Category Archives: Allahabad HC

How a DV case on husband & SEVEN more is sent back by Allah.HC ! No DV against females & ppl NOT in dom. relation

Section 2(q) of DV Act : “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person..” .

“…Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. ..”

“It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court……”

#DV_case #DVCase_on_eight_ppl !! #WhyNotOneDozen !! ?? #FakeDV #fakeDVisMoolah

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 48

Case :- APPLICATION U/S 482 No. – 19953 of 2016

Applicant :- Mohd. Alam @ Raja And 7 Ors

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Ved Prakash Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Pramod Kumar Srivastava,J.

Heard learned counsel for the applicants, learned AGA and perused the records.

The proceedings of Complaint Case No. 339/2014, Sections 18/12, 20, 21, 23 and 31 of Protection of Women from Domestic Violence Act? has been challenged.

Under these provisions, aggrieved person may be women or child under the age of 18 years. Applicants of said complaint case is wife and his three years’ son. The proceeding under said Act can be carried out against the ‘respondent’. The definition of ‘respondent’ is given in Section 2 (q) of said Act is as under:- “Section 2(q)-, “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court.

With these observations, this application is disposed of.

Order Date :- 11.7.2016

SR


============================disclaimer==================================
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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11 months Jail for a FALSE rape case AFTER girl eloped. Falsity apparent says Allahabad HC & grants bail

  • Girl seems to have voluntarily eloped with the boy
  • however, claiming that the girl is only 16 years old a rape case is filed and the boy incarcerated since 08. July 2015 !! (approx 11 months)
  • Court notices and states the following “…. allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164 Cr.P.C., it is apparent that she has voluntarily eloped with the applicant. The applicant has no criminal history. The applicant is in jail since 8.7.2015. The falsity of the case is apparent from the fact that the Nana and Baba of the applicant have also been implicated in the present case….”

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 4

Case :- BAIL No. – 4796 of 2016

Applicant :- Vimlesh Katheriya

Opposite Party :- State Of U.P.

Counsel for Applicant :- Jairam Bharti
Counsel for Opposite Party :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Heard Sri Jairam Bharti, learned counsel for the applicant and Ms. Sushma Shukla, learned A.G.A. appearing for the State.

It is submitted by learned counsel for the applicant that as per medical opinion, prosecutrix is 16 years. The law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. Although, she has made an allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164 Cr.P.C., it is apparent that she has voluntarily eloped with the applicant. The applicant has no criminal history. The applicant is in jail since 8.7.2015. The falsity of the case is apparent from the fact that the Nana and Baba of the applicant have also been implicated in the present case.

Learned A.G.A. opposed the prayer for bail.

Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.

Let the applicant Vimlesh Katheriya involved in Case Crime No. 587 of 2015 under sections 323, 342, 363, 376 I.P.C. and 3/4 POCSO Act, police station Mishrikh, District Sitapur be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions.

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 14.6.2016

shiraz

Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow.


—————————-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 (this one is from Allahabad HC website). 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.

FIR in year 2004 or earlier. “Revision” rejected @ HC in 2016 !! Who says delay is bad ??

As per the record the FIR was filed circa 2004 or earlier and summoning order was dated 10th June 2004…. The accused seemed to have filed for a revision stating that the magistrate has NOT applied his mind and NO personal involvement has been shown !! That “revision” is rejected in 2016 …. YES seems to have lingered for 12 years and finally rejected, meaning the case should start afresh now !!

This can’t be a typo, as the year is mentioned multiple times , it’s mentioned on the summoning order, on this revision case etc!!, and the matter is from the Allahabad HC site (directly from site) !!

However a certified copy is ordered, immediately !!


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 34

Case :- CRIMINAL REVISION No. – 3369 of 2004

Revisionist :- Sanjay And Others
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Ashok Kumar Srivastava
Counsel for Opposite Party :- Govt. Advocate,R. Sinha

Hon’ble Sudhir Agarwal,J.

