Author Archives: vinayak

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

Husband’s earning NOT only reason for alimony. Conduct of parties to be seen. NO alimony to wife, Andhra HC

Andhra HC rejects grant of alimony to wife even though the husband is earning more than her. Her abominable conduct, hiding material facts and sufficient current earnings dis-entitle her from alimony, the court decrees

“….Having regard to the aforesaid aspects, it is to be held in this case that the conduct of the petitioner-wife is abominable and, therefore, she is not entitled to claim any amount towards permanent alimony from the respondent-husband. A spouse claiming permanent alimony must come forward by disclosing all necessary facts, with regard to her income, properties etc., in the petition filed. In this case, petitioner-wife has suppressed material facts with regard to her investments in shares and mutual funds. When the same was confronted to her in the cross-examination, she categorically admitted the same. In addition to her disentitlement having regard to her conduct, further, it is to be noted that the petitioner-wife is having sufficient income as a medical practitioner, working as freelance consultant and in view of shares and debentures held by her apart from LIC policies and other assets, we are of the view that she is not entitled for any amount towards permanent alimony from the respondent-husband….”

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HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR NARAYANA           

FAMILY COURT APPEAL No.152 of 2007      

05-09-2014

Dr.Aneel Kaur…APPELLANT   

Dr.Jaya ChandraRESPONDENT       

Counsel for appellant: Ms. S. Vani

Counsel for respondent.: Sri M.R. Harsha

1997 (2) APLJ 103

HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR NARAYANA

FAMILY COURT APPEAL No.152 of 2007 and CROSS-OBJECTIONS (Sr.) No.29318 of 2008

COMMON JUDGMENT: (Per Justice R. Subhash Reddy)

