Category Archives: alimony

Pay or be arrested !!

Husbands are regularly ordered to pay interim maintenance, lump-sum compensation under DV etc etc, as part of lower court proceedings. Since many can’t pay and many haven’t done anything wrong, they try to appeal. Even before they can appeal and be heard against such lower court orders (it takes years to reach HC), execution proceedings are started at lower court.
Husbands are forced to pay as per lower court orders, else Japti (seizure of property) and IF the husband is poor / unemployed etc or can’t pay, husband’s arrest is ordered.
Alas, when husbands seek stay of arrest (arising from execution), husbands are asked to pay 50% of all outstanding AND arrears which literally can kill some people.
Here is one such sad order
Names of parties etc, removed (though this MAY be publically available on court website)

>>>>>>>>>>>>>>>>>>>>>>

High Court of Karnataka

Daily Orders of the Case Number: MFA ____/20__ for the date of order //2017

Honble Justice _____________________

__/___/2017

Order in MFA ____/20__

It is stated by the learned counsel for the appellant that, arrest warrant has been issued in the execution of the Decree of the Family Court. Learned counsel for the respondent does not dispute the said position.

Hence, put up on 11.10.2017.

By ad interim order, it is directed that, there shall be stay against the execution of the warrant already issued by the Family Court on condition that the appellant deposits the amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) with the Family Court on or before 27.9.2017 and further deposits Rs.1,00,000/- (Rupees one lakh only) on or before 27.10.2017.

Both the amounts shall be deposited before the Family Court.

On the amount so deposited, the respondent shall be at liberty to withdraw the same.

Matter shall be considered for further amount to be deposited or not on the next date of hearing.

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18 lakhs alimony in spite of 25 years desertion !! Rajastan HC

  • checkered history of fights between spouses
  • husband claims that wife was a widow from her earlier marriage and it was hidden from him
  • he claims that she was also cantankerous
  • after initial spats etc, wife finally leaves in 1991
  • after numerous cases, matter finally reaches Rajastan HC. HC Also sees desertion / decrees desertion
  • However, IN the INTEREST of justice, HC says pay her 6 lakhs in addition to the 12 lakhs already paid !!
    …..and that is EVEN after an 18 year desertion !! …..

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

:JUDGMENT:

S.B. CIVIL MISC. APPEAL NO.99/1996

APPELLANT :

Smt. Raj Kumari @ Chandrakala w/o Shri Nandlal D/o
Shri Badri Singh, by caste Mali Kachhawaha, resident
of Sardarshahar at present Bikaner.

Versus

RESPONDENT :

Nandlal son of Late Shri Dalchand Ji, By caste Mali,
Sangodiya, resident of Sardarshahar Churu.

Date of Judgment :: 17.10.2016

PRESENT

HON’BLE MR. JUSTICE ARUN BHANSALI

Mr. Salil Trivedi, for the appellant/s.
Mr. Rajesh Parihar ) for the respondent/s.
Mr. Vinit Sanadhya)


BY THE COURT:

This appeal under Section 28 of the Hindu Marriage Act, 1955 (‘the Act’) is directed against the judgment and decree dated 5.10.1995 passed by the District Judge, Churu, whereby the petition filed by the respondent under Section 13 of the Act has been accepted and marriage between the parties has been dissolved.

The dispute between the parties has a checkered history. The petition for dissolution of marriage was filed by the respondent-husband under Sections 12 & 13 of the Act, inter-alia, with the averments that the marriage was solemnized between the parties on 20.11.1989 at Bikaner at the residence of Dr. Durga Gehlot; a daughter was borne out of the wedlock on 5.9.1990. It was alleged that the family members of the wife at the time of marriage wrongly indicated her name as Rajkumari and her age at 21 years, in fact, her real name was Chandrakala and her age as per the school certificate was much more and she was widow of Dr. Anil Kumar Gehlot, whereas it was informed that she was unmarried. It was alleged that marriage was solemnized by committing fraud, the said fact came to the notice of the husband during the posting at Bikaner and FIR No.197 dated 25.10.1993 was lodged, which is being investigated. It was alleged that the wife was of cantankerous nature and behaved cruelly with the husband and family members. It was alleged that while behaving in the offending manner, the wife continued to move between her matrimonial home and parental home and on 7.12.1991, uncle (mama) of the wife, without permission took her with him. Whereafter, she did not turn up till 25.10.1993 and continued to refuse to live with the husband. Before 25.10.1993, several efforts were made for bringing her back, however, the parents and aunty of the wife intimated that if the husband wants to come and live with her, he can come and live, the wife was not prepared to go and live with him. It was also alleged that despite repeated efforts made between 7.12.1991 to 25.10.1993, the wife did not return back and has deserted the husband. Based on the said allegation of cruelty and desertion, the petition was filed.