  1. Heard learned counsel for the revisionists and perused the record.
  2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by summoning order dated 10.06.2004 passed by Civil Judge (Junior Division)/ Magistrate, Dudhi, District Sonebhadra, in Case No. 475 of 2004, under Sections 498-A, 147, 504, 506 IPC and 3/4 Dowry Prohibition Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. The impugned summoning order has been passed on a complaint made by complainant-respondent no. 2 and after recording statements of complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. Nothing has been placed on record to show that Magistrate has not applied its mind to the material available before him.
  4. The mere fact that individual role has not been assigned in complaint or there is no injury report etc. is wholly irrelevant at this stage inasmuch as from perusal of documents placed on record, i.e., statement recorded by Magistrate under Sections 200 and 202 Cr.P.C. it cannot be said that prima facie offence under Sections 498-A, 147, 504, 506 IPC and 3/4 Dowry Prohibition Act is not made out. Magistrate, therefore, has rightly exercised its power. No ground for interference in revisional jurisdiction is made out.
  5. Dismissed. Interim order, if any, stands vacated.
  6. Certify this judgment to the lower Court immediately.

Order Date :- 13.5.2016

AK

Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow.

Disclaimer

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from http://elegalix.allahabadhighcourt.in/ 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 http://elegalix.allahabadhighcourt.in/ WEB SITE with necessary Emphasis, Re formatting
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498a 406 DV cocktail 27 years after marriage on scientist husband. UP HC quashes 498a, talks of misuse!

  • Marriage in November 1986
  • Two children aged approx 27 years and 20 years out of wedlock
  • Husband a doctorate and scientist. Couple have lived abraod and in India
  • After approx 25 years couple split and wife has filed 498A, DV, maintenance cocktail on husband
  • In addition to getting Rs 15000 p,m. and 170000 from husband, wife files 498a, 406, 323, 504 case in 2013 !! yes 27 years later
  • The learned Magistrate, passed summoning order in a mechanical manner !
  • Husband runs to HC for quash (after approaching apex court !!).
  • HC orders “…application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed…”

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

Court No. – 22

Case :- U/S 482/378/407 No. – 5246 of 2013

Applicant :- Dr. Bijoy Kundu
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- Rohit Tripathi,Chandra Bhushan Pandey
Counsel for Opposite Party :- Govt. Advocate,Saurabh Mishra

Hon’ble Mahendra Dayal,J.

This application under Section 482 Cr.P.C., has been filed for quashing of the summoning order dated 16.07.2013 passed in Criminal Case No.45/2013, under Sections 498-A, 323, 504, 506 and 406 IPC, by the Court of Judicial Magistrate, Court No.35, Lucknow, whereby the applicant has been summoned to face trial. A prayer has also been made for quashing of the entire proceedings of the aforesaid criminal case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The brief facts are that the applicant and the opposite party No.2 are husband and wife. The marriage between them was solemnized in the month of November, 1986. The applicant is working on the post of Chief Scientist in C.D.R.I., Lucknow. Two sons were born out of the wedlock. The first son is a Computer Engineer and is aged about 27 years, while the second son is aged about 20 years. It was in the year 1989-1991 that the applicant visited United States and stayed there for a considerable period. During his stay at United States, he pursued the opposite party No.2 to take admission in the M.B.A. Course. He also took her to several countries. However, despite all efforts from the side of the applicant, the opposite party No.2 neglected the applicant and some times abused him also by calling him illegitimate child of his parents. The applicant was ultimately forced to move out from his own house in the month of March, 2012 on account of cruelty from the side of the opposite party No.2 and since then both of them have been living separately. The opposite party No.2 also filed a suit for divorce in the year 2012 on the ground of cruelty and desertion. She also filed a case under the Domestic Violence Act and also claimed maintenance under Section 125 Cr.P.C. The Court fixed monthly maintenance of Rs.15,000/- as an interim measure and the applicant paid a sum of Rs.1,70,000/- to the opposite party No.2 towards maintenance allowance. In order to further harass the applicant, the opposite party No.2 filed an application under Section 156(3) Cr.P.C., which was treated as complaint case. The learned Magistrate, after following the procedure of the complaint case, passed the impugned summoning order in a mechanical manner. There was absolutely no material to attract the offence of Section 406 IPC. There is also no material on record to attract the offence of Sections 498-A, 504 or 506 IPC. The impugned summoning order, passed by the learned Magistrate, therefore, suffers from manifest error of law and is liable to be set aside.

