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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

Son has no legal right to live in parent’s house. He stays at their mercy & till they allow – Delhi HC

In this classic case, elders harassed by their Daughters in law and sons seek mandatory injunction and peacefull possesion of their property. They are granted the same by lower courts. One of the sons goes on appeal. The HC affirms the lower court orders.

The Hon Delhi HC goes on to add “…. 15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life….”


IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 24th November,2016

RSA 136/2016 & CM No.19123/2016

SACHIN & ANR ….. Appellants
Through: Appellant No.1 in person

versus

JHABBU LAL & ANR ….. Respondents
Through: Mr.Rakesh Kumar, Advocate with respondents in person

PRATIBHA RANI, J. (Oral)

 

  1. The appellant No.1, who is present in person, requests for an adjournment on the ground that he wants to change his counsel. The appellants are enjoying an ex-parte interim stay granted in their favour on 20th May, 2016 against their dispossession from the suit property.
  2. On 29th August, 2016 the appellants requested for a date on the ground that the counsel was suffering from fever. This Court passed the following order:- “1. Only for the reason that counsel for the appellants is said to be down with fever, therefore, this case is adjourned, otherwise prima facie I find no merits in the appeal where appellants/defendants who are son and daughter-in-law of the respondents/plaintiffs have been evicted from the suit premises. 2. List on 7th September, 2016.
  3. On 7th September, 2016 after hearing respondent No.2, mother of the appellant No.1, with the consent of the parties, appellant No.1 Sachin was directed to pay ` 3500/- per month to the respondents/parents with effect from September, 2016. Appellant No.1 Sachin undertook to comply with this obligation. He also agreed not to stop his elder brother Sanjay (Defendant No.1) from using the second floor of the property. Matter was also referred to the mediation. Mediation report dated 17 th October, 2016 received with the report that it was ‘Non-Starter’.
  4. Today appellant No.1 Sachin was asked as to whether he has complied with the order dated 7th September, 2016 by making payment to his parents, he simply stated that he has no money to pay and sought time to change his counsel. The appellant No.1 was again asked whether he is ready to comply with the directions dated 7 th September, 2016 as in that case he can be given time to make the payment to his parents. The appellant No.1 has refused to make any payment to his parents.
  5. When the mediation failed on 17th October, 2016, if the appellants intended to change their counsel, nothing prevented them from doing so. The appellants cannot be permitted to abuse the process of law by seeking adjournment on one pretext or the others especially when they are enjoying ad-interim stay against their dispossession from this Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  6. Heard.
  7. The Regular Second Appeal No.136/2016 under Section 100 of the Code of Civil Procedure, 1908 impugns the concurrent judgment of the Court below i.e. of the trial Court dated 16 th March, 2015 and of the First Appellate Court dated 13th January, 2016 whereby Civil Suit No.49/14 filed on 11th February, 2014 by the parents of the appellants (respondent Nos.1 & 2 herein) against their two sons and their wives seeking decree of permanent and mandatory injunction has been decreed.
  8. The suit was filed by respondent No.1, Sh.Jhabbu Lal and respondent No.2, Smt.Raj Devi pleading that they are senior citizens residing on ground floor in House No.RZ-H-81, Gali No.4, Nihal Vihar, Nangloi, Delhi-110041 and construction on the said plot has been raised upto second floor. Their elder son Sanjay along with his wife Mamta was permitted to live on the second floor whereas the younger son Sachin along with his wife Neetu was permitted to live on the first floor of the said property out of love and affection for their sons. The parents of the appellant No.1 claimed themselves to be owner of the suit property which was self acquired. It was further pleaded by the parents of the appellants that their sons as well their wives made the life hell for them so much so that they were not even paying the electricity bills. The old parents were constrained to make various complaints to the police and also issued public notice on 5th January, 2007 and 17th May, 2012 disowning their sons and debarring them from their self acquired property. It was also pleaded that said property was purchased by them by selling their earlier property being RZ-H-215A, Nihal Vihar, Laxmi Park, Nangloi, Delhi-110041. Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.
  9. Two separate written statements were filed by the Sanjay and his wife (Defendant Nos.1 & 2) and Sachin and his wife Neetu (Defendant Nos.3 and 4) denying the claims of the plaintiffs to be the exclusive owner of the suit property or that it was their self acquired property. They claimed to be co- owner having contributed towards purchase as well as towards costs of construction for the said property.
  10. Perusal of the LCR shows that on 9th September, 2014 following issues were framed:- 1. Whether the plaintiff is entitled to be relief of mandatory and permanent injunction as prayed? OPP 2. Whether the plaintiff is not the exclusive owner of the suit property and the defendant are the co-owners? OPD 3. Relief.
  11. Both the plaintiffs filed their examination-in-chief by way of affidavit in support of the averments made in the plaint. However, all the four defendants failed to appear at that stage thus their right to cross-examine PW-1 & PW-2 was closed by the Court. Even at the stage of defence evidence none of the defendants led any evidence to prove that plaintiffs were not the exclusive owner of the suit property or that they were the co- owners. Believing the unrebutted testimony of the plaintiffs which was supported by necessary documentary evidence, learned trial Court decreed the suit interalia on the following grounds:- (i) The documents i.e. GPA, agreement to sell, receipt and Will being in favour of the plaintiff No.1 (Father of defendant Nos.1 & 3) though do not make him absolute owner but he has a better title as compared to the defendants. (ii) It has not been denied by the defendants that the property stands in the name of the plaintiff No.1 Sh. Jhabbu Lal and have not claimed any ownership right of their own distinguished from the plaintiffs. No evidence has been led to prove that they are the co-owners having contributed their share towards the purchase of the said property. (iii) The testimony of the plaintiffs that defendants were licensees and their license has been revoked stands unrebutted. (iv) Suit for mandatory injunction being filed within a reasonable time i.e. within six months period after termination of the license, separate suit for possession is not mandatory. Decree for mandatory and permanent injunction was accordingly passed in respect of the suit property. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  12. The first appeal bearing RCA No.63/15 was filed only by defendant Nos.3 and 4 i.e. younger son Sachin and his wife Neetu. Before the First Appellate Court the grievance was more towards the learned Presiding Officer than on merits.
  13. The appeal was dismissed observing that it was a case of gross- negligence on the part of the appellants/defendant Nos.3 & 4 in defending the case. It was further held that in the absence of any evidence being led by the appellants and the testimony of the respondents/plaintiffs having remained unchallenged, the impugned order was not suffering from any illegality. Hence the appeal was dismissed.
  14. The appellant No.1 is the younger son of the respondent No.1/plaintiff No.1 Jhabbu Lal who has led detailed evidence both oral and documentary duly corroborated by testimony of his wife, respondent No.2/plaintiff No.2 Smt. Raj Devi to prove their case. The respondent Nos.1 and 2/plaintiffs may not have proved themselves to the owner of the suit property as may be established in a case of acquiring title under a registered sale deed but surely they would have better rights/entitlement to seek possession of the suit property from his sons who were permitted to live on the first floor only out of love and affection towards them.
  15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life.
  16. In my opinion in a case such as the present one where the appellants/defendant Nos.3 & 4 have led no evidence to prove that it waived self acquired or co-ownership in the suit property whereas respondents/plaintiffs No.1 & 2 have proved their case on the basis of documentary evidence i.e. copies of General Power of Attorney, Agreement to Sell, Receipt possession letter Affidavit etc., the learned trial Court was justified in decreeing the suit which was upheld by the First Appellate Court.
  17. In view of the above no substantial question of law arises for this Court to exercise its power under Section 100 of the Code of Civil Procedure. Therefore, the appeal is dismissed leaving the parties to bear their own costs.