  1. The Civil Miscellaneous Appeal, in F.C.A.No.152 of 2007 is filed under Section 19 of the Family Courts Act, 1984 by the petitioner in I.A.No.664 of 2006 in F.C.O.P.No.260 of 1997, aggrieved by the order dated 07.09.2007 passed by the Family Court, Hyderabad.
  2. For the purpose of disposal, we refer to the parties as arrayed before the Family Court.
  3. By the aforesaid order, the Family Court allowed the petition filed by the petitioner under Section 25 of the Hindu Marriage Act, 1955, seeking permanent alimony of Rs.1 crore, in part, and directed the respondent to pay an amount of Rs.15 lakhs within a period of six months from the date of the order, with 9% interest thereafter. This appeal is filed by the petitioner seeking enhancement of the permanent alimony from Rs.15 lakhs to Rs.1 crore and cross-objections are filed by the respondent questioning the order of the Family Court, granting Rs.15 lakhs towards permanent alimony.
  4. Earlier, there was dispute between the parties on the application filed by the respondent for grant of divorce. Ultimately, in Civil Appeal Nos.7763 and 7764 of 2004, the Honble Supreme Court, by order dated 02.12.2004, ordered for dissolution of marriage between the petitioner and the respondent and for grant of decree of divorce, in favour of the respondent. In the year 1997, respondent herein filed O.P.No.260 of 1997 on the file of the Family Court, Hyderabad, seeking divorce. The said O.P. was disposed of on 19.02.2001, granting judicial separation. As against the same, the respondent filed C.M.A.No.2366 of 2001 and the petitioner filed C.M.A.No.2124 of 2001 before this Court and by common order dated 27.09.2002, this Court allowed the C.M.A., filed by the petitioner and dismissed the C.M.A., filed by the respondent. As against the common order in both the C.M.As., appeals were filed before the Honble Supreme Court and the Honble Supreme Court has ordered for dissolution of marriage and for grant of decree of divorce as sought by the respondent.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  5. Subsequent to disposal of the appeals by the Honble Supreme Court, I.A.No.664 of 2006 is filed by the petitioner before the Family Court, Hyderabad under Section 25 of the Act seeking permanent alimony of Rs.1 crore.
  6. The petitioner is a Doctor by profession. She initially joined on salary basis in the hospital owned by the father of the respondent. It is her case that after her joining the hospital, herself and the respondent started A.K.J. Medical Services as partnership firm and developed the same. It is alleged that, now, the respondent is encashing on the reputation of the said clinic by styling the same as A.K.J. Chest Clinic, and the petitioner is deprived of her income and financial security. It is further alleged that though the said firm is dissolved, accounts have not been settled. It is also alleged that she had spent the best of her life for the family and family concern, but she is deprived of fruits of her hardwork. Further, pleading that respondent owns properties worth Rs.5 crores, whereas the properties owned by her are worth about Rs.55.00 lakhs and the annual income of the respondent is Rs.25.00 lakhs, whereas her annual income is about Rs.4.00 to 5.00 lakhs, she prayed for grant of permanent alimony of Rs.1 crore.
  7. The respondent filed counter before the Family Court. In the counter, while admitting grant of divorce by the Honble Supreme Court, the following averments are made: Petitioner is attached to various hospitals like Sai Vani and Care Hospital and as she is in possession of several properties, she is not entitled for any permanent alimony. Petitioner is earning well. Her properties are worth about Rs.3 crores. She purchased a brand new car and has got lot of savings. She gave 40 lilies on his 40th birthday. Lilies are given on the death of a person, more so on a sad demise, while roses are given as a sign of happiness. She also purchased Getz car and both her cars cost about Rs.4.00 and 6.00 lakhs each and further she purchased lab equipment. In the application seeking maintenance, she claimed Rs.18,000/- per month by producing fictitious accounts. In the earlier proceedings, she admitted that since 1997, she has been receiving money as consultant and she is in a position to manage herself independently. He and the petitioner are blessed with a son and a daughter. The entire cost of education, maintenance and day-to-day expenses of the children are being taken care by him right from their birth till date. Petitioner owns a plot which is worth about Rs.3 crores, situated in Jubilee Hills, which, in fact, is purchased by him in the name of the petitioner. It is further pleaded that, petitioner is having D-Mat account and suppressed her investments in mutual funds.
  8. With the aforesaid averments, respondent prayed for dismissal of the application filed by the petitioner.
  9. Before the Family Court, petitioner got herself examined as P.W.1 and on her behalf Exs.P.1 to P.29 were marked. Respondent got himself examined as R.W.1 and on his behalf, Exs.R.1 to R.10 were marked.
  10. The Family Court, having considered the oral and documentary evidence on record, has recorded a finding that both the petitioner as well as the respondent are earning and are having their own source of income as they are Doctors by profession. By recording a finding that the respondent, who is the former husband of the petitioner-P.W.1, is placed in a better position and his income is more than that of the income of the petitioner, the Family court awarded Rs.15 lakhs as permanent alimony.
  11. Heard Sri D. Prakash Reddy, learned senior counsel, assisted by Smt.S.Vani, for the petitioner-wife and Sri M.R. Harsha, learned counsel for the respondent-husband.
  12. The following submissions are made by the learned counsel for the petitioner: The Family Court restricted permanent alimony to Rs.15 lakhs as against the claim of Rs.1 crore, without assigning valid reasons. Petitioner started her practice as Doctor at Dr. Rama Murthy hospital initially on salary basis and in the year 1981-82, Dr. Rama Murthy, who is the father-in-law of the petitioner and father of the respondent, handed over the hospital to the petitioner and the respondent and they have entered into partnership and started running the same as a Partnership Firm in the name and style of A.K.J. Medical Services. Petitioner worked tirelessly for development of the hospital and during subsistence of partnership, petitioner, along with the respondent, expanded the hospital and opened in-patient block by adding rooms and equipped the hospital with labour room, operation theatre, etc. Petitioner is responsible for development and reputation of the hospital, but now the respondent enchased the same by styling the hospital as A.K.J. Chest Clinic and has not settled the share of the petitioner in the assets. Though the petitioner has filed I.T. returns under Exs.P.23, 24 and 25, respondent has not filed I.T. returns showing his income. The income of the petitioner is not more than Rs.5 lakhs per annum, whereas the respondent, who is having the benefit of the hospital, is earning more than Rs.25 lakhs per annum and as much as their marriage was already dissolved pursuant to the orders of the Honble Supreme Court, petitioner is entitled for permanent alimony at least not less than Rs.50 lakhs.
