Category Archives: fake 498a

False & vexatious criminal cases on husband & family is cruelty. Husband wins divorce. Bombay HC

Love marriage turns sour. Husband and wife part ways. Wife ropes a lot of ppl from husband’s family and files fake cases, Wife gets husband and his brother arrested !! She then tries to deny him divorce. the Honorable Bombay HC sees thru here scheming and lying nature (calls it unreliable witness !!) and grants the husband divorce

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IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.13 OF 2008

Dr.-X Husband …APPELLANT (Orig. Petitioner)

VERSUS            

Dr.-Y Wife    …RESPONDENT

Mr. P.M. Shah, Senior Counsel with Mr. Amol

N. Kakade Advocate for  Appellant-Husband.

Mr. V.D. Sapkal Advocate for Respondent-Wife.

CORAM:  

R.M. BORDE AND

A.I.S. CHEEMA, JJ.

DATE OF RESERVING JUDGMENT :9th DECEMBER, 2015

DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016

JUDGMENT [PER A.I.S. CHEEMA, J.] :

(1.) This Appeal is filed by the Appellant – husband an Ophthalmologist (hereafter referred as “Petitioner”), whose Petition for divorce against the Respondent – wife B.H.M.S. – practicing   Homeopathy (hereafter referred as “Respondent”) has been dismissed by the Family Court, Aurangabad in Petition No.A.263 of 2006. Keeping in view the nature of dispute, we have blocked the names of the parties in the cause title.

(2.) Succinctly put, the marriage between the parties took place on 29th November 2002. They lived together happily for some time and then due to disputes, the Petitioner claims that the Respondent deserted him on 30th December 2003. The Respondent claims that she was beaten and left at the place of her parents on 4th December 2003. Petitioner – husband earlier filed Divorce Petition No.A.46 of 2004 on 3rd February 2004. The Respondent received summons in that matter on 9th February 2004. Thereafter few incidents took place and the Respondent filed F.I.R. leading to criminal case against the Petitioner and his other family members. The Petitioner withdrew earlier divorce Petition due to further developments. The   present Petition No.A.263 of 2006 came to be filed later on, on 27th September 2006, which has now been dismissed by the Family Court on 27th March 2008.

(3.) To understand the disputes between the parties, it is now necessary to refer the facts in some more details.

EARLIER PETITION NO.A.46 OF 2004.

Exhibit 52 is copy of the earlier Petition No.A.46 of 2004. It was divorce Petition under Section 13 of the Hindu Marriage Act, 1955. The Petitioner claims that his marriage with Respondent could be termed as self arranged marriage.

Engagement took place on 27th October 2002.

The engagement was broken by the parents of the Respondent on the ground that she was not offered proper gifts and number of   persons who attended the function were more. As Respondent and her paternal uncle were ready for marriage, registered marriage was performed and religious rites were carried out at Ghrishneshwar Temple, Ellora (on 29th November 2002). Reception took place on 8th December 2002, in which only uncle and aunt of Respondent attended.

In the evening, on the day of marriage, the parents and relatives of Respondent had come to the residence of the Petitioner and quarreled. The marriage was happy for few days. Later on Respondent was not behaving properly and insulted the Petitioner in front of his parents and friends. She used to take suspicion against the Petitioner if any time he talked with any girl. She suspected him with his cousin sister also and he was lowered in the eyes of relatives and sister. When a female friend called from Bombay, Respondent quarreled with the   Petitioner and left the house alleging that Petitioner had relations with that friend.

She was back answering elderly persons and mother of Petitioner. The Respondent was being instigated by her parents. She had the habit of disclosing private life to friends and creating embarrassment. She left house on many occasions and the Petitioner brought her back. She did not behave properly with friends and relatives and avoided to perform religious ceremonies. She had the habit of leaving the gold ornaments open on bed and when pointed out, she quarreled. She quarreled and deserted the Petitioner claiming that she will put him behind the bars. She threatened to commit suicide. She consistently humiliated him which acts amounted to cruelty. It had become impossible to live with her due to mental agony and torture.

With such facts the first Petition claimed divorce.

WITHDRAWAL OF EARLIER PETITION:

(4.) The Petitioner filed application (Exhibit 58) in the earlier Petition claiming that the Respondent has now filed criminal complaint and he wanted to withdraw the Petition to file fresh divorce Petition after dismissal of the criminal case and so with permission, liberty may be given.

The Respondent took time to reply but did not file reply and then the Judge of the Family Court, without recording grant of permission, passed order dismissing the Petition for want of prosecution. Against the withdrawal, Respondent filed Family Court Appeal No.47 of 2004 (Exhibit 59) in this Court and the Appeal was dismissed with clarification that no adverse order has been passed against the present Respondent, as no leave   had been granted.

PRESENT PETITION NO.A.263 OF 2006

(5.) Subsequently the present divorce Petition No.A.263 of 2006 was filed. In this Petition the first twelve paragraphs are similar to the averments as made in the earlier Petition, to which we have made brief reference above. From Paragraph No. 13 onwards, there is reference to other facts which took place after filing of the earlier Petition. We proceed to refer to those facts in brief, as pleaded by the Petitioner. The Petitioner has now further claimed that after the earlier Petition was filed, notice was issued to Respondent and it was served on her. Thereafter she came to the Petitioner and gave threats that she will file false criminal case under Section 498-A of the Indian Penal Code (I.P.C.) against him and his family members. On 25th   February 2004 when Petitioner was going on motorcycle from Kranti Chowk towards Paithan Gate, at about 2.00 p.m., in Nutan Colony, the Respondent stopped him and gave such threats. She also threatened that she will commit suicide and implicate him and his family members and put them in jail. On 26th February 2004 she came to the clinic of the Petitioner and in front of patients abused and threatened him. In view of such acts of Respondent, the Petitioner filed application with Kranti Chowk Police Station on 27th February 2004. On 28th February 2004 Respondent came in front of his clinic and asked him to withdraw the divorce Petition or else she would file case under Section 498-A of I.P.C. The Petitioner informed this to Mukundwadi Police Station vide N.C. No.163 of 2004.

The Respondent filed false complaint (F.I.R.) on 29th February 2004 making false   and vexatious allegations against the Petitioner, his mother, two brothers and wife of one brother that she was ill-treated, assaulted and there was dowry demand of Rupees Two Lakhs and Fifteen Tola gold. She claimed that she had been assaulted on 28th February 2004 in the cabin of the Petitioner. This led to registration of offence at Jinsi Police Station vide Crime No.I-14 of 2004. The Petitioner and his family members suffered great hardship. The Petitioner and his brother Vijay were arrested and thereafter came to be released on bail. They were greatly humiliated. When bail petition came up, Respondent, although she did not have injury, bandaged her both hands and appeared before the Court to take sympathy and tried to get the bail rejected. She appeared in the course of trial on each date and opposed exemption applications.

  She gave false evidence in the criminal case. (The Petition then mentions as to what was allegedly the false evidence.) Respondent went back from her signature on application which she had given at the time of marriage to Jinsi Police Station that she had married on her own accord. She sought various adjournments in the criminal case and at the stage of arguments even got the case transferred vide Transfer Petition No.68 of 2006 making averments against the Judicial Officer. The Petitioner and his family members came to be acquitted. The marriage has irrevocably broken down and parties have been residing separately for more than 2 ½ years. Respondent left the house on 30th December 2003 without any reason and has been guilty of willful mental ill-treatment and cruelty to Petitioner. It is impossible for the parties to live together without mental   agony, torture and distress. Thus the divorce Petition.

DEFENCE

(6.) The Respondent filed Say/Written Statement vide Exhibit 40. We proceed to refer to those facts in brief, as pleaded by the Respondent in the Written Statement:

It is not disputed by the Respondent that engagement took place on 27th February 2002. She claims that her parents spent Rupees Sixty Thousands on the engagement. The marriage was fixed for 29th December 2002 but the Petitioner wanted to finish up the marriage ceremony in simple and economical manner. For saving Rupees Two Lakhs, parents of Respondent agreed.

They gave garland of five Tola gold to her and remaining ten Tola gold was to be given   within a year. Marriage took place at Ellora in Ghrishneshwar Temple in simple ceremony. It is denied that Petitioner arranged reception on 8th December 2002.

Her parents and relatives attended and there was no quarrel. She denies that she was taking suspicion or that she quarreled on that count. She claims that the elder brother of Petitioner, Mr. Sujay was married unemployed. Though he was living separate but used to come for meals twice in the house of the Petitioner. She claims that he was “parasite”(?) in the family.

Her father was serving in S.T. Department.

She has two sisters, one brother and mother. She comes from religious, social, cultural back-ground. She never threatened Petitioner with case under Section 498-A of I.P.C. and she is from medical side and not legal side. The earlier Petition was withdrawn as Petitioner had filed bogus pan   card and income tax record in the earlier case when pendente lite maintenance was sought by Respondent and Respondent filed complaint of forgery and cheating. The present Petition is hit by the principle of ‘res judicata’. When the earlier divorce Petition was filed, the Respondent had requested Petitioner to withdraw the divorce Petition. On the contrary, Petitioner went to police station as he wanted to swallow the clinic developed by her from her money of medical profession and stridhan. When she requested to withdraw the Petition, she was beaten when she was attending patients and her thumbs were fractured by the Petitioner. Although both her thumbs were fractured by the Petitioner, she did not go to private doctor as she did not want to disclose the deeds of her husband. She went to Ghati hospital where police made out Medico Legal   Case and recorded offence under Section 498-A of I.P.C. as the Petitioner – husband had demanded Rupees Two Lakhs and fifteen Tola gold from her parents. She claimed that the Petitioner and his family members got acquitted as they managed the police and pressurized police prosecutor. She has preferred appeal to the High Court.

In the Written Statement, further pleas are raised by the Respondent.

According to her, it cannot be said that the marriage between her and Petitioner was love marriage. She claims that the Petitioner and his mother had approached the parents of Respondent and the engagement took place. Out of oneness she was sending patients to the Petitioner thereafter. When the marriage was preponed, it was agreed that whatever would be saved, would be spent on further development of   the couple. Her father agreed to give fifteen Tola gold after marriage. After simple ceremony at Ellora, marriage was registered. She started living in the three storeyed building at Seven Hill Colony, belonging to the Petitioner. Petitioner insisted that she should not practice in slum area and should shift in Indu-Ganga complex where he was practicing. Even prior to marriage, believing Petitioner, she shifted in that complex and took gala on rent. She took Rupees One Lakh Sixty Thousands from the State Bank of Hyderabad as loan to set up the clinic. She got the loan after engagement ceremony had taken place. Petitioner asked her to shift her practice in the same clinic where he was practicing. She spent the amount in setting up both the clinics. Petitioner took Rupees Seventy Thousand from the loan which was sanctioned to her and spent it on his   family members. She claims that Rupees Ninety Five Thousand were still outstanding from the said loan amount. After marriage she was treated nicely for two months.