Learned counsel for the opposite party No.2 has filed counter affidavit and has stated therein that the entire facts narrated in the complaint are true and on the basis of the allegations, the charges under Sections 498-A, 323, 504, 506 and 406 IPC are fully made out. The applicant after having acquired control over the movable or immovable properties belonging to the opposite party No.2, has misappropriated the property and has left her to face destitution. The opposite party No.2 has no source of income. It has further been averred that the opposite party No.2 has half share in a plot at Sector-H, Aliganj, Lucknow, which is measuring 2200 sq. ft., but in order to misappropriate the share of the opposite party No.2, the applicant sold the entire plot without the knowledge and consent of the opposite party No.2. Several other allegations have been made in the counter affidavit to show that the applicant had committed the offence of misappropriation of property. The submission on behalf of the opposite party No.2 is that on the basis of the allegations made in the complaint and the statement, the learned Magistrate has rightly passed the summoning order and there is no sufficient ground for quashing of the summoning order.

A perusal of the record reveals that while entertaining this application under Section 482 Cr.P.C., this Court vide order dated 24.10.2013 directed that no coercive measure shall be taken against the applicant. Since the aforesaid order could not be extended from some reason, the applicant moved an application on 18.09.2014 making request that the interim order granted on 24.10.2013 be extended. A Coordinate Bench of this Court while passing order on this application, provided that the applicant may apply for bail before the trial court within three weeks and the trial court shall decide his bail application on the same day considering that the applicant is a public servant. This order was passed considering the fact that merely by directing that no coercive measure shall be taken against the applicant, would not amount to stay of the proceedings.

Feeling aggrieved by this order, the applicant approached the Hon’ble Apex Court and the Hon’ble Apex Court on 10.10.2014 passed an order that the earlier order passed by this Court on 24.10.2013 shall stand restored. The special leave petition filed by the applicant was disposed of by Hon’ble the Apex Court on 11.01.2016 requesting this Court to dispose of the application under Section 482 Cr.P.C., within a period of six weeks, from the date of communication of the order. The said order of Hon’ble the Apex Court was placed on record on this Court on 01.02.2016.

Learned counsel for the applicant has relied upon several decisions of Hon’ble the Apex Court to show that no offence under Section 406 IPC or Section 498-A IPC is made out against the applicant. One of such case law relied upon by the applicant is reported in (2010) 68 ACC Page 246 – Bhaskar Lal Sharma and another vs. Monica. In this case, Hon’ble the Apex Court has held that the essential ingredient to attract the offence of Section 498-A IPC is that the complainant must make allegations of harassment to meet unlawful demand of dowry or any unlawful conduct on the part of the accused which is likely to drive woman to commit suicide or to cause grave injury or danger to life limb or health. The only allegation that the accused kicked the complainant with her leg and told her that her mother was a liar, does not make out an offence under Section 498-A IPC. For the offence of Section 406 IPC, Hon’ble the Apex Court has held that the essential ingredients for establishing an offence, are entrusting any person with property or with any dominion over property and the person entrusted dishonestly misappropriating on converting to his own use that property or willfully suffering any other persons so to do. Hon’ble the Apex Court has held that in the absence of essential ingredients, no offence under Sections 498-A and 406 IPC would be made out. Hon’ble the Apex Court on the basis of the aforesaid observations passed an order quashing the summoning order.

