Category Archives: Bombay HC

Hon HC is very concerned that wife’s getting ONLY 84 LAKHS from 498a quash & settlement. ONLY 84 lakhs !

Hon HC says it repeatedly checked with the wife before she agreed to take ONLY 84 lakhs …… before quasing 498a etc cocktail !!

By the way, she filed a 498a cocktail to get the settlement done !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1260 OF 2017
1. Nipul Chandravadan Panchal,
Age 40 years, Occ: Architect

2. Mrs. Neela Chandravadan Panchal,
Age 63 years, Occ: Housewife

3. Chandravadan Panchal,
Age 70 years, Occ: No

Residing at 302, Mary Anne Heights, 3rd Road, GPS III, Opp: Cafe-Coffee Day,
Santacruz (East), Mumbai-400 055. …. Petitioners

– Versus –

1. The State of Maharashtra

2. Mrs. Vaishali Nipul Panchal,
Age 36 years, Occ: Service,
R/a Room No.7, Building No.1,
Kangra Bhavan, 232, Dr. Anny
Besent Road, Opp: Potdaar
Hospital, Warli, Mumbai. …. Respondents
Mr. P.R. Yadav i/by Ms Priyanka Dubey for the Petitioners.
Dr. F.R. Shaikh, APP, for the Respondent-State.
Mr. D.V. Saroj for Respondent No.2.
CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.

DATE : APRIL 07, 2017 ORAL JUDGMENT

(Per Shri S.C. DHARMADHIKARI, J.) :

 

  1. 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for final disposal.
  2. 2. The complainant Vaishali is present in Court. She admits that on 4-6-2015 her statement was recorded by the concerned police station, namely, Vakola Police Station, Mumbai and an FIR was registered. The FIR No.254/2015 alleges offences punishable under Sections 498A, 406, 341, 504, 323 and 34 of the Indian Penal Code.
  3. 3. A request is made by the accused including the husband of the respondent/original complainant to quash this FIR.
  4. 4. The only contention raised in support of this petition is that, this is a fall out of a matrimonial dispute. That discord and dispute led to the husband approaching the Family Court at Bandra, Mumbai with a petition seeking divorce. That petition bearing No.A-1425 of 2015 was later on sought to be converted into a petition and a joint one. The relief was altered to that of a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
  5. 5. Our attention has been invited to the Consent Terms tendered in the Family Court and the altered Consent Terms. Pages 77 to 84 of the paper-book have been perused by us carefully. One of the clauses in the Consent Terms postulates that the sum deposited in the account and mentioned in the Terms cannot be withdrawn by the complainant/wife unless she agrees to quashing of this criminal proceedings.
  6. 6. The nature of this settlement and which prima facie appears to us to be one sided, compelled us to call upon the Advocate appearing for the second respondent/complainant to request her to remain present.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  7. 7. She has remained present and has tendered an affidavit confirming the above arrangement.
  8. 8. She says that she is completely familiar and can speak and equally read and write in English language. She has perused the affidavit. That is drafted as per her instructions and reflects the position correctly.
  9. 9. Though she is not aware of the legal proceedings and provisions, we have sufficiently clarified to her that the affidavit being tendered on record and the prosecution being quashed on the ground that it is purely a private one arising out of a strained matrimonial relationship, then, she would have waived her rights which she has as wife and stated to be voluntarily. We called upon her and repeatedly, whether this arrangement and as reflected in the affidavit is arrived at willingly and her consent is free and unequivocal.
  10. 10. This query was raised by us especially because there are rights of a child, a minor son at the relevant time aged eight years. The custody of this minor son is handed over to the wife. The mother is now going to fend for herself in a City like Mumbai with only a sum of Rs.84 lakhs, that too deposited in the Bank account and as permanent alimony. The same is full and final settlement for all claims of the wife/mother including for permanent alimony. No separate amounts are provided for the child as well.
  11. 11. Upon our limited questioning, she says that she wants an end to all these proceedings and desires to resume her life with her son. She wants nothing more from the in-laws or the husband.
  12. 12. Once she repeatedly says that she is agreeable to the criminal prosecution being quashed and with the above understanding as well, then, we have no alternative but to quash this criminal prosecution which is a fall out of a dispute between the husband and wife, a direct impact after the complaint for domestic violence was lodged, the husband’s petition for Divorce. Then going by this settlement and which is confirmed, we allow the petition. Rule is made absolute in terms of prayer clause (a). No order as to costs.
  13. 13. The consequence being not only the FIR is quashed but even the criminal case and charge-sheet which is filed in the Court of the Metropolitan Magistrate, 71st Court, Bandra, Mumbai.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  14. 14. However, since the complainant/wife says that in the interest of her child as also on account of her lack of faith, trust and love for the husband, the criminal prosecution should be quashed and she is ready for the same, in the event the Family Court’s jurisdiction under Section 26 of the Hindu Marriage Act, 1955 r/w Section 114 of the Code of Civil Procedure, 1908 is invoked for variation or modification of the Terms and particularly the clause for payment, our order passed today quashing the criminal prosecution shall not be an impediment for the Family Court to exercise its jurisdiction and in accordance with law. Clarifying thus, the petition is allowed.

 

(PRAKASH D. NAIK, J.)

(S.C. DHARMADHIKARI, J.)


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


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Hiding wife’s mental illness ground for annulling marriage. Bombay HC

Wife hides mental illness b4 marriage & unable to continue in marriage. Lower court annuls marriage. Bombay HC affirms the same. Even though wife claims (in her WS) that she has disclosed her entire medical file to the husband before marriage, the HC refuses to buy that argument

Sections referred :

Section 12(1)(c) in The Hindu Marriage Act, 1955
Section 25 in The Hindu Marriage Act, 1955
Section 12 in The Hindu Marriage Act, 1955
Section 5(ii)(c) in The Hindu Marriage Act, 1955
Section 5 in The Hindu Marriage Act, 1955


Bombay High Court

Vandana J. Kasliwal vs Jitendra N. Kasliwal on 28 September, 2006

Equivalent citations: AIR 2007 Bom 115, II (2007) DMC 227

Author: P Borkar
Bench: N Dabholkar, P Borkar

JUDGMENT P.R. Borkar, J.

 

