Category Archives: False 498a with vague and general allegations

Filing false 498a, taking away children illegaly, interfering with their education is ALL cruelty. Divorce granted 2 hubby, Cal HC

Filing false 498a, taking away children illegally, interfering with their education is ALL cruelty. EVEN if wife’s stmt not cross examined, it need NOT be accepted in total! Divorce granted 2 husband on grounds of cruelty

Wife files 498a. After compromise, parties get back / live together. Still wife does NOT withdraw / quash criminal complaint ! So parties ultimately separate. However wife raises a false claim of living with husband many months after 498a (i.e.) AS IF her conduct was condoned by the husband ! Husband applies for divorce. Initially it is refused believing wife’s false statements that her cruelty was condoned by husband. On review, Cal HC appreciates the facts and orders divorce 

The Honourable court says that a 498a instituted and kept alive on false allegations in itself amounts to cruelty “….the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband….”

The wife at one point tries to escape sayin “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.” But the Hon HC refuses to accept that contention as she has affirmed her complaints in MANY other places

The court notices that she is blowing hot and cold in many places

The court observes that “There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) …”

The court also takes the interference with the education of children seriously “….. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.….”

so the court concludes “…he totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. ….”

*****************************************************

Calcutta High Court
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
Equivalent citations: (2006) 1 CALLT 210 HC, 2005 (4) CHN 146
Bench: D K Seth, J Banerjee

JUDGMENT

1. The appellant has filed this application for review of the judgment and decree dated 25* of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. v. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., . Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., 2004(4) SCC 112 (para-14); Srinivasiah v. Balaji Krishna Hardware Stores, ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr., , in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

2. Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under Section 498A of the Indian Penal Code (IPC) would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, , to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under Section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi and Ors. v. Sumitri Devi and Ors., . He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.

3. We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal.

4. In Green View Tea & Industries (supra), the Apex Court had held that it is permissible to review a judgment if there are mistakes apparent on the face of the record, quoting from the decision in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, at page 630 (para-36) that “It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were based on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. ‘Of all these things respecting which learned men dispute’, said Cicero, ‘there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature’. This very idea was echoed by James Madison (The Federalist, No. 51. p. 352). He said : ‘Justice is the end of Government. It is the end of the civil society, It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.’ In Srinivasiah (supra), it was held that an assumption that appears to be incorrect on the basis of the materials would be a sufficient ground for entertaining review.

5. The principle of review is settled proposition of law. It does not require elicitation of any principle or decision. Now, therefore, we may examine the ground agitated by Mr. Dasgupta. On the face of the record, it appears that the wife had initiated a proceeding under Section 498A read with Section 342 of the Indian Penal Code (IPC) being Complaint Case No. 1628 C/1991 (Ext. 10 – II) before the learned Chief Judicial Magistrate, Howrah. The husband filed a criminal revision case being Criminal Revision Case No. 403 of 1992 before this High Court for quashing the said proceeding under Section 498A IPC. At the intervention of the lawyers of the parties, the wife was brought back on the assurance that she would withdraw the criminal case under Section 498A IPC. It is not in dispute that the said proceeding under Section 498A IPC has not been withdrawn by the wife and has since been kept pending, though, however, the wife did not take any further steps in the said proceedings. This fact admittedly is on record and was not considered by this Court in the judgment and order under review. This ground would be sufficient to review the order if it is held that the failure of withdrawal of this complaint under Section 498A IPC would amount to cruelty.

6. Since the wife did not take any further steps, it seems and may be presumed that the allegations made against her husband were false. The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate (supra). The allegation under Section 498A IPC against a spouse is disgusting accusation. In the said decision, it was held that subsequent deletion or amendment of the pleadings would not absolve from treating the wife by the husband with cruelty by making earlier injurious reproaches and statements. The impact whereof continued to remain on record, as in the present case where the allegations are still on record and have not been withdrawn, though not proceeded with. This making of false allegation in itself is a cruelty and then the cruelty is further fueled by reason of keeping the allegations under Section 498A IPC alive and surviving despite having agreed to withdraw the same, by reason of non-withdrawal thereof till date.

