Category Archives: P&H HC

Criminal courts cannot mandate surrender of Passport as condition for Bail, Punjab & Haryana HC

 
///But the criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation, rights of the police and the interest of the society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. ///
  IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-42638 of 2018 Date of decision: 09.10.2018 Capt. Anila Bhatia..Petitioner Versus State of Haryana..Respondent CORAM: HON’BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. R.S. Rai, Sr. Advocate with Ms. Rubina Vermani, Advocate for the petitioner. Mr. Manish Dadwal, AAG, Haryana for the respondent -State. Mr. Ashit Malik, Advocate for the complainant. *** Daya Chaudhary, J. The petitioner is aggrieved by one condition (d) of the order of bail to the effect that she shall surrender/deposit her passport, if any, with the Police/Court and shall not leave India without prior permission of the trial Court imposed by the Additional Sessions Judg e, Gurugram vide order dated 14.09.2018 while granting anticipatory bail i n case FIR No.614 dated 23.08.2017 registered under Sections 192, 403, 420, 467, 468, 471, 120-B IPC at Police Station DLF, Sector 29, Gurugram. Learned Senior Counsel for the petitioner submits t hat the petitioner is Senior Captain with Air India Airlines and is performing her duties as Pilot. She does not know in advance as to on which flight and to which country, she will have to fly. A self attested copy of flight detail of the petitioner has been annexed as Annexure P-3 wit h the petition to show that sometimes the petitioner has flown from Delhi to Dubail; Delhi to Riyadh; Mumbai to Bangkok and so on. Practicably, it is difficult for the petitioner to approach on each and every day to the trial Court to seek prior permission in a short span of time as the petitione r is given a break of only 2-3 days before flying abroad. Learned counsel further submits that the intervening period of stay in India after returning back and to fly again to a destination is very short and it is very difficult and inconvenient in compliance of the condition mentioned in the bailo rder. Learned counsel also submits that the there is no chance of absconding from the trial and she undertakes to abide by all terms and conditions imposed by the trial Court in the bail order or any condition to be imposed by this Court. It is also the argument of learned counsel for the petitioner that the challan has not been presented so far and trial may take long time to conclude. A prayer has been made by the petitioner for grant of permanent permission to travel abroad in discharge of her official duties by relaxing impugned condition (d) in the bail order passed by the Additional Sessions Judge, Gurugram on 14.09.2018 by considering the nature of official duties and profession. Learned State counsel has raised a preliminary objection that the present petition is not maintainable as in case the petitioner is aggrieved in any manner, firstly she should have approached the lower Court for modification of the condition. Learned State counsel also submits that no blanket permission can be given as the petitioner is involved in a serious offence and there is no emergency and extraordinary reasons for approaching this Court straightway without availing the appropriate remedy available to her before the lower Court. Heard arguments of learned senior counsel for the p etitioner as well as learned State counsel and have also perused impugned order dated 14.09.2018 passed by the Additional Sessions Judge, Gurugram, whereby, the petitioner has been released on anticipatory bail with certain conditions. Admittedly, the petitioner is working as Senior Captain in Air India Airlines and facing trial in the FIR as mentioned above, which was registered on the complaint filed under Section 156 (3) Cr.P.C. The Chief Judicial Magistrate, Gurugram issued a direction to lodge FIR as it was found to be cognizable offence of misappropriation and cheating against the petitioner being Vice President. The anticipatory bail application filed by the petitioner was allowed with certain conditions, which are as under: –

“(a) that, the applicants-accused shall join the investigation as and when required by the investigating officer and shall attend the same in accordance with the conditions of the bond;

(b) that, the applicants-accused shall not commit an offence similar to the offence of which they are accused or suspected of the commission of which they are suspected;

(c) that, the applicants-accused shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with evidence; and

(d) that, the applicants-accused shall surrender/deposit their passport, if any, with the police/court and shall not leave India without prior permission of the trial Court.”

The petitioner is aggrieved by impugned condition (d), whereby, she has been directed to surrender/deposit her passport and not to leave India without the prior permission of the tri al Court. Section 437 of the Code deals with power of the Court to grant bail in non-bailable offences. Under Section 437(3) of the Code, while releasing a person accused, the Court shall impose certain conditions, which are as under: –

“(a) that such person shall attend in accordance with the conditions of the bond executed under this chapter,

(b) That such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirect ly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. and may also impose, in the interest of justice, su ch other conditions as it considers necessary.”