The appellant herein was served with the notice of the petition, she appeared through counsel before the trial court, however, on 26.8.1995, her counsel pleaded no instructions and therefore, ex-parte proceedings were initiated.

On behalf of the husband, four witnesses were examined and documents were exhibited.

After hearing counsel for the husband, the trial court came to the conclusion that desertion was proved, cruelty was also proved, however, it was held that in so far as fraud and declaring the marriage as void was concerned, the same was not proved and consequently, passed decree on 5.10.1995 for dissolution of marriage.

Feeling aggrieved, the appellant filed an appeal before this Court. When initially, the appeal came up before this Court for hearing, by judgment dated 13.12.2001, the appeal was dismissed on merits.

Feeling aggrieved, the appellant approached the Division Bench by filing D.B. Civil Special Appeal (Civil) No.8/2002. The Division Bench by its order dated 15.10.2009, set-aside the finding recorded by the trial court as well as learned Single Judge regarding curelty. However, qua the ground of desertion, it was noticed that the learned Single Judge has not given his own finding on said aspect and question as to whether ground of desertion was made or not is required to be probed into thread bare by the learned Single Judge and in those circumstances, the matter was sent back to the learned Single Judge for deciding the question of desertion afresh.

During the pendency of the present appeal, post remand, efforts were made for resolving the dispute amicably; on 19.8.2015, it was noticed by this Court in the order-sheet that the appellant wanted the ex-parte decree granted in favour of the respondent-husband Nandlal to be set-aside as she wanted to press for restoration of status as married wife of Nandlal. It was also noticed that the respondent-husband has since remarried with another woman namely Ambika in November, 1997 and out of second marriage, a child named Aditya was born and was aged 15 years and that there was no possibility for restoration of matrimonial home with the appellant. However, readiness and willingness to pay permanent alimony was expressed, the court directed deposited Rs.12,00,000/- towards part payment of amount of permanent alimony and it was directed that the said payment would remain subject to final decision of the present appeal, which amount of Rs.12,00,000/- was deposited by the respondent as noticed by order-sheet dated 5.1.2016.

It is submitted by learned counsel for the appellant that the trial court committed error in granting the decree on the ground of desertion, inasmuch as, the respondent had failed to plead and prove the necessary ingredients for proving the ground of desertion. It was submitted that irrespective of the fact that matter was proceeding ex-parte against the appellant, it was incumbent for the trial court to objectively assess the evidence available on record, which clearly indicates that no ground is made out as envisaged by provisions of Section 13(1)(ib) of the Act.

Reference was made to the second explanation to Section 13 and it was submitted that there was reasonable cause for the appellant to leave the matrimonial home, inasmuch as, circumstances were created forcing her to leave the matrimonial home. It was submitted that the very fact that FIR was lodged by the respondent alleging fraud on 25.10.1993, necessarily means that before 7.12.1991, on account of allegations made, atmosphere was created which resulted in the appellant leaving the matrimonial home and therefore, the necessary ingredients for providing desertion are not available and consequently, the finding of the trial court in this regard deserves to be set-aside. It was prayed that the appeal be allowed and the judgment impugned be set-aside.

Vehemently, opposing the submissions, it was submitted by learned counsel for the respondent that from the material available on record, it was apparent that the appellant has deserted the respondent for a continuous period of two years immediately preceding the presentation of the petition and had no cause for doing so; the submissions made by learned counsel for the appellant seeking to allege that there was reasonable cause on account of the fact that the respondent lodged an FIR on 25.10.1993 alleging fraud against the petitioner is, in fact, seeking premium on the wrongs committed by her. It as further submitted that from the evidence available on record, the desertion is proved, inasmuch as, the appellant chose not to contest the petition after putting an appearance before the trial court; even after passing of the impugned judgment, application under Order IX, Rule 13 CPC filed by the appellant was also dismissed by the trial court on 19.1.1996 and therefore, the appellant has no cause.

It was submitted that the desertion is also proved from the very fact that the appellant did not take any steps for restitution of conjugal right, if she had any interest in restoration of the matrimonial home.