Thereafter her mother-in-law Nirmala, sister-in-law Pragati and brother-in-law Sujay started claiming that Petitioner was highly qualified and could have got big money as dowry and girl who had M.B.B.S. degree, but he had preferred a girl from hutment. She claims that her mother-in-law and sister-in-law started quarreling with her that she does not know cooking and domestic work. They started instigating Petitioner who started beating her. She was beaten on 9 to 11 occasions. Petitioner was himself taking her to clinic and dropping back out of suspicion that she may go to her parents. When she was beaten, he took her to doctors, namely Rege, Sameer Deshmukh, Dande, Rakshale under fear that   Respondent should not expose him. Mother-in-law, sister-in-law and brother-in-law were alleging that she had extra marital affair, without naming any body. When her father met with an accident and was in hospital for eight months, she was never allowed to meet him. Her income of Rs.7000/- to 8,000/- per month was being taken away by the Petitioner. She was brutally beaten on 4th December 2003 for an hour and dropped at the place of her parents, on 5th December 2003. She was pregnant of three months at that time. She developed complications and was taken to Dr. Mrs. Mahindrakar. Doctor informed the Petitioner but he did not come. She lost her child at that time, due to physical, verbal and economical abuse. Her sister-in-law Pragati, mother-in-law Nirmala, brothers-in-law Vijay and Sujay claim that she does not know cooking and spends money   on beauty parlour and shopping and they don’t need her. Petitioner used to be mute spectator to all this. Even after she was left at the place of her parents, she was attending the clinic at Indu-Ganga complex.

She tried to go back to matrimonial home but was denied entry and was asked to bring fifteen Tola gold and Rupees Two Lakhs.

After separation she was not able to practice as when she joined Dr. Roplekar and later on Dr. Jadhav, she was removed due to Petitioner and her mother-in-law not liking her working. On 16th July 2006 there was an advertisement showing inauguration of big hospital by the Petitioner at Seven Hills Colony. The hospital is worth Rupees Three Crores and the Petitioner is earning not less than Rupees One Lakh per month. Respondent claimed that she is entitled to Rupees Twenty Five Thousand per month as pendente   lite maintenance.

ISSUES ANE EVIDENCE BROUGHT BEFORE FAMILY COURT:

(7.) With such pleadings, the Family Court framed issues at Exhibit 28. First issue related to jurisdiction to try the case. Second issue related to alleged cruelty. Third issue related to the question whether the Respondent had deserted Petitioner without reasonable cause. Fourth issue related to, whether there was bar under Section 23 of the Hindu Marriage Act. Parties brought on record necessary evidence. Petitioner examined himself as PW-1 giving evidence on line of above pleadings. Per contra Respondent led her evidence on above line of pleadings and to support herself, examined RW-2 Nandkumar Parikh, handwriting expert, as she was claiming that the income tax return tendered in the “earlier” Petition was forged and was also claiming that the letter dated 29th November 2002, Exhibit 84, relied on by   the Petitioner in Criminal Case, as sent by her to police that the marriage was willful, was forged.

Respondent examined RW-3 Ravindra Sangavikar, employee from Bank regarding loan she had taken.

(Although question of maintenance was not being decided -). Sub Registrar Saheb Khan was examined as RW-4 regarding value of the property of the Petitioner at Seven Hills to claim that it was worth more than a Crore of Rupees. RW-5 P.S.I. Shahabuddin Shaikh has been examined to bring on record evidence that in the police station concerned original of Exhibit 84, the letter dated 29th November 2002 was not available and neither station diary entry was there. RW-6 Satish Purohit was examined to prove Tipan Exhibit 168 that when the engagement took place, marriage was initially scheduled for 27th December 2012.

(8.) The Family Court considered the evidence led by the parties and held that it had jurisdiction to try the case. It however held that   Petitioner failed to prove cruelty by Respondent and that he had also failed to prove that she had deserted him without reasonable cause. The Family Court observed that question of bar under Section 23 of the Hindu Marriage Act does not survive.

Family Court concluded that Petitioner was not entitled for decree of divorce.

ARUGMENTS FOR PETITIONER-APPELLANT:

(9.) Against the Judgment, present Family Court Appeal came to be filed raising various grounds. It is claimed in the Appeal and it has been argued by the learned counsel for the Petitioner – Appellant that the Family Court did not consider the evidence in proper perspective.

The marriage between the parties was a love marriage which was performed against the wish of parents of the Respondent. The parents and other relatives except one uncle of Respondent, did not attend the marriage. Although photographs were produced, none showed the presence of the parents   or other family members of the Respondent. The Respondent had herself filed the letter to the police on 29th November 2002 vide Exhibit 84 but later on has gone back from her signature on the letter. The Appellant proved on record the conduct of the Respondent, post receipt by her of the summons in the earlier petition. Petitioner proved how he was abused and threatened on 26th February 2004 and 28th February 2004 and subsequently false criminal case was filed. Because of the criminal case Petitioner-Appellant and his brother were arrested and thereafter released on bail. Other family members had to rush to file anticipatory bail petition, during the course of which hearing, the Respondent appeared with bandaged hands to prejudice the Court. It has been argued that the Respondent made all endeavours to put the Petitioner and his family members behind bars all the while making false allegations. Although it was pleaded that her thumbs were fractured, in evidence she accepted that they were not   fractured. Wild allegations were made that the family members of the Petitioner were asking for dowry and that Petitioner would have got girl having M.B.B.S. The marriage took place with full knowledge of the back-ground of the Respondent.

Wild allegations of miscarriage were made without any medical evidence being brought on record. Dr. Mrs. Mahindrakar was not examined. Family Court failed to see that the private handwriting expert examined, had relied only on xerox copies, which was inadmissible. The Respondent filed domestic violence case, which came to be dismissed. She filed frivolous case against the advocates of the Appellant, which also came to be dismissed.

Although the Appellate Court had remanded the matter after acquittal, post impugned Judgment the High Court maintained the Judgment of acquittal and S.L.P. filed by the Respondent came to be dismissed. Thus, it has been argued that the cruelty has been proved. In present Appeal, the Petitioner filed Civil Application Nos. 14302 of   2015 and 15183 of 2015 with copies of documents which are Judgments/applications in the various proceedings between the parties supported by the affidavits. Some of the Judgments and orders are relating to the period before the impugned Judgment while some Judgments and orders have been rendered subsequent to the disposal of the impugned matter.

(10.) Learned counsel for Respondent has not disputed the correctness of the documents relating to the Judgments and orders passed or applications moved. The counsel have referred to the said Judgments and orders as well as applications at the time of arguments and we are taking note of the subsequent proceedings also.

ARGUMENTS FOR RESPONDENT:

(11.) On behalf of the Respondent, the learned counsel referred to Sub Rules (3) and (4) of Order XXIII Rule 1 of the Code of Civil Procedure, 1908   (C.P.C.) to argue that if the earlier Petition was withdrawn without taking permission referred to in Sub Rule (3), the Petitioner would be precluded from instituting any fresh suit in respect of the subject matter or part of the claim. It is argued that the earlier Petition was for divorce on the ground of cruelty and present Petition is also for divorce on the ground of cruelty. As the earlier Petition was withdrawn without taking permission of the Court and which order has been clarified by the High Court in the earlier Appeal, the present Petition was barred. Learned counsel agreed that the observation of the trial Court in Para 50 of its Judgment that the present Petition was hit by the principles of ‘res judicata’ was not maintainable, as earlier Petition was not decided on merits, but according to him the bar is under Order XXIII Rule 1 of the C.P.C., which is applicable. It is argued by the Respondent that due to withdrawal of the earlier matter, the Respondent was unable to prove her defence which   she was to take in the earlier Petition. The grounds raised for divorce are general and vague.

The Respondent denied in her written statement that she was suspecting cousin sister of the Petitioner. According to the learned counsel, there was no evidence that the Respondent was guilty of ill-treatment and desertion. (The counsel took us through the evidence.) It is claimed that in the earlier proceedings, the documents filed of income tax return and Exhibit 84, letter claimed to be filed by the Respondent to police, were forged and so handwriting expert was examined. The counsel submitted that the Respondent is ready to go and reside with the husband and the husband is not ready to take her back and thus divorce should not be granted. Lapse of time is no reason to grant divorce.

Irretrievable breakdown of marriage is no ground.

Only because the Petitioner was acquitted in the criminal proceedings, would not go to prove that the Respondent inflicted cruelty. The first   divorce petition was filed within fifteen months of the marriage, which showed that the husband was not interested in maintaining the marriage.

IN REPLY:

(12.) The learned counsel for the Petitioner in reply submitted that when in the earlier Petition the Petitioner had filed application for withdrawal with permission to institute fresh proceedings, if the permission was not being granted, what Court could have done was to refuse the permission but the Court could not have simply disposed the Petition as withdrawn. He however, did not press for this argument, as according to him, the matter had been, at that time, carried to the High Court and in Appeal High Court recorded opinion and so that order has become final. The learned counsel submitted that in the present Petition, the Petitioner is not relying on the earlier events which were agitated in the earlier Petition, but is relying on the incidents which   took place subsequent to the filing of the earlier Petition and present Petition is based on those subsequent facts which according to learned counsel are not barred under Order XXIII of the C.P.C. According to the learned counsel the earlier Petition was based on facts till the date of filing of the earlier Petition, which facts themselves constituted cause of action. The present Petition cannot be said to be based on the same subject matter as in the present Petition, the set of facts relied on are different and cause of action is also different. According to the counsel, subsequent to filing of the earlier Petition, the Respondent reacted inappropriately and further, the Petitioner and his family members were dragged into criminal cases and they were got arrested and harassed making wild allegations against the character of the husband and criminal acts were attributed, because of which the present Petition was required to be filed. It is argued that it would be unimaginable to hold that once a   divorce petition on the ground of cruelty has been withdrawn further divorce petition cannot be filed even if there are subsequent events showing cruelty. The counsel submitted that the record and proceedings of Family Court show that the Respondent resorted to raising various obstructions to the Petitioner by filing various criminal cases and even in the present Petition irrelevant evidence was brought like that of the valuer although question of maintenance was not being decided and in cross-examination there were multiple repetitions. Although the Respondent claims not to be a person of law, she carried out extensive cross-examination of the Petitioner, in-person, on 9th July 2007, 10th July 2007, 21st July 2007 and 12th October 2007. She has legal acumen and is not a lay person and the evidence has not been properly appreciated by the Family Court.

(13.) It is submitted by the learned counsel for the Petitioner that in the record of the Family Court at Page No.98, there is copy of complaint dated 4th September 2007 which discloses that Respondent filed complaint to the Police Commissioner against Head Constable Adhane claiming that he had given false evidence in the criminal case. The Criminal Court accepted the evidence of Adhane and acquitted the Petitioner and his family members and thus such complaint could not have been maintained. The counsel for Petitioner further submitted that Respondent filed application Exhibit 12 in the Petition before the Family Court claiming domestic violence and even secured some orders in her favour on 11th January 2007. Subsequently she filed Criminal M.A. No.130 of 2008 under Domestic Violence Act before the J.M.F.C. on 4th February 2008 and thereafter on 10th March 2008 withdrew the application under Section 26 of the Domestic Violence Act which she had filed before the Family Court. This Criminal M.A. No.130 of 2008 containing similar allegations   as made before the Family Court, has also come to be dismissed by 19th Court of J.M.F.C., Aurangabad on 31st December 2012.

(14.) Before proceeding to discuss the facts of the matter, quick reference may be made to the Judgments relied on by the learned counsel for both sides to support their averments.

RULINGS:

(15.) The learned counsel for the Petitioner has placed reliance on the following reported cases:

(A) Learned counsel for the Petitioner relied on the case of X husband vs. Y wife, reported in 2014(4) Bom.C.R. 168 to submit that this Court had, in that matter, taken note of how the wife in that matter also had subjected the husband to various criminal proceedings in a bitter legal battle and this Court had held that filing of   false criminal cases against a spouse is itself an act of cruelty and can very well sustain a decree of divorce.