PRATIBHA RANI, J.

NOVEMBER 24, 2016 ‘pg’


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

 

#Bangalore and every metro has 1000s of #fakeDV #fake498s. Who will stop them ?

every metro including #bangalore has 10s of 1000s of #FakeDV #fake498a but no one cares a damn… 1000s of men and elders have died and NO one cares a fart. Hardly any #fakeCase female has been jailed. Now, Just One night, and for a few hours, some / few women were probably #molested and we have 1000s of MEN and WOMEN and Dozens of #presstitutes agonizing and Crying over that… All Indian men and All Bangaloreans are being tarnished … The police and government are all being pulled up …. How do you think MEN will get any justice or any equality in this country ??? When will our men wake up ? when oh when ??

RIP OM PURI ji !! Did the DV case kill him?? Salute your talent sir !

RIP OM PURI. At this sad moment we remember the DV case on him and the terrible time he had with his cases e.g. FIR just few days before his acting in a Steven Spielberg film !, 3 lakhs PER MONTH interim maintenance etc etc. This should be a stark reminder to all those idiots who think marriage is essential for OLD age !! A broken marriage is bad for one’s own old age and to elderly parents. #OmPuri what a talented person lost forever

Wife files domestic violence case against actor Om Puri
http://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/Om-Puri-Bollywood-Nandita/articleshow/22070690.cms

Om Puri told to pay Rs 2.90 lakh per month to wife and son
http://timesofindia.indiatimes.com/city/mumbai/Om-Puri-told-to-pay-Rs-2-90-lakh-per-month-to-wife-and-son/articleshow/23599362.cms

Veteran Indian actor Om Puri dies aged 66
http://www.bbc.com/news/world-asia-india-38527232

Om Puri, celebrated Indian actor, dies aged 66
Veteran of Bollywood, Hollywood and UK film industry dies in Mumbai, according to close friend
https://www.theguardian.com/world/2017/jan/06/om-puri-indian-actor-dies-aged-66

SC quashs dowry case n ALL relatives EVEN after woman’s death. JUST gifts does NOT make them guilty

Even though the Andhra HC does NOT quash the 498a against parents, widowed sister and others, SC quashes the same !! All relatives roped in after wife’s death are finally freed at SC !!

“………..Giving of dowry and the traditional presents at or abou the time of wedding does not in any way raise a presumption tha such a property was thereby entrusted and put under the dominio of the parents-in-law of the bride or other close relations so as t attract ingredients of Section 6 of the Dowry Prohibition Act. A noticed earlier, after marriage, Syamala Rani and first appellan were living in Bangalore at their matrimonial house. In respect o ‘stridhana articles’ given to the bride, one has to take int consideration the common practice that these articles are sen along with the bride to her matrimonial house. It is a matter o common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her i her matrimonial house when the appellants 2 to 6 have bee residing separately in Vizianagaram, it cannot be said that th dowry was given to them and that they were duty bound to retur the same to Syamala Rani. Facts and circumstances of the cas and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibitio Act against appellants 2 to 6 and there is no sufficient ground fo proceeding against the appellants 2 to 6. Be it noted tha appellants 2 to 6 are also facing criminal prosecution for th offence under Sections 498A, 304B IPC and under Sections 3 and of the Dowry Prohibition Act. Even though the criminal proceedin under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6, in our view continuation of the criminal proceeding against appellants 2 to 6 is.not just and proper and the same is liable to be quashed……”


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 45 OF 201 (Arising out of SLP (Crl.) No. 9344 of 2014)

BOBBILI RAMAKRISHNA RAJU YADAV & ORS. ….Appellants
Versus
STATE OF ANDHRA PRADESH REP. BY IT PUBLIC PROSECUTOR HIGH COURT OF A.P HYDERABAD, A.P. & ANR. …Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