  13. On the other hand, it is submitted by Sri M.R. Harsha, learned counsel for the respondent-husband as under: Petitioner is well-off and is a consulting physician in number of hospitals and is having her own income which is self-sufficient to maintain herself and, further, having regard to the conduct of the petitioner, she is not entitled for any alimony. In view of Section 25 of the Family Courts Act, 1955, all the factors, viz., conduct etc., are to be taken into consideration, while considering a petition for grant of permanent alimony. Petitioner has ill-treated the respondent, who is her husband and made several allegations affecting his reputation, character and the same amounts to cruelty as held by the Honble Supreme Court. Respondent has taken care of entire expenses of the children and the petitioner has approached the Family Court by suppressing material facts with regard to her savings and the investments made by her in stocks etc., and that itself is sufficient to set aside the order of the Family Court, granting maintenance of Rs.15 lakhs towards permanent alimony. As the petitioner has not come with clean hands and, further, in view of her conduct, which is held to be cruel and also in view of suppression of material facts in the petition filed by her before the Family Court, the appeal filed by her is to be dismissed, by setting aside the order of the Family Court granting Rs.15 lakhs towards permanent alimony and by allowing the cross-objections filed by the respondent.
  14. Having heard the learned counsel parties at length, we have carefully perused the material on record.
  15. Under Section 25 of the Hindu Marriage Act, 1955, any Court exercising jurisdiction under the Act, at the time of passing of the decree or at any time subsequent thereto, is empowered to order maintenance to the applicant having regard to the applicants income and other property, further having regard to the income and other property of the respondent and also conduct of the parties and other circumstances of the case.
  16. The petitioner and the respondent were married on 10.10.1978 and were blessed with two children who are now majors. They belong to different religions. The petitioner-wife is a Sikh, whereas the respondent-husband is a Telugu Brahmin. As evident from the orders passed by the Honble Supreme Court, they were working in the hospital established by the father of the respondent Dr. A. Rama Murthy. The respondent-husband initially filed petition for decree of divorce on the ground that petitioner-wife ill-treated him not only at home but also in the hospital and caused mental agony and as a result he suffered personally and professionally. He alleged that the petitioner made serious allegations against his character. In the O.P., filed by the respondent-husband seeking decree of divorce, the Family court has granted decree for judicial separation. As against the same, appeals were filed before this Court. The appeal filed by the wife was allowed, while the appeal filed by the husband, was dismissed. As against the common order in the appeals, matters were carried before the Honble Supreme Court vide Civil Appeal Nos.7763 and 7764 of 2004. The Honble Supreme Court directed for grant of decree of divorce by judgment dated 02.12.2004, in which it is held as under: The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband, the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off-hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra-marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.
  17. The Honble Supreme Court has also taken note of the events which are subsequent to filing of the petition seeking divorce. Subsequent to filing of the petition for divorce, petitioner-wife has filed a suit for injunction in which she went to the extent of seeking detention of the respondent-husband, alleging that he has violated the orders of injunction. Thus, ultimately, on the ground of cruelty, marriage between the petitioner and the respondent was dissolved.
  18. From the evidence on record, it is clear that petitioner, P.W.1, is a gynaecologist and respondent, R.W.1 is a chest-specialist. Both are earning from their profession and their children have become majors. Admittedly, daughter is independent and earning and son is with the respondent-husband. It is also not in dispute that all the expenditure relating to children was borne by the respondent-husband. It is the case of the petitioner-wife that respondent owns properties worth Rs.5 crore, whereas she owns properties worth Rs.5 lakhs. It is also alleged that annual income of the respondent-husband is Rs.25 lakhs and her annual income is Rs.4-5 lakhs. She was cross-examined at length and in the cross-examination, petitioner as P.W.1 admitted that from the last 18 years she has been an income tax assessee and she was visiting Sai Vani and Care hospitals, as freelance consultant and whenever she visited those hospitals, she used to charge consulting fee and if she attended to any operation or delivery, she used to charge separate fee and she was also attached to CDR hospital as a consultant. In the cross-examination, she specifically admitted that she is holding some shares and debentures and the same are not disclosed in the petition filed by her seeking maintenance. As per Ex.R.1 statement, it is clear that petitioner-wife invested in shares in Karvy Consultants Ltd. worth Rs.13,64,000/- in the year 2004 and as per R.2 statement, she is having deposits in Kotak Securities worth Rs.6.06 lakhs. She has got D-MAT accounts which are evident from Exs.R.1 and R.2. She has also admitted that she has invested in mutual funds and also holds LIC policies worth Rs.5 lakhs. Apart from the same, it is the specific case of the respondent-husband that the plot which is in possession of the