For invoking of the power under Section 482 Cr.P.C., to quash the summoning order or the proceedings of the complaint case, the applicant has placed reliance on a decision of the Hon’ble Apex Court reported in (2006) 6 SCC Page 736 – Indian Oil Corporation vs. NEPC India Ltd. & Ors. In this case, Hon’ble the Apex Court has held that if the allegations in the complaint, taken on their face value, disclose a criminal offence, the complaint cannot be quashed merely because it relates to a commercial transaction or breach of contract for which civil remedy is available. However, if it is found that frivolous criminal complaint has been filed knowing well that remedy lies only in civil law, the person who filed such complaint should be made accountable, in accordance with law at the end of such proceedings.

Another case law relied upon by the applicant is reported in (2013) 3 SCC Page 330 – Rajiv Thapar & Ors. vs. Madan Lal Kapoor. In this case, Hon’ble the Apex Court has held that the discretion vested in the High Court under Section 482 Cr.P.C., can be exercised to prevent the abuse of process of law and to secure the ends of justice. The High Court can exercise its jurisdiction himself and make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the complainant against the accused. To invoke the inherent jurisdiction, the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his defence is based on sound and reasonable facts.

In the background of the aforesaid legal principles of law, this Court after examining the contents of the complaint, finds that the marriage between the applicant and the opposite party No.2 took place in the year 1986 and after the birth of two sons in the year 1987 and 1993 respectively, the differences arose between them. The opposite party No.2 started making serious allegations against her husband and simultaneously filed several cases, one for divorce, one under Domestic Violence Act and one under Section 125 Cr.P.C. The fourth case is the present one, in which, the impugned summoning order has been passed. After such a long gap, making demand of dowry and harassment for demand of dowry, is not only highly improbable, but it is also not established from the allegations. It is not disputed between the parties that after differences between them, both of them started living separately. The applicant took a rented flat in Metro City, Lucknow. The allegations with regard to extending threats do not at all attract the offence of Section 498-A IPC. The allegations made by the opposite party No.2 in her complaint are inadequate to show that there was any demand of dowry on the part of the applicant. The object of enactment of Section 498-A IPC is to prevent the custom for demanding dowry. It has also been experienced by the courts that the provisions of Section 498-A IPC is misused in order to take revenge or exert pressure on the other side for some ulterior motive. The jurisdiction of the High Court to quash the summoning order in such cases should be exercised where it appears that the provision is being misused. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

So far as the offence of Section 406 IPC is concerned, the only allegation against the applicant is that the opposite party No.2 was having half share in a plot of land which the applicant sold without her knowledge and consent. This averment made by the opposite party No.2 does not make out the offence of Section 406 IPC because the essential ingredients of entrustment is missing, which is necessary for attracting the offence of criminal misappropriation. Moreover, the opposite party No.2 has an alternative remedy before the civil court in case her right in the immovable property has been affected.

So far as the other offences under Section 323, 504, 506 IPC are concerned, there is absolutely no evidence to attract those offences also. A perusal of the impugned order reveals that the learned Magistrate in a technical manner and without considering as to whether any prima-facie offence is made out against the applicant, passed the impugned summoning order, which is erroneous for the reason that the learned Magistrate has not recorded his satisfaction that the aforesaid offences are made out against the applicant. It is unfortunate on the part of the parties that even after twenty years of marriage and having two adult sons, they are litigating in such a manner making serious allegations against each other. Both the parties belong to a respected family and the applicant is holding a very high position and is facing several cases.

After having considered the contents of the complaint and the law on the subject as discussed above and the impugned summoning order, I am of the view that none of the offences, as indicated in the impugned summoning order, are made out against the applicant and as such the impugned order is manifestly erroneous and is liable to be set aside.

In the result, the application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed.