  1. The present appeal assails the order date 23.07.2014 passed by the High Court of Judicature a Hyderabad in Criminal Petition No.1778 of 2010, whereby th High Court declined to quash the proceedings against appellant No.1 to 6 in C.C. No. 532 of 2009 under Section 6 of the Dowr Prohibition Act 1961 pending before Additional Judicial Firs Class Magistrate, Vizianagaram
  2. Brief facts leading to the filing of this appeal are a follows:- First appellant is working as an Engineer in G.E. Indi Technology Company at Bangalore. Appellants No.2 and 3 ar the parents, appellant No.4 is widowed sister and appellant No.5 and 6 are the sisters of appellant No.1. Marriage of firs appellant and Syamala Rani was performed at Vizianagaram o 04.05.2007 and after marriage, Syamala Rani was residing a Bangalore with her husband-appellant No.1. Syamala Rani die on 06.09.2008 under suspicious circumstances and a case wa registered in FIR No.1492 of 2008 under Sections 304B, 498 IPC read with Sections 3 and 4 of the Dowry Prohibition Act a H.A.L. Police Station, Bangalore City. On completion o investigation in the said case, chargesheet was filed against th appellants No.1 to 6 and the case was committed to Session Court vide committal order dated 29.12.2008 and was taken o file as S.C. No.79 of 2009 in the Court of Principal Session Judge, Bangalore. Second respondent-father of Syamala Ran filed a private complaint against the appellants under Section of the Dowry Prohibition Act alleging that he had paid dowr amount and other articles which were presented as dowry to th appellants on their demand and the same were not returned The Magistrate took cognizance of the offence under Section 6 o the Dowry Prohibition Act in C.C. No.532 of 2009.

  3. The appellants then preferred a petition unde Section 482 Cr.P.C. before the High Court to quash th complaint i.e. C.C.No.532 of 2009 contending that the complain does not disclose an offence and that FIR No.1492 of 2008 wa already registered against the appellants at Bangalore city. Th High Court vide the impugned order dismissed the petition file by the appellants holding that the offences alleged in th previous case in S.C.No.79 of 2009 emanating from the FI No.1492 of 2008 and the subsequent complaint in C.C.No.532 o 2009 are not one and the same as the previous case wa registered under Sections 304B and 498A IPC read with Section 3 and 4 of the Dowry Prohibition Act, whereas the subsequen case is registered under Section 6 of the Dowry Prohibition Ac which is independent of the previous case. Being aggrieved, th appellants have preferred this appeal.

  4. Learned counsel for the appellants submitted that th Magistrate ought not to have taken cognizance of the complain as the previous case was already registered against th appellants in FIR No.1492 of 2008 under Sections 304B an 498A IPC read with Sections 3 and 4 of the Dowry Prohibition Ac and the same is pending trial in Sessions Case No.79 of 2009 a Bangalore city and hence the subsequent complaint is no sustainable. It was further submitted that the subsequen complaint C.C.No.532 of 2009 emanates from the same cause o action and the allegations in the complaint do not constitute th alleged offence under Section 6 of the Dowry Prohibition Act an the complaint is an afterthought for wrecking vengeance on th appellants.

  5. Per contra, the learned counsel for responden No.2 submitted that the complaint case in C.C. No.532 of 200 under Section 6 of the Dowry Prohibition Act is independent o the previous case i.e. FIR No.1492 of 2008 and the pendency o the said case before the Sessions Court, Bangalore shall no affect the complaint filed under Section 6 of the Dowr Prohibition Act. It was submitted that even after death o Syamala Rani, the appellants threatened the complainant an his family members and the complainant-respondent No.2 ha led several mediations with the appellant No.1 for return o dowry amount and other articles which were presented as dowr on demand made by the appellants and inspite of suc mediations, the appellants did not return the dowry amount an other articles and hence a prima facie case is made out agains the appellants and the High Court rightly declined to quash th proceedings.

  6. We have considered the rival contentions and peruse the impugned judgment and material available on record.

  7. Section 6 of the Dowry Prohibition Act lays down tha where the dowry is received by any person other than the bride that person has to transfer the same to the woman in connectio with whose marriage it is given and if he fails to do so withi three months from the date of the marriage, he shall be punishe for violation of Section 6 of the Dowry Prohibition Act. Section reads as under:-

    1. Dowry to be for the benefit of the wife or her heirs.-(1
      Where any dowry is received by any person other than the
      woma in connection with whose marriage it is given, that
      person shal transfer it to the woman-

      (a) if the dowry was received before marriage, within
      [three months after the date of marriage; or

      (b) if the dowry was received at the time of or after the
      marriage within [three months] after the date of its
      receipts; or

      (c) if the dowry was received when the woman was a minor,
      withi [three months] after she has attained the age of
      eighteen years and pending such transfer, shall hold it in
      trust for the benefit o the woman.

      [(2) If any person fails to transfer any property as
      required by subsectio (1) within the time limit specified
      therefore, [or as require by Sub-section (3),] he shall be
      punishable with imprisonment fo a term which shall not be
      less than six months, but which ma extend to two years or
      with fine [which shall not be less than fiv thousand
      rupees, but which may extend to ten thousand rupees or with
      both.]

      (3) Where the woman entitled to any property under sub-
      section (1 dies before receiving it, the heirs of the woman
      shall be entitled t claim it from the person holding it for
      the time being:

      [Provided that where such woman dies within seven years of
      he marriage, otherwise than due to natural causes, such
      propert shall,-

      (a) if she has no children, be transferred to her parents;
      or

      (b) if she has children, be transferred to such children
      and pendin such transfer, be held in trust for such
      children.]

