Wife goes 2 Supreme court 2 get husband arrested & screwed, refusing 2.5 Lakhs deposited in court! The 498a ablaas of India

Wife goes 2 Supreme court 2 get husband arrested & screwed, refusing 2.5 Lakhs deposited in court! The 498a ablaas of India

A husband is convicted of 498a & 406 at magistrate court. His mother is acquitted, his father dies during the case. He goes on appeal against the conviction, while wife goes on appeal against the mother in law’s acquittal !!. The sessions court says he can pay Rs 250000 to the wife and if he does so, he would be shown leniency and not jailed so that he does NOT loose his government job. Husband also deposits the money. All seems well to the normal reader, except that the wife pursues the matter to the HC where she looses again !! She doesn’t give up and goes right up to the Supreme court, seeking directions that the husband NOT be spared, meaning arrested whatever, as 498a and 406 are grevious offences … Hon SC sends the matter back to High Court for re-hearing the parties and fresh decision on merits!

I appreciate that henious crimies are to be punished. IF so what about the false case ? false rape and false dowry cases are also crimes against humanity !! why aren’t the women punished ?


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.212 OF 2016
[Arising out of S.L.P.(Crl.)No.3695 of 2013]

Charanjit Kaur …..Appellant

Versus

Bikram Singh & Anr. …..Respondents

W I T H

CRIMINAL APPEAL NO.213 OF 2016
[Arising out of S.L.P.(Crl.)No.3694 of 2013]

J U D G M E N T

SHIVA KIRTI SINGH, J.

Heard the parties. Leave granted.

Various shades of life at times create so much impact that even a disinterested person gets shaken and tends to recall the clichéd statement that truth can be stranger than fiction. At least in the Indian society, a wife, come what may, is perceived to be the ultimate caretaker of her family and particularly the husband. But cruel acts of the husband and the in-laws can turn the situation upside down. The essential brief facts of this case amply justify the aforesaid observations. The appellant is wife of respondent no.1. Harassed and tortured on account of greed for dowry, she was hounded out of the matrimonial house and was forced by such circumstances to lodge a criminal case under Section 498A, 406 and 120B of the IPC when all hopes of compromise sought to be achieved through numerous rounds of Panchayat by the elders of the two families failed to yield any result and allegedly even ornaments and streedhan of the appellant were not returned to her. During trial the father-in-law expired and mother-in-law was acquitted but the husband, respondent no.1 herein was convicted and awarded R.I. for one year for each of the offence under Section 406 and 498A of the IPC and also a fine of Rs.1000/- with a default clause of R.I. for 15 days. The sentences were ordered to run concurrently. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The appellant preferred an appeal against the acquittal of mother-in-law as well as for enhancing the punishment awarded to the husband. State also appealed against acquittal whereas respondent no.1 preferred appeal against his conviction. All the three appeals were dismissed by the learned Sessions Judge, Kapurthala and the judgment and order of the learned Judicial Magistrate, 1st Class, Phagwara dated 30.07.2007 in R.T. No.8 of 23.5.2007 arising out of FIR No.8 dated 8.1.2002 of P.S. Sadar, Phagwara was affirmed with a modification in the sentence awarded to Bikram Singh, respondent no.1. He was shown marked leniency in view of a plea that in case he is sent to jail he may lose his Government job. The Sessions Court, on the aforesaid ground permitted him to deposit Rs.2,50,000/- payable to the appellant within one month and if such deposit is made then he was to get the benefit of probation bond under Section 4(1) of the Probation of Offenders Act, 1958.

Against the aforesaid judgment and order of the Additional Sessions Judge, Kapurthala dated 16.12.2010 the appellant preferred Crl. Revision No.803 of 2011 in the High Court of Punjab & Haryana at Chandigarh which has been dismissed virtually in a summary manner by the order under appeal dated March 12, 2012.