(B) The Petitioner further relied on the case of Vishwanath Agrawal s/o Sitaram agrawal vs. Sarla Vishwanath Agrawal, reported in (2012) 7 Supreme Court Cases 288, where also the husband was dragged into criminal cases and Hon’ble Supreme Court observed in Para 50, that subsequent events can be considered. The Hon’ble Supreme Court observed in Para 47 as below:

“47. Another aspect needs to be taken note of. The respondent had made allegation about the demand of dowry. RCC No. 133/95 was instituted under Section 498-A of the Indian Penal Code against the husband, father-in-law and other relatives. They have been acquitted in that case. The said decision of acquittal has not been assailed before the higher forum. Hence, the allegation on this count was incorrect and untruthful and it can unhesitatingly be stated that such an act creates mental trauma in the   mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations.”

In Para 54 and 55 of the Judgment, the Hon’ble Supreme Court observed as follows:

“54. Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent-wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious.

55. It can be stated with certitude that the cumulative effect of the evidence brought on record clearly establishes a sustained attitude of causing humiliation and calculated torture   on the part of the wife to make the life of the husband miserable. The husband felt humiliated both in private and public life. Indubitably, it created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life.

It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. Thus analysed, it would not be out of place to state that his brain and the bones must have felt the chill of humiliation. The dreams sweetly grafted with sanguine fondness with the passage of time reached the Everstine disaster, possibly, with a vow not to melt. The cathartic effect looked like a distant mirage.

The cruel behaviour of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her. Therefore, he is entitled to a decree for divorce.”

(C). The counsel for Petitioner relied on the case of Seth Ramdayal Jat vs. Laxmi Prasad,   reported in AIR 2009 S.C. 2463 to submit that the Judgment in a criminal case is admissible to prove conviction or acquittal. Learned counsel submitted that Judgment in this matter shows that when in the civil matter admission is given regarding what was stated in the criminal case, the same would be admissible. According to the learned counsel, in the present matter the Respondent wife admitted that in criminal case she had admitted her signature on letter Exhibit 84 which was sent to police on 29th November 2002, but she still backed out from the signature in the civil proceedings and even led evidence of handwriting expert to prove that it was not her signature. The counsel submitted that her admitting signature in the criminal case was proved and was required to be considered.

(D) The learned counsel for the Petitioner relied on the case of Malathi Ravi, M.D. vs. B.V. Ravi, M.D., reported in (2014) 7 Supreme Court   Cases 640 to submit that even in the case brought on the ground of desertion, by taking into consideration subsequent events, divorce could be granted on the ground of cruelty. The Hon’ble Supreme Court referred to various incidents of that matter and observed in Para 43 as under:

“43. As we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct; his relatives have been dragged into the matrimonial controversy, the assertions in the written statement depict him as if he had tacitly conceded to have harboured notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to Gulbarga to prosecute her studies. That apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of chess. The launching of criminal prosecution can be perceived from the spectrum of conduct. The learned Magistrate has recorded the judgment of acquittal. The   wife had preferred an appeal before the High Court after obtaining leave. After the State Government prefers an appeal in the Court of Session, she chooses to withdraw the appeal. But she intends, as the pleadings would show, that the case should reach the logical conclusion. This conduct manifestly shows the widening of the rift between the parties. It has only increased the bitterness. In such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life.”

The learned counsel submitted that facts of the present matter are similar and require drawing of conclusion of cruelty and divorce needs to be granted. It is stated, as was done by the Hon’ble Supreme Court in the above referred matter, this Court is competent to grant divorce and even pass order granting permanent alimony under Section 25 of the Hindu Marriage Act, 1955, taking note of the status of the parties.

(E). The further reliance was placed on the   case of K. Srinivas Rao vs. D.A. Deepa, reported in (2013) 5 Supreme Court Cases, 226. In Para 28 of the Judgment, the Hon’ble Supreme Court observed as under:

“28. Pursuant to this complaint, the police registered a case under Section 498-A IPC. The appellant husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent wife filed a protest petition. The trial Court took cognizance of the case against the appellant husband and his parents (CC No.62 of 2002). What is pertinent to note is that the respondent wife filed criminal appeal in the High Court challenging the acquittal of the appellant husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant husband for the offence under Section 498-A IPC in the High Court which is still pending. When the criminal appeal filed   by the appellant husband challenging his conviction for the offence under Section 498-A IPC was allowed and he was acquitted, the respondent wife filed criminal appeal in the High Court challenging the said acquittal. During this period the respondent wife and members of her family have also filed complaints in the High Court complaining about the appellant husband so that he would be removed from the job. The conduct of the respondent wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant husband, in filing appeal questioning the acquittal of the appellant husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant husband.”

(F). Learned counsel for the Petitioner relied on the case of Naveen Kohli vs. Neelu Kohli, reported in (2006) 4 Supreme Court Cases 558, which was followed by the Hon’ble Supreme Court in   the matter of Samar Ghosh vs. Jaya Ghosh, reported in (2007) 4 Supreme Court Cases, 511 also, to submit that there was no uniform standard laid down for guidance as to what amounts to mental cruelty, but still the Hon’ble Supreme Court has referred to some of the instances in Para 101 of the Judgment of Samar Ghosh, cited supra.

Referring to the instances, the learned counsel submitted that in the present matter also the wife can be held responsible for inflicting cruelty to her husband.

(G) As regards the objections raised under Order XXIII Rule 1 of C.P.C., the learned counsel for Petitioner relied on the case of Vallabh Das vs. Dr. Madan Lal and others, 1970(1) Supreme Court Cases 761.

(16.) This Judgment was followed by Hon’ble Supreme Court in the matter of N.R. Narayan Swamy vs. B. Francis Jagan, reported in (2001) 6 Supreme   Court Cases 473. The Hon’ble Supreme Court observed in Para 10 as under:

“10. The aforesaid rule would have no application in a proceeding initiated for recovering the suit premises on the ground of bona fide requirement which is a recurring cause. Order 23 Rule 1(4)(b) precludes the plaintiff from instituting any fresh suit in respect of such subject matter or such part of the claim which the plaintiff has withdrawn. In a suit for eviction of a tenant under the Rent Act on the ground of bona fide requirement even though the premises remain the same, the subject matter which is the cause of action may be different. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property. Dealing with similar contention in Vallabh Das v. Dr. Madanlal and Others [(1970) 1 SCC 761)], this Court observed thus:

“The expression ‘subject-matter’ is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief   claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.”

(17.) Learned counsel for the Respondent placed reliance on the following Reported Cases:

(A) The learned counsel for the Respondent relied on the case of Surjit Kaur vs. Jhujhar Singh, reported in 1978 CJ (P&H) 286, where Order XXIII Rule 1 of C.P.C. was invoked to bar the second Petition as it was on same cause of action.

(B). The learned counsel for Respondent relied on the case of Darshan Gupta vs. Radhika Gupta, reported in AIR 2013 S.C. (Supp) 85, to submit that ground of irretrievable breakdown of marriage is not available to husband when he is responsible for the conditions. The counsel submitted that the Hon’ble Supreme Court has, observed in Para 35 of   that Judgment that perusal of grounds on which divorce can be sought under Section 13(1) of Hindu Marriage Act, 1955 would reveal that the same are grounds based on the ‘fault’ of the party against whom dissolution of marriage is sought. The party seeking divorce should be innocent. It is argued that in the present matter the husband is not innocent.

(C) The learned counsel for Respondent relied on the case of Vishnu Dutt Sharma vs. Manju Sharma, reported in AIR 2009 S.C. 2254(1) and submitted that ground of irretrievable breakdown of marriage is not available as carving out such ground would amount to legislating.

POINTS FOR CONSIDERATION:

(18.) Considering the various pleadings of the parties, the evidence and arguments raised, the Points for Determination are:

  (1) Whether the present Petition for divorce based on incidents occurring subsequent to the earlier Petition is maintainable?

(2) Whether the Petitioner has proved that the Respondent has, after solemnization of the marriage, treated the Petitioner with cruelty and he is entitled to decree of divorce?

WHETHER PRESENT PETITION WAS MAINTAINABLE:

(19.) As regards first Point for Determination, reference may be made to Order XXIII Rule 1 Sub-Rule (3) and (4) of C.P.C. The Rule deals with withdrawal of suit or abandonment of part of claim. The Sub-Rules (3) and (4) of Rule 1 of Order XXIII of C.P.C. read as follows:-

“(3) Where the Court is satisfied,-  

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff-

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub- rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.”

It is clear from reading of the above that if the plaintiff withdraws from the suit without taking permission, he would be precluded from instituting any fresh suit ‘in respect of such subject-matter or such part of the claim’.

The Hon’ble Supreme Court in the matter of Vallabh Das vs. Dr. Madan Lal, (referred supra) has observed that expression “subject-matter” includes the cause of action and the relief claimed. In the matter of N.R. Narayan Swamy vs. B. Francis Jagan (referred supra), the Hon’ble Supreme Court was dealing with eviction matter under the Karnataka Rent Control Act, where landlord claimed eviction on the basis of bona fide requirement. The Hon’ble Supreme Court found that in the matter of bona fide requirement, there could be recurring cause of action. In the suit for eviction on the ground of bona fide requirement, even though the premises remain the same, the subject-matter which is cause of action, may be different. Case of “Sujit Singh” relied on   by learned counsel for Respondent can be distinguished as it had different facts and subsequent matter was based on same cause of action. In the present matter, although the foundational facts regarding relationship of the parties remain the same, the present proceedings could not be said to be barred as although they refer initially to earlier incidents, they are based on events which took place subsequent to the filing of the earlier proceeding which was sought to be withdrawn in view of the subsequent developments. If such view is not taken, it would mean that once in such matter if the spouse fails to establish cruelty, subsequently also on the ground of cruelty, proceeding would not be entertainable. When the relationship continues between the couple, there could be recurring incidents giving rise to fresh causes of actions and claim for relief which would be subject-matter for the subsequent action. For such reasons, we do not find that the present Petition is barred. We   would ignore the claims of the Petitioner with reference to the incidents claimed by him in the earlier Petition as constituting cause of action for the earlier Petition. Order XXIII Sub Rule (4) of Rule 1 of C.P.C. precludes the plaintiff from instituting any fresh suit in respect of the subject-matter, however, it does not bar the earlier defendant or respondent from agitating the instances provided they are relevant in subsequent petition. In the present matter although now objection under Order XXIII of C.P.C. has been raised, the Respondent has raised various disputes in evidence with reference to what were instances claimed by the Petitioner in earlier Petition. As the present Petition is now being dealt with and decided on the basis of subsequent events, the reference to the evidence of the Respondent with regard to earlier instances can be referred only where and if relevant to decide present subject matter or for appreciation of evidence if the witness is reliable.

CRUELTY:

(20.) Coming to the second Point for Determination, there is evidence of the Petitioner claiming that notice of the earlier divorce Petition No.A.46 of 2004 was served on the Respondent. Exhibit 53 shows that the summons of that proceeding was served on the Respondent on 9th February 2004. As per the Petitioner, when she received notice, she threatened the Petitioner with false prosecution under Section 498-A of I.P.C. against him and his family members. He has deposed that on 25th February 2004 when he was travelling on motorcycle from Kranti Chowk to Paithan Gate, at about 2.00 p.m. in Nutan Colony Respondent stopped him and threatened him with complaint under Section 498-A of I.P.C. He claims that she threatened that she will commit suicide and implicate him and his family members and put them in jail. His evidence is that on 26th February 2004 also Respondent visited his clinic   and in front of patients abused him and threatened him. Regarding this incident, he sent application to Kranti Chowk Police Station on 27th February 2004. The Petitioner further deposed that on 28th February 2004, in the morning, Respondent came in front of the clinic asking him to withdraw the divorce petition and gave threats of complaint under Section 498-A of I.P.C. if he will not withdraw the Petition. Petitioner claims that he informed the police about this incident also on 28th February 2004 which was recorded as N.C. No. 163 of 2004. Document in this regard is at Exhibit 95. According to the Petitioner, Respondent filed false F.I.R. dated 29th February 2004 alleging that he and his family members ill-treated her, assaulted her, demanded Rupees Two Lakhs and fifteen Tola gold and went to the extent of alleging assault on her on 28th February 2004.