  • If the dowry amount or articles of married woman wa placed in the custody of his husband or in-laws, they would b deemed to be trustees of the same. The person receiving dowr articles or the person who is dominion over the same, as pe Section 6 of the Dowry Prohibition Act, is bound to return the sam within three months after the date of marriage to the woman i connection with whose marriage it is given. If he does not do so, h will be guilty of a dowry offence under this Section. The sectio further lays down that even after his conviction he must return th dowry to the woman within the time stipulated in the order 10. In Pratibha Rani vs. Suraj Kumar & Anr. (1985) 2 SC 370, this Court observed as follows:-

    “20. We are clearly of the opinion that the mere factum of
    th husband and wife living together does not entitle either
    of them t commit a breach of criminal law and if one does
    then he/she will b liable for all the consequences of such
    breach. Criminal law an matrimonial home are not strangers.
    Crimes committed i matrimonial home are as much punishable
    as anywhere else. In th case of stridhan property also, the
    title of which always remain with the wife though
    possession of the same may sometimes be wit the husband or
    other members of his family, if the husband or an other
    member of his family commits such an offence, they will b
    liable to punishment for the offence of criminal breach of
    trus under Sections 405 and 406 of the IPC.

    1. After all how could any reasonable person expect a
      newl married woman living in the same house and under the
      same roo to keep her personal property or belongings like
      jewellery, clothin etc., under her own lock and key, thus
      showing a spirit of distrus to the husband at the very
      behest. We are surprised how could th High Court permit the
      husband to cast his covetous eyes on th absolute and
      personal property of his wife merely because it is kep in
      his custody, thereby reducing the custody to a legal farce.
      On th other hand, it seems to us that even if the personal
      property of th wife is jointly kept, it would be deemed to
      be expressly or impliedl kept in the custody of the husband
      and if he dishonestl misappropriates or refuses to return
      the same, he is certainly guilt of criminal breach of
      trust, and there can be no escape from thi legal
      consequence…..”
  • It is well-settled that power under Section 482 Cr.P.C should be sparingly exercised in rare cases. As has been laid dow by this Court in the case of Madhavrao Jiwajirao Scindia & Ors. vs Sambhajirao Chandrojirao Angre & Ors., (1988) 1 SCC 692, tha when a prosecution at the initial stage was asked to be quashed the test to be applied by the Court was as to whether th uncontroverted allegations as made in the complaint prima faci establish the offence. It was also for the Court to take int consideration any special feature which appears in a particula case to consider whether it was expedient and in the interest o justice to permit a prosecution to continue. This was so on th basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose was likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case als quash the proceedings even though it may be at a preliminar stage.
  • In the light of the well settled principles, it is to be see whether the allegations in the complaint in the present case an other materials accompanying the complaint disclose the offenc punishable under Section 6 of the Dowry Prohibition Act. Marriag of first appellant and Syamala Rani was solemnized i Vizianagaram on 04.05.2007 and the couple was living i Bangalore. Appellants 2 to 6–the parents and sisters of appellan No.1 were living in Vizianagaram. It is the contention of th appellants that there are no allegations in the complaint that th ‘stridhana articles’ were given to appellants 2 to 6 and that the failed to return the same to Syamala Rani. In paras (3) and (4) o the complaint filed by the second respondent, it is alleged that h paid the dowry amount “to the accused and some ‘stridhan articles’ like double cot and other furniture and utensils required t set up a family”. In the complaint, it is vaguely alleged that eve after death of deceased-Syamala Rani, the accused starte threatening the complainant and that the accused offered to pay a amount of Rs.10,000/- towards full and final settlement. Th relevant averments in the complaint in paragraphs (5) and (6) read as under:-

    “5. The complainant submits that even after the death o the
    deceased the accused by keeping the dead body on on side,
    started threatening the complainant and his famil members
    that if they give any report to the police, they wil be
    killed then and there only and they offered to pay a amount
    of Rs.10,000/- towards full and final settlement There the
    complainant, who was in deep shock at the deat of his
    daughter could not answer anything but gave report to the
    police.

    1. The complainant submits that he lead severa mediations
      with the accused through his colleagues, whos names are
      mentioned below for return of the dowry, but th accused did
      not return the amount and other amounts given under
      different heads. A duty cast upon the accuse to return
      those articles and amount, which were presente as dowry on
      demand made by the accused. The complainant reserves his
      right to file a fresh complaint against all the accused for
      return of the dowry. By reading of the above, it is seen
      that there are no specifi allegations against appellants 2
      to 6 that the dowry articles wer entrusted to them and that
      they have not returned the dowr amount and the articles to
      Syamala Rani. Equally, there are n allegations that those
      dowry articles were kept in Vizianagaram and used by
      appellants 2 to 6 who were separately living away from the
      couple in Bangalore. Even though complainant has alleged
      that the dowry amount was paid at the house of the accused
      a Gajapathinagaram, there are no specific allegations of
      entrustmen of the dowry amount and articles to appellants 2
      to 6.
  • Giving of dowry and the traditional presents at or abou the time of wedding does not in any way raise a presumption tha such a property was thereby entrusted and put under the dominio of the parents-in-law of the bride or other close relations so as t attract ingredients of Section 6 of the Dowry Prohibition Act. A noticed earlier, after marriage, Syamala Rani and first appellan were living in Bangalore at their matrimonial house. In respect o ‘stridhana articles’ given to the bride, one has to take int consideration the common practice that these articles are sen along with the bride to her matrimonial house. It is a matter o common knowledge that these articles are kept by the woman i connection with whose marriage it was given and used by her i her matrimonial house when the appellants 2 to 6 have bee residing separately in Vizianagaram, it cannot be said that th dowry was given to them and that they were duty bound to retur the same to Syamala Rani. Facts and circumstances of the cas and also the uncontroverted allegations made in the complaint do not constitute an offence under Section 6 of the Dowry Prohibitio Act against appellants 2 to 6 and there is no sufficient ground fo proceeding against the appellants 2 to 6. Be it noted tha appellants 2 to 6 are also facing criminal prosecution for th offence under Sections 498A, 304B IPC and under Sections 3 and of the Dowry Prohibition Act. Even though the criminal proceedin under Section 6 of the Dowry Prohibition Act is independent of the criminal prosecution under Sections 3 and 4 of Dowry Prohibition Act, in the absence of specific allegations of entrustment of the dowry amount and articles to appellants 2 to 6, in our view continuation of the criminal proceeding against appellants 2 to 6 is.not just and proper and the same is liable to be quashed.
  • The impugned order in Criminal Petition No.1778 of 2010 is set aside qua the appellants 2 to 6 and the appeal is partl allowed.