Further submissions were made that present is a typical case of irretrievable break down of marriage, inasmuch as, admittedly parties are living separately since 7.12.1991 i.e. over 25 years now and after passing of the ex-parte decree and dismissal of application under Order IX, Rule 13 CPC and before the respondent was served with a notices in the present appeal, the respondent had contracted another marriage and has a child from the said wedlock. It was prayed that the judgment passed by the trial court is justified and same does not call for any interference.

Further submissions were made that under the directions of this Court the respondent had already paid a huge sum of Rs.12,00,000/- towards permanent alimony and is prepared to pay further reasonable sum in this regard and therefore, the appeal filed by the appellant deserves to be dismissed.

Reliance was placed on Sujata Uday Patil v. Uday Madhukar Patil : (2006)13 SCC 272.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant inter-alia for placing on record the copy of judgment dated 11.6.2008 passed by the Additional Sessions Judge No.2, Bikaner in Cr. Appeal No.2/2007 (State of Rajasthan v. Nandlal) and copy of the statement dated 18.10.2001 recorded in the criminal trial before the Court of Additional Civil Judge (Jr.Div.)-cum- Judicial Magistrate, Ist Class, No.2, Bikaner. In the said application, except for indicating that the documents came into existence during the pendency of the appeal, nothing has been indicated as to how the documents were relevant for the proper adjudication of the present appeal and even during the course of submissions in the present appeal, no reference was made to either the application and / or the documents annexed with the application. In view thereof, besides the fact that no submissions were made qua the application and documents, even otherwise, there is no substance in the application, the same is, therefore, dismissed.

The essential condition for proving the ground of desertion are (i) – factum of separation and (ii)- intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned, (i)- absence of consent and (ii)- absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. In the present case, the husband, in the petition seeking divorce alleged that on 7.12.1991 uncle of the appellant without permission took the appellant to Bikaner from Sardarshahar and whereafter, she did not return back to the matrimonial home till 25.10.1993 and continued to deny to live with the respondent at Sardarshahar. Efforts were made by the respondent and his close relatives before 25.10.1993 for bringing her back which was responded by counter proposal to the respondent to go and live with the wife at her parental home. It was also alleged that besides not returning back to the matrimonial home at Sardarshahar, the appellant did not visit the place where the respondent was serving, however, all the efforts made in this regard failed and it was apparent that the wife has deserted him. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As already noticed herein-before, after service though the appellant put in appearance, whereafter as the counsel pleaded no instructions, the matter proceed ex-parte against the appellant and on behalf of the respondent, 04 witnesses were examined.

The respondent appeared as AW-1 and reiterated the contents of the petition. Further assertions were made that despite several efforts being made by the respondent and people of the Society, the appellant did not return back to the matrimonial home.

AW-2 Bharat Bhushan Arya, a lawyer by profession and Secretary of Mali Samaj, Bikaner and Vice President of Rajasthan Mali Samaj appeared in the witness-box and stated that despite efforts being made by the respondent, the father, uncle and aunty of the appellant did not send the appellant back to the matrimonial home. He tried to convince the appellant / parties to go back to the matrimonial home, which was rejected and it was suggested that the respondent should go and live with them.

AW-3 Banwari Lal, elder brother of the respondent also stated that uncle of the appellant took her to Bikaner from Sardarshahar and stated that the respondent can come and live with them, efforts were made to bring the appellant with them, the uncle of the appellant refused, efforts were made through Mali Samaj, however, that also did not succeed. AW-4 Rajendra, a neighbour of the respondent was examined, who also stated similar facts regarding uncle of the appellant taking her back to parental home and stated that the respondent can come and live with them.

From the material available on record as well as the submissions made by counsel for the parties, it is apparent that the appellant had left the matrimonial home on 7.12.1991 and despite the efforts made by the respondent, his family members and people of Mali Samaj, the appellant did not return back to the matrimonial home, on the other hand, it was insisted that in case, the respondent wants, he can come and live at the parental home of the appellant.

No submissions were made by counsel for the appellant to indicate that any efforts were made by the appellant to get back into the matrimonial home including filing of petition under Section 9 of the Act for restitution of conjugal rights.

