Category Archives: Interim maint under DV

#Journo & #Lawyer’s son case. #SC reduces #maintenance from 60K to 25K p.m. though #husband family big #bizmen !!

#Journalist & #Lawyer woman’s son is in #matrimonial case with his wife. #Parties have filed #multiple #cases against each other. #HC has #awarded maintenance pendente lite of #Rs60,000 p.m. considering the status of parties … However SC reduces maint from Rs60,000 p.m. to #Rs25,000 p.m. though husband is supposed to be a big businessman (partner in a family business ) !!!

This is from the Honourable HC which awarded Rs 60,000 p.m.
/////13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:- “38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers…. 39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” ////////

However Honourable SC says //////16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. ////// !!!!!!!!!

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4615  OF 2017

(Arising out of SLP (C) No.7670 OF 2014)

MANISH JAIN                                         …Appellant

Versus

AKANKSHA JAIN                                   …Respondent

O R D E R

R. Banumathi, J.

 

  1. Leave granted.
  2. The present appeal has been filed by the appellant-husband against the order dated 21.02.2014 passed by the High Court of Delhi at New Delhi in C.M.(M) No.910 of 2010. In the said judgment, the High Court while setting aside the order dated 15.03.2010 passed by the Additional District Judge-II (West), Tis Hazari, Delhi who declined to award maintenance pendente lite to the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 has granted interim maintenance to the respondent-wife at the rate of Rs.60,000/- per month to be paid by the appellant-husband Manish Jain with effect from 1st February, 2012 till the disposal of divorce petition. The said amount was fixed in addition to Rs.10,000/- which the appellant-husband has already been paying by way of interim maintenance as per the order passed in Criminal Appeal No.65 of 2008 under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 [for short ‘the D.V. Act’].
  3. This is a case of marital discord which has a chequered history. Brief facts leading to this appeal by way of special leave are as under:- Both the appellant and the respondent got married on 16.02.2005 and they were living at V-38, Green Park, New Delhi. The couple shifted to an accommodation at 303, SFS Apartment, Hauz Khas, New Delhi on 15.04.2007. In or about July, 2007 relationship between the parties got strained. In September, 2007 the appellant-husband filed a divorce petition HMA No.553/2007 under the Hindu Marriage Act, 1955 [for short ‘the HM Act’] seeking divorce on the grounds of cruelty.
  4. In November, 2007 the respondent-wife filed a petition under the D.V. Act along with interim relief i.e., maintenance. She also filed a complaint on 23.11.2007 under Section 498-A and Section 406 IPC with CAW Cell, Amar Colony, Nanakpura, New Delhi against the appellant-husband and his family members which was later on registered as FIR bearing No.190 of 2008, Police Station, Friends Colony, New Delhi on 04.03.2008. In December, 2007, respondent filed yet another Complaint Case No.381 of 2008 under Section 125 Cr.P.C. before the Mahila Court, Patiala House, New Delhi. Her interim application seeking maintenance amongst other reliefs under Section 23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Patiala House, New Delhi by order dated 23.04.2008 on the ground that the respondent was employed and was getting a stable income and that no document was placed on record by the respondent to show that respondent had again become jobless as the publication of the Magazine FNL had been stopped. Against the dismissal of application for maintenance, the respondent had filed appeal before Additional Sessions Judge, Patiala House in Criminal Appeal No.65 of 2008. In the said appeal and in Criminal Revision No.66 of 2008, Additional Sessions Judge, Patiala House by an order dated 01.09.2009 granted maintenance of Rs.10,000/- per month to the respondent-wife.
  5. The appellant-husband filed an application under Section 438 Cr.P.C. on 22.04.2008 for grant of bail in anticipation of his likely arrest. The High Court granted anticipatory bail to the appellant-husband subject to return of Toyota Corolla and dowry/jewellery articles to the respondent-wife within a week from the date of order till the next date of hearing which is said to have been complied with. Order was also passed directing the respondent to deposit Rs.12,00,000/- towards alleged return of dowry articles.
  6. The respondent-wife filed application under Section 24 of the HM Act claiming interim maintenance pendente lite of Rs.4,00,000/- per month and also a sum of Rs.80,000/- to meet litigation expenses during the pendency of the divorce petition. In the said application, the respondent- wife pleaded that she was having no source of income to maintain herself and that she is dependent upon others for her day to day needs and requirements. The said application was resisted by the appellant-husband contending that the respondent-wife is an educated lady and that she had completed her one year course of Fashion Designing from J.D. Institute, Hauz Khas, New Delhi and that she is capable of earning monthly salary of Rs.50,000/. The application filed under Section 24 of the HM Act was dismissed by Additional District Judge-II, Tis Hazari, Delhi by order dated 15.03.2010. Being aggrieved, the respondent-wife filed Crl. M.A. No.17724 of 2012 before the High Court, Delhi. The High Court in its order dated 08.11.2011 in C.M.(M) No.910 of 2010 filed by the wife against the order dated 15.03.2010 directed both the parties to file an affidavit truthfully disclosing their correct income. Both the husband and the wife filed an affidavit as to their income in compliance of the aforesaid order. After so directing the parties to file affidavit regarding their income and after referring to the income of appellant-husband and the properties which the appellant and his family are owning and also the standard of living of the respondent-wife which she is required to maintain, the High Court by the impugned order directed the appellant-husband to pay interim maintenance of Rs.60,000/- per month in addition to Rs.10,000/- which was directed to be paid to the respondent-wife in the proceedings under the D.V. Act.