7. Admittedly, the judgment under review had proceeded to believe the evidence of the wife on account of absence of cross-examination on the question of cohabitation. Absence of cross-examination does not mean that the evidence is unchallenged. In Juwarsingh (supra), the Apex Court had held that the cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept the testimony merely because there was no cross-examination. Similar view was taken in P. Ram Reddy (supra) where it was held that the Court is not bound to accept the statement of a witness simply because there was no cross-examination of that witness. The truth of the evidence is to be tested on the basis of the probabilities and reliability. In the present case, there is evidence to show that the husband and wife were not residing in the same room since before institution of the suit. The allegation of cohabitation bears a date four months after the institution of the suit. This seems to be against all probabilities where the husband and wife are locked in the legal battle for the custody of the children and have been residing separately since before institution of the suit. This seems to be against all probabilities, which appears to have been overlooked. Our attention was drawn to the various contradictions and inconsistencies in the deposition of the wife affecting the credibility of the witness and reliability of the evidence given by her.

8. Even if we may not give credence to the question of cohabitation, but the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband. This is a ground sufficient to allow the review application.

9. It is true, as contended by Mr. Banerjee that an erroneous decision cannot be reviewed; when two views are possible, acceptance of one view cannot be revised; question of belief and disbelief cannot be intervened in a review. In this case the decision may be erroneous. But this erroneous decision was based on an error apparent on the face of the record in considering the existence of the question of cruelty on account of survival of the complaint under Section 498A IPC. The question of condonation of cruelty as contended by Mr. Banerjee does not find any support from the materials on record that the husband had ever condoned the cruelty. As soon the suit is filed on the ground of cruelty, there is no question of condonation of cruelty. The very pendency and survival of the complaint case under Section 498A IPC till the decision under review itself is a cruelty surviving which need no revival by fresh complaint or otherwise. Despite being agreed but the same having not been withdrawn, the wife’s failure to withdraw the same itself revives the cruelty continuous until withdrawn. It is admitted that this complaint has not been withdrawn till today. Therefore, the principle of condonation of cruelty as was sought to be urged by Mr. Banerjee does not find any support from the materials on record. Therefore, the decision laid down in Krishna Sarbadhikary (supra) cited by Mr. Banerjee has no manner of application in the present case.  http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

  1. Thus, we find that the omission to consider the impact of the survival of the proceedings under Section 498A IPC supporting the ground of cruelty had escaped our notice and that on the question of cohabitation, there were certain cross-examinations and that the evidence of the wife could not be sustained on its own strength and that the husband had repudiated in his evidence and the suggestions of the alleged cohabitation. These are definitely errors or mistakes apparent on the face of the record and are sufficient grounds to review the judgment.11. The facts apparent from record, viz. that the marriage has irretrievably broken and cannot be bridged between the parties and that the parties did not and cannot live together and that there is existence of cruelty on account of survival and/or pendency of the case under Section 498A IPC, having escaped our notice, are sufficient for allowing this application for review.

    Order:

    12. Accordingly, the application for review succeeds and is allowed, the judgment and decree passed by this Court, sought to be reviewed in this review application, is hereby set aside. The application for review is, thus, allowed. The appeal is restored to its original file and number and be re-heard.

    FA No. 12 of 2001

    13. By consent of parties, we have re-heard the appeal simultaneously with the hearing of the application of review of the judgment and decree. Both the learned Counsel argued the case elaborately and in detail and took us through the materials on record. After having re-heard the appeal by treating the same, by consent of parties as on the list for hearing of the appeal, now we propose to decide the appeal in the manner following.

    14. Exhibit 10 is the complaint lodged by the wife against the husband before the Court of the learned Chief Judicial Magistrate, Howrah being Complaint Case No. 1628 C/1991. In the said complaint, the wife as complainant alleged that the husband/accused:

    started to neglect your complainant and also started torturing both physically and mentally during her stay at the house of the accused.