So far as the submissions made by learned counsel for the appellant seeking to make out a case of reasonable cause in terms of second explanation to Section 13 is concerned, the said explanation reads as under:- “Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

The submission made on behalf of the appellant is that from the dates indicated in the petition, whereby the appellant left the matrimonial home on 7.12.1991 and a FIR was lodged by the respondent alleging fraud on 25.10.1993 against the appellant, necessarily means that the atmosphere in the matrimonial home was such that it forced the appellant to leave the matrimonial home and therefore, she had a reasonable cause and therefore, the necessary ingredients as indicated in the explanation has not been fulfilled.

Besides the fact that no such plea was available before the trial court and consequently, there is no material available on record regarding the alleged reasonable cause for the appellant to leave the matrimonial home, it was the specific case of the respondent that as soon as he came to know of the fraud having been committed by the appellant, he lodged the FIR on 25.10.1993, this is not the case of the appellant that after the FIR was lodged that she left the matrimonial home and / or that the respondent came to know about the facts, which led to filing of the FIR even long prior to 7.12.1991 and the atmosphere was so poisoned that she have no option but to leave the matrimonial home. As the respondent has clearly indicated that the FIR was lodged on 25.10.1993 immediately on coming to know of the fraud on 25.10.1993, that cannot be a reasonable cause on 7.12.1991 for the appellant to leave the matrimonial home and therefore, the submissions made by learned counsel for the appellant seeking to plead reasonable cause for the appellant to leave the matrimonial home has no basis.

The ingredients of desertion as noticed hereinbefore i.e. factum of separation and intention to bring cohabitation permanently to an end are both proved and the defence as sought to be now projected in the appeal based on the available material having been found to be non-existent, the trial court was justified in coming to the conclusion that the appellant has deserted the respondent without any reasonable cause and was further justified in granting decree for dissolution of marriage between the parties. So far as irretrievable break down of marriage between the parties is concerned, the facts as noticed hereinbefore, are apparent wherein the parties are living separately for over 25 years now, after the decree for dissolution of marriage was granted by the trial court and the application for setting aside ex-parte decree was also rejected and before the notices of the present appeal were served on respondent, he had contracted marriage way-back in the year 1997 and therefore, the test laid down by the Hon’ble Supreme Court in this regard as to whether the marriage can be saved in the circumstances, the answer to the said aspect would be a big ‘No’.

So far as grant of permanent alimony is concerned, in the submissions made before the Court, though no submissions were made by learned counsel for the appellant, learned counsel for the respondent offered to pay reasonable sum towards permanent alimony to the appellant and also prayed that the fact that a sum of Rs.12,00,000/- has already been paid under the interim directions of this Court, direction can be given. Looking to the over all circumstances of the case, though apparently, no material is available on record for determination of amount of permanent alimony, in view of the fact that the respondent was working as C.I. In the Police Department as noticed in the order-sheet dated 19.8.2015 (supra), in the opinion of this Court ends of justice would meet in case, the respondent is directed to make payment of a further sum of Rs.6,00,000/- by way of permanent alimony besides the sum of Rs.12,00,000/- already paid by the appellant under the directions of this Court dated 19.8.2015 (supra). The amount be paid within a period of three months from the date of this judgment.

In view of the above discussions, the appeal filed by the appellant has no substance, the same is, therefore, dismissed.

However, the respondent is directed to make further payment of a sum of Rs.6,00,000/- to the appellant by way of permanent alimony within a period of three months and the order dated 19.8.2015 (supra) passed by this Court directing payment of a sum of Rs.12,00,000/- by way of part payment of permanent alimony is made absolute.

No order as to costs.

(ARUN BHANSALI), J.

rm/-

16 lakhs TOO little for UNCONSUMMATED marriage!! Maint. order sent back 13 years later by Patna HC

  • Marriage in 2003
  • Marriage unconsummated as per parties !
  • They seem to have separated just after a few months of married life !!
  • Husband obtained divorce at lower court and was also asked to pay Rs 16 Lakhs as alimony to wife !!
  • However wife appeals and says 16 Lakhs is too less
  • The Hon Patna HC dismisses that part of the lower court order (pertaining to maintenance) and sends it back for fresh adjudication !!
  • Since both wife and husband have NOT contested the divorce, the divorce is left as is !! meaning wife is free to even get re married !!