  1. 1. This is an appeal, preferred by a wife, whose marriage with the respondent was annulled by the decree passed on 31-3-2004, by the learned Principal Judge, Family Court, Aurangabad, in Petition No. 73 of 2003.
  2. 2. Brief facts leading to the decision may be stated as follows. It is no more disputed that marriage of the appellant and the respondent was solemnized on 5-1-2003 at Aurangabad. The marriage was performed as per the custom in the Digambar Sect of Jainism. The respondent/husband was a graduate and doing service as an accountant. The respondent/husband filed petition for annulment of marriage with averments that as per the custom in the community, the bride wears Parda at the time of marriage. The behaviour of the appellant bride was not normal. However, it was staled that she was sleepless and, therefore, the abnormal behaviour might be a temporary phase.
  3. 3. It is averred that at the time of MuhDekhi ceremony, the bridegroom is supposed to offer some gifts in the form of gold ornament to the bride and when the respondent/husband offered a gold chain to the appellant, she refused to accept the same and behaved in abnormal way. She even refused to give any response to the advances made by the respondent/husband and unbolted the bed-room and joined the sisters of the respondent/husband, which was even a rude shock to the sisters. They pushed the appellant into the bed room again. On the next day, attempts for consummation of marriage made also went in vain. There was a ceremony called “Churma”. She was staring at a fixed point keeping pallu of the sari loose and it was not as per the custom. Her behaviour showed that some thing was being concealed. After three days, the father and sister of the appellant/wife came to take the appellant away. They were informed about the abnormal behaviour of the appellant/wife and to have medical advise. On 8-1-2003, which was the fourth day after the marriage, the respondent/husband and the appellant’s father and sister had taken the appellant to Dr. Barhale. At that time Dr. Barhale asked the father of the appellant/ wife what was new problem and Dr. Barhale also disclosed that already the appellant/ wife was his patient since June, 1997 and the medication was continued. From Dr. Barhale, the respondent/husband and his family came to know that the appellant was suffering from acute schizophrenia which was incurable and categorized as, “acexcerbation.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  4. 4. It was alleged by the respondent/husband, who was original petitioner in the trial Court that the appellant/wife was suffering from Schizophrenia which was incurable. The said fact was suppressed by the appellant’s family. It is also alleged that the marriage was not consummated. With these averments, the petition for annulment of marriage was filed in the Family Court at Aurangabad.
  5. 5. The appellant/wife filed the written statement denying the allegations that the marriage was not consummated or that there was any concealment. It is denied that the appellant was suffering from any mental disease or schizophrenia which is incurable. It is alleged that it was a settled marriage. The appellant/wife was meritorious student throughout her career in school and college. However, due to some mishap in the final year examination of graduation, she failed in one subject and there was some mental stress and, therefore, medical aid was provided to the appellant/wife. But even thereafter, the appellant/wife was serving in private sector in different departments and was getting income and that itself showed that the behaviour of the appellant/wife was very much right and she was not having any mental disorder.
  6. 6. It is further stated in the written statement that the parents of the appellant had given complete understanding about the treatment and illness of the appellant before settling the marriage. They had handed over the entire file of the prescriptions advised by doctors and thereafter only the present respondent/husband had consented for the marriage. It is further contended that on the next day of the marriage itself, the cousin brother of the appellant/ wife had talked with her on telephone and from that time, the respondent/husband and members of his family started making heinous allegations raising doubts about her character and, therefore, the appellant was disturbed, but she still tolerated all the acts and the conduct. She was treated with cruelty and she was forcibly brought to the house of her father. It is because of lust for money and due to doubts regarding character of the appellant/wife, the false petition was filed.
  7. 7. The learned Principal Judge, Family Court, Aurangabad considered the evidence on record, particularly those of two doctors examined and the circumstances of the case and passed the decree of nullity.
  8. 8. The case of the appellant is covered by Section 12(l)(c) of the Hindu Marriage Act, 1955 (for short, “the Act of 1955”). Section 12(1) of the Act of 1955 reads thus: 12. Voidable marriages :– (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 marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; 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]. (Emphasis supplied) At the time of the arguments before us, the learned Advocate for the respondent has specifically stated that the case of the respondent is covered by Section 12(1)(c) of the Act of 1955, quoted above.
  9. 9. The learned Advocate for the respondent argued that if we consider the written statement filed by the appellant/wife, it is in three parts. In the first part, mental illness was denied and it is stated that it was a case of temporary mental stress. In the second part, again it is stated that due to failure in the last year examination of graduation, there was mental stress and, therefore, medical aid was given, and that before the marriage, entire file of prescriptions was handed over to the party of bridegroom and, thereafter, consent for the marriage was given. In the last part of the written statement, it is alleged that the reason for filing the petition was the telephonic talk of the appellant/wife with her maternal cousin which gave rise to suspicion and it is added that the lust for money was one of the reasons for giving rise to the petition. We have to consider whether this version can be accepted.
  10. 10. It is worth noting that the marriage was solemnized on 5-1-2003. On 8-1-2003 i.e. on the fourth day, the appellant/wife was taken to Dr. Barhale and she was under treatment for couple of days. So, this short period of 3 to 4 days rules out any possibility for petition being filed out of lust for money. In the written statement, it is stated that for the marriage, the father of the appellant/wife had spent about Rs. 3 to 3.30 lac. So, it is improbable that within such a short period there will be any lust for money and that the money could be the reason for filing the petition. Moreover, it is nowhere stated that any particular sum was demanded or any dissatisfaction was expressed for non-fulfilment of any demand.
  11. 11. It is also argued before us that sofar as the so called suspicion and torture because of the talk of the appellant/wife with her cousin brother on telephone is concerned, it will have to be considered whether it was a plausible and reasonable explanation.
  12. 12. In the trial Court, the respondent/ husband is examined on oath at Exh. 14 and he stated that it was an arranged marriage. One Mr. Gangwal was the mediator. There is nothing on the record to show that the families knew each other prior to the marriage, though both families were residing at Aurangabad at the time of the marriage. The native place of the family of the respondent/husband was Waradi, Tq. Sangamner; whereas the family of the appellant/wife is native of Maliwadgaon. It has also come in the cross-examination that 7 years before the deposition on 2-1-2004, the respondent/husband came to reside at Aurangabad. It is denied that Mr. Gangwal had given any information. It was disclosed that before the marriage, the appellant/wife was serving for 2 to 3 years in some departmental stores. The respondent/husband deposed that no lady member was with them when the respondent’s side had gone to see the appellant/wife. It is also stated that for the first time the respondent/husband saw the appellant on 31-12-2002 and on 5-1-2003 there was marriage. So, within five days the marriage was solemnized. This is relevant while considering fraud by concealment of material fact or circumstance concerning the appellant/wife, within the meaning of Section 12(1)(c) of the Act of 1955.
  13. 13. The parties mainly deposed as per their pleadings. As per the respondent/husband, when they had taken the appellant/ wife to the hospital, at that time the doctor gave him original file. It is denied that prior to the marriage the file of the prescriptions was given to the husband’s sides and that with full knowledge the marriage had taken place. Whereas it is stated by the father of the appellant/wife examined at Exh. 40 that he had handed over the original papers of prescriptions of Dr. Barhale to the father of the respondent and thereafter the proposal for the marriage was accepted. It is argued before us that the name of the doctor was not disclosed prior to filing of the petition. Even, name of Dr. Barhale was not disclosed and that is why, we find, a question put to the appellant Vandana in paragraph 11 of her cross-examination as to whether she was taking treatment of Dr. Patil and she stated that she was not taking treatment of Dr. Patil. This has a relevance to contents of the reply sent which is produced at Exh. 15.
  14. 14. We may consider the evidence of the doctors first. Dr. Anil Kale is examined at Exh, 22. He is specialist in Psychiatry. He stated that the appellant Vandana had come to him for treatment and he gave prescription Exh. 23. He has given treatment for psychosis which is a mental illness. There was change in behaviour and thus before coming to his hospital the appellant Vandana had taken treatment of Dr. Barhale and he had also seen papers of said treatment. Dr. Kale stated that her illness might be due to biological, psychological or environmental causes. He further stated that only once the appellant Vandana had approached his hospital and that he had come to such a conclusion as per the history given by the patient and on her examination. Therefore, we can say that Dr. Anand Kale had no opportunity to examine and observe the behaviour of the appellant Vandana except once. On the other hand, the appellant Vandana had visited Dr. Barhale several times and for long periods.