petitioner-wife in Jubilee Hills is worth about Rs.4 crores now and though she pleaded that some portion of the said plot is in dispute, there is no dispute with regard to major extent of the plot. In the Land Grabbing Case filed by her with regard to the said plot, she herself has shown the value of the same as more than Rs.48 lakhs. There is no explanation at all for suppression of material facts with regard to investments made by her in shares, mutual funds etc. It is also the specific case of the respondent- husband that petitioner is absolutely cruel both in heart and mind and she has no human values. In his deposition as R.W.1, respondent- husband has categorically stated that the petitioner has filed O.S.No.89 of 1997 for perpetual injunction on 26.06.1997 and filed application for interim injunction vide I.A.No.530 of 1997 and the suit was disposed of, on undertaking given by him that he will not interfere with the petitioner to her practice as Doctor since she was then still his wife. In spite of the same, she filed E.P.No.31 of 1998 therein, seeking his detention. In his deposition, respondent-husband, while denying various allegations made by the petitioner-wife with regard to her contribution in the development of the hospital, further while attributing cruelty on the part of the petitioner, specifically pleaded that petitioner gave 40 lilies on his 40th birthday. It is specifically pleaded that lilies are given on the death of a person or to mourn a sad demise. Though respondent-husband was cross- examined at length, nothing adverse was elicited with regard to the aforesaid allegations. From a perusal of the order of the Family Court, it appears that Rs.15 lakhs is awarded as permanent alimony to the petitioner-wife only on the ground that the respondent-husband is placed in a better position and his income is more than that of the petitioner-wife. In this regard, we are of the view that the Family Court has lost sight of various other aspects as contemplated under Section 25 of the Hindu Marriage Act, 1955, while considering the O.P., filed under Section 25 of the Act. From a plain reading of the said provision, it is clear that Courts are obligated to take note of the conduct of the parties and other circumstances of the case, while granting permanent alimony. The mere fact, that respondent is in a better position and is earning more compared to that of the petitioner, by itself, is not a ground for grant of permanent alimony.
  19. In the case of N. Varalakshmi v. N.V. Hanumantha Rao , the Honble Supreme Court has held that, even after decree of divorce, permanent alimony can be granted to the spouse, who applies for it unless conduct of the spouse is abominable. Whether the conduct of the spouse is abominable or not is a matter which depends on the facts of each case. While considering, whether the conduct of the petitioner-wife is abominable or not, it is necessary to examine the allegations of cruelty and inhuman conduct on the part of the petitioner-wife, as alleged by the respondent-husband. In the judgment in Civil Appeal Nos.7763 and 7764 of 2004, the Honble Supreme Court has observed certain advices made by the petitioner-wife to the respondent and held that they relate to ladies working in the hospital. It was further held that though the petitioner-wife tried to show that they were simple and harmless advices, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. It was also held that there was an allegation of extra-martial relation of the respondent with another married lady who was the wife of his friend. Such allegations were held to be cruel and ultimately the Honble Supreme Court has passed orders for grant of decree of divorce in favour of the respondent-husband. It is also not in dispute that after filing of the suit, petitioner-wife went to the extent of filing petition to detain the respondent-husband in civil prison. Further, the specific allegation of the respondent-husband that petitioner-wife presented 40 lilies on his 40th birthday, requires serious consideration. It is the specific case of the respondent-husband that presentation of lilies is made only on the death of a person, more so on a sad demise. It is specifically pleaded by the respondent-husband that the petitioner is absolutely cruel both in heart and mind and has no human values. As the same was not denied and nothing adverse was elicited in the cross-examination of the respondent as P.W.1, even such instances need to be taken note of, while assessing, whether the conduct of the petitioner-wife is abominable or not. A perusal of the evidence also makes it clear that petitioner-wife has no other expenses except for her maintenance. At the same time, she is also working as consultant Doctor in several hospitals and making her own income which is self-sufficient. The Family Court has not recorded any valid reasons for awarding a sum of Rs.15 lakhs as permanent alimony to the petitioner-wife.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  20. Having regard to the aforesaid aspects, it is to be held in this case that the conduct of the petitioner-wife is abominable and, therefore, she is not entitled to claim any amount towards permanent alimony from the respondent-husband. A spouse claiming permanent alimony must come forward by disclosing all necessary facts, with regard to her income, properties etc., in the petition filed. In this case, petitioner-wife has suppressed material facts with regard to her investments in shares and mutual funds. When the same was confronted to her in the cross-examination, she categorically admitted the same. In addition to her disentitlement having regard to her conduct, further, it is to be noted that the petitioner-wife is having sufficient income as a medical practitioner, working as freelance consultant and in view of shares and debentures held by her apart from LIC policies and other assets, we are of the view that she is not entitled for any amount towards permanent alimony from the respondent-husband.
  21. For the aforesaid reasons, we are of the view that the impugned order of the Family Court granting Rs.15 lakhs as permanent alimony to the petitioner-wife is fit to be set aside, by allowing the cross-objections preferred by the respondent-husband.
  22. Accordingly, F.C.A.No.152 of 2007 is dismissed and Cross-Objections (Sr.) No.29318 of 2008 are allowed, setting aside the order dated 07.09.2007 passed by the Family Court, Hyderabad in I.A.No.664 of 2006 in F.C.O.P.No.260 of 1997. As a sequel, miscellaneous petitions if any pending stand disposed of. No order as to costs.