Even in the case of non bailable offences other than falling under sub sec.(3) of Section 437, the court or Magistrate may in its/his discretion impose conditions while granting bail to the person accused or suspected of commission of such offence.” Sub sec.(3) of Section 437 of the Code requires the Magistrate or Court to impose conditions while granting bail to the petitioner. While granting bail, the Court has to ensure that the accused or person suspected of commission of the offence is available for investigation, enquiry and trial. To ensure that, the Court may impose certain conditions on such person while releasing him/her on bail. In non bailable offences falling outside the scope of sub sec.(3) of Sec. 437 of the Code, the power to impose condition is discretionary. When a person is made to surrender his passport, it curtails his right of movement beyond the country. Article 21 of the Constitution of India says : “ No person shall be deprived of his life or person al liberty except according to procedure established by law.” The expression “personal liberty” is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a person. The Supreme Court, in Satwant Singh v. Asst. Passport Officer [(1967) 3 SCR 525] held that “personal liberty” guaranteed under Artic le 21 Crl. M.C. No.1734 of 2011 encompassed a right of locomotion, of the right to travel abroad. Every person living in India has a fundamental right to travel, even outside India. Refusal by the Government to issue a passport without a valid law prescribing reasonable restrict ions was held to be an arbitrary exercise of the executive power infringing the equality clause of the Constitution. After the decision in Satwant Singh’s case the Parliament passed the Passport Act, 1967 regulating conditions for the grant and refusal of passport and providing grounds for impounding passport. Even after passing of the said Act, in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] the Supreme Court held that the right to travel abroad is not only encompassed in the right to liberty under Article 21 of the Constitution, but that right could only be denied if the procedural law which governed its excuse is fair. The preamble to the Act says that it is, “to provide for the issue of passports and travel documents, to regulate the departure from India of citizens of India and other persons and for matters incidental ancillary thereto.” Section 10(3 ) of the Act empowers the passport authority to “impound or cause to be impounded or revoke a passport or travel document” in the circumstances stated therein. Thus, power to impound a passport is given to the passport authority under the Act. The Supreme Court in Suresh Nanda’s case (supra) was not considering the power of criminal court to direct a person accused or suspected of commission of a non cognizable offence while he is released on bail to surrender his passport in court to ensure his presence at the investigation, enquiry or trial of the case. Instead, the Supreme Court was only considering the scope and ambit of Section 104 of the Code which said; “ Any court may, it thinks fit, impound any document or thing produced before it” under the code. The power under Section 104 of the Code could be exercised only with respect to a document produced before the court and not, regarding a document not produced before it. In Wharton’s Law Lexicon, the word “impound” is given the meaning, “to place in the custody of the law”. Per Oxford Dictionary the word means “to take legal or formal possession of”. In Suresh Nanda’s case (supra), the Supreme Court considered the distinction between “seizing” and “impounding” and held that impounding is of the document which is seized. It was held that after enactment of the Act which is a special Act, a passport seized (by the CBI in that case) could be impounded only under Sec.10(3) of the Act and that so far as Sec. 104 of the Code is concerned to the extent it related to documents coming under Sec. 10 (3) of the Act, the maxim, ‘generalia specialibus non derogant’ applied. In that case the officials of th e CBI conducted a search and seized the passport of appellant. That document was retained by the CBI. Appellant moved the court of Special Judge to release the passport. The Special Judge allowed the application. That order was set aside by the High Court in revision. The Supreme Court set aside the order of the High Court on the principle above stated. Suresh Nanda was not a case of the criminal court imposing a condition while granting bail in a non bailable offence to surrender the passport. The Supreme Court was not considering the power of criminal court in view of Sec. 10(3) of the Act, to impose a condition to surrender the passport while granting bail in a non bailable offence. Instead, that question was left o pen as is clear from the observation in paragraph 20 (o f Suresh Nanda’s case) that : “We, however, make it clear that we are not expressing any opinion on the merit of the case and are not deciding whether the passport can be impounded as condition for the grant of bail.” The Chhattisgarh High Court in Pushpal Swarnkar v. State of Chhattisgarh 2009(1) KLD 825 (Chh.) only made reference to the observations in paragraph 15 of the decision in Suresh Nanda regarding the power of criminal court to impound the passport under Sec. 104 of the Code which observation, I stated above is made in an entirely different context. Pushpal Swarnkar’s case did not consider, in view of the observation in paragraph 20 of Suresh Nanda quoted above whether the criminal court can, while releasing a person accused or suspected of commission of a non bailable offence to impose a condition to surrender the passport. The decision in Jose Peter v. Vijayakumar 2009(3) KLT 96 also cannot help petitioner in his contention. There, the question considered and decided was only whether a civil court, in execution of a decree could, invoking Sec. 151 of the Code of Civil Procedure impound passport of a judgment debtor on the ground that he is likely to leave the country. The question was answered in the negative. Even after enactment of the Act, in view of Article 21 of the Constitution as explained in Maneka Gandhi’s case (supra) the right to travel abroad is encompassed in the right to personal liberty which cannot be deprived except in accordance with the procedure established by the law. The right to travel abroad can be deprived by following procedure established by the law. Sec. 437(3) of the Code requires and enables the criminal court while releasing a person accused or suspected of commission of a non bailable offence by imposing a condition that such person shall attend in accordance with the conditions of the bond executed under chapter XXXIII of the Code. Even in the matter of non bailable offences not falling within sub sec.(3) of Sec. 437 of the Code, the Magistrate or court has the discretionary power to impose condition while granting bail. The person to whom bail is granted has to execute a bond in Form No.45 given in the second schedule of the Code. The relevant provision of the bond in Form No.45 states. ”…… and required to give security for any attendance before such officer or court on condition that I shall attend such officer or court on every day on which any investigation or trial is held with regard to such charge, and in case of my making default therein……” The function of the criminal court under Sec. 437 of the Code is not merely to impose a condition in the bond that the person accused or suspected of commission of a non bailable offence and to whom bail is granted attended before the officer or court. The court has to ensure that the condition is complied. The court has to enforce it. The court has to ensure that the accused who is released on bail and who has a passport does not flee from justice. The “majesty of the law is affected when a wrong doer escapes its mighty clutches-whether arising out of a voluntary or involuntary situation.” The court has to preserve the majesty of the law. That could be done, in the case of a person holding a valid passport by directing him to surrender the same in court. That the passport authority may, if proceeding in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India impound or cause to be impounded or revoked such document under Sec.10( 3)(e) of the Act does not deprive the power and duty of the criminal court to enforce its order by appropriate direction. The Supreme Court in Hazarilal Gupta v.Rameswar Prasad and another [AIR 1972 SC 484] has held that sections 496, 497 and 498 of the (old) Code are not exhaustive of powers of the court in regard to terms and conditions of bail particularly when the High Court dealt with cases of that type, it was within the power of court to direct surrender of passport and that if the appellant (in that case) wanted to retain the passport the court might not have granted him bail. Viewed in that line, I am to hold that it is within the power of the criminal court while releasing a person accused or suspected of commission of a non bailable offence on bail under Sec. 437 of the Code to impose a condition that such person shall surrender his passport in court. The power granted by the Code under Sec. 437 of the Code to impose conditions including restriction on movement while granting bail in non bailable offence can be taken as procedure established by law as stated in Article 21 of the Constitution. In that view, with great respect I disagree with the view expressed in Pushpal Swarnkar’s case. But the criminal courts have to take extreme care in imposing such condition. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation, rights of the police and the interest of the society. The criminal court has to consider possibility of the accused if released on bail, fleeing justice and thereby thwarting the course of justice which affects the majesty of the law, as also the individual rights of the accused. The court has to consider antecedents of the person accused or suspected of commission of the offence, nature of the offence he is said to have committed, necessity for his presence for investigation, duration of investigation and such other relevant factors. The court has to decide whether notwithstanding the personal liberty of the accused, interest of justice required that his right of movement should be restricted during the pendency of the case by directing him to surrender his passport. If necessary, it is open to the criminal court direct the accused to execute bond in case he has to go abroad for any purpose, for appropriate amount with sureties undertaking to appear before the Investigating Officer or court as the case may be as and when required to do so. These are though not exhaustive, some of the matters to be borne in mind by the court while deciding whether there should be a condition to surrender the passport or when there is a request to release the passport already surrendered in court. Section 10(3)(e) of the Passport Act specifically deals with impounding of passport whereas Section 104 Cr.P.C., allows the Court to impound the document to produce before the Court. The Passport Act overrides the provision of Cr.P.C., for the purpose of impounding passport. In the present case in hand, the order directing to surrender the passport indefinitely amounts to impounding of the passport itself. In the present case, while granting anticipatory bail to the petitioner, a condition has been imposed to surrender his passport before the trial Court. The petitioner is working a Pilot in Air India Airlines and her nature of duties are such that she is to fly aeroplane and as per duty roster assigned to her, she is to fly abroad on certain occasions where she is not aware about the next program as only a short notice is there during which it is very difficult for the petitioner to take prior permission and to have the the passport in case, the same is deposited. No doubt, as per Section 102(1) of Criminal Procedure Code, the power of police officer is there to seize certa in property. The police may have the power to seize a passport under Section 10 2(1) of the Criminal Procedure Code but it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. There is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his/her possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In the Law Lexicon by P. Ramanath a Aiyar (2 nd Edition), the word “impound” has been defined to mean “to take possession of a document or thing for being held in custody in accordance with law”. Thus, the word “impounding” really means retention of possession of a good or a document which has been seized. Hence, while the police may have power to seize a passport under Section 102 Criminal Procedure Code if it is permissible within the authority given under Section 102 of Criminal Proce dure Code, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Criminal Procedure Code), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that (without?) any opportunity of hearing to a party vide State of Orissa v. Binapani Dei AIR 1967 SC 1269, The trial Court cannot impound a passport. No doubt, Section 104 Criminal Procedure Code states that the Court may, if it thinks fit, impound any document or thing produced before it but this provision will only enable the Court to impound any document or thing other than a passport as impounding a “passport” is provided for in Section 10(3) of the Passports Act. It is a settled law that the special law prevails over the general law. The Passports Act is a special law while the Criminal Procedure Code is a general law. Hence, impounding of a passport cannot be done by the Court under Section 104 Criminal Procedure Code though it can impound any other document or thing. For the reasons recorded here-in-above and law discussed, the present petition is allowed and impugned condition (d) of order dated 14.09.2018 passed by the Additional Sessions Judge, Gurugram is set aside. However, the petitioner is at liberty to move a specific application for release of his passport within a period of two weeks from the date of receipt of certified copy of this order. In case, such an application is moved, the trial Court is directed to consider the application and return the passport forthwith without any delay. It is also directed that the petitioner shall furnish an undertaking in writing before the trial Court in case, long stay is there other than the normal course of her duties prior permission would be taken from the trial Court. 09.10.2018 (DAYA CHAUDHARY) JUDGE

