no. 1 gave maintenance for the girl child, hence, it cannot be said that he was against the birth of the girl child. On preponderance of probabilities, this fact weighs in favour of respondent no. 1.

    (iv) Sexual abuse: It includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. In the present case, there are no such allegations. In her complaint, aggrieved has not made any allegations with regard to sexual abuse. No complaint has been made in her affidavit with regard to sexual abuse. Only in para 28 of her affidavit, she has written that respondent no. 1 may be directed not to repeat violence (physical, mental and sexual). Aggrieved has stated in her cross examination that by sexual violence, she meant that her husband used to force sexual activities upon her. Considering that there are no allegations whatsoever of sexual abuse, one statement of the aggrieved in her cross examination that her husband used to force sexual activities upon her is not relevant.

    (v) Economic abuse: Economic abuse means deprivation of economic or financial resources to which aggrieved is entitled. It is admitted fact that respondent no. 1 used to pay maintenance to her and their daughter and he did not deprive her of any financial resources. Further it is admitted fact that she left her matrimonial home on her own, thus it cannot be said she was deprived by the respondents of the financial resources. Further from the order of this court dated 21.05.2012, it is clear that u/s 24 HMA, aggrieved is already getting maintenance @ Rs. 7000/­ per month from the respondent no. 1 and she does not have any right to claim additional maintenance under the Act. However, in her affidavit, she has stated that respondent no. 1 did not care about her and neglected to pay any amount towards her and her child’s maintenance. This statement is false considering that u/s 24 HMA, aggrieved has already been granted maintenance. Also while the parties were in domestic relationship, admittedly respondent no.1 was giving Rs. 1500/­ to Rs. 2000/­ to her as pocket money and other respondents were maintaining the household expenses. Thus, there appears to be no economic abuse.

    (vi) Threatening the aggrieved with regard to above stated abuses: There are no allegations with regard to any threats.

    (vii) Physical or mental harm: It means any injury or harm, whether mental or physical, caused to the aggrieved person. No medical has been filed by the aggrieved to show any physical harm suffered by her. As far as mental harm/injury is concerned, it appears that she was mentally disturbed by the fact that respondents allegedly were demanding dowry and that she got the impression that respondent no. 1 wanted to remarry. Respondent no. 1 has categorically stated that he never wanted to remarry and he had filed for divorce only because he was tired of the misbehaviour of the aggrieved. Considering that there was no dowry demand, no harassment and no physical abuse suffered by the aggrieved, it cannot be said that she suffered any mental harm or injury. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    1. From the entire evidence on record, allegations of the aggrieved have not been proved. They are vague in nature and sufficient proof has not been brought on record. On the other hand, respondent no. 1 has filed his affidavit completely denying the allegations of the aggrieved and he has not been cross examined on those points. It is clear from the evidence that the aggrieved left her matrimonial home with her father at her own will and she was not thrown out. She has herself stated that she came from Lucknow and after 2­3 days let her matrimonial home. No explanation is given by her. It appears that when she came from Lucknow, she had made up her mind that she would leave her matrimonial home. Further respondent in his cross examination stated that she left the matrimonial house and gave in writing to the police authorities that she was leaving her matrimonial home with her father. Respondent has not been cross examined on this point. Aggrieved has stated at one place that she was living on rent, but at other place, she has stated that she is living with her parents. Contradictory statements make her testimony unreliable. Respondent no. 1 has further stated that there was only one complaint in CAW Cell which was withdrawn by the aggrieved, but aggrieved has stated in her affidavit that he had agreed to take her back, but later flatly refused to do so. Respondent in reply stated that it was the aggrieved, who started misbehaving with him, which was proved before the CAW Cell and the concerned police officer advised him to file for divorce. He further stated in his cross examination that one complaint was also filed at PS Lodhi Colony, but he same was not lodged and aggrieved was sent back after conciliation. Aggrieved has also stated that her sister­in­law stole her articles from her Almirah, but she has stated that keys of the Almirah were with her husband. It appears that she has made unncessary/baseless allegations against her sister­in­law just to drag her in the present matter. No FIR/complaint was filed for loss of articles. No reason is given as to why she suspencted her sister in law. It is evident that aggrieved has made false allegations against her sister in law.
  • In view of the above analysis of submissions, on preponderance of probabilities, it cannot be said that respondents committed domestic violence upon the aggrieved. Hence, her complaint u/s 12 PWDV Act is dismissed. No relief as contemplated under the Act is allowed to the aggrieved.

  • In view of the above observations the present application u/s 12 PWDV Act is disposed of.