    3. That the accused used to take wine regularly and almost everyday being intoxicated the accused tortured the complainant both physically and mentally and became a regular incident. The accused even has illegal relation with other ladies and used to meet other ladies frequently and without any hesitation.

    4. That the brothers of the accused person are also of the same nature of the accused and also torture your complainant both physically and mentally and with the connivance of the accused the brothers of the accused tried to outrage the modesty of the complainant by force and if your complainant told anything about such behaviour of the brothers of the accused the accused used to reply to bear the matter.

    5. That in spite of such torture both physical and mental your petitioner stayed with the accused and two children namely 1. Kumari Bidisha Chakrahorty, 2. Sri Humpi Chakraborty born out of (in) the said wedlock.

    6. That your complainant tried her level best to stay at the house of the accused but such tortyre became higher and higher and the accused and his brothers almost regularly tortured your complainant both physically and mentally.

    7. The accused also refused and neglected to give the daily means and clothing to your complainant intentionally and willfully and the two children also never receive any love and affection from the accused person on the other hand the accused used to behave very rough and even merciless to the said two children.

    8. That in spite of such behaviour and torture of the accused and his other brothers, your complainant accommodated at the said house but when the torture of the accused and his brothers became intolerable by human being and also for the fear of life of your complainant and also for the safety, security and also for future of her two children your petitioner was compelled to leave the house of the accused person along with her two children on 4.10.91 and since then your complainant is residing at the house of her sister.

    9. That from the date when your complainant left the house of the accused neither came to see your complainant and her two children nor took any information till date.

    10. That suddenly on 4.12.91 the accused along with some persons who identified themselves as police persons came to the house of your complainant and have taken away the said two children of your complainant in a very rough and inhuman manner and your complainant informed the matter before Bally P.S. vide G.D. Entry No. 3 70 dl. 4.12.91.

    11. That thus the accused has committed offence under Section 498A and under Section 342 IPC” [PB-II, pp. 14-16]

  2.  

     

     

15. This allegation was supported by the wife in her examination-in-chief (PB-I, p. 135) namely “It is correct to say that in December, 1991,1 filed a case against my husband under Section 498A of IPC as my husband used to assault me very often.” In her cross-examination (PB-I, p. 138), she said “I admit herein that all statements made in my application under Section 498A IPC and also in my application for recovery of my children in Criminal Courts are all correct and true.” She further said in her cross-examination (PB-I, p. 139) that “I filed a case under Section 498A IPC against my husband for which any husband submitted an application in the High Court for quashing the said proceeding under Section 498A of IPC and that proceeding is still pending in the Hon’ble High Court. It is correct to say that there is in fact no petition of compromise of 498A IPC in between myself and my husband.” At page 141 (PB-I) in her cross-examination she stated, “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.”

16. It appears that these disparaging and disgusting allegations were made and were supported even at the time of examination-in-chief and cross-examination of the wife. Whereas at page 136 (PB-I) in her examination-in-chief, she said, “After compromise in the Hon’ble Court I look no account of the case under Section 498A of IPC pending in the Magistrate’s Court at Howrah” This complaint was filed in 6th December, 1991 whereas the wife had lodged a diary on 4th of October, 1991 (Ext. 17, PB-11, p. 37), wherein she informed that she had no complaint against anybody and she would not start any case against anybody. In her written statement, she admitted that the proceeding under Section 498A IPC was still pending for disposal (PB-I, p. 53) and that the said proceeding was initiated when the acts of cruelty was perpetrated against her (PB-I, p. 55) and denied that the allegations made in the application under Section 498A were false and the case was filed falsely; but, however, she admitted that the matter was pending before the Court (PB-I, P. 59).