Criminal courts cannot mandate surrender of Passport as condition for Bail, Punjab & Haryana HC

#498a on 10 year old #sister-in-law! #Quashed #PUNJAB HC

////// Miss Kiran – petitioner No. 1 is the sister of Pawan Kumar – husband of respondent No. 2-Pinki Rani. According to the allegations made in the First Information Report, Ms. Kiran was minor at the time of occurrence. In support of her contention, copy of the birth certificate (Annexure P-3) has been filed which shows the date of birth of Kiran daughter of Mansa Ram as 24.2.1981. The age of the petitioner No. 1 in 1994 was around 13 years and at the time of marriage which took place in June, 1991, she was aged about 10 years and four months. The allegation made in the impugned First Information Report insofar as petitioner No. 1-Kiran is concerned is as under :- “……Not only this, accused No. 5, Smt. Preeto and accused No. 6 Miss Kiran along with Parveen Kumar accused No. 2 used to beat the complainant on very trifle matters….”
7. It appears inherently improbable that a minor girl, who was aged a little over 10 years at the time of marriage of respondent No. 2-Pinki Rani, would join hands with her mother in assaulting and beating her sister-in-law (Bhabhi). There are no allegations made in the First Information Report about Miss Kiran making any demand of dowry and harassing and torturing the respondent No. 2. There are no allegations of the entrustment of the dowry items to the petitioner No. 1-Kiran. In my considered view, the impugned First Information Report does not  prima facie show the involvement of Kiran for offences punishable under Sections 406 and 498A of the Indian Penal Code. //////


PUNJAB AND HARYANA HIGH COURT

Before :- K.K. Srivastava, J.

Crl. Misc. No. 6805-M of 1994. D/d. 29.9.1998.

Kiran – Petitioners

Versus

State of Haryana – Respondents


For the Petitioners :- Mr. Vipen Kumar Bali, Advocate.
For the Respondent No. 1 :- Mr. Surinder Lamba, Assistant Advocate General, Haryana.
For the Respondent No. 2 :- Mr. Ashit Malik, Advocate.


Notes :
Indian Penal Code, 1973, Sections 498A and 406 – Criminal Procedure Code, 1973, Section 482 – Cruelty – FIR under Sections 498A, 406 Indian Penal Code lodged by wife against her husband, his parents, sister and brother – Sister 10 years old when marriage took place – Highly improbable that she would beat her Bhabhi (brother’s wife) – Allegation against her and her brother of general nature – FIR qua both quashed.
[Paras 6, 7 and 8]
JUDGMENT