On behalf of the appellant, a number of submissions have been advanced to assail the impugned order. It has been contended that considering the nature of the offence, no leniency should have been shown to the respondent no.1 after his conviction was affirmed for offences under Sections 498A and 406 of the IPC. The appellant claims that she did not withdraw the fine of Rs.1000/- awarded by the trial court or the amount of Rs.2,50,000/- awarded by the appellate court. The High Court appears to have been influenced by a wrong presumption that there was still a chance to save the marriage although the fact is otherwise and would have been clear if High Court had granted an opportunity to the appellant to express her feelings and view in the matter.

Without expressing any opinion on the pleas advanced on behalf of the appellant and the reply advanced on behalf of respondents, after going through the order under appeal and noticing the summary manner in which the Revision has been dismissed only after noticing that Rs.2,50,000/- has been deposited, we are of the firm view that the impugned order needs to be set aside so that the matter may be sent back to the High Court for re-hearing the parties and fresh decision on merits. We order accordingly. The appeal arising out of S.L.P.(Crl.)No.3695 of 2013 is allowed to the aforesaid extent. Be it noted that we have not gone into the merits of rival submissions and the High Court would be free to take its own decision in matter strictly in accordance with law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

This order shall govern the appeal arising out of S.L.P.(Crl.)No.3694 of 2013, also.

.…………………………………….J.

[DIPAK MISRA] ……………………………………..J.

[SHIVA KIRTI SINGH] New Delhi.

March 10, 2016.


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


Pay & quash. ALSO guarantee secrecy so that all sh!t will be under wraps !!

Taking money to quash a 498a 406 case itself leads to a suspicion, that the woman was NOT serious about punishment but just wanted money, and used the police / IPC as a convenient tool !

Now, IF you add a secrecy clause to the quash Judgement, that leads to further suspicion that the woman is planning her second attack !!!

So, in this case, Not only is the man paying to quash, now a clause has been added to stop the flow of information !! for example , this quash says “…..It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. …..” !!


IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 391/2016

Date of Decision: May 10th, 2016

JITENDER KUMAR & ORS ….. Petitioner
Through: Mr. Rajendra Kumar Tiwari, Advocate.

versus

STATE (NCT OF DELHI) & ORS ….. Respondent
Through: Mr. M.P. Singh, Additional Public Prosecutor for the State with Sub- Inspector Umed Singh, Police Station Mianwali Nagar, Delhi and Sub-Inspector Raman Pratap, Police Station CWS, Nanakpura.

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

 

