Category Archives: Bombay HC

Actor Arman Kholi pays 50,00,000 for freedom from live-in girlfriend 😳😳😳😳Bombay High Court quashes FIR against Armaan Kohli

BOMBAY HIGH COURT QUASHES FIR AGAINST ARMAAN KOHLI

Friday, 15 June 2018 | IANS | Mumbai

30A88F81-74B5-4E43-9919-62FBA9F00625

The Bombay High Court on Friday quashed an FIR against Bollywood actor Armaan Kohli for assaulting his girlfriend.

Armaan was arrested from Lonavala on Tuesday after an FIR was lodged by his live-in partner Neeru Randhawa for assaulting her physically.

“The High Court has directed the superintendent of Arthur Road jail to release him (Armaan) as the matter has been quashed and nothing remains pending,” Armaan’s lawyer Lakshmi Raman told IANS.

The case has been quashed after Armaan paid a hefty compensation to Neeru.

“It is a full and final settlement between Armaan and Neeru, where he earlier paid an amount of Rs 50 lakh and today he paid two post-dated cheques of Rs 25,000,” Raman said.

The High Court judge also demanded an affidavit from Armaan saying he regrets whatever happened and that he will never attempt such an act ever again.

According to Raman, this affidavit was submitted in the court on Friday.

— Read on www.dailypioneer.com/potpourri/bombay-high-court-quashes-fir-against-armaan-kohli.html

Advertisements

Woman must temporarily #reside at place of filing plaint. She can’t go to a new place to CREATE #Jurisdiction. #DV #BombayHC

Woman must temporarily reside at place of filing plaint – Jurisdiction in Domestic Violence

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Criminal Revision Application No. 146 of 2017

Applicants :

1) Prashant son of ManmohanjiLaddha, aged about 36 years, Occ: Business

2) Smt Leelabai wd/o Manmohanji Laddha, aged Major, Occ: Household

Both residents of In front of Mayor’s Bungalow,University Road, AmravatiVersus

Respondents:

1) Sau Madhuri w/o PrashantLaddha, aged about 34 years, Occ: Household

2) Ku Vidhi d/o Prashant Laddha, aged about 9 years, Occ: Student

3) Ku Ekta d/o Prashant Laddha, aged about3 years, Student Respondents no. 2 and 3 being minor, through respondent no. 1 natural guardian-mother

All residents of c/oShri Satyanarayan Champalal Taori, Near Hotel Harmony, Gandhibag, Nagpur At present, c/o Suresh Madhukar Rathi, Hardware Shop, Main Road, Ward No. 9, Saunsar, District Chindwara, MPShri R. D. Wakode,

Advocate for applicants Shri B. N. Mohta,

Advocate for respondents

Coram : S. B. Shukre, J

Dated : 6th April 2018

Oral Judgment

1. Heard learned counsel for the parties. Admit. Heard forthwith by consent of parties.

2. This revision application questions the legality and correctness of the order dated 27.10.2016 passed by the learned Principal District Judge, Nagpur in Criminal Appeal No. 297 of 2015, upsetting the order dated 28.10.2014 passed by the learned Judicial Magistrate, FC, Nagpur in Misc. Criminal Application No. 3538 of 2014. The learned Magistrate has held that the Court at Nagpur has no jurisdiction to try the petitionunder Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, the “D.V. Act”).

3. Shri Wakode, learned counsel for the applicants submits that the impugned orderis patently illegal and perverse and whereasShri Mohta, learned counsel for the respondents submits that it is perfectly legal and proper. Shri Mohta submits that inany case, the learned Magistrate could not have dismissed the petition on the preliminary objection, without giving any opportunity to the parties to lead evidence. In support, he places his reliance upon the cases of Vijay Sudhakar Patil v. Asha Vijay Patil reported in 2015 (1) Mh. L. J. 431; Ramesh a/o Mohanlal Bhgutada, Advocate& anr v. State of Maharashtra reported in 2011 (6) Mh. L. J. 167 and Vikas Rastogee v. State of U. P. & anr reported in II (2014) DMC 470 (All).

4. The learned Magistrate while allowing theapplication vide order dated 28.10.2015 hasgiven elaborate reasons to support the finding about the non-maintainability of the petition under the D. V. Act while holding that he had no territorial jurisdiction to try the petition under Section 12 of the D.V. Act. Learned Magistrate has taken into consideration the admissions given by the non-applicant no. 1 in her application filed under Section 125 Cr. P. C. (Criminal Application No. 62 of 2014) before the Court at Saunsar, the admissions given by the non-applicant no. 1 in the First Information Report lodged by her against the applicants on 8.12.2014 at Police Station, Saunsar and the other facts which are matter of record and not in dispute. These facts show that non- applicant no. 1 has admitted just about one month before filing of the application on 20.10.2014 and also two months thereafter that she has been residing at her parental place at Saunsar since August 2014.