R. SUBHASH REDDY, J

A. SHANKAR NARAYANA, J

September, 2014

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


Father free 2 take kid abroad without disturbing mother’s visiting rights! Urvashi V Manoj K Jayan KeralaHC

Mother tries to force her EX husband to surrender kid’s passport. Court declines her wishes. Says as long as father does NOT disturb mother’s visiting rights he is free to take kid abroad.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC).No. 106 of 2011(R)

1. V.P.KAVITHA RANJINI @ URVASHI, AGED …  Petitioner

Vs

1. MANOJ KADOM POOTHRA MADOM JAYAN @ …       Respondent

For Petitioner  :SRI.K.RAMAKUMAR (SR.)
For Respondent  : No Appearance

The Hon’ble MR. Justice K.M.JOSEPH
The Hon’ble MR. Justice M.L.JOSEPH FRANCIS

Dated :15/06/2011

O R D E R
K. M. JOSEPH &
M.L.JOSEPH FRANCIS JJ.,


O.P.(F.C.) No.106 of 2011 R


Dated this the 15th day of June, 2011

JUDGMENT

K.M. Joseph J.,

  1. The prayers in the O.P.(F.C.) are as follows: “(i) To call for the records leading upto Ext.P2 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (ii) To direct respondent to surrender the passport of the child Thejalakshmy @ Kunjatta before the Family Court, Ernakulam.”
  2. Though we have not admitted, it was being considered along with the O.P.(F.C.) No.112 of 2011 relates to the same parties.
  3. The matter arises out of G.O.P. No.964 of 2009 filed by the petitioner. The petitioner moved I.A. No. 3766 of 2010 seeking  O.P.(F.C.) No.106 of 2011 direction to surrender the passport of her daughter, which is in the possession of the respondent before the Family Court. It is the case of the petitioner that following the marriage of the respondent, the child may be taken abroad by the respondent with his future wife in whose company the child will be extremely uncomfortable. Ext.P1 I.A. was rejected by Ext.P2 order. We have perused the order. The Family Court has directed the respondent to file an affidavit to the effect that he shall make available the child as and when directed. Thereafter the apprehension alleged by the appellant was unfounded. The application was dismissed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. When the matter was pending before this Court, apart from the counter affidavit filed by the respondent, the respondent has also filed an additional counter affidavit, which inter-alia reads as follows “(i) That on any occasion that I may take my child abroad along with me using her passport now in my possession, I will do so only after informing the Hon’ble Family Court, Ernakulam in the form of an affidavit about the details of my trip along with my child itinerary of such  O.P.(F.C.) No.106 of 2011 trip including the places of destination and duration of such visits etc. (ii)That on any occasion that I may take my child abroad along with me, I will do so only without disturbing or disrupting the visitorial rights granted to the petitioner mother vide common order dt.13.11.2009 on I.A. No. 1565 of 2009 in O.P. No.623 of 2008 and I.A. No.2824 of 2009 in G.O.P.No. 964 of 2009, the Hon’ble Family Court vide the said common order dt.13.11.2009.”
  5. We think that the apprehension of the petitioner would satisfy in the interest of justice. We close the O.P.(F.C) recording the stand of the respondent in the portion of the additional affidavit filed before this Court, which we have extracted above.

K.M.JOSEPH, (JUDGE)

M. L. JOSEPH FRANCIS, (JUDGE)

dl

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


Prosecute wife who lied under oath ! Delhi HC (Wife claimed she was un-employed & husband caught her!)

Wife claims that she is unemployed to claim maintenance. Husband gets details of her employment and bank account gets the bank manager and employed cross examined, elicits the truth and gets the MM to order prosecution. Wife tries to escape prosecution and Matter reaches. HC which confirms the same i.e. says lying wife is to be prosecuted!!

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 1130/2008 & CRL.M.A.4231/2008

JAGDISH PRASAD ….. Petitioner
Through: Mr.R.B. Pandey, Advocate.

versus

STATE & ORS. ….. Respondents
Through: Mr.Jaideep Malik,APP.
Mr. R.P. Kaushik, Advocate for Respondent No.2.

CORAM: HON’BLE DR. JUSTICE S. MURALIDHAR

  1. Whether Reporters of local papers may be allowed to see the judgment? No
  2. To be referred to the Reporter or not? Yes
  3. Whether the judgment should be reported in Digest? Yes