K.K. Srivastava, J. –

  1. Petitioners, Kiran daughter of Mange Ram, Parveen Kumar and Anil Kumar sons of Mansa Ram, all residents of B.III-A, Ram Nagar Om Vihar Uttam Nagar, Nazafgarh, New Delhi, seek the quashing of First Information Report No. 63 dated 28.2.1994 under Sections 498A and 406 of the Indian Penal Code registered at police Station Gharaunda District Karnal and subsequent proceedings flowing therefrom and pending before the Judicial Magistrate Ist Class, Karnal.
  2. Respondent No. 2 Pinki Rani was married with Pawan Kumar at Gharaunda District Karnal on 13.6.1991. The marriage was duly consummated and a female child, namely, Ritikka was born out of this wedlock at Delhi on 29.9.1992. The petitioners are the sister and brothers of Pawan Kumar aforesaid. Respondent No. 2 wife Pinki Rani daughter of Shri Hari Chand, Resident of Gharaunda, lodged the First Information Report aforesaid on the allegations inter alia that the behaviour of the accused since the date of marriage was cruel. Accused-husband Pawan Kumar even refused to join the company of the complainant-wife Pinki Rani for a few days as he was greatly dissatisfied by the dowry given at the time of marriage. The complainant-respondent No. 2 Pinki Rani alleged that her parents had spent a sum of Rs. 2 lacs on the marriage and even that amount was beyond the capacity/means of her parents. The articles which were given in dowry, mentioned in the list were handed over to accused No. 1 Pawan Kumar, his father Mansa-Ram accused No. 4, and his mother Smt. Prito wife of Mansa Ram, accused No. 5 in the presence of witnesses including Ramesh Kumar son of Geeta Ram, Rattan Lal son of Prabhu Ram, Siri Chand son of Daya Ram and other relatives who were present at the time of marriage of the complainant-respondent No. 2. The complainant-wife Pinki Rani behaved sensibly thinking that better days may come and she tried to compromise with the circumstances and the behaviour of the accused persons. It is alleged that the behaviour of the accused, however, became still unbearable and worse. On 28.4.1992 accused-husband Pawan Kumar and his father Mansa Ram came to Gharaunda and left the respondent No. 2 complainant Pinki Rani at the house of her parents saying that until their demand of Rs. 10,000/- in cash was met and the amount is paid to them, they will not take the respondent No. 2-Pinki Rani with them to their house at Delhi. The parents of Pinki Rani made a request to Mansa Ram and his son Pawan Kumar that they should keep their daughter Pinki Rani with them and assured them they would make arrangement for the amount demanded and pay the same to them within a couple of days. It is alleged that on 2.5.1992 Ved Parkash-brother withdrew a sum of Rs. 10,000/- from his bank account and paid the same to Smt. Prito mother-in-law of Pinki Rani. It is alleged that at the time of the payment, accused No. 3, namely, Anil Kumar, who is petitioner No. 3 in this petition, was present. Further contention of the complainant was that the payment of Rs. 10,000/- to her husband and her parents-in-law did not satisfy them and their behaviour did not improve. Respondent-Pinki Rani was used to be beaten by her mother-in-law, petitioner No. 1-Miss Kiran along with petitioner No. 2-Anil Kumar on trifling matters. A Panchayat was convened by the father of the complainant- Pinki Rani at Safidon, which comprised of the relations of the accused and of the complainant-wife. In this Panchayat, the relations of Pinki Rani requested the accused persons to behave properly with Pinki Rani and the accused in turn promised that they will behave properly with the complainant and will not demand dowry in future. However, this proved to be a false promise as on 10.2.1993 petitioner No. 3-Anil Kumar accompanied by husband- Pawan Kumar came to Gharaunda and left the complainant Pinki Rani in two plain clothes at the house of her parents and at that time raised a further demand of payment of Rs. 20,000/- in order to run their business and in default of payment, they threatened that the complainant Pinki Rani should not be sent to their house in Delhi otherwise, they will kill her. It is alleged that the parents of Pinki Rani arranged for the amount demanded as aforesaid and paid the same to Mansa Ram, father-in-law of Pinki Rani and Pawan Kumar, her husband. After the delivery of the female child, Pinki Rani was affected by a disease of tuberculosis due to some infection, which she got in the hospital and since then the accused persons became quite cruel towards her and they said that this was an excuse to get divorce from Pinki Rani. When Pinki Rani could not bear the taunts and the harassment meted out to her, she wrote a letter to her parents on 18.7.1993 apprising them of the behaviour of the accused persons and maltreatment meted out to her at their hands. On receiving letters, the father of the complainant-wife convened a panchayat which consisted of one Jagdish son of Ganpat Ram and Ramesh son of Geeta Ram, Municipal Commissioner, Gharaunda, who went to Delhi and demanded the return of the dowry items given in the marriage and the amounts of Rs. 10,000/- and Rs. 20,000/- paid to the accused persons. Husband Pawan Kumar and his parents told the Panchayat that they will return the dowry articles within one or two days when they would visit Gharaunda. These accused persons came to Gharaunda but they tried to persuade the parents of Pinki Rani to agree for divorce of Pinki Rani from Pawan Kumar and then they would return the dowry articles. The respondent finding no alternative to the situation, launched the impugned First Information Report at Police Station Gharaunda on 28.2.1994.
  3. The petitioners seek the quashing of the impugned First Information Report on the grounds inter alia that a bare perusal of the impugned First Information Report will go to show that no allegations have been made against them regarding the entrustment of the dowry items and about making any demand of dowry and harassing and torturing the respondent-wife Pinki Rani. It has been urged that the main allegations are against the husband Pawan Kumar and their parents Mansa Ram and Smt. Prito. It has been contended that since the impugned First Information Report on the face of it does not disclose the commission of offences punishable under Sections 406 and 498A of the Indian Penal Code against the petitioners, the impugned complaint and the proceedings flowing therefrom in the Court of Judicial Magistrate I Class, Karnal deserve to be quashed. Additionally, it was urged that the cause of action for offences punishable under Sections 406 and 498A of the Indian Penal Code arises at Delhi inasmuch as the property is said to have been entrusted to the husband and in-laws of Pinki Rani at Delhi, the demand for the return of the dowry items was made at Delhi and the harassment and the torture of Pinki Rani for non-fulfilment of dowry also took place at Delhi and as such, the Court at Karnal had no territorial jurisdiction to try the offences.
  4. Notice was issued to Advocate General for the State of Haryana and respondent No. 2-Smt. Pinki Rani, who puts in appearance through Shri Ashit Malik, Advocate, and sought time to file reply. The reply was filed on behalf of respondent No. 2 denying the allegations made in the petition. It has been motioned in the reply/affidavit of Pinki Rani that specific instances of harassment and torture have been mentioned in the First Information Report. The allegations made in the First Information Report qua the petitioner No. 3-Anil Kumar are specific that he used to beat her. Apart from it, there are specific allegations of the demand of a sum of Rs. 20,000/- made by the petitioner No. 3-Anil Kumar. The demand for the return of dowry articles was also made specifically, but the same was not fulfilled.
  5. I have heard the learned counsel for the petitioners and the learned counsel for the respondents.
  6. Miss Kiran-petitioner No. 1 is the sister of Pawan Kumar-husband of respondent No. 2-Pinki Rani. According to the allegations made in the First Information Report, Ms. Kiran was minor at the time of occurrence. In support of her contention, copy of the birth certificate (Annexure P-3) has been filed which shows the date of birth of Kiran daughter of Mansa Ram as 24.2.1981. The age of the petitioner No. 1 in 1994 was around 13 years and at the time of marriage which took place in June, 1991, she was aged about 10 years and four months. The allegation made in the impugned First Information Report insofar as petitioner No. 1-Kiran is concerned is as under :- “……Not only this, accused No. 5, Smt. Preeto and accused No. 6 Miss Kiran along with Parveen Kumar accused No. 2 used to beat the complainant on very trifle matters….”
  7.  It appears inherently improbable that a minor girl, who was aged a little over 10 years at the time of marriage of respondent No. 2-Pinki Rani, would join hands with her mother in assaulting and beating her sister-in-law (Bhabhi). There are no allegations made in the First Information Report about Miss Kiran making any demand of dowry and harassing and torturing the respondent No. 2. There are no allegations of the entrustment of the dowry items to the petitioner No. 1-Kiran. In my considered view, the impugned First Information Report does not prima facie show the involvement of Kiran for offences punishable under Sections 406 and 498A of the Indian Penal Code.
  8. So far as petitioner No. 2-Parveen Kumar is concerned, he has also been involved only on the general allegations of beating Smt. Pinki Rani along with his mother Smt. Prito for the similar reasons as mentioned in respect of Miss Kiran. The allegations regarding petitioner No. 2-Parveen Kumar joining hands with his mother to beat his Bhabhi does not appear to be probable. There are no other allegations made against petitioner No. 2 Parveen Kumar. There are no allegations made in the First Information Report that Parveen Kumar made any demand of dowry and beat Pinki Rani for non- fulfilment of demand of dowry. Likewise, there is no allegation regarding entrustment of the dowry articles with Parveen Kumar.
  9. So far as the petitioner No. 3 Anil Kumar is concerned, there are, no doubt, allegations against him for demanding dowry, who accompanied his brother Pawan Kumar-husband at Gharaunda and also threatened the father of Pinki Rani. The First Information Report shows prima facie involvement of petitioner No. 3-Anil Kumar for the offences under which the First Information Report has been registered.
  10. In view of the foregoing discussion, this petition succeeds in part and is allowed insofar as Miss Kiran and Parveen Kumar are concerned and the impugned First Information Report and the proceedings flowing therefrom are quashed qua petitioners 1 and 2, i.e., Miss Kiran and Parveen Kumar.
  11. Insofar as the petitioner-Anil Kumar is concerned, it lacks merit and is dismissed.
  12. Petition partly allowed.