Order Date :- 5th May, 2016

Rakesh/-

*****************************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 Allahabad HC site with necessary Emphasis, Re formatting


Wife with blind vagina, unable to consummate, also makes wild allegations. Marriage Null & void. All HC

Husband gets married after his first divorce to this woman who does NOT disclose her physical infirmities before the marriage. After marriage the husband understands that wife is unable to consummate the marriage (i.e. have physical intercourse) as she has a blind vagina. In spite of the husband making various efforts to consummate the marriage, there is no success. Wife also goes on to make wild allegations on the husband (claims that husband tried to have sex with her sister !!). Parties live apart for many years.Husband wins the case for NULLITY of marriage both at the first appellate court and also at Allahabad HC

the crux of the matter is … “…. opposite party was not able to have intercourse as her vaginal passage was closed and she was not able consummate marriage and discharge her duties of a wife. In spite of many efforts, physical relationship could not be established between the parties. Before her marriage with petitioner, opposite-party had also married earlier but she had never informed the petitioner about her physical problems and concealed true facts. Therefore, petitioner had filed petition for declaration of their marriage void under Sections 12 (1)(a) and 12 (1)(c) of Hindu Marriage Act….”

In addition to her infirmities, “…during proceedings of the trial court, appellant-wife had refused for getting herself medically examined; then the fact of her impotency and inability in sexual acts could be proved by medical certificates and other evidences, as has been proved…”

However the woman contends “…Learned counsel for the appellant contended that since petitioner-respondent (husband) had already three children from his earlier marriage, so he had re-married only for taking care of his children and not for sexual satisfaction. He also contended that this finding of lower appellate court is incorrect that appellant-wife was not fit for co-habitation because there was no such medical report…”

Still on appreciation of facts, and the actions of the wife, the lower appellate court and the Allhabad HC rule that the marriage is NULL and void !!

The HC also highlights that the wife has NOT specifically denied her physical disabilities and her evasive denial is not sufficient to support her stand (i.e.) husband’s stand remains un rebutted

It is pertinent to note that the Trial court , i.e. Additional Civil Judge (Senior Division)[/ Judge Small Cause], Ghaziabad, had originally dismissed the husband’s petition, but has successfully fought his way to success


Allahabad High Court

Smt. Sulekha vs Ashok Kumar on 14 March, 2016

Bench: Pramod Kumar Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD

Case :-     SECOND APPEAL No. – 239 of 2016

Appellant     :-     Smt. Sulekha
Respondent     :-     Ashok Kumar
Counsel for Appellant :- Santosh Tripathi
Counsel for Respondent :- Ram Krishna Koli

Hon’ble Pramod Kumar Srivastava,.