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioner, namely, Smt. Jitender Kumar, Sh. Mahavir Singh, Smt. Laxmi, Sh. Narender Kumar and Ms. Pooja for quashing of FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri on the basis of mediation report in Delhi Mediation Centre, Tis Hazari Courts in view of the settlement arrived at between petitioner no.1 and respondent no.2, Smt. Poornima @ Sonia on 24.03.2014.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant in the FIR in question by SI Umedh Singh.
  3. The factual matrix of the present case is that the marriage between petitioner no.1 and the respondent no.2 was solemnized on 23.04.2008. The family of the husband of the complainant was not satisfied with the dowry. All of the complainant’s jewellery was taken away by her mother-in-law including Rs. 24,000/- cash. The husband of the complainant along with his other family members used to beat and abuse the complainant on several occasions. They also used to humiliate the complainant and her father on the demand of Rs.15 Lakhs at various instances. The respondent no.2/complainant lodged a complaint which resulted into the registration of the FIR in question against the petitioners. Subsequently, on 24.03.2014, during the pendency of the proceedings of Section 12 of D.V. Act instituted by the petitioner against the respondent no.2, the matter was amicably settled between the petitioner no.1 and respondent no.2.
  4. Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the mediation report, it is agreed that the parties shall take divorce by way of mutual consent. It is agreed that the petitioner no.1 shall pay the total settlement amount of Rs. 6 Lacs towards as her past, present and future maintenance and permanent alimony and any other legal claims. It is also agreed petitioner no.1 shall pay Rs. 2 Lacs at the time of quashing of the FIR in question. It is agreed that petitioner no.1 has already handed over a DD bearing no. 000614 drawn on PMC Bank for a sum of Rs. 1 Lac to respondent no.2. It is also agreed that the first motion petition shall be filed on or before 21.04.2014 and the second motion petition for divorce by mutual consent shall be filed after six months of the allowing of the first motion petition and within two months thereafter. It is also agreed that petitioner no.1 shall withdraw his petition for divorce on the ground of cruelty which is pending before concerned Family Court, west, THC, Delhi on the 05.04.2014. It is also agreed that respondent no.2 shall withdraw the petition under Section 12 of D.V. Act and her petition under Section 125 Cr.P.C. pending before concerned Family Court, West, THC, Delhi on 05.04.2014. It is also agreed that respondent no.2 shall withdraw the executions filed by her before concerned Family Court, West, THC, Delhi on their next dates of hearing i.e. 02.04.2014 and 16.04.2014 respectively. It is also agreed that both parties shall approach this Court for quashing of the FIR in question within the one month from the date of grant of decree of divorce and that respondent no.2 shall cooperate with petitioner no.1 and his family members. It is also agreed that after the decree of annulment is passed, respondent no.2 shall not have any right, title or interest in the property of petitioner no.1 or his ancestors. It is also agreed that the parties shall not retract from their respective statements failing which they shall make themselves liable for legal action as per law. It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. It is also agreed that the parties shall not give any effect to the complaint, if any already filed and shall not file any complaint against the other in future in respect of the marriage between them subject to the conditions of the settlement being fulfilled. It is also agreed that the parties shall not interfere in the future in each other’s lives and that they shall not visit the workplace or residence of each other. It is also agreed that the parties shall not try to contact each other except through their lawyers and As per the convenience of the lawyers they can have a meeting in the chamber of lawyers in order to give effect to this settlement and bring the litigation to an end. It is also agreed that the parties shall not use the evidence, if any in their possession against the other party before any authority. It is also agreed that the parties shall appear before the Court to abide by the terms of and conditions set out in the agreement and not to dispute the same herein after in future. It is also agreed that the parties shall not make any claim of any nature against each other in respect of the present dispute. It is agreed that the parties shall appear before the Court of Ld. MM (Mahila Court)-02, West, THC, Delhi on 02.04.2014 and on subsequent dates As well as before the Court of Ms. Reena Singh Nag, Ld. Judge, Family Courts, West THC, Delhi on 05.04.2014 and on subsequent dates as well as this Court for quashing of the FIR in question to abide by the terms set out in this settlement. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 07.12.2015 supporting this petition. In the affidavit, the respondent no.2 has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent no.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  5. In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:-
    • “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
  6. The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-
    • “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings.
    • 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
      • (i) ends of justice, or
      • (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
    • 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.\
    • 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
  7. The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agreed to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.
  8. The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law.
  9. It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
  10. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
  11. The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already overburdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.
  12. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.
  13. In the facts and circumstances of this case, in view of statement made by the respondent no.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
  14. Accordingly, this petition is allowed and FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri and the proceedings emanating therefrom are quashed against the petitioners.
  15. This petition is accordingly disposed of.

 

(P.S.TEJI) JUDGE MAY 10, 2016 dd

False 498a on 13 people with vengeance after divorce & recovery of dower. accused wait 7 years for justice ! Jarkhand HC

After accepting dower amount & getting back all utensils as demanded, wife files a complaint case, with Dowry etc allegation of period prior to filing of petition for recovery of dower !! She does so on 13 people including the husband and his family members !! The lower (magistrate) court also takes cognizance !!

So husband and party approach the HC. The Honourable HC concludes “… I find from the materials available on record that this complaint case has been filed with vengeance against the petitioners after recovery of the Dower amount and articles through a competent court….” and “the entire criminal proceeding in connection with C. P. Case No. 1397 of 2008 are, hereby, quashed..” !!