Court orders IT dept. 2 to report how wife & co could spend 40 Lakhs on marriage. Classic P&H HC bail !

A husband harassed with 406 & 498 cocktail approaches the Hon for AB

during the course of the hearing, the court notices that the wife seems to have made fake and exaggerated claims on dowry items and marriage expenses (to the extent of 40 lakhs !!).

The Hon HC notices these exagerated claims and orders investigation into the wife’s family finances and their source of funds . “….During the course of arguments, this Court asked the complainant side to explain where from 40,00,000/- were acquired by the complainant and her parents so as to spend such a huge amount in the marriage, but they could not give any satisfactory answer and to arrive at a correct conclusion, this Court directed the Commissioner of Income-tax, Jalandhar Range, Jalandhar, to verify the said fact. The private parties were directed to appear before the Commissioner of Income-tax, Jalandhar. The report has been received wherein it has been mentioned that the mother of the complainant has no means to spend beyond22,71,900/-……”

The Honourable court also reiterates that sections 406 & 498-A IPC, are not meant for recovery of dowry articles and grants anticipatory bail to husband !! “….9. So far as the recovery of dowry articles are concerned, the provisions of Sections 406 and 498-A, IPC, are not meant for the said purpose. Reference can be made to Jagdish Thakkar v. State of Delhi, 1992 (3) CCR 2764, wherein Delhi High Court held that in a case under Sections 406 and 498-A, IPC, the anticipatory bail cannot be denied only on the ground that jewellery and the dowry articles were not recovered. It has further been held that the proceedings under Sections 406 and 498-A, IPC, are not meant for the recovery of the jewellery and the dowry articles. The wife (complainant) if so chooses can move the Civil Court for the recovery of the said articles…..”

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

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-29829-2012 (O&M)

Date of Decision: August 23, 2013

Prit Pal Singh   …Petitioner

Versus

State of Punjab and another …Respondents

CORAM:       HON’BLE MR. JUSTICE NARESH KUMAR SANGHI

Present:     Mr. Vijay Pal, Advocate, for the petitioner.

Mr. K.S. Pannu, DAG, Punjab, for respondent No. 1.

Mr. Mandeep Singh Sachdev, Advocate, for respondent No. 2.

NARESH KUMAR SANGHI, J.

  1. Prayer in this petition is for grant of anticipatory bail to the petitioner, Prit Pal Singh, son of Gurjit Singh Walia, resident of G-77/A, Opposite Ansal Plaza Mall, Palam Vihar, Gurgaon, who has been booked for having committed the offences punishable under Sections 406 and 498-A, IPC, in a case arising out of FIR No. 47, dated 23.8.2012, registered at Police Station, Women Cell (now Police Station, Women), Jalandhar City, District Jalandhar.
  2. Learned counsel contends that vide order dated 25.9.2012, the investigating agency was directed not to take coercive steps against the petitioner; the petitioner has joined the investigation several time and fully cooperated with the investigating agency; most of the alleged dowry articles have already been recovered from the house of the petitioner; and that it was a love marriage and the petitioner and the complainant- respondent No. 2 could not pull on well, therefore, just to put pressure on the petitioner and to grab his property, a false case has been registered against him. He further submits that even during the pendency of the application before the learned Additional Sessions Judge, Jalandhar, ad-interim anticipatory bail was granted to the petitioner and he joined the investigation and fully cooperated with the investigating agency. It has also been contended that the complainant has alleged that approximately `40,00,000/- were spent in the marriage, but the report sought by this Court from the Commissioner of Income-tax, Jalandhar-II, Jalandhar, belies the said fact. It has also been contended that the provisions contained in Sections 406 and 498-A, IPC, are not meant for recovery of the dowry articles etc.

  3. Learned counsel for the State on instructions from ASI Ravi Kumar of Police Station, Women, Jalandhar City, District Jalandhar, very fairly concedes that the petitioner has joined the investigation and no more required by the investigating agency. However, all the dowry articles as alleged by the complainant, have not been recovered and for that purpose further interrogation of the petitioner is required.

  4. Learned counsel for the complainant-respondent No. 2 submits that the factum of the love marriage, as alleged by the petitioner, is belied from the compact discs which have been placed on record by her; the petitioner has not joined the investigation and cooperated with the investigating agency; the report received from the Commissioner of Income-tax is incomplete, wrong and perverse; except the husband, no other member of his family has been involved in this case; the grant of anticipatory bail at this stage would prejudice the investigation; and that the previous investigating officer was colliding with the petitioner, therefore, the case could not be effectively investigated.