This led to offence being registered at Jinsi   Police Station and he and his brother Vijay got arrested and thereafter were released on bail. It is deposed that at the time of bail proceedings, Respondent, although she did not have any injury, appeared with both hands bandaged, to get sympathy of the Court. The evidence further shows as to how in the criminal case the Respondent appointed Advocate and brought about criminal cases and led false evidence causing great humiliation and mental agony. It is claimed that relations have deteriorated to such an extent that now it is not possible to live with Respondent.

(21.) The Respondent extensively cross examined the Petitioner and brought on record various documents relating to the criminal cases. The Petitioner, in cross-examination, gave certain admissions (relating to incidents which were basis of earlier petition) while denying allegations of ill-treatment by him or that he or his family members had demanded dowry or beaten the   Respondent.

RESPONDEDNT NOT RELIABLE:

(22.) The Respondent filed affidavit as examination-in-chief and reiterated what she had claimed in her say/written statement, which we have discussed above. We need not repeat the same.

She has also been cross-examined and her cross-examination reveals certain facts which show that she is not reliable witness. We will briefly refer to those instances:

(a). In evidence the Respondent has tried to show that after separating from the Petitioner she, having qualification of BAMS, has tried to practice, for which she joined the office of one Dr. Roplekar and one Dr. Jadhav ( Para 36 and 37 of her examination-in-chief). She claimed that she could not continue due to the pressure from the mother of Petitioner. Thus, she has   tried to show that the Petitioner and his family are making her life miserable. In cross-examination, however, she accepted that her own sister, with whom she had got good relations, herself has a clinic at Kartiki Hotel (Para 2 of the cross- examination). She denied that she was practicing with her sister.

(b) In pleadings and in evidence Respondent claims that the Petitioner husband took away part of the amount of loan which she had taken from the Bank for her clinic. However, her cross-examination, Para 9 shows that she had submitted quotations to the Bank to get the loan released. Her evidence ( Cross – Para 29) shows that initially she accepted that she received cheque from Bank of Rupees Ten Thousand in the name of M/s. Vijay and sons, but in further cross-examination she   conveniently pleaded loss of memory with regard to various specific cheque amounts pointed out by the cross examiner, given to Shantiram Glasses, Kaushaldeep, Usha Electrics and System and Store.

(c). Respondent raised much hue and cry regarding the pleading of the Petitioner that theirs was a self arranged or love marriage. She went to the extent of even denying application dated 29th November 2002 (Exhibit 84) given to police station on the date of marriage that she had married by her own will and complaint of her parents or relatives may not be given cognizance. She has even led evidence of a handwriting expert, RW-2 Nandkumar to claim that the signature on Exhibit 84 was not of hers, although in the criminal case bearing RCC No.414 of 2004, evidence came on record of Head Constable Shaikhnath Adhane that on   29th November 2002 he was given original of this document (marked Exhibit 78 in the criminal case) for inquiry and that he had gone to the house of the Petitioner and also given understanding to the parents of the Respondent. Against this, the cross- examination of the Respondent, Para 10, shows her admitting that one year before the marriage she had gone to the clinic of the Petitioner to extend Diwali greetings.

Although the Respondent claims that the marriage was with consent of her parents, no evidence worth the name was brought on record by her. In the photographs of marriage, brought on record, her parents or other relatives are not shown. According to Petitioner only one uncle of hers had attended the marriage. Even the marriage certificate Exhibit 137 has signatures of witnesses on her behalf as those advocates who were friends of the Petitioner, not   known to Respondent since before. Although denied in Written Statement, Respondent admitted (in Para 17 of her cross- examination) that the marriage reception dated 8th December 2002 was arranged by the Petitioner.

(d). Respondent claimed (in Para 18 of cross-examination) that she was not sent for Makar Sankrant. However, the evidence further showed that she accepted that everything was all right for two months after the marriage. Marriage took place on 29th November 2002. As such Makar Sankrant would be in the middle of January 2003. Inspite of this she wanted to insist that she was not sent for Makar Sankrant.

(e). Respondent wanted to attribute misconduct to the Petitioner and his family claiming that she was not allowed to go to   meet her father when he met with an accident. However, evidence has come on record that she had indeed been going out and had gone and met her father.

(f). Respondent claimed physical assault on her on 28th February 2004 seen by compounder Vishnu (Para 53 of examination-in-chief). She claimed that the incident took place at 12.30 p.m. Still she went to Ghati Hospital only at 5 – 5.30 p.m. and that too to Dr. Vikhe, husband of her friend Anupama (Para 19 of her cross- examination). She tried to show that she did not go to private doctor in order to save name of the family but still she goes to husband of her friend in Government hospital and then has tried to show that it was beyond her control that it became a police case. Although she claimed assault, the spot was in the clinic which was in   crowded area (Para 19 of her cross- examination) and still she had no witness in her support. In criminal case and in this Petition also there is no corroboration to her claims of having been beaten more than 9-10 times.

(g). In written statement Para 14 and the evidence Para 15 Respondent claimed that in the incident dated 28th February 2004 she was so assaulted that her both thumbs of the hands were fractured.

However, in cross-examination Para 20 she admitted that she did not have fracture to the thumbs of both the hands. In evidence she claimed that she had tendon injury to her thumbs. Even this is not supported by medical evidence. Para 27 of her cross- examination shows that she admitted that at the time of anticipatory bail of the relatives of the Petitioner, she was   present in Court and filed photographs showing bandage to both of her hands. Of course, she immediately retracted from this admission also.

(h). Although Respondent denied her signature on Exhibit 84, the application dated 29th November 2002 filed to police station about willful marriage, the Respondent was confronted (in Para 25 of the cross-examination) with her admission in the criminal case where she admitted her signature on the document. She deposed that she had admitted her signature in the case under Section 498-A of I.P.C. Then she has added that it was under pressure of Advocate Ghanekar representing the accused.

(i). In Para 27 of her cross- examination, Respondent accepted that there was no dispute at the time of betrothal   ceremony about what is to be given. We have already mentioned that the subsequent reception was arranged by the Petitioner is admitted fact. The marriage admittedly took place in a temple followed by registration before the Marriage Registrar vide Exhibit 137 and a letter to police vide Exhibit 84.

Inspite of this, the Respondent has tried to depose that the Petitioner and his family members were subsequently harassing her for dowry. Evidence rather shows that after the betrothal the family of Respondent was not willing but Petitioner went ahead with support of his family and friends as Respondent herself was willing and they got married. Petitioner and his family knew that father of Respondent was a humble Class IV employee and she was B.A.M.S. and her younger sisters and brother were still studying. Still they went ahead with the marriage as Respondent   was willing. A family interested in dowry would not have done that.

(j). Although the Respondent claimed that when she was cohabiting with the Petitioner, she was seriously beaten on more than 8-9 occasions, no single piece of evidence was brought on record either in the form of medical certificates or the evidence of any other doctor to whom Respondent claims that she was taken by the Petitioner.

(k). Respondent denied (in Para 27 of cross-examination) that she had engaged Advocate Nanasaheb Jagtap in Criminal Case No.414 of 2004 as Advocate to assist the prosecutor. However, in subsequent cross- examination (Para 33) when she was confronted with the Vakalatnama Exhibit 132 and other documents, she had to admit that   she did engage Advocate Jagtap in the criminal case.

(l). Respondent claimed (in Para 3 of her examination-in-chief) that marriage was preponed and so her father gave five Tola gold and had agreed to give ten Tola gold within a year. Inspite of this, she has led evidence to claim that her in-laws were troubling her for fifteen Tola gold and Rupees Two Lakhs. No such assertion was made against the in-laws in the F.I.R.

(Exhibit 86) which she had filed on 29th February 2004. In the F.I.R. this was attributed only to the husband.

(m). Respondent has claimed that when she was assaulted and left at the place of her parents, she was pregnant by three months and because of the assault she was taken to Dr. Mrs. Mahindrakar and although   doctor informed the Petitioner, he did not come and she lost the child. Although such serious allegations have been made, neither Dr. Mrs. Mahindrakar was examined nor any other medical evidence is brought to show that indeed the Respondent was pregnant and that she suffered miscarriage.

IMPUGNED JUDGMENT NOT MAINTAINABLE:

(23.) We have gone through the evidence of the Petitioner as well as Respondent. The Family Court discussed the evidence and while discussing the evidence of the Petitioner, referred to the admissions given by the Petitioner to observe that the admissions shattered his evidence, But, while referring to the Respondent, Family Court definitely concluded (in Para 66 of Judgment) that she has given false testimony to some extent. The observations of the Family Court show (in Para 40 of the Judgment) that this is not a case of physical cruelty. As regards mental cruelty, in   Para 45 of the Judgment the Family Court assumed that as father of Respondent was Class IV employee and Petitioner claimed that it was love marriage, mother and brother of the Petitioner must have tortured Respondent. We find that there was regular betrothal ceremony in the present matter and it appears that between the betrothal ceremony and marriage something happened due to which Petitioner and Respondent went ahead with their marriage inspite of opposition from the parents of the Respondent. The Petitioner who was doctor, knew the fact of father of Respondent being Class IV employee. As such no such conclusions could have been drawn by the Family Court on the basis of assumptions and presumptions. The Family Court (in Para 45 of the Judgment) found that the Respondent had failed to examine any doctor to prove assault. In Para 46 of the Judgment the Family Court justified the filing of criminal case under Section 498-A of I.P.C. on the reasoning that it was the Petitioner who first filed divorce   petition. We do not agree with such reasoning.

Only because the husband had filed divorce petition, would be no licence for the wife to file criminal cases making wild allegations which she is unable to prove.

. The Family Court wanted the Petitioner to prove negative. The Respondent has claimed that she was beaten in the clinic. The Family Court observed that the Petitioner claims that Respondent was not beaten and on that count her thumbs were not swollen, then he should have examined the compounder Vishnu. This was placing burden on the Petitioner to disprove what the Respondent was asserting, without her bringing on record the necessary evidence. The Family Court burdened its Judgment, in Para 76 and 77, by unnecessarily resorting to philosophy with regard to the importance of child. In fact, the Family Court, in the course of recording evidence, has allowed to be brought on record lot of evidence   which was not really relevant for deciding the issues which had been framed. It was like trying to prove the criminal case in the civil proceedings. We find that the impugned Judgment is not maintainable.