  • …………………….…CJI (T.S. THAKUR)

    ………………………….J (A.K. SIKRI)

    ..………………………..J (R. BANUMATHI)

    New Delhi;
    January 19, 2016

    Hon J Shri J.B. Pardiwala hits out at stereotype, copy-paste FIRs in his 498a quash !! Dec’16

    Hon Justice Shri J.B. Pardiwala hits out at sterotype, copy-paste FIRs in his recent 498a quash !! Dec’16

    “…20. This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:
    “1. The father of the wife is a beggar.
    2. Rs.5,00,000/- has been demanded by the husband and his family members by way of dowry.”
    Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned….”

    The Hon HC quashes this false 498a cases roping in relatives with an oblique motive !!

    *************** case from Gujarat HC website *********************

    R/CR.MA/7507/2015 JUDGMENT

    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7507 of 2015

    FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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

    BIPINKUMAR DEVENDRABHAI PARMAR & 3….Applicant(s)

    Versus

    STATE OF GUJARAT & 1….Respondent(s)

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

    Appearance:

    MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 4

    MR.HIREN M MODI, ADVOCATE for the Respondent(s) No. 2

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

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

    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

    Date : 09/12/2016

    ORAL JUDGMENT

    1. By this application under Section 482 of the Code of Criminal Procedure 1973, the applicants-original accused persons seek to invoke inherent powers of this Court praying for quashing the First Information Report registered as C.R. No.I-87/2015 with the Gotri Police Station, District-Vadodara for the offence punishable under Section 498(A), 323, 294(b) read with Section 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act.
    2. The case of the first informant as reflected from the First Information Report may be summarized as under:

    2.1 The first informant got married with the applicant no.1 on 19.05.2014. The applicant no.2 is the father-in-law. The applicant no.3 is the mother-in-law and the applicant no.4 is the sister-in-law of the first informant. It appears that within a very short time the matrimonial life of the first informant got disturbed. She thought fit to lodge an FIR on 31.03.2015 i.e. within almost one year from the date of the marriage alleging harassment and cruelty at the end of the applicants herein. It is alleged in the FIR that the husband used to ask the first informant to press his legs and head. It is further alleged that the applicants herein also used to ill-treat the first informant. It is alleged that the applicants used to taunt her that she had not brought sufficient dowry from her parental house.

    1. The learned counsel appearing for the applicants would submit that the allegations leveled in the First Information Report are palpably false. The first informant could not adjust herself at the house of the applicants soon after the marriage. The learned counsel further pointed out that efforts were made by the people of the community to dissolve the marriage on certain terms and conditions. He pointed out that the first informant’s family demanded an amount of Rs.3,00,000/- to dissolve the marriage which was not acceptable to the applicants. He would submit that the allegations are stereo type. It is submitted that even if the entire case as put up by the first informant is accepted as true, none of the ingredients to constitute the offence of cruelty within the meaning of Section 498(A) are spelt out. In such circumstances referred to above, the learned counsel prays that the application may be allowed and FIR be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  • On the other hand, this application has been vehemently opposed by Mr. Modi, the learned counsel appearing for the first informant and Ms. Pathak, the learned APP for the State. Both the learned counsel would submit that the plain reading of the FIR prima-facie disclose the commission of a cognizable offence. It is submitted that this Court may not embark upon an inquiry whether the allegations are true or false. A primafacie case is to be seen for the purpose of quashing of the FIR. In such circumstances referred to above both the learned counsel would submit that there being no merit in this application. The same may be rejected.

  • It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

  • The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

  • In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

    (i) where it manifestly appears that there is a legal bar
    against the institution or continuance e.g. want of sanction;
    
    ii) where the allegations in the first information report
    or complaint taken at its face value and accepted in their
    entirety do not constitute the offence alleged;
    
    (iii) where the allegations constitute an offence, but
    there is no legal evidence adduced or the evidence adduced
    clearly or manifestly fails to prove the charge.
    

  • The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:
    "6. In dealing with the last category, it is important to
    bear in mind the distinction between a case where there is
    no legal evidence or where there is evidence which is
    clearly inconsistent with the accusations made, and a case
    where there is legal evidence which, on appreciation, may
    or may not support the accusations. When exercising
    jurisdiction under Section 482 of the Code, the High Court
    would not ordinarily embark upon an enquiry whether the
    evidence in question is reliable or not or whether on a
    reasonable appreciation of it accusation would not be
    sustained. That is the function of the trial Judge.
    Judicial process no doubt should not be an instrument of
    oppression, or, needless harassment. Court should be
    circumspect and judicious in exercising discretion and
    should take all relevant facts and circumstances into
    consideration before issuing process, lest it would be an
    instrument in the hands of a private complainant to unleash
    vendetta to harass any person needlessly. At the same time
    the Section is not an instrument handed over to an accused
    to short-circuit a prosecution and bring about its sudden
    death. The scope of exercise of power under Section 482 of
    the Code and the categories of cases where the High Court
    may exercise its power under it relating to cognizable
    offences to prevent abuse of process of any court or
    otherwise to secure the ends of justice were set out in
    some detail by this Court in State of Haryana v. Bhajan Lal
    [1992 Supp. (1) SCC 335].A note of caution was, however,
    added that the power should be exercised sparingly and that
    too in rarest of rare cases. 
    
    The illustrative categories indicated by this Court are as
    follows:
    
    "(1) Where the allegations made in the first information
    report or the complaint, even if they are taken at their
    face value and accepted in their entirety do not prima
    facie constitute any offence or make out a case against the
    accused.
    
    (2) Where the allegations in the first information report
    and other materials, if any, accompanying the FIR do not
    disclose a cognizable offence, justifying an investigation
    by police officers under Section 156(1) of the Code except
    under an order of a Magistrate within the purview of
    Section 155(2) of the Code.
    