ORDER

23.03.2009

  1. This petition under Section 482 of the Code of the Criminal Procedure (CrPC) is directed against an order dated 22nd February 2008 passed by the learned Additional Sessions Judge (ASJ) Delhi allowing Crl.A.No.18 of 2005 filed by the Respondent No.2 against an order dated 9 th September 2005 passed by the learned Metropolitan Magistrate (MM) Delhi in an application filed by the Petitioner herein under Section 340 CrPC. By the said order dated 9th September 2005, the learned MM came to the prima facie conclusion that Respondent No.2 had committed an offence under Section 193 of the Indian Penal Code (IPC) and ought to be prosecuted for the same. The learned ASJ has, in the impugned order, set aside the order dated 9 th September 2005 on the ground that the learned MM had not determined if it was expedient in the interests of justice that an inquiry should be held for ascertaining whether the Respondent No.2 should be prosecuted for the offence under Section 193 IPC.
  2. The brief facts leading to the filing of the present petition are that Respondent No.2 wife filed an application under Section 125 CrPC seeking maintenance from the Petitioner husband for herself and the minor female child. In her petition she stated in Para 15 that she was “not employed anywhere and is unable to maintain herself and her said minor girl Shruti and they presently are survived on the mercy of parents of the petitioner No.1 (wife) who themselves have limited resources to maintain the large family.”http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. According to the Petitioner in the month of June 2001, the Respondent No.2 wife had joined Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi as a `Receptionist’ and was receiving salary from the said hospital. On this basis, Petitioner had earlier filed an application under Section 340 CrPC which, according to Respondent No.2, was dismissed on 16th September, 2003.
  4. On 12th February 2004, Respondent No.2 was examined in chief in the maintenance petition. She stated: “I was not working anywhere after my marriage, I was not working till today anywhere from the date when I was kicked out from my matrimonial home.” She was cross examined on 7th April 2004 and was asked whether she was doing any job during the pendency of the petition. She replied that “since after coming to my parental home, I am not doing any job. I have one bank account in Co- operative Bank. It is incorrect to suggest that after coming to my parental home, I have worked with Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi.” In response to another specific question whether she was holding a bank account at Punjab National Bank, Civil Lines she stated as under: “It is wrong to suggest that I am holding an account which is 427791 in the above said bank i.e., PNB”
  5. Consequent upon the above replies in cross examination, the Petitioner filed an application under Section 340 CrPC seeking the prosecution of the Petitioner for committing perjury punishable under Section 193 CrPC.
  6. It appears that a reply was filed to the said petition by Respondent No.2. Even evidence appears to have been led by examining the officials from both the Punjab National Bank as well as the Tirath Ram Shah Charitable Hospital.
  7. RW-2 D.S. Bandari, Senior Manager, Punjab National Bank, Civil Lines, Delhi was examined on 28th September 2004. He confirmed that an account had been open by Respondent No.2 with the bank with the addresses “C/o Tirathram Shah Hospital, 2 Battery Lane, Rajpur Road, Delhi -54.” He stated: “On 20.07.01 Smt. Veena Bhatt opened her account in Punjab National Bank, Civil Lines, Delhi. The account was introduced by Sh.B.Arora, SF account No.11908 with the address C/o Tirathram Shah Hospital, 2 Battery Lain(sic Lane), Rajpur Road, Delhi-54 with a initial amount of Rs.500/-. She was allotted account No.427791. Statement of the account since opening of the account till today is exhibited as Ex.RW2/A, Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of account Smt. Veena Bhatt stated her occupation “service” which has been written in point A over Ex.RW2/D.
  8. RW-3 Manoj Nair, AAO, Tirath Ram Shah Hospital in his examination in chief stated as under:- “The authority letter given by Dr.A.K.Dubey, Director is Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram Shah Hospital. She was working as a receptionist on fixed term contract basis. The gross salary of Mrs.Veena was Rs.3,572/- only. Her employment no. was 1225. I identify Mrs. Veena who is present in the court. There was break in service for one day. Smt. Veena Bhatt was working as a receptionist and not as a trainee as per the record. In my hospital no receptionist trainee are engaged. She has not applied for the renewal of her further contract after 10.06.02. I can submit a copy of the application form and record of salary if required. The original is before this hon’ble court. Application for employment form is Ex.RW3/B (four pages) and the copy of salary register for the month of June, 2001 to June, 2002 are collectively Ex.RW3/C (12 pages).”
  9. The cross examination only elicited the following clarification by Respondent No.2:- “It is correct that Smt. Veena had not worked in the hospital as a permanent hospital (sic) or on ad hoc basis or on temporary basis she had worked only on contract basis.
  10. The learned MM in the order dated 9th September 2005 came to the following conclusion:- “I have gone through the record of the present application as well as the petition under Section 125 Cr.P.C., which is pending in the present court. Smt. Veena may have had a genuine cause for having worked as proved against her in her case and also admitted by her in the present proceedings. Nevertheless her pressing requirements for income does not exonerate her from the offence of having given false testimony in the court. I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same.”