  7. Aggrieved by the order of the High Court, the appellant-husband came in appeal before this Court by way of special leave. After giving opportunity to the parties to work out a settlement which ultimately failed, the same was dismissed on 15.04.2014. Being aggrieved by the dismissal of the above petition, a review petition was filed on 13.05.2014 in which notice was issued by this Court on 06.08.2014 and on 03.02.2016 the same was allowed and the Special Leave Petition was restored to its original number which is the subject matter before us.
  8. Learned counsel for the appellant-husband submitted that the respondent-wife has concealed her employment and independent source of income on several occasions throughout the matrimonial proceedings before the courts below and also that the High Court has committed a grave error in interfering with the well-reasoned order of the trial Court under Section 24 of the HM Act. The learned counsel for the appellant-husband submitted that the trial court after analyzing the evidence that the wife was educated, professionally qualified in the Fashion industry and had sufficient independent income rejected the application of the wife seeking maintenance under Section 24 of the HM Act. It was submitted that the High Court without proper appreciation of the income of the parties had wrongly set aside the order of the trial Court and fixed an abnormal amount of Rs.60,000/- as maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act. Learned counsel further submitted that in Criminal Appeal No.65 of 2008 under Section 23(2) of the D.V. Act, the appellant- husband is paying an interim maintenance of Rs.10,000/- per month to the respondent-wife and the appellant-husband has so far made a total payment of Rs.7,50,000/- in the proceedings under D.V. Act, apart from returning a Toyota Corolla car worth Rs.13,00,000/- besides depositing a sum of Rs.12,00,000/- and a sum of Rs.2,75,000/- towards untraced admitted dowry articles in compliance with the order passed by the Court. It was further submitted that the appellant-husband’s firms/companies have been either shut down due to heavy loss and/or under the stage of winding up and the appellant-husband is not in a position to pay the exorbitant amount of Rs.60,000/- per month as maintenance pendente lite to the respondent-wife.
  9. Learned counsel for the respondent-wife at the outset submitted that the principle of providing maintenance is to ensure the living conditions of respondent-wife similar to that of appellant-husband whereas in the present case the respondent-wife is yet to receive any money.
  10. We have heard the matter at considerable length. Parties are entangled in several rounds of litigation making allegations and counter allegations against each other. Since various proceedings are pending between the parties, we are not inclined to go into the merits of the rival contentions advanced by the parties. The only question falling for consideration is whether the respondent-wife is entitled to maintenance pendente lite and whether the amount of Rs.60,000/- awarded by the High Court is on the higher side.
  11. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided, on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant’s own income and the income of the respondent.
  12. At the time of filing application under Section 24 of the HM Act in December, 2007, the respondent-wife was doing her internship in fashion designing in J.D. Institute of Fashion Technology and just completed the course and was not employed at that time. Only in the month of May, 2008, she became a trainee and joined FNL Magazine of Images Group as Junior Fashion Stylist and was earning an approximate/stipend income of Rs.21,315/- per month and due to recession, the same is said to have been reduced to Rs.16,315/- for three months that is July, August and September in the year 2009. It is stated that thereafter the respondent-wife has become jobless and associated with Cosmopolitan Magazine and according to the respondent- wife, she was working as a Stylist and is paid nominal amount of Rs.4,500/- per shoot and the said amount is inclusive of expenses like travelling etc. On a perusal of the judgment of the High Court and also the affidavit of the respondent-wife, it is clear that the respondent-wife has no permanent source of employment and no permanent source of income.
  13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:- “38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers…. 39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” 
  14. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”. The Section, however, does not use the word “maintenance”; but the word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
  15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.
  16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. The maintenance pendente lite of Rs.25,000/- is to be paid to the respondent-wife by the appellant- husband (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act).
  17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/- paid under the proceedings of the D.V. Act on or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellant-husband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court.