17. Making of false allegations are apparent on the face of the record that she wanted to say that the allegations made in the application were designed by her lawyer in one breath and then says that all the allegations made in the said application are true and correct; but these allegations are yet to be proved. No evidence has been led to prove any of these allegations by the wife.

18. Thus, it appears to be a false allegation in relation to the character of the husband imputing that the husband had been torturing the wife and that the husband used to have illicit connection with other women. These disgusting and disparaging allegations are sufficient to constitute cruelty when not proved and this cruelty was maintained even till the date when the wife had given her evidence in the proceedings. She kept the proceedings pending and stood by her submissions made therein. She had never resiled from the allegation made against the husband in Exhibit 10 filed on 16th December, 1991. Thus, the cruelty emanating from the materials, as discussed above, does exist and is apparent from the record itself, which we omitted to consider in the earlier judgment. Admittedly, the allegations made therein are false because of the reason that she had never attempted to prove the same apart from the fact that in the said application, she had alleged that this torture and the illicit relation was continuing for long namely immediately after her marriage, ie: on 17th of June, 1982 in which one daughter and one son were born on 24th of July, 1983 and 20th February, 1988 respectively. Whereas a few days before 16th December, 1991, the date when the application under Section 498A IPC was filed, the wife lodged a diary on 4th of October, 1991 being Ext. 17 (PB-II, p. 37) wherein she did not whisper anything about those allegations, on the other hand, she said she had no complaint against anybody and she would not start any case against anybody.

19. Keeping of an application under Section 498A IPC pending against a person is like a Democles’s sword. The person would remain in constant fear of its being fallen on his head any time. This itself is a cruelty continuous.

20. There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) on 3rd of December, 1991 being Ext. 13 (PB-II, p. 26) wherefrom it appears that the wife used to leave the matrimonial home taking away the children with her even at the cost of the studies of the children and the husband had to persuade her to bring the children back. However, the husband ultimately got the daughter admitted in Mousuri (PB-I, p. 107) so as to ensure her uninterrupted education and that the husband had to rescue the children so as to continue their studies through proceedings under Section 97 Cr. PC. The taking away of the children and interference with their studies, an agony for a father, desiring his children to be educated properly, would also amount to cruelty. At page 139 (PB-I) she stated, “It is a fact that after my marriage and upto this day my husband assault me but I cannot remember the number of times. I did not state to my lawyer prior to preparation of the written statement that my husband had assaulted me. I lodged no diary in P.S. about the assault. I lodged a diary in P.S. while I left my matrimonial house with my children. I made no allegation against my husband and the members of his family in the said diary.” The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate, 2003(6) SCC 334 (supra), and followed and elaborately discussed in Kakali Das v. Ashish Kumar Das, AIR 2004 Cal 176 : 2004 (3) CHN 516.

21. Even if it is assumed that the cruelty of the wife arising out of the initiation of the proceedings under Section 498A IPC and the allegation made therein was condoned by reason of the alleged cohabitation either before or after the institution of the suit, even then the failure to withdraw the proceedings despite agreed to by the wife, the survival of the proceedings, and her assertion in the written statement that the said proceeding is still pending disposal (PB-I, p.59), the assertion of the wife in her deposition in cross-examination that the said proceedings against the husband is now alive (PB-I, p. 141) and her deposition asserting that the statements made in the application under Section 498A IPC (Ext. 10) are all correct and true (PB-I. p. 138), has the effect of revival, continuance and survival of the cruelty.

22. It may be noted that even before this Court an application was made by the father for ensuring the studies of the son when the daughter had been adequately educated keeping her outside in Boarding School and the daughter lives with the father and that ultimately the wife was persuaded to allow the son to be admitted in a Boarding School outside the State of West Bengal. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.