  11. Aggrieved by the above order, Respondent No.2 filed an appeal in the Court of learned ASJ. Among the grounds urged in the appeal were that an earlier petition under Section 340 CrPC having been dismissed, a further application ought not to have been entertained by the learned MM. It was further urged that there was never any intention on the part of Respondent No.2 to commit any offence and that her only intention was to claim maintenance as per law. It was sought to be urged that in the recording of the answers to the questions put to Respondent No.2 in her cross examination there were chances of inadvertent mistakes “unless it is in the language of the appellant/witness i.e. Hindi/vernacular language…….“. It was also urged that the learned MM had, in fact, pronounced a final judgment on the guilt of the Respondent No.2 for the offence under Section 193 IPC and, therefore, the order dated 9th September 2005 stood vitiated.
  12. In the impugned order dated 22nd February 2008, the learned ASJ has referred to the judgments of the Supreme Court in Afzal v. State of Haryana and others AIR 1996 SC 2326, Murrari & Company 2002 (2) SCC 367 and Pritish v. State of Maharashtra and others AIR 2002 SC 236 to hold that it was incumbent on the learned MM to come to a definite conclusion that it was expedient in the interest of justice that an action should be taken against respondent No.2 under Section 193 IPC. The learned ASJ proceeded to observe as under:- “Mere recording of a finding to the effect that an offence punishable under section 193 of the Penal Code was committed would not answer requirement of section 340 of the Code. When primary question was answered in affirmative then secondary and most effective proposition was to be answered to the effect whether it was expedient in the interest of justice to initiate an action in the matter. No such step was taken by the Trial Court to see that it was expedient in the interest of justice to take such action. In such a situation, order impugned is shrouded with illegality. In cannot be allowed to stand. Consequently, order impugned is set-aside and appeal is granted. Trial Court record be sent back. File be consigned to Record Room.”
  13. Learned counsel for the Petitioner makes a two-fold submission. According to him, the learned ASJ, hearing the criminal appeal had to specifically direct the complainant to withdraw the complaint and could not have passed any other order. Secondly, he submits that a reading of the order dated 9th September 2005 passed by the learned MM shows that, in fact, the learned MM had come to a conclusion about the expediency in the interest of justice for prosecuting Respondent No.2 thus satisfying the requirement of the law under Section 340 CrPC.
  14. Learned counsel for the Respondent No.2 urged that there was no illegality in the order of learned ASJ mandating a full-fledged inquiry prior to the formation of opinion that it was expedient in the interest of justice to prosecute Respondent No.2. He submits that inasmuch as there was no specific conclusion drawn by the learned MM to that effect, the order dated 9th September 2005 stood vitiated. He also submits that with the learned MM already having concluded on the guilt of Respondent No.2, nothing really remained as far as the prosecution of Respondent No.2 was concerned. It would be an empty formality.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  15. The submissions of both sides have been heard. As regards the first contention, a reference may be made to Section 341 CrPC which reads as under:- (1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 95, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.”
  16. A plain reading of the above provisions would show that an appeal can be filed by either a complainant seeking to invoke Section 340 CrPC or by a person against whom the Court below has invoked the provision. In the instant case, the provision was successfully invoked by the Petitioner before the learned MM and it was Respondent No.2 who filed an appeal. While accepting her submission, learned ASJ set aside an order dated 9th September 2005. The effect of this was the withdrawal of a complaint itself. Therefore, there was no illegality committed by learned ASJ as far as the order that should have been passed under Section 341 CrPC. The first submission of learned counsel for the Petitioner is accordingly rejected.
  17. That brings us to the merits of the case. The only ground on which the learned ASJ appears to have set aside the order dated 9th September 2005 passed by the learned MM is that a definite opinion was not formed by the learned MM that it was expedient in the interest of justice to prosecute Respondent No.2 for the offence under Section 193 IPC. The learned ASJ unfortunately does not appear to have referred to the record of the detailed inquiry conducted by learned MM. This involved not only considering the reply filed by Respondent No.2 but also the evidence recorded of RW-2 i.e. the Senior Manager D.S.Bandari of the PNB and RW-3, the official of the `Tirath Ram Shah Hospital Manoj Nair. In the light of the evidence of these witnesses, the relevant portion of which have been extracted hereinbefore, there was no question of learned MM having to hold any further inquiry in order to determine whether Respondent No.2 ought to be prosecuted or not.
  18. In the considered view of this Court, when the learned MM in the order dated 9th September 2005 observed “I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same”, the requirement of Section 340 CrPC as explained by the Supreme Court stood satisfied. In other words, the opinion formed by learned MM was obviously only a tentative or a prima facie one. This is plain from the expression “ought to be prosecuted”. Further, the same expression “ought to be prosecuted” also indicates the formation of an opinion that it was expedient in the interest of justice that Respondent No.2 should be prosecuted. Therefore, both the requirements of law as explained by the Supreme Court in relation to Section 340 CrPC stood completely satisfied by the order dated 9th September 2005 passed by the learned MM. This Court is, therefore, unable to agree with the conclusion reached by learned ASJ to the contrary.
  19. The order dated 22nd February 2008 passed by the learned ASJ is accordingly set aside. The order dated 9th September 2005 passed by the learned MM and the consequent application presented to the learned Additional Chief Metropolitan Magistrate for prosecuting Respondent No.2 are revived. The further steps will proceed in accordance with law.
  20. The petition is accordingly allowed with no order as to costs. The pending application is also disposed of.