  1. Heard learned counsel for the parties on admission of second appeal and perused the records.
  2. Matrimonial Petition No. 3077/2010, Ashok Kumar v. Smt. Sulekha was filed by husband against his wife for declaring their marriage void. In said petition, it was pleaded that it was arranged marriage when petitioner Ashok Kumar had entered into second matrimony after divorce with his first wife. He married with opposite party Sulekha on 7.1.2010 and thereafter started living with her. But opposite party was not able to have intercourse as her vaginal passage was closed and she was not able consummate marriage and discharge her duties of a wife. In spite of many efforts, physical relationship could not be established between the parties. Before her marriage with petitioner, opposite-party had also married earlier but she had never informed the petitioner about her physical problems and concealed true facts. Therefore, petitioner had filed petition for declaration of their marriage void under Sections 12 (1)(a) and 12 (1)(c) of Hindu Marriage Act.
  3. Opposite-party had filed written-statement in original case, in which she pleaded that petitioner is aged about 45 years and had three children from his first wife, he wanted to marry the opposite-party for taking care of his children and for managing house hold affairs. Petitioner had no importance of physical disabilities of opposite-party and of her being able to be mother. Sometimes after marriage, petitioner had started treating her with cruelty. His petition is liable to be dismissed.
  4. Trial court had framed issues, accepted evidences of the parties and then court of Additional Civil Judge (Senior Division)[/ Judge Small Cause], Ghaziabad had passed judgment dated 22.5.2013, by which petition for dissolution of marriage was dismissed. Trial court had discussed the fact as to whether opposite-party/wife was able to have physical relationship with petitioner and was able for sexual intercourse. Learned Civil Judge had held that only medical expert opinion can prove as to whether opposite party-wife is able to have physical intercourse or not, and since applicant had not arranged medical examination of opposite party, therefore his statement in that regard cannot be accepted to be true. In absence of such medical examination, his case is not proved that his petition is dismissed.
  5. Against the judgment of trial court, petitioner had preferred Civil Appeal No. 129/2013, which was heard and allowed by the judgment dated 23.1.2016 of Additional District Judge, Court No. 7, Ghaziabad. By this judgment, judgment of trial court dated 22.5.2013 was set aside and marriage of parties was annulled. In this judgment, lower appellate court had independently appreciated evidences of the parties and considered this fact that petitioner-husband had made application for medical examination of opposite-party/wife in Gynecology Department of Medical College for examination for ascertaining as to whether she is able to have sexual intercourse in physical relationship or not, but it was the opposite party-wife who had not co-operated and declined such test; so her medical examination could not be performed. Lower appellate court had also appreciated the fact that in written-statement and her statement, the opposite-party/wife had stated that she had informed that before this marriage that she was not able to give birth to children and become mother, but she had not specifically denied that she was unable to have physical sexual relationship. After appreciating the evidences, lower appellate court had held that opposite-party/wife had a blind vagina and was not able to consummate and have physical relationship. It was also held by lower appellate court that although petitioner had knowledge that opposite party was not able to become mother, but he had married for physical comfort, and he had no knowledge of the impotency of his wife. The court had held that being not able to have physical relationship and intercourse, and having blind vagina comes within category of impotence. With these findings, lower appellate court had set aside the findings of trial court, allowed the appeal and annulled the marriage of the parties.
  6. Against the judgment of lower appellate court, present second appeal has been preferred by opposite party-wife of the original petition.
  7. Learned counsel for the appellant contended that since petitioner-respondent (husband) had already three children from his earlier marriage, so he had re-married only for taking care of his children and not for sexual satisfaction. He also contended that this finding of lower appellate court is incorrect that appellant-wife was not fit for co-habitation because there was no such medical report. He contended that judgment of first appeal is based on presumption and not on facts; therefore appeal should be admitted for being allowed.
  8. Learned counsel for the respondent refuted the contentions of the appellant side and contended that the document 27-C of original record is medical certificate which proves that appellant-wife was unable to have physical or sexual relation with her husband-respondent. He also contended that appellant-wife was not sexually fit to perform his duties of a wife, and it is not denied that she had not informed this fact to petitioner-respondent before the marriage. He also argued that during proceedings of the trial court, appellant-wife had refused for getting herself medically examined; then the fact of her impotency and inability in sexual acts could be proved by medical certificates and other evidences, as has been proved. His contention was that there is no error or illegality in judgment of lower appellate court. The finding of fact given by lower appellate court is not infirm or erroneous. Therefore, appeal should be dismissed.
  9. A perusal of records reveal that parties are living separately for about several years and there appears no chances of reconciliation and their reunion. In her written-statement, appellant had levelled charges of cruel animal bahaviour as well as of unnatural sexual acts against her husband. Then she had also levelled allegation that during her illness her husband-respondent used to have physical relationship with her sister by using force. Thus, it appears that parties are living separately for more than several years, and after their several wild allegations were inflicted by appellant-wife against her husband-respondent that had worsen the situation and made the possibility of matrimonial relationship impossible. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  10. Apart from it, appellant had been trying to prove that her husband-respondent had married with her for taking care of his children and not for physical relationship, and he had not importance for physical inability of appellant to have sexual relations; but these facts could not be proved by her. Even this fact was not specifically pleaded in written-statement of appellant that she was not impotent or had informed the petitioner about her physical disability to consummate.