    ………………………….J. [KURIAN JOSEPH]

    .………………………..J. [R. BANUMATHI]

    New Delhi;

    March 30, 2017

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Maintenance under DV act to be adjusted against maintenance under section 24HMA. DV maintenance not additional 2 HMA maintenance

 

N THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 16 of 2016

With

CRIMINAL REVISION APPLICATION NO. 55 of 2016

======================

DEVANG MAHENDRABHAI BRAHMBHATT….Applicant(s) Versus

STATE OF GUJARAT & 1….Respondent(s)

======================

Appearance:

MR MANOJ SHRIMALI, ADVOCATE for the Applicant(s) No. 1

======================

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 21/06/2016

ORAL COMMON ORDER
Heard Ld. Advocate Mr. Manoj Shrimali for the husband and Ld. Advocate Mr. RS Bhatt for the wife.
Both, the husband and wife have challenged the same impugned order dated 12/10/2015 passed by the Family Court, Ahmedabad, in Criminal Misc. Application No. 961/2011. By such impugned order, the Family Court has awarded an amount of Rs.10,000/- towards monthly maintenance in favour of the wife.
3 The husband has challenged the order contending that his income is less than Rs.2 lacs per annum and in some years even it is less than Rs.1,50,000/- p.a., as a partner of the partnership firm, where there are five partners. Therefore, it is difficult for him to pay Rs.10,000/- p.m. as maintenance.

3.1 It is further contended that the wife is residing in the flat owned by the husband and husband is residing in rental premises and, therefore, she does not have to spend for residence.

3.2 It is further contended that the husband has to take care of his parents and son, who is studying in Engineering College.

3.3 It is further contended by the husband that the wife has failed to admit and disclose in the proceedings that the Court of Chief Metropolitan Magistrate has already awarded an amount of Rs.8,000/- p.m., towards maintenance under the Domestic Violence Act and that the husband is regularly paying such amount.

3.4 It is also contended that the husband has deposited Rs.2,59,000/- in the name of the wife and she is getting interest on such amount.
4 However, there is no substance in any of the submissions for the simple reason that the husband is earning more than Rs.15,000/- pm and is having good business and properties. So far as interest on the deposit is concerned, since it is with reference to some other transaction and pursuant to some other order passed by the Court in some other proceedings, the same cannot be considered or set off of such interest cannot be given in the present proceedings.
5 However, so far as amount of maintenance awarded by the competent Court under the Domestic Violence Act is concerned, it can certainly be adjusted against total amount to be paid by the husband as maintenance, because while granting maintenance of Rs.8,000/- by order dated 28/8/2015, the Chief Metropolitan Magistrate has already made it clear that husband is entitled to get set off of the amount of maintenance, if any, awarded in any other proceedings and it is also made clear that if maintenance is awarded in other proceedings is more than Rs.8,000/-, then the husband has to pay such enhanced amount of maintenance and thereby it is made clear that wife is not entitled to total Rs.18,000/- p.m., as maintenance as per two different orders in her favour, one under the Domestic Violence Act for Rs.8,000/- and another under the Criminal Procedure Code for Rs.10,000/-. Therefore, it is made clear that the wife is entitled to monthly maintenance of Rs.10,000/- p.m. only and not Rs.18,000/-. Except such clarification, there is no substance or reason to allow the revision application preferred by the husband so as to reduce the amount of maintenance.
6 Whereas, so far as wife is concerned, it is her submission that since husband has admitted that turnover of his business is Rs.5 to Rs.6 lacs and that he is having 45% share in such partnership, he must be earning more than what is stated by him and, therefore, she is claiming more amount of maintenance from the husband. However, the fact remains that rent of the office or salary of the staff, etc., are to be borne by the partnership firm and not by the husband individually and that turnover of the firm is Rs.5 to Rs.6 lacs and thereby it cannot be said that present income of the husband is more than Rs.5 lacs, since there are five partners and his share is 45%. Even if we believe such admission by the husband, then also income of husband would be only around Rs.2,50,000/- p.a., and considering such fact, when Family Court has awarded Rs.10,000/- p.m. as maintenance considering monthly income of the husband between Rs.20,000/- and Rs.25,000/-. In absence of any cogent and reliable evidence that the husband is earning more, I do not see any reason to increase the amount of maintenance.