THE CRIMINAL AND OTHER CASES FILED:

(24.) It is not in dispute that the Respondent had filed F.I.R. Exhibit 86 leading to filing of Regular Criminal Case No.414 of 2004. If Exhibit 86 is perused, after the introductory part, she alleged that she was treated well for two months after the marriage and then her sister-in-law Pragati and mother-in-law Nirmala started grumbling that the Petitioner would have got Rupees ten to fifteen Lakhs as dowry and girl who was M.B.B.S. but had married to a girl from hutment. It was alleged that listening to them, the Petitioner, after three months of marriage, started giving her trouble and started beating her claiming that she does not know household work or   cooking. She claimed that on 8-9 occasions the Petitioner had beaten her, and her brothers-in-law Sujay and Vijay were poisoning the ears of her husband and asking him to beat her. She claimed that on 4th December 2003 she was beaten and left at the place of her parents. She claimed that whenever she wanted to go to her parents, she was not being allowed to go and her mother-in-law, brother-in-law were suspecting that she has some love affair and so they were not letting her go out. In the F.I.R. it is further alleged that although she was left at the place of her parents, she continued to attend the clinic with her husband and in January 2004 she received summons from Family Court. On 28th February 2004 she went to the hospital at Thakre Nagar, at which time the Petitioner had slapped her in the cabin and twisted her thumbs of both hands and threatened that if she wanted to stay with him, she should get Rupees Two Lakhs and fifteen Tola gold from her parents or else he will not let her parents   live.

(25.) On the basis of above F.I.R., Regular Criminal Case No.414 of 2004 was filed against the Petitioner and his family members. We have already discussed evidence that the Petitioner and one of his brother were arrested and later on released on bail, while other family members succeeded in getting anticipatory bail, at which time the Respondent appeared in the Court with bandaged hands. The J.M.F.C. 11th Court, Aurangabad, vide Judgment dated 5th July 2006 acquitted the Petitioner and his family members observing (in Para 22) that the complaint had been made with intention to take revenge or pressurize the accused No.1 (Petitioner herein) to withdraw the divorce petition. Against this Judgment, the State had filed Criminal Appeal No.111 of 2006 to the First Additional Sessions Judge, Aurangabad, who had remanded the matter on the basis that separate charge under Section 323 of I.P.C. should have   been framed. In Criminal Revision No.188 of 2007 filed by the Petitioner and his other family members to the High Court, the Judgment of remand was set aside and learned Single Judge of this Court upheld the Judgment of the J.M.F.C. on merits. Respondent appears to have gone against the Judgment of the High Court in Special Leave to Appeal (Criminal) No.807 of 2009 to the Hon’ble Supreme Court, which dismissed the same on 19th July 2010. The Judgment of the High Court and orders of the Hon’ble Supreme Court are subsequent to the passing of the present impugned Judgment dated 27th March 2008. Copies of Judgments are on record. These are subsequent developments, which facts are undisputed. It goes to show that the allegations made by the Respondent in the criminal case were not proved. Apart from the criminal case, we have already discussed the evidence in the present petition where the Respondent has failed to show that she was at any time physically assaulted. We have also found her to be unreliable   as a witness.

(26.) During pendency of Petition No.A.263 of 2006 in Family Court, Respondent filed application Exhibit 12 under Section 26 of the Domestic Violence Act on 1st December 2006 and it was partly allowed on 11th January 2007. She then filed Criminal M.A. No.130 of 2008 before J.M.F.C. on 4th February 2008 and withdrew Exhibit 12 in Family Court on 10th March 2008. In these applications she was raising similar allegations against Petitioner and his family. Criminal M.A. No.130 of 2008 has also came to be dismissed by J.M.F.C. on 31st December 2012.

(27.) Apart from the above criminal case No.414 of 2004 ending up in acquittal, which has become final, record shows that Respondent filed Regular Criminal Case No.958 of 2009 on 1st June 2009 before Chief Judicial Magistrate, Aurangabad against not merely the Petitioner but also his   Advocates who were signatories to the marriage certificate as well as Advocate Ghanekar who was defending the Petitioner in the criminal case and also Head Constable Adhane who gave evidence in the criminal case to prove application Exhibit 84 dated 29th November 2002. She arrayed all of them in the criminal case seeking prosecution under Sections 469 and 471 of I.P.C. The C.J.M. found the complaint to be time barred and also referred to Section 195 of the Code of Criminal Procedure (Cr.P.C.) that cognizance could not be taken by other Court except on the complaint in writing of the Court before whom the offence was alleged to have been committed. It shows that Respondent wants to intimidate whoever may stand for Petitioner. Roping in his defence Advocate as accused, seriously reflects against Respondent.

Not satisfied with the Judgment of the C.J.M., the Respondent filed Criminal Revision No.19 of 2002 before the Additional Sessions Judge, Aurangabad and the dismissal of the complaint filed by the   Respondent has been maintained. It is quite clear reading Section 195 with Section 340 of Cr.P.C. that when the offence is alleged to have been committed in or in relation to the proceedings in the Court, the complaint by the concerned Court would be necessary. Ignoring these provisions, in the present matter the Family Court has allowed evidence to be led to show that the income tax return filed in the earlier petition was forged and that Exhibit 84 did not bear signature of the Respondent which was filed in the earlier criminal case. The Family Court concluded that these documents were forged (Para 60 to 62 of the Judgment) accepting the evidence of the handwriting expert, although the handwriting expert had admitted that the analysis he had carried out was on the basis of xerox copies (rather – photocopies) which the Respondent had provided to him. Thus, in law or even on appreciation of evidence, the findings recorded by the Family Court on this count cannot be   maintained.

(28.) In line with the other on-slaught of the Respondent against the Petitioner, is the Regular Civil Suit No.713 of 2009 filed by the Respondent against Petitioner claiming that he intends to go for another marriage and he should be restrained.

The suit has been dismissed by 18th Joint Civil Judge, Junior Division, Aurangabad on 22nd November 2012.

(29.) With Civil Application No.15183 of 2015 the Petitioner has brought on record copy of the application which Respondent gave to Women and Child Welfare Officer on 12th December 2007. There also similar allegations as in the present matter, were made by the Respondent. She added in prayer (B) that the present Petitioner should be restrained from letting other women come to the building Sonai, Seven Hills, other than his mother and two sisters and no such other woman should be   allowed to stay there as paying guest or tenant or to come as friend.

. Clearly, Respondent was making allegations against the character of the Petitioner although in the written statement she filed, she claimed that she was not suspecting the character of the husband. Such psyche of groundless, unsupported doubts by one spouse as seen in present matter (of seeking to keep out all women (other than mother and sisters) from the house and baseless suit to restrain husband from re-marrying) cast aspersions on character of the other spouse amounting to cruelty.

(30.) Considering the observations of the Hon’ble Supreme Court in various matters, referred above, where wild allegations are made in criminal cases one after the other, we find that in the present case also the Respondent indulged in various conducts once she received summons in the   earlier divorce Petition No.A.46 of 2004, which were in the nature of subjecting the Petitioner and his family members to humiliation. She appears to have resorted to all means to ensure that the Petitioner or his family members do not get bail and should remain in jail. She made allegations of dowry demand and assault, which have not been proved. Considering the allegations in the F.I.R. and even those made to the Women and Child Welfare Officers, as well as allegations made to the J.M.F.C. in Domestic Violence case, the acts were in the nature of inflicting mental cruelty to the Petitioner and his family members. The Petitioner and one of his brother had to undergo the agony of getting arrested and later on being released on bail. Brother of Petitioner admittedly living separate has been called a “parasite” by Respondent in this Petition and was dragged in criminal case. They had to face the criminal prosecution, which appears to have been motivated.

The Family Court brushed aside the impact of such   actions of Respondent only because the mother of Petitioner did not lose her job or the brother of Petitioner could still contest municipal election or the Petitioner put up hospital in already owned family house. When the family is facing such criminal prosecution, and they had to face arrest and the wife is making allegations against the character of the husband, mental cruelty is clearly established.

(31.) Considering evidence of the parties, we find Petitioner reliable when he deposed that due to conduct of Respondent deserting him, he filed earlier Petition reacting to which Respondent misbehaved with him in public at Nutan Colony on 25th February 2004 and again on 26th February 2004 and 28th February 2004 and then subjected him and his family to further cruelty by lining up false cases against him and his family.

(32.) A parting reference can be made to recent   Judgment of the Hon’ble the Supreme Court in the matter of K. Srinivas vs. K. Sunita, (2014) 16 Supreme Court Cases, 34, where it was observed that:

It is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce.”

CRUELTY PROVED:

(33.) We find substance in the arguments of learned Senior Counsel for Petitioner. The Rulings relied on by learned counsel for Respondent were on different facts and we are unable to agree with his submissions made. For reasons discussed, we find that the Petitioner has proved that the Respondent has, after the solemnization of the marriage, treated the Petitioner with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. There are no grounds to attract Section   23 of the Hindu Marriage Act and the Petitioner is entitled to decree of divorce.

PERMANENT ALIMONY:

(34.) Learned counsel for the Petitioner fairly stated that if this Court considers granting of divorce, any amount may be fixed as permanent alimony under Section 25 of the Hindu Marriage Act. In the record of the trial Court at Exhibit 157 there is assessment-sheet of the house at Seven Hills, Aurangabad belonging to the Petitioner and his family showing the value as Rs.1,07,41,500/- (Rupees One Crore Seven Lakhs Forty One Thousand Five Hundred). The property card at Exhibit 45 shows that apart from mother of Petitioner his two brothers are also co-owners in the property which they have inherited from their father. In the cross-examination of the Petitioner (Para 1) the Respondent brought on record the fact that his mother is assistant teacher in grant aided school. His father was no more at the time   of their marriage. Earlier, his father had been head master in private education institution. The above property came in the family in view of efforts of his father. One of the brother of the Petitioner appears to be worker of some political party and other brother Vijay was in service. The Petitioner appears to have set up his hospital in part of the property and is also having clinic at Indu-Ganga complex. Thus with humble beginnings the family was just coming up. Respondent similarly has started with humble beginnings and the sisters and brothers with education have come up. There was suggestion put by Respondent herself in the cross-examination of the Petitioner at Para No.19, that when they were together, she was earning Rs. 10,000/- to Rs.12,000/- per month, which suggestion has been accepted by the Petitioner. The position that emerges is that in the ancestral house, there are four co-sharers and the Petitioner is a doctor, while Respondent also is a doctor. Keeping in view this capacity of both   the parties, and the sources available to the Petitioner and the responsibility as husband to assist the wife in settling, it would be reasonable to direct the Petitioner to deposit an amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs) in the Family Court as permanent alimony payable to the Respondent.

(35.) For the reasons afore stated, we pass the following order:

O R D E R (I) The Family Court Appeal is allowed.

Impugned Judgment and Order are quashed and set aside. Petition No.A.263 of 2006 is allowed.

(II) The marriage dated 29th November 2002 between the Appellant-Petitioner and Respondent is hereby dissolved by decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

(III) The Appellant is directed to pay permanent alimony of Rs.25,00,000/- (Rupees Twenty Five Lakhs) under Section 25 of the Hindu Marriage Act, 1955 to the Respondent.

The amount shall be deposited in the Family Court within a period of THREE MONTHS from the date of this Judgment and order.

(IV) No order as to costs.

(V) Decree be drawn accordingly.

[A.I.S. CHEEMA, J.]

[R.M. BORDE, J.]

asb/JAN16

Allowing trial to proceed against innocent relatives, outsiders is a travesty of justice & abuse of law. 498a cocktail quashed

////15. It may be seen from the aforesaid judgments that the Supreme Court has expressed its concerned with regard to false implication of husband and his relatives in the cases under section 498-A of the Indian Penal Code by disgruntled wives. It has also been held that the tendency of falsely implicating even those relatives of husband, who lived separately and in different cities is also growing. It has been held that if there are no specific and credible allegations against, with necessary particulars against the relatives of the husband, they should not be made to suffer the ignominy of a criminal trial.