This is the sad fate in India where Cognizance is taken by lower courts, and a false 498a case, that too on 13 people of husband’s family and they are made to run around for approx 7 years to get justice !! (2009 to 2016 )


IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 336 of 2009

1.Md. Sayeed Anwar son of Hamid Ansari @ Abdul Hamid Ansari
2. Aziz Ansari s/o late Majid Ansari
3. Hamid @ Abdul Hamid Ansari s/o Majid Ansari
4. Munni @ Munni Khatoon w/o Abdul Hamid Ansari
5. Sajid @ Sajid Anwar @ Babu s/o Abdul Hamid Ansari
6. Zakir Hussain @ Zakir Anwar @ Lala s/o Abdul Hamid Ansari
7. Rayees Ansari @ Rayesh Anwar s/o Abdul Hamid Ansari
8. Ruby Naaz@ Rubi Naz d/o Abdul Hamid Ansari
9. Guria Praveen @ Guria d/o Abdul Hamid Ansari
10. Soni w/o Imtiyaz Ansari
11. Ashraf Ansari s/o Samsul Ansari
12. Md. Imtiyaz Ansari s/o Khalil Ansari
13. Anjum Ara @ Anjum w/o Ashraf Ansari, all r/o village Chatabad, Bhandaridih
P.S Katras Dist. Dhanbad .……………… Petitioners

Versus
1. State of Jharkhand
2. Hamida Khatoon @ Guriya Arshi d/o Md. Jasim Ansari and w/o Md. Sayeed
Anwar r/o village Rahmatganj, Pandarpala, P.S Bankmore (Bhuli O.P.) Dist.
Dhanbad ………………. Opp. Parties


CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA

For the Petitioners : M/sr. Gautam Kumar & Birat Kumar, Advocates
For the State : Mr. S.K. Srivastava, APP.
For the O.P No. 2 : Mr. M.K, Laik, Sr. Advocate, Mrs. Leena Mukherjee, Advocate