  15. 15. Dr. Kale has stated in cross-examination that Schizophrenia comes under psychosis and if proper treatment is given, the patient may give response to it. He further stated that if recovery is there, patient is in a position to give marital happiness and/or perform matrimonial obligations. So, this opinion of Dr. Kale is based on one time examination and what is stated is a general proposition that if a patient responds to the treatment and recovers, the patient is in a position to give marital happiness and to perform all matrimonial obligations. Dr. Kale even admitted that when he interviewed, the appellant was under influence of previous medication. This is material when we consider the opinion of doctors, and we find, the evidence of Dr. Barhale more reliable, as Dr. Barhale had several occasions to examine the appellant, observe her behaviour, give her treatment and see the effect of medication prescribed by him. Though, Dr. Kale has stated that torture of a newly married girl, by allegation that she is of a loose character comes under environmental cause, it is still a general proposition, not necessarily applicable to the appellant. It is not the say of Dr. Kale that in the history given to him, the appellant had made out a case of torture and /or of allegations of loose character by her inlaws. It is worth noting that only for three days the appellant lived with the respondent and on the fourth day after marriage she was taken to Dr. Barhale for treatment and this conduct fortifies that there must be abnormal behaviour which led the respondent and the members of his family to take the appellant to a Psychiatrist. It is worth noting that while taking the appellant to Dr. Barhale, the father and the sister of the appellant had accompanied her. Dr. Kale also admitted that the appellant patient was not in a position to giye interview because she was under influence of medication. Therefore, the evidence of Dr. Kale is not much helpful. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  16. 16. On the other hand, Dr. Vinay Barhale; examined at Exh. 27, has stated that from 30-6-2002, as per the available record, the appellant was under his treatment. It can be said that even before that, the appellant had visited his hospital. The appellant was suffering from Schizophrenia. She was in hospital from 30-6-2002 to 20-7-2002. Dr. Barhale stated that she was admitted; in the hospital due to irritability, uncooperativeness and hostility. He gave medicines and electro convulsive therapy. Dr. Barhale further stated that probably before 5 to 6 years, the appellant had come to him for treatment. Dr. Barhale was shown the discharge card and the prescriptions which were proved at Exhs. 28 to 30. Dr. Barhale has stated that those were the prescriptions for schizophrenia disease and that due to the medicines the symptoms were controlled. He also stated that schizophrenia is a treatable disease. When the appellant approached him from time to time, she was recovered 90 per cent or more and that she could lead the marital life. However, at the same time he stated that Schizophrenia is a continuous disease, which can be kept under control with the help of continuous medicines. So, in that sense, Schizophrenia is incurable disease. Dr. Barhale has specifically stated that schizophrenia is not a curable disease. He further stated that mental distress may be one of the causes for schizophrenia.
  17. 17. The respondent/husband examined his sister Manisha at Exh. 32 to support his case. Manisha has stated that the behaviour of the appellant was not normal. On the 1st night after the marriage when all guests went to sleep and when she, her sister and others were chitchatting in the hall, the appellant had come out of the room and sat with them in the hall. Manisha stated that her sister reached the appellant back to the room.
  18. 18. Appellant Vandana did state in her statement that on fourth day after marriage, there was phone call from her cousin brother. He was making enquiries regarding her and she talked with him for 10 to 15 minutes. The respondent made inquiries with her and then the respondent started suspecting her character. The fourth day was 8-1-2003 after the marriage. It was the day, on which the appellant was taken to Dr. Barhale. So, the story of suspicion due to telephonic talk and the allegations of torture appears to be concocted and false.
  19. 19. In the cross-examination, appellant Vandana has stated that 7 to 8 years prior to recording of her deposition on 21 -2-2004, she was taking treatment of Dr. Barhale and two years before the marriage she was taking treatment for mental illness. Her parents financial condition was weak, so she wanted to do service. As she was not getting good service, she was having mental tension. This falsifies the allegation that false petition was filed by the respondent due to lust of money. The appellant Vandana further stated that she did service for three years, but it was not to her liking and, therefore, she had mental tension. She also admitted that for 8 days she was admitted in the hospital as indoor patient.
  20. 20. The appellant Vandana further stated that one Tarachand Gangwal, who was the mediator, was a friend of her father. She alleged that it was Tarachand Gangwal who had dragged and reached her at the house of her father. She also stated that she had told the respondent regarding the telephonic talk between herself and her brother Pradeep. Then she has specifically admitted that the respondent has not made allegations that she had illicit relations with Pradeep and that (he had not promised that) he would not disclose the same if her father gave more money. This statement made by the appellant clearly falsifies the defence of alleged suspicion and ill-treatment. She has also specifically stated that the respondent or has father did not demand money and that there was no dispute over money.
  21. 21. Taking into consideration all the circumstances, it is very clear that the mental illness, which requires continuous medication and due to which there was irritability, unco-operativeness and hostility on the part of the appellant/wife and which is incurable, is something which is a material fact or the circumstance concurring the present appellant. In the clinical history given at Exh. 31, it was mentioned that the appellant had come to the hospital of Dr. Barhale as she was overtalkative, abusive, irritable, angry, biting to any one, not mixing with people, talking on one topic, crying, shouting, trying to run away, biting to mother, laughing to herself, not working at home. If these were the symptoms of the mental illness, we cannot say that the mental illness of the appellant was a fact, which need not have been disclosed or which was not material. Therefore, concealment of such thing is definitely a fraud within the meaning of Section 12(l)(c) of the Act of 1955. Such bahaviour materially affects the marital life, so also tranquillity and happiness in the home.
  22. 22. The learned Counsel for the respondent cited the case of Smt. Kiran Bala Ashthana v. Bhaire Prasad Shrivastava . In that case, it Is observed that: If it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(a) of Hindu Marriage Act, notwithstanding its sacramental character. We agree with the said observations in para 11 in the above case.
  23. 23. In this case, the respondent, who is a normal young man, graduate working as an accountant and earning, would not have consented to marry a girl having background of such mental illness, had he known about the said fact before the marriage. No special reason was disclosed. We are more inclined to believe the words of the respondent/husband that the papers regarding prescriptions and discharge card were handed over to him by Dr. Barhale, rather than by the father of the appellant/wife prior to the marriage. In our opinion, the said theory put forward by the appellant was unnatural and improbable.
  24. 24. Section 12(1)(b) r/w Section 5(ii)(c) of the Act of 1955 was also argued by the learned Counsel for the appellant, but the learned Counsel for the respondent has chosen to restrict his case to Section 12(1)(c) of the Act of 1955, as stated earlier. From the evidence of the appellant Vandana, we can also say that the present case falls under Section 5(ii)(c) r/w Section 12(l)(b) of the Act of 1955, as there were recurring attacks of insanity and the appellant had taken treatment of Dr. Barhale prior to and after the marriage and she was also indoor patient. In this case, the other conditions as laid down in Section 12(2) of the Act of 1955 are satisfied sofar as ground under Section 12(1)(c) of the Act of 1955 is concerned. The petition for annulment was filed on 17-2-2003 and the marriage had taken place on 5-1 -2003. Thus, the petition was filed within one and half months’ of the marriage. This is not a case where the respondent has with his full consent lived with the appellant after the fraud had been discovered.
  25. 25. The case of Raghunath Gopal Daftardar v. Sau Vijaya Raghunath Daftardar is relied upon by the learned Counsel for the appellant. In that case, it is observed that: Mere non-disclosure prior to marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of that word used in Section 12(1)(c). It is also observed that: Section 17 of the Indian Contract Act, 1872 does not apply to a case of fraud under Section 12(1)(c) of the Hindu Marriage Act, 1955. In our considered opinion, though marriage is sacrosanct, it requires consent of both spouses or their guardians, if spouses are not capable of giving consent, and it must be a free consent and in that sense, we have to consider whether the consent was given voluntarily. Here aid of definition of fraud, even from the Indian Contract Act, 1872 need not be overlooked and we, therefore, respectfully differ from the view taken by the single Judge in the case of Raghunath Gopal (supra), that mere non-disclosure prior to the marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of the word used in Section 12(1)(c) of Hindu Marriage Act, 1955. If regard be had to Section 12(1)(c) of the Act of 1955, it is clear that if a fact or circumstance is so material as to affect decision of giving consent to marriage and if there is fraud regarding the same, may be by express words or even by concealment, then, marriage could be annulled. However, we hasten to make it clear that it is not every fact or circumstance which would be covered by the provision, but it must be substantially something which goes to the root of the matter, which definitely would weigh with any prudent person to change his mind. It must not be easily detectable. The Court would be very circumspect, cautious and pragmatic in identifying such fact or circumstance. In this case, the first part of the written statement itself shows that when query regarding abnormal behaviour of the appellant was made during marriage ceremony, it was stated that it might be because of mental stress due to failure in the examination and for want of sleep. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  26. 26. We may also refer to a Division Bench judgment of this Court in the case of Chandrakala alias Vandana Subhash Gaokhandkar v. Subhash Dhondiba Gaokhandkar 1994 (2) Mh LR 490. In that case, the wife was suffering from leprosy since prior to marriage, though not virulent and incurable. The said fact was not brought to the notice of the husband before marriage. It was held that there was fraud committed by wife upon the husband and that declaration of annulment of marriage between the husband and the wife under Section 12(1)(c) of Hindu Marriage Act, 1955 was justified. The case, as para 4 discloses, is one of fraud by non-disclosure of material fact, So, in the circumstances of the case, we hold that this is not a case where interference in appeal is called for.
  27. 27. It is argued before us that alimony may be awarded under Section 25 of the Act of 1955. No doubt, the Court while exercising Jurisdiction under Hindu Marriage Act, 1955, may, at the time of passing any decree or at any time subsequent thereto, on application made to it, order maintenance – any such gross sum or such monthly or periodical sum as permanent alimony or maintenance. However, while considering such application, regard has to be made to the respondent’s own income, other property, the income and property of the applicant, the conduct of the parties and other circumstances of the case. In this case, the learned Counsel for the appellant has argued that this Court can pass an order under Section 25 of the Act of 1955. Reliance was placed on the case of Smt. Rajeshbai v. Smt. Shantabai . It is pointed out by the learned Counsel for the respondent that no application for permanent alimony or maintenance was made in the trial Court or in this Court. There was no such issue and, therefore, the parties, particularly the respondent had no opportunity to bring on record the necessary evidence as contemplated by Section 25 of the Act of 1955. The evidence on record does not disclose the income and the abilities of the husband. Therefore, in the absence of necessary evidence and material on record, we give liberty to the appellant to make separate application under Section 25 of the Act of 1955, if so advised. In view of the above circumstances, the appeal must fall.
  28. 28. In the result, appeal is dismissed. The parties are directed to bear their own costs.