In the instant case, as we have already seen that there are specific allegations against husband Shrikant and his father Sudama Prasad who lived together in the matrimonial home of the complainant along with her. Thus, the power under section 482 of the Code of Criminal Procedure cannot be used to stifle their prosecution. However, so far as remaining applicants/accused persons are concerned, none of them lived together with the husband and father-in-law in the matrimonial home of the complainant. Moreover, there are no specific and credible allegations with necessary particulars, against them. Only omnibus allegations shorn of even basic details, have been leveled; therefore, in the opinion of this Court, they should not be made to undergo the rigmarole of a criminal trial. Allowing trial to proceed against the aforesaid relatives would be travesty of justice and abuse of process of law. As such, exercise of extra-ordinary powers of the High Court reserved under section 482 of the Code of Criminal Procedure, is called for.
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10-12-2015

HIGH COURT OF MADHYA PRADESH : AT JABALPUR

Miscellaneous Criminal Case No.2112/2015

Shrikant Tamrakar and others
Vs.
State of Madhya Pradesh and another

Present:- Hon’ble Shri Justice C.V. Sirpurkar

Dr.Anuvad Shrivastava, counsel for the applicant.
Shri Amit Pandey, Panel Lawyer for the respondent/State.

ORDER

(10-12-2015)

  1. This miscellaneous criminal case has been instituted on an application under section 482 of the Code of Criminal Procedure filed on behalf of applicants/accused persons in Crime No.32/2015 registered by P.S. City Kotwali, Chhindwara, under section 498-A read with section 34 of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act, 1961.
  2. The facts giving rise to this miscellaneous criminal case may briefly be stated thus: Complainant Harshna Paigwar filed a written report with the police to the effect that she was married to applicant/accused No.1 Shrikant Paigwar/Tamrakar by Hindu Rites in a Group Marriage Ceremony under the Chief Minister’s Scheme at Chhindwara, on 06-06-2014. In the marriage, her mother spent about Rs.4,00,000/- and gave gold and silver ornaments and house- hold items to the complainant. In addition thereto, she had also given Rs.2,00,000/- in cash and clothes at the time of engagement ceremony. Applicants/accused Sudama Prasad Tamrakar is father, Amarlal Tamrakar is father’s brother-in- law, Uma Tamrakar is father’s sister, Anoop Tamrakar is brother-in-law, Eshwari Tamrakar is sister, Sachin Chandravanshi is brother-in-law and Jaishri Chandravanshi is sister of applicant No.1 Shrikant Tamrakar. Applicant No.9 Krishna Tamrakar is not in relation with applicant No.1 Shrikant Tamrakar. When the complainant went to matrimonial home at Chhindwara, from her maternal home at Chichli, Gadarwara, her two sisters-in-law Eshwari and Jaishri and their husbands Anoop and Sachin as also her father-in- law’s sister Uma and her husband Amarlal Tamrakar as well as Krishna Tamrakar started saying that her mother had given nothing in dowry. She ought to have given at least Rs.5,00,000/-. Krishna Tamrakar said that at Chhindwara people evem spent 10,00,000/- in marriages. The aforesaid relatives of her husband started taunting and mentally harassing her. Sudama, her father-in-law also mentally harassed her for dowry. Her husband Shrikant called his friends, to consume liquor in her matrimonial home. Shrikant told the complainant to do everything she does with him, with his friends as well. Her husband and father-in-law pressurized her to ask her mother on telephone to give a shop in dowry. Her husband and her father-in-law also forcibly administered intoxicating tablets and on one occasion, an injection to her. Once her husband and father-in-law tried to pour kerosene on her; whereon she ran away to her neighbours’ place and called her mother on telephone. Thereafter her mother came and took her to her maternal home. Her husband and father- in-law say that they would take her to her maternal home only after her mother would make arrangement for more dowry. The FIR was lodged on 14-01-2015. After investigation, charge-sheet was filed in the Court on 26-09-2015.
  3. The applicants have prayed for quashing the first information report and the proceedings arising therefrom on the ground that applicant No.1 Shrikant married complainant Harshna in Group Marriage Ceremony under the Chief Minister’s Scheme. The family of applicant Shrikant lived below poverty line. The complainant lived at her matrimonial home with applicant Shrikant only after a brief period of 10-12 days. Thereafter, her mother took her to her matrimonial home leveling false allegations against applicant Shrikant and other family members. Since, the complainant refused to live with applicant No.1 Shrikant, he served a notice dated 25-08-2014 upon her through his advocate by registered post but the complainant did not pay any heed to the aforesaid notice. Consequently applicant No.1 Shrikant Tamrakar filed an application under section 9 of the Hindu Marriage Act in the Court of Principal Judge, Family Court, Chhindwara on 18-11-2014, for restitution of conjugal rights which has been registered as Hindu Marriage Petition No.418/2014. As a counter blast to the said application, the complainant filed present first information report on 15-01-2015, wherein false allegations have been leveled not only against applicant Shrikant and father Sudama Prasad but also against Krishna Tamrakar, who is not related to applicant Shrikant as also other relatives, who lived in other towns separate from applicant Shrikant on omnibus allegations. Therefore, it has been prayed that the first information report and the criminal proceedings arising therefrom be quashed.
  4. A notice was directed to be issued against the complainant (respondent No.2 Harshna); however, a perusal of the Court order dated 06-08-2015 reveals that no one had appeared on behalf of the respondent No.2 even after due service upon her. Thus, complainant was not represented before the Court at the time of arguments.
  5. On due consideration of the contentions of learned counsel for the applicants and respondent No.1/State as also after perusal of the case diary, this Court is of the view that this application under section 482 of the Code of Criminal Procedure must succeed in part.
  6. It is admitted that charge sheet in the matter has been filed. However, it has been held by the Apex Court in the case of Satish Mehra Vs. State (NCT of Delhi) and another, AIR 2013 SC 506 that the power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as the case may be, prima facie do not disclose a triable offence, there can be no reason as to why the accused should be made to suffer the agony of legal proceeding. Thus, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of charge against the accused. Thus, the High Court can certainly exercise power under section 482 of the Code of Criminal Procedure after filing of the charge sheet or even after framing of charge.
  7. It has also been held by the Supreme Court in the case of Harshendra Kumar D. Vs. Rebatilata Koley AIR 2011 SC 1090 that uncontroverted documents or material of unimpeachable or sterling character may be considered while exercising jurisdiction under section 482 of the Code of Criminal Procedure. The same view has been taken by the Supreme Court in the cases of State of Orissa vs. Devendra Nath Padhi, 2005(1) SCC 568, Rukmani vs. Vijaya, AIR 2009 SC 1013 and Rajiv Thapar vs. Madan Lal Kapoor, AIR 2013 SC (supp.) 1056.
  8. Reverting back to the facts and circumstances of the case at hand, it is found that there is nothing on record to suggest that applicant Krishna Tamrakar (accused No.7) is, in any manner related to husband Shrikant Paigwar. Thus, the observation alleged to have been made by him that some people at Chhindwara spent even Rs.10,00,000/- in marriage, is inconsequential and does not make him liable to be implicated in a case under section 498-A of the Indian Penal Code.
  9. So far as accused persons other than Shrikant, Sudama and Krishna are concerned, Amarlal Tamrakar is brother-in- law of Sudama Prasad. Uma Tamrakar is Amarlal’s wife and Sudama Prasad’s sister. Anoop Kumar is Eshwari’s husband and Shrikant’s brother-in-law. Likewise, Sachin is husband of Jaishri and brother-in-law of Shrikant. Eshwari and Jaishri are married sisters of Shrikant. Sister Eshwari and her husband Anoop Jasathi lived at Cheechli, Tahsil Gadarwara, District Narsinghpur. Other sister Jaishri and her husband Sachin lived at House No.43 Patwari Colony, Khargaon. Sudama’s sister Uma Tamrakar and her husband Amarlal lived at Bhairoganj Seoni. Krishna Tamrakar lived separately from Shrikant and his father Sudama, at Chhota Talab, Chhindwara. Only Shrikant and his father lived together at 23 Nice Chowk Chhindwara. Aforesaid addresses of the applicants have been recorded after investigation, in the charge sheet. Thus, it is admitted position that apart from Shrikant and Sudama no one else has ever resided with the complainant in the same house at Chhindwara.
  10. In the first information report, which was recorded on the basis of a written report, specific allegations have been made against husband Shrikant and his father Sudama Prasad regarding harassment and cruelty for dowry; however, the allegations against the remaining applicants are omnibus in nature and no time and date of the incidents have been given. Moreover, in her statement recorded under section 161 of the Code of Criminal Procedure on 25-01-2015, complainant Harshna has simply stated at the end, probably by way of after-thought that other accused persons had said that more money ought to have been given in the marriage and applicants could deserved a better girl. In the end, a general statement was made that all persons had beaten her for dowry. However, no specific role in this regard has been ascribed to any of them nor time and date of the assault has been given. In any case, complainant is said to have stayed in her matrimonial home for not more than 10 or 12 days.
  11. It may be noted in this regard that the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, 2014(8) SCC 273, observed that: “… There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.
  12. It has been observed by the Supreme Court in Preeti Gupta v. State of Jharkhand , AIR 2010 SC 3363 that:“..The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.â? â??When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants.â?
  13. Likewise, in the case of Neelu Chopra & anr. v. Bharti, AIR 2009 SC(Supp) 2950, Supreme Court held as follows: â??It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.â?
  14. A three judge bench of Supreme Court in the case of Kans Raj vs. State of Punjab, AIR 2000 SC 2324 observed that: â??For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusation are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in- laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.â?
  15. It may be seen from the aforesaid judgments that the Supreme Court has expressed its concerned with regard to false implication of husband and his relatives in the cases under section 498-A of the Indian Penal Code by disgruntled wives. It has also been held that the tendency of falsely implicating even those relatives of husband, who lived separately and in different cities is also growing. It has been held that if there are no specific and credible allegations against, with necessary particulars against the relatives of the husband, they should not be made to suffer the ignominy of a criminal trial.
  16. In the instant case, as we have already seen that there are specific allegations against husband Shrikant and his father Sudama Prasad who lived together in the matrimonial home of the complainant along with her. Thus, the power under section 482 of the Code of Criminal Procedure cannot be used to stifle their prosecution. However, so far as remaining applicants/accused persons are concerned, none of them lived together with the husband and father-in-law in the matrimonial home of the complainant. Moreover, there are no specific and credible allegations with necessary particulars, against them. Only omnibus allegations shorn of even basic details, have been leveled; therefore, in the opinion of this Court, they should not be made to undergo the rigmarole of a criminal trial. Allowing trial to proceed against the aforesaid relatives would be travesty of justice and abuse of process of law. As such, exercise of extra-ordinary powers of the High Court reserved under section 482 of the Code of Criminal Procedure, is called for.
  17. Consequently, this application under section 482 of the Code of Criminal Procedure is allowed in part.
  18. The first information report registered by P.S. City Kotwali, Chhindwara, in Crime No.32/2015 under section 498-A read with section 34 of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act and the criminal proceedings arising therefrom pending in the Court of Judicial Magistrate First Class, Chhindwara, so far as they relate to applicants Eshwari, Anoop, Jaishri, Sachin, Uma, Amarlal and Krishna are quashed. The trial arising from aforesaid first information report against husband Shrikant and father-in-law Sudama Prasad, shall continue in accordance with law.

(C V SIRPURKAR) JUDGE

Absurd and #Fake #498a counter blast to husband’s #RCR quashed by #MPHC

Whether prosecution U/S 498A and S 294 of IPC can be quashed?

Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”

12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases

13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.