23. It is alleged that by reason of cohabitation the husband had condoned the act of cruelty on the part of the wife and all other grounds on which divorce was sought for. In our earlier judgment, we had held that in the absence of cross-examination on the question of cohabitation, the wife’s allegations were to be believed. But, now it is pointed out that in his deposition the husband had asserted (PB-I, p. 91) that he had no relationship with the wife since 1990 and that he used to live in a separate room. He reiterated that he lived in a separate room in his examination-in-chief (PB-I, p. 95) and that he did not maintain any relation with the wife since 1990 (PB-I, p. 96) and he did not condone the cruel behaviour of the wife (PB-I, p. 97). This he repeated at page 101 and maintained stood by in his cross-examination (PB-I, pp. 114, 118 & 121). On this question of cohabitation, the wife was cross-examined where she had stated (PB-I, p. 134) that ‘It is not a fact that I had no sexual relation with my husband since 1990.” She admitted that she left the matrimonial home on 4th of October, 1991 by saying (PB-I, p. 134) “It is correct to say that from 4.10.91,1 resided with my sister at Bally with my one son and one daughter.” and said that (PB-I, p. 136)” I have been living in my matrimonial house since 1.10.92″ She was also cross-examined on the question of co-habitation when she answered (PB-I, p. 137) that “It is a fact that my last cohabitation with husband was held on 1st week of January, 1995. At page 140 (PB-I), she stated in her cross-examination that “my husband does not reside in the house where I reside. Then says, I do not know as to where he resides. Not a fact that my husband did not live separately at any point of time in the premises where I reside in the same room.” From the evidence of the OPW-1, the wife, it appears that she blew hot and cold when she says in her cross-examination at page 142 (PB-I) that ‘Not a fact that I suspected and used to tell that he had illicit connection with another lady” and that her lawyer drafted the petition and designed the same according to his estimation under Section 498A (PB-I, p. 141) and that she had no allegation against her husband on 4th of October, 1991 recorded in the diary (PB-I, p. 139) while saying that the statements made in the application under Section 498A were all correct and true. She contradicts herself to loose the credibility of her evidence. The suit was filed on 29th of November, 1994, whereas the last cohabitation was alleged in January 1995, which is wholly improbable.

24. The totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. The credibility of the evidence does not depend on the absence of cross-examination, but on the credibility of the witness himself/ herself and the totality of the evidence on record. It was so held in the decisions in Juwarsingh, 1980 (Supp) SCC 417 (supra) and P. Ram Reddy, (supra). In the present case, however, there were some cross-examination and the wife admitted of not living in the same room and alleged cohabitation after fourth months of filing of the suit, it is the probability of the evidence, which has to be considered not the absence of cross-examination. Even absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. The truth of the evidence is to be tested on the basis of the probabilities and reliability and the credence of the respective witnesses, particularly, when two versions have been brought on record by the husband and the wife (PW-1 and the OPW-1). In the present case, the evidence of the wife seems to be against all probabilities. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

At the same time, we have found that the parties are not residing together and had been living apart and the husband had left the matrimonial home. Even in course of hearing of the review application, the Court had attempted to resolve the dispute and requested the learned Counsel to bring about a settlement and ultimately to present the respective parties before the Court. The Court had attempted to settle the matter but the wife did not agree to reconcile though the husband expressed his willingness. The Court, found that the parties are living separately and are unable to resolve their dispute and that the marriage has broken down irretrievably and ultimately a settlement only with regard to education of the son and the maintenance and residence of the wife was arrived at by consent of the parties without any success in bridging the relation between them.

26. Thus, it appears that the ground of cruelty exists and the marriage between the parties has irretrievably broken and all our attempts to restore the same had failed. As such it is a case fit for passing a decree of divorce even on the ground of irretrievably breaking down the matrimony on the principle we had enunciated in the decision in Nityananda Karmi v. Kum Kum Karmi, 2003 (1) ICC 249 : 2003(1) WBLR (Cal) 348 : 2003(4) ILD 73 (Cal.): 2003 (2) CHN 121 (DB).