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

Wife says ” I want to marry an old boyfriend”, husband wins divorce 28 years later !

Husband goes to USA in search of greener pastures. Wife sends him a nasty latter saying that she wants divorce and wants to get married to her ex boyfriend !! Not only that she NEVER makes any attempt to live with him the next five years. At the court she claims that the letter was a bluff to force him to come back !! The HC grants grants the husband divorce …ableit 28 years later


Wife’s letter talking of divorce, remarriage an act of cruelty: HC

Abhinav Garg | TNN | Feb 22, 2016, 03.15 AM IST

images

NEW DELHI: A single letter can constitute an act of cruelty, the Delhi high court has said, granting divorce to a man living separately from his estranged wife for the past 28 years.

The missive in question: a declaration by his angry wife in 1990 when he was stationed abroad that she wanted to divorce him and that she had found an old friend who wanted to marry her and accept her with their young daughter.

It was only in 1995, when the case came up in trial court, that she admitted the letter didn’t contain a grain of truth and was only meant to jolt the husband out of his complacency. But Justice Najmi Waziri of the high court pointed out the mental agony caused to the husband due to “this sole act of cruelty that continued for a period of 4-5 years”.

Upholding the decision of the trial court to dissolve the marriage on ground of cruelty, Justice Waziri noted, “For a husband living away from his wife since 1987, to have received a letter from her intimating him about her unequivocal decision to dissolve the marriage and marry another man would have been a pain as grievous as any to endure. Such an element of rejection, coupled with brunt of emotional infidelity by the wife, can break the spirit of the husband to continue marital ties.”

Challenging the decision in high court, the wife argued that the letter was a “one-off, stray incident and could not be a ground for divorce”. She said it was an act of despair, the letter was written in sheer frustration since she had been waiting for many years to live with her husband again, abroad or back home. There was no friend, no prospect of marriage; in fact, she had made up a fictional name just to “shake up” her husband. Besides, she argued, there was not a single act of violence on her part for the charge of cruelty to pass muster.

Appearing for the husband, advocate Manjit Singh Ahluwalia countered her argument, saying she did think of divorce as she drew up an affidavit to finalise her legal plan. The high court highlighted that the letter was written in 1990 while the divorce was granted five years later but during this period she never tried to explain to her husband why she had written the latter.

The high court said the husband would have suffered acute mental agony by the letter “that the wife had found someone to replace him as her husband”. It took into account the stand of the wife that the letter was a mere threat but said its import “could only evoke pain, distress, rejection and self-doubt in any reasonable husband” and termed it as a “telling testimony of cruelty”.

 

source

times of India

RAPE, cheating on 7 ppl of boy’s famly Bcaz engagement canceld! BombayHC fines police, quashes case!!

When an engagement is cancelled girl goes on to file rape (sec 376) & cheating (sec 417) on the boy , his sisters, his Uncle, Aunt etc. Boy’s Uncle and aunt, who are doctors by profession are denied AB and arrested though they are NOT involved in the rape case !! (in jail for approx 14 days !) All this is AFTER Arnesh Kumar case Judgement by Hon Apex court. Later they seek regular bail and that is ALSO delayed in spite of HC directions (at the time of bail) . Finally Hon HC quashes the RAPE case (now) against all relatives other than the boy and also imposes costs on the state government for illegal detention.

“….26. It is pertinent to note that though the offence was registered under section 376 and 417 IPC, the FIR does not spell out any allegations of rape against the petitioner Nos.3 and 4. The Investigating Officer has stated in her affidavit that on 4.04.2015 she had received an application from the Respondent no.2 alleging that the petitioners no.3 and 4 had threatened her and that she apprehends threat to her life. It may be mentioned that no crime has been registered against these petitioners for threatening the Respondent no.2. These petitioners were implicated in the crime only on the allegation that they had influenced the petitioner no.1 in calling off the marriage and had thereby committed an offence of cheating punishable under section 417 of the IPC. Based on these allegations, these petitioners were arrested on 8.06.2015…..”

“…..27. It is pertinent to note that the offence under section 417 is bailable and is punishable with imprisonment for one year, or fine or both, despite which these two petitioners were arrested and remanded to custody from time to time. Needless to state that the power of arrest as well as the power to remand cannot be exercised in a casual manner…..”

“…31. Reverting to the present case, though the Investigating officer has stated in the affidavit that the guidelines as laid down by the Apex Court in the arrest of Accused were followed at the time of arrest, a perusal of the case diary reveals that the directions in Arnesh Kumar (supra) have not been followed. The concerned investigating officer had arrested the petitioners no.3 and 4 without ascertaining their complicity in the offence. Though the offence was bailable, these petitioners were produced before the Magistrate and remand was sought for “the purpose of ascertaining the reason for calling off the marriage, for verifying whether the other relatives were involved, to verify whether these petitioners were involved in cheating any other person and for arresting the co-accused Annasaheb Jadhav”. The records reveal that the learned magistrate had also mechanically remanded them to custody from time to time without even ascertaining the nature of the allegations against these petitioners…..”