5. Learned Magistrate has also noted the fact that although non- applicant no. 1 showed her address in Section 12 of the D. V. Act petition as c/o Shri Satyanarayan Champalal Taori, near Hotel Harmony, Gandhibag, Nagpur, she did not file even an affidavit of Satyanarayan Taori to show that she is a temporary resident of Nagpur. In the application under Section 12 of the D.V. Act, there is only a passing reference made by the respondent that she along with her children has been residing presently at Nagpur in the house of her brother on the address mentioned in the cause title. This application has been filed on 20.10.2014. But, just a month before, she filed application under Section 125 Cr. P. C. before the Saunsar Court wherein she asserted that she was residing at Saunsar since August 2014. Even in the First Information Report that was lodged by her on 8.12.2014, about one and half months after Section 12 D. V. Act application at Police Station, Saunsar, the non- applicant no. 1 stated that she has been residing at Saunsar. Not only this, but in her evidence recorded in the proceedings under Section 125 Cr. P. C. before the Saunsar Court subsequent to the filing of the present application also, the non-applicant no. 1 admitted that she was residing at Saunsar. In the backdrop of these admissions, it was necessary for the non-applicant no. 1 to have clarified as to when did she leave Saunsar and come to Nagpur for residing atNagpur temporarily. She also needed to have stated the relevant dates in this regard. If some of the admissions pertainedto a period which was after filing of this application, an affidavit of brother, giving relevant details placed on record by the applicant would have gone a long way to clarify her stand in the matter. But, she did not file on record the affidavit of her brotherSatyanarayan Taori.

6. Learned counsel for the non-applicants submits that the non- applicant no. 1 was never called upon to lead any evidence in this regard. I must say, nothing prevented non-applicant to at least file on record an affidavit giving her explanation/clarification in the matter. It is not enough for non-applicant no. 1 to just make a bald statement, as she has in her application, that presently, she has been residing at Nagpur in the house of her brother when she admits in other proceedings that she resides at Saunsar. She could have boostedher statement of her Nagpur residence by something relevant or at least an affidavit ofSatyanarayan Taori. But, she did not submit any such additional material or affidavit before the Court. These facts have been duly taken note of by learned Magistrate when he passed the order dismissing application under Section 12 of the D. V. Act.

7. But these facts, relevant as they are, havebeen completely ignored by the learned Principal District Judge. The learned Principal District Judge has also not considered the reasons given by the learned Magistrate in the order passed by her. It is the requirement of Section 27 of the D. V. Act that in order to confer territorialjurisdiction upon a Judicial Magistrate, FirstClass, there has to be at least a temporary residence within the territorial jurisdiction of his Court. The admissions given by non-applicant no. 1 could show that she was all the while residing at Saunsar and coupled with that fact, she has failed to explain as to how and in what manner, she assumed her temporary residence at Nagpur. The learned Principal District Judge, however, reasoned that pursuing of some cases at Nagpur itself amounted to temporary residence at Nagpur, which is fallacious to say the least. Pursuing of some cases from a place cannot be equated with temporary residence at that place. Temporary residence requires residence at a place on continuing basis in pursuit of some activity or want or need which may be economic, educational, financial, cultural, social and the like which comes to an end when the goal or purpose is achieved. The period or such residence would vary depending upon the purpose for which it is taken. But, such residence cannot be a residence created just to conferterritorial jurisdiction upon a Magistrate of aplace or otherwise, it would be easy for a woman well equipped with resources to go to a far away place, set up a temporary residence there just to file a case and file a case to get the pleasure of seeing husband or person in domestic relationship being put to travails of long travels and high expenses. So, to my mind, in the context of Section 27 of the D. V. Act, temporary residence means a residence set up or acquired in the ordinary course of human affairs and is not a residence set up with anintention to file a case and confer jurisdiction upon the magistrate. This is the meaning, plainly and naturally, conveyed by combined reading of key words used in Section 27 of the D. V. Act, which are “resides or carries on business or is employed”.

8. In the cases relied upon by learned counsel for the non- applicants, it has been held that the preliminary objection regarding lack of territorial jurisdiction cannot be decided unless the parties are called upon to place on record evidence. There can be no doubt about the principle enunciated by these cases. But, this is not the case wherein the learned Magistrate has dismissed the application without there being on record proved facts. Ultimately, proof of facts is all that matters and facts can be proved by admissions, just as they can be by oral evidence. Here, facts stood proved because of admissions, though there was no oral evidence led by the parties. It appears to me that not tendering of oral evidence was the choice of the parties. Learned Magistrate has also noted the fact that the non-applicant no. 1 did not submit any affidavit of her brother in support of her claim that she was temporarily residing at Nagpur, thereby indicating an opportunity already available was wasted by her. Therefore, I do not think that any assistance could be sought by the learned counsel for the respondents from the cases cited before me.

9. In the facts and circumstances noted above, I am of the view that the impugned order is manifestly illegal and perverse and the order of the learned Magistrate is legal and correct calling for no interference therein.10. In the result, the application is allowed. The impugned order is quashed and set aside and the order of learned Magistrate is confirmed. Liberty is, however, granted to file fresh application under Section 12 of the D. V. Act before the proper forum.

S . B. Shukre, J joshi

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


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