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

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.450 of 2015

Reena Devi, aged about 34 years, wife of Sri Rohit Bishnoi, present resident of Mohalla – Jamtara, G.T. Road, Near Parasnath College, village + P.O. + P.S. – Dumri, District – Giridih (Jharkhand). …. …. Appellant

Versus

Rohit Bishnoi, son of Krishna Chandra Bishnoi, resident of Mohalla D.N. Das Lane, Bangali Akhara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District & Town – Patna….. …. Respondent

With

Miscellaneous Appeal No. 271 of 2015

Rohit Bishnoi S/o Krishna Chandra Bishnoi Resident of Mohalla D.N. Das Lane, Bangali Aghara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District Patna….. …. Appellant

Versus

Reena Devi W/o Rohit Vishnoi, D/o Om Shankar Agrawal Resident of Village Dumari Jamtara J.T. Road Near Paras Nath College, P.O. Dumari, P.S. Dumari, District Giridih (Jharkhand)….. …. Respondent

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

Appearance :
(In MA No. 450 of 2015)
For the Appellant/s : Mr. Manoj Kumar, Advocate For the Respondent/s : None.

(In MA No. 271 of 2015)
For the Appellant/s : None
For the Respondent/s : Mr. Manoj Kumar, Advocate

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

CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH And HONOURABLE JUSTICE SMT. NILU AGRAWAL

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)

Date: 06-09-2016

Heard learned counsel for the appellant in M.A. No. 450/2015. No one appears on behalf of the appellant in   M.A. No. 271/2015.

The two Miscellaneous Appeals arise out of the judgment and order dated 29.06.2015, passed by the Additional Principal Judge, Family Court, Patna, in Matrimonial Case No. 445 of 2010.

The case was instituted by Rohit Bishnoi, the husband, for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”). The sole contesting respondent, Smt. Reena Devi, was the estranged wife. Parties have appeared and led their evidence. The Court, upon consideration of the entire matter, granted the decree for dissolution of marriage by decree of divorce. While doing so, it noted that the parties were married on 06.03.2003, but within months there were serious differences, and since then, they have been living apart. The marriage has not been consummated, nor parties are inclined to forget the past and live together.

The two appeals that have been filed is against the part of the judgment, whereby and while granting the decree of divorce, the Family Court has granted Rs. 16,00,000/- (sixteen lacs) as permanent alimony in terms of Section 25 of the Act, to be paid by the husband to the wife.   Miscellaneous Appeal No. 450/2015 has been preferred by the wife challenging that permanent alimony, so fixed, is too little, whereas Miscellaneous Appeal No. 271/2015, as filed by the husband, is that, considering his status and his property, the alimony is strikingly high. Neither party had challenged the decree of divorce. Therefore, before us, the question is whether Rs. 16 lacs as fixed by the Trial Court is just and reasonable. The legal principles for fixing the permanent alimony are well settled and need not be discussed, but what is the evidence for the same is relevant. All that the wife can say is that the husband has a house in which there are some shops and live with parents on the first floor therein. Therefore, his status is very high and Rs. 16,00,000/- (sixteen lacs) is also very low. There is no evidence as to the valuation, or the other assets or the income of the husband. The husband, on the other hand, says that apart from the said property, which is old ancestral property, there is no income except rental income from those shops, and if he is asked to pay Rs. 16,00,000/- (sixteen lacs), he would first have to sell the entire property and then raise the money.

In our view, the first thing to be noted is that,  alimony has to be fixed upon cogent evidence to be led by the parties. It cannot be on ad hoc findings unsupported by materials on record.

In that view of the matter, there being hardly any evidence, we would set aside the matter and remand the matter to the Principal Judge, Family Court, Patna, only limited to the matter for determination of the quantum of alimony, in terms of Section 25 of the Act. So far as the decree of divorce is concerned, neither party having any objection, the same cannot be interfered with, and it would be deemed to have attained the finality.

Thus, both the appeals are allowed and the matter is remanded for fresh consideration by the Trial Court for the limited purpose as pointed out above. The Trial Court would be well advised to finalize the proceedings, preferably within six months.

(Navaniti Prasad Singh, J.)

(Nilu Agrawal, J.)

Rajeev/-

U

The “Alimony slave”. New slavery in 21st century India !!