 

Madhya Pradesh High Court

Kunaldev Singh Rathore @ Kunal Dev … vs State Of M.P on 2 December, 2016

(02.12.2016 )

  1. 1. Applicants, vide instant application under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) seek quashing of FIR bearing Crime No.614/2013 dated 18.12.2013 for commission of offences punishable under Sections 323, 294, 498-A and 506 of the Indian Penal Code (in short ‘IPC’) registered at police Station Kotwali District Bhind (M.P.). Further, the quashing of Criminal Case No.183/2014 has also been sought, which has been registered in furtherance to the said FIR.
  2. 2. The facts leading to filing of instant application are that a marriage was solemnized between the applicant No.1 and respondent No.2 on 21.11.2007 and a son has born out of the wedlock. According to the complaint made by respondent No.2, the present applicants were harassing her since the date of marriage for demand of Indica Car, however, she tolerated the harassment with a hope that one day the applicants will mend their ways and will treat the respondent No.2 properly. Although, the situation did not improve and one day the respondent No.2 was thrown out of the matrimonial home along with her son, whereafter, she started living with her parents at Madho Ganj, Bhind. Respondent No.2 did not have any means to maintain herself and she did not want to burden her parents, an application for maintenance by her and the son was filed, in which the notices were issued, however the applicants did not accept the summons issued by the Court and on 8.9.2013 the applicants are alleged to have visited the house of parents of respondent No.2. During their visit, the applicants pressurized respondent No.2 to withdraw the case filed by her, failing which it was threatened that she will face dire consequences.
  3. 3. Due to the incident dated 8.9.2013 the respondent No.2 submitted a complaint before the police and requested to register the FIR against the applicants. Although, the police did not take any action prompting the respondent No.2 to file complaint case before the concerned Magistrate under Section 200 of the Code of Criminal Procedure, 1973, who, in turn, instructed police to submit report under Section 156(3) CrPC. The police informed the Magistrate that it is taking cognizance of the matter and will record the FIR for commission of offences punishable underSections 323, 294, 506 and 498-A read with Section 34 of IPC. Consequently, on 18.11.2013, an FIR for the said incident was registered bearing Crime No.614/2013 at police Station City Kotwali District Bhind.
  4. 4. After completion of investigation, the police has filed charge-sheet against all the applicants on 6.2.2014 before the concerned Magistrate for the offences mentioned in the FIR. In order to seek quashing of criminal proceedings, the instant application has been filed.
  5. 5. It has been stated before this Court that in respect to instant case, no other matter has been pending for similar relief. Further, it has been stated that the applicants have preferred instant application rather than invoking the revisional jurisdiction citing the reason that this Court underSection 482 CrPC has wider jurisdiction.
  6. 6. According to learned counsel for the applicants, the plain reading of the content of the FIR does not reveal commission of offences levelled against the applicants. Moreover, the FIR has been lodged in order to defeat the proceedings initiated by the applicant No.1 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. It has also been contended that the respondent No.2 herself has violated the law by siphoning the gold of the present applicants and fleeing away to her parental home. In support of the contention, learned counsel for the applicants placed reliance on the complaint (Annexure P/4) submitted before the police. Accordingly, it is contended that the prosecution has been launched to misuse the criminal justice system and it is a fit case for interference. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  7. 7. Per contra, learned counsel appearing on behalf of respondent No.1-State has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the application deserves to be dismissed. According to learned counsel for respondent No.2, she had already moved application for maintenance and the application under Section 9 of HMA has been filed subsequently by the applicant No.1 which itself shows the intention of the applicants to cause delay in decision of application for maintenance filed by her. As per learned counsel for respondent No.2, the Supreme Court in the case of Taramani Parakh vs State of M.P., 2015 (2) JLJ 1 (SC), has held that legitimate prosecution cannot be stifled by resorting to petition underSection 482 CrPC as there has to be a trial conducted to arrive at a conclusion about the participation of accused persons in the crime. Therefore, the application merits no consideration and liable to be dismissed.
  8. 8. I have considered the rival contentions raised on behalf of the parties and have perused the documents placed on record along with the present application.
  9. 9. The parameters on which the indulgence can be shown for exercising powers available underSection 482 CrPC with respect to matrimonial matters have been laid down by the Apex Court in the case of Geeta Mehrotra vs State of U.P. (2012) 10 SCC 741 in the following manner : “20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 21. It would be relevant at this stage to take note of an apt observation of this Court recorded in G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693 : 2000 SCC (Cri) 733] wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: (SCC p. 698, para 12) “12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their ‘young’ days in chasing their ‘cases’ in different courts.” The view taken by the Judges in that matter was that the courts would not encourage such disputes.”
  10. 10. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal v. Devi Polymers (P) Ltd., (2016) 6 SCC 310, wherein the Hon’ble Court referred to the earlier decision, observed in the following manner :-  “15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , this Court observed as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  11. 11. In the context of the law laid down by the Apex Court, the plain reading of the complaint submitted by respondent No.2, which has been reproduced in the FIR dated 18.12.2013, goes to show that the allegations relating to commission of offence punishable under Section 498-A of IPC are omnibus and do not refer to any specific act of the applicants. According to the complaint, the respondent No.2 was subjected to cruelty due to non- fulfillment of demand of Indica Car in dowry by the applicants. It is undisputed in the instant case that the marriage was solemnized on 21.11.2007. Although the complaint is silent about the fact as to when she left the matrimonial house. Further, with respect to this allegation, the applicants have brought on record the registration certificate issued by transport department on 10.1.2008 with respect to Indica Car. Moreover, the documents reflecting TATA Sumo in the name of applicant No.2 and other four-wheeler have also been brought on record. On cumulative consideration of these circumstances, it is revealed that the accusations regarding cruelty and harassment for demand of Indica Car are absurd and improbable. At this stage, it is important to note that the documents tantamount to material filed by the applicants in their defence and as per the judicial pronouncement by the Supreme Court on consideration of defence material at a preliminary stage in a criminal prosecution, such documents cannot be made basis for taking any decision. But, the Apex Court in the case of Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, has held as under: “21. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as Euclid’s formula [vide Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887 : JT (2008) 8 SC 621] ]. As observed by this Court in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani(2004) 8 SCC 579 : AIR 2004 SC 4778, observations of courts are neither to be read as Euclid’s formula nor as provisions of the statute. 22. Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”
  12. 12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.
  13. 13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.
  14. 14. In this view of the matter, the present application under Section 482 CrPC is partly allowed. Accordingly, the FIR and the consequent proceedings so far as they relate to the offences punishable under Sections 498-A and 294 of the IPC are quashed. However, with regard to remaining offences, the proceedings shall continue.
  15. 15. It is made clear that the trial Court shall decide the case without being influenced by the observations made by this Court.

(S.K.Awasthi) Judge.

Filing #False498a on husband is #Cruelty. #Divorce affirmed. #MadrasHC

/////a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498A I.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce./////
******
Madras High Court
Author: M Chockalingam
Bench: N Balasubramanian, M Chockalingam

JUDGMENT M. Chockalingam, J.

1. This appeal has arisen from the order of the I Additional Family Court, Chennai, granting divorce in favour of the respondent husband under Sec. 13(1)(1a) of the Hindu Marriage Act.

2. The respondent husband sought a decree of divorce before the lower Court alleging that the marriage between himself and the appellant herein took place on 5.9.1991; that they have been living happily for a short while; that thereafter, she created problem and went over from the matrimonial house to her parents’ house; that she lodged a false complaint against him, on the basis of which a case was registered by the police for dowry harassment; that he was arrested and later, let on bail; that the criminal proceedings also went on, and thus, all along, he has been harassed by her; that because of that, he had mental cruelty, and hence, it was a fit case for granting the relief of divorce.

3. The O.P. was contested by the appellant wife stating that it is true that there was a marriage between the parties, but, she was driven away; that there was a child born; that he has not even cared to maintain her or her child; that the allegation that there was mental cruelty caused by the wife against the husband, is utterly false; that he having failed to maintain his wife and child, has come with this false case; that within a short time from the time of marriage, namely a week, there was a dowry harassment by the husband and his sister; that a complaint was lodged by her father in that regard; that pursuant to the same, a case came to be registered under Sec. 498A I.P.C., and criminal proceedings went on; that he was also found guilty in the said case by the trial Court; that the allegation now made by him is an invention; that in order to wriggle out of the marriage tie, he has filed this false case, and hence, the relief was to be denied. https://twitter.com/ATMwithDick/status/1021441313613459456

4. The trial Court recorded the evidence. On the appraisal of the entire evidence, the Court below has found that it was a fit case for divorce and accordingly, granted the relief, what is being challenged in this C.M.A.

5. The learned Counsel appearing for the appellant wife, would submit that in the criminal case, both the lower Courts have found that there was a dowry harassment; that though the judgments of the lower Courts were set aside by this Court, there was sufficient evidence let in to substantiate the dowry harassment, and apart from that, having harassed his wife by demanding dowry, he has come forward with the false case for divorce; that he has not even cared to maintain the wife and child; and that it is pertinent to note that the wife has also filed a O.P. for restitution of conjugal rights, which shows the intention of the appellant to live with him. Added further the learned Counsel that the husband has not produced any iota of evidence to show that there was any cruelty made against him; that the petition should have been dismissed by the lower Court, and hence, the order of the lower Court has got to be set aside.

6. After careful consideration of the submission made by the learned Counsel for the appellant and on scrutiny of the available materials, this Court is of the considered opinion that it is not a fit case warranting for admission or for notice to the respondent. https://twitter.com/ATMwithDick/status/1021441313613459456

7. Admittedly, the appellant married the respondent on 5.9.1991, and out of the said wedlock, there was a male born. It is also not in dispute that she lived with him only for a short time. The only contention put forth by the appellant’s side, is that she was driven away from her matrimonial house, and thus, there was a necessity to live with her parents. On the contrary, the respondent husband came with the case of divorce stating that there was mental cruelty, exerted by her by lodging a false complaint under Sec. 498A I.P.C.; that a case came to be registered, and he was also arrested in that regard; that the same would constitute a cruelty, and hence, divorce has to be given. It is an admitted position that the appellant herein lodged a complaint against her husband, and criminal proceedings were initiated; that the said complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.11007 of 1992, and the trial went on. It is pertinent to point out that after the initiation of the criminal proceedings, the respondent herein was arrested, and subsequently, he was let on bail. Though the case ended in conviction, he took it on appeal in C.A.No.91 of 1998, which was taken up by the Sessions Court, Madras, which also confirmed the conviction and sentence imposed on him. In such circumstances, the husband took it on revision before this Court in Crl.R.C.No.941 of 2000. This Court had an occasion to consider the rival submissions made and to scrutinise the materials. This Court allowed the revision case and acquitted the respondent husband. At this juncture, it has to be pointed out that on the complaint given by the appellant wife against her husband for dowry harassment, a case came to be registered by the police, and he was arrested and let on bail. He faced the trial before the Chief Metropolitan Magistrate’s Court, Chennai in a Calendar Case, and he was convicted and sentenced. That apart, the appeal in C.A.91/98 preferred by him, has also met the same fate at the hands of the Sessions Court. Finally, he was acquitted by this Court.

8. It would be more appropriate and advantageous to reproduce the order of this Court in Crl.R.C.941 of 2000 as follows: “The facts narrated above indicate that the allegations in the complaint to P.W.8 on 26.5.92 should only be considered as an after thought and that the said complaint was given by P.W.1 only to harass the petitioners to subjugate the first petitioner to her wish to stay at Madras. I am unable to accept the prosecution version that the petitioners, joining with the other accused, made a demand for dowry.” Thus, from the wordings found in the judgment of this Court in the revision, it would be clear that it was a false complaint.