It is also contended by the wife that the husband is holding huge property and investment and, therefore, she is entitled to more maintenance. However, the fact remains that while awarding maintenance either under the Domestic Violence Act or under the Criminal Procedure Code, the Court has to consider basic requirement of the person and that the amount of maintenance must be adequate so as to permit the wife to reside with dignity and it cannot be equated with the properties of the husband. If anybody desires to get more maintenance, they may explore possibility under the provisions of the Hindu Adoption and Maintenance Act for claiming more maintenance, but so far as the amount of maintenance under the Criminal Procedure Code or Domestic Violence Act is concerned, when the Family Court has considered the evidence before it for awarding proper amount of maintenance, in absence of cogent and reliable evidence to increase the maintenance amount, I do not see any reason to enhance the amount, more particularly in absence of any further facts and circumstances to do so.
8 In view of such facts and circumstances, except clarification recorded hereinabove regarding set off of the amount of maintenance under the Domestic Violence Act, there is no substance in any of the revision applications. Therefore, both the revision applications are dismissed.

(S.G.SHAH, J.)
Pansala

Mere photos of husband’s shop NOT enough 2 prove income or ownership. Wife gets just 1200 p.m. from DV case !

A wife who lies in her affidavit and hides her professional qualifications tries to say that husband is earning a huge amount of money by showing some photographs of his automobile repair shop. the court dismisses her claims and says a mere photo is not proof of ownership and where wife has not proven husband’s income, court has to go with the admitted income of the husband !

Specifically, the court orders “… At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent….”

Criminal Appeal No.33/15

IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI

Criminal Appeal No. : 33/2015
Under Section : 12 of Protection of Women From Domestic Violence Act, 2005.
Police Station : M.S. Park
Case No. : V-128/14
Unique I.D. No. : 02402R0312462015

In the matter of :-

Smt. MANJU
D/o. Sh. Shiv Lal,
W/o. Sh. Gaurav,
R/o. H.No.D-198, Gali No.8, Jagatpuri,
Mandoli Road, Shahdara, Delhi-110032. …………..Appellant

VERSUS

Sh. GAURAV
S/o. Sh. Harpal Singh,
R/o. H.No.128, Shastri Nagar,
District Ghaziabad, U.P. …………..Respondent

Date of Institution : 03.09.2015
Date of receiving the case in this court : 04.09.2015
Date of reserving order : 22.09.2015
Date of pronouncement : 05.10.2015
Decision : Appeal is dismissed.

JUDGMENT

  1. This is an appeal preferred against the order dated 14.08.2015, passed by the trial court in a case titled as Smt. Manju v. Gaurav & Ors., bearing case no.V-128/14, filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005. Vide impugned order respondent was directed to pay a sum of Rs. 1,200/- per month in favour of appellant from the date of filing of present petition till pendency of petition as interim maintenance and accordingly application under Section 23 of the Act was decided.
  2. Briefly stated, the relevant facts giving rise to this appeal are that Complainant/appellant herein filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband and her in- laws. The appellant made several allegations against her husband and in-laws regarding demand of dowry, coupled with threats, harassment and abusing at her matrimonial house. She also alleged that she had been illegally, unauthorizedly and unlawfully forced by her husband and in-laws to leave her shared household/matrimonial home i.e. H.No.128, Shastri Nagar, District Ghaziabad, U.P and she was thrown out of her house and was compelled to reside at her parental house. Appellant prayed for several reliefs including payment of monthly maintenance by her husband.

  3. Appellant filed application under Section 23 of the Act. Respondents contested the main application as well as the application under Section 23 of the Act. Both parties filed their affidavit in respect of their income and other particulars, as per directions given by High Court of Delhi in the case of Puneet Kaur v. Inderjit Singh Sawhney, MANU/DE/7166/2011. Trial court vide impugned order decided the application under Section 23 of the Act.

  4. Being aggrieved of the impugned order, appellant has preferred this appeal on the following grounds :- “…That the trial court did not appreciate that respondent had not filed the proper affidavit and he had concealed his income in his affidavit as well as written statement. That the respondent is running his own work shop in the name and style of M/s. Durga at ITI Shastri Nagar, Ghaziabad, U.P for repairing motorcycles of various companies and is also having four and five labours. Furthermore, respondent also repairs motorcycles on contract basis in various Government Department at Ghaziabad and he is earning Rs. 1,00,000/- per month. Respondent is also maintaining four wheeler vehicle bearing registration no.UP-14CD-2389. ..” That the trial court did not appreciate that the respondent did not disclose his place of work in his written statement and he simply mentioned that he was working as a tube repairing worker.