The #MoneyTrail and “Alimony slave”

History has seen men being enslaved at different times for different reasons. There were cotton picking slaves, plantation slaves, stone breaking slave labour and so on and so forth. While most such “old” forms of hard labour and slavery have gotten mechanized, or in some cases abolished, a new form of slavery, of men being “enslaved” just to meet their monthly “maintenance”, “spousal support” or “alimony” is on the rise. I am not sure IF the term “alimony slave” already exists. If it doesn’t it’s time to coin the term “#AlimonySlave”. There are numerous cases in India, where wives are granted #alimony even when wives have been proven to be guilty of cruelty and / or neglect ! In most cases in India, interim / ad-interim maintenance is levied on men much before the evidence and trial have even begun !! That means the man is FORCED TO PAY for just the sin of being married or being associated and no other fault. Men are forced to pay even if the woman is at fault ! Since such maintenance can run into 10s of 1000s per month (in one recent case we blogged a 100 thousand monthly maintenance !!), and alimony can be in #millions of rupees, men are forced to slog their b@11s off to keep paying the woman. Add this to the delay in lethargy in courts, the fear of arrest if money not paid, the men are turned into real slaves. With SIF and other sister organisations fighting against #fakeArrests #fake498a etc., #fakeArrest is on the wane. Its also becomming politically incorrect to arrest a man on false charges. So, the anti male industry had set its sights on man’s #efforts and #money !! the Honest, sincere hard working male is becoming a #slave !! The parasites are literally feeding on the man’s blood and sweat 😦

While there are 1000s of such cases, we give a few examples here due to paucity of time and resource

How a Child Prodigy lost entire youth fighting cases JUST bcaz of marriage! Madras HC Irretrievable b/down & Cruelty

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

I CAN’T live with a low paid Inspector says wife & still gets 10K p.m. moolah !!! P&H HC

Many cases of crores and crores alimony are comming to light like the one below

Wife gets 2 crores exparte order on US NRI & tries to attach, sell his house ! He runs to HC for setaside

A wife who says “father in law used to force himself on her after drinking..” takes 5 lakhs to quash case !! Delhi HC

A wife who claims all sorts of ill treatment, including that her father in law used to force himself on her after getting drunk accepts to quash everything for just 5 lakhs !! Whom should we pity now ??

The Wife initially makes very serious claims. A sample of the same can be see in the enclosed order which states “….After a week of marriage, the complainant/respondent no.2 was subjected to torture, harassment and other violence by her in-laws for not giving sufficient dowry to their satisfaction. The accused persons, committed various offences including unlawful demand of dowry, ill- treating, calling by bad names, forcing to entertain strange people, using abusive language and threatening to kill the complainant. The husband of the complainant used to beat her mercilessly. Soon after the marriage, the husband of the complainant went to Indonasia and in his absence, the mother-in-law of the complainant started to harass and misbehave with the complainant. The mother-in-law of the complainant even threw a plate full of vegetables at her face and since then she was not provided with food and she had to survive of stale food and water. The father-in-law of the complainant also used to force himself on her after getting drunk. Even during the pregnancy, the complainant was forced to do all the household chores. ….”

But suddenly when it comes to mutual consent divorce WITHOUT the kid, poor wife now accepts 5 lakhs and all complaints are quashed !! “…As per the compromise deed, it has been agreed between the parties that they shall take divorce by way of mutual consent. It is agreed that both parties shall mutually get the FIR in question quashed before this Court. It is further agreed that an amount of Rs.5,00,000/- shall be payable in two installments by petitioner no.1 to respondent no.2. It is agreed that the schedule of payment of the aforesaid amount shall be done as enunciated in the compromise deed. …..”

The custody of the kid remains with the dad though wife gets moolah !!

What should we say …. should we say “….Justice SHALL prevail !!..”


IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5047/2015 & Crl. M.A. 18870/2015

Date of Decision : February 12th, 2016

NAVEEN KALRA & ORS                              ….. Petitioners
Through      Mr. K.G. Gopalakrishnan and Ms. Zeba Khair, Advs.

versus

STATE                                             ….. Respondent
Through    Ms. Manjeet Arya, APP for State