9. The case of the appellant was that there was no cruelty exerted, cannot be accepted or countenanced for the simple reason that a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498AI.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce.

10. The learned Counsel for the appellant would submit that the respondent husband has not even made any arrangement for the maintenance of the appellant wife and the minor child also. In such circumstances, while confirming the order of the lower Court, it is made clear that the observations made herein, will not in any way impede the appellant to take necessary proceedings in respect of maintenance for herself and for the child. https://twitter.com/ATMwithDick/status/1021441313613459456

11. With the above observation, this civil miscellaneous appeal is dismissed. No costs. Consequently, connected C.M.Ps. are also dismissed.

Fake #498a wife’s #transfer petition on HMOP #dismissed by #Madras #HighCourt

Aunt and uncle arrested in wee hours by police, on the basis of a fake #498a file MUCH after matirmonial discord started

US based NRI husband & relatives accused

HC refuses wife’s transfer petition !!


 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.01.2009

CORAM

THE HONOURABLE MR. JUSTICE M.VENUGOPAL

Tr.C.M.P.No.361 of 2008

Nivashini Mohan .. Petitioner

Versus

R.Nivendran .. Respondent

Transfer Civil Miscellaneous Petition is filed to withdraw and transfer the H.M.O.P.No.311 of 2008 from the file of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with H.M.O.P.No.201/2008.

For Petitioner : Mr.T.R.Senthil Kumar

For Respondent : Mr.Thomas T.Jacob

ORDER

The petitioner/wife has filed this Transfer C.M.P.361/2008 praying for issuance of an order by this Court, directing the transfer of HMOP.311/2008 from the fire of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with HMOP.201/2008.

  1. The petitioner/wife in her affidavit in the Transfer Petition has averred that her marriage with the respondent/husband has taken place on 2.7.2006 according to Hindu Rites and Customs at Vemubuli Amman Temple, Aminjikarai, Chennai, though the marriage has been formally registered on 28.06.2006 and later by the threat and compulsion of the respondent/husband registered the marriage at Sub-Registrar Office, Pammal on 26.09.2005 and because of the continuous harassment and demand of dowry by the respondent/husband and his family members, she has faced cruelty and mental agony and that after her marriage, within a short span of three months. She has been driven out of the matrimonial house three times by the family members of the respondent/husband and that she has been compelled to give up her job and that she has been threatened to abort even at the very early stage of her pregnancy and that she has been forced to locate a rented house near her office at Perungudi on intimation to the respondent/husband, as per the advise of the Doctor and that she shifted her residence on 1.12.2006 and that having waited for two months, she sent E-mails to the respondent/husband narrating all the ill-treatments and cruelty meted out to her. The respondent/husband filed HMOP.352/2007 before the Principal Family Court, Chennai under Section 9 of the Hindu Marriage Act alleging as if the petitioner/wife has refused to join with him and on 18.4.2007, the said HMOP has been dismissed based on the endorsement made by the parties and the respondent/husband has come to Perungudi after three days on 21.04.2007 and that during the said stay of the respondent/husband from 21.04.2007, he has threatened the petitioner/wife to give consent for divorce or comply with the demand of his family members and after the birth of the male child, the respondent/husband with his family members identified a rented house, an unfinished one near his parents residence at Arumbakkam and that she has been asked to vacate the house at Perungudi on 31.07.2007 and that the respondent/husband has brought her and the child to Vandalur at the residence of her parents etc.
  2. It is the further case of the petitioner/wife that she has been required to come with the 40 days infant child to Arumbakkam on 8.8.2007 to the newly rented house in the second floor at Arumbakkam and on believing the assurance of the respondent/husband, when she went there on 8.8.2007, the respondent/husband has not taken care of her and her child and used to go to his parents house even without providing food etc and that the child’s eyes were affected and that the respondent/husband sent her out from the matrimonial house on 11.08.2007, on the ill advise of his family members.

  3. Eversince the time she has been driven out by her husband, she has been living at Vandalur with the help of her parents and that she made frequent efforts to contact the respondent/husband to take clothes and medicines for the child etc and later she shifted her house to Tharamani near her office after intimating the same to the respondent/husband and she came to know that the respondent/husband was in abroad in U.S.A during that time. But her efforts to contact him has ended in vain and later she gave a complaint before the Protection Officer, Teynampet, Chennai requesting for arranging a reunion with the respondent/husband, but he participated in the enquiry on 31.1.2007, but failed to yield the advise of the Protection Officer and subsequently, she has been perforced to file a criminal complaint before the Chief Metropolitan Magistrate Court, Egmore, Chennai and the same being forwarded to the Inspector of Police, W7-All Women Police Station, Anna Nagar, Chennai which culminated in filing of charge sheet in C.C.10989/2008 against the respondent and his family members and prior to that she has filed HMOP.201/2008 before the Sub-Court, Chengalpattu under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights and that the respondent has entered appearance through his counsel and later, she has been informed by her friend that a Paper Publication, dated 5.7.2008 has been effected by the respondent as a public notice for her appearance on 2.9.2008 in a case before the II Additional Family Court, Chennai in O.P.311/2008.

  4. With this background, the learned counsel for the petitioner/wife submits that the petitioner/wife has to spend a minimum of 4 hours for her travel from Chengalpattu to the court at Chennai for her appearance and further that as per the Family Court proceedings, the personal appearance of the parties on the date of hearing is mandatory and as such, the wife may not be able to appear before the II Additional Family Court on every hearing date, since she has a child and living near Chengalpattu and therefore prays for allowing the Transfer Original Petition in the interest of justice.

  5. The respondent/husband has filed a detailed counter inter alia stating that he sent a mail on 16.01.2007, requesting the petitioner/wife to sort out differences if any by going before the marital counselling. But the same has been shunted with retaliatory mails abusing him and his parents and that he filed O.P.352/2007 before the Principal Family Court for restitution of conjugal rights and after the disposal of the complaint, the petitioner/wife has refused to live in his house stating many allegations against his parents and sister that they would be ill treating her etc. and when there were vast difference of opinion at the end of the counselling both have agreed to start a new life forgetting the past and also with an agreement to accept each others parents etc. and that because of the attitude of the petitioner/wife, the marriage has ultimately broken and that the petitioner/wife has filed a complaint under the Domestic Violence Act before the Protection Officer, Teynampet, Chennai against him, his parents, sister, uncle and aunt and he has been in USA during this period and since he returned to Chennai, he informed the Protection Officer who has taken part in the enquiry and later he filed O.P.311/2008 on the file of the II Additional Family Court, Chennai on 1.12.2008 and in the meanwhile, the petitioner/wife has filed a false complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai under the Dowry Prohibition Act and the Domestic Violence Act and a First Information Report has been registered on the evening of 15.04.2008 and that his parents, sister, uncle and aunt have been taken into custody on 16.4.2008 early morning and that a charge sheet has been filed in C.C.10981/2008 before the Chief Metropolitan Magistrate Court and that complaint has been filed against the suspended Inspector of Police Mrs.Rajalakshmi for her partial attitude and non-investigation of the case as per the Criminal Procedure Code and the same is pending enquiry by the Directorate of Prosecution.

  6. Continuing further, with a view to harass the respondent/husband and his family another case C.C.356/2008 has been filed before the Judicial Magistrate No.II, Chengalpattu by the petitioner/wife in a different jurisdiction upon the same cause of action. When a complaint has been preferred to the Protection Officer, Chennai under the same act is pending and that the petitioner has subjected herself to the jurisdiction of Chennai in the marital case earlier when she has been residing in a residence outside the jurisdiction of the Court and that she has also sought the relief before the Protection Officer, Chennai, when she has been residing outside the jurisdiction and in C.C.10981/2008 pending before the Chief Metropolitan Magistrate Court, she has sought the relief, while she has been outside the jurisdiction and that the restitution of conjugal rights proceedings instituted in Chengalpattu and therefore, the respondent/husband prays for dismissing the transfer petition.

  7. It is true that in transfer of matrimonial petitions, convenience of the wife must be given the prime importance. The important principle for exercising of the powers under Section 24 of the C.P.C. is the convenience and inconvenience of the parties. The question of expediency will depend upon the facts and circumstances of each case. However, the paramount consideration for exercise of the power must be to meet the ends of justice. For the purpose of transfer, the balance of convenience of the parties should be considered. Moreover, the petition under Section 24 of C.P.C. is not to be dealt with lightly and the transfer of a case from one court to another should not be granted readily for any fancied notion of the petitioning party. For the purpose of transfer, a court of law is required to find out whether a particular party has chosen a forum in utter disregard to the convenience of the parties for some ulterior object and in abuse of her position as a arbiter litus. The basic principle is for exercise of power under Section 24 of the CPC. is the convenience and the inconvenience of the parties.

  8. The prayer of the petitioner/wife is that she was residing at Guduvancherry and OP.201/2008 is pending on the file of the Sub-Court, Chengalpattu and that her husband, namely, the respondent has filed O.P.311/2008 on the file of the II Additional Family Court, Chennai and that she has not been in a position to appear before the Family Court, Chennai inasmuch as the Court at Chennai is very near to her residence and that she has to spend a minimum of 4 hours for travel from Chengalpattu to Chennai to appear before the II Additional Family Court, Chennai in connection with the hearing of O.P.311/2008 and therefore, the application for transfer may be allowed by this Court to promote the substantial cause of justice.

  9. Admittedly, the respondent/husband is facing some cases C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu, C.C.10981/2008 on the file of the Chief Metropolitan Magistrate Court, Chennai and in between the parties, matrimonial Original Petitions are pending. The fact that the petitioner/wife has earlier subjected herself to the jurisdiction of Chennai in a matrimonial case, when she has been residing in a residence outside the Court jurisdiction cannot be disputed. Furthermore, she has also sought the relief of Protection Officer in Chennai, while she has been residing outside the jurisdiction. The case in C.C.10981/2008 pending on the file of the Chief Metropolitan Magistrate Court has been initiated, when the petitioner’s residence has been outside the courts jurisdiction. The petitioner/wife has also filed C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu under the provisions of the Domestic Violence Act. One cannot brush aside an important fact that the HMOP.201/2008 filed by the petitioner/wife before the Sub-Court, Chengalpattu is only after the filing of the two criminal cases.

  10. Be that as it may, on a careful consideration of the respective contentions, this Court is of the considered view that it is not possible for this court to allow the Transfer Civil Miscellaneous Petition inasmuch as the balance of convenience is not in favour of the petitioner and in that view of the matter, the petition fails and the same is hereby dismissed. No costs. However liberty is given to the petitioner/wife to file necessary application before the II Additional Family Court, Chennai, where O.P.311/2008 is pending and seek exemption of her personal appearance and on such application is being filed by the petitioner/wife, the II Additional Family Court, Chennai is directed to consider the same on merits, after providing due opportunity to the respondent/husband to file his counter in the manner known to law. The II Additional Family Court, Chennai is directed to dispose of the HMOP.311/2008 within a period of four months from the date of receipt of a copy of this Order. Moreover, the parties are directed to co-operate with the II Additional Family Court with regard to the completion of the proceedings.

.01.2009 Index : Yes/No.

Internet: Yes/No.

M.VENUGOPAL, J.

 

tsi

To

  1. The II Additional Family Judge, Chennai.
  • The Section Officer, V.R.Section, High Court, Madras.

  • Tr.C.M.P.No.361 of 2008

     

    tsi