  5. On the other hand, respondent contested this appeal and filed his reply thereby supporting the order passed by the trial court. He denied the facts relating to allegations made by appellant against him as well as his other family members. Respondent further pleaded that appellant herself is running coaching center of stitching as well as fashion designing and she is earning Rs. 10-15,000/- per month. He further pleaded that appellant is well educated lady and has done diploma in cutting and tailoring as well as diploma in basic computer and diploma of fashion designing. Respondent pleaded that appellant is not entitled for maintenance because she is having sufficient source of income and is well qualified. Respondent filed photograph of diploma certificates in the name of appellant.

  6. During the course of argument, ld. counsel for appellant referred to the photographs placed by appellant in the trial court record, showing one Wagon-R car and photo of Durga Auto services. Ld. counsel further referred to the trial court record to submit that respondent had suppressed his income and thereafter, he was directed to file fresh affidavit, wherein he disclosed his income as Rs.3,000-4,000/- per month. Ld. counsel argued that the amount of Rs.1,200/- is not sufficient to meet the expenses of the appellant and therefore, the present appeal has been filed.

  7. On the other hand, ld. counsel for respondent argued on the lines of his reply and submitted that even appellant had suppressed her professional qualification in the first affidavit. He further submitted that though appellant herself is earning, but she concealed this fact. It was also argued that appellant had suppressed about her inability to conceive since the time of her marriage and in fact appellant had caused mental trauma for the respondent.

    8. In this appeal, this court is concerned about the legality of the impugned order, vide which the trial court has fixed an interim maintenance in favour of the appellant. The challenge is to the amount of interim maintenance. On perusal of the trial court record, I find that though appellant claimed that respondent had been earning Rs.1 lac per month apart from rental income of Rs.10,000/- per month, but except for placing photograph of Durga Auto Services and one motorcar, no supporting material was placed in support of such contentions. Respondent has pleaded that he is working as auto repair mechanic in the work shop of other person and he does not earn more than Rs.4,000-5,000/- per month. As far as concealing his income in his first affidavit is concerned, I do find that in the initial affidavit, respondent had shown his salary as nil. Thereafter, he filed amended/fresh affidavit wherein he disclosed monthly income of Rs.3,000-4,000/-. However, this tendency of concealing a fact is not limited to the respondent only. I find that even appellant had concealed her professional qualification in the first affidavit filed by her, wherein she mentioned professional qualification as nil. Later on, she also filed another affidavit thereby mentioning her professional qualifications as well. Thus, the tendency to conceal any fact is common for both these parties and I hope that the trial court shall take due care of such tendency of both the parties, during trial of the case.

  8. At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent. Such amount of interim maintenance can be modified, after having sufficient evidence on the record regarding merits of the case as well as the income of the respondent. At this stage, I do not find any worth argument or material placed on the record to interfere with the finding arrived at by the trial court in respect of the quantum of interim maintenance. Therefore, appeal is dismissed.

  9. Copy of this judgment be sent to the trial court, to be placed in the file of case no.V-128/14.

File be consigned to record room, as per rules.

Announced in the open court today on 05.10.2015

(PULASTYA PRAMACHALA)

Additional Sessions Judge (Shahdara)

Karkardooma Courts, Delhi

DV filing wife gets just Rs 5000 for 3 kids in spite of appeal @ sessions !!

Many women think DV act means money, means moolah and they will get what they ask for. The reality is far from that. There are umpteen cases where the woman get next to nothing, especially when the husband is working in the un-organised sector !! Ultimately such women end up paying more lawyer’s fee than anything else !

It is also possible that some of these women have come up with exaggerated claims and so are unable to prove things in court !

Here is a case where a woman files DV and gets just 5000 p.m. for 3 kids. Husband seems to be in the unorganised sector and wife has NO proof of what she claims as his income !!


IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI

Crl. A NO. 47/15

Smt Kusum Kataria
w/o Sh Manish Kataria
r/o 3517/B, Block ­93­B
First Floor, Sant Nagar,
Burari, Delhi. ……..APPELLANT

versus

  1. Mr Manish Kataria
    s/o Sh Khem Chand Kataria
  2. Sh Khem Chand Kataria

  3. Smt Krishna Kataria
    w/o Sh Khem Chand Kataria

  4. Kapil Kataria
    s/o Sh Khem Chand Kataria

all resident of 3517/B, Block 93­B
Sant Nagar, Burari
Delhi.  …….RESPONDENT

DATE OF INSTITUTION :04/07/2015
DATE OF JUDGMENT :16/05/2016

J U D G M E N T

  1. The present criminal appeal u/s 29 of D V Act has been filed by the present appellant against the order dated 05/05/15 passed by Ms Mona T. Kerketta, Ld MM, Central District, Delhi whereby the Ld Trial Court has directed the respondent no. 1 to pay a composite sum of Rs.5,000/­ per month as interim maintenance to the children of the parties from the date of filing of the petition. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  2. Brief facts leading to the present appeal as stated by appellant are that marriage between appellant & respondent no. 1 was solemnized on 21/02/2002 according to Hindu rites and ceremonies. Three children were born out of this wed lock. It is stated by the appellant that after few days of marriage, respondent no, 1 along with his family members started treating the appellant with cruelty. The appellant filed a petition u/s 12 of Domestic Violence Act along with an application u/s 23 of D V Act. Vide order dated 05/05/15, Ld Trial Court has directed the respondent no. 1 to pay a composite sum of Rs.5,000/­ per month as interim maintenance to the children from the date of filing of the petition.
  3. Being aggrieved with the order of Ld Trial Court, appellant has filed the present appeal on the following grounds:
    • a) That Ld Trial Court has not correctly appreciated the facts and circumstances of the case.
    • b) That Ld Trial Court failed to appreciate the documents of the property no. 3517/B, Block ­93­B, First Floor, Sant Nagar, Burari, Delhi in favour of respondent no. 1. That Ld Trial Court has not appreciated the fact that respondent no 1 is also paying the home loan as per affidavit given by respondent no. 1 in the court.
    • c) That the Ld Trial Court has failed to consider that the PAN card mentioned by the respondent no. 1 in his affidavit, is not in the name of respondent no. 1 but the same is in the name of Sh Chet Ram.
    • d) That Ld Trial Court has not considered the fact that respondent no 1 is the owner of of two properties, one is shared household, which is in the name of respondent no 1 and there is another property, which is owned by respondent no 1 under the home loan, and respondent no 3 who is claiming to be the owner of the shared household did not place on record any document in this regard.
    • e) That Ld Trial Court has completely ignored the fact that respondent no 1 in his income affidavit has mentioned that statements of all bank is annexed herewith , but respondent no 1 has not filed any bank statement.
  4.  With these and similar grounds, appellant has prayed for setting aside the impugned order .
  5. I have heard arguments from Ms Alka Singh, Ld counsel for the appellant as well as from Sh A. K. Singh, Ld counsel for respondents.
  6. I have considered the arguments advanced by Ld counsel for parties and gone through the trial court record.
  7. Present appeal has been filed by the appellant against the order of Ld Trial Court dated 05/057/15, whereby Ld Trial Court has granted composite interim maintenance of Rs.5,000/­ to the appellant and her children.
  8. It is admitted facts of parties that marriage of petitioner was solemnized with respondent no. 1 and three children were born out of this wed lock. From the trial court record, it is clear that appellant/complainant is earning Rs.15,000/­ per month, whereas Respondent no. 1 has claimed to be earning Rs.6,000/­ per month. From the documents placed on record, it is clear that respondent no. 1 is IIT electrical diploma holder, hence the Ld Trial Court has rightly not accepted the version of the respondent no. 1 of earning Rs.6,000/­ per month. Ld Trial Court has taken the monthly income of respondent no. 1 as per Minimum Wages Act of skilled person at Rs.11,000/­ per month, which in my opinion is the correct procedure. Thus, same does not suffer from any infirmity. On the other hand, appellant has Cr. A NO. 47/15 Page 4 of 5 pages stated that respondent no. 1 owns two properties but she has not filed on record any document to substantiate her claim. Hence, I am of the opinion that Ld Trial Court has rightly granted interim maintenance of Rs.5,000/­ to the children after considering the monthly income of respondent no. 1/husband as Rs.11,000/­ per month. Even otherwise, this is an interim maintenance order and final order of maintenance is yet to be passed after evidence will be led by the parties.
  9. In view of above observations, the appeal as filed by the appellant is dismissed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  10. Trial court record be sent back with the copy of the order.
  11. File of appeal be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 16th of May, 2016.