  • Pronounced in open court
    (BHAVNA KALIA) on 19.11.2016
    M.M./(Mahila Court)­01/South District New Delhi

    Extra marital by husband NOT cruelty under 498a. Convictions under 306, 498a set aside by Supreme court

    Extra marital by husband NOT cruelty under 498a. Convictions under 306, 498a set aside by Supreme court

    In this classic but sad case a wife commits suicide suspecting that her husband is having an extra marital affair Unable to bear the stigma, the woman accused as his paramour commits suicide. That woman’s mother and brother too commit suicide ! The man gets charged under sec 306 and Sec 498a of IPC. The Hon Supreme court sets aside both convictions and states “... The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC…..” . “..Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. …..”

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

    REPORTABLE

    IN THE SUPREME COURT OF INDIA

    CRIMINAL APPELLATE  JURISDICTION

    CRIMINAL APPEAL  NO(S).   1138-1139        OF 2016
    (@ S.L.P. (Crl) Nos.  5928-5929 OF 2016)

    K.V. Prakash Babu                                  …     Appellant

    VERSUS

    State of Karnataka                                 …     Respondent

    J U D G M E N T

    Dipak Misra, J.

    1. Leave granted.
    2. The instant appeals reveal a factual score that has the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark; and ultimately the situation ropes in the husband to face the charge for the offences punishable under Sections 302 and 498-A of the Indian Penal Code (IPC) read with Section 3 of the Dowry Prohibition Act, 1961 (‘1961 Act’ for short). As the facts would unveil, the husband gets acquitted for the offence under Section 302 IPC but convicted in respect of other two charges by the trial court. In appeal, his conviction under Section 3 of the 1961 Act is annulled but success does not come in his way as regards the offence under Section 498-A IPC. And the misery does not end there since in the appeal preferred by the State, he is found guilty of the offence under Section 306 IPC and sentenced to suffer four years rigorous imprisonment and to pay a fine of Rs.50,000/- to be given to the father of the victim with a default clause.
    3. In the course of our adumbration and analysis of facts, it will be uncurtained how the seed of suspicion grows enormously and the rumours can bring social dishonor and constrain not-so-thick skinned people who have bound themselves to limitless sorrow by thinking ‘it is best gift of God to man” and choose to walk on the path of deliberate death. A sad incident, and a shocking narrative, but we must say, even at the beginning, the appellant-husband has to be acquitted regard being had to the evidence brought on record and the exposition of law in the field.
    4. The singular issue, as the aforesaid passage would show, that arises for consideration in these appeals, by special leave, that assails the judgment and order dated 13.04.2016 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No. 655 of 2012 whereby the High Court has allowed the appeal preferred by the State which had called in question the legal acceptability of the judgment and order passed by the learned Additional Sessions Judge, Fast Track Court-III, District Kolar, Karnataka, who vide judgment dated 5.1.2012 had found the appellant guilty of the offences punishable under Section 498-A of the IPC and Section 3 of the 1961 Act and sentenced him to suffer rigorous imprisonment of one year and two years respectively with the default clause. It is apt to note here that the appellant had also preferred Criminal Appeal No. 126 of 2012 wherein the High Court while passing the common judgment has opined that the prosecution has miserably failed to establish the conviction under the 1961 Act. However, as stated earlier, it found the appellant guilty of the offence under Section 306 IPC and the result of such conviction was imposition of four years rigorous imprisonment and fine of Rs. 50,000/- (Rupees fifty thousand only) with the further stipulation that Rs.45,000/- (Rupees forty five thousand only) be paid to the father of the deceased. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    5. The occurrence that led to launching of prosecution is that the marriage between the appellant and the deceased, Anjanamma, was solemenised on 12.10.1997. The appellant, as alleged, got involved with one Deepa, daughter of one Ashwathamma inasmuch as his visit to the house of Ashwathamma was quite frequent. As the prosecution story proceeds, the deceased felt extremely hurt and eventually being unable to withstand the conduct of the husband who was allegedly involved in an extra-marital affair, put an end to her life on 20th August, 2004. An FIR was lodged at the concerned police station by the father of the deceased, which set the criminal law in motion and the investigating officer recorded statement of witnesses under Section 161 of the IPC and after completing the investigation, placed the charge sheet under Sections 201, 302 and 498-A of the IPC and Section 3 of the 1961 Act before the concerned Magistrate who, in turn, committed the matter to the Court of Session. The accused abjured his guilt and expressed his intention to face trial, advancing the plea of denial and false implication. In order to establish the charges, the prosecution examined 31 witnesses in all. The defence chose not to adduce any evidence. The main witnesses are father of the deceased, PW-1 and the neighbours who have deposed about the extra- marital affair of the husband and the death of the deceased.
    6. As we have already stated about the conviction and the punishment, the same need not be stated in detail. There is no dispute that the learned trial judge as well as the High Court has not found the appellant guilty of the offence punishable under Section 302 of the IPC. The High Court has also arrived at the conclusion after detailed deliberation that the prosecution has not been able to establish the offence under Section 3 of the 1961 Act. However, it has found the appellant guilty of the offence under Sections 498-A and 306 of the IPC.
    7. It is submitted by Mr. S.R. Singh, learned senior counsel that the High Court has completely erred in appreciating the evidence to sustain the conviction under Section 498-A inasmuch as there is no material whatsoever with regard to demand of dowry or any kind of torture. According to Mr. Singh, the High Court has applied the second limb of Section 498-A IPC on the foundation that the involvement of the husband in extra-marital affair established cruelty under the said provision and, therefore, it would be an offence under Section 306 of the IPC which is contrary to the pronouncements of this Court.
    8. Mr. V.N. Raghupathy, learned counsel appearing for the State had supported the judgment and order passed by the High Court by placing reliance on the analysis of the various facets and the scrutiny and scanning of the evidence of the prosecution witnesses including that of the father, the neighbours and the investigating officer.
    9. To appreciate the submissions raised at the Bar, we have bestowed our anxious consideration and carefully examined the decision rendered by the trial court and that of the High Court. On a studied scrutiny of the evidence, it is demonstratable that the father of the deceased in his deposition has not stated anything with regard to any kind of cruelty meted out to the deceased except stating that she quite often complained to the parents about the visit of the appellant to the house of Ashwathamma and that she had suspicion against her husband that he was going to have a second marriage. The other witnesses including the investigating officer have deposed that there was discussion in the locality about the illicit connection of the appellant with one lady at Chelur Village. Barring the aforesaid, there is no whisper with regard to any kind of ill-treatment or cruel behaviour by the husband.
    10. In view of the aforesaid evidence, the question that emerges for consideration is whether the conviction under Section 498A and 306 IPC is legally justiciable in this context. We think it appropriate to refer to Section 498A of the IPC. The said provision reads as follows:-
      • 498-A. HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY:
      • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      • Explanation: For the purposes of this section, “cruelty” means
      • (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
      • (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”
    11. The said provision came up for consideration in Giridhar Shankar Tawade vs. State of Maharashtra[1], where the Court dwelling upon the scope and purport of Section 498-A IPC has held thus:- “The basic purport of the statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word ‘cruelty’ as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of ‘cruelty’ in terms of Section 498-A.” [emphasis added]
    12. In Gurnaib Singh v. State of Punjab[2], while dwelling upon the concept of ‘cruelty’ enshrined under Section 498-A the Court has opined thus:-“Clause (a) of the Explanation to the aforesaid provision defines “cruelty” to mean “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty.”
    13. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.
    14. In this regard, Mr. Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat[3]. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on, but extra-marital relationship as such is not defined in the IPC. The Court analyzing further in the context of Section 498A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. The Court further elucidated that harassment need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide. The two-Judge Bench further opined that:- “Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” [emphasis added]
    15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat[4], the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:- “True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted.”
    16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):- “Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill- treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution.” We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption.
    18. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, the daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Deepa, being not able to digest the humiliation, committed suicide. The mother and the brother of Deepa paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC.
    19. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify.
    20. Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