  5. I have heard learned counsel for the parties and with their able assistance gone through the material available on record.

  6. The marriage of the petitioner with the complainant- respondent No. 2 was solemnized on 1.12.2009. According to the petitioner, it was a love marriage and with the consent of the parents of the petitioner and the complainant, it was performed at Jalandhar. The husband and wife could not pull on well and, hence, the matter was reported to the police, resulting into registration of the present case. The petitioner and the complainant-respondent No. 2 resided at Gurgaon after the marriage, where the petitioner was employed as a Software Engineer in some multinational company. After registration of the case, the petitioner made an application for grant of anticipatory bail before the learned Court of Session and he was granted ad-interim bail. In compliance of the said order, he joined the investigation, but ultimately the said application was dismissed. Hence, he approached this Court.

  7. By virtue of the interim orders passed by this Court, the petitioner further joined the investigation and some of the dowry articles were recovered from him. It is the conceded position that in accordance with the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985, no list of the gifts was prepared. During the course of arguments, this Court asked the complainant side to explain where from 40,00,000/- were acquired by the complainant and her parents so as to spend such a huge amount in the marriage, but they could not give any satisfactory answer and to arrive at a correct conclusion, this Court directed the Commissioner of Income-tax, Jalandhar Range, Jalandhar, to verify the said fact. The private parties were directed to appear before the Commissioner of Income-tax, Jalandhar. The report has been received wherein it has been mentioned that the mother of the complainant has no means to spend beyond22,71,900/-.

  8. According to the learned counsel for the State, the petitioner has joined the investigation and some of the dowry articles have been recovered, but few dowry articles as disclosed by the complainant side are yet to be recovered.

  9. So far as the recovery of dowry articles are concerned, the provisions of Sections 406 and 498-A, IPC, are not meant for the said purpose. Reference can be made to Jagdish Thakkar v. State of Delhi, 1992 (3) CCR 2764, wherein Delhi High Court held that in a case under Sections 406 and 498-A, IPC, the anticipatory bail cannot be denied only on the ground that jewellery and the dowry articles were not recovered. It has further been held that the proceedings under Sections 406 and 498-A, IPC, are not meant for the recovery of the jewellery and the dowry articles. The wife (complainant) if so chooses can move the Civil Court for the recovery of the said articles.

  10. In Uday Singh v. State of Haryana, 2001 (1) R.C.R. (Criminal) 354, this Court held that the accused who had approached this Court for grant of anticipatory bail in a case arising out of the offences punishable under Sections 406 and 498-A, IPC, had joined the investigation and certain articles of dowry were recovered, in that eventuality, anticipatory bail could not be refused on the ground that some articles were still to be recovered.

  11. In Anil Rajput and others v. State of Haryana, 2010 (6) R.C.R. (Criminal) 1126, this Court also held that during pendency of the anticipatory bail petition in a matrimonial dispute case, the petitioner joined the investigation and in spite of the fact that recoveries were yet to be effected, would not dis-entitle the petitioner/accused to the concession of anticipatory bail.

  12. In Beant Singh and another v. State of Punjab, 2011 (2) R.C.R. (Criminal) 381, this Court also held that where there is a claim and counter claim with regard to the dowry articles, in the said circumstances the concession of anticipatory bail should not be withheld.

  13. In Vishal Gulati v. State of Punjab (CRM-M-17915-2012, decided on 5.7.2012), this Court also expressed the view that the provision contained in Sections 406 and 498-A, IPC, are not meant for recovery of the dowry articles.

  14. Hon’ble the Supreme Court in the matter of Siddharam Satingappa Mhetre v. State of Maharashtra, 2011 (1) R.C.R. (Criminal) 126, held that the arrest should be the last option and it should be restricted to those exceptional cases where arrest of the accused is imperative, in the facts and circumstances of the case.

  15. No contrary view has been produced either by the learned counsel for the State or the learned counsel for the complainant-respondent No. 2.

16. Without discussing much on the merits of the case, but keeping in view the facts that the petitioner has joined the investigation and most of the dowry articles have already been recovered, as well as the ratio of the judgments cited herein above, the present petition for grant of anticipatory bail to the petitioner, Prit Pal Singh, son of Gurjit Singh Walia, resident of G- 77/A, Opposite Ansal Plaza Mall, Palam Vihar, Gurgaon, is allowed. In the event of his arrest, the petitioner shall be admitted to bail, subject to his furnishing bail bonds to the satisfaction of the Arresting Officer.

  1. The petitioner shall continue to join the investigation as and when required to do so and abide by all the conditions laid down under Section 438(2), Cr.P.C.

(NARESH KUMAR SANGHI)
August 23, 2013                                  JUDGE
Pkapoor

Kapoor Prashant
2013.08.31 13:56
I attest to the accuracy
of this order

Wife’s second 498a fails as courts dismiss her case !! Australian Husband and Indian #498a !

2nd dowry complaint filed after 1st compromised &acquitted. All courts incl HC dismiss 2nd complaint!

A woman files a 498a etc on her husband. Husband returns from Australia and at that trial she turns hostile (probably there is a compromise ) !! Then once again she files a second 498a on the same husband on same grounds. All courts dismisse the second case as the accused have already been tried and acquitted !! Wife goes on appeal upto P & H HC who also dismiss her application !!

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

In the High Court of Punjab and Haryana at Chandigarh

Crl. Misc. No. M-11357 of 2016 (O&M)

Date of Decision: 08.7.2016

Davinder Kaur                                                                   ……Petitioner

Versus

Nishan Singh and others                                                    ….Respondents

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present:        Mr. B.S.Jatana, Advocate for the petitioner.


ANITA CHAUDHRY, J(ORAL)

CRM-19880-2016

Heard.

Application is allowed and Annexures P-11 to P-15 are taken on record.

CRM-M-11357-2016

This petition has been filed under Section 482 Cr.P.C. for setting aside the order dated 3.7.2014 passed by SDJM, Sardulgarh vide which the complaint filed by the petitioner under Section 498-A, 406, 34 IPC was dismissed. The order was maintained and the revision filed by the petitioner was dismissed. Aggrieved by both the orders, the complainant has filed this petition. She has also assailed the order dated 17.12.2015 vide which the application for additional evidence had been dismissed.

The backdrop of the case is necessary. The petitioner was married to respondent No. 1 on 3.4.2005. A child was born to them.