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.1252 OF 2015

1. Bharat Devdan Salvi
Age 27 years, Occ: Business,
res. at Sarita Sangam Apartment,
Kasarwadi, Pune.

2. Smt. Teressa Devdan Salvi,
Age 48 years, Occ: Household,
R/at. Sarita Sangam Apartment,
Kasarwadi, Pune

3. Mary Ajay Kumawat
Age 29 years, Occ: Doctor,
res. at Man, Hinjewadi,
Pune

4. Shri Ajay Govind Kumawat
Age 34 years, Occ: Doctor,
res. at Man, Hindewadi,
Pune.

5. Shri Annasaheb Shankar Jadhav
Age 47 years, Occ: Agriculturist,
Res. at Newasa, Ahmednagar

6. Shri Madhukar Motiram Salvi,
Age 52 years,
Res. at Newasa, Ahmednagar

7. Sou. Paridhan Madhukar Salvi,
Age 52 years, Occ: Household,
Res. at Newasa, Ahmednagar                                 ..Petitioners
(Org. Accused )

v/s.

1. The State of Maharashtra
through Senior Police Inspector,
Bhosari Police Station,
Bhosari, Pune.

2.  Miss Luisa Petaras Jadhav,
Age adult, Occ: Household,
res. of Nyay Nagar, Galli No.8,
Ghar No.444, Garkheda Parisar,

Aurangabad                                  ..Respondents

Ms. Kshitija G. Sarangi  for the Petitioner.
Mr.S.S.Shinde,   PP   a/w.   Mrs.   S.V.Sonawane,
APP   for   the Respondent/State.

Mr. Satyavrat Joshi for the Respondent No.2.

CORAM : RANJIT MORE & SMT. ANUJA PRABHUDESSAI, JJ.

Date of Reserving the order: 17th July, 2015
Date of Pronouncement: 20th January, 2016

JUDGMENT ( Per Anuja Prabhudessai, J.) :