    (3) Where the uncontroverted allegations made in the
    F.I.R. or complaint and the evidence collected in support
    of the same do not disclose the commission of any offence
    and make out a case against the accused.
    
    (4) Where the allegations in the F.I.R. do not constitute
    a cognizable offence but constitute only a non-cognizable
    offence, no investigation is permitted by a Police Officer
    without an order of a Magistrate as contemplated under
    Section 155(2) of the Code.
    
    (5) 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 proceeding against the
    accused.
    
    (6) Where there is an express legal bar engrafted in any
    of the provisions of the Code or the concerned Act (under
    which a criminal proceeding is instituted) to the
    institution and continuance of the proceedings and/or where
    there is a specific provision in the Code or the concerned
    Act, providing efficacious redress for the grievance of the
    aggrieved party.
    
    (7) Where a criminal proceeding is manifestly attended
    with mala fide and/or where the proceeding is maliciously
    instituted with an ulterior motive for wreaking vengeance
    on the accused and with a view to spite him due to private
    and personal grudge.
    
  • Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.
  • A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

    "28. It is a matter of common knowledge that unfortunately
    matrimonial litigation is rapidly increasing in our
    country. All the courts in our country including this court
    are flooded with matrimonial cases. This clearly
    demonstrates discontent and unrest in the family life of a
    large number of people of the society.
    
    29. The courts are receiving a large number of cases
    emanating from section 498-A of the Indian Penal Code which
    reads as under :
    
    "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 wilful 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."
    
    30. It is a matter of common experience that most of these
    complaints under section 498-A IPC are filed in the heat of
    the moment over trivial issues without proper
    deliberations. We come across a large number of such
    complaints which are not even bona fide and are filed with
    oblique motive. At the same time, rapid increase in the
    number of genuine cases of dowry harassment are also a
    matter of serious concern.
    
    31.The learned members of the Bar have enormous social
    responsibility and obligation to ensure that the social
    fiber of family life is not ruined or demolished. They must
    ensure that exaggerated versions of small incidents should
    not be reflected in the criminal complaints. Majority of
    the complaints are filed either on their advice or with
    their concurrence. The learned members of the Bar who
    belong to a noble profession must maintain its noble
    traditions and should treat every complaint under section
    498-A as a basic human problem and must make serious
    endeavour to help the parties in arriving at an amicable
    resolution of that human problem. They must discharge their
    duties to the best of their abilities to ensure that social
    fiber, peace and tranquillity of the society remains
    intact. The members of the Bar should also ensure that one
    complaint should not lead to multiple cases.
    
    32. Unfortunately, at the time of filing of the complaint
    the implications and consequences are not properly
    visualized by the complainant that such complaint can lead
    to insurmountable harassment, agony and pain to the
    complainant, accused and his close relations.
    
    33. The ultimate object of justice is to find out the
    truth and punish the guilty and protect the innocent. To
    find out the truth is a herculean task in majority of these
    complaints. The tendency of implicating husband and all his
    immediate relations is also not uncommon. At times, even
    after the conclusion of criminal trial, it is difficult to
    ascertain the real truth. The courts have to be extremely
    careful and cautious in dealing with these complaints and
    must take pragmatic realities into consideration while
    dealing with matrimonial cases. The allegations of
    harassment of husband's close relations who had been living
    in different cities and never visited or rarely visited the
    place where the complainant resided would have an entirely
    different complexion. The allegations of the complaint are
    required to be scrutinized with great care and
    circumspection. Experience reveals that long and protracted
    criminal trials lead to rancour, acrimony and bitterness in
    the relationship amongst the parties. It is also a matter
    of common knowledge that in cases filed by the complainant
    if the husband or the husband's relations had to remain in
    jail even for a few days, it would ruin the chances of
    amicable settlement altogether. The process of suffering is
    extremely long and painful.
    
    34. Before parting with this case, we would like to
    observe that a serious relook of the entire provision is
    warranted by the legislation. It is also a matter of common
    knowledge that exaggerated versions of the incident are
    reflected in a large number of complaints. The tendency of
    over implication is also reflected in a very large number
    of cases.
    
    35. The criminal trials lead to immense sufferings for all
    concerned. Even ultimate acquittal in the trial may also
    not be able to wipe out the deep scars of suffering of
    ignominy. Unfortunately a large number of these complaints
    have not only flooded the courts but also have led to
    enormous social unrest affecting peace, harmony and
    happiness of the society. It is high time that the
    legislature must take into consideration the pragmatic
    realities and make suitable changes in the existing law.It
    is imperative for the legislature to take into
    consideration the informed public opinion and the pragmatic
    realities in consideration and make necessary changes in
    the relevant provisions of law. We direct the Registry to
    send a copy of this judgment to the Law Commission and to
    the Union Law Secretary, Government of India who may place
    it before the Hon'ble Minister for Law and Justice to take
    appropriate steps in the larger interest of the society."
    

  • In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  • They are reproduced below:-

        "6. There is phenomenal increase in matrimonial disputes in
        recent years. The institution of marriage is greatly
        revered in this country. Section 498-A of the IPC was
        introduced with avowed object to combat the menace of
        harassment to a woman at the hands of her husband and his
        relatives. The fact that Section 498-A is a cognizable and
        non-bailable offence has lent it a dubious place of pride
        amongst the provisions that are used as weapons rather than
        shield by disgruntled wives. The simplest way to harass is
        to get the husband and his relatives arrested under this
        provision. In a quite number of cases, bedridden grand-
        fathers and grand-mothers of the husbands, their sisters
        living abroad for decades are arrested. Crime in India 2012
        Statistics published by National Crime Records Bureau,
        Ministry of Home Affairs shows arrest of 1,97,762 persons
        all over India during the year 2012 for offence under
        Section 498-A of the IPC, 9.4% more than the year 2011.
        Nearly a quarter of those arrested under this provision in
        2012 were women i.e. 47,951 which depicts that mothers and
        sisters of the husbands were liberally included in their
        arrest net. Its share is 6% out of the total persons
        arrested under the crimes committed under Indian Penal
        Code. It accounts for 4.5% of total crimes committed under
        different sections of penal code, more than any other
        crimes excepting theft and hurt. The rate of charge-
        sheeting in cases under Section 498A, IPC is as high as
        93.6%, while the conviction rate is only 15%, which is
        lowest across all heads. As many as 3,72,706 cases are
        pending trial of which on current estimate, nearly 3,17,000
        are likely to result in acquittal.
    