Disputes arose between the couple. Allegations were levelled that the husband and his family were greedy and were not satisfied with the dowry and started making demands. It was urged that on 18.9.2007 demand of ` 5,00,000/- was made on the pretext that Nishan Singh was to go to Australia. When the complainant expressed her inability she was beaten up and an attempt was made to set her ablaze by sprinkling kerosene oil. She immediately informed her father telephonically. FIR No. 129 dated 22.11.2009 was registered under Section 498-A, 406 IPC at P.S. Sardulgarh. During the pendency of the case Nishan Singh went to Australia. He returned to India in March 2009. Challan was presented and the trial commenced. The complainant did not support the prosecution story at the trial and turned hostile. The trial ended in acquittal.

Later a complaint on the same allegations was filed against Nishan Singh, his mother and Balwinder Singh. The allegations levelled in the FIR were reiterated. The trial Court recorded preliminary evidence and refused to summon the accused and dismissed the complaint on 3.7.2014. Aggrieved with the order a revision was filed. An application under Section 391 Cr.P.C. was also filed for placing some additional material namely copy of the petition, copy of the judgment in the petition filed under Section 13 of Hindu Marriage Act and the order passed in the complaint filed under the Domestic Violence Act.

Copy of the FIR No. 55 dated 1.4.2010 P.S. City Dhuri registered under Section 420, 465, 467, 468, 471, 120-B IPC is available on record. The Revisional Court dismissed the application as well as the revision. The Revisional Court elaborately dealt with the evidence in para 8 of its judgment. It was also noted that there were no details as to the dowry articles that were given and no proof regarding purchase of the articles had been given and once the accused had faced the trial and were acquitted they could not be summoned to face the trial on similar grounds.

Counsel for the petitioner counsel refers to ‘Smt. Rashmi Kumar vesus Mahesh Kumar Bhada 1999(2) R.C.R. (Criminal) 43’ and urges that after the compromise same demands and harassment started and therefore the complaint had to be filed and at the preliminary stage the Court was only to see whether prima facie case was made out for proceeding further and there was ample material before the Court and they should have acted on the evidence that was led before it.

The petitioner had placed on record the FIR that was registered in 2007 as well as the statements made by the complainant.

A perusal of the complaint shows that the complainant had made the same allegations in the FIR in 2007 and the accused were acquitted as the complainant failed to support her own version. Both the Courts below had noted that there was no details to support her contention that any dowry was given.

I find no infirmity in the findings recorded by the Courts below. Petition is dismissed.

(ANITA CHAUDHRY) JUDGE

July 08, 2016

Gurpreet

Already divorced Sikh woman leaves christian (2nd) hubby in 25 days, claims & wins maintenance S125CrPC-P&H HC

An already divorced Sikh woman marries a Christian male under a Hindu / Sikh Ceremony, leaves him in approx 25 days and claims maintenance ! The Husband avers that the woman was ALREADY divorced and had extracted a large amount from the earlier husband !! However, the woman wins maintenance against this husband at the lower court. So husband appeals to HC on grounds that the marriage is VOID (as between a Sikh and a Christian). The Hon Court rules that “…it cannot be held that the marriage between the husband and the wife, who are Hindu and Christian respectively, is not valid for purposes of granting the relief u/s 125 Cr.P.C. ..” !! The Hon court goes on to say “..At the same time, it is open to the aggrieved party to seek appropriate remedy from the Civil Court for a declaration that the marriage is void or voidable, inasmuch as the finding of the Criminal Court in these summary proceedings is neither conclusive nor decisive in the civil proceedings that may be initiated…”

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

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Misc. No. M-25780 of 2015

Date of decision : 03.06.2016

Robin …… Petitioner

versus

Jasbir Kaur … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present:
Mr. Nand Lal Sammi, Advocate for the petitioner
Mr. Rajinder Sharma, Advocate for the respondent

ANITA CHAUDHRY, J.

This petition has been filed under Section 482 Cr.P.C. for quashing the order dated 18.02.2015 passed by Addl. Sessions Judge, Amritsar who dismissed the revision filed by the petitioner seeking quashing of the order dated 07.05.2014 passed by Addl. CJM Amritsar who had allowed interim maintenance of Rs. 2500/- per month to the respondent in the application filed under Section 125 Cr.P.C.

A petition seeking maintenance was filed under Section 125 Cr.P.C. in November 2012. The wife sought interim maintenance and had pleaded that their marriage was solemnized in May 2011 as per Hindu/Sikh rites at a Gurdwara in Amritsar. The parties had cohabited as husband and wife but they had no issue. Difference arose and the wife was beaten and turned out from the house on 25.05.2011.

The applicant had claimed that the husband was teacher in a Senior Secondary School and was drawing Rs. 27,000/- p.m. as salary.

In the reply, the respondent had submitted that application was not maintainable as the marriage was never solemnized as per Sikh Religion and he was a Christian, the petitioner was a hindu and no marriage between the Christian and Sikh could be solemnized. It was pleaded that the petitioner was a divorcee and was highly educated and the alliance had been fixed through an advertisement in the newspaper. It was pleaded that wife had taken divorce earlier from different persons and had extracted huge amount. It was pleaded that since there was no legal or valid marriage, therefore, the petitioner did not have the status of a wife and she was a teacher and had sufficient resources.

The trial Court allowed application and granted Rs. 2500/- as maintenance from the date of appellation.

Aggrieved against the order, the petitioner had filed a revision before the Addl. Sessions Judge who passed the following order:- “The respondent wife filed the petition under Section 125 Cr.P.C. claiming maintenance from the petitioner herein. Alongwith the petition the application for interim maintenance was also filed which has been partly allowed by the Ld. Trial Court vide impugned order. The provisions of Section 125 Cr.P.C. are in the nature of beneficial legislation in order to avoid vagrancy and to provide help to wife, children and parents who are not able to maintain themselves at that stage. Section 125 Cr.P.C. also provided for interim maintenance during the pendency of the petition. The case law relied upon by the Ld. Counsel for the petitioner is not applicable in the facts and circumstance of the present case. As such the present case pertains to a petition under Section 125 Cr.P.C. whereas the case law relates to cases under Section 13 of the Hindu Marriage Act and Section 16 of the Hindu Marriage Act. The nature of relationship between the parties is yet to be proved by way of leading evidence between the parties before the Ld. Trial Court. At this stage no opinion can be expressed on the legality of the marriage. The pleading have to be taken at the face value. It has been contended by the respondent wife that she has no source of income in order to maintain herself. At this stage strict proof of marriage is also not required. The allegations and counter allegations between the parties are yet to be proved by leading evidence. The interim maintenance of Rs. 2500/- per month at this stage can not be termed as on higher side. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

I have heard both the side.