CAV on- 11.09.2015
Pronounced on 11/05/2016

  1. Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short ” the Code”), the petitioners 13 in number have prayed for quashing of the entire criminal proceeding including the order taking cognizance dated 02.02.2009 passed by learned Judicial Magistrate, Dhanbad in C.P. Case No. 1397 of 2008.
  2. The prosecution case, which is relevant for the proper adjudication of the issue involved in this case, in short is that, at the instance of the complainant-Hamid Khatoon @ Guriya Arshi, the aforesaid complaint case was filed against the petitioners with the allegation that her marriage was solemnized with petitioner no.1, Md. Sayeed Anwar on 22.11.2005 and after the marriage, she remained in her Sasural for a month but, thereafter her husband and other in-laws started demanding dowry and due to non-fulfillment of their, she was subjected to physical and mental torture. On 30.04.2008, the petitioners tried to set her on fire by sprinkling kerosene oil, however, she could save herself and informed the police station on 02.05.2008, but when no action was taken, this complaint case was filed. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com</SMALL&gt;
  3. After examination of the complainant on solemn affirmation and other witnesses, the court took cognizance of the offence under Section 498-A of the Indian Penal Code and directed to issue summons for the appearance of the petitioners.
  4. It appears from the record that before filing of complaint case on 21.07.2008 the opposite party no.2- the complainant had filed a Civil Misc. Case No. 9 of 2008 in the court of Principal Judge, Family Court, Dhanbad under Section 292 of the Mohamdan Law for recovery of Dower of Rs. 39,000/- on the ground that her husband has already given her Talaque and the court after issuance of notice to the present petitioner no.1 directed to pay the Dower amount of Rs. 39,000/- and also directed to return all the articles as per the list given by the complainant. Accordingly, Rs. 39,000/- was handed over to the complainant and an endorsement was made by the complainant on the order-sheet of the said case, which is enclosed as Annexure-3 with this Criminal Miscellaneous Petition. The articles were also returned to the complainant of this case and the list of those articles with the signature of the complainant is enclosed as Annexure-4 with this Criminal Miscellaneous Petition.
  5. Learned counsel Mr. Gautam appearing for the petitioners seriously contented that the continuance of the entire criminal proceeding including the order taking cognizance is bad in law, perverse and abuse of process of law. It was also submitted that the present proceeding is nothing except a vengeance to hurt the petitioners. Hence, continuance of this proceeding amounts to providing a forum to the complainant to settle earlier differences or to take revenge.
  6. Contrary to the aforesaid submissions, Mr. Laik learned Senior Advocate representing the complainant-opposite party no.2 submitted that at this stage, the entire criminal proceeding including the order taking cognizance cannot be quashed as the allegations made in the complaint petition relates to a period before filing of the petition in the court of Principal Judge, Family Court and even though the complainant had admitted the factum of Talaque given by the petitioner no.1 and acceptance of Dower amount and utensils, the petitioners cannot be absolved from criminality.
  7. Apparently, after accepting the Dower amount and getting back all the utensils as demanded by the complainant, the present complaint case was filed with the allegation of period prior to filing of the petition under Section 292 of Mohamdan Law before the Principal Judge, Family Court, Dhanbad. It is not that the petitioner no.1, husband of the complainant, had filed a petition before a competent court for divorce, rather it was the complainant, who had filed the petition for recovery of the Dower amount and utensils, which were given to the petitioner no.1 during marriage. In a case of Arjun Ram Vs. State of Jharkhand and another reported in 2004 CRI. L. J. 2989 while considering the similar situation, the court held that when a case was filed by husband for divorce then a complaint was filed and the court held that it is a motivated one. The Hon’ble Supreme Court in a judgment reported in AIR 1992 SC 604 held that the case filed by way of revenge should be quashed as the same amounts to abuse of the process of the court. In almost a similar situation, the Hon’ble Supreme Court while considering the issue in the case M. Saravana Porselvi Vs. A.R. Chandrashekar @ Parthiban & Others; 2008 (3) East Cr. C 320 (SC) held that if it is a case of customary divorce, the question in regard to existence of good custom may have to be gone into in a civil proceeding. But Criminal prosecution shall not lie. It was initiated malafide. Thus, if it is allowed to continue, the same shall be an abuse of the process of Court.
  8. In the above case also after divorce the party accepted the permanent alimony and thereafter filed a case under Section 498-A I.P.C almost similar to the instant case. The High Court in that case exercising its jurisdiction under Section 482 of the Code had quashed the proceeding. Whereafter aggrieved party filed appeal before Hon’ble Supreme Court. The Supreme Court held that there was no legal infirmity in the impugned judgment of High Court. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com</SMALL&gt;
  9. I find from the materials available on record that this complaint case has been filed with vengeance against the petitioners after recovery of the Dower amount and articles through a competent court.
  10. In that view of the matter, this Criminal Miscellaneous Petition is allowed. The order 02.02.2009 by which cognizance of offence has been taken and the entire criminal proceeding in connection with C. P. Case No. 1397 of 2008 are, hereby, quashed.

(R.N.Verma, J.)
Jharkhand High Court,
Ranchi Dated, 11th May, 2016

Anjali/N.A.F.R.

<SMALL>*****************************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


</SMALL>

Un proven criminal cases, wild allegations, is cruelty ! Divorce even before 498a decreed !!

Husband files restitution case on wife requesting her to return to matrimony. Once the notice is served on wife, she unleashes a 498a, 406, CrPC 125 etc cocktail on husband (circa year 2002). She is unable to prove any of the allegations. The Hon Allahabad HC notices that “….Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband…” categorically states that such false allegations and criminal case tantamount to cruelty on the husband and grants divorce !!


HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 19

Case :- SECOND APPEAL No. – 844 of 2006

Appellant :- Narayan Prasad Saraswat

Respondent :- Smt. Shaifali @ Muniya

Counsel for Appellant :- M.K. Gupta, Pankaj Agarwal

Counsel for Respondent :- D.K. Dwivaedi

Hon’ble Pramod Kumar Srivastava, J.

  1. At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
  2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
  3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
  4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (/J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
  5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.-wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
  6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
  7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under: “Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
  8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
  9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offences u/s 498-A, 323 IPC & section ¾ Dowry Prohibition Act, case of maintenance u/s 125 CrPC, criminal complaint case u/s 406, 109 IPC. The burden of proving the fact of expelling wife-O.P. by petitioner without any sufficient reason is on wife- O.P. (complainant) because negative facts cannot be proved. It is the respondent-wife who has been alleging such facts, therefore the burden of proving these facts were on her, and in absence of any such evidence, the plea of desertion and living separately by her without sufficient reasons should have been accepted by lower courts.
  10. The petition of divorce was filed on three grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit no. 397/2002 against his wife-respondent u/s 9 of the Hindu Marriages Act for restitution of conjugal rights. During pendency of said proceedings, he amended the original suit for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower court that during pendency of original suit, the parties were willing to live together together. On the contrary it was found that initially petitioner-appellant was willing to live with respondent-wife, but when she started filing several criminal cases then he amended the suit for the relief of divorce. It is pertinent to mention that in her written-statement O.P.-respondent had specifically declined to live with husband-appellant. The differences between the parties from the beginning and their living separately for more than 14 years is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required u/s 13 of Hindu Marriage Act.
  11. Apart from it, in matrimonial disputes propriety of the things should also be specially considered. In present matter, according to the petitioner the parties are living separately from 19-08-2001, and according to respondent-wife they are living separately since 2002. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband, , and several mediation and reconciliation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his family members.
  12. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving such facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Leveling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
  13. The word ”cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section 13 of Hindu Marriage Act in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of criminal mis-appropriation of stridhan, dowry demand and physical torture made by the respondent-wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of serious nature, and as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amount to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the criminal proceedings against his father, mother and himself. The arrest and getting bailed out for criminal offences must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in the society would also amount to cruelty.
  14. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held: “Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
  15. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 the Apex Court had held as under:
    • “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. – – –
    • 8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband. – – – –
    • 11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. – – – – A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
  16. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
  17. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with serious allegations and others family members and still facing prosecution for conviction and apprehension of incarceration amounts to cruelty to appellant.
  18. The third ground for divorce taken by petitioner-appellant was that of adultery. Section 497 IPC reads- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. In this regard trial court had given finding that when Smt. Kamlesh saw her husband during physical relationship with respondent (Smt. Shaifali @ Muniya) then she (respondent) was not married. So at the relevant time respondent was un-married, therefore this allegation of involvement in adultery after marriage of respondent was rightly held not proved by lower courts.
  19. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
  20. It would mean that apart from other problems that had come in their way, the main problem is the failure of matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition u/s 9 of Hindu Marriage for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. In her pleading respondent refused to live with appellant. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
  21. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.
  22. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.
  23. Accordingly the appeal is allowed. The impugned judgments dated 24.04.2006 and 24.08.2006 of the lower courts are set aside and matrimonial original suit no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) for the divorce is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.

 

Order Date :- 18.04.2016 SR

India is a land of culture ! Dating is NOT common, but FALSE rape , 498a is VERY common !! :-)

  • India is a land of great culture. SEX before marriage is NOT common. Dating is NOT common. However FAKE rape, 498a is very common in India. Recently it was found that 70+ % of rape cases filed in Delhi were fake. They were either “rape to force a marriage” or “rape to extract money” or completely fake to settle scores !!
  • Since the last 15 or so years, courts have repeatedly stated that 498a and Dv act is often misused to harass the husband and in laws
  • Still there is NO change in fake cases. Fake rape is a recent lucrative addition !!

Screenshot - 15_05_2016 , 11_23_46