  11. Rules 3, 4 and 5 of Order VIII CPC reads as under:
    • 3. Denial to be specific-– It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
    • 4. Evasive denial-Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance, Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
    • 5. Specific denial-(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :”
  12. So far the allegation of impotency of appellant-wife and her inability to have physical and sexual relationship is concerned, this fact is specifically mentioned in petition/plaint but were not specifically denied in written-statement filed by opposite party/appellant. In her statement, opposite-party/appellant had vaguely end evasively denied the facts of petition/plaint on this point, but had nowhere specifically pleaded that she is physically and sexually fit and has been able to makes consummation of the marriage possible, or have sexual relationship with husband. Such non-specific denial technically amounts to admission on part of opposite party-defendant on these points. Rule-3 of Order VIII CPC provides it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. Under Rule-4 such evasive denial shall not be sufficient to be taken up as denial. On this ground alone, main allegation of alleged impotency and inability of appellant to have physical relationship should have been taken to be admitted by the lower court. Absence of specific denial of such facts should be treated as their non-denial and admission. Since there is no pleading of defendant-appellant that she was not impotent or was able to have physical relationship with her husband. There is no averment in her written statement that she had informed petitioner about her physical inability to consummate; therefore, in absence of such pleading her oral evidence could not be accepted on these points.
  13. Apart from it, the lower appellate court had considered those points also, which were ignored by trial court. The learned Additional District Judge had considered the facts that request of petitioner-husband for medico legal examination of defendant-wife could not be materialized because of non-cooperation of wife-appellant herself who had declined to undergo such examination. Respondent-husband had given other evidences, which were appreciated by the lower appellate court in light of other circumstances, and on the basis of which finding was given by first appellate court that appellant-wife was not able to have physical relationship with husband, and she is impotent.
  14. While the appellant filed the application on the ground that the respondent was impotent and material facts relating to marriage were concealed. The concerning provision of the Act under which the application was filed by the appellant is Section 12(1)(a) and (c) of Hindu Marriage Act which is as follows:
    • 12 (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: 
    • (a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; ; or
    • (b) * * *; or 
    • (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent;
    • * * *”
  15. In Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279 Hon’ble Apex Court had held as under:  “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.”
  16. There is the evidence of the respondent that he went on making attempts on several occasions for consummation of the marriage but had never been successful due to repugnance to the sexual act by appellant due to her physical condition that made consummation impossible. It was never specifically denied in pleading (written-statement) of appellant that the husband was potent and that he had made frequent attempts to consummate the marriage; but could not succeed owing to the physical inability of the wife. Under those circumstances the conclusion to be drawn from the evidence was that the wife’s refusal was due to physical inability of consummation and, as such, the husband was entitled to a decree of nullity. It is evident that the marriage had not been consummated and parties could not cohabit in future also. Therefore the marriage should be annulled for the reason that these people cannot consummate the marriage. The two people should not be tied up together for the rest of their lives in a state of misery.
  17. In these circumstances, and also the fact that there has been long separation between the parties, during which appellant had been levelling wild allegations of infidelity on her husband, there appears no possibility of compromise. Such allegations and acts of appellant after their separation amounts to cruelty, which may be a ground of divorce but these grounds surfaced after separation of the parties, but cannot be out rightly ignored at the time of consideration of circumstances. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  18. The only question to be determined in this matter was as to whether petitioner-respondent is entitled for relief of annulment of his marriage with respondent on ground of impotency and that his consent for marriage was obtained by fraud as to any material fact or circumstance concerning the respondent. This was not a question of law, but has been a question of fact that can be decided on basis of pleadings evidences, as has been done by lower court. The findings of lower appellate court in this regard are not infirm or perverse. So the same cannot be interfered in second appeal by re-appreciation of evidences.
  19. On examination of reasonings recorded by the learned first appellate court in first appeal, I am of the view that its judgment is well reasoned and based upon proper appreciation of entire evidences on record. No perversity or infirmity is found in the finding of fact recorded by the first appellate court to warrant interference through this appeal. No question of law, much less a substantial question of law, is involved in the case before this Court. None of the contentions of learned counsel for the defendant-appellant can be sustained.
  20. In view of the above this second appeal is dismissed.
    Order Date :-
    14.03.2016

    SR

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