  1. Rule. Rule made returnable forthwith with the consent of the parties.
  2. This is a petition filed under article 226 of the constitution r/w section 482 of the Code of Criminal Procedure for quashing the C.R. No.46 of 2015 registered with Bhosari Police Station, Pune, for the offences punishable under sections 376 and 417 r/w. 34 of the IPC
  3. The brief facts necessary to decide this petition are as under:- The Respondent No.2 who was to marry the Petitioner No.1 had lodged the FIR dated 15.2.2015 alleging that on 9.12.2014, the Petitioner No.1 had sexual intercourse with her against her will and without her consent. The Respondent No.2 further alleged that subsequently the Petitioner No.1 and his family members called off the marriage and thereby cheated her.
  4. Ms. Kshitija Sarangi, the learned counsel for the Petitioners has submitted that the FIR does not disclose offence under section 375 or 415 IPC. She has submitted that the marriage was called off in view of the lack of compatibility between the Petitioner No.1 and the Respondent No.2. She has further submitted that the Petitioner Nos.2 to 7 being the family members of the Petitioner No.1 were present at the time of finalising the marriage and they are not involved in commission of any offence as alleged. The learned counsel for the Petitioners has submitted that the allegations in the FIR do not disclose any offence and continuation of the proceedings will be abuse of process of law.
  5. Mr. Shinde, the learned APP has submitted that the material on record prima facie shows the involvement of the Petitioner No.1. He fairly concedes that the material on record does not show the involvement of the Petitioner Nos.2 to 7 in commission of the offence under section 376 or 417 of the IPC.
  6. Mr. Satyavrat Joshi, the learned counsel for the Respondent No.2 has submitted that the Petitioner No.1 had sexual intercourse with the Respondent No.2 under a false promise of marriage. He has further submitted that by calling off the marriage, the Petitioner No.1 and his family members have cheated the Respondent No.2. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  7. We have perused the records and considered the submissions advanced by the learned counsel for the Petitioners, the learned counsel for the Respondent No.2 and the learned APP for the Respondent No.1-State.
  8. The legal principles in regard to quashing of first information report had been considered by the Hon’ble Apex Court in State of Haryana & Ors. V/s. Bhajanlal & Ors. 1992 SUPP (1) SCC 335 and several other subsequent decisions. Recently in Rishipal Singh Vs. State of U.P. & Anr (2014) 7 SCC 215 the Apex Court while considering the scope and ambit of section 482 of the Cr.P.C. has held that “A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C.
  9. The Apex Court after considering the previous pronouncements has reiterated the guidelines with regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C. – “What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact.”
  10. The present case needs to be examined in the backdrop of the above mentioned principles. A plain reading of the FIR reveals that the Respondent No.2 was to marry the Petitioner No.1, who is otherwise related to her. Their engagement ceremony was held on 12.9.2014 in presence of their respective family members including the Petitioner Nos.3 and 4, the sister and brother-in-law and the Petitioner Nos.5, 6 and 7, the maternal uncles and aunt of the Petitioner No.1.
  11. The Respondent No.2 had alleged that on 2.12.2014 she had visited her cousin at Pune. On 9.12.2014 she visited the Petitioner No.2, her would be mother-in-law, at Pune. The Petitioner No.2 persuaded her to wait till the Petitioner No.1 returned home from the work place. The Petitioner No.1 came home at about 9.00 p.m. and since it was late, the Petitioner No.2 advised the Respondent No.2 to stay over. The Respondent No.2 has alleged that on the same night when she was going to the room of her mother-in-law to sleep, the Petitioner No.1 took her to his room and had sexual intercourse with her against her wish and despite her resistance by assuring her that they would be marrying soon. She has stated that the Petitioner No.1 threatened to call off the marriage if she disclosed the incident to anyone.
  12. The Respondent No.2 has further alleged that since the Petitioners avoided finalising the wedding date, she went to his work place on 24.01.2015 and questioned him about the same. There was an altercation between her and the Petitioner No.1 over the said issue. On 10.02.2015, the uncle of the Petitioner No.1 called her and her parents to Chisban village to fix the wedding date. However, instead of fixing the wedding date, they called off the marriage in view of the incident of 24.1.2015. The Respondent No. 2 claimed that petitioners have cheated her and her family by calling off the marriage without any reason. Based on these allegations the aforestated crime has been registered against above Petitioners for offences punishable under sections 376 and 417 of the IPC.
  13. It may be mentioned that to constitute an offence of ‘rape’ as defined under section 375 of the Indian Penal Code, the act must be covered by any of the six clauses of section 375 of the Indian Penal Code. In order to constitute rape under the first and second clause of Section 375, which are relevant for the purpose of this case, sexual intercourse has to be against the will and without the consent of the woman.
    • In State Of U.P vs Chhotey Lal (2011) 2 SCC 550 the Apex Court has held that:”The expressions `against her will’ and `without her consent’ may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression `against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression `without her consent’ would  comprehend an act of reason accompanied by deliberation.
    • In State of H.P. v.   Mango Ram, a 3 Judge Bench of this Court while dealing with the aspect of `consent’ for the purposes of Section 375 IPC held at page 230 of the Report as under:“Submission of the body under the fear of terror cannot be construedas a consented sexual act. Consent for the purpose of Section 375requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent.Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” and, the expression `without her consent’ would comprehend an act of reason accompanied by deliberation.”
  14. The averments in the FIR need to be examined in the backdrop of the above legal position. The Respondent no.2 was engaged to the petitioner no.1. A plain reading of the FIR reveals on the relevant night, when the Respondent no. 2 had visited the Petitioner No.1 at his residence at Pune, the petitioner no. 1 had tried to get intimate with her. When she resisted and told him that it was not appropriate, the petitioner no.1 told her that they would soon be getting married. She has alleged that despite her resistance, the petitioner no.1 had forcible sexual intercourse with her against her will. She has stated that when she cried, the petitioner no.1 threatened to call off the marriage if she disclosed the incident to any one.
  15. The allegations in the FIR prima facie indicate that the respondent no.2 had not consented to and was not willing to enter into a physical relationship, despite which the petitioner no.1 had forcible sexual intercourse with the Respondent no.2 against her wishes. The medical evidence is also prima facie suggestive of sexual intercourse. The allegations prime facie constitutes ‘rape’ under Clause 1 and 2 of sec.375. The question whether it was a case of passive submission under psychological pressure or whether it was a result of tacit consent are the questions which will have to be finally decided on analysis of evidence. Suffice it to state that quashing the FIR in respect of the offence under Section 376 against the petitioner no.1 at this stage would amount to rejecting the accusation made by the respondent no.2 without giving her any opportunity to prove the said allegations. Hence, the prosecution for the offence punishable under Section 376 of IPC cannot be quashed qua the petitioner no.1.
  16. It is pertinent to note that the Petitioner Nos. 2 to 7 are the family members of the Petitioner No.1. There are no allegations in the FIR that these Petitioners had either aided or abetted the Petitioner No.1 in commission of offence under section 376 of the IPC. The only allegation against these Petitioners is that they had called off the marriage between the Petitioner No.1 and the Respondent No.2 and had thereby cheated the Respondent No.2. It is in the light of these allegations the offence under section 417 r/w. 34 of the IPC has been registered against the Petitioner No.1 and his family members.
  17. “Cheating” is defined under Section 415 of the IPC which reads as under:-“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat” .
  18. The Honourable Supreme Court in G.V.Rao v. L.H.V.Prasad (2000) page 693 has held as under:“As mentioned above, Section 415 has two parts. While in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575 = 1956 Crl.L.J. 1611 = 1956 SCR 483, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, “mens rea” on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of West Bengal, AIR 1954 SC 724 = 1954 Cr.L.J. 1806, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. Thus, so far as second part of Section 415 is concerned, “property”, at no stage, is involved. Here it is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should have suffered or was likely to suffer damage or harm in body, mind, reputation or property”
  19. In the instant case, the allegations in the complaint are that the petitioner no.1 had sexual intercourse with the respondent no.2 against her wishes, by stating that they would be marrying soon and later the petitioner no.1 and his family viz. petitioner nos.2 to 7 called off the marriage and thereby cheated the respondent no.2. The FIR reveals that the imputations of cheating are made only because the Petitioners had called off the marriage. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  20. In Hridaya Ranjan Prasad Verma vs. State of Bihar (2000) 4 SCC 168 the Apex Court has held that:“in determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise”.
  21. In the instant case, the FIR reveals that the marriage of the Petitioner No.1 and the Respondent No.2 was finalised by their parents and other family members and their engagement ceremony was held on 12.9.2014. The FIR does not indicate that the Petitioner No.1 from the very inception did not have intention to marry the respondent no.2. The FIR does not indicate that the Petitioner No.1 had obtained the consent of the Respondent No.2 and had induced her into entering into a physical relationship by making a false promise of marriage without having intention or inclination to marry her. The fact that the Petitioner No.1 subsequently refused to marry her would not lead to an inference that from the very inception the Petitioner No.1 did not intend to marrying her.
  22. The records reveal that the marriage of the Petitioner No.1 and the Respondent no.2 was called off after the incident of 24.1.2015 when the Respondent No.2 had visited the workplace of the Petitioner No.1 and quarreled with him over non finalizing of the date of the marriage. A mere breach of promise of marriage or calling off the marriage due to non compatibility or for any such reason would not per se constitute an offence under section 415 of the IPC, particularly when the FIR does not state that the Petitioner No.1 and his family members had deceived the Respondent No.2 or intentionally induced her to do any such act which was likely to cause damage or harm to the respondent no.2.
  23. The allegations made in the FIR therefore, do not attract the ingredient of section 415 of the IPC and consequently do not constitute offence punishable under section 417 of the IPC. This being the case, the petitioners cannot be prosecuted for the offence punishable under section 417 r/w. 34 of the IPC.
  24. At this stage, we would like to state that upon registration of C.R. No.46 of 2015 the Petitioner Nos.3 and 4 being the sister and brother-in-law of the Petitioner No.1 had filed an application for anticipatory bail. The said application was dismissed on the ground that no offence was registered against them. Suffice is to say that the registration of offence is not a sine qua non for entertaining an application for anticipatory bail. The only requirement is a reasonable apprehension of arrest in a non-bailable offence.
  25. Be that as it may, upon dismissal of the said application for anticipatory bail, these two petitioners were arrested on 7.6.2015. They had filed an application for regular bail on 9.6.2015 being Bail Application No.1917 of 2015 before the learned Additional Sessions Judge, Pune. By order dated 17th June, 2015, this Court had directed the learned Sessions Judge to dispose of the said application as early as possible and possibly on 19.6.2015 itself. Said order was not complied with. Considering the fact that the FIR did not disclose any offence against these two Petitioners, who are Doctor by profession, this Court by order dated 24th June, 2015 ordered to release them on bail.
  26. It is pertinent to note that though the offence was registered under section 376 and 417 IPC, the FIR does not spell out any allegations of rape against the petitioner Nos.3 and 4. The Investigating Officer has stated in her affidavit that on 4.04.2015 she had received an application from the Respondent no.2 alleging that the petitioners no.3 and 4 had threatened her and that she apprehends threat to her life. It may be mentioned that no crime has been registered against these petitioners for threatening the Respondent no.2. These petitioners were implicated in the crime only on the allegation that they had influenced the petitioner no.1 in calling off the marriage and had thereby committed an offence of cheating punishable under section 417 of the IPC. Based on these allegations, these petitioners were arrested on 8.06.2015.
  27. It is pertinent to note that the offence under section 417 is bailable and is punishable with imprisonment for one year, or fine or both, despite which these two petitioners were arrested and remanded to custody from time to time. Needless to state that the power of arrest as well as the power to remand cannot be exercised in a casual manner.
  28. In Joginder Kumar v. State of U.P. & Ors. (1994) 4 SCC 260, the Apex Court has emphasized that: “No arrest can be made because it is lawful for the police officer to do so. The existence of the powers to arrest is one thing. The justification for the exercise of it is quite another . The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner or on a mere allegation of commission of an offence made against a person . It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter.”
  29. In the case of Arnesh Kumar v. State of Bihar & Anr. (2014) 8 SCC 273, the Apex Court after considering the scope of Section 41 of Cr.P.C. has held as under:  “7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.”
  30. Upon considering the scope of Section 41A of Cr.P.C. and while emphasizing the need to ensure that the police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically the Apex Court has given following directions:
    • “……11.1. All the State Government to instruct its police officers not to automatically arrest when the case under Section 498A of IPC is registered, but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.
    • 11.2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b) (ii);
    • 11.3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
    • 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
    • 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
    • 11.6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
    • 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction;
    • 11.8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. ;
    • 12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”
  31. Reverting to the present case, though the Investigating officer has stated in the affidavit that the guidelines as laid down by the Apex Court in the arrest of Accused were followed at the time of arrest, a perusal of the case diary reveals that the directions in Arnesh Kumar (supra) have not been followed. The concerned investigating officer had arrested the petitioners no.3 and 4 without ascertaining their complicity in the offence. Though the offence was bailable, these petitioners were produced before the Magistrate and remand was sought for “the purpose of ascertaining the reason for calling off the marriage, for verifying whether the other relatives were involved, to verify whether these petitioners were involved in cheating any other person and for arresting the co-accused Annasaheb Jadhav”. The records reveal that the learned magistrate had also mechanically remanded them to custody from time to time without even ascertaining the nature of the allegations against these petitioners.
  32. The petitioners no.3 and 4 had filed the bail application before the sessions court on 9.6.2015. The learned Sessions Judge had called for the say of the prosecution on 19.6.2015. By order dated 17.06.2015 the learned Judge was directed to dispose of the application on 19.06.2015 itself. The learned Judge did not dispose of the application and adjourned the same to 22.6.2015. On 24.06.2015 the learned counsel for the petitioners made a statement that on 19.6.2015 the counsel for the petitioners and the learned APP were present in the court and despite the request to hear the bail application, the learned Judge was reluctant to hear the application and had adjourned the hearing to 22.06.2015. It was further stated that the counsel for the petitioners had appeared before the court on 22.06.2015 and that she was informed that the bail application would be heard in the afternoon session. However, by 12 p.m. she was informed that the learned Judge had proceeded on leave on medical grounds and the hearing of the bail application was further adjourned.In view of the above statement, this court by order dated 24.6.2015 ordered to release the petitioners on bail. The Principal District Sessions Judge, Pune was directed to submit the report to this court.
  33. We have perused the report and the explanation tendered by the learned Judge, and the same in our view is not satisfactory. The bail application was filed on 09.06.2015 and was opposed on the same grounds as stated in the remand application. The learned Judge failed to consider that there were no allegations of rape against these petitioners and the only allegation were of offence punishable under Section 417 IPC. The learned Judge had adjourned the hearing on 19.6.2015, merely on the statement of the APP that the offence was of serious nature. Despite the direction to dispose of the bail application on 19.06.2015, and despite the offence being bailable offence, the failure of the learned Judge to dispose of the application expeditiously has also resulted in illegal detention of the petitioners in custody from 7th June, 2015 to 24th June, 2015. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  34. It is indeed a matter of great concern that despite the offence being bailable, the Investigating agency, the Judicial Magistrate as well as the Sessions Court were responsible for detaining the aforesaid petitioners in custody from 7.6.2015 to 24.6.2015 in total contravention of the directions of the Apex Court in Arnesh Kumar (supra) and in violation of the fundamental rights of the petitioner nos.3 and 4.
  35. Hence we deem it fit to direct an enquiry agianst the errant police officers, as well as the concerned judicial officers, in accordance with the directions of the Apex Court in Arnesh Kumar (para 11.7 and 11.8.supra). The petitioner nos.3 and 4 are at liberty to file appropriate proceedings for compensation, if they so desire.
  36. Under the circumstances and in view of discussion supra, we pass the following order:-
    • (i) The petition is partly allowed, with costs of Rs.50,000/- to be paid to the petitioner nos.3 and 4.
    • (ii) The C.R.No.46 of 2015 registered at Bhosari Police Station, Pune, is quashed qua the Petitioner Nos.2 to 7 and quashed qua the petitioner no.1 only in respect of the offence under section 417 r/w 34 of the IPC.;
    • (iii) The registry is directed to forward copy of this order to the Commissioner of Police, Pune. The Commissioner of Police, Pune to enquire into the matter of illegal detention and to fix the responsibility and to take disciplinary action against the erring police officers.;
    • (iv) The respondent no.1 shall recover the costs of Rs.50,000/- from the erring police officers.;
    • (v) The inquiry and action taken report be filed before this court within four months from the date of receipt of this order.;
    • (vi) A copy of this order be forwarded to the Registrar General, High Court, to be placed before the Honourable The Chief Justice, Bombay High Court.