S. MURALIDHAR, J.

MARCH 23, 2009

ks

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


Section 340 of the CrPC : Procedure in cases mentioned in Sec 195

CrPC 340: Section 340 of the Criminal Procedure Code

Procedure in cases mentioned in section 195

  1. When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-Section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
    1. record a finding to that effect;
    2. make a complaint thereof in writing;
    3. send it to a Magistrate of the first class having jurisdiction;
    4. take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and
    5. bind over any person to appear and give evidence before such Magistrate.
  2. The power conferred on a Court by Sub-Section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-Section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-Section (4) of section 195.
  3. A complaint made under this section shall be signed,-
    1. where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
    2. in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
  4. In this section, “Court” has the same meaning as in section 195.

Punishment for false evidence. Sec 193 IPC

Section 193 in The Indian Penal Code

Punishment for false evidence.— Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabri­cates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either de­scription for a term which may extend to three years, and shall also be liable to fine .

Explanation 1. — A trial before a Court-martial; 1[***] is a judicial proceeding.

Explanation 2. — An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration A, in an enquiry before a Magistrate for the purpose of ascer­taining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

Explanation 3. — An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that inves­tigation may not take place before a Court of Justice.

Illustration A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence.

Increasing Interim maint without evidence, material for enhancement is unjustified – Supreme court

Increasing Interim maintenance without proper evidence of husband’s income, without material for enhancement is unjustified. HC Order Set aside by Supreme court of India

In this case, Husband filed RCR, filed file for maintenance u/s 24 HMA and District judge ordered 750/- p.m. as maintenance. Wife appeals to HC who increase it to 5000/- p.m. Husband appeals to SC and SC orders as follows “…even though respondent (wife) did not produce any evidence about income of appellant (husband), High Court enhanced the interim maintenance by assuming appellant’s income is Rs.15,000/- per month. …. could not show that there was any material for enhancing the maintenance. Therefore, we hold that the High Court was not justified in enhancing .. maintenance…..”

Classic case that can be quoted IF your wife does NOT have proper proof or reasons to get an enhacement


Supreme Court of India

Sanjeev Gupta vs Shalini Gupta on 23 February, 2009

Bench: B.N. Agrawal, G.S. Singhvi

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1163 OF 2009 (Arising out of S.L.P. (C) No.16742 of 2006)

Sanjeev Gupta …Appellant(s)

Versus

Shalini Gupta …Respondent(s)

O R D E R

Leave granted.

During the pendency of H.M.A. Case No.158 of 2003 instituted by the appellant under Section 9 of the Hindu Marriage Act, 1955 [for short, `the Act’], the respondent filed an application under Section 24 of the Act for interim maintenance. By an order dated 22nd May, 2004, District Judge, Yamuna Nagar, directed the appellant herein to pay interim maintenance to the respondent at the rate of Rs.750/- per month, apart from Rs.1,100/- as litigation expenses. The respondent challenged that order by filing a petition under Article 227 of the Constitution of India. By the impugned order, the High Court directed the appellant to pay Rs.5,000/- per month to the respondent as interim maintenance. The High Court also enhanced the litigation expenses from Rs.1,100/- to Rs.10,000/-. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

We have heard learned counsel for the parties. A reading of the order under challenge shows that even though the respondent did not produce any evidence about the income of the appellant, the High Court enhanced the interim maintenance by assuming the appellant’s income is Rs.15,000/- per month. Learned counsel appearing on behalf of the respondent could not show that there was any material for enhancing the maintenance. Therefore, we hold that the High Court was not justified in enhancing the amount of maintenance.

Accordingly, the appeal is allowed and the impugned order passed by the High Court is set aside.

J. [B.N. AGRAWAL]

J. [G.S. SINGHVI]

New Delhi,

February 23, 2009.

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


did the family court REALLY pass an 1 crore alimony decree even though wife was cruel ?

case posted without party names or reference !!!

IN THE HIGH COURT OF KARNATAKA AT
BENGALURU

DATED THIS THE ___ DAY OF ______ 2015
BEFORE
THE HON’BLE MR. JUSTICE ________
WRIT PETITION No. ___ OF 2015

BETWEEN:

xxxx
Wife of xxxxxx
Aged 30 years,
Occupation xxxxx
resident
xxxxxxx …PETITIONER
(By xxxxxxxxAdvocate)

AND:

xxxxxxxx
Son of xxxxxxx
Age: 34 years,
Occupation: Service presently at
xxxxxxx …RESPONDENT
*****

This Writ Petition is filed under Section 29 of the Hindu
Marriage Act, praying to set aside the judgment passed by the I
Additional Principal Family Court, Bangalore in
M.C.No.xxxxx/20xx dated xx.xx.20xx to the extent of the
appellant wife having exercised cruelty on the respondent while
granting alimony of Rs.One Crore to the appellant by allowing
the appeal.

This Writ Petition is coming on for Orders this day, the
court made the following:

ORDER

xxxxxxx

Sd/-

JUDGE nv

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

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regards

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