Learned counsel for the petitioner had contended that there was no legal and valid marriage between the parties as the petitioner is a Christian and the respondent is Sikh and when the validity of marriage is an issue, maintenance could not have been allowed. Reliance was placed upon Sarabjit Singh vs. Lourdes Serrato, 2014(3) RCR(Civil) 783, Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani, (Civil Appeal No. 2446 of 2005) decided on 4.12.2008, Badshah vs. Sou. Urmila Badshah Godse & Anr. (Special Leave Petition (Crl.) No. 8596/2013 decided on 18.10.2013, Sangeeta vs. Preston Gomes, MAT.APP. 116/2010, decided on 13.12.2010 and Dwarika Prasa Satpathy vs. Bidyut Prava Dixit, 1999(4) RCR(Criminal) 577.

On the other hand it was submitted that the petitioner had filed a civil suit for declaration that the marriage was null and void and their suit was dismissed in default and the judgments referred to by the petitioner were under the Hindu Marriage Act.

Admittedly, the husband is a Christian whereas the wife is a Sikh and the marriage between them took place as per Hindu rites. The question that arises for consideration is whether the marriage is valid for the purposes of granting maintenance under Section 125 Cr.P.C.

To decide the issue, it is first necessary to refer to the provisions of the Hindu Marriage Act and the other Marriage Laws.

Section 2 of the Hindu Marriage Act reads thus :

“2. Application of Act :- (1) This Act applies –
(a) to any person who is a Hindu by religion …..;
(b) xx xx xx xx
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion ……

Explanation :- The following persons are Hindus …….
(a) xx xx xx
(b) xx xx xx
(c) any person who is a convert or reconvert to the Hindu ……………… religion.
(2) xx xx xx
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained in this section.”

Section 5 of the Hindu Marriage Act basically contemplates solemnisation of the marriage between two Hindus and prescribe certain conditions thereof for its validity. The said section reads as follows :

“5. Conditions for a Hindu Marriage :- A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely :
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party –
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or;
(c) has been subject to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) omitted by Act 2 of 1978.”

Section 11 of the Hindu Marriage Act reads thus :
“11. Void Marriages :- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.”

The section as seen provides for grant of a decree declaring the marriage to be null and void on an application made by either party thereto when the marriage is performed in contravention of any of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act i.e., living spouse, degrees of prohibited relationship and sapinda relationship respectively.

Section 12 of the Hindu Marriage Act provides for grant of a decree of nullity of voidable marriages on any of the grounds mentioned thereof. It reads as follows :

“12. Voidable marriages :- (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :-
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the conditions specified in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or by any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) xx xx xx.”

To sum up, as per Section 11 of the Hindu Marriage Act, the marriages performed in contravention of Clauses (i), (iv) and of Section 5 of the Hindu Marriage Act are void, whereas under Section 12 of the said Act, for contravention of any of the conditions enumerated therein, the marriages are voidable.

It is necessary to notice that neither Section 11 nor Section 12 of the said Act renders a marriage between a Hindu and a Christian void or voidable on the ground that the parties belong to two different religions.

The rigour of voidness covered by Section 4 of the Indian Christian Marriage Act is stressed and attached more to the persons that officiate in the solemnisation of the marriages, and it does not envisage as regards the validity or otherwise of a marriage simpliciter that took place between a Hindu and a Christian. This view is again fortified by Section 4 of the Special Marriage Act, which permits a marriage between two persons of different faiths. Therefore, a Hindu can marry a Christian under the Special Marriage Act. Such a marriage cannot be held to be void on the ground that it was not performed according to the provisions of Section 5 of the Indian Christian Marriage Act. Similarly, Section 4 of the Foreign Marriage Act permits a marriage between parties, one of whom at least is an Indian citizen residing outside India. On a similar anology as noted supra, even a marriage under this Act, if performed between a Hindu and a Christian both or one of whom is an Indian citizen, cannot be held to be void on the ground that it is not performed in accordance with the provisions of Section 5 of the Indian Christian Marriage Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Accordingly, in view of the above discussion, it has to be held that the marriage between a Christian and a Hindu performed as per the Hindu rites with the full consent of both parties cannot be said to be invalid for purposes of claiming maintenance u/S. 125, Cr.P.C.

In Kunhiraman Nair v. Annakutty, 1967 Ker LT 24, it is noteworthy that the marriage was performed in accordance with the customs prevalent in Nair community between a Nair male and a woman following Roman Catholic faith. It was held that the very performance of the marriage and the fact that the parties thereto lived together as husband and wife were sufficient to confer on the woman the status of wife for claiming maintenance u/S. 488, Cr.P.C., 1898.

In Pahtan Maung v. Ma San, (1939) 40 Cri LJ 653 : AIR 1939 Rangoon 207, a Budhist woman married a Mohammadan and claimed maintenance. It was held that although the marriage was not strictly in accordance with Mohammadan Law, she was entitled to relief u/S. 488, Cr.P.C., 1898.

In Smyth v. Mrs. Hannah Smyth, , a Roman Catholic married a woman professing Jewish faith. It was held that the marriage was not invalid so as to render an order of maintenance passed by a Criminal Court illegal.

In Sethurathinam Pillai v. Barbara Dolly @ Sethurathinam, (1970) 1 SCWR 589, the Madras High Court upheld the marriage between a Christian woman and a Hindu male as also the claim for maintenance on the ground that there is nothing in Hindu Law forbidding a marriage between a Hindu and non-Hindu. On appeal, the order granting maintenance by the Madras High Court was confirmed by the Supreme Court observing : “We do not think it necessary in this case to decide the case on the merits. The order passed in an application filed u/S. 488, Cr.P.C. is a summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy. The decision of the Criminal Court that there was a marriage between Barbara and Sethurathinam and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining those questions.”

In view of the above, it cannot be held that the marriage between the husband and the wife, who are Hindu and Christian respectively, is not valid for purposes of granting the relief u/s 125 Cr.P.C. At the same time, it is open to the aggrieved party to seek appropriate remedy from the Civil Court for a declaration that the marriage is void or voidable, inasmuch as the finding of the Criminal Court in these summary proceedings is neither conclusive nor decisive in the civil proceedings that may be initiated. The quantum of maintenance was not seriously challenged before me.

For the foregoing reasons, the petition is dismissed.

(ANITA CHAUDHRY)
JUDGE
June 03, 2016

reena

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