(ANUJA PRABHUDESSAI, J.)                        (RANJIT MORE, J.)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Perjury case against Lying wife (that she’s unemployed)! Fraud & justice can’t dwell together. BombayHC

Wife claims she is un employed, that it is an embarrassment to depend on her parents for livelihood etc and claims interim maintenance. It turns out that the woman is working as a teacher and earning approx 7000 p.m. Husband submits proof of her employment. As she lied before the court, Bombay HC orders the registrar of the family court to file a perjury case against her !!

Excerpts :
“…..While submitting the application for interim maintenance, the respondent-wife has taken oath and she has sworn affidavit on the application itself. This goes to show that she has made false averments knowingly in a Court proceeding. In such circumstances, prima facie, the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code are attracted. Because of the false statements made by the respondent in her application for interim maintenance, this Court is misled and misguided and therefore, the petitioner has suffered and he was directed to pay maintenance at the rate of Rs.20,000/- per month. ….”

“….The Deputy Registrar of Family Court, Bandra, Mumbai, is directed to file complaint against the respondent-wife in competent Court, for the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code….”


IN THE FAMILY COURT MUMBAI AT BANDRA

PETITION NO.A-2050 OF 2010

Mr. Niraj Shah … Petitioner

Vs.

Mrs. Nikita Shah … Respondent

CORAM : HIS HONOUR JUDGE

SHRI. S. R. KAFRE

DATED : 24 th DECEMBER, 2013 .