( SHAIL JAIN )

ADDL. SESSIONS JUDGE (CENTRAL)

DELHI
 

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


NO arrest for NON PMT of DV maintnance arrears. Non pmt does NOT attract sec 31 DV act. Kar HC

In this classic case a husband is threatened with arrest under sec 31 of DV act for non payment of arrears maintenance. Wife files NBW. He files for discharge (from that charge & NBW) . The discharge is NOT allowed by the Hon MM and Hon Sessions courts (both courts dismiss is petition). So Husband appeals to the Hon Karnataka HC which refers to an order by the Hon Rajasthan HC and decrees that a maintenance order is NOT a protection order (under sec 18) and so coercive provisions of sec 31 (like arrest) cannot be applied for NON payment of maintenance !!

The Hon court orders and we quote “….9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act. ….”

and goes on to order “…the petitioner stands discharged for offence punishable under sect ion 31 of P.W.D.V Act 2005…..”

So the wife has to go file execution for collecting her dues !!


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18 TH DAY OF DECEMBER 2015

BEFORE THE HON’BLE MR.JUSTICE A.V.CHANDRASHEKARA

CRIMINAL REVISION PETITION NO.758 OF 2015

BETWEEN :

MR. FRANCIS CYRIL C CUNHA
AGED ABOUT 52 YEARS
S/O SYLVESTER D/CUNHA
RESIDING AT DEEPTHI COTTAGE
KALLABETTU POST, GANTALKATTE
MOODBIDRI, MANGALORE TALUK – 515 006 … PETITIONER
(BY SRI.THARANATH POOJARY.I., ADV.)

AND:

SMT, LYDIA JANE D’CUNHA
AGED ABOUT 42 YEARS
W/O FRANCES CYRIL D’CUNHA
RESIDING AT URPALPADE HOUSE
KALLABETTU POST, MANGALORE TALUK – 575 006 … RESPONDENT
(BY SRI. G.BALAKRSIHNA SHASTRI )

THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.02.2014 PASSED BY THE R 2 PRINCIPAL S.J., D.K., MANGALORE IN CRL.A.NO.211/2013 UPHOLDING ORDER DATED 28.02.2013 PASSED BY THE C.J. AND J.M.F.C., MOODBIDRI, D.K., IN C.C.NO.327/2012 DISMISSING THE DISCHARGE APPLICATION FILED BY THE PETITIOENR FOR THE OFFENCE P/U/S 31 OF THE PROTECTION OF WOMEN AGAINST THE DOMESTIC VIOLENCE ACT AND DISCHARGE THE PETITIOERN OF THE SAID OFFENCE.

THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:

O R D E R

  1. Present petition is filed under Section 397 of Cr.P.C. challenging the order of the learned Civil Judge, Moodbidri passed on 28.02.2013 in C.C. No.327/2012 and the confirmation of the same by the learned Sessions Judge, Mangaluru in Crl.A.No.211/2013. Petitioner is the accused in C.C.No.327/2012 and th e Trial Court has issued process against the accused for offences punishable under Section 31 of Protection of Women from Domestic Violence Act, 2005 (For short ‘Act’ herein afterwards). An application was filed under Section 239 of Cr.P.C. seeking discharge. The said application came to be dismissed after contest as against which an appeal was filed in terms of secti on 29 of the said Act before the Sessions Court at Mangal uru. The appeal is dismissed and thereby the order of th e Trial court is confirmed.
  2. The facts leading to the present revision petition are as follows: Petitioner is the legally wedded husband of the respondent. Respondent has chosen to file a case i n Crl.Misc.No.115/2009 under section 12 of the Act seeing various releifs against this petitioner befo re the Court of JMFC Moodbidri, Mangalore Taluk. By virtue of the order dated 01.03.2010, the learned JMFC cho se to award maintenance @ Rs.4,000/- per month to the respondent and her daughter. This order dated 01.03.2010 has become final.
  3. An application was filed to recover the arrears of maintenance pursuant to the order dated 01.03.2010 passed in Crl.Misc.No.115/2009 in MC No.256/2012. In accordance with the order dated 01.03.2010 passed in Crl.Misc. No.115/2009, recover y of the entire arrears of maintenance was sought but the executing court, applying the provisions of Section 125(3) of Cr.P.C. allowed to recover a sum of Rs.32,000/- only being the arrears for one year pri or to the filing of the application for recovery and that order is not challenged in any manner. ahttp://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4.  private complaint was filed by the respondent in PCR No.96/2012 before the JMFC Court on 22.09.2012 requesting the court to take cognizance under Section 31 of the Act to issue summons for no t paying the entire arrears of maintenance. Cognizance was taken and summons were issued. After appearing before the court an application was filed in terms of Section 239 of Cr.P.C. to discharge him and said application came to be dismissed. Dismissal of the said application is confirmed by the Sessions Court. He nce the present revision petition is filed under section 397 of Cr. PC.
  5. The short point that arises for consideration by this court is as under:- “ Whether penal provision found in Section 31 of Protection of Women from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”
  6. While disposing of Crl.Misc. No. 115/2009 on 01.03.2010, the learned judge has passed the following order:- “The petition filed by the petitioners no.1 and 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed. The respondent is hereby restrained from entering the school/college or any other places where the petitioner no.2 is studying. The respondent is hereby directed to stay away from the dependants, relatives or any other persons from the petitioner No.1 and 2 from committing violence against them. The respondent is hereby restrained from attempting to contact the petitioner no.2 either at the school or any other place. The respondent is hereby restrained from alienating, disposing, encumbering the shared household which is described in the petition schedule. The respondent is hereby directed to pay the maintenance of Rs.4,000-00 to the petitioner no.1 and 2 per month from the date of the petition.”
  7. It is true that all orders other than the one relating to maintenance are perfect protection orde rs within the purview of Section 18 of the Act. Sect ion 18 is reproduced below:- “Section 18 – Protection Orders. – The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from – (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate; (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order.”
  8. The words “Protection Orders” are defined in Section 2(o) of the above Act and the same is extr acted below:- 2(o) – “Protection Order” means an order made in terms of Section 18.”
  9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act.
  10. Section 31 of the above Act is reproduced below in its entity:- “ Section 31. Penalty for breach of protection order by respondent.- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”
  11. Section 28 of the above Act deals about the applicability of certain provisions of Cr.P.C. to t he provision of this Act. Except as provided in this case, all proceedings under Sections 12, 15,18, 20, 21, 2 2 1 and 23 and offences under Section 31 shall be gover ned by the provisions of Cr.P.C.
  12. Certain rules have been framed under Section 37 of the Act which enables the Central Government to make rules.
  13. Rule 15 of the Protection of women from Domestic Violence Rules, 2006 deals about the breac h of protection order. It is extracted below:
    • “Breach of Protection Orders.-
    • (1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.
    • (2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.
    • (3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.
    • (4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the police, if she so chooses.
    • (5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.
    • (6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter 13 XXI of the Code of Criminal Procedure, 1973 (2 of 1974).
    • (7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.
    • (8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.
    • (9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include –
      • (a) an order restraining the accused from threatening to commit or committing an act of domestic violence;
      • (b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;
      • (c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;
      • (d) an order prohibiting the possession or use of firearm or any other dangerous weapon;
      • (e) an order prohibiting the consumption of alcohol or other drugs;
      • (f) any other order required for protection, safety and adequate relief to the aggrieved person.”
  14. Hon’ble High Court of Rajasthan had an opportunity to discuss the applicability of the pro visions of Section 31 of the above Act in regard to the non -compliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon’bl e High Court of Rajasthan is that breach of order of monetary relief will not pave way to prosecute the husband. It is made clear that section 31of the Ac t does not include monetary relief. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  15. In the present case, the provisions of Section 31 of the Act was pressed into service before the trial court essentially on the ground that arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the Act. The learned judge of the trial court has construed that even the non-payment of the arrears of maintenance amounts to the violation of protection order and thereby Section 31 could be invoked.
  16. What is argued by Sri. G. Balakrishna Shastri, learned counsel representing the respondent is that the non-payment of the arrears of maintenance amounts to domestic violence and therefore Section 31 is applicable.
  17. Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.
  18.  After going through the records and the decision rendered by the High Court of Rajasthan in the case of SMT.KANCHAN .v. VIKRAMJEET SETIYA (2013 CrL.L.J. 85, this court does not find any reason to take a view different from the one taken by the Hon’ble High Court of Rajasthan. As already discussed, the High Court of Rajasthan has exhaustively dealt with the scope of Section 31 of the Act in the light of Sect ions 2 (o), (k), 12,18, 20 and 28 of the Act. In this view of the matter, the approach of the trial court in taking cognizance of the offence under Section 31 of the A ct ia a glaring legal error and hence the same will have to be set aside. Consequently the revision petition will have to be allowed and the order of the JMFC passed on 28.2.2013 and affirmed in Crl.A.211/13 will have to be set aside.
  19. In the result, the following order is passed:

O R D E R

The revision petition is allowed. The order dated 28.2.2013 passed in C.C.327/12 and affirmed in Crl.A.211/13 are set aside. Consequently the petitioner stands discharged for offence punishable under sect ion 31 of P.W.D.V Act 2005.

Send a copy of this order to the Trial Court.

Sd/-

JUDGE

BSV/vgh*

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


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