    ………………..……………..J. (DIPAK MISRA)

    ………………..……………..J. (AMITAVA ROY)

    New Delhi

    November 22, 2016

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

    ITEM NO.4              COURT NO.3               SECTION IIC

    S U P R E M E  C O U R T  O F  I N D I A

    RECORD OF PROCEEDINGS

    Petition(s) for Special Leave to Appeal (Crl.) No(s). 5928-5929/2016 (Arising out of impugned final judgment and order dated 13/04/2016 in CRLA No. 126/2012 13/04/2016 in CRLA No. 655/2012 passed by the High Court Of Karnataka At Bangalore) K.V. PRAKASH BABU Petitioner(s) VERSUS STATE OF KARNATAKA Respondent(s) (with appln. (s) for bail and exemption from filing O.T. and office report) Date : 22/11/2016 These petitions were called on for hearing today.

    CORAM :

    HON’BLE MR. JUSTICE DIPAK MISRA HON’BLE MR. JUSTICE AMITAVA ROY For Petitioner(s) Mr. S.R. Singh, Sr. Adv.

    Mr.Anurag Thomas, Adv.

    Mr. B. Vishwanath Bhandarkar, Adv.

    Mr. H.K. Naik, Adv.

    Mr. Karunakar Mahalik,Adv.

    For Respondent(s) Mr. V. N. Raghupathy,Adv.

    UPON hearing the counsel the Court made the following O R D E R Leave granted.

    Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

    |   (NEELAM GULATI)                |          (H.S. PARASHER)          |
    |COURT MASTER                      |COURT MASTER                       |

    (Signed Reportable Judgment is placed on the file)


    [1]
    (2002) 5 SCC 177
    [2]    (2013) 7 SCC 108
    [3]     (2013) 10 SCC 48
    [4]     (2015) 11 SCC 753

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

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    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 with necessary Emphasis, Re formatting


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