        7. Arrest brings humiliation, curtails freedom and cast
        scars forever. Law makers know it so also the police. There
        is a battle between the law makers and the police and it
        seems that police has not learnt its lesson; the lesson
        implicit and embodied in the Cr.PC. It has not come out of
        its colonial image despite six decades of independence, it
        is largely considered as a tool of harassment, oppression
        and surely not considered a friend of public. The need for
        caution in exercising the drastic power of arrest has been
        emphasized time and again by Courts but has not yielded
        desired result. Power to arrest greatly contributes to its
        arrogance so also the failure of the Magistracy to check
        it. Not only this, the power of arrest is one of the
        lucrative sources of police corruption. The attitude to
        arrest first and then proceed with the rest is despicable.
        It has become a handy tool to the police officers who lack
        sensitivity or act with oblique motive.
    
        8. Law Commissions, Police Commissions and this Court in a
        large number of judgments emphasized the need to maintain a
        balance between individual liberty and societal order while
        exercising the power of arrest. Police officers make arrest
        as they believe that they possess the power to do so. As
        the arrest curtails freedom, brings humiliation and casts
        scars forever, we feel differently. We believe that no
        arrest should be made only because the offence is non-
        bailable and cognizable and therefore, lawful for the
        police officers to do so. The existence of the power to
        arrest is one thing, the justification for the exercise of
        it is quite another. Apart from power to arrest, the police
        officers must be able to justify the reasons thereof. No
        arrest can be made in a routine manner on a mere allegation
        of commission of an offence made against a person. It would
        be prudent and wise for a police officer that no arrest is
        made without a reasonable satisfaction reached after some
        investigation as to the genuineness of the allegation.
        Despite this legal position, the Legislature did not find
        any improvement. Numbers of arrest have not decreased.
        Ultimately, the Parliament had to intervene and on the
        recommendation of the 177th Report of the Law Commission
        submitted in the year 2001, Section 41 of the Code of
        Criminal Procedure (for short Cr.PC), in the present form
        came to be enacted. It is interesting to note that such a
        recommendation was made by the Law Commission in its 152nd
        and 154th Report submitted as back in the year 1994. ....
        ....."
    
    1. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-
      "19. Coming to the facts of this case, when the contents of
      the FIR is perused, it is apparent that there are no
      allegations against Kumari Geeta Mehrotra and Ramji
      Mehrotra except casual reference of their names who have
      been included in the FIR but mere casual reference of the
      names of the family members in a matrimonial dispute
      without allegation of active involvement in the matter
      would not justify taking cognizance against them
      overlooking the fact borne out of experience that there is
      a tendency to involve the entire family members of the
      household in the domestic quarrel taking place in a
      matrimonial dispute specially if it happens soon after the
      wedding.
      
      20. It would be relevant at this stage to take note of an
      apt observation of this Court recorded in the matter of
      G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC
      693 wherein also in a matrimonial dispute, this Court had
      held that the High Court should have quashed the complaint
      arising out of a matrimonial dispute wherein all family
      members had been roped into the matrimonial litigation
      which was quashed and set aside. Their Lordships observed
      therein with which we entirely agree that: there has been
      an outburst of matrimonial dispute in recent times.
      Marriage is a sacred ceremony, main purpose of which is to
      enable the young couple to settle down in life and live
      peacefully. But little matrimonial skirmishes suddenly
      erupt which often assume serious proportions resulting in
      heinous crimes in which elders of the family are also
      involved with the result that those who could have
      counselled and brought about rapprochement are rendered
      helpless on their being arrayed as accused in the criminal
      case. There are many reasons which need not be mentioned
      here for not encouraging matrimonial litigation so that the
      parties may ponder over their defaults and terminate the
      disputes amicably by mutual agreement instead of fighting
      it out in a court of law where it takes years and years to
      conclude and in that process the parties lose their young
      days in chasing their cases in different courts.
      
      The view taken by the judges in this matter was that the
      courts would not encourage such disputes.
      
      21. In yet another case reported in AIR 2003 SC 1386 in
      the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr.
      it was observed that there is no doubt that the object of
      introducing Chapter XXA containing Section 498A in the
      Indian Penal Code was to prevent the torture to a woman by
      her husband or by relatives of her husband. Section 498A
      was added with a view to punish the husband and his
      relatives who harass or torture the wife to coerce her
      relatives to satisfy unlawful demands of dowry. But if the
      proceedings are initiated by the wife under Section 498A
      against the husband and his relatives and subsequently she
      has settled her disputes with her husband and his relatives
      and the wife and husband agreed for mutual divorce, refusal
      to exercise inherent powers by the High Court would not be
      proper as it would prevent woman from settling earlier.
      Thus for the purpose of securing the ends of justice
      quashing of FIR becomes necessary, Section 320 Cr.P.C.
      would not be a bar to the exercise of power of quashing. It
      would however be a different matter depending upon the
      facts and circumstances of each case whether to exercise or
      not to exercise such a power."
      
    2. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.
  • Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • Ms. Pathak, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to the learned APP, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to the learned APP, at the best, the applicants could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

  • Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

    "(7) Where a criminal proceeding is manifestly attended
    with mala fide and/or where the proceeding is maliciously
    instituted with an ulterior motive for wreaking vengeance
    on the accused and with a view to spite him due to private
    and personal grudge."
    