Mr. Prakash Kumar, Adv. for R-2 alongwith respondent No.2 in person

CORAM: HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

  1.  The present petition under Section 482 Cr.P.C. has been filed by the petitioners, namely, Sh. Naveen H. Kalra, Sh. Harish S. Kalra, Smt. Kiran Kalra and Smt. Pooja Darira for quashing of FIR No.161/2012 dated 04.08.2012, under Sections 498A/406/506/509/34 IPC registered at Police Station Dwarka South on the basis of the compromise deed arrived at between the petitioner no.1 and respondent No.2, namely, Smt. Manveer Kaur Anand on 25.11.2015.
  2.  Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant of the FIR in question by her counsel.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3.  The factual matrix of the present case is that the marriage between the petitioner no.1 and respondent no.2 was solemnized in April, 2008 according to proper rites and ceremonies under the HMA. After a week of marriage, the complainant/respondent no.2 was subjected to torture, harassment and other violence by her in-laws for not giving sufficient dowry to their satisfaction. The accused persons, committed various offences including unlawful demand of dowry, ill- treating, calling by bad names, forcing to entertain strange people, using abusive language and threatening to kill the complainant. The husband of the complainant used to beat her mercilessly. Soon after the marriage, the husband of the complainant went to Indonasia and in his absence, the mother-in-law of the complainant started to harass and misbehave with the complainant. The mother-in-law of the complainant even threw a plate full of vegetables at her face and since then she was not provided with food and she had to survive of stale food and water. The father-in-law of the complainant also used to force himself on her after getting drunk. Even during the pregnancy, the complainant was forced to do all the household chores. On the eve of Lohri, the sister-in-law of the complainant demanded many valuable things as shagun and Rs. 1 lacs too from the complainant. In January, 2009, Mrs. Pooja Darira abused the complainant by saying that her father is a liar. In the month of June, 2009 at Delhi, the husband of the complainant again picked up a fight with her in front of her father and gave her beatings while she was pregnant. One day, the accused persons tried to pour phenyl in the mouth of the complainant forcefully. On 08.09.2011, the accused persons threatened the complainant and asked her to divorce her husband. One day, the husband of the complainant asked her to call her father and ask him to take her away. The complainant left with no option, called her father and he came to Bangalore to amicably sort out all the issues but to no avail and thus they finally left Bangalore on 16.10.2011. Thereafter, the complainant lodged the FIR in question against the accused persons/petitioners. The petitioner no.1 approached this Court for the grant of bail and the same was granted to him. Later on, with the intervention of the common friends and relatives etc. the parties reached at an amicable settlement.
  4.  Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the compromise deed, it has been agreed between the parties that they shall take divorce by way of mutual consent. It is agreed that both parties shall mutually get the FIR in question quashed before this Court. It is further agreed that an amount of Rs.5,00,000/- shall be payable in two installments by petitioner no.1 to respondent no.2. It is agreed that the schedule of payment of the aforesaid amount shall be done as enunciated in the compromise deed. It is agreed that respondent no. 2 shall withdraw all the cases filed by her that are pending before the Courts concerned. It is agreed that the permanent custody of the child Jai would be with petitioner no.1 and that respondent no.2 would have visitation rights as per the convenience of both parties and the child. It is also agreed that respondent no. 2 shall have the freedom to take the child on one vacation in a year and as many thereafter on mutual co-ordination. It is agreed that respondent no.2 shall not claim for maintenance, permanent alimony or istridhan etc. from petitioner no.1 and that they both shall not stake any claim or share in the movable and immovable properties of each other or their family members for all times, henceforth. It is further agreed that they shall not file any claim, complaint or any other proceedings, civil or criminal, against each other or their family members before any Court of law or before any authority, instrumentality, forum or agency of State or otherwise with respect to any cause of action arising out of the marriage. It is further agreed that in case either party fails to appear before this Court for the quashing petitions or to execute any of the terms and conditions of the present compromise, the parties will rescind the terms and conditions and revert back to the original position as if no such terms and conditions were entered upon. Respondent No.2 affirms the contents of the aforesaid settlement and of her affidavit dated 08.12.2015 supporting this petition. In the affidavit, the respondent no.2 has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent No.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  5.  In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:-     “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
  6.  The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-
    • “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
    • 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
    • 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
      • (i) ends of justice, or     
      • (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
    • 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.  
    • 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  7.  The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agrees to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.
  8.  The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law.
  9.  It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
  10.  It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if 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. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
  11.  The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already over burdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.
  12.  Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.
  13.  In the facts and circumstances of this case, in view of statement made by the respondent No.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
  14.  Accordingly, this petition is allowed an FIR No.161/2012 dated 04.08.2012, under Sections 498A/406/506/509/34 IPC registered at Police Station Dwarka South the proceedings emanating therefrom are quashed against the petitioners.
  15.  This petition is accordingly disposed of.
  16.  Application Crl. M.A. 18870/2015 is also disposed of.

(P.S.TEJI) JUDGE FEBRUARY 12, 2016/dd

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