27. Since by consent of parties the main appeal of which the review is allowed was argued at length between the parties and have since re-heard, in view of the fact that the ground of cruelty having been proved as discussed above and the marriage has irretrievably been broken and all our attempts to bridge the relation having failed by reason of the disagreement between the parties, we hereby allow the appeal in FA No. 12 of 2001 and grant a decree of divorce on the ground of cruelty and the Matrimonial Suit No. 318 of 1994 of the Court of the learned Additional District Judge, 4th Court, Howrah stands decreed. The marriage between the parties be annulled. Let a decree of divorce be granted accordingly.

CAN 1120 of 2005. CAN 3079 of 2005.

28. The question of permanent alimony is hereby settled in terms of our order dated 3rd March, 2005 only with the modification that the husband shall arrange a proper flat in the locality of the matrimonial home sufficient for the residence of the wife since the husband submits that he does not have any share in the ancestral house. In addition to the maintenance, husband shall purchase a self-contained flat (at least with one bedroom with attached bath, one guestroom, drawing, dinning, kitchen, and common bath) in the locality sufficient to the requirement and status of the wife as close as possible to the ancestral home and shall fully furnish and make over the same to the wife within 6 (six) months from date and the wife shall be entitled to continue to reside in that flat till her life without any interruption from her husband or anyone else and she would continue to receive the permanent alimony in terms of the order dated 3rd of March, 2005 so long she survives in the same manner as provided therein.

Order:

29. In the result, the appeal stands allowed in terms of above. CAN 1120 of 2005 and CAN 3079 of 2005 are also disposed of accordingly. The judgment and decree appealed against is hereby set aside. The marriage between the parties stands annulled by a decree of divorce. Let there be a decree of divorce accordingly. The wife shall be entitled to residence and maintenance in terms of order dated 3rd March, 2005 subject to the modification as indicated in paragraph 28 above. The education of the son be governed in terms of the order dated 3rd March, 2005. The Matrimonial Suit No. 318 of 1994 of the 4th Court of Additional District Judge, Howrah is thus decreed.

30. There will, however, be no order as to costs.

31. Liberty to mention.

32. Urgent xerox certified copy of this judgment, if applied for, the same be supplied within seven days on usual terms.

 

*****************************disclaimer**********************************

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

*******************************************************************************

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

*******************************************************************************

 

fake 498a with vague sweeping allegations 5 yrs aftr split, quashed by Guj HC !!

Wife files a 498A, 323, 506, 506(2) case approx. 5 years after separation. All she has are vague, general and sweeping allegations, specifying no instances of criminal conduct. The Police also seems to have recorded stereo-type statements of witnesses, who are none other than the parents and relatives of the wife and filed a charge-sheet !! Gujarat HC quashes the case !!

* marriage on 13th April 2006
* wife claims she was harassed etc. and has left matrimonial home on 2 Sep 2010
* then approx 5 years later, on 13 April 2015 she has lodged a complaint and police filed an FIR !!
* though she is angry with her husband she has accused many more relatives of the husband !!
* as mentioned above, the Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the wife and has filed a charge-sheet !!
* Gujarat HC quashes the case !!
* Honourable Justice Padriwala affirmatively quotes the Hon Apex courts dictum “….. Judicial process no doubt should not be an instrument of oppression, or, needless harassment…” and “…If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court..”
* The Honourable Judge also affirmatively quotes many relevant paragraphs from the Apex court’s judgement in Preeti Gupta Vs. State of Jharkhand and Arnesh Kumar Vs. State of Bihar
* The Hon. Judge quotes his own earlier judgement wherein he has observed “….26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing…..”

*****************************************
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 15536 of 2015
**********************************************************
VISHALBHAI NIRANJANBHAI ADATIYA & 4….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
**********************************************************
Appearance:
HARSHESH R KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
MR RC KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR NILESH I JANI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
**********************************************************

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2015

ORAL ORDER

1. By this application under Section 482 of the code of Criminal Procedure, 1973, the applicants-original accused seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being C.R. No.II-194 of 2015 registered at Songadh Police Station, Tapi for the offence punishable under Sections 498A, 323, 506, 506(2) read with Section 114 of the Indian Penal Code.