  • I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.
  • It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court “often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

  • This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:

    “1. The father of the wife is a beggar.

    1. Rs.5,00,000/- has been demanded by the husband and his
      family members by way of dowry.”
  • Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned.

    1. In such circumstances referred to above, this Court was compelled to observe the following in the judgment and order dated 26.09.2014 passed in Criminal Misc. Application No.5819 of 2009.

      “31.Many times, the parents including the close relatives
      of the wife make a mountain out of a mole. Instead of
      salvaging the situation and making all possible endeavours
      to save the marriage, their action either due to ignorance
      or on account of sheer hatredness towards the husband and
      his family members, brings about complete destruction of
      marriage on trivial issues. The first thing that comes in
      the mind of the wife, her parents and her relatives is the
      Police, as if the Police is the panacea of all evil. No
      sooner the matter reaches up to the Police, then even if
      there are fair chances of reconciliation between the
      spouses, they would get destroyed. The foundation of a
      sound marriage is tolerance, adjustment and respecting one
      another. Tolerance to each other’s fault to a certain
      bearable extent has to be inherent in every marriage. Petty
      quibbles, trifling differences are mundane matters and
      should not be exaggerated and blown out of proportion to
      destroy what is said to have been made in the heaven. The
      Court must appreciate that all quarrels must be weighed
      from that point of view in determining what constitutes
      cruelty in each particular case, always keeping in view the
      physical and mental conditions of the parties, their
      character and social status. A very technical and hyper
      sensitive approach would prove to be disastrous for the
      very institution of the marriage. In matrimonial disputes
      the main sufferers are the children. The spouses fight with
      such venom in their heart that they do not think even for a
      second that if the marriage would come to an end, then what
      will be the effect on their children. Divorce plays a very
      dubious role so far as the upbringing of the children is
      concerned. The only reason why I am saying so is that
      instead of handling the whole issue delicately, the
      initiation of criminal proceedings would bring about
      nothing but hatredness for each other. There may be cases
      of genuine illtreatment and harassment by the husband and
      his family members towards the wife. The degree of such ill-
      treatment or harassment may vary. However, the Police
      machinery should be resorted to as a measure of last resort
      and that too in a very genuine case of cruelty and
      harassment. The Police machinery cannot be utilized for the
      purpose of holding the husband at ransom so that he could
      be squeezed by the wife at the instigation of her parents
      or relatives or friends. In all cases where wife complains
      of harassment or ill-treatment, Section 498-A of the IPC
      cannot be applied mechanically. No F.I.R is complete
      without Sections 506(2) and 323 of the IPC. Every
      matrimonial conduct, which may cause annoyance to the
      other, may not amount to cruelty. Mere trivial irritations,
      quarrels between spouses, which happen in day today married
      life, may also not amount to cruelty.

      1. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All
        ER 398 observed as under:-

        “When the conduct consists of direct action by one against
        the other, it can then properly be said to be aimed at the
        other, even though there is no desire to injure the other
        or to inflict misery on him. Thus, it may consist of a
        display of temperament, emotion, or perversion whereby the
        one gives vent to his or her own feelings, not intending to
        injure the other, but making the other the object-the butt-
        at whose expense the emotion is relieved.”

        When there is no intent to injure, they are not to be
        regarded as cruelty unless they are plainly and distinctly
        proved to cause injury to health ……..when the conduct
        does not consist of direct action against the other, but
        only of misconduct indirectly affecting him or her, such as
        drunkenness, gambling, or crime, then it can only properly
        be said to be aimed at the other when it is done, not only
        for the gratification of the selfish desires of the one who
        does it, but also in some part with an intention to injure
        the other or to inflict misery on him or her. Such an
        intention may readily be inferred from the fact that it is
        the natural consequence of his conduct, especially when the
        one spouse knows, or it has already been brought to his
        notice, what the consequences will be, and nevertheless he
        does it, careless and indifferent whether it distresses the
        other spouse or not. The Court is, however not bound to
        draw the inference. The presumption that a person intends
        the natural consequences of his acts is one that may not
        must-be drawn. If in all the circumstances it is not the
        correct inference, then it should not be drawn. In cases of
        this kind, if there is no desire to injure or inflict
        misery on the other, the conduct only becomes cruelty when
        the justifiable remonstrances of the innocent party provoke
        resentment on the part of the other, which evinces itself
        in actions or words actually or physically directed at the
        innocent party.”

      2. What constitutes cruelty in matrimonial matters has
        been well explained in American Jurisprudence 2nd edition
        Vol. 24 page 206. It reads thus:-

        “The question whether the misconduct complained of
        constitute cruelty and the like for divorce purposes is
        determined primarily by its effect upon the particular
        person complaining of the acts. The question is not whether
        the conduct would be cruel to a reasonable person or a
        person of average or normal sensibilities, but whether it
        would have that effect upon the aggrieved spouse. That
        which may be cruel to one person may be laughed off by
        another, and what may not be cruel to an individual under
        one set of circumstances may be extreme cruelty under
        another set of circumstances.”

    2. For the foregoing reasons, I hold that if the investigation of the First Information Report is permitted to continue, then it will be nothing but abuse of process of the law and travesty of justice. This is a fit case wherein the inherent powers under Section 482 of the Code should be exercised for the purpose of quashing the FIR. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    3. The application succeeds and is hereby allowed. The First Information Report being C.R. No.I-87/2015 lodged before the Gotri Police Station, District- Vadodara, is hereby quashed. Rule is made absolute.

    4. At this stage, I may only say that since the applicant no.1 and the first informant are quite young they should dissolve the marriage by initiating appropriate proceedings before the Court concerned so that both can start living their own life.

    (J.B.PARDIWALA, J.)

    ABHISHEK

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    Created On Tue Jan 03 17:37:40 IST 2017