ORDER

  1. This is an application filed by the petitioner for taking action for perjury against respondent-wife.
  2. According to the petitioner he has filed this petition for decree of divorce. The respondent had filed interim application for maintenance pendentelite on 28-4-2011 stating in para No.10 of said application, “I have no source of income and have become burden on my parents, it is embarrassing and ridiculous situation as I am being compelled to depend upon parents for my daily needs, after marriage”. The respondent has also mentioned, “I do not have any other source of income.”
  3. According to the petitioner, the respondent used to work as a Teacher in a school prior to her marriage is admitted position. The petitioner had filed an application for review of order by producing documentary proof that the respondent is working as a school Teacher and her photograph appears in the magazine of the school. The respondent is doing a job as a pre-primary Teacher at Thakur Public School, Kandivali (E) and having permanent job and also having bank account in Saraswat Bank, Kandivali (E) Branch, vide salary account No.4963957. The respondent had refused to produce any document in spite of the petitioner has filed on record the book published by the school, where the respondent is working as a Teacher. The respondent has filed her affidavit as per the direction of this Court, which speaks abut her employment. It is admitted that she was working full-time and getting Rs.7500/- per month but in spite of calling upon her to produce her bank statement and income proof, she refrained from doing so.
  4. According to the petitioner, after the witness summons and a document brought on record, it is revealed by the order of this Court dated 7-5-2013 that the respondent is a liar and she obtained the interim maintenance order by misguiding this Court by purposefully stating lie on oath and concealing the material fact by not producing documents which are in her possession and made the petitioner to suffer. Therefore, the petitioner has requested for taking legal action against the respondent under the provisions of Section 195 and Section 340 of Criminal Procedure Code.
  5. After filing of this application, my learned predecessor has passed order dated 3-7-2013 of issuance of notice under Section 340 of Criminal Procedure Code. The copy of this application was given to the respondent on the same day i.e. on 3-7-2013. On 5-8-2013 the learned Advocate for the respondent had made a remark on the overleaf of the application that she will argue, she does not want to give written reply.
  6. I have heard learned Advocate Smt. Usha Tanna for the petitioner and learned Advocate Smt. Jivan Vijay for the respondentwife. The learned Advocate for the petitioner has vehemently argued that, though the respondent has source of income, she has made false averments in her application that she did not have any source of income. She has sworn affidavit with false contents. The learned Advocate has further submitted that while deciding the review application of the husband, this Court has made observations in respect of the false averments made by the respondent and therefore, it is necessary to initiate action of perjury against the respondent-wife.
  7. Smt. Jivan Vijay, learned Advocate, appearing for the respondent-wife has submitted that false accusations are made against the respondent. She has filed her documents on record and in view of modified order, the quantum of the maintenance was reduced and this Court, while deciding the review application, has imposed exemplary cost of Rs.5000/- on the respondent and therefore already action is taken against the respondent. Now, there is no need to proceed against the respondent under the provisions of Code of Criminal Procedure. The learned Advocate for the respondent has further submitted that there was no malice or intention to mislead this Court and the bonafide mistake of the respondent be excused. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  8. I have given my thoughtful consideration to the submissions canvassed by the learned Advocates for both the parties.
  9. The provisions of Chapter XXVI of Code of Criminal Procedure deal with offences affecting the administration of justice. Section 195 of said Code speaks about prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The provisions of Section 340 of the Code reads as under :
    • “Procedure in cases mentioned in Section 195- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
    • (a) record a finding to that effect;
    • (b) make a complaint thereof in writing;
    • (c ) send it to a Magistrate of the first class having jurisdiction;
    • (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
    • (e) bind over any person to appear and give evidence before such Magistrate.
    • (2) The power conferred on a Court by sub-Section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-Section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.
    • (3) A complaint made under this section shall be signed,-
    • (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
    • (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
    • (4) In this section, “Court” has the same meaning as in Section 195.”
  10. In the case in hand the petitioner-husband has filed main petition for divorce under the provisions of Section 13(1)(ia) of Hindu Marriage Act. The respondent has submitted written statement at Exh.12. After the appearance of the respondent, both the parties were referred to the Marriage Counsellor for exploring the possibility of reconciliation and amicable settlement. However, no reconciliation or amicable settlement had taken place. Even after hearing of the argument of present application at Exh.56, I had referred both the parties to Judge Mediator, to work out the settlement between the parties. However, the parties could not come to terms and accordingly Judge Mediator has submitted the report.
  11. The respondent had filed interim application No.162 of 2011 (Exh.13) for interim maintenance under the provisions of Section 24 of Hindu Marriage Act. Said application was contested by the petitioner. Said application was decided on 2-3-2012 by my learned predecessor and interim maintenance at the rate of Rs.20,000/- per month was granted to the respondent, from the date of said application i.e. 28-4-2011. The respondent was also given litigation cost of Rs.20,000/-.
  12. On 11-5-2012 the petitioner had filed application for review and/or cancellation of maintenance order dated 2-3-2012. The said application was resisted by the respondent by filing her reply on Exh.32 and after hearing both the parties, the said application was decided on 7-5-2013. In view of that order, the quantum of maintenance granted to the respondent was reduced from Rs.20,000/- per month to Rs.13,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  13. In the original interim maintenance application at Exh.13 in para No.10 the respondent has stated that she has no source of income and has become burden on her parents, it is embarrassing and ridiculous situation as she being compelled to depend upon parents for her daily needs, after marriage. Further, in para No.13 of said application the respondent has stated that she is a simple graduate and cannot earn her livelihood and it is the duty of the petitioner to provide for the same. While replying these averments, the petitioner had stated in para No.8 of his reply at Exh.17 that the respondent is well educated and accomplish and qualified graduate with expertise in teaching institution and was employed in Nursery Institution and thus the respondent was capable of maintaining herself and what was stated by her is not true.
  14. Now, it is necessary to see what observations are made by my learned predecessor while deciding the review application at Exh.30, in respect of the income of the respondent-wife. The observations made in para No.10 of said order runs as under :
    • “While disposing interim maintenance application, this Court in para No.4 has observed that there is no record before Court to believe that respondent-wife is an earning member. This observation was based upon statement of respondent and also from the circumstance that there was no record before Court to prove the earning of the respondent. The documents which are referred herein in this order clearly reveal that on the date of passing of the order and on the date of moving an application for interim maintenance, respondent was an earning member, so respondent has misguided this Court to believe that she do not have any income. She has suppressed vital information from the Court that she is earning about Rs.6804/- by being working as a Pre-primary Teacher in a school”.
  15. It is settled position of law that while determining quantum of maintenance the regard shall be had to the status and position of the parties, income of both the parties, reasonable wants of the claimant and number of persons dependent upon the payer. The provisions of maintenance are benevolent provisions. These provisions are made to prevent vagrancy of destitute wife and the minor children. The person who is liable to maintain his dependents, has to provide maintenance to his dependents, so that they can keep their soul and body together and they should not face any problem in their day-to-day life. The needy persons are entitled to get the basic requirements like food, shelter and clothes from the person who is liable to maintain them as per the provisions of law.
  16. It is settled principle of law that he who seeks equity, must do equity. The fraud and justice cannot dwell together. The justice seeker must step in the Court with clean hands. The dishonest person cannot be entertained by the Court of law. In matrimonial matters persons come with their family problems before the Court and Court makes every possible attempt to find out solution of their problems. In such circumstances, it is the first and foremost responsibility of the party to tell the truth to the Court, so that Court can go to the root of the matter to solve the real dispute. There should not be game of hide and seek when justice is sought from the Court of law. All the Dharmashastras teach us “… सथ्यम वद …” “Tell the truth”. Foundation of every case must be on true and honest disclosure of facts. No place can be given to lies or falsehood during the course of administration of justice. The person who comes to the Court i.e. house of justice, to seek justice, has to show his bonafides and honesty by making true disclosure of the facts within his knowledge.
  17. Here it has been established that the respondent-wife has suppressed vital information from the Court that she is earning about Rs.6804/- by being working as a Pre-primary Teacher in a school. It was the prime duty of the respondent-wife to come in the Court with clean hands by stating that she is earning Rs.6804/- per month. If she wants to claim maintenance from the petitioner, she has to make out a case that it is not possible for her to lead life with dignity and respect in that amount and the income of the petitioner is at higher side. She has to show the disparity between her income and income of the respondent and by making such type of true disclosure of the facts, she should have claimed maintenance amount from the petitioner. But this has not been happened in this case. The respondent-wife has made false averments in her interim maintenance application by stating that she has no source of income and she is burden upon her parents. She has not taken pain to disclose her income, though it may be meager. On the contrary, she has made false statements on oath.
  18. While submitting the application for interim maintenance, the respondent-wife has taken oath and she has sworn affidavit on the application itself. This goes to show that she has made false averments knowingly in a Court proceeding. In such circumstances, prima facie, the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code are attracted. Because of the false statements made by the respondent in her application for interim maintenance, this Court is misled and misguided and therefore, the petitioner has suffered and he was directed to pay maintenance at the rate of Rs.20,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  19. The petitioner was required to file application for review of said order and accepting his contention, the quantum of maintenance was reduced from Rs.20,000/- per month to Rs.13,000/- per month. While deciding the said application, my learned predecessor has imposed exemplary cost of Rs.5000/- on the respondent for making false statements. But it does not mean that the respondent is absolved from the criminal liability. Therefore, it is necessary to take action against the respondent as per the provisions of Section 195 and 340 of Criminal Procedure Code. The Deputy Registrar of this Court has to file complaint against the respondent in competent Court for the offences discussed above.
  20. In view of my foregoing discussion, I come to the conclusion that, the application at Exh.56 deserves to be allowed. In the result, I proceed to pass the following order.

 

O R D E R

  1. The application at Exh.56 is allowed.
  2. The Deputy Registrar of Family Court, Bandra, Mumbai, is directed to file complaint against the respondent-wife in competent Court, for the offences punishable under Section 177, 181, 182 and 191, read with Section 193 of Indian penal Code.
  3. The Deputy Registrar is authorized to take true copies of entire proceedings to file along with the complaint in the competent Court.
  4. Inform this order to Deputy Registrar, Family Court, Bandra, Mumbai.

Sd/-24-12-2013

( Subhash R. Kafre ) Judge,

Family Court No.3, Mumbai.

Date : 24th December, 2013

 

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************