2. The applicant No.2 is the mother-in-law, the appliciant No.3 is the brother-in-law, the applicant No.4 is sister-in-law and the applicant No.5 is the sister-in-law of the respondent No.2-original first informant.

3. The marriage of the first informant was solemnized on 13th April, 2006 with the applicant No.1. In the wedlock a daughter was born. It is the case of the first informant that soon after the marriage, the applicants herein started harassing her mentally as well as physically. On account of such harassment, she left the matrimonial home on 2nd September, 2010. Thereafter, on 13th April, 2015 she thought fit to lodge the First Information Report at the concerned Police Station.

4. Mr. Kakkad, the learned advocate appearing for the applicants would submit that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that almost after a period of five years from the date the first informant left the matrimonial home, the FIR was lodged. He submitted that the allegations are quite general and vague in nature. He submitted that the FIR deserves to be quashed.

5. On the other hand, this application has been vehemently opposed by Mr. H.K. Patel, the learned APP appearing for the State of Gujarat. He submitted that the First Information Report although belated, yet prima facie discloses commission of a cognizable offence and the Police should be permitted to complete the investigation in accordance with law.

6. The respondent No.2 is being represented by Mr. Nilesh I. Jani, the learned advocate who has been appointed by the High Court Legal Services Authority. He is not present when the matter is called out and taken up for hearing.

7. Having heard the learned counsel appearing for the parties and having considered the allegations levelled in the FIR, the only question that falls for my consideration is whether the FIR should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. As usual, on account of matrimonial disputes, the respondent No.2 has not only levelled allegations against the husband but all other members of the family of the in- laws including married sister-in-laws have been roped in. As stated above, it is not in dispute that she had left the matrimonial home on 2nd September, 2010. She lodged the FIR after a period of five years on 13th April, 2015. I had an occasion to deal with this type of issues at length in the case of Dipakbhai Ratilal Patel V. State of Gujarat, Criminal Misc. Application No.5819 of 2009, decided on 26th September, 2014. This Court observed as under:-

“16. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

17. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

18. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:

“6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases.

The illustrative categories indicated by this Court are as follows:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

20. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.

21. A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.

22. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under :

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, ‘cruelty’ means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31.The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. 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.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law.It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law and Justice to take appropriate steps in the larger interest of the society.”

23. In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. They are reproduced below:-

“6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the 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 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, bed-ridden grand-fathers and grand- mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. …. …..”

24. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-

“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who 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.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 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:

there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, 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 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 reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the 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 this matter was that the courts would not encourage such disputes. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.”

25. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.

26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27. Mr. Raval, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to Mr. Raval, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to Mr. Raval, at the best, the applicants Nos. 2 to 6 could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

28. Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

29. I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by Mr. Raval, the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.

It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court

“often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

30. More importantly, the respondent No.2 has not explained as to why it took more than four years for her to register the FIR. Is it so because the husband initiated proceedings for divorce in the year 2006. My attention has been drawn by Mr. Patel, the learned Advocate appearing on behalf of the applicants to a notice dated 17th April, 2008, issued by the respondent No.2, through her advocate to the petitioner No.1, wherein there is not a whisper of any allegations against any of the relatives of the husband, which includes the applicants Nos. 2 to 6.

31. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.

32. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398 observed as under:-

“When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.”

When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health ……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.”

33. What constitutes cruelty in matrimonial matters has been well explained in American Jurisprudence 2nd edition Vol. 24 page 206. It reads thus:-

“The question whether the misconduct complained of constitute cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”

9. Applying the ratio of the above referred judgment, I have no hesitation in coming to the conclusion that this petition deserves to be allowed. The First Information Report being C.R. No. II–194 of 2015 registered at Songadh Police Station, Tapi is hereby ordered to be quashed so far as the applicants Nos. 2, 3, 4 and 5 are